# Canty v. Corcoran

> District Court, D. Maryland · December 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10209434

## Case

- **Court:** District Court, D. Maryland
- **Decided:** December 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10209434

## How later opinions describe it (automated extraction)

- noting that a conspiracy claimant “must show an agreement or a ‘meeting of the minds' by defendants to violate the claimant's constitutional rights.”
- noting an administrative remedy is not “available if a prisoner, through no fault of his own, was prevented from availing himself of it”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DAFON CANTY, *

Plaintiff, *

v. * Civil Action No. GLR-18-1404

DAYENA M. CORCORAN, *
et al.,
*
Defendants.
*
***
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants Lieutenant Vaughn Whiteman,
Sergeant Derek Baer, Officer Christopher McKenzie, Officer Randy Adkins, Officer
Jeremy Payne, and Officer Justin Yutzy’s (collectively, “Defendants”) Motion for
Summary Judgment (ECF No. 123) and Plaintiff Dafon Canty’s Motion for Leave to File
Surreply (ECF No. 137). The Motions are ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2023). For the reasons set forth below, the Court will deny
Defendants’ Motion and grant Canty’s Motion.
I. BACKGROUND
A. Factual Background
Canty is a state prison inmate presently housed at North Branch Correctional
Institution (“NBCI”) in Cumberland, Maryland. (Canty Aff. ¶ 2, ECF No. 130-2).1 In his

1 Citations to page numbers refer to the pagination assigned by the Court’s Case
Management/Electronic Case Files (“CM/ECF”) system.
Affidavit, he avers that Defendants violated his civil rights by retaliating against him in
response to his initiation of administrative remedy procedures (“ARP”) beginning in 2018

and continuing through 2022. (See id. ¶¶ 5–22). Canty also alleges that Defendants
undertook these retaliatory acts in concert with one another, amounting to a civil
conspiracy. (See id. ¶¶ 7, 11, 13).
1. Retaliation in 2018
On January 3, 2018, Canty was assigned to Housing Unit #2. (Canty Aff. ¶ 3). Canty
grew concerned after spotting Darryl Powell, an inmate he had prior altercations with, in

the same housing unit. (Id.). Canty became worried that they might get into another fight,
so he submitted a “request-slip” to Sergeant Gregory Forney about his concerns. (Id.).
When Forney did not respond, Canty requested to meet with him in person. (Id.). During
the meeting, Canty told Forney that he felt threatened by Powell and Canty’s cellmate,
Courtney Bryant. (Id.). Forney explained that he was transferring to another correctional

institution, but Canty could raise any concerns with Forney’s replacement. (Id.).
In January 2018, Canty filed two ARPs outlining his concerns, and these ARPs were
either ignored or dismissed. (Canty Aff. ¶ 5; Feb. 3, 2018 ARP at 1–2, ECF No. 130-3
(stating that Canty submitted an ARP to McKenzie on January 26, 2018, but institutional
staff “abandon[ed”] the ARP)). On February 3, 2018, he submitted an ARP to the Maryland

Division of Correction’s Office of the Commissioner, seeking a transfer to another cell and
a modified recreation schedule. (Canty Aff. ¶ 5; Feb. 3, 2018 ARP at 2–3). The Office
forwarded the ARP to NBCI, and NBCI dismissed it for procedural reasons. (Feb. 18, 2018
Appeal at 1, ECF No. 130-12). Canty appealed the dismissal to the Office of
Commissioner, which returned the ARP to NBCI for it to be reconsidered. (Id. at 2–6).

On February 28, 2018, Canty wrote a letter to Defendant Baer regarding safety
concerns with his housing and lack of response from administration. (Canty Aff. ¶ 5). Canty
also complained that Defendants McKenzie and Adkins had failed to address his concerns,
and he wrote informal complaints about the same to Defendant William Bohrer, the Chief
of NBCI Security, and Assistant Warden Jeffrey Nines. (Id.). On March 1, 2018, Canty
filed another ARP regarding his cell assignment and recreation schedule. (Mar. 1, 2018

