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Poole v. NBCI

United States District Court, D. Maryland

October 1, 2019

ERIC VON POOLE Plaintiff,
v.
NBCI, et al. Defendants.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge

         THIS MATTER is before the Court on Defendants North Branch Correctional Institution (“NBCI”), Warden Frank B. Bishop, Jr., Assistant Warden Jeff Nines, Chief of Security William Bohrer, Chaplain Kevin Lamp, Captain Ronald Ketterman, Lieutenant Thomas Sawyers, Sergeant Robert Werner, Lieutenant Gregory Forney, Officer Larry Gilpin, Lieutenant Patrick Speir, Lieutenant Charles Bielanski, Lieutenant Jeffrey Haggard, Lieutenant Patricia Wiley, Officer Joshua Tart, and Correctional Dietary Manager Parrish Kammauf’s (collectively, “NBCI Defendants”) Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 36) and Plaintiff Eric Von Poole’s Motion for Temporary Restraining Order, Reconsideration for Appointment of Counsel and Order Granting the Plaintiff’s Request and Additional Exhibit(s) (ECF No. 38).[1] This 42 U.S.C. § 1983 (2018) action arises from the disciplinary action taken against Poole at NBCI in 2016 and 2017. The Motions are ripe, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons stated herein, the Court will grant Defendants’ Motion in part and deny it in part and grant Poole’s Motion in part and deny in part.

         I. BACKGROUND[2]

         A. Factual Background

         Poole is an inmate at North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland who has filed several Administrative Remedy Procedure [“ARP”] complaints and helped at least one other inmate pursue legal redress during his term of confinement. (Compl. at 1, 4–7, ECF No. 1; Am. & Suppl. Compl. [“Suppl.”] at 9, ECF No. 4).[3] On September 1, 2016, Poole sent a letter to an attorney on behalf of inmate Andrew Dicks, a plaintiff in a case that “was about to go to settlement” in this Court. (Compl. at 5).[4] The letter, dated August 29, 2016, includes ARPs Poole and four other inmates filed against the NBCI dietary department regarding violations of requirements for meals during Ramadan in 2013, notes the same violations persisted during Ramadan in 2016, and states that the same policies at issue in Dicks’ case were still being enforced. (Suppl. Exs. 1–25 (“Exhibit A”) at 2–3, 16–40, ECF No. 4-1).[5] On July 27, 2016, Poole had filed ARP NBCI 1682-16, alleging that the NCBI Dietary Manager, Kammauf (“Manager Kammauf”), and the shift Dietary Supervisor failed to provide him with the proper diet during the Islamic month of fasting and prayer, Ramadan, which ended July 5, 2016 and did not tell him to pick a meal for the Eid-ul-Fitr feast on July 6, 2016. (Defs.’ Mot. to Dismiss Altern. Mot. Summ. J. [“Defs.’ Mot.”] Ex. 26 [“ARP 1682-16 Documents”] at 32, ECF No. 36-30).

         In response to Poole’s September 6, 2016 appeal of NBCI 1682-16, which complained about the food provided to the 2016 Ramadan adherents, the investigation summary written by Scott Steininger[6] for the Commissioner’s review indicates that: “Inmate Poole voluntarily elected to participate in the Ramadan observance. Inmate Poole’s weight on 5/24/16 was 240 lb. and his weight on 8/31/16 was 251 lb. The meal selected for the inmate religious group was moved to the night of the Eid-ul-Fitr as stipulated in the policy.” (ARP 1682-16 Documents at 15). Based on his investigation, Steininger recommended dismissal of the ARP appeal, reasoning that the regular diet meal and the Ramadan enhanced dinner meal standards were being met. (Id. at 16). Further, Steininger noted that Poole had gained weight during Ramadan and his complaint that he was not permitted to individually select a meal from the menu for the Eid-ul-Fitr feast was meritless as that meal was selected for the entire group. (Id.). On October 18, 2016, the Commissioner adopted the suggested rationale for dismissal of the ARP appeal. (Id. at 1). No. appeal of the Commissioner’s dismissal was received by the Inmate Grievance Office (“IGO”). (Hassan Decl. ¶ 3, ECF No. 36-33).

