Bridgeford v. Armstead

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DOUGLASS BRIDGEFORD, * Plaintiff, ** v. * Civil Action No. PJM-20-1261 WARDEN LAURA ARMSTEAD, et al., * Defendants. * Hook MEMORANDUM OPINION On April 28, 2021, Plaintiff Douglass Bridgeford filed his response to the Court’s Order to show cause why this case should not be dismissed for failure to exhaust administrative remedies. ECF No, 21. Plaintiff asserts that he filed multiple grievances regarding his COVID19 claims and attaches copies of numerous complaints made while housed at Patuxent Institution. See ECF No. 21-2. For the reasons discussed below, the Complaint shall be dismissed. If a claim has not been properly presented through the administrative remedy procedure it must be dismissed pursuant to the Prisoner Litigation Reform Act (“PLRA”), 42 U.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). For purposes of the PLRA, “the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” 42 U.S.C. § 1997e(h). The phrase “prison conditions” encompasses “all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see Chase v. Peay, 286 F.Supp.2d 523, 528 (D. Md. 2003), aff'd, 98 Fed. Appx. 253 (4th Cir. 2004).! Notably, 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, 215-216 (2007); Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017). Nevertheless, 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, __ US. _, 136 S.Ct. 1850, 1857 (2016). Therefore, 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”)). Ordinarily, an inmate must follow the required procedural steps in order to exhaust his administrative remedies, Moore v. Bennette, 517 F.3d at 725, 729; see Langford v, Couch, 50 } Maryland appellate case law indicates that the administrative grievance procedure does not encompass “every kind of civil matter that could be brought by a DOC inmate.’” Massey v. Galley, 392 Md. 634, 646 , 898 A.2d 951, 958 (2006) (citation omitted). Rather, it applies only to matters that “relate to or involve a prisoner's ‘conditions of confinement.” /d. at 651, 898 A.2d at 960 (citation omitted). Thus, the grievance procedure does not apply to requests for public information under the Maryland Public Information Act, see id., nor does it apply to medical malpractice claims against private medical service providers who treat inmates under contract with the DOC. See Abramson v, Correctional Med. Servs., Inc,, 359 Md. 238 , 753 A.2d 501 (2000). Moreover, the administrative grievance procedure does not apply to claims for compensation for disabilities resulting from “personal injury arising out of and in the course of [an inmate’s] work for which wages or a stipulated sum of money was paid by a correctional facility,” Md. Code Amn. Corr. Servs. § 10-304, for which a claim to a different administrative body, the Sundry Claims Board, is the exclusive remedy. See Dixon v. DPSCS, 175 Md. App. 384 , 927 A.2d 445 (2007). On the other hand, the grievance process does apply to a wide variety of claims that arise out of the conditions of confinement, even if the grievance process cannot provide a comprehensive remedy for such claims, such as tort claims of assault and battery against prison officers. See McCullough v. Wittner, 314 Md, 602, 552 A.2d 881 (1989). F.Supp. 2d 544, 548 (E.D. Va, 1999) (“[T]he .. . PLRA amendment made clear that exhaustion is now mandatory.”). Exhaustion requires completion of “the administrative review process in accordance with the applicable procedural rules, including deadlines.” Woodford v. Ngo, 548 U.S. 81, 88, 93 (2006). This requirement is one of “proper exhaustion of administrative remedies, which ‘means using all steps that the agency holds out, and doing so properly (so that. the agency addresses the issues on the merits).”” Woodford 548 U.S. at 93 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original). But the court is “obligated to ensure that any defects in [administrative] exhaustion were not procured from the action or inaction of prison officials.” Aguilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see Kaba v, Stepp, 458 F.3d 678, 684 (7th Cir. 2006). The Maryland Department of Public Safety and Correctional Services (“DPSCS”) has an established “administrative remedy procedure” (“ARP”) for use by Maryland State prisoners for “inmate complaint resolution.” See generally Md, Code Ann. (2008 Repl. Vol.), Corr. Servs. (“C.8."), §§ 10-201 et seg.; Md. Code Regs. “COMAR”) 12.07.01B(1) (defining ARP), The grievance procedure applies to the submission of “grievance[s] against... official[s] 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)(7). “A court may not consider an individual's grievance that is within the jurisdiction of the [Inmate Grievance] Office or the Office of Administrative Hearings unless the individual has exhausted the remedies” set forth in C.S. Title 10, Subtitle 2. C.S. § 10-210(a). To pursue a grievance, a prisoner confined in a Maryland prison may file a grievance with the Inmate Grievance Office (“IGO”) against any DOC official or employee. C.S. § 10206(a). However, if the prison has a grievance procedure that is approved by the IGO, the prisoner must first follow the institutional ARP process, before filing a grievance with the IGO, See C.S. § 10-206(b), There is an established administrative remedy procedure process that applies to all Maryland prisons. COMAR 12.07.01.05B 2.28.01. Therefore, when the ARP process provides a possible remedy, it must be followed and completed before an inmate may file a grievance with the IGO. The ARP process consists of multiple steps. For the first step, a prisoner is required to file