ARP at 1, ECF No. 130-13). On March 6, 2018, Canty spoke with Adkins, who told him
to “stop asking to move and to stop writing grievances, or [] Baer would place [him] in
disciplinary segregation.” (Canty Aff. ¶ 6). On March 5, 2018, Canty wrote another
informal complaint about his placement and recreation schedule to Nines, but Canty did
not receive a response. (Id. ¶ 5). The next day, Canty again spoke to Adkins about switching

cells, but Adkins did nothing. (Id. ¶ 6).
On March 12, 2018, Canty and Bryant got into a violent fight. (Canty Aff. ¶ 7).
After the fight, Canty tried to talk to Adkins and Baer again about his safety concerns. (Id.).
They allegedly told him that they did not care about his problems, he should stop filing
grievances, he would not be moved, and he needed to fight back. (Id.). Canty told the

officers that he would report them, and Baer responded that they “could come up with a
basis to write [Canty] up.” (Id.). Soon after, Canty filed another ARP with the
Commissioner, this time complaining about Adkin and Baer’s attempts to stymy his
complaints. (Id. ¶ 8).
On March 13, 2018, Baer, Whiteman, McKenzie, and Adkins told Canty that if he
moved out of his cell or continued to file grievances, he would be sent to disciplinary

segregation. (Id. ¶ 9). Later that day, Canty wrote another letter to the Commissioner,
updating him on his latest encounter with Baer, Whiteman, McKenzie, and Adkins. (Id.).
On March 31, 2018, McKenzie issued a Notice of Inmate Rule Violation alleging that
Canty had entered an “out of bounds” area on his floor. (Id.; Mar. 31, 2018 Inmate Rule
Violation at 1, ECF No. 130-6). Canty alleges that McKenzie’s allegation was “not in good
faith,” made to punish him for his complaints, and “an act of retaliation for [his] exercise

of [his] First Amendment rights.” (Canty Aff. ¶ 9). As a result of McKenzie’s Notice, Canty
was restricted to his cell for thirty days. (Id.).
On the morning of April 24, 2018, Canty attempted to give McKenzie an ARP
detailing Defendants’ retaliation for his previous complaints, but McKenzie “refused to
accept [the] ARP and complained that [Canty] continued to write complaints.” (Id. ¶ 10).

Shortly thereafter, McKenzie, Payne, and Yutzy entered Canty’s cell and told him to “cuff
up.” (Id. ¶ 11). Payne and McKenzie then searched Canty’s cell, mishandling and
destroying Canty’s personal property. (Id.). They poured shampoo on Canty’s books and
intentionally broke Canty’s MP3 player. (Id.). When Canty complained that they were
ruining his things, Payne told him to “shut up” and declared that it was “[their] turn”

because Canty “ke[pt] writing grievances on [his] buddies Adkins and McKenzie.” (Id.).
Canty alleges that they conducted this search in retaliation for his complaints. (Id.).
After the cell search concluded, Yutzy escorted Canty to a holding cell. (Id. ¶ 12).
Yutzy told Canty that Payne and McKenzie had accused Canty of threatening them. (Id.).
Canty contends that this allegation is false. (Id.). While Canty was waiting to be escorted
to disciplinary segregation, he saw Whiteman and asked why the officers had falsely

accused him. (Id.). Whiteman replied, as he had previously told Canty, that if Canty
continued to submit grievances, he would pay for it and be placed in disciplinary
segregation so that he could not file additional complains. (Id.).
After Canty was moved to disciplinary segregation, he received a partial copy of a
second Notice of Inmate Rule Violation, which alleged Canty had threatened Payne and
Adkins. (Id. ¶ 14; see Inmate Hr’g R. at 1–2, ECF No. 130-16). Canty alleges this Notice

was done in retaliation to punish him for exercising his First Amendment rights. (Canty
Aff. ¶ 14). Canty was found guilty of the Notice’s allegations and was sentenced to 200
days in disciplinary segregation. (Id. at 15). Canty requested a witness, Jibril Shaheed, at
the hearing, but no officers came to escort Shaheed to the hearing. (Id. at 14). Further,
Canty was asked to step out of the room while surveillance footage was reviewed, and

officers later claimed that the footage was obscured. (Id.). Canty doubts that the footage
was obscured given the number of cameras on the tier. (Id.).
Because Canty was placed in disciplinary segregation, he was not able to write
complaints about McKenzie, Payne, and Yutzy’s retaliatory search of his cell. (Id. ¶ 16).
2. Retaliation after Canty Filed Suit

