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Henson v. Bishop

United States District Court, D. Maryland

January 23, 2018

JAMES A. HENSON, JR., Plaintiff
v.
FRANK B. BISHOP, JR., et al., Defendants

          MEMORANDUM

          James K. Bredar Chief Judge

         Pending is a motion to dismiss or, in the alternative, for summary judgment filed by Warden Frank Bishop, Assistant Warden J. Mines, Chief of Security William Bohrer, Lieutenant Bradley Wilt, Psychology Associate Lauren Bietzel, Social Worker Melissa Harr, and Social Worker Monica Wilson. ECF 22. Plaintiff has replied. ECF 24. The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, defendants' motion, construed as a motion for summary judgment, shall be granted.

         I. Background

         Plaintiff James A. Henson, Jr., a state inmate currently confined to the Western Correctional Institution in Cumberland, Maryland, alleges that from March of 2006 until the filing of his complaint on March 31, 2016, while housed at the North Branch Correctional Institution, he chose to stay on “solitary confinement.” ECF 1, p. 3. He states that unnamed guards refused to allow him to call his family out of state or to have a special out of state visit with his family. He also alleges that his outgoing mail to his family has been destroyed by unnamed correctional staff. Id. He claims that Lt. Bradley Wilt and his subordinates threatened to assign plaintiff to “another segregation ‘vexatious' cell assignment with known violent disruptive criminal” (id. p. 3) if he did not stop using the prison grievance system. Id. Plaintiff further alleges that a number of “known violent disruptive psychotic criminals” were excluded from his enemies list. Id.

         Defendants indicate that on March 4, 2016, plaintiff filed a request for administrative remedy (“ARP”) alleging that various correctional employees conspired over a ten-year period of time to deny him the use of the telephone and ‘out of state' special visits and destroyed his family mail. ECF 22-2, p. 6 (ARP Case No. NBCI-0517-16). In his ARP, plaintiff referred to a court order but provided no information as to the substance of the order. The ARP was dismissed on March 7, 2016, with instructions to resubmit the ARP including a copy of the referenced order. Id. Plaintiff resubmitted the ARP on March 18, 2016, reasserting his allegations that his telephone and visitations privileges, mail, and cell assignments were all being curtailed/tampered with in retaliation for his having filed inmate grievances. ECF 2-5, p. 2. Plaintiff did not, however, provide the information previously requested by the ARP coordinator, and the ARP was dismissed on March 21, 2016. Id., p. 2.

         Plaintiff filed an appeal to the Commissioner of Corrections on March 22, 2016, using the same ARP case number (0517-16) and alleging that he had been subjected to vexatious cell assignments. ECF 22-2, p. 8. The appeal was dismissed on March 31, 2016, with a notation that plaintiff had failed to follow the instructions regarding resubmission of his ARP at the institutional level. Id.

         Plaintiff filed a grievance with the Inmate Grievance Office (“IGO”) on April 7, 2016, using the same ARP Case No. 0517-16. Id., p. 9. The IGO responded advising plaintiff that he because he failed to exhaust his grievance procedure at the institutional level, his complaint was administratively dismissed. Id., p. 11.

         On April 25, 2016, plaintiff filed another grievance with the IGO, utilizing the same ARP case number (0517-16). Id., p. 15. He alleged that he was subjected to vexatious cell assignments and that he suffered retaliation for using the prison grievance process. Id., pp. 15-18. On June 15, 2016, the IGO responded, directing plaintiff to clarify his claim within 30 days. Id., p. 19. Plaintiff failed to submit any additional information within the specified period of time.

         II. Analysis

         Defendants raise the affirmative defense of non-exhaustion and assert the complaint must be dismissed pursuant to 42 U.S.C. § 1997e. Inmates are required to exhaust “such administrative remedies as are available” before filing an action. 42 U.S.C. § 1997e(a), see also Ross v. Blake, U.S., 136 S.Ct. 1850, 1858 (2016) (An inmate “must exhaust available remedies, but need not exhaust unavailable ones.”). The statute provides in pertinent part: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

         This requirement is one of “proper exhaustion of administrative remedies, which ‘means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'” Woodford v. Ngo, 548 U.S. 81, 93 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original)). “[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).

         Exhaustion is mandatory. Blake, 136 S.Ct. at 1857; Jones v. Bock, 549 U.S. 199, 219 (2007). A court may not excuse a failure to exhaust. Blake, 136 S.Ct. at 1856 (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”)). The purpose of exhaustion is to 1) allow a prison to address complaints about the program it administers before being subjected to suit; 2) reduce litigation to the extent complaints are satisfactorily resolved; and 3) prepare a useful record in the event of litigation. Jones, 549 U.S. at 219. An inmate's failure to exhaust administrative remedies is an affirmative defense; defendant bears the burden of proving that he had remedies available to him of which he failed to take advantage. Id. at 211-12, 216; Moore, 517 F.3d at 725.

         In Blake, the Supreme Court of the United States identified three kinds of circumstances in which an administrative remedy is unavailable. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” 136 S.Ct. at 1859. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Id. The third circumstance arises when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id.

         In Maryland, filing a request for administrative remedy (“ARP”) with the warden of the prison is the first of three steps in the ARP process. See Code of Md Regs. (“COMAR”), tit. 12 § 07.01.04. The ARP request must be filed within 30 days of the date on which the incident occurred, or within 30 days of the date the inmate first gained knowledge of the incident or injury giving rise to the complaint, whichever is later. COMAR, tit. 12 § 07.01.05A. If the request is denied, a prisoner has 30 calendar days to file an appeal with the Commissioner of Correction. COMAR, tit. 12 § 07.01.05C. If the appeal is denied, the prisoner ...


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