United States District Court, D. Maryland
W. GRIMM UNITED STATES DISTRICT JUDGE
Broderick Patterson, a former state inmate, alleges that
while he was incarcerated, he was denied adequate medical
care and also was denied access to courts in retaliation for
his having filed a formal complaint. Compl. 4, ECF No. 1. On
August 4, 2017, Defendants the Department of Public Safety
and Correctional Services (“DPSCS”), the
Commissioner of Correction, Lieutenant Chukwuemeka Nkwocha,
Sergeant Valentine Ning, and Correctional Officer II T. Brown
(collectively “Defendants”) filed a Motion to
Dismiss, or, in the Alternative, Motion for Summary Judgment.
Def.'s Mot., ECF No. 11. On August 28, 2017, Plaintiff
filed a Motion for Leave to Amend the Complaint, Pl.'s
Mot. to Am., ECF No. 13, which was granted, ECF No.
Because Plaintiff supplemented his allegations, I denied
Defendants'' motion without prejudice. Id.
Plaintiff added an allegation that on May 9, 2017, Defendant
Brown wrote another “false infraction” against
him and that he was transferred in retaliation for his filing
his Complaint in this action. Pl.'s Suppl. Alleg. 1.
renewed their Motion to Dismiss, or, in the Alternative,
Motion for Summary Judgment, and incorporated by reference
the arguments contained within their first motion. Defs.'
Second Mot., ECF No. 18. On March 9, 2018, the Clerk of the
Court informed Mr. Patterson that Defendants filed a
dispositive motion; that he had seventeen days in which to
file a written opposition to the motion; and that if he
failed to respond, summary judgment could be entered against
him without further notice. See ECF No. 19;
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.
1975). Mr. Patterson has not responded. A hearing is
unnecessary. See Loc. R. 105.6 (D. Md. 2016).
Defendants' Motion to Dismiss will be granted. Because
Mr. Patterson's allegations have not been
administratively exhausted, his complaint will be dismissed
alleges that on January 23, 2017 at 4:45 a.m., he went to the
medical department for a glucose level check and for a
possible insulin injection. Compl. 4. He alleges that Officer
Brown and Sergeant Ning denied him access to the medical
department and that Officer Brown and Sergeant Ning had
previously denied him access to the medical department for
several weeks. Id. Plaintiff was served with a
Notice of Inmate Rule Violation on January 24, 2017. Green
Decl. & Admin. R. 12, ECF No. 11-7. Plaintiff ultimately
was found not guilty of the rule violation based on his
presenting evidence that he was diabetic. Id. at 21.
Plaintiff filed an administrative remedy procedure
(“ARP”), Number CMCF-0043-17, on February 7,
2017, complaining that Brown, Nkwocha, and Ning denied him
access to medical care and seeking “compensatory and
punative damages for the denial of access to medical
treatment, interference with [his] constitutional right to
file a grievance (access to court) and retaliation for filing
a complaint . . . .” Id. at 2-3. After an
investigation the ARP was dismissed by the Warden on May 19,
2017. Id. at 4-6.
9, 2017, Plaintiff received a notice of inmate rule violation
for “intimidating, threatening, or using coercive
language against staff, ” Scramlin Decl. ¶ 2, ECF
No. 18-10, when, on that same date, he said to Brown,
“yeah and that bogus ticket that you wrote on me. If
you weren't pregnant I would slap the shit out of you but
I guess you are too old for that.” May 9, 2017 Notice
of Violation 2, ECF No. 18-12. Plaintiff did not file an ARP
regarding the May 9, 2017 inmate rule violation, his transfer
from CMCF to BCF, or his lost property. Scramlin Decl. ¶
move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Under this
Rule, Patterson's Complaint is subject to dismissal if it
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim
for relief, ” Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. Rule 12(b)(6)'s purpose “is to test the
sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012) (quoting Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). If
an affirmative defense “clearly appears on the face of
the complaint, ” however, the Court may rule on that
defense when considering a motion to dismiss. Kalos v.
Centennial Sur. Assocs., No. CCB-12-1532, 2012 WL
6210117, at *2 (D. Md. Dec. 12, 2012) (quoting Andrews v.
Daw, 201 F.3d 521, 524 n. 1 (4th Cir. 2000) (citation
and quotation marks omitted)). Failure to exhaust
administrative remedies is one such affirmative defense.
Kilpatrick v. Hollifield, 592 Fed.Appx. 199, 200
(4th Cir. 2015).
argue that Plaintiff has failed to exhaust his administrative
remedies. Defs.' Mem. 18-20. The Prison Litigation Reform
Act (“PLRA”) provides, in pertinent part, that
“[n]o 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). “[T]he phrase ‘prison
conditions' encompasses ‘all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.'” Chase v. Peay, 286
F.Supp.2d 523, 528 (D. Md. 2003) (quoting Porter v.