On July 2, 2019, when Canty retired from disciplinary segregation, Adkins referred
to him as a “lawsuit rat” and said “[t]his is going to be fun.” (Id. ¶ 18). Canty alleges that
on March 9, 2020, after he filed this lawsuit, Whiteman approached him regarding an ARP
he had filed concerning his limited access to the prison’s law library. (Id.). Whiteman asked
him to “sign off on” or withdraw the ARP, but Canty refused. (Id.). Canty alleges that
Whiteman became angry and said “something to the effect of, ‘[t]hink about what you’re

doing, remember this works both ways, and you know what’s going to happen. I always
get the last laugh, the same as the last time up you kept writing us up.’” (Id.).
On February 1, 2021, Canty filed an ARP alleging he had been assaulted by an
officer. (Feb. 1, 2021 ARP at 1, ECF No. 130-23; Canty Aff. ¶ 19). Four days later, on
February 5, 2021, Whiteman and other unidentified officers approached Canty and made
comments to the effect of, “[l]et’s show Canty black lives don’t matter, plus this pussy

likes filing lawsuits, thinks he’s doing something, damn, I thought the street code was you
a snitch, n****r, you tell.” (Canty Aff. ¶ 19). When Canty threatened to report the officers
for their behavior, Whiteman said something to the effect of, “shut your fucking mouth
before I put you in the holding cell and find some contraband if you don’t shut up.” (Id.).
Whiteman searched Canty’s cell, poured out bottles of lotion and body wash, threw

Canty’s new MP3 player on the floor, and damaged two of Canty’s books. (Id.). Whiteman
remarked that “if [Canty] were to file any further complaints, Defendant Whiteman would
place [him] under another 200 days of disciplinary segregation.” (Id.).
In June 2021, after Canty spoke with his counsel regarding the case, officers placed
Canty in an isolation cell for five days. (Id. ¶ 20). On December 15, 2021, Canty was

involved in a violent altercation in which another inmate stabbed him. (Id. ¶ 21). Canty
thought “the violation against [him] would be dismissed, as [he] had been stabbed by
another inmate,” but instead, he was placed in disciplinary segregation pending charges,
and some of his property was lost or stolen when he was moved to disciplinary segregation.
(Id.). He filed an ARP about the lost property. (Id.). Additionally, Canty remained in
disciplinary segregation through the holidays and Officer Murray, a non-Defendant officer,

informed him that he was “not going nowhere” because he “told on Whiteman.” (Id.).
When Canty later returned to the general population on December 31, 2021, he learned
from other inmates that “Whiteman had spread a rumor that Canty was ‘snitching’ on
fellow inmates” in an apparent effort to jeopardize Canty’s safety. (Id. ¶ 22). On April 29,
2022, Canty heard from two inmates that Adkins threatened to “beat the shit” out of him.
(Id. ¶ 23).

B. Procedural History
On May 9, 2018, Canty filed his original pro se Complaint naming ten defendants.
(ECF No. 1). Canty filed a Supplemental Complaint on August 16, 2018, naming three
additional defendants: Payne, Yutzy, and Officer Michael Vanmeter. (ECF No. 7). On
March 14, 2019, the original ten defendants filed a Motion to Dismiss or, in the Alternative,

Motion for Summary Judgment. (ECF No. 23). On March 31, 2020, the Court denied the
Motion, finding that it was not ripe for resolution because Payne, Yutzy, and Vanmeter had
not been served with the Complaint. (ECF No. 41). On August 19, 2020, Payne, Yutzy,
and Vanmeter sought to join the previously filed dispositive Motion. (ECF No. 46). Two
days later, the original defendants filed a Renewed Motion to Dismiss or, in the Alternative,

Motion for Summary Judgment. (ECF No. 47). On September 8, 2020, the Court granted
Payne, Yutzy, and Vanmeter’s Motion to Join Defendants’ Motion to Dismiss, or in the
Alternative Motion for Summary Judgment. (ECF No. 49).
On November 23, 2020, this Court issued a Memorandum Opinion and Order
granting in part and denying in part Defendants’ renewed Motion to Dismiss or, in the

Alternative, Motion for Summary Judgment. (ECF Nos. 54, 55). The Court entered
judgment in favor of Defendants Corcoran, Nines, Bohrer, Johnson, Forney, Yutzy, Payne,
and Vanmeter. (Order ¶¶ 2–3, ECF No. 55). The Court denied the Motion as to Canty’s
First Amendment retaliation and civil conspiracy claims against Defendants Baer,
Whiteman, McKenzie, and Adkins. (Id. ¶ 4). The Court also granted Canty’s Motion for
Appointment of Counsel. (Id. ¶ 9).

