United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE
history of prior litigation is again needed to resolve this
case. On November 2, 2016, Maryland prisoner Bruce Wayne
Koenig filed a civil rights action against the Maryland
Department of Public Safety and Correctional Services
("DPSCS"), the Maryland Department of Labor,
Licensing and Regulation ("DLLR"), and 22 other
Maryland agencies and employees, invoking federal
jurisdiction under Title II of the Americans with
Disabilities Act ("ADA, " 42 U.S.C. § 12131,
et seq.), the Rehabilitation Act of 1973 ("RHA, "
§ 504 as amended, 29 U.S.C. § 794) and 42 U.S.C.
§ 1983 (alleging violations of his First and Eighth
Amendment rights). See Koenig v. DPSCS, et a!.,
Civil Action No. JKB-16-1289 (D. Md.) ("Koenig F).
Summary judgment was granted in favor of the Defendants on
March 26, 2018. Id., ECF Nos. 75 and 76. Mr.
Koenig's appeal was dismissed on July 30, 2018. Id, ECF
Nos. 86 and 87.
April 27, 2017, while Civil Action No. JKB-16-1289 was
pending, Mr. Koenig filed this civil rights action, captioned
as Koenig v. DPSCS, et al, Civil Action No.
JKB-17-1200 (D. Md.) ("Koenig IF), asserting
nearly identical claims. Nineteen Maryland agencies and
employees are named as Defendants; most were also named in
Koenig I. On September 21, 2017, counsel for nine of
the Defendants moved to consolidate the two cases. See
Koenig II, Civil Action No. JKB-17-1200, ECF No. 12.
That same day, counsel for these nine Defendants filed a
Motion to Dismiss, or in the Alternative, Motion for Summary
Judgment. Id., ECF No. 13. Given the similarity of
the claims, and in the interest of judicial economy, the
instant action was stayed pending the outcome of the appeal
in Koenig I. The stay has been lifted (ECF No. 25),
and Defendants' dispositive motion has been resubmitted
for resolution. ECF No. 26.
preliminary matter must be examined prior to resolution of
the dispositive motion. On May 1, 2019, Mr. Koenig moved for
an extension of time, stating that he has not had access to
all his necessary legal documents since his March 15, 2019,
transfer to Maryland Correctional Institution at Jessup
("MCI-J"). ECF No. 28. Given the history of both
Koenig I and Koenig II, this Court granted
Mr. Koenig additional time and ordered Defendants to explain
what steps would be taken to ensure Mr. Koenig's access
to his legal documents. ECF No. 29. In their May 30, 2019,
status report, Defendants set out the process by which Mr.
Koenig may examine and exchange his large collection of legal
documents and noted that prior to his temporary stay in the
prison infirmary in April of 2019, he had been in full
possession of all these documents, which greatly exceeded the
maximum personal property a prisoner is permitted to keep in
his cell. ECF No. 30-1, Decl. of Shanea T. Ross, ¶¶
10, 2019, Mr. Koenig provided an additional response to the
status report, stating it is inaccurate and that he requires
a copy of his "lengthy filing" in Civil Action No.
JKB-16-1289 provided at government expense in order to
respond to Defendants' pending dispositive motion. ECF
No. 31, p. 2. In his response, Mr. Koenig also requests
appointment of counsel to assist in clarifying what
accommodation a deaf or "hard of hearing" prisoner
needs under the ADA, which he claims prison personnel and
prison health care providers do not understand. Id, p.
3. Additional health concerns, including back pain,
headaches, and eye issues, as well as his concern that he is
missing time from a class, are listed to support Mr.
Koenig's request for counsel and for additional time to
obtain copies of pleadings and file his opposition response.
Id, p. 4. Copies of court records may be provided to
an indigent litigant at government expense upon a showing by
the litigant of a particularized need for the documents.
Jones v. Superintendent, Va. State Farm, 460 F.2d
150, 152-53 (4th Cir. 1972). Here, the document is not
specified and for reasons discussed herein, neither the
document nor additional response time and appointment of
counsel will result in a different outcome of this
August 13, 2019, Mr. Koenig provided an additional response
to the status report, stating that his access to legal
materials continued to be impeded because of time constraints
and because the documents that were confiscated from his cell
during his hospitalization, which included "tens of
thousands of pages, " were "tossed into a number of
large plastic bags" and thus are in disarray. ECF No.