Nussle, 534 U.S. 516, 532 (2002)), aff'd,
98 Fed. App'x 253 (4th Cir. 2004).
that has not been exhausted may not be considered by this
Court. See Jones v. Bock, 549 U.S. 199, 220 (2007).
In other words, exhaustion is mandatory. Ross v.
Blake, 136 S.Ct. 1850, 1857 (2016). Therefore, a court
ordinarily “may not excuse a failure to exhaust.”
Id. at 1856 (citing Miller v. French, 530
U.S. 327, 337 (2000) (explaining that “[t]he mandatory
‘shall' . . . normally creates an obligation
impervious to judicial discretion”)). Moreover,
“[e]xhausting administrative remedies after a complaint
is filed will not prevent a case from being dismissed for
failure to exhaust administrative remedies. Exhaustion is a
precondition to filing suit in federal court.”
Kitchen v. Ickes, 116 F.Supp. 613, 624-25 (D. Md.
2015) (internal citation omitted).
most grievances filed by Maryland state prisoners, filing a
request for administrative remedy (“ARP”) with
the prison's managing official is the first of three
steps in exhausting administrative remedies as required under
§ 1997e(a). See Md. Code Regs. 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.
Id. at 12.07.01.05A. If the request is denied, a
prisoner has 30 calendar days to file an appeal with the
Commissioner of Correction. Id. at 12.07.01.05C. If
the appeal is denied, the prisoner has 30 days to file a
grievance with the Inmate Grievance Office
(“IGO”). See Md. Code Ann., Corr. Servs.
§§ 10-206, 10-210; Md. Code Regs. 12.07.01.03 and
12.07.01.05B. The IGO then reviews the complaint and either
dismisses it without a hearing, if it is “wholly
lacking in merit on its face, ” or refers it to an
administrative law judge for a hearing. Corr. Servs.
§§ 10-207, 10-208; Cts. & Jud. Proc. §
10-208(c); Md. Code Regs. 12.07.01.06A, .07, .07B, .08. The
administrative law judge, in turn, may deny all relief or
conclude that the inmate's complaint is wholly or partly
meritorious, after which the Secretary of DPSCS must make a
final agency determination within fifteen days of receipt of
the proposed decision. See Corr. Servs. §
filed ARP CMCF-0043-17 on February 7, 2017 alleging that
Defendants denied him medical care and interfered with his
right to file a grievance and retailed against him. Green
Decl. & Admin. R. 2, ECF No. 11-7. After not receiving a
response from the Warden within thirty days, Plaintiff was
entitled to file an appeal to the Commissioner; however
instead of doing so, he bypassed an appeal to the
Commissioner, and on April 19, 2017, he filed a grievance
with the IGO. Neverdon Decl. ¶ 3(a), ECF No. 11-9. On
April 26, 2017, a week later and prior to the IGO responding
to his grievance, Plaintiff filed his Complaint in this case.
Compl. On June 15, 2017, in an apparent effort to exhaust his
administrative remedies, Plaintiff, without referencing his
ARP complaint number, sent a letter to the Commissioner
complaining that he had not received a response from the
Warden. Wolfe Decl. & Attach. 1, ECF No. 11-8. And as for
the May 9, 2017 incident, where Plaintiff alleges that he
received “another false infraction, ” Pl.'s
Suppl. Alleg. ¶ 1, it is evident that Plaintiff did not
ever initiate the ARP process. Scramlin Decl. ¶ 4, ECF
18-10 (“There is no record at either CMCF or BCF that
Inmate Patterson ever filed an Administrative Relief Process
(ARP) claim with regard to the May 9, 2017 [Notice of Inmate
Rule Violation], his subsequent transfer from CMCF to BCF, or
a claim of lost property.”).
clear that Plaintiff failed to exhaust his administrative
remedies before instituting this case. Plaintiff has not
offered an explanation for his failure to properly complete
the administrative remedy process, but for the conclusory
statement in his Complaint that he seeks damages to
compensate “for denial of access to the courts (filing
of grievance).” Compl. 4. This conclusory statement
does not provide the Court a ground to excuse his
non-exhaustion. Johnson v. Joubert, JFM-11-2850,
2012 WL 2403407, at *5 (D. Md. June 25, 2012) (holding that
conclusory statements, alleging that filing an appeal would
be futile, were insufficient to avoid dismissal for failure
to exhaust); Graham v. Cty. Of Gloucester, Va., ...