On April 14, 2021, Canty, through counsel, filed a Consent Motion for Leave to File
Amended Complaint that the Court granted that same day. (ECF Nos. 71, 72). On June 29,
2021, Canty filed an Amended Complaint in which he, inter alia, asserts claims against
Payne and Yutzy, in whose favor the Court previously entered judgment. (Am. Compl. ¶¶
6–7, ECF No. 77). The two-count Amended Complaint asserts the following claims against

Defendants Whiteman, Baer, McKenzie, Adkins, Payne, and Yutzy: First Amendment
retaliation under 42 U.S.C. § 1983 (Count I); and civil conspiracy under 42 U.S.C. § 1983
(Count II). (Id. ¶¶ 58–68). Canty seeks declaratory relief, compensatory and punitive
damages, costs, and attorneys’ fees. (Id. at 15–16).
On July 29, 2021, Payne and Yutzy filed a Motion to Dismiss, or in the Alternative,

Motion for Summary Judgment. (ECF No. 78). The Court denied their Motion on March
28, 2022. (ECF No. 100). After engaging in discovery, Defendants filed the instant Motion
for Summary Judgment on June 5, 2023. (ECF No. 123). On August 9, 2023, Canty filed
an Opposition, (ECF No. 130), and Defendants filed a Reply on September 22, 2023, (ECF
No. 135). Canty also filed a Motion for Leave to File Surreply on October 9, 2023. (ECF
No. 137). Defendants filed an Opposition on October 13, 2023, (ECF No. 138), and Canty

filed a Reply on October 27, 2023, (ECF No. 139).
II. DISCUSSION
A. Standard of Review
In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Summary judgment is proper when the movant demonstrates, through “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,
or other materials,” 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), (c)(1)(A). Significantly, a
party must be able to present the materials it cites in “a form that would be admissible in
evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be
made on personal knowledge” and “set out facts that would be admissible in evidence,”
Fed.R.Civ.P. 56(c)(4).

Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing there is genuine dispute of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
The nonmovant cannot create a genuine dispute of material fact “through mere speculation
or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 140
(4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001) (“The existence of an alleged factual dispute between the parties will
not defeat a properly supported motion for summary judgment, unless the disputed fact is
one that might affect the outcome of the litigation.”). Whether a fact is considered to be
“material” is determined by the substantive law. Hooven-Lewis v. Caldera, 249 F.3d 259,

265 (4th Cir. 2001). A “genuine” dispute concerning a “material” fact arises when the
evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party’s
favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make a sufficient showing
on an essential element of his case where he has the burden of proof, “there can be ‘no
genuine [dispute] as to any material fact,’ since a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (quoting Fed.R.Civ.P.
56(c)).
B. Analysis.
1. Motion for Leave to File Surreply

As a preliminary matter, the Court will address Canty’s Motion for Leave to File
Surreply. (ECF No. 137). Unless otherwise ordered by the Court, a party may not file a
surreply. Local Rule 105.2(a). Leave to file a surreply may be granted when the movant
otherwise would be unable to contest matters presented in the opposing party’s reply.
Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md.2003), aff’d 85 Fed.Appx. 960 (4th
Cir. 2004). Canty moves for leave to file a short surreply to contest two arguments that

Defendants raised for the first time in their Reply:
(i) that the Court may not consider facts that post-date the
Complaint but were disclosed in discovery and are part of the
[alleged] ongoing conspiracy . . . and (ii) that to prevail on his
retaliation claim, Canty must establish that the adverse actions
he suffered presented an atypical, significant hardship under []
Sandin v. Conner, 515 U.S. 472 (1995), and its progeny.2

(Mot. Leave File Surreply at 1, ECF No. 137). Defendants contend that the first argument
was not “new,” because they offered it in response to Canty’s inclusion of facts outside the
Amended Complaint in his Opposition.3 (See Opp’n Mot. Leave File Surreply at 7–8, ECF
No. 138). Thus, according to Defendants, Canty could have anticipated that Defendants
would object to the Court’s consideration of these facts. (See id.). In support of this
argument, Defendants cite Khoury, where this Court declined to allow a surreply related to
the sufficiency of plaintiff’s Rule 56(f) affidavit. 268 F.Supp.2d at 606. In her affidavit,
the plaintiff sought time for discovery before the Court considered the motion for summary
judgment. Id. The Court found that the plaintiff had first introduced the affidavit when she

2 Sandin concerns a due process claim, not a retaliation claim, and thus, its standard
is inapplicable to the instant case. See Sandin, 515 U.S. at 472.
3 Defendants’ only explanation as to why Canty should not be permitted to file a
surreply in response to their second argument concerning Sandin is that Canty’s surreply
is futile, and Defendants are entitled to summary judgment. (Opp’n Mot. Leave File
Surreply at 7–8, ECF No. 138). Thus, Defendants seemingly concede that their argument
was raised for the first time in their Reply, and that Canty is entitled to a surreply on this
point.
attached it to her opposition and had the opportunity to support it with facts in her
opposition brief. Id.

