Ogueri v. Kinney

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRIGHT OGUERI, *

Plaintiff, *

v. * Civil Action No. PX-22-0741

JEREMIAH KINNEY, et al., *

Defendants. *

***

MEMORANDUM OPINION

Bright Ogueri, an inmate at Roxbury Correctional Institution (RCI), has filed suit pursuant

to 42 U.S.C. § 1983, alleging officers at Maryland Reception, Diagnostic, and Classification

Center (MRDCC) used excessive force against him in violation of his Eighth Amendment right to

be free from cruel and unusual punishment. ECF No. 1. As Defendants, Ogueri names MRDCC

Sergeants Kenny, Mack and Cockrell; and Lieutenants Reid and Boddie. See ECF No. 3 at 2.

Ogueri seeks 20 million dollars in damages. ECF No. 1 at 7.

Defendants now move to dismiss the Complaint, arguing that Ogueri failed to exhaust his

administrative remedies prior to filing suit. ECF No. 42-1 at 11. Alternatively, Defendants

contend that they are immune from suit in federal court pursuant to the Eleventh Amendment to

the United States Constitution; that no facts support that they used excessive force; and they are

entitled to qualified immunity. See ECF No. 42-1. The Court informed Ogueri of his right to

oppose the motion and warned him that failure to respond could result in the Court deciding the

motion adversely to him. See Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). ECF No. 43.

Ogueri timely responded. ECF No. 44. Ogueri also moves to supplement the Complaint adding

factual allegations regarding a separate incident. ECF No. 7.

The matter is now ripe for review, with no need for a hearing. See Loc. R. 105.6. For the

following reasons, Defendants’ Motion to Dismiss is granted and Ogueri’s motion is denied.

I. Background

The Court construes the Complaint facts as true and most favorably to Ogueri. On March

14, 2022, Ogueri was placed in a cell with mold. ECF No. 1 at 2. After “pleading for cleaning

supplies to no avail,” Ogueri became “frustrated” and “busted the fire sprinkler.” Id. One of the

officers, who was “enraged” by Ogueri’s behavior, sprayed mace into the cell. Id. at 3. Ogueri

then placed his mattress in front of the slot in his door “to prevent being sprayed again.” Id. When

the water stopped, Defendants Kinney, Reid, Boddie, and Mack approached the cell “armed with

sticks and foggers.” Id. The Defendants ordered Ogueri to turn around so he could be handcuffed.

Ogueri complied, but nonetheless, Defendant Boddie pepper sprayed him, Defendant Kinney

punched him, and the other Defendants “jumped” him. Id.

Ogueri passed “out cold” and was dragged from the tier. Id. Once in the elevator, the

Defendants beat him “mercilessly.” Id. He was then taken to a holding cell where the Defendants

continued to beat him. Id. at 3-4. During the beating, he defecated on himself. For hours,

Defendants left Ogueri in his own feces, nor did they give him any medical care or the opportunity

to shower. Id. at 4. The following day, a physician examined Ogueri and noted head trauma and

a “busted and bleeding” ear drum. Id. at 5. A few days later, while Ogueri was readying for

transport to the University of Maryland for treatment, Defendant Mack made a threatening hand

gesture towards Ogueri. Id.

Within days of the incident, on March 24, 2022, Ogueri filed suit in this Court. ECF No.

1 at 7. Shortly thereafter, on March 27, 2022, he filed a grievance with the Inmate Grievance

Office (“IGO”) of the Division of Correction (“DOC”). ECF No. 42-6 at 19-20. On April 4, 2022,

The IGO dismissed grievance because it does not maintain jurisdiction over DPDS officials or

employees. Id. at 3, 20; ECF No 44-1 at 6. Rather, the grievance should have been filed with the

Resident Grievance Office (“RGO”) for the Division of Pretrial Detention and Services (“DPDS”).

He next filed a grievance on May 29, 2022 with the RGO.1 The RGO responded on June

27, 2022, that the grievance had been received and was being investigated. ECF No. 42-6 at 15.

On July 16, 2022, Ogueri filed a second grievance that refers to previously filed grievances related

to the March 14, 2022, incident, and in it, asked why “no one responded to my grievances.” ECF

No. 44-1 at 15. For none of the initially filed grievances did Ogueri pursue any further

administrative review. ECF No. 42 at 2. Ogueri agrees that he did not appeal because he felt

“helpless and outnumbered” and “there’s only so much [he] can do.” Id.

II. Standard of Review

When reviewing a motion to dismiss brought pursuant to Federal Rule of Civil Procedure

12(b)(6), the Court accepts the well-pleaded allegations as true and most favorably to the plaintiff.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “However, conclusory statements or a

‘formulaic recitation of the elements of a cause of action will not [suffice].’” EEOC v.

Performance Food Grp., Inc., 16 F. Supp. 3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S.

at 555). “Factual allegations must be enough to raise a right to relief above a speculative level.”

Twombly, 550 U.S. at 555. “‘[N]aked assertions’ of wrongdoing necessitate some ‘factual

enhancement’ within the complaint to cross ‘the line between possibility and plausibility of

entitlement to relief.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly,

550 U.S. at 557). Although pro se pleadings are construed generously to allow for the development

of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), courts cannot ignore a

1 Although the Grievance is dated May 29, 2022, it is stamped as received by the institution on June 27, 2022. ECF

No. 44-1 at 13-14.

clear failure to allege facts setting forth a cognizable claim. See Weller v. Dep’t of Soc. Servs.,

901 F.2d 387, 391 (4th Cir. 1990). “A court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are not more than conclusions, are not entitled to the

assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 665 (2009).

“Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts

are limited to considering the sufficiency of allegations set forth in the complaint and the

‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int’l, Ltd.,

780 F.3d 597, 606 (4th Cir. 2015) (citation omitted). But, under limited circumstances, 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 Balt., 791 F.3d 500, 508 (4th Cir. 2015).

In particular, a court may properly consider documents that are “explicitly incorporated into the

complaint by reference and those attached to the complaint as exhibits.” Goines v. Valley Cmty.

Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (citation omitted). A court may also “consider a

document submitted by the movant that [is] not attached to or expressly incorporated in a

complaint, so long as the document was integral to the complaint and there is no dispute about the

document’s authenticity.” Goines, 822 F.3d at 166 (citations omitted). To be “integral,” a

document must be one “that by its ‘very existence, and not the mere information it contains, gives

rise to the legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC,

794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original). See also Fed.

R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.”)

III. Analysis

Defendants first argue that Ogueri has failed to exhaust his administrative remedies. The

Prisoner Litigation Reform Act provides that “[n]o 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). Although exhaustion under § 1997e(a) is not a jurisdictional

prerequisite, plaintiffs must nonetheless exhaust before this Court will hear the claim. See Jones

v. Bock, 549 U.S. 199, 215-16 (2007); Anderson v. XYZ Corr. Health Servs., Inc., 407 F.2d 674,

682 (4th Cir. 2005).

The exhaustion requirement “allow[s] 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.” Bock, 549 U.S. at 219. The purpose of exhaustion is to encourage pursuit of

administrative grievances through 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). Because

the Court may not consider an unexhausted claim, see Bock, 549 U.S. at 220, in this very real

sense, exhaustion prior to federal suit 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”)).

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). Importantly, however, the Court must ensure that “any defects in 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). Moreover, an

inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a); see Ross, 136 S.Ct. at 1855.

An administrative remedy is not “available” where the 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) (citing

Aquilar-Avellaveda, 478 F. 3d at 1225); Kaba, 458 F.3d at 684.

DPDS, which operates MRDCC, maintains a grievance procedure that is available to its

residents. ECF No. 42-6 at 1, 4. If a resident complaint cannot be resolved informally, the resident

may submit a “Resident Complaint Form, Step I” within 15 calendar days from the date of the

incident, or the date from which the resident first became aware of the issue, whichever is later.

Id. at 5. Thereafter, the grievance must be “investigated and responded to within 20 working days

of receipt of the grievance.” Id. Forms must be submitted to the RGO “through the section

Resident Council representative, the section officer, or by depositing the completed forms in an

institutional mailbox.” Id. at 6.

If a resident is dissatisfied with the outcome of the grievance at Step I, he must next avail

himself of Step II by submitting a completed “Motion for Grievance Committee.” Id. at 7. If the

requested relief is denied at Step II, a resident may appeal the Committee’s decision to the Warden

within three days after receiving an adverse decision, by filing a “Motion to Appeal to the Warden,

Step III” form. Id. at 8. Finally, within three working days of receiving an adverse decision by

the Warden, residents may appeal to the Commissioner, known as Step IV. Id. at 9. A resident

learns of this process upon entering the facility and is provided written instructions in the

Detainee/Inmate Handbook. Id. at 2.

Viewing the facts most favorably to Ogueri, no evidence suggests he has exhausted

administrative remedies. The incident took place on March 14, 2022, and he filed suit in this Court

ten days later, on March 24, 2022. Id. at 7. Even if Ogueri immediately filed his grievance, the

facility is afforded 20 working days to investigate and respond to the grievance. See ECF No. 42-

6 at 5. Thus, Ogueri could not have possibly exhausted remedies prior to filing suit.

Moreover, Ogueri first filed his grievance with the wrong agency. The grievance was

submitted to the IGO at DOC, not the RGO of the DPDS. ECF No. 42-6 at 18-20. Ogueri’s

subsequent filings to RGO, submitted in May and June of 2022, were well beyond the 15 days

filing window. ECF No. 42-6 at 14-15, 17.

But even if the Court gives Ogueri the benefit of the doubt and tolls the time between his

first filing and when he learned from the IGO of his initial mistake, Ogueri still missed the filing

deadline by a substantial margin. The IGO informed Ogueri on April 4, 2022, of his error. ECF

No. 42-6 at 20. Yet Ogueri did not file a grievance with the RGO until almost two months later,

on May 29, 2022. Id. at 14. Accordingly, this and all subsequent grievances about this incident

were untimely. See ECF No. 42-6 at 14-15, 17. Nor did Ogueri avail himself of any appellate

processes on any of those grievances. Id. at 2. Thus, the claims must be dismissed without

prejudice for failure to exhaust administrative remedies.

IV. Ogueri’s Motion to Supplement the Complaint

Ogueri also seeks leave to supplement this Complaint. ECF No. 7. But the allegations

included in the proposed supplement concern a new incident that took place on May 18, 2022. Id.

at 1. Although there may be some overlap regarding individuals involved in both incidents, no

Defendants are clearly named in the supplement. See generally ECF No. 7. Because the new

claim appears unrelated to the March 14, 2022, incident, the Court will deny leave to supplement

the Complaint. Fed. R. Civ. P. 15 (“On motion and reasonable notice, the court may, on just terms,

permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event

that happened after the date of the pleading to be supplemented.”). Should Ogueri wish to pursue

claims arising from the May 18, 2022, incident, he may file a separate action.

V. Conclusion

For the foregoing reasons, the Defendants’ Motion is GRANTED, and Ogueri’s motion for

leave to supplement the Complaint is DENIED. A separate Order follows.

/S/

Date: February 22, 2024

Paula Xinis

United States District Judge