United States District Court, D. Maryland
AZANIAH BLANKUMSEE, No. 326-698, Plaintiff
RICKY FOXWELL, Warden of ECI, ROBERT TROXELL, CDM, DALE CHILDERS, Correctional Officer, ANTOINETTE PERRY, Cpt. at ECI, MEDICAL DEPARTMENT at ECI, Defendants
W. GRIMM UNITED STATES DISTRICT JUDGE.
Azaniah Blankumsee has filed another civil rights action
alleging various violations of his constitutional rights. ECF
No. 1; see ECF No. 1-13 (corrected
compl.). Defendants Warden Ricky Foxwell, Robert
Toxell, Dale Childers, and Antoinette Perry have filed a
Motion to Dismiss or, in the Alternative, for Summary
Judgment, ECF No. 11, and a Memorandum in Support, ECF No.
11-1. Plaintiff has filed an Opposition, ECF No. 13, as well
as a Motion for Summary Judgment, ECF No. 14. Defendants have
not filed a reply regarding their Motion, or a response to
Blankumsee's Motion, and the time for doing so has
passed. See Loc. R. 105.2(a). The matter is now ripe
for review, and a hearing is not necessary. See Loc.
R. 105.6 (D. Md. 2018). Because Plaintiff has not exhausted
his administrative remedies, his Motion for Summary Judgment
is DENIED and Defendants' Motion, construed as a Motion
for Summary Judgment, is GRANTED. Because Defendant Medical
Department at Eastern Correctional Institution
(“Medical Department”) was not party to the
Motion and does not appear to have been served, I will not
address Plaintiff's allegations regarding failure to
provide medical treatment at this time. Rather, the Court
will direct that service on the Medical Department be
effected, and once it has been served I will schedule
proceedings to address Plaintiff's claims against it.
filed suit no later than December 19, 2017. See ECF
No. 1-12 (envelope containing Complaint post-marked December
19, 2017); see also Houston v. Lack, 487 U.S. 266,
270-72 (1988) (discussing prison mailbox rule). The Complaint
concerns two unrelated incidents that occurred at Eastern
Correctional Institution (“ECI”) in October 2017,
as well as the medical treatment Plaintiff sought but alleges
he did not receive.
Plaintiff alleges that Officer Childers and Captain Perry
wrongfully confiscated his property when he transferred to
ECI on October 5, 2017. Compl. 1-2. Among other items, this
property included a wrist brace and special shoes that
Plaintiff had been authorized to possess at his previous
institution. Id. Plaintiff alleges that the shoes
were prescribed for medical reasons and the wrist brace was
authorized because he suffers from carpal tunnel syndrome.
Id. at 2; see Med. Rept., ECF No. 1-2 (shoe
prescription). When Plaintiff left his former institution, he
signed a Receipt for Accountable Items, ECF No. 1-1. which
stated that he “agree[d] to take care of . . . (2)
wrist braces” and that “[i]f [he was] transferred
or released from this facility, [he would] be allowed to take
this item with [him].”
filed an administrative grievance against Childers and Perry
on October 6, 2017, for wrongfully taking his property.
Compl. 2; ARP No. 2617-17, at 1-3, ECF No. 1-4; ARP No.
2617-17, ECF No. 11-3, at 16. The same day, Childers and
Perry issued a notice of a disciplinary infraction against
Plaintiff because he possessed contraband, including the
wrist brace and shoes. Compl. 2; Notice of Inmate Rule
Violation, ECF No. 1-5.
hearing regarding the infraction was conducted on October 24,
2017. Inmate Hr'g Rec., ECF No. 1-6. At the hearing,
Plaintiff agreed to an informal disposition and his
“sweatpants, wristbrace, and jeans were ordered [to
be] return[ed] to Plaintiff.” Compl. 2; Inmate Hr'g
Rec. 2. Plaintiff claims that when he attempted to
collect these items from the property room, Childers told
Plaintiff “that he did not care about the hearing
decision, he was not giving Plaintiff anything.” Compl.
2. While Plaintiff was exiting the property room, he
attempted to speak to Perry, who told Plaintiff: “since
you wrote me up, live with it.” Id.
filed another ARP on October 25, 2017, following the hearing,
complaining that, as a result of “the illegal
procedures and criteria ECI have arbitrar[il]y adopted under
the ECI's property policy, ” Childers would not
return his property. ARP No. 2800-17, ECF No. 1-7. He claimed
that Childers told him that the Warden “overturned the
hearing officer[']s decision”
and would not let Blankumsee speak “to a Captain or
Warden.” Id. ARP No. 2800-17 was
“[d]ismissed for procedural reasons, ”
specifically, because “[i]nmates may not seek to
resolve a complaint through the ARP for Inmate disciplinary
proceeding procedures and decisions.” Id.
November 6, 2017, Plaintiff appealed the denial to the
Commissioner of Correction, arguing that ARP No. 2800-17 was
not challenging the result of the disciplinary hearing but
was instead challenging Defendant Childers' refusal to
return Plaintiff's property after the hearing. Appeal of
ARP No. 2800-17, ECF No. 13-6. The ARP appeal was dismissed
on November 21, 2017 for the same procedural reasons.
Id. Plaintiff does not suggest, nor is there any
indication in the filings, that he sought further review of
this appeal with the Inmate Grievance Office.
ARP No. 2617-17 was investigated, ARP Case Summary, ECF No.
11-3, at 20-23, and Warden Foxwell rejected it on November
17, 2017, explaining that Plaintiff had accepted an informal
disposition at his October 24, 2017 hearing in which his
sweatpants, wrist brace, and jeans were returned to him and
his other items were to be mailed out of the institution or
destroyed. ARP No. 2617-17, ECF No. 11-3, at 16. Plaintiff
acknowledged receiving the Warden's decision on November
21, 2017. Receipt, ECF No. 11-3, at 30.
same day, he filed an appeal of the Warden's decision in
ARP No. 2617-17. Appeal of ARP No. 2617-17, ECF No. 11-3, at
48-49. On November 29, 2017, Plaintiff was informed that the
Warden was exercising his one permitted extension of time to
respond to the ARP appeal, and that the Warden's response
to Plaintiff's appeal would be due January 13, 2018.
Extension Form, ECF No. 11-3, at 31.
later than December 19, 2017, before the Warden had responded
to Plaintiff's appeal, Plaintiff filed this lawsuit.
Plaintiff alleges that, as of the date he wrote the
Complaint, he has “not received his wrist brace or
shoes back, nor have [sic] plaintiff seen any medical
provider despite the many sick calls he's filed.”
Compl. 3. Plaintiff alleges that depriving him of his wrist
brace and special shoes violates the Americans with
Disabilities Act and his constitutional protection against
cruel and unusual punishment. Id.
January 2018, Plaintiff's appeal of ARP No. 2617-17 was
investigated and rejected. Dismissal, ECF No. 11-3, at 47,
second incident discussed in the Complaint is the fact that
turkey sausages made with pork stock were served to Plaintiff
and other inmates on the morning of October 25, 2017. Compl.
3; Food Label, ECF No. 1-9. Plaintiff states that consuming
pork is against his religion-he is Christian-and notes that
the Department of Corrections' rules prohibit pork from
being served in prison facilities. Compl. 3; ARP No. 2943-17,
at 2-3, ECF No. 1-8. He alleges that the ...