Khoury is distinguishable from the instant case, and the Court will grant Canty’s
Motion for Leave to File Surreply. In Khoury, the plaintiff raised the issue of whether
discovery was necessary in her Rule 56(f) affidavit, and she should have anticipated an
opposing argument along those same lines. See id. Here, Canty simply included facts
disclosed in discovery in his Opposition. While Canty might have anticipated an argument
related to the sufficiency of that evidence to establish a genuine dispute of material fact,

Canty could not have known that Defendants would argue the Court can only consider the
Amended Complaint’s facts in its analysis.4 Accordingly, because the two arguments set
forth above were raised for the first time in Defendants’ Reply and not in response to
Canty’s own arguments, the Court will exercise its discretion to grant Canty’s Motion for
Leave to File Surreply. See EEOC v. Freeman, 961 F.Supp.2d 783, 801 (D.Md. 2013),

aff’d in part sub nom., E.E.O.C. v. Freeman, 778 F.3d 463 (4th Cir. 2015) (“Allowing a
party to file a sur-reply is within the Court’s discretion.”).

4 The Court agrees with Canty that on a motion for summary judgment, it is proper
to consider facts beyond those in the original pleadings. Richmond, Fredericksburg &
Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (“The district court
should apply the standard applicable to a motion for summary judgment, under which the
nonmoving party must set forth specific facts beyond the pleadings to show that a genuine
issue of material fact exists.”); Fed.R.Civ.P. 56(c)(1)(A) (listing forms of evidence a party
may submit in support of a motion for summary judgment). Accordingly, the Court will
consider the facts in the record, not merely those in the Amended Complaint.
2. Exhaustion of Remedies
Before turning to the merits of Canty’s case, the Court will address Defendants’

argument that Canty’s claims are subject to dismissal under the Prisoner Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e, because they have not been properly presented through
the administrative remedy procedure. (Mot. Summ. J. [“Mot.”] at 23–24, ECF No. 123).
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 also Chase v. Peay, 286 F.Supp.2d
523, 528 (D.Md. 2003), aff’d, 98 F.App’x 253 (4th Cir. 2004). Courts have held that
“prison conditions” includes allegations of retaliation, see Lawrence v. Goord, 304 F.3d
198 (2d Cir. 2002); Miller v. Fed. Bureau of Prisons, 703 F.Supp.2d 8 (D.D.C. 2010)), as
well as allegations of § 1983 conspiracy (Soto v. Belcher, 339 F.Supp.2d. 592 (S.D.N.Y.
2004)). Thus, the PLRA’s exhaustion requirements apply to Canty’s claims.
Notably, administrative exhaustion under § 1997e(a) is not a jurisdictional
requirement and does not impose a heightened pleading standard 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, 216 (2007); see also Anderson
v. XYZ Corr. Health Services, Inc., 407 F.2d 674, 682 (4th Cir. 2005). A claim that has
not been exhausted may not be considered by this Court. See Jones, 549 U.S. at 220. In
other words, exhaustion is mandatory, and a court usually may not excuse an inmate’s
failure to exhaust. See Ross v. Blake, 578 U.S. 632, 639 (2016).

Ordinarily, an inmate 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
also Langford v. Couch, 50 F.Supp.2d 544, 548 (E.D.Va. 1999) (“The second 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 90 (quoting Pozo v. McCaughtry, 286 F.3d
1022, 1024 (7th Cir. 2002)). 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). Inmates
are not required to exhaust their administrative remedies when that process has been made
unavailable to them.
There is an established administrative remedy procedure process that applies to all
Maryland prisons, which consists of multiple steps. See COMAR 12.02.28.01, et

seq. First, a prisoner is required to file his 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 Md. Code Ann., Corr. Servs. [“C.S.”] § 1-101(k)
“as the administrator, director, warden, superintendent, sheriff, or other individual
responsible for the management of a correctional facility.” The ARP request must be filed

within thirty days of the date on which the incident occurred, or within thirty 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).
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 thirty days to file an appeal to the

Commissioner of Corrections. COMAR 12.02.28.14(B)(5). If the Commissioner of
Corrections denies an appeal, the prisoner has thirty days to file a grievance with the Inmate
Grievance Office (“IGO”). 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). Thus, Canty’s failure to appeal his ARPs to the IGO is a

failure to properly exhaust administrative remedies.
An inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a). In Ross
v. Blake, the Supreme Court rejected a “freewheeling approach to exhaustion as
inconsistent with the PLRA,” rejecting a “special circumstances” exception to the
requirement. 578 U.S. 632, 635–36 (2016). But the Court reiterated that “[a] prisoner need
not exhaust remedies if they are not ‘available.’” Id. at 1855. An administrative remedy is

available if it is “‘capable of use’ to obtain ‘some relief for the action complained
of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)); see also Moore,
517 F.3d at 725 (noting an administrative remedy is not “available if a prisoner, through
no fault of his own, was prevented from availing himself of it”). Thus, an inmate must
complete the prison's internal appeals process, if possible, before filing suit. See Chase,

