United States District Court, D. Maryland
K. Bredar, Chief Judge.
Plaintiff DeJesus Collins, a State prisoner incarcerated at
Jessup Correctional Institution ("JCI") in Jessup,
Maryland, filed an unverified complaint pursuant to 42 U.S.C.
§ 1983 alleging he has been denied adequate medical care
after falling while navigating through a metal detector on
September 12, 2018. Collins alleges generally that he was
subjected to "guard brutality and harassment" and
asks for appointment of counsel. ECF 1, pp.
Now pending is an unopposed Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment filed by JCI Warden
Allen Gang, the only named defendant served in this
case. ECF 16. For the reasons stated below,
defendant's dispositive motion, construed as a motion for
summary judgment,  will be granted.
states that around 11:15 a.m. on September 12, 2018, while
using his walker to return from the Medical Department, he
was told by Lt. Fills to "get on the met[t]al detector I
told them I can't do it, because I have a walker and
cannot walk without it....They said to do it, and I did and I
fell." ECF 1, pp. 2-3. Collins asks "for an
injunctions [sic] relief because of the inadequate
medical care and guard brutality and harassment." ECF 1,
for Warden Gang provides exhibits demonstrating that Collins
did not file an administrative grievance relating to this
slip-and-fall incident, but nonetheless received medical
attention for his claimed injury caused by this alleged
incident. ECF 16-1, pp. 11-12. Counsel further argues that
Gang is entitled to Eleventh Amendment immunity for any claim
against him in his official capacity and that Gang cannot be
held liable under the doctrine of respondeat superior. ECF
16-1, pp. 13-16.
Court is mindful of its obligation to liberally construe the
pleadings of pro se litigants. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Nonetheless, liberal
construction does not mean that this Court can either ignore
a clear failure in the pleading to allege facts that set
forth a cognizable claim, Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990), or
"conjure up questions never squarely presented."
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985). In making this determination "[t]he
district court...must hold the pro se complaint to less
stringent standards than pleadings drafted by attorneys and
must read the complaint liberally." White v.
White, 886 F.2d 721, 722-23 (4th Cir. 1989).
motion for summary judgment is appropriate under Rule 56(c)
of the Federal Rules of Civil Procedure only if there exists
no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In other words, if
there clearly exist factual issues "that properly can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party," then summary
judgment is inappropriate. Anderson, 477 U.S. at
250; see also Puttiam Inv. Co. v. Cameo Props., 810
F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor
Co., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v.
Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.
1950). The moving party bears the burden of showing that
there is no genuine issue of material fact. See Fed.
R. Civ. P. 56(c); Pulliam, 810 F.2d at 1286 (citing
Charbonnages de France v. Smith, 597 F.2d 406, 414
(4th Cir. 1979)).
ruling on a motion for summary judgment, the Court must draw
all reasonable inferences in favor of and construe the facts
in the light most favorable to the non-moving party. See
Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 437
(4th Cir. 1998). Nevertheless, a party who bears the burden
of proof on a particular claim must factually support each
element of his claim. "[A] complete failure of proof
concerning an essential element. . . necessarily renders all
other facts immaterial." Celotex, 477 U.S. at
323. Thus, on those issues on which the non-moving party will
have the burden of proof, it is his or her responsibility to
confront the motion for summary judgment with an affidavit or
other similar evidence. See Anderson, 477 U.S. at
did not exhaust administrative remedies concerning the
incident prior to filing suit as required under the Prisoner
Litigation Reform Act ("PLRA"), 42 U.S.C. §
1997e. Administrative exhaustion under § 1997e(a) is not
a jurisdictional requirement and does not impose a heightened
pleading requirement on the prisoner; rather, the failure to
exhaust administrative remedies is an affirmative defense to
be pleaded and proven by defendants. See Jones v.
Bock, 549 U.S. 199, 215-16 (2007); Anderson v. XYZ
Corr. Health Servs., Inc., 407 F.2d 674, 682 (4th Cir.
2005). A claim that has not been exhausted may not be
considered by this Court. See Bock, 549 U.S. at 220.
In other words, exhaustion is mandatory, Ross v. Blake,
___ U.S. ___, 136 S.Ct. 1850, 1857 (2016), and
a court ordinarily may not excuse a failure to exhaust.
Ross, 136 S.Ct. at 1856 (citing Miller v.
French, 530 U.S. 327, 337 (2000) (explaining "[t]he
mandatory 'shall'... normally creates an obligation
impervious to judicial discretion")).
grievance process for Maryland prisoners is set forth at Md.
Code Ann. (2008 Repl. Vol.), Corr. Servs. ("C.S."),
§§ 10-201 et seq.; Md. Code Regs.
("COMAR") 12.02.28.02(1) (defining ARP). The
grievance process begins with the filing of an Administrative
Remedy Procedure ("ARP") complaint filed with the
Warden within 30 days of an incident. COMAR 12.02.28.09(B).
If the Warden or managing official denies a prisoner's
initial ARP or fails to respond to the ARP within the
established time frame, an appeal may be filed with the
Commissioner of Correction. While Collins filed seven ARP
grievances concerning his medical care following the
September 12, 2018, incident (see ECF 16-3, Decl. of
Erika Fitch, with attached records), he did not appeal the
denial of those grievances.
exhaustion had occurred prior to the filing of this lawsuit,
the Eleventh Amendment to the United States Constitution
would prohibit any claim for damages against Warden Gang in
his official capacity. See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99-101 (1984); Will
v. Michigan Dep't of State Police, 491 U.S. 58, 71
(1989) (internal citation omitted). Warden Gang is a State
official, see Md. Code Ann., State Gov't §
12-101(a) (2015) (defining "state personnel"), and
is entitled to assert a defense of Eleventh Amendment
immunity. See Md. Code Ann., State Gov't §
12-104(a); Dyer v. Maryland St. Bd. of Edu., 187
F.Supp.3d 599, 611 (D. Md 2016).
the record does not support any claim for denial of medical
care in violation of the Eighth Amendment. Collins complained
to health care personnel on September 12, 2018, that he fell
by the x-ray machine, hitting his knee on the floor and his
back on the wall. ECF 16-7, p. 11. Officers who brought
Collins to the health department denied he ...