Leupolu v. Dr. Okoluku

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

PHILLIP LEUPOLU,

Plaintiff,

v. Civil Action No.: SAG-21-1854

DR. OKOLUKU, et al.,

Defendants.

MEMORANDUM

Plaintiff Phillip Leupolu filed this civil rights action alleging that Defendants Sirah

Okoluku, NP,1 Jamillah Nock, and Warden R. Shane Weber failed to provide him with adequate

medical care at Jessup Correctional Institution (“JCI”) and Western Correctional Institution

(“WCI”). ECF No. 1. Defendants Okoluku and Nock each moved to dismiss the Complaint, ECF

Nos. 16-17, and Defendant Warden Weber moved to dismiss the Complaint, or in the alternative,

for summary judgment, ECF No. 20. Leupolu was given an opportunity to respond to each motion

and has not done so. ECF Nos. 18-19, 21. The Court finds that a hearing is not necessary. See

Local Rule 105.6 (D. Md. 2021). For the reasons explained below, the Court will deny Okoluku

and Nock’s motions to dismiss, although those defendants will be permitted to refile a pleading or

motion to respond to Leupolu’s § 1983 claim. Defendant Weber’s motion, construed as a motion

to dismiss, will be granted due to Leupolu’s failure to exhaust administrative remedies. All claims

against Defendant Weber will be dismissed without prejudice.

1 The Clerk will be directed to correct Defendant Sirah Okoluku’s name on the docket.

Background

I. Leupolu’s Allegations

Leupolu alleges that Defendant Sirah Okoluku, N.P. prescribed the medication “risperidol”

even though it was discontinued in 2018.2 ECF No. 1 at 2. He states that he was prescribed

Risperdal in June and July of 2021 while housed at JCI and WCI. Id. He states that a non-

defendant doctor stopped the order for Risperdal on July 14, 2021, but that the nurses continued

to give it to him until August 4, 2021. Id. He claims that he suffered side effects from this

medication including back pain, enlarged breasts, and psychological stress. Id. at 3. Leupolu

alleges that Defendant Jamillah Nock was the Health Services Administrator, “responsible for the

medical part of WCI.” Id. at 2. He alleges that “R. Shane Weber is the acting warden according

to my 2021 Inmate Handbook and is responsible for everything in WCI.” Id. Leupolu seeks

“monetary relief for the negligence of the defendants.” Id. at 3.

II. Defendants’ Responses

A. Sirah Okoluku, NP and Jamillah Nock

Okoluku and Nock, in separate motions, move to dismiss Leupolu’s Complaint. ECF Nos.

16-17. Okoluku and Nock each state that Leupolu’s state claims for medical malpractice and

negligence must be dismissed because: 1) Leupolu did not satisfy the requirements of the Maryland

Health Care Malpractice Claims Act, Md. Code Ann., Cts. & Jud. Proc. § 3-2A-02 et seq., prior to

filing the instant lawsuit; and 2) this court does not have jurisdiction over Leupolu’s state claim.

ECF No. 16-1 at 2-4; 17-1 at 3-4. Okoluku and Nock do not address Leupolu’s § 1983 claim.

2 Risperdal, or risperidone, is an antipsychotic used in the treatment of schizophrenia.

https://druginfo.nlm.nih.gov/drugportal/name/risperdal (last visited August 30, 2022).

B. Warden Ronald S. Weber

Warden Weber moves to dismiss the Complaint, or in the alternative, for summary

judgment. ECF No. 20. Specifically, Warden Weber argues that Leupolu’s Complaint must be

dismissed for failure to exhaust administrative remedies and because Leupolu has not alleged

personal involvement or supervisory liability against him. ECF No. 20-1 at 6-9. Warden Weber

also argues that he is entitled to Eleventh Amendment immunity and qualified immunity. Id. at 8,

11-12. In support, Warden Weber provides the declaration of Sgt. Alicia Cartwright who declares

that Leupolu did not file any Requests for Administrative Remedies while he has been at WCI; the

record of Leupolu’s transfer from WCI to JCI and back to WCI in June, 2021; and the declaration

of Warden Weber stating that medical services are provided by a private medical contractor and

that he had no involvement in any medical decisions nor directed or interfered with the medical

treatment of Leupolu. ECF Nos. 20-2, 20-3.

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).

Under limited circumstances, when resolving a Rule 12(b)(6) motion, a court may consider

documents beyond the complaint without converting the motion to dismiss to one for summary

judgment. Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).

The court may “consider documents attached to the complaint, see Fed. R. Civ. P. 10(c), as well

as those attached to the motion to dismiss, so long as they are integral to the complaint and

authentic[.]” Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.

2007) (citation omitted).

Discussion

I. Defendants Okoluku and Nock

Defendants Okoluku and Nock move to dismiss the Complaint as it relates to Leupolu’s

state law claims for medical malpractice and negligence. ECF Nos. 16-1 and 17-1. The Court,

however, construes the Complaint, filed by a self-represented plaintiff in federal court, as a civil

rights action pursuant to 42 U.S.C. § 1983. See ECF No. 3. A self-represented party’s complaint

must be construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Leupolu’s Complaint

alleges that he was provided prescription medication that caused him unwanted side effects

notwithstanding the fact that the medication had been “discontinued.” ECF No. 1 at 2. Liberally

construed, then, Leupolu alleges that Defendants’ deliberate indifference to his medical needs

violated his Eighth Amendment rights pursuant to § 1983.

