IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
KHALID MAHAMMEND,
Plaintiff,
v. Civil Action No.: ELH-21-2947
GAIL WATTS, OFFICER DAVENPORT,
Defendants.
MEMORANDUM
Plaintiff Kahlid Mahammend, who is self represented, filed a civil rights complaint. ECF 1. Plaintiff also filed a motion for appointment of counsel. ECF 6. Director of the Baltimore County Detention Center Gail Watts and Officer Martinez Davenport of the Baltimore County Detention Center have moved to dismiss or, in the alternative, for summary judgment. ECF 8. The motion is supported by a memorandum (ECF 8-1) (collectively, the “Motion”) and exhibits. Plaintiff opposes the motion. ECF 11. He has also submitted exhibits. No reply was filed. Upon review of the pleadings, there is no need for a hearing. See Local Rule 105.6 (D. Md. 2021). For the reasons that follow, defendants’ Motion shall be granted and the Complaint shall be dismissed, without prejudice. I. MOTION FOR COUNSEL A federal district court judge’s power to appoint counsel under 28 U.S.C. § 1915(e)(1) is a discretionary one and may be considered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). There is no absolute right to appointment of counsel; an indigent claimant must present “exceptional circumstances.” See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional circumstances exist where a “pro se litigant has a colorable claim but lacks the capacity to present it.” See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel). Exceptional circumstances include a litigant who “is barely able to read or write,” Whisenant at 162, or clearly “has a colorable claim but lacks the capacity to present it,” Berry v. Gutierrez, 587 F. Supp. 2d
717, 723 (E.D. Va. 2008). Upon careful consideration of the motions and previous filings by plaintiff, the court finds that he has demonstrated the wherewithal either to articulate the legal and factual basis of his claims himself or secure meaningful assistance in doing so. No exceptional circumstances exist that warrant the appointment of an attorney to represent plaintiff under § 1915(e)(1). Therefore, I shall deny the motion for appointment of counsel. II. BACKGROUND At all times relevant to the Complaint, plaintiff was incarcerated at the Baltimore County Detention Center (“BCDC”).1 He alleges that on May 18, 2021, he was assaulted when Officer
Davenport hit him numerous times in the head, resulting in his head being “busted open.” ECF 1 at 2. Following the assault, plaintiff maintains he was removed from his cell and taken to segregation. Id. at 3-4. Thereafter, plaintiff received an infraction, charging him with assault on an employee. Id. at 3. Plaintiff denies assaulting Davenport but explains that he had an “argument in the past” with Davenport and that Davenport held a grudge against him. Id. According to plaintiff, the surveillance video will show that he never assaulted Davenport. ECF 1 at 3. Plaintiff suggests that the court should obtain a copy of the video footage. Id. As
1 Plaintiff is now confined to the Eastern Correctional Institution in Westover, Maryland. ECF 7. relief, plaintiff seeks monetary damages, release from BCDC, and an opportunity to press criminal charges against Davenport. Id. at 4. In support of their Motion, defendants assert the Complaint fails to state a claim on which relief may be granted; plaintiff is no longer incarcerated at BCDC, making moot his request for release from BCDC; plaintiff failed to exhaust administrative remedies prior to filing suit; plaintiff
has failed to plead facts sufficient to support a plausible claim that Davenport used excessive force against him; and they are entitled to qualified immunity. ECF 8-1 at 1. The Motion includes docket entries for plaintiff’s criminal case but is not supported by declarations from either defendant or other relevant records to support the Motion. Plaintiff’s response in opposition is little more than a request to this court not to dismiss the Complaint because plaintiff “want[s] Officer Davenport to be held accountable for his actions.” ECF 11 at 1. Plaintiff explains that he was wrongfully assaulted and found guilty of an institutional infraction, which resulted in him serving 35 days in segregation. Id. He does not address defendants’ allegation that he failed to exhaust administrative remedies, nor has he provided a
statement under oath in support of his opposition. III. STANDARD OF REVIEW
Because plaintiff is self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see Fed. R. Civ. P. 8(f) (“All pleadings shall be so construed as to do substantial justice”); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); accord Bala v. Cmm’w of Va. Dep’t of Conservation & Recreation, 532 F. App’x 332, 334 (4th Cir. 2013). But, the court must also abide by the “‘affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.’” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)). A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). Nadendla v. WakeMed, 24 F.4th 299, 304-05 (4th Cir. 2022); ACA Fin. Guar. Corp. v. City of Buena Vista, 917 F.3d 206, 211 (4th Cir. 2019); Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom. McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
KHALID MAHAMMEND,
Plaintiff,
v. Civil Action No.: ELH-21-2947
GAIL WATTS, OFFICER DAVENPORT,
Defendants.
