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Ross v. Warden

United States District Court, D. Maryland

August 9, 2019

CARL ROSS, Plaintiff,
WARDEN, Defendant.


          James K. Bredar Chief Judge.

         Self-represented Plaintiff Carl Ross, presently incarcerated at the Eastern Correctional Institution ("ECI") in Westover, Maryland, brings this civil action pursuant to 42 U.S.C. § 1983 against Defendant Ricky Fox well, Warden of ECI. See ECF No. 1. Through the complaint filed on July 9, 2018, and supplemented on July 19, 2018, and September 10, 2018, Ross alleges that Defendant is imposing cruel and unusual punishment through excessively hot conditions within ECI in the spring and summer seasons. Id. As a result, Ross alleges that he has difficulty sleeping, dizzy spells, and heat rashes, that he cannot stop sweating, that his sweat has a horrible chemical smell, and that the air vents in his cell do not work. id.; ECF No. 3; ECF No. 12. He seeks $1, 500 for every summer month he is in inadequate conditions and to be transferred to a prison that has a "protected custody" tier. ECF No. 12, p. 2; ECF No. 3, p. 5.

         On October 9, 2018, Defendant filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF No. 13. His motion is supported by a memorandum of law (ECF No. 13-1) and several exhibits (collectively, the "Motion"). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court informed Ross that the failure to file a response in opposition to the Defendant's Motion could result in dismissal of his Complaint. ECF No. 14. Ross filed a response on November 7, 2018. ECF No. 15. After review of the record, exhibits, and applicable law, the Court deems a hearing unnecessary. See Local Rule 105.6 (D. Md. 2018). Defendant's Motion shall be construed as a Motion for Summary Judgment and shall be denied without prejudice.


         Ross is a protective custody ("PC") inmate at ECI. ECF No. 13-2, ¶ 3.[1] He alleges that beginning in summer of 2017, ECI has provided inhumane conditions because of high temperatures within prisoner cells. ECF No. 3, p. 2. During the spring and summer months, Ross has had trouble sleeping due to the heat, and when he would sleep, he would "wake up in a pool of [his] own sweat with blurry doubled vision." Id. He also claims to suffer from heat rashes, sweat that smells, and dizzy spells as a result of the heat in his cell. ECF No. 3-1; ECF No. 12.

         Walter Donoway is the Housing Unit Manager for Housing Unit 5 where Ross is housed. ECF No. 13-2, ¶ 1 (Donoway Declaration). Donoway states that "the institution provides cleaning supplies to inmates in PC who would like to clean their cells, on Saturday morning." Id. at ¶ 4. Weekly inspections of the tiers occur, and issues brought to the officers' attention are addressed at that time. Id. The windows are not to be blocked for security reasons but may be opened or closed by the inmate. Id. at ¶ 5.

         Capt. Eric Kiser is an Administrative Captain assigned to ECI. ECF No. 13-3, ¶ 1. Kiser avers that the housing units, day rooms, and dining halls are not air-conditioned, but do have several industrial-sized fans for use during warm weather. ECF No. 13-3, ¶ 3. Additionally, inmates may purchase fans for themselves through the commissary. Id. Inmates who are in protective custody may leave their cells for recreation time multiple times a week. Id. at ¶ 4. Inmates have access to ice water all year within the housing unit day rooms, and water coolers are filled twice a day and contain Va ice and Ya water. Id. at ¶ 5.

         On June 5, 2017, Ross complained of the water quality and the heat in his cell. ECF No. 13-4, p. 2. Ross claimed, "it's so hot it's like I've been locked in a hot car." Id. Ross also stated that "the other night I woke up with blurry and double vision." Id. The medical unit advised Ross to report water concerns to officers, to remain hydrated, to purchase a fan during ordering time, and to inform officers "if he feels as though he is having a heat related illness." Id.

         On July 30, 2017, Ross visited the medical unit to complain of "pins and needles in back," "rash on [his] arms," and a "bump on [his] back but it went away." Id., p. 4. In an Administrative Remedy Procedure ("ARP") request filed July 11, 2017, Ross made correctional personnel aware of his concerns regarding the heat, stating,

the heat in the cells of this place are increasingly unbearable. I have heat rashes, I can't stop sweating, I wake up with dizzy spells when I even manage to get sleep. Lt. Donaway and Ms. Gragg wont [sic] do anything about this, stating it's 50 degrees and that I don't get special treatment... they need to fix the air. The vents don't work and the rest of the sources of air are hot air, causing a greenhouse effect in the cells. As if being locked in a turned off car.

ECF No. 3-1, p. 1. He further stated that "Ice does nothing to the air temperature nor does it fix our body temperature in this much heat." Id. at p. 2. The Institutional ARP Coordinator dismissed the ARP on July 19, 2017, for procedural reasons, stating "only one issue per form. Include dates, temps in your cell, medical reports documenting your dizzy spells. Be specific!" Id. at p. 1.

         Ross filed another ARP on July 20, 2017, alleging,

this started at the beginning of June ... I do not have a temperature reading device because I am an inmate, but I do know it to be well over 95-100 or more degrees if I'm suffering this badly from it. Medical does not give documentation on my issues. The sick call complaints go to Melissa who then plays down the condition and sends me back to my cell. She stated she'd get my problems checked by a doctor and I'm still waiting.

Id. at p. 3. Ross additionally stated that Melissa "said she didn't do anything about it because I needed to STILL be suffering from dizziness by the time she saw me." Id. at p. 4. This ARP was also dismissed for procedural reasons on July 25, 2017, in a statement noting that "you did not follow ...

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