         On October 17, 2016, Lt. Speir removed Poole from his single cell. (Compl. at 5). Defendants aver that they transferred Poole from Housing Unit (“HU”) 3 to HU 2[7] because of a heightened concern regarding inmate-on-inmate assaults, tensions among rival prison gangs or Security Threat Groups (“STGs”), and a shortage of bed space. (Sawyers Decl. ¶ 5, ECF No. 36-5; Forney Decl. ¶ 6, ECF No. 36-9). Poole is not a validated member of an STG, but at the time he was moved, “it was believed that he may have been involved in . . . inciting other inmates to act out inappropriately.” (Sawyers Decl. ¶ 5; Forney Decl. ¶ 6; see also Defs.’ Mot. Ex. 27 [“ARP NBCI 2453-16 Documents”] at 4, ECF No. 36-31).

         HU 2 is a special management unit that provides “a closer level of inmate monitoring for security.” (Sawyers Decl. ¶ 6). When Poole arrived at ¶ 2, he refused to accept the top bunk he was assigned because of his medical issues, which included a hip replacement. (Id. ¶ 8; Compl. at 5). Poole received a Notice of Infraction for refusing to obey an order and refusing a housing assignment. (Sawyers Decl. ¶ 8). Poole was then assigned to Administrative Segregation Pending Adjustment (“ASPA”) in HU 1. (Id.).[8]

         According to Lt. Patrick Speir, the unit manager of HU 3 when he assigned Poole to a single cell, Poole’s personal property was inventoried shortly after he arrived at ¶ 1 and he was permitted authorized items of property for segregation inmates. (Speir Decl. ¶ 6, ECF No. 36-10; Suppl. at 4).[9] Poole’s adjustment hearing for the October 17, 2016 infraction was scheduled to take place on November 1, 2016, but the hearing officer postponed it because of witness availability issues and rescheduled it for December 1, 2016. (Speir Decl. ¶ 10).

         On November 1, 2016, Poole filed ARP NBCI 2453-16, claiming NBCI staff retaliated against him for being a “jailhouse lawyer, ” (ARP NBCI-2453-16 Response at 4, ECF No. 36-31), by moving him to a “MAX II/STG” building with modified movement, assigning him to a top bunk despite his medical issues, and denying him regular use of the law library, access to the “Big Library, ” and the daily inside recreation general population inmates receive. (Compl. at 5). Poole alleges Officer Tart, who worked on HU 1 B-tier, destroyed certain of Poole’s ARPs and, on November 15, 2016, attempted to pry open institutional request slips Poole submitted and which were later processed in December 2016 by Sgt. Forney. (Suppl. at 6, ECF No. 4). Ofc. Tart denies that. (Tart Decl. ¶ 4, ECF No. 36-28).

         At the December 1, 2016 hearing regarding Poole’s refusal to accept a cell assignment, the charges were dismissed, and Poole was transferred from HU 1 to HU 2. (Speir Decl. ¶¶ 10–11; Sawyers Decl. ¶ 9; Compl. at 5).[10] On December, 8, 2016, Poole “was seen by chronic care” and assigned to a medical cell. (Compl. at 5). The December 8, 2016 medical order indicates that Poole should be assigned to a “medical cell” but does not specify “single cell” although there is a space for doing so on the form. (Defs.’ Mot. Ex. 20 [“Medical Order”] at 3, ECF No. 36-24). On December 20, 2016, Poole was moved to a Medical Cell in HU 2 per the earlier medical order. (Sawyers Decl. ¶ 10). On January 12, 2017, a cellmate joined Poole in his medical cell. (Compl. at 6).

         On January 16, 2017, Nurse Krista Bilak saw Poole and told him that a recent orthopedic consult indicated a problem with Poole’s hip replacement that required follow-up. (Id.). Sgt. Forney[11] was called into the medical room where Bilak was examining Poole, and Bilak explained that Poole’s hip replacement and his ongoing rehabilitative therapy required the medical cell’s full space and features. (Id.). Sgt. Forney became “visibly angry” and, alluding to Poole’s litigiousness, told him that he would have a roommate in his medical cell no matter how much he complained. (Id.). While the medical cell is equipped with handrails and other accessibility features, according to Lt. Sawyers, the cell is still designated as a double-occupancy cell. (Id.). Segregation cells are designated as double occupancy cells unless there is a specific reason requiring an inmate to be housed in a single cell. (DOC Manual 100.0002, Special Confinement Housing § F(2), ECF No. 36-7).

