United States District Court, D. Maryland
CATHERINE C. BLAKE, UNITED STATES DISTRICT JUDGE
Jeremy Johnson, a Maryland prisoner, filed an action under 42
U.S.C. § 1983 seeking money damages against Eastern
Correctional Institution ("ECI") Correctional
Officers Bankard and Tyler for an assault alleged to have
occurred on the afternoon of August 4, 2018. (ECF 1, pp.
Defendants Bankard and Tyler move to dismiss or alternatively
for summary judgment in their favor, arguing that Johnson
failed to exhaust administrative remedies and that Johnson
cannot factually support his claims. (ECF 15). The pending motion
may be decided without a hearing. See Local Rule
105.6 (D. Md. 2018). For reasons that follow, the Motion to
Dismiss or for Summary Judgment is GRANTED and the Complaint
is DISMISSED without prejudice for failure to exhaust
record evidence, construed in the light most favorable to
Johnson, chronicles. the following events. On January 15,
2019, Johnson filed a complaint against Tyler, Bankard, and
Ward, alleging an assault committed while Johnson was
incarcerated at ECI. The allegations were investigated by
Detective Sergeant Justice of the Department of Public Safety
and Correctional Services ("DPSCS") Intelligence
and Investigative Division ("IID"). (ECF 15-2, ITJD
Report and Declaration of Nicole Miraglia). The report
reiterates Johnson's allegation that he was escorted by
Tyler and Bankard into a hallway on HU #4. (Id., p.
6). While under escort, the officers beat Johnson without
reason and repeatedly rammed his head against a wall.
(Id.). The investigator noted that at the time of
the interview Johnson showed no visible sign of injury.
(Id.). The "view-only" video camera in the
hallway was aimed toward the back door and did not show the
alleged incident. (Id.).
August 4, 2018, medical documentation by Nurse Sarah Johnson
indicated Johnson showed no visible signs of injury.
(Id., p. 7). On August 5, 2018, Nurse Elizabeth
Miller noted that Johnson was admitted to the Administrative
Segregation Observation Area overnight, where she observed
him. (Id.). Nurse Miller observed that Johnson did
not cooperate with the officers and repeatedly pulled away.
(Id.). The only signs of injury were bilateral
bruising and a circular abrasion on the left wrist and some
swelling of the right knee. (Id.). Johnson claims
his initial grievance concerning the event was dismissed.
(ECF 1, p. 3).
addressing the pending motion, the court will consider
documents beyond those intrinsic to Johnson's Complaint.
Consequently, the defendants' Motion is treated as one
for summary judgment. Pursuant to Rule 56(a) of the Federal
Rules of Civil Procedure, summary judgment shall be granted
if the movant demonstrates that no genuine issue of disputed
material fact exists, rendering the movant entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(d). "By its very terms, this standard provides that
the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphases in original). "The
party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of
[his] pleadings, but rather must set forth specific facts
showing that there is a genuine issue for trial."
See Bouchat v. Baltimore Ravens Football Club, Inc.,
346 F.3d 514, 525 (4th Cir. 2003) (quoting Fed.R.Civ.P.
56(e)) (alteration in original). The court must view the
evidence in the light most favorable to the non-movant and
draw all inferences in his favor, without weighing the
evidence or assessing witness credibility. See Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45
(4th Cir. 2002). It is the court's obligation to prevent
factually unsupported claims and defenses from proceeding to
trial. Bouchat, 346 F.3d at 526.
defendants have attached to their motion records,
declarations, and verified correctional records. Because the
Complaint is not verified, the court cannot consider the
factual allegations raised by Johnson in determining the
propriety of summary judgment. See Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991); Fed.R.Civ.P.
56(c)(1)(A); see also Abdelnaby v. Durham D & M,
LLC, No. GLR-14-3905, 2017 WL 3725500, at *4 (D. Md.
Aug. 29, 2017) (awarding summary judgment for the defendants,
because the plaintiff could not "create a genuine
dispute of material fact 'through mere speculation,
'" and "[t]hus, the Court [wa]s left with a
record that [wa]s bereft of evidence supporting any of
Abdelnaby's arguments") (quoting Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir.
defendants raise the affirmative defense that Johnson has
failed to exhaust his administrative remedies. They correctly
state that if Johnson's claims have not been properly
presented through the administrative remedy procedure, the
claims must be dismissed pursuant to the Prisoner Litigation
Reform Act ("PLRA"), 42U.S.C. § 1997e. The
PLRA provides in pertinent part that:
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.
42 U.S.C. § 1997e(a). 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);
Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).
A claim that has not been exhausted may not be considered by
this Court. See Bock, 549 U.S. at 219-20. In other
words, exhaustion is mandatory, and a court ordinarily may
not excuse a failure to exhaust. Ross v. Blake, 136
S.Ct. 1850, 1856-57 (2016) (citing Miller v.
French, 530 U.S. 327, 337 (2000) (explaining
"[t]he mandatory 'shall'. . . normally creates
an obligation impervious to judicial discretion")).
a prisoner must follow the required procedural steps in order
to exhaust his administrative remedies. Woodford v.
Ngo, 548 U.S. 81, 88, 93 (2006); Moore v.
Bennette, 517 F.3d 717, 725 (4th Cir. 2008). But the
Court is "obligated to ensure that any defects in
[administrative] exhaustion were not procured from the action
or inaction of prison officials." Aquilar-Avellaveda
v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007);
see Moore, 517 F.3d at 725 (citing
Aquilar-Avellweda, 478 F.3d at 1225); Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
grievance system for "inmate complaint resolution"
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 procedure applies to the submission of
"grievance[s] against. . . officials] or employee[s] of
the Division of Correction[.]" C.S. § 10-206(a).
Regulations promulgated by DPSCS concerning the
administrative remedy procedure define a
"grievance" to include a "complaint of any
individual in the custody of the [DOC] against any officials
or employees of the [DOC] arising from the circumstances of
custody or confinement." COMAR 12.07.01.01(B)(8).
"A court may not consider an individual's grievance
that is within the jurisdiction of the [Inmate Grievance]