IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ANTHONY WAYNE CRUSOE, * * Plaintiff, * v. * Civil Case No. SAG-20-1901 * WARDEN, * * Defendant. * * * * * * * * * * * * * * *

MEMORANDUM OPINION

In response to the above-captioned civil rights complaint, Defendants Warden Cleveland Friday and Warden Orlando Johnson1 filed a motion to dismiss or for summary judgment asserting in part that plaintiff Anthony Wayne Crusoe (“Plaintiff”) did not exhaust his administrative remedies before filing his complaint with this Court. ECF 17. Plaintiff, a prisoner who is currently confined in the Western Correctional Institution (“WCI”), opposes the motion. ECF 19. No hearing is required to consider the pending motion. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, Plaintiff’s complaint must be dismissed without prejudice. I. BACKGROUND Plaintiff’s complaint, which he filed on June 23, 2020, concerns the lack of COVID-19 precautions in place during his incarceration at the Maryland Reception and Diagnostic Correctional Center (“MRDCC”). On December 3, 2020, Plaintiff filed a letter indicating that he had been transferred to WCI, where he still experienced a lack of adequate sanitation and personal protective equipment. ECF 9. On December 9, 2020, this Court ruled that Plaintiff’s claim for

1 The Clerk will be directed to amend the docket to reflect the full name of the two defendant wardens. injunctive relief would be dismissed, as he had been transferred to a new facility, and that his claims against the Division of Correction, MRDCC, and the Warden of WCI would be dismissed without prejudice from this lawsuit. The remaining claim in this lawsuit is Plaintiff’s claim for damages, namely the “stress” he experienced while incarcerated at MRDCC due to inadequate

COVID-19 protection. II. ANALYSIS As noted, Defendants raise the affirmative defense that Plaintiff failed to exhaust administrative remedies prior to filing this lawsuit. ECF 17-1 at 13-16. A claim that has not been properly presented through the administrative remedy procedure must be dismissed pursuant to the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e. The PLRA provides in pertinent part that: 6200044590288968 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,

(2002); see Chase v. Peay,

(D. Md. 2003), aff’d, 98 Fed. App’x. 253 (4th Cir. 2004). 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,

(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,

(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,

(quoting Pozo v. McCaughtry,

(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,

(10th Cir. 2007); see Kaba v. Stepp,

(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.S.”), §§ 10-201 et seq.; 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. § 10-206(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. 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 his initial ARP with his 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 Correction. 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.2 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 request for administrative remedy, the warden’s response to that request, a copy of the ARP appeal

filed with the Commissioner of Correction, 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 denying all relief to the inmate is considered a

final agency determination. C.S. § 10-209(b)(1)(ii); 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,

2 If the Commissioner fails to respond, the grievant shall file their appeal within 30 days of the date the response was due. COMAR 12.07.01.05(B)(2). however, seek judicial review in State court in order to satisfy the PLRA’s administrative exhaustion requirement. See, e.g., Pozo,

(“[A] prisoner who uses all administrative options that the state offers need not also pursue judicial review in state court.”). The PLRA’s exhaustion requirement serves several purposes. These include “allowing a

prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Jones v. Bock,

(2007); see Moore v. Bennette,

(4th Cir. 2008) (exhaustion means providing prison officials with the opportunity to respond to a complaint through proper use of administrative remedies). It is designed so that prisoners pursue administrative grievances until they receive a final denial of the claims, appealing through all available stages in the administrative process. Chase,

; Gibbs v. Bureau of Prisons,

(D. Md. 1997) (dismissing a federal prisoner’s lawsuit for failure to exhaust, where plaintiff did not appeal his administrative claim through all four stages of the BOP’s grievance process); see also Booth v.

Churner,

(2001) (affirming dismissal of prisoner’s claim for failure to exhaust where he “never sought intermediate or full administrative review after prison authority denied relief”); Thomas v. Woolum,

(6th Cir. 2003) (noting that a prisoner must appeal administrative rulings “to the highest possible administrative level”); Pozo,

(prisoner must follow all administrative steps to meet the exhaustion requirement, but need not seek judicial review). Plaintiff’s response to the Defendants’ motion to dismiss does not address his apparent failure to exhaust administrative remedies, instead focusing on his continuing conditions of incarceration at WCI, which are no longer part of this lawsuit and would need to be pursued in a separate action. ECF 19. The documentation submitted by Defendants establishes that Plaintiff had not filed an ARP (other than one concerning Skype visits being canceled)3, an appeal to the Commissioner, or a grievance to the Inmate Grievance Office regarding the conditions he experienced at MRDCC, before he filed this lawsuit. ECF 17-4 ¶ 17; ECF 17-5 ¶ 17; ECF 17-7;

ECF 17-8. Even if he were now to attempt to remedy this shortcoming by pursuing the required administrative process, exhaustion of administrative remedies after a complaint is filed with this court would not save his case from dismissal for failure to exhaust administrative remedies. See Neal v. Goord,

(2d Cir. 2001) (overruled on other grounds). In Freeman v. Francis,

(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.” Moreover, at this point, Plaintiff has been transferred out of MRDCC for more than 30 days, meaning any request for an ARP that he might file relating to the conditions he experienced at MRDCC would be untimely. See COMAR 12.02.28.09(B). Accordingly, his complaint must be

dismissed without prejudice by separate order which follows.

__July 9, 2021______ ___________/s/__________________ Date Stephanie A. Gallagher United States District Judge

3 The outcome of the Skype ARP is not clear from the record, but it is evident that administrative remedies were not exhausted even as to that complaint, because no appeal was filed.