United States District Court, D. Maryland
JAMES A. HENSON, JR., Plaintiff
FRANK B. BISHOP, JR., et al., Defendants
K. Bredar Chief Judge
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
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.
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.
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.
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.
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.
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).
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).
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.
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.
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 ...