         During the move to the medical cell, Sgt. Forney told Poole he would not be allowed to attend religious services by order of the NBCI Administration, which had created a schedule permitting Sunni Muslims housed in HU 2 to attend services on specified dates in order to ensure there were no issues with rival gangs. (Compl. at 6, 8). On December 20, 2016, Poole was not allowed to attend Sunni Worship services. (Id. at 5). According to Chaplain Lamp, when an inmate misses three consecutive religious services, his name is removed from the pass list. (Lamp. Decl. ¶ 8, ECF No. 36-15). The inmate must put in a request to be put back on the list. (Id.). According to Lamp, inmates in HU 2 who are not assigned to segregation status are “only permitted to attend in-house congregative Friday [Jumu’ah] Services with the Sunni Worship Group.” (Id. at ¶ 9). Without explaining why Poole was unable to attend Jumu’ah, Lamp concludes that he has “never interfered . . . with . . . Poole’s ability to attend [HU 2] Friday [Jumu’ah] Services with the Sunni Worship Group.” (Id. at ¶ 10). Poole attempted to submit an ARP regarding the alleged denial of attendance at the religious services despite submitting request slips in advance, but he alleges it was pushed back under his door without being processed. (Compl. at 5). Sgt. Forney warned Poole “to stop filing remedies.” (Id.). Forney generally denies refusing to properly process ARPs submitted by Poole but does not address the allegation that he told Poole to stop filing remedies. (Forney Decl. ¶ 5).

         On January 19, 2017, Poole mailed an “Emergency Remedy” to the Commissioner’s Office because Lt. Sawyers and Sgt. Forney refused to remove his cellmate from the medical cell, to allow him to attend religious services, or to process Poole’s ARPs. (Compl. at 6). On January 25, 2017, Poole received notification from the Commissioner’s office that his Emergency Remedy had been referred to the Warden for a response. While waiting for a formal response, Poole spoke directly with Warden Bishop, detailing his concerns about his housing assignments and his exclusion from religious services and recreation, and reminding the Warden that he is not a member of a gang. (Compl. at 7).

         On March 30, 2017, Lt. Sawyers told Poole that he would “remain in HU 2 for the foreseeable future due to Intel reasons.” (Compl. at 7). Lt. Sawyers explained on a routing slip for Warden Bishop that Poole had been moved to HU 2 for “possibly inciting other inmates last October in HU 3, during a very tense time with gangs.” (Id.). Lt. Sawyers recommended that Poole remain in HU 2 due to ongoing gang issues. (Id.). Also on March 30, 2017, Poole filed an ARP (NBCI-0778-17), in which he complained that employees of the prison medical contractor, Wexford Health Sources, Inc., had neither followed the orthopedist’s recommendations nor conveyed those recommendations to the Warden so that Poole could live in a suitable cell. (Defs.’ Mot. Ex. 28 [“ARP NBCI-0778-17”], ECF No. 36-32). That ARP was dismissed on May 15, 2017. (Id. at 1, 4–17).

         On May 9, 2017, Poole learned from his mother that his father was gravely ill. (Id.). She told him that she had called the Warden’s office the day before, but Poole did not learn of his father’s condition until he spoke with his mother. (Id.). Two days later, an NBCI social worker informed Poole that his father had passed away on May 10, 2017. (Compl. at 8). Poole “was told” that he would be called to the Chaplain’s office on May 12, 2017 in order to use the phone in private, but that did not happen. (Id.). On May 12, 2017, Poole told Sgt. Forney that his father passed away and that he wanted to see Chaplain Lamp so he could call his family outside the presence of other inmates. (Compl. at 8). A correctional officer later informed Poole that Sgt. Forney had denied his request to speak with Chaplain Lamp because Poole had been on the phone four times since he learned his father was ill. (Id.). Lamp states that he has no recollection of Poole asking to be allowed to use the phone privately following the news of his father’s death. (Lamp Decl. ¶¶ 4–6).