MEMORANDUM
Plaintiff Kahlid Mahammend, who is self represented, filed a civil rights complaint. ECF 1. Plaintiff also filed a motion for appointment of counsel. ECF 6. Director of the Baltimore County Detention Center Gail Watts and Officer Martinez Davenport of the Baltimore County Detention Center have moved to dismiss or, in the alternative, for summary judgment. ECF 8. The motion is supported by a memorandum (ECF 8-1) (collectively, the “Motion”) and exhibits. Plaintiff opposes the motion. ECF 11. He has also submitted exhibits. No reply was filed. Upon review of the pleadings, there is no need for a hearing. See Local Rule 105.6 (D. Md. 2021). For the reasons that follow, defendants’ Motion shall be granted and the Complaint shall be dismissed, without prejudice. I. MOTION FOR COUNSEL A federal district court judge’s power to appoint counsel under 28 U.S.C. § 1915(e)(1) is a discretionary one and may be considered where an indigent claimant presents exceptional circumstances. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975); see also Branch v. Cole, 686 F.2d 264, 266 (5th Cir. 1982). There is no absolute right to appointment of counsel; an indigent claimant must present “exceptional circumstances.” See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). Exceptional circumstances exist where a “pro se litigant has a colorable claim but lacks the capacity to present it.” See Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated on other grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989) (holding that 28 U.S.C. § 1915 does not authorize compulsory appointment of counsel). Exceptional circumstances include a litigant who “is barely able to read or write,” Whisenant at 162, or clearly “has a colorable claim but lacks the capacity to present it,” Berry v. Gutierrez, 587 F. Supp. 2d
717, 723 (E.D. Va. 2008). Upon careful consideration of the motions and previous filings by plaintiff, the court finds that he has demonstrated the wherewithal either to articulate the legal and factual basis of his claims himself or secure meaningful assistance in doing so. No exceptional circumstances exist that warrant the appointment of an attorney to represent plaintiff under § 1915(e)(1). Therefore, I shall deny the motion for appointment of counsel. II. BACKGROUND At all times relevant to the Complaint, plaintiff was incarcerated at the Baltimore County Detention Center (“BCDC”).1 He alleges that on May 18, 2021, he was assaulted when Officer
Davenport hit him numerous times in the head, resulting in his head being “busted open.” ECF 1 at 2. Following the assault, plaintiff maintains he was removed from his cell and taken to segregation. Id. at 3-4. Thereafter, plaintiff received an infraction, charging him with assault on an employee. Id. at 3. Plaintiff denies assaulting Davenport but explains that he had an “argument in the past” with Davenport and that Davenport held a grudge against him. Id. According to plaintiff, the surveillance video will show that he never assaulted Davenport. ECF 1 at 3. Plaintiff suggests that the court should obtain a copy of the video footage. Id. As
1 Plaintiff is now confined to the Eastern Correctional Institution in Westover, Maryland. ECF 7. relief, plaintiff seeks monetary damages, release from BCDC, and an opportunity to press criminal charges against Davenport. Id. at 4. In support of their Motion, defendants assert the Complaint fails to state a claim on which relief may be granted; plaintiff is no longer incarcerated at BCDC, making moot his request for release from BCDC; plaintiff failed to exhaust administrative remedies prior to filing suit; plaintiff
has failed to plead facts sufficient to support a plausible claim that Davenport used excessive force against him; and they are entitled to qualified immunity. ECF 8-1 at 1. The Motion includes docket entries for plaintiff’s criminal case but is not supported by declarations from either defendant or other relevant records to support the Motion. Plaintiff’s response in opposition is little more than a request to this court not to dismiss the Complaint because plaintiff “want[s] Officer Davenport to be held accountable for his actions.” ECF 11 at 1. Plaintiff explains that he was wrongfully assaulted and found guilty of an institutional infraction, which resulted in him serving 35 days in segregation. Id. He does not address defendants’ allegation that he failed to exhaust administrative remedies, nor has he provided a
statement under oath in support of his opposition. III. STANDARD OF REVIEW
Because plaintiff is self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see Fed. R. Civ. P. 8(f) (“All pleadings shall be so construed as to do substantial justice”); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); accord Bala v. Cmm’w of Va. Dep’t of Conservation & Recreation, 532 F. App’x 332, 334 (4th Cir. 2013). But, the court must also abide by the “‘affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.’” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)). A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss under Rule 12(b)(6). Nadendla v. WakeMed, 24 F.4th 299, 304-05 (4th Cir. 2022); ACA Fin. Guar. Corp. v. City of Buena Vista, 917 F.3d 206, 211 (4th Cir. 2019); Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 918 F.3d 312, 317 (4th Cir. 2019); In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff’d sub nom. McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed. R. Civ. P. 8(a)(2). It provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual allegations contained in the complaint’” and must “‘draw all reasonable inferences [from those facts] in favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448, 440 (4th Cir. 2011) (citations omitted); see Retfalvi v. United States, 930 F.3d 600, 605 (4th Cir. 2019); Reyes v. Waples Mobile Home Park Ltd. P’ship, 903 F.3d 415, 423 (4th Cir. 2018); Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). However, “a court is not required to accept legal conclusions drawn from the facts.” Retfalvi, 930 F.3d at 605 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see Glassman v. Arlington Cty., 628 F.3d 140, 146 (4th Cir. 2010). To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil
actions’ . . . .” (citation omitted)); see also Nadendla, 24 F.4th at 304-05; Paradise Wire & Cable, 918 F.3d at 317; Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). To be sure, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 10 (2014) (per curiam). But, mere “‘naked assertions’ of wrongdoing” are generally insufficient to state a claim for relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted). In other words, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. “[A]n unadorned, the-defendant-unlawfully-harmed-me accusation” does not state a plausible claim of relief. Iqbal, 556 U.S. at 678. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those
allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Soc’y Without a Name v. Comm’w of Va., 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012). Courts generally do not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quotation marks and citation omitted). But, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009); see also U.S. ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 745 F.3d 131, 148
(4th Cir. 2014). However, because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear [ ] on the face of the complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis and second set of brackets in Goodman); see Dean v. Pilgrim’s Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005). In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a court ordinarily “may not consider any documents that are outside of the complaint, or not expressly incorporated therein . . ..” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013); see Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). “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) (quoting E.I. du Pont de Nemours & Co., 637 F.3d at 448). Under limited circumstances, however,
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, 791 F.3d at 508. A court may consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits.” Goines, 822 F.3d at 166; see also Fed. R. Civ. P. 10(c); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Paradise Wire & Cable, 918 F.3d at 318. Notably, “[w]hen the plaintiff attaches or incorporates a document upon which his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the contents of the document, crediting the document over conflicting allegations in the complaint is proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or
incorporates a document for purposes other than the truthfulness of the document, it is inappropriate to treat the contents of that document as true.” Goines, 822 F.3d at 167. Therefore, “before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it.” Id. (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir. 1998)). A court may also “consider a document submitted by the movant that was 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); see Six v. Generations Fed. Credit Union, 891 F.3d 508, 512 (4th Cir. 2018); Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied, __U.S.__ , 138 S. Ct. 558 (2017); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (citation omitted); Kensington Volunteer Fire Dep’t. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543
U.S. 979 (2004); Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999). 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.”). IV. DISCUSSION Defendants raise the affirmative defense that plaintiff has failed to exhaust his administrative remedies. If plaintiff’s claim has not been properly presented through the administrative remedy procedure it must be dismissed pursuant to the Prisoner Litigation Reform
Act (“PLRA”), 42 U.S.C. §1997e. The PLRA provides, in pertinent part, 42 U.S.C. § 1997e(a): 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.
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 Chase v. Peay, 286 F.Supp.2d 523, 528 (D. Md. 2003), aff’d, 98 Fed. Appx. 253 (4th Cir. 2004). As noted, a Rule 12(b)(6), “which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense.” Goodman, 494 F.3d at 464. But, an affirmative
defense can be resolved by way of a Rule 12(b)(6) motion “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint.” Id. “This principle only applies, however, if all facts necessary to the affirmative defense ‘clearly appear [ ] on the face of the complaint,’” or in other documents that are proper subjects of consideration under Rule 12(b)(6). Id. (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)) (emphasis and brackets in Goodman); see also Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005) (“While it seems unlikely that the failure to exhaust administrative remedies will often be apparent from the face of a complaint, it is certainly possible that a complaint may clearly show that an inmate has not exhausted his administrative
remedies.”). Here, defendants suggest that plaintiff’s failure to exhaust administrative remedies is readily apparent from his Complaint. ECF 8-1 at 4-5. Plaintiff filed his Complaint on a pre-printed form designed for prisoners to file complaints pursuant to 42 U.S.C. § 1983. In the section of the form that asks if plaintiff filed a grievance as required by the prison’s administrative remedy procedures, plaintiff answered “no” and said: “I’m in pretrial.” ECF 1 at 2. Plaintiff does not dispute that he failed to exhaust administrative remedies, nor does he offer a viable reason for failing to do so. See e.g., Ross v. Blake, 578 U.S. 632, 642 (2016) (administrative remedy is available if it is “capable of use to obtain some relief for the action complained of”). This court may not excuse a failure to exhaust under these circumstances. 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”)). Moreover, exhausting administrative remedies after a complaint is filed will not save a case from dismissal for failure to exhaust administrative remedies. See Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001)
(overruled on other grounds). 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); Kaufman v. Baynard, CIV.A. 1:10-0071, 2012 WL 844480 (S.D.W. Va. Feb. 3, 2012) report and recommendation adopted, CIV.A. 1:10-0071, 2012 WL 844408 (S.D.W. Va. Mar. 12, 2012); Miller v. McConneha, et al, JKB-15-1349, 2015 WL 6727547, at *3-4 (D. Md. November
11, 2015). Because plaintiff has failed to exhaust his administrative remedies, the Complaint shall be dismissed, without prejudice, by separate Order which follows. Because the Complaint is dismissed on this basis, the court need not address defendants’ other arguments.
June 16, 2022 /s/ Date Ellen L. Hollander United States District Judge