Opinion
Civil Action No.: DKC-20-1145
06-22-2020
COREY LEE DOVE, Plaintiff, v. ASSISTANT WARDEN ALLEN GANG, Defendant.
MEMORANDUM OPINION
Plaintiff Corey Lee Dove filed a response to this court's Order that directed him to explain why he did not exhaust administrative remedies prior to instituting this lawsuit and to supplement his complaint. ECF No. 10-2. For the reasons that follow and consonant with this court's obligation to screen inmate complaints pursuant to 28 U.S.C. § 1915A, Mr. Dove's request for injunctive relief will be denied and his claim for monetary damages dismissed without prejudice. Mr. Dove's pending motion to proceed in forma pauperis (ECF No. 2) will be granted.
The response, apparently written between May 20-31, 2020, indicates that Mr. Dove did not wait to exhaust administrative remedies because the circumstances at Jessup Correctional Institution ("JCI") are life-threatening. He alleges that unnamed correctional officers at JCI are ignoring social distancing protocols and have kept for their own use personal protective equipment ("PPE") meant for distribution to inmates. He claims that "this facility just started testing the inmate population" revealing that there are a lot more cases of COVID-19 than previously believed. ECF No. 10-2 at 4. According to Mr. Dove, "this facility didn't act fast enough and really its this jail's fault . . . COVID 19 came in this facility due to the carelessness of these [correctional officers] and them not taking this serious!" Id. Beneath his statement that the assertions made by Warden Gang in the context of this case were false, Mr. Dove includes signatures from nineteen JCI inmates. Specifically, Mr. Dove states that the claim that in March safeguards for the inmate population, including PPE and cleaning supplies, were put into place is false because "most didn't start until May . . . when it was to[o] late!" ECF No. 10-2 at 5.
With regard to Mr. Dove's request for injunctive relief, it appears from the content of his response that the relief sought is already in place. "A case becomes moot—and therefore no longer a 'Case' or 'Controversy' for purposes of Article III - when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (internal quotation marks omitted). Where injunctive or declaratory relief is requested in an inmate's complaint, it is possible for events occurring subsequent to the filing of the complaint to render the matter moot. See Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (transfer of prisoner moots his Eighth Amendment claims for injunctive and declaratory relief); see also Slade v. Hampton Rd's Reg'l Jail, 407 F.3d 243, 248-49 (4th Cir. 2005) (pre-trial detainee's release moots his claim for injunctive relief); Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987) (holding that the transfer of a prisoner rendered moot his claim for injunctive relief). Mr. Dove's assertion that safeguards weren't put into place until May indicates that there is nothing further for this court to require of correctional officials at JCI.
It is also illustrative of the evolving nature of appropriate COVID-19 protocols, making this court's involvement in the decision-making process regarding the proper precautions to be taken impractical and unworkable. It is not the province of this court to determine how a particular prison might be more beneficently operated; the expertise of prison officials must be given its due deference. See Sandin v. Conner, 515 U.S. 472, 482-83 (1995).
To the extent that correctional officers are not observing protocols put into place to protect the inmate population, such conduct must first be addressed through the administrative remedy process before filing suit. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (plain language of 28 U.S.C. § 1997e(a) makes administrative exhaustion a pre-condition to filing suit). The 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, 549 U.S. 199, 219 (2007); see also Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (exhaustion means providing prison officials with the opportunity to respond to a complaint through the 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 v. Peay, 286 F. Supp. 2d 523, 530 (D. Md. 2003); see also Booth v. Churner, 532 U.S. 731, 735 (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, 337 F.3d 720, 726 (6th Cir. 2003) (noting that a prisoner must appeal administrative rulings "to the highest possible administrative level"); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (prisoner must follow all administrative steps to meet the exhaustion requirement, but need not seek judicial review).
Mr. Dove's assertion that the administrative remedy procedure is unavailable to him because correctional officials do not care about inmate welfare is not persuasive. A claim that administrative remedies are unavailable must be supported by some indication that the process operates as a simple dead end with correctional staff unable or consistently unwilling to provide any relief; or that the administrative scheme is so confusing or complicated it is incapable of use; or that correctional staff thwart the use of administrative remedies through threats, misrepresentation, or intimidation. See Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1859-60 (2016). Mr. Dove's bald assertion that prison administrators, including the Commissioner of Correction as well as the Inmate Grievance Office, simply don't care is insufficient. This is true, particularly in light of the fact that he began the administrative process, but simply abandoned it in favor of filing the instant complaint.
Further, if Warden Gang knows nothing of the failure by correctional officers employed at JCI to observe protocols, he cannot correct the problem and alleviate the potential danger to the inmate population. To sustain a claim of an Eighth Amendment violation, Mr. Dove would need to establish that Warden Gang was subjectively aware of an unacceptable threat to inmate safety but failed to act. To establish a sufficiently culpable state of mind, there must be evidence that a known excessive risk of harm to the inmate's health or safety was disregarded. See Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). In other words, "the test is whether the guards know the plaintiff inmate faces a serious danger to his safety and they could avert the danger easily yet they fail to do so." Brown v. N.C. Dep't of Corr., 612 F.3d 720, 723 (4th Cir. 2010) (quoting Case v. Ahitow, 301 F.3d 605, 607 (7th Cir. 2002)). Conduct is not actionable under the Eighth Amendment unless it transgresses bright lines of clearly-established pre-existing law. See Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). "[A]bsent intentionality, a condition imposed on an inmate cannot properly be called 'punishment,' and absent severity, such punishment cannot be called 'cruel and unusual."' Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)). Here, there is evidence that Mr. Dove filed this lawsuit without availing himself of the administrative remedy procedure, therefore there is no evidence that Warden Gang has willfully or deliberately refused to enforce existing protocols in place at JCI.
Mr. Dove's request for injunctive relief shall therefore be denied as moot and his claim for monetary damages shall be dismissed without prejudice for failing to exhaust administrative remedies prior to instituting this lawsuit. A separate Order follows. June 22, 2020
Date
/s/_________
DEBORAH K. CHASANOW
United States District Judge