         On May 27, 2017, Ramadan began, and NBCI staff marked Poole’s cell door to signify he was participating. (Compl. at 8). Poole alleges that Lt. Haggard and Lt. Patricia Wiley, food service supervisors at NBCI, failed to include with his dinner meal the attached bag meal to make up for the calories he missed earlier in the day, violating NBCI guidelines and the Court’s decision in Dicks.[12] (Id.). According to the Dietary Manager for NBCI, Ramadan participants receive “a breakfast meal before sunrise and an Enhanced Dinner Meal after sunset which provides various larger portion sizes to ensure adequate caloric intake in accordance with the established requirements.” (Kammauf Decl. ¶ 5, ECF No. 36-18). Kammauf states that during the 2016 and 2017 Ramadan observances, the dinner meals provided to participants met the standards established in the “Observances With Food Requirements/Meal Adjustments” for those years. (Id. ¶¶ 6–7).[13] Poole also alleges that Steininger, the Correctional Dietary Manager for the Western Region of DPSCS, is responsible for ensuring NBCI is complying with requirements for meals during Ramadan. (Suppl. at 6). Poole alleges NBCI did not comply with those directives for Ramadan 2017. (Id.; see also Defs.’ Mot. Ex. 26 [“Headquarters Investigative Summary”] at 14–16, ECF No. 36-30).

         B. Procedural Background

         On June 9, 2017, Poole sued NBCI and several associated officials and employees. (ECF No. 1).[14] On June 15, 2017, Poole filed an Amended and Supplemental Complaint (the “Supplement”), naming several more NBCI employees as Defendants and clarifing his claims against them, alleging under 42 U.S.C. § 1983: cruel and unusual punishment in violation of the Eighth Amendment (Count I); denial of due process in violation of the Fourteenth Amendment (Count II); and denial of his right to practice his religion and to petition the courts in violation of the First Amendment to the U.S. Constitution, as well as retaliation for exercising his First Amendment rights (Count III). (Suppl. at 1–8). Poole also makes claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1(a) (2018). (Id. at 3, 5). He seeks money damages, his attorney’s fees and costs, and declaratory relief. (Id. at 8).

         On February 5, 2019, NBCI Defendants filed their Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. (ECF No. 36). On June 24, 2019, Poole filed an Opposition. (ECF No. 49). To date, the Court has no record NBCI Defendants filed a Reply.

         On February 11, 2019, Poole filed a Motion for Temporary Restraining Order, Reconsideration for Appoint of Counsel and Order Granting the Plaintiff’s Request and Additional Exhibit(s). (ECF No. 38). On February 21, 2019, Wexford Health Sources, Inc., Mahboob Ashraf, M.D., and William Beeman, R.N.’s (collectively, with Ryan Browning, L.P.N., “Medical Defendants”) filed an Opposition and Motion to Strike. (ECF No. 39). To date, the Court has no record NBCI Defendants filed an Opposition.

         II.DISCUSSION

         A. Poole’s Motion [15] and Medical Defendants’ Motion to Strike

         In his Supplement, Poole brought claims against Medical Defendants, alleging they violated Poole’s Eighth Amendment rights by failing to follow “orthopedic consult recommendations so they could pass on the recommendations so DPSCS could find a[n] accommodating facility” where Mr. Poole could properly exercise. (Suppl. at 8). On March 26, 2019, the Court granted summary judgment in favor of Medical Defendants and denied Poole’s Motion for Injunctive Relief. (Mar. 26, 2019 Mem. Op. & Order, ECF Nos. 43, 44).

         1.

         Poole’s Motion for Order Granting the Plaintiff’s Request and Additional Exhibit(s) and Medical Defendants’ Motion to Strike

         In his Motion, Poole seeks to add exhibits to his pleadings, including a Consent Order of Reprimand issued by the Maryland Board of Nursing against Nurse Beeman. In their Motion, Medical Defendants move to strike the portion of Poole’s exhibits regarding Nurse Beeman’s reprimand as irrelevant to the issues raised in Poole’s Complaint and prejudicial to Nurse Beeman. Upon consideration, the Court agrees that Poole’s inclusion of the Consent Order of Reprimand is not relevant to Poole’s pleaded claims, appears to be offered for an improper purpose, and concerns a matter which is moot in light of the Court’s March 26, 2019 Order granting summary judgment in favor of Medical Defendants. As a result, the Court will deny this part of Poole’s Motion and grant Medical Defendants’ Motion to Strike that portion of the Exhibits (Pl.’s Mot. Ex. C [“Medical Exhibits”] at 25– 31, ECF No. 38-3).