286 F.Supp.2d at 529–30. Exhaustion is required before filing suits targeting
unconstitutional conditions as well as those concerning unconstitutional
conduct. See Porter, 534 U.S. at 528. Exhaustion is also required even though the relief
sought is not attainable through resort to the administrative remedy
procedure. See Booth, 532 U.S. at 741 (requiring exhaustion even where prisoner only

sought money damages, which he could not receive through the prison grievance process).
The Ross Court outlined three circumstances when an administrative remedy is
unavailable and an inmate’s duty to exhaust available remedies “does not come into
play.” 578 U.S. at 643. First, “an administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved

inmates.” Id. Second, “an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. In this situation, some mechanism exists to provide
relief, but no ordinary prisoner can discern or navigate it.” Id. The third circumstance arises
when “prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id. at 1860.
Here, Canty filed several ARPs and appeals related to his retaliation and conspiracy

claims, (see, e.g., Mar. 2, 2018 ARP at 1, ECF No. 130-2; May 10, 2018 Appeal at 1, ECF
No. 130-17; Sept. 30, 2020 ARP at 1, ECF No. 130-19), but the record does not show that
he appealed his complaints to the highest possible level. Canty argues that the first and
third circumstances excuse his failure to exhaust his remedies. (See Opp’n Mot. Summ. J.
[“Opp’n”] at 20–21, ECF No. 130). He contends that Defendants refused to accept an ARP,

failed to process other ARPs, and threatened and intimidated Canty to prevent him from
filing complaints. (Canty Aff. ¶¶ 5–22). Defendants deny these allegations. (See, e.g., Baer
Decl. ¶¶ 5–27, ECF No. 133-5). As a result, there exists a genuine dispute of material fact
with regard to the availability of the administrative remedy process for Canty's claims. See
Von Poole v. NBCI, No. GLR-17-1594, 2019 WL 4805681, at *9 (D.Md. Sept. 30, 2019)

(finding a genuine dispute of material fact as to whether the administrative process was
available when plaintiff alleged threats from defendant officers concerning his ARPs and
that officers failed to process his ARPs). Accordingly, the Court will deny Defendants’
Motion to the extent it seeks to dismiss Canty’s claims on exhaustion grounds.
3. First Amendment Retaliation
Defendants allege that Canty cannot meet his evidentiary burden regarding the

retaliation claim. (Mot. at 13–14). “The First Amendment right to free speech includes not
only the affirmative right to speak, but also the right to be free from retaliation by a public
official for the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685
(4th Cir. 2000). To state a claim of retaliation for exercising First Amendment rights, Canty
must show that: (1) he engaged in protected First Amendment activity; (2) Defendants took
some action that adversely affected the First Amendment rights; and (3) there was a causal

relationship between the protected activity and the Defendant’s conduct. See Constantine
v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005).
While “the constitutional rights that prisoners possess are more limited in scope than
the constitutional rights held by individuals in society at large,” “incarceration does not
divest prisoners of all constitutional protections.” Shaw v. Murphy, 532 U.S. 223, 228–29

(2001). “[A] prison inmate retains those First Amendment rights that are not inconsistent
with his status as a prisoner or with the legitimate penological objectives of the corrections
system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Specifically, the Fourth Circuit has
held that an inmate’s “right to file a prison grievance free from retaliation” is protected by
the First Amendment. Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 545 (4th Cir. 2017).

Canty can establish retaliatory conduct if the defendant took an action that “would
likely deter ‘a person of ordinary firmness’ from the exercise of First Amendment rights.”
Martin v. Duffy, 858 F.3d 239, 249–50 (4th Cir. 2017) (quoting Washington v. Cnty of
Rockland, 373 F.3d 310, 320 (2d Cir. 2004)). Canty must also demonstrate a “causal
connection” between his First Amendment activity and the alleged retaliatory action. See
Constantine, 411 F.3d at 501. The showing can be based on circumstantial evidence, such

as evidence that the Defendants were aware of the First Amendment activity and the
retaliatory act was temporally proximate to that activity. Id.
Defendants concede that Canty engaged in protected First Amendment activity,
(Mot. at 19), but they argue that he cannot satisfy the second or third elements of his
retaliation claim for the following reasons: (1) as to Baer in particular, there is no evidence
to show that he took action that adversely affected Canty’s First Amendment rights, (id. at

8, 9); (2) the inmate rule violation that McKenzie filed was legitimate and not retaliatory,
(id. at 13–15); (3) Defendants did not destroy Canty’s property while searching his cell,
(id. at 16–17); and (4) Defendants did not retaliate due to Canty’s filing of the instant suit
because they had not yet learned of the suit at the time that the allegedly retaliatory rule
violation occurred, (id. at 17). The Court will address these arguments in turn.

