Clark-El v. The Department of Correction et al

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
HAMMEL J. CLARK-EL,
Plaintiff,
v.
CAPTAIN VENABLE, 	et al.,
Defendants.
Civil Action No. PX-24-1884
MEMORANDUM ORDER
Inmate Hammel J. Clark-El filed this civil rights action pursuant to 42 U.S.C. § 1983,
against Defendants the Department of Corrections, Deputy Secretary Annie Harvey,1 	Warden
Robert Dean, Security Chief Shenea Ross, Major M. Venable, Lt. T. Jenkins, and Sgt. W. Mooney
(collectively “Defendants”), challenging the provision of inadequate housing. 	ECF No. 1.
Defendants move to dismiss the Complaint or alternatively for summary judgment to be granted
in their favor. ECF No. 20. The matter is fully briefed and ready for resolution without a hearing.
See 	Loc. R. 105.6 (D. Md. 2025). 	For the reasons discussed below, the Court dismisses the
Complaint without prejudice for failure to exhaust administrative remedies and denies all other
pending motions as moot.
According to the Complaint, Clark-El is wheelchair bound. For most of his years at Jessup
Correctional Institution (“JCI”), Clark-El had a cell that accommodated his physical disabilities.
ECF No. 1. 	However, on November 14, 2023, the prison moved Clark-El to a different, non-
accessible cell, over his protests. 	ECF No. 1 at 5-6. 	The new cell also exposed Clark-El to the
1 	The Clerk shall amend the docket to reflect the correct name and title of Defendant Harvey.
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cold air in the winter through a broken window. 	ECF No. 1 at 7. 	When Clark-El complained
about the window, officers gave him tape and plastic bags that he could use to patch the opening.
Id. 	Additionally, the cell had physical obstructions that impeded Clark-El from moving his
wheelchair freely in the space. The cell was also dirty, with feces stuck in the screens and radiator.
ECF No. 4 at 2 -3. Defendants knew the cell was in deplorable condition and otherwise not able
to accommodate Clark-El’s wheelchair, and yet they placed him there anyway. ECF No. 1 at 9.
Clark-El filed this lawsuit on September 9, 2024, challenging the constitutionality of this
placement. ECF No. 1. At the time of filing, however, Clark-El was still pursuing administrative
relief; specifically, his administrative claim was pending a hearing before Office of Administrative
Hearings (“OAH”). 	ECF No. 20-3 ¶¶ 6-7. Thus, say Defendants, the Complaint must be dismissed
for lack of administrative exhaustion. 	ECF No. 20-1 at 9. 	See Moss v. Harwood, 19 F.4th 614,
623 n.3 (4th Cir. 2021) (collecting cases); 	Germain v. Shearin, 653 F. App’x 231, 234–35 (4th Cir.
2016) (mandatory dismissal without prejudice for failure to exhaust).
The Prison Litigation Reform Act requires 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. Although exhaustion under § 1997e is not a
jurisdictional prerequisite, a plaintiff must nonetheless exhaust such remedies before the 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). 	Because the Court may not consider an
unexhausted claim, exhaustion prior to federal suit is mandatory. 	Ross v. Blake, 578 U.S. 632, 639
(2016). A court ordinarily may not excuse a failure to exhaust. 	Id. 	(citing 	Miller v. French, 530
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U.S. 327, 337 (2000) (explaining “[t]he mandatory ‘shall’. . . normally creates an obligation
impervious to judicial discretion”)).
Exhaustion 	requires 	an 	inmate 	to 	complete 	“the 	administrative 	review 	process 	in
accordance with the applicable procedural rules, including deadlines,” 	Woodford v. Ngo, 548 U.S.
81, 88, 93 (2006). At the same time, 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). An inmate
need only exhaust “available” remedies. 42 U.S.C. § 1997e(a); 	see Ross, 578 U.S. at 636. 	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.
The Maryland Department of Public Safety and Correctional Services (“DPSCS”) provides
state inmates an “inmate complaint resolution” process. 	See generally 	Md. Code Ann. (2008 Repl.
Vol.), Corr. Servs. (“C.S.”), § 10-201 	et seq.; Md. Code Regs. (“COMAR”) 12.07.01.01B(1)
(defining ARP). The process requires that the inmate first file what is known as an “ARP” with
the facility’s “managing official” within 30 days from the date of occurrence or discovery of the
claimed violation, whichever is later. 	See 	COMAR 12.02.28.05(D)(1) & 12.02.28.09(B).
If the ARP is denied, the inmate must appeal the denial to the Commissioner of Correction.
COMAR 12.02.28.05(D)(1) & 12.02.28.14(B)(5). If the Commissioner denies the inmate relief,
the inmate next must file a grievance with the Incarcerated Individual Grievance Office (“IIGO”).
C.S. §§ 10-206(a) & 10-210; COMAR 12.02.28.18. If the grievance is determined to be “wholly
lacking in merit on its face,” the IIGO may dismiss it without a hearing. C.S. § 10-207(a) & (b)(1);
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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).
