United States District Court, D. Maryland
FREDERICK MOTZ UNITED STATES DISTRICT JUDGE.
is a motion to dismiss, or alternatively, for summary
judgment filed by Defendants Maryland Department of Public
Safety and Correctional Services ("DPSCS"), former
Secretary Gary Maynard, and former Secretary Gregg
Hershberger. ECF 30. Plaintiff has responded. ECF
Upon review of the pleadings filed, the court finds a hearing
in this matter unnecessary. See Local Rule 105.6 (D.
Md. 2016). For the reasons stated below, defendants'
dispositive motion will be GRANTED.
Frankie McCoy, an inmate currently confined at the
Maryland. Correctional Institution
("MCI-J") in Jessup, Maryland, filed the instant
complaint in the United States District Court for the
District of Columbia alleging that his rights under the
Americans with Disabilities Act, the Rehabilitation Act, and
42 U.S.C. § 1983 were violated. ECF 1, p. 1. The case
was subsequenlly transferred to this court. ECF 5.
states that his numerous physical disabilities have not been
accommodated. He claims that defendants Maynard, Hershberger
and Stouffer, in their capacities as high-ranking roles
within the Department of Corrections, were aware of the
denial of accommodations for plaintiffs disabilities and
failed to take corrective action. ECF 1, p. 6. Plaintiff
states that Shiloh has consistently denied plaintiff the
opportunity to work. Id. He alleges that Corcoran
and Armstead established policies that discriminated against
disabled prisoners. Id. He further alleges that
Corcoran and Armstead denied plaintiffs requests for ADA and
Rehabilitation Act accommodation.. Id., p. 7.
Plaintiff states that correctional officers Bivens, Nivens,
Washington, Henry, Osles, Gatewood and Kramo failed to follow
DPSCS regulations regarding transportation of disabled
persons causing him injury. Id. He alleges that
correctional officers Daugherty, Bailey, and social workers
Rembraund and Carya also denied plaintiffs disability
accommodations and excluded him from participating in
services and programming. Id. He claims that dietary
personnel Bailey, Fliggins, Macall, and White have interfered
with medications and nutritional accommodations deemed
necessary by physicians and/or nutritionists. Id.
specifies that over the past five years he has been denied
access to the telephone so that he can adequately communicate
with family, friends, legal counsel, and others.
!d., p. 8. He alleges he has been denied access to a
handicapped accessible cell and shower, and his request for
"safety strips" to improve traction in his housing
unit has also been denied. Id., pp. 8-9. Plaintiff
alleges his nutrition and digestive disorders have been
ignored. Id. He claims that during transport he has
been improperly secured and denied access to bathroom
facilities. Id. Plaintiff claims that his
opportunity to be employed, earn diminution credits, and to
access programming have all been adversely impacted by his
disability, without accommodation. Id., p. 9.
note that plaintiff has filed two grievances with the Inmate
Grievance Office (IGO) since December 1, 2012, regarding
MCIJ's alleged failure to accommodate his disability. ECF
30-1, Ex. 1, ¶¶ 2-3. Neverdon Decl.).
9, 2014, plaintiff filed an appeal to the IGO regarding the
disposition of ARP-MCI-J-0305114 wherein plaintiff complained
of the conditions of his confinement. He asserted that a
"Settlement-Agreement and Release" had been
violated. Id., ¶3.a. The grievance was
dismissed on December 15, 2014, after plaintiff failed to
supplement his filing as directed by IGO personnel.
23, 2016, plaintiff filed IGO No. 20160901, requesting
follow-up medical care regarding an ongoing medical need
which he claimed was being ignored. Id., ¶3.b.
The IGO appeal was dismissed on July 1, 2016, as beyond the
jurisdiction of the IGO, as it constituted a complaint
against medical staff rather than employees of the Division
of Correction. Id.
Pending Non-Dispositive Motions
instant complaint was instituted by plaintiff in the United
States District Court of the District of Columbia on December
8, 2015, raising the claims articulated above. ECF 1.
Plaintiff is a frequent litigator in this court, and due to
his high volume of filings is limited to litigating one case
at a time on this court's docket. After the case was
transferred to this court, plaintiff filed motions to stay
proceedings (ECF 8 & 11) wherein he sought to have the
case stayed until he felt he could proceed with the matter
while managing his other litigation and medical concerns. The
motions were denied and plaintiff was directed to advise the
court how he wished to proceed. ECF 13. He indicated that he
wanted this case to proceed. ECF 15.
on June 15, 2016, plaintiff filed an amended complaint
raising unrelated claims against Sgt. Fisher and Warden
Corcoran. In the amendment, he stated that on January 21,
2013, he was awakened to his cell being flooded. ECF 16, p.
4. Plaintiff claimed that he and his cellmate called for Sgt.
Fisher to unlock the cell door, to no avail. He stated he was
trapped in his cell with ankle deep water on the floor for
over an hour, and he slipped and fell twice due to these
conditions, incurring additional injury. After receipt of
defendants' dispositive motion, plaintiff again attempted
to file an amended complaint raising these same allegations
against Fisher and Corcoran regarding injuries arising from
the flooding of his cell. ECF 35.
to Federal Rule of Civil Procedure 15(a), "[a] party may
amend its pleading once as a matter of course within 21 days
after serving it, or if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (t), whichever is earlier."
Fed.R.Civ.P. 15(a)(1.. "In all other cases, a party may
amend its pleading only with the opposing party's written
consent or the court's leave." Fed.R.Civ.P.
15(a)(2). Rule 15 dictates that "[t]he court should
freely give leave when justice so requires."
Id. Further, Fed R. Civ. P. 15(c)(1)(A) permits an
amendment to a pleading to relate back to the date of the
original pleading when "the law that provides the
applicable statute of limitations allows relation back."
complaint was filed pursuant to 42 U.S.C. S1983, which does
not contain a statute of limitation provision. Section 1983
provides a federal cause of action, but looks to the law of
the State in which the cause of action arose, specifically
relying on the statute of limitations that each state
provides for personal-injury torts. Wallace v. Kato,549 U.S. 384, 387 (2007) (citing Owens v. Okure, 488
U.S. 235, 249-50 (1989)). In Maryland, the applicable statute
of limitations is three years from the date of the
occurrence. See Md. Cts & Jud. Pro. Code S
5-101. Thus, Maryland ...