First, with regards to Baer, Canty avers that Baer: threatened him with punishment
if he continued to write grievances, (Canty Aff. ¶ 6); told Canty that he and Adkins did not
care about Canty’s problems and that he would not be moved, (id. ¶ 7), and if he was
moved, it would be to disciplinary segregation (id. ¶ 9); and told Canty that officers would
come up with a reason to write him up if he continued to complain, (id. ¶ 7). Baer denies

that he said any of this to Canty. (Baer Decl. ¶¶ 5–27). Accordingly, there is a genuine
dispute of material fact as to whether Baer took action to adversely affect Canty’s First
Amendment rights, and the Court will deny Defendants’ Motion to the extent it seeks
summary judgment in Baer’s favor on the retaliation claim.
Second, Defendants argue that the inmate rule violation issued by McKenzie in
March 2018 could not be considered retaliatory because McKenzie had a legitimate basis

for issuing the violation. They cite Ashann-Ra v. Com. of Va., 112 F.Supp.2d 559, 574
(W.D.Va. 2000), where the United States District Court for the Western District of Virginia
granted summary judgment to defendants on a retaliation claim because the plaintiff failed
to show that he was placed in segregation because of his exercise of his First Amendment
rights. Specifically, the plaintiff had been told to shave in accordance with prison rules,
and he informed officers that shaving caused skin issues for him, and that he had filed a

lawsuit to have the rule declared unconstitutional. Id. at 573. Shortly thereafter, officers
placed the plaintiff in segregation for failing to comply with the rule. Id. The court found
that the plaintiff failed to demonstrate a causal connection between his lawsuit and his
placement in segregation, and that officers had a legitimate reason to punish him. Id. at
574.

There are two key differences between the instant case and Ashann-Ra. First, in
Ashann-Ra, the situation set forth above was the only allegation of retaliation, whereas
here, Canty alleges a pattern of threats and retaliatory conduct beyond McKenzie’s 2018
rule violation. Second, Defendants expressly threatened Canty with write-ups and
segregation prior to McKenzie’s act, and thus, a reasonable jury could conclude that

regardless of whether there may have been a real rule violation, McKenzie wrote him up
for retaliatory reasons. Consequently, Defendants are not entitled to summary judgment on
this basis.
As to Defendants’ final arguments, the Court finds that there are genuine issues of
material fact regarding whether Defendants damaged Canty’s property and whether they

retaliated against him for filing grievances and the instant lawsuit. Canty avers that
Defendants searched his cell and damaged his property, and that they made threats and
placed him disciplinary segregation as a result of his many grievances and filing the instant
suit. Defendants deny this and state that they were not aware of this lawsuit until after some
of the allegedly retaliatory acts had already occurred. (See Mot. at 17). These different
accounts present a factual dispute for a jury. The Court also notes that even if Defendants

learned of this suit after some retaliatory conduct had already occurred, Canty also
contends that they retaliated against him for filing ARPs as early as 2018, not just for filing
the Complaint in this case. Thus, a reasonable jury could conclude that Defendants
retaliated against Canty for exercising his First Amendment rights.
4. Conspiracy

“To establish a civil conspiracy under § 1983, the plaintiff must present evidence
that the defendants acted jointly in concert and that some overt act was done in furtherance
of the conspiracy, which resulted in deprivation of a constitutional right.” McDaniel v.
Arnold, 898 F.Supp.2d 809, 846–47 (D.Md. 2012) (cleaned up) (quoting Hinkle v. City of
Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996)). Towards this end, there must be a showing

that the defendants entered into some sort of an agreement, whether positive or tacit, to
deprive the plaintiff of a constitutional right. See id. at 847; see also Simmons v. Poe, 47
F.3d 1370, 1377 (4th Cir. 1995) (noting that a conspiracy claimant “must show an
agreement or a ‘meeting of the minds' by defendants to violate the claimant's constitutional
rights.”). Without a common plan between alleged co-conspirators to deprive a plaintiff of
a constitutional right, the independent acts of two or more wrongdoers cannot amount to a