Alternatively, an administrative law judge (“ALJ”) with OAH may conduct a prompt
hearing on the grievance. 	See 	C.S. § 10-208; COMAR 12.07.01.07-.08; 	Md. Code Ann. State
Gov’t § 10-206(a)(1). 	An ALJ decision denying all relief is considered a final agency
determination. 	See 	C.S. § 10-209(b)(1)(ii); COMAR 12.07.01.10(A)(2). 	However, if the ALJ
concludes 	that 	the 	inmate’s 	complaint 	is 	meritorious, 	the 	ALJ’s 	decision 	constitutes 	a
recommendation to the Secretary of DPSCS, and the Secretary must render a final agency
determination within 15 days following receipt of the ALJ’s proposed decision. 	C.S. § 10-
209(b)(2)(c); COMAR 12.07.01.10(B). 	The final agency determination is subject to judicial
review in Maryland state court so long as the claimant has exhausted remedies. 	C.S. § 10-210.
An inmate need not, however, seek such judicial review to satisfy the PLRA’s administrative
exhaustion requirement. 	See, e.g., 	Pozo v. McCaughtry, 	286 F.3d 1022, 1024 (7th 	Cir. 2002) (“[A]
prisoner who uses all administrative options that the state offers need not also pursue judicial
review in state court”).
Pertinent here, an inmate must have fully exhausted remedies prior to filing suit; he cannot
conclude the administrative process while the civil suit is pending. 	See Neal v. Goord, 267 F.3d
116, 121-22 (2d Cir. 2001) (overruled on other grounds). As the Court in 	Freeman v. Francis, 196
F.3d 641, 645 (6th Cir. 1999) explained, “[t]he 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 also Blackburn v.
S. Carolina, No. CA 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
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(S.D.W. Va. Feb. 3, 2012) 	report and recommendation adopted, Civ. No. 1:10-0071, 2012 WL
844408 (S.D.W. Va. Mar. 12, 2012). 	This court has consistently recognized this principle. 	See
Kitchen v. Ickes, 116 F. Supp. 3d 613, 624-25 (D. Md. 2015); 	Miller v. McConneha, et al, JKB-
15-1349, 2015 WL 6727547 at *3-4 (D. Md. Nov. 11, 2015); 	Wilson v. MCTC Administration,
PWG-21-3094, 2022 WL 14849012 at *6 (D. Md. Oct. 26, 2022); 	Leupolu v. Okoluku, SAG-21-
1854, 2022 WL 4017308 at *4 (D. Md. Sept. 1, 2022); 	Hand v. Allen, JKB-20-3119, 2022 WL
137978 at *4 (D. Md. Jan. 14, 2022); 	Wooten v. Hogan, et al., CCB-20-1218, 2021 WL 416947 at
*3 (D. Md. Sept. 14, 2021); 	Ervin v. Corizon Health, et al., ELH-19-1666, 2020 WL 2490042 at
*28 (D. Md. May 13, 2020); 	Conway v. Carr, RDB-19-809, 2019 WL 4806141 at *5 (D. Md. Oct.
1, 2019); 	Shiheed v. Webb, et al., GLR-16-3166, 2019 WL 3220122 at *5 (D. Md. Jul. 16, 2019).
Accordingly, even though the administrative process may have concluded since the filing of a
federal suit, dismissal without prejudice is nonetheless compelled.
Clark-El responds that because IIGO took longer than the statutory 60-day review period,
this Court should excuse Clark-El’s failure to exhaust. 	This argument is unavailing because the
statute expressly states that where IIGO takes no action within 60 days, the grievance automatically
receives a hearing before an ALJ. Put plainly, the timing of the IIGO review accorded Clark-El
more process, not less, and so cannot be grounds to excuse administrative exhaustion. 	But Clark-
El is free to refile this civil suit provided he has fully exhausted his administrative proceedings.
Accordingly, it is on this 26th 	day of January 2026, that the United States District Court for
the District hereby ORDERS:
1. 	The Clerk SHALL AMEND the docket to reflect the names of Defendants as: the
Department of Corrections, Deputy Secretary Annie Harvey, Warden Robert Dean,
Security Chief Shenea Ross, Major M. Venable, Lt. T. Jenkins, and Sgt. W.
Mooney;
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2. 	Defendants’ Motion to Dismiss, or in the Alternative for Summary Judgment,
(ECF No. 20) IS GRANTED and the Complaint IS DISMISSED WITHOUT
PREJUDICE for failure to exhaust administrative remedies;
3. 	All remaining motions at ECF Nos. 23, 25, 26, 28, 32, 34, 35, 36, 38, and 40 are
DENIED as MOOT; the Clerk SHALL TRANSMIT a copy of this Memorandum
Order to Clark-El and counsel of record, and
4. 	CLOSE this case.
_1/26/26_____ 	________/S/__________________
Date 	Paula Xinis
United States District Judge
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