Sheppard v. Gavigan ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ) BRYAN SHEPPARD, ) AV) Plaintiff, ) Civil Action No.: LKG-22-951 Dated: August 28, 2023 MICHAEL GAVIGAN, and, ) OFFICER S. EIGBOKHAN, ) Defendants. □□□ MEMORANDUM Self-represented Plaintiff Bryan Sheppard filed his Complaint in this civil rights action against Michael Gavigan, alleging that he assaulted Sheppard while escorting him through the prison and Officer S. Eigbokhan, alleging that he stole a television and radio from Sheppard. ECF No. 1. On December 19, 2022, Eigbokhan moved to dismiss the Complaint or, in the alternative, for summary judgment. ECF No. 18. Sheppard filed his response in opposition on December 29, 2022. ECF No. 22. On February 17, 2023, Gavigan separately moved to dismiss the Complaint, or in the alternative, for summary judgment. ECF No. 25. Sheppard responded in opposition to Gavigan’s motion on March 6, 2023, and Gavigan filed a supplemental memorandum on March 14, 2023. ECF Nos. 27-28.' The Court finds that a hearing is not necessary. See Local Rule 105.6 (D. Md. 2021). For the reasons discussed below, Eigbokhan’s Motion will be granted, and Gavigan’s Motion will be granted in part and denied in part. I. BACKGROUND In his Complaint, Sheppard alleges that on December 4, 2021, he was handcuffed and waiting to be escorted to medical when Eigbokhan gave him a rules violation ticket. ECF No. 1 at 4. As he was being escorted to medical, he was passed off to Gavigan who assaulted him while he was “completely defenseless” and still in handcuffs. Jd. Sheppard alleges that he | Sheppard filed correspondence directed to the Clerk of Court as well as copies of several documents regarding his attempts to exhaust his administrative remedies. ECF Nos. 27, 27-1. The Court construes this correspondence as a response in opposition to Defendant Gavigan’s dispositive motion. suffered injuries to his shoulder and ankle and that his shoes and clothes were damaged. ECF No. 1 at 5. Sheppard further alleges that Eigbokhan stole his television and radio while packing his property to be moved. Jd. Sheppard seeks monetary damages and for “the officers involved to be held accountable.” Jd. Sheppard states that he submitted grievances through the administrative remedy procedure (“ARP”) process and his allegations are under investigation by the Intelligence and Investigative Division (“IID”). ECF No. 1 at 7. He does not specify which allegations are under investigation, however, he attaches a copy of an appeal to the Commissioner of Correction regarding the alleged assault by Gavigan which indicates it was dismissed because the case was referred to IID. ECF No. 27-1. Sheppard also submitted a copy of an ARP appeal regarding the allegedly stolen property which directed him to file additional paperwork, as well as two copies of letters from the Office of the Commissioner directing him to provide further information. □□□ at 3-5. Finally, Sheppard submitted a copy of a letter he wrote to the Commissioner of Correction explaining his difficulty in obtaining the information requested. ECF No. 22-1 at As Eigbokhan and Gavigan each submitted a declaration from Robin Woolford, Deputy Director of the Inmate Grievance Office (“IGO”), stating that Sheppard has not filed any grievances with the IGO. ECF Nos. 18-3 and 25-3. II. STANDARD OF REVIEW To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the factual allegations of a complaint “must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “To satisfy this standard, a plaintiff need not “forecast” evidence sufficient to prove the elements of the claim...However, the complaint must allege sufficient facts to establish those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). Defendants’ Motions are styled as motions to dismiss under Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. ECF Nos. 18, 25. Motions styled in this manner implicate the Court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cnty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011). Conversion of a motion to dismiss to one for summary judgment under Rule 12(d) is permissible where plaintiff has “actual notice” that the motion may be disposed of as one for summary judgment. See Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998). 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; the Court “does not have an obligation to notify parties of the obvious.” Laughlin, 149 F.3d at 261. Because the Motions are titled as motions to dismiss, or in the alternative, for summary judgment, Sheppard was on notice that the Court could treat them as motions for summary judgment and rule on that basis. Rule 56(a) provides that summary judgment should be granted “if the movant shows 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). “A dispute is genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit under the governing law.’” /d. (quoting Henry v. Purnell, 652 F.3d 524, 548 (4th Cir. 2011)). Accordingly, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A court must view the evidence in the light most favorable to the nonmoving party, Tolan y. Cotton, 572 U.S. 650, 656-57 (2014) (per curiam), and draw all reasonable inferences in that party’s favor, Scott v. Harris, 550 U.S. 372, 378 (2007); see also Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568-69 (4th Cir. 2015). At the same time, the Court must “prevent factually unsupported claims and defenses from proceeding to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993)). The Court is mindful that Sheppard is a self-represented litigant. A federal court must liberally construe pleadings filed by pro se litigants to allow them to fully develop potentially meritorious cases. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But liberal construction does not mean a court can ignore a clear failure in the pleadings to allege facts which set forth a claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). A court cannot assume the existence of a genuine issue of material fact where none exists. Fed. R. Civ. P. 56(c). Il. DISCUSSION A. Exhaustion of Administrative Remedies Eigbokhan and Gavigan each raise the affirmative defense that Sheppard has failed to exhaust his administrative remedies. If Sheppard’s claims have not been properly presented through the administrative remedy procedure they 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, 578 U.S. 632, 639 (2016). Therefore, a court ordinarily may not excuse a failure to exhaust. Ross, 578 U.S. at 639 (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 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.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). In Maryland prisons, the ARP is the administrative process that must be exhausted. Md. Code Regs. § 12.02.28.02(B)(1), (D) (2018). First, a prisoner must file an ARP with the warden within 30 days of the incident at issue. Md. Code Regs. § 2.02.28.05(D)(1) (requiring filing with the “managing official”); Md. Code Regs. § 12.02.28.02(B)(14) (defining “managing official” as “the warden or other individual responsible for management of the correctional facility”); Md. Code Regs. § 12.02.28.09(B) (setting the 30-day deadline). Second, if the ARP is denied, or the inmate does not receive a timely response, a prisoner must file an appeal with the Commissioner of Correction within 30 days. Md. Code Regs. § 12.02.28.14(B)(5). Ifthe appeal is denied, the prisoner must appeal within 30 days to the Inmate Grievance Office (“IGO”). See Md. Code. Ann., Corr. Servs. §§ 10-206, 10-210; Md. Code Regs. § 12.07.01.05(B). Inmates may seek judicial review of the IGO’s final determinations in a Maryland Circuit Court. See Md. Code Ann., Corr. Servs. § 10-210(a). However, an inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a). In Ross v. Blake, 578 U.S. 632 (2016), the Supreme Court rejected a “freewheeling approach to exhaustion as inconsistent with the PLRA.” Jd. at 635. In particular, it rejected a “special circumstances” exception to the exhaustion requirement. /d. But, it reiterated that “[a] prisoner need not exhaust remedies if they are not ‘available.’” Jd. at 636. “[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). The Supreme Court stated in Ross that an administrative remedy is available if it is “