conspiracy. See Murdaugh Volkswagen, Inc. v. First Nat’l Bank of S.C., 639 F.2d 1073,
1075–76 (4th Cir. 1981). Thus, Canty must allege facts establishing that Defendants shared
a “unity of purpose or a common design” to injure him. Am. Tobacco Co. v. United States,
328 U.S. 781, 810 (1946).
Defendants argue that they are entitled to summary judgment on the civil conspiracy
claim because there was no agreement—only “parallel performance of their official duties

as correctional officers.” (Mot. at 23). The Court disagrees. Canty has provided sufficient
evidence to create a genuine dispute of material fact as to whether Defendants conspired
to violate his First Amendment rights. For example, Canty states that: Adkins and Baer
jointly told him to stop filing grievances, (Canty Aff. ¶¶ 6–8); Baer, Whiteman, McKenzie,
and Adkins said that if Canty wrote more complaints, he would be sent to disciplinary

segregation, (id. ¶ 9); McKenzie, Payne, and Yutzy searched Canty’s cell, damaged his
property, and Payne told him it was “[their] turn” because Canty had written grievances
about his “buddies” Adkins and McKenzie, (id. ¶¶ 11, 16); in response to Canty asking
why he had been accused of threating Payne and Adkins, Whiteman told him that he would
be placed in disciplinary segregation if he filed more grievances, (id. ¶ 12). Construing

these facts in the light most favorable to Canty, the Court finds that a reasonable jury could
conclude Defendants conspired against him to violate his First Amendment rights.
Defendants dispute Canty’s account, but their alternate version of facts presents a
credibility issue for a jury. Accordingly, Defendants are not entitled to summary judgment
on Canty’s civil conspiracy claim.

5. Eleventh Amendment Immunity and Qualified Immunity
Next, Defendants allege that they are immune from suit in their official capacities
under the Eleventh Amendment, and that Baer and Adkins are entitled to qualified
immunity in their individual capacities. (Mot. at 7, 28). First, as to the Eleventh
Amendment argument, it is true that the Eleventh Amendment generally bars suits against
state officials in their official capacities under 28 U.S.C. § 1983. See Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office. As
such, it is no different from a suit against the State itself.”). However, Canty sued
Defendants in their individual capacities only, (Opp’n at 13), and therefore, the immunity
principles in Will do not apply here.

Second, under the doctrine of qualified immunity, public officials who engage in
unconstitutional conduct “may nevertheless be shielded from liability for civil damages if
their actions did not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation
and internal quotation marks omitted). An officer violates a “clearly established” right

when “at the time of the officer’s conduct, the law was sufficiently clear that every
reasonable official would understand that what he is doing is unlawful.” District of
Columbia v. Wesby, 583 U.S. 48, 63 (2018) (internal quotation marks and citations
omitted). “The burden of establishing a qualified immunity defense rests on the official
asserting the defense.” Wingate v. Fulford, 987 F.3d 299, 302 (4th Cir. 2021), as amended
(Feb. 5, 2021).

Defendants argue that Baer and Adkins did not “participate[] in a search of
Plaintiff’s cell, the destruction of Plaintiff’s personal property, or the filing of an allegedly
retaliatory [rule violations] against Canty.” (Mot. at 30). Therefore, according to
Defendants, Baer and Adkins did not take any action that violates a clearly established
statutory or constitutional right. (Id.). The Court disagrees. Canty states that: Baer and
Adkins told him to stop writing grievances or they would put in him disciplinary

segregation, (Canty Aff. ¶¶ 6, 9); they told him to stop filing grievances because he would
not be moved to a new cell, and he should fight back against his aggressors (id. ¶ 7); and
Baer told Canty that “write-ups go both ways” and that officers would find a basis to write
him up if he continued to complain, (id. ¶ 7). As the Court explained in its March 28, 2022
Memorandum Opinion, an inmate’s “right to file a prison grievance free from retaliation”

is protected by the First Amendment. (Nov. 23, 2020 Mem. Op. at 43–44, ECF No. 54
(citing Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 545 (4th Cir. 2017))). This right was
clearly established in 2018 when the first allegedly unconstitutional act occurred. (Nov. 23,
2020 Mem. Op. at 44). Thus, the Court finds that Adkins and Baer are not entitled to
qualified immunity because Canty has adequately shown that their conduct violated his

First Amendment rights.
III. CONCLUSION
For the foregoing reasons, the Court will deny Defendants’ Motion for Summary

Judgment (ECF No. 123) and grant Canty’s Motion for Leave to File Surreply (ECF No.
137). A separate Order follows.
Entered this 7th day of December, 2023.

/s/ .
George L. Russell, III
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10209434. Public record. Not legal advice.