32, pp. 1-2. That report has been docketed as a "Motion
for an Order" concerning access to legal documents. As
noted above, these materials are not necessary to resolution
of this case. To the extent that Mr. Koenig seeks to litigate
a First Amendment claim against the individuals responsible
for handling his documents improperly, he may do so
separately from this case.
their Motion, Defendants seek dismissal pursuant to Federal
Rule of Civil Procedure 12(b)(6) or summary judgment pursuant
to Rule 56. To defeat a motion to dismiss under Rule
12(b)(6), the complaint must allege enough facts to state a
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts
pleaded allow "the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. Although courts should construe
pleadings of self-represented litigants liberally,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), legal
conclusions or conclusional statements do not suffice,
Iqbal, 556 U.S. at 678. The Court must examine the
Complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th
Cir. 2005). Where Defendants have submitted numerous exhibits
with the Motion, the Court may consider such evidence only if
it converts the Motion to one seeking summary judgment.
Court construes Defendants' dispositive Motion as seeking
dismissal based on the doctrine ofres judicata.
Where a final judgment on the merits has been entered in a
prior suit, an identity of the cause of action in both the
earlier and the later suit exists, and an identity of parties
or their privies in the two suits exists, then res
judicata is established. See Pension Ben. Guar.
Corp. v. Beverley, 404 F.3d 243, 248 (4th Cir. 2005)
(quoting Jones v. S.E. C., 115 F.3d 1173, 1178 (4th
Cir. 1997)). The doctrine of res judicata precludes
the assertion of a claim after a judgment on the merits in a
prior suit by the same parties on the same cause of action.
See Meekins v. United Transp. Union, 946 F.2d 1054,
1057 (4th Cir. 1991) (citing Harnett v. Billman, 800
F.2d 1308, 1312 (4th Cir. 1986). In addition,
'"[n]ot only does res judicata bar claims
that were raised and fully litigated, it prevents litigation
of all grounds for, or defenses to, recovery that were
previously available to the parties, regardless of whether
they were asserted or determined in the prior
proceeding.'" Id. (quoting Peugeot
Motors of America, Inc. v. E. Auto Distrib., Inc., 892
F.2d 355, 359 (4th Cir. 1989).
previous action was terminated on March 26, 2018, with
summary judgment entered in favor of Defendants. Civil Action
No. JKB-16-1289, Mem. Op., ECF No. 75; Order, ECF No. 76.
Although Mr. Koenig filed a notice of appeal in that action
(ECF No. 77), he failed to prosecute his appeal, resulting in
dismissal. ECF No, 86. The judgment in that action is
noted, the Complaint submitted in this lawsuit is almost
identical to the Amended Complaint submitted in Civil Action
No. JKB-16-1289, with one exception: Mr. Koenig named
additional Defendants - Santana Nottage, CEO of Prison
Operations Systems, Inc., former North Branch Correctional
Institution Warden Bobby P. Shearin,  and Department of Public
Safety and Correctional Services Secretary Stephen Moyer - in
the Complaint. This difference requires an examination of
be in privity with a party to a former litigation, the
non-party must be so identified in interest with a party to
former litigation that he represents precisely the same legal
right in respect to the subject matter involved."
Martin v. Am.Bancorporation Ret. Plan, 407 F.3d 643,
651 (4th Cir. 2005) (internal quotations omitted). Privity
attaches where the interests of the parties to a given
lawsuit align. Jones v. S.E.C., 115 F.3d 1173, 1181
(4th Cir. 1997). Although additional Defendants are named in
this action, the "identity of parties" component
of res judicata does not require that the parties be
identical. Providence Hall Associates Ltd. P'ship v.
Wells Fargo Bank, N.A., 816 F.3d 273, 282 (4th Cir.
2016). The additional Defendants named here would be entitled
to assert the same defenses, advance the same arguments, and
rely on the same or similar factual allegations raised by
Defendants in the previous suit. Thus, there is privity
between the parties sued in Mr. Koenig's earlier suit and
the additional defendants named in this action, making
res judicata applicable to the claims now before
a separate Order shall be filed denying Plaintiffs
non-dispositive requests and granting Defendants' Motion