Blankumsee v. Foxwell

          MEMORANDUM OPINION

          PAUL W. GRIMM UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.).^[1] 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.

         BACKGROUND

         Plaintiff 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.

         First, 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].”

         Plaintiff 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.

         A 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, wrist[]brace, 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.

         Plaintiff 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.

         On 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.

         Meanwhile, 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.

         The 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.

         No 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.

         In January 2018, Plaintiff's appeal of ARP No. 2617-17 was investigated and rejected. Dismissal, ECF No. 11-3, at 47, 50-51.

         The 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 ...