their initial ARP with their facility’s “managing official” COMAR 12.02.28.02(D)(1), which is defined by COMAR 12.02,28.02(B)(14) as “the warden or other individual responsible for management of the correctional facility” and defined under C.S. § 1-101(k) “as the administrator, director, warden, superintendent, sheriff, or other individual responsible for the management of a correctional facility.” Moreover, the ARP request must be filed within 30 days of the date on which the incident occurred, or within 30 days of the date the prisoner first gained knowledge of the incident or injury giving rise to the complaint, whichever is later. COMAR 12.02.28.09(B). The second step in the ARP process occurs if the managing official denies a prisoner’s initial ARP or fails to respond to the ARP within the established time frame. The prisoner has 30 days to file an appeal to the Commissioner of Corrections. COMAR 12.02.28.14(B)(5). If the Commissioner of Correction denies an appeal, the prisoner has 30 days to file a grievance with the IGO.27, COMAR 12.02.28.18; C.S. § 10-206(a); COMAR 12.07.01.05(B). When filing with the IGO, a prisoner is required to include copies of the following: the initial 2 If the Commissioner fails to respond, the grievant shall file the appeal within 30 days of the date the response was due. COMAR 12.07.01.05(B)(2). request for administrative remedy, the warden’s response to that request, a copy of the ARP appeal filed with the Commissioner of Corrections, and a copy of the Commissioner’s response. COMAR 12.07,01.04(B)(9)(a). If the grievance is determined to be “wholly lacking in merit on its face,” the IGO may dismiss it without a hearing.” C.S. § 10-207(b)(1); see also COMAR 12.07.01.06(B). An order of dismissal constitutes the final decision of the Secretary of DPSCS for purposes of judicial review. C.S. § 10-207(b)(2)(ii). However, if a hearing is deemed necessary by the IGO, the hearing is conducted by an administrative law judge with the Maryland Office of Administrative Hearings. See C.S. § 10-208; COMAR 12.07.01.07-.08. The conduct of such hearings is governed by statute. See C.S. § 10-208; COMAR 12.07.01.07(D); see also Md. Code Ann., State Gov’t § 10-206(a)(1). A decision of the administrative law judge (“ALJ”) denying all relief to the inmate is considered a final agency determination. C.S. § 10-209(b)(1)(ji); COMAR 12.07.01.10(A)(2). However, if the ALJ concludes that the inmate’s complaint is wholly or partly meritorious, the decision constitutes a recommendation to the Secretary of DPSCS, who must make a final agency determination within fifteen days after receipt of the proposed decision of the administrative law judge. See COMAR 12.07.01.10(B); C.S. § 10-209(b)(2)(c). The final agency determination is subject to judicial review in Maryland State court, so long as the claimant has exhausted his/her remedies. See C.S. § 10-210. An inmate need not, however, seek judicial review in State court in order to satisfy the PLRA’s administrative exhaustion requirement, See, e.g, Pozo, 286 F.3d at 1024 (“[A] prisoner who uses all administrative options that the state offers need not also pursue judicial review in state court.”). Here, Holly Turner, Special Assistant to Commissioner Hill, attests that a search of the DPSCS Headquarters ARP Unit’s database of ARP appeals did not produce a record of any ARP appeal from Bridgeford as of August 6, 2020, Turner Decl., ECF No. 11-9. Bridgeford attaches numerous copies of various ARPs filed between April and September 2020. ECF No. 21-2. Only two were filed prior to the filing of the Complaint, on April 25 and 26, 2020. Id. at 7-9. The first of which complains about access to chronic care on April 20, 2020, asserts that Bridgeford is supposed to be housed in a single cell, and that Lt. Lardus “tried to see [him] die.” Id, at 7-8. The second ARP, dated April 26, 2020, appears to concern Bridgeford’s hospital visit on April 20, 2020, but it is otherwise illegible. Jd. at 9: see ECF No. 1 at 2. The remaining ARPs, some of which include complaints concerning COVID-19, were filed after the initiation of the instant case, Exhausting administrative remedies after a complaint is filed will not save a case from dismissal for failure to exhaust administrative remedies. See Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001) (overruled on other grounds), In Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999), the court stated: “The plain language of the statute [§ 1997e(a)] makes exhaustion a precondition to filing an action in federal Court . . . The prisoner, therefore, may not exhaust administrative remedies during the pendency of the federal suit.” See Kitchen v. Ickes, Civil Action No. DKC-14-2022, 2015 WL 4378159, at *8 (D. Md. July 14, 2015); see also Blackburn v. S. Carolina, No. C A 006-201 1-PMD-BM, 2009 WL 632542 , at *1 (D.S.C, Mar. 10, 2009) aff'd, 404 F. App’x 810 (4th Cir. 2010); Kaufinan v. Baynard, CIV.A. 1:10-0071, 2012 WL 844480 (S.D.W. Va. Feb. 3, 2012) report and recommendation adopted, CIV.A. 1:10-0071, 2012 WL 844408 (S.D.W. Va. Mar. 12, 2012); Miller v. McConneha, et al, JKB-15-1349, 2015 WL 6727547 , at *3-4 (D. Md. November 11, 2015). Based on the ARPs filed prior to the initiation of this case, the record indicates that Bridgeford failed to exhaust his administrative remedies as he did not appeal any ARP regarding the claims in his complaint to the Commissioner of Corrections prior to filing this case. See COMAR 12.02.28.14(B)(5). Accordingly, this case shall be dismissed without prejudice. A separate Order will follow. 2 [ie te Date HTER J. MESSITTE STATES DISTRICT JUDGE