         2. Poole’s Motion for TRO

         Poole also seeks an Order requiring his transfer from NBCI to facilitate his participation in rehabilitative therapy. He maintains that a temporary assignment to one of the Jessup prisons would permit him to perform the exercises required to rehabilitate his leg and claims that the retaliatory actions of denying him a medical cell, which he equates to a single cell, could be addressed through his transfer. On March 26, 2019, the Court denied Poole’s request for injunctive relief for purposes of the asserted need for rehabilitative therapy. (Mar. 26, 2019 Mem. Op. at 19–20). For the same reasons the Court denied Poole’s request for injunctive relief in its March 26, 2019 Memorandum Opinion, the Court will deny Poole’s pending TRO request.

         B. Defendants’ Motion

         1. Conversion of Defendants’ Motion

          Defendants style their Motion as a motion to dismiss under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56. A motion styled in this manner implicates the Court’s discretion under Rule 12(d). See Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436–37 (D.Md. 2011), aff’d, 684 F.3d 462 (4th Cir. 2012). This Rule provides that when “matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The Court “has ‘complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.’” Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2012 Supp.)).

         The United States Court of Appeals for the Fourth Circuit has articulated two requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: notice and a reasonable opportunity for discovery. See Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013). When the movant expressly captions its motion “in the alternative” as one for summary judgment and submits matters outside the pleadings for the court’s consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005). The Court “does not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).

         Ordinarily, summary judgment is inappropriate when “the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the party opposing summary judgment ‘cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise sufficiently the issue that more discovery is needed, the non-movant must typically file an affidavit or declaration under Rule 56(d), explaining the “specified reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of discovery.” Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011) (citation omitted). A Rule 56(d) request for discovery is properly denied when “the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 953 (4th Cir. 1995)).

         Here, Poole was on notice that the Court might resolve Defendants’ Motion under Rule 56 because Defendants styled their Motion in the alternative for summary judgment and presented extensive extra-pleading material for the Court’s consideration. See Moret, 381 F.Supp.2d at 464. Poole cites Rule 56(d) in his Opposition, (see Pl.’s Mem. L. Supp. Pl.’s Opp’n Defs.’ Mot. Dismiss Summ J. [“Pl.’s Opp’n”] at 6), but does not include a Rule 56(d) affidavit. The only discovery he specifically requests is a letter he wrote to the U.S. Department of Justice about his treatment at NBCI, which will “show the trier of fact that this is a gross pattern of rogue behavior by public officials.” (Pl.’s Opp’n at 21). But Poole does not explain why that letter would “by itself create a genuine issue of material fact sufficient to defeat summary judgment” regarding his, and the Court does not see how it would, given the voluminous documentation the parties have submitted as exhibits. See Ingle, 439 F.3d at 195 (4th Cir. 2006) (quoting Strag, 55 F.3d at 953). Both requirements for conversion have therefore been satisfied. See Greater Balt. Ctr., 721 F.3d at 281. Accordingly, the Court will treat Defendants’ Motion as one for summary judgment.

         2. Standard of Review

          In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor. Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). Summary judgment is proper when the movant demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). Significantly, a party must be able to present the materials it cites in “a form that would be admissible in evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be made on personal knowledge” and “set out facts that would be admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).

         Once a motion for summary judgment is properly made and supported, the burden shifts to the nonmovant to identify evidence showing there is genuine dispute of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). The nonmovant cannot create a genuine dispute of material fact “through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 141 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

         A “material fact” is one that might affect the outcome of a party’s case. Anderson, 477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)). Whether a fact is considered to be “material” is determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265. A “genuine” dispute concerning a “material” fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make a sufficient showing on an essential element of her case where she has the burden of proof, “there can be ‘no genuine [dispute] as to any material fact, ’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

         3. Analysis

         a. Exhaustion of ...


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