The motions filed by Ololuku and Nock do not address Leupolu’s federal claim. For

example, while Olokulu and Nock argue that Leupolu did not satisfy the requirements of the

Maryland Health Care Malpractice Claims Act, such pre-suit certification requirements do not

apply to actions in federal court where they are in conflict with the Federal Rules of Civil

Procedure. See Pledger v. Lynch, 5 F.4th 511 (4th Cir. 2021). And even if the certification

requirements were applicable to Leupolu’s state law claims, a civil rights violation of the Eighth

Amendment under 42 U.S.C. § 1983 differs in important respects from a simple negligence or

medical malpractice claim, such that the federal claim should not be barred. See Estelle v. Gamble,

429 U.S. 97, 106 (1976) (stating that “a complaint that a physician has been negligent in diagnosing

or treating a medical condition does not state a valid claim of medical mistreatment under the

Eighth Amendment. Medical malpractice does not become a constitutional violation merely

because the victim is a prisoner.”).

Thus, Defendants Okoluku and Nock’s motions to dismiss, ECF Nos. 16, 17, will be

denied, although those Defendants will be permitted to refile a responsive pleading or motion to

include their response to Leupolu’s § 1983 claimin addition to his state law claims of medical

malpractice and negligence. The deadline for their responsive filings will be fourteen days from

the date of this Memorandum Opinion and Order.

II. Defendant Warden Weber

Defendant Warden Weber contends that Leupolu’s Complaint is subject to dismissal

pursuant to the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e, because his claims

have not been properly presented through the administrative remedy procedure. ECF No. 20-1 at

2. 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).

A claim that has not been exhausted pursuant to the PLRA may not be considered by this

court. See Jones v. Bock, 549 U.S. 199, 220 (2007). Exhaustion requires completion of “the

administrative review process in accordance with the applicable procedural rules[.]” Woodford v.

Ngo, 548 U.S. 81, 88 (2006). An inmate need only exhaust “available” remedies. 42 U.S.C. §

1997e(a). The Supreme Court has stated that an administrative remedy is available if it is “‘capable

of use’ to obtain ‘some relief for the action complained of.’” Ross v. Blake, 578 U.S. 1174, 136

S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). Thus, an inmate

must complete the prison’s internal appeals process, if possible, before bringing suit. See Chase

v. Peay, 286 F. Supp. 2d 523, 529-30 (D. Md. 2003). Exhaustion is also required even where the

specific relief sought is not attainable through resort to the administrative remedy procedure. See

Booth, 532 U.S. at 741. As a prisoner, plaintiff is subject to the strict requirements of the

exhaustion provisions. See Porter v. Nussle, 534 U.S. 516, 528 (2002) (noting that no distinction

is made with respect to exhaustion requirements between suits alleging unconstitutional conditions

and suits alleging unconstitutional conduct).

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. Md. Code Ann.,

Corr. Servs. (“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 Administrative Remedy

Procedure (“ARP”) process, before filing a grievance with the IGO. See id. § 10-206(b). The

Maryland Department of Public Safety and Correctional Services (“DPSCS”) has made an ARP

available to Maryland State prisoners for “inmate complaint resolution.” See generally id. §§ 10-

201 et seq.; Code of Maryland Regulations (“COMAR”) 12.07.01.01B(1) (defining ARP). Thus,

before filing a grievance with the IGO, a prisoner is required, among other things, to make an

initial request for an administrative remedy with the Warden. Id. at 12.07.01.04(B)(9)(a). If an

ARP is filed and denied, the prisoner may appeal the denial within 30 days to the Commissioner

of Correction.

If the Commissioner of Correction denies the appeal, the prisoner may file a grievance with

the IGO, also within 30 days. C.S. § 10-206(a); C.S. § 10-210; COMAR 12.07.01.05B. The

prisoner must include in the grievance copies of the initial request or 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 COMAR 12.07.01.07B. 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).

Exhaustion of administrative remedies must take place before the complaint is filed. 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 006-2011-PMD-BM, 2009 WL

632542, at *1 (D.S.C. Mar. 10, 2009) aff’d, 404 F. App’x 810 (4th Cir. 2010); Miller v.

McConneha, et al, JKB-15-1349, 2015 WL 6727547, at *3-4 (D. Md. November 11, 2015).

Ordinarily a prisoner must follow the required procedural steps in order to exhaust his

administrative remedies. Moore v. Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008); 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, 548

U.S. at 88, 93. 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).’” Id. 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).

Here, the record shows that Leupolu did not timely and properly exhaust the grievance

process prior to filing his Complaint in this court. In addition, there is nothing in the record to

suggest that Leupolu was prevented from utilizing the administrative remedies procedure. Alicia

Cartwright, a Correctional Officer Sergeant assigned to WCI’s ARP office, declares that Leupolu

did not file any ARPs during his time at WCI. ECF No. 20-2. Leupolu does not contest this

declaration. Furthermore, in his Complaint, he states that he did not file a grievance because “when

I spoke with the Psych Doctor she said she took me off of risperidol on 7/14/21.” As Leupolu’s

claims are clearly unexhausted, they will be dismissed against Defendant Warden Weber, without

prejudice.3

Conclusion

For the foregoing reasons, Defendants Sirah Okoluku and Jamillah Nock’s Motions to

Dismiss are denied without prejudice to their ability to file pleadings or motions responsive to

Leupolu’s § 1983 claims within fourteen days. Warden Weber’s Motion to Dismiss, or in the

Alternative, for Summary Judgment, construed as a Motion to Dismiss, is granted. All claims

against Defendant Warden Weber are dismissed without prejudice. A separate Order follows.

September 1, 2022 /s/

Date Stephanie A. Gallagher

United States District Judge

3 Because the claims against Warden Weber are being dismissed for failure to exhaust administrative remedies,

consideration of Warden Weber’s remaining arguments is not necessary.