Earle v. Gunnell, 788

Decision Date01 September 1987
Docket NumberNo. 788,788
Citation78 Md.App. 648,554 A.2d 1256
PartiesSteven EARLE v. Robert Henry GUNNELL, et al. ,
CourtCourt of Special Appeals of Maryland

Richard P. Neuworth (Leslie L. Gladstone, P.A., on the brief), Baltimore, for appellant.

J. Joseph Curran, Jr., Atty. Gen. and Mark D. McCurdy, Asst. Atty. Gen., Baltimore, for appellees.

Submitted before BISHOP and POLLITT, JJ., and EDWARD O. WEANT, Jr., Associate Judge of the Court of Appeals (retired) Specially Assigned.

BISHOP, Judge.

Steven Earle (Earle), the plaintiff below, appeals from an order of the Circuit Court for Washington County (Corderman, J.) granting the appellees', the State and Robert Gunnell (Gunnell), motion to dismiss/motion for summary judgment. We discern three issues from the appellant's brief. The first two of these issues are similar to those addressed by the Court of Appeals this term in McCullough v. Wittner, 314 Md. 602, 552 A.2d 881 (1989) (holding that "a Maryland prison inmate, seeking monetary damages for personal injuries resulting from a correctional officer's alleged tortious conduct, which occurs in one of the institutions covered by the Inmate Grievance Commission statute, must file a complaint with and exhaust his remedies before the Commission prior to bringing a common law tort action."). We rephrase Earle's first two issues in the terms used by the Court of Appeals in McCullough:

I. "[W]hether a Maryland prison inmate, seeking monetary damages [from the State] for personal injuries resulting from a correctional officer's alleged tortious conduct, which occurs in one of the institutions covered by the Inmate Grievance Commission statute, must file a complaint with and exhaust his remedies before the Commission prior to bringing a ... [claim under the Maryland Tort Claims Act]." McCullough, 314 Md. at 605, 606, 552 A.2d 881.

II. "[W]hether a Maryland prison inmate, seeking monetary damages for personal injuries resulting from a correctional officer's alleged tortious conduct, which occurs in one of the institutions covered by the Inmate Grievance Commission statute, must file a complaint with and exhaust his remedies before the Commission prior to bringing ... a [cause of action under 42 U.S.C. § 1983]". McCullough, 314 Md. at 605, 606, 552 A.2d 881.

III. Whether appellant alleged facts sufficient to raise a constitutional claim against appellee, Gunnell, under 42 U.S.C. § 1983.

FACTS

On February 20, 1985, Earle, an inmate at the Maryland Correctional Institution in Hagerstown, was attacked in his cell and stabbed repeatedly by two fellow inmates. As a result of this incident, Earle filed a two-count complaint in the Circuit Court for Washington County. Count I was brought pursuant to Title 42, U.S.C. § 1983 and alleged that Gunnell, in his capacity as a State correctional officer, had violated Earle's Fourteenth Amendment Due Process Rights; Count II alleged a negligence claim against the State under the Maryland Tort Claims Act. The State and Gunnell responded to the complaint with a motion to dismiss both counts, or in the alternative, a motion for summary judgment on both counts. The circuit court granted the motion for summary judgment 1 on Count I on the ground that Earle's allegation against Gunnell stated, at most, a claim for mere negligence and, therefore, was insufficient as a matter of law to support a § 1983 action for deprivation of due process. The court also granted the motion to dismiss Count II for lack of subject matter jurisdiction due to Earle's failure to exhaust his administrative remedy provided by the Inmate Grievance Commission, Md.Ann.Code art. 41, § 4-102.1(1 ) (1986 & Supp.1988) formerly § 4-1104(1 ). 2 We first dispose of Earle's complaints regarding the court's disposition of Count II.

I.

Tort Claims Act

(Count II)

Appellant's first issue was answered by the Court of Appeals this term in the case of McCullough v. Wittner, in which the Court held that a prison inmate, who had filed a common law tort action for monetary damages for personal injuries resulting from a correctional officer's alleged tortious conduct at the Maryland House of Correction, was required to first exhaust his administrative remedies provided under § 4-102.1. Although Earl's complaint was instituted under the Maryland Tort Claims Act rather than, as in McCullough, under the common law, this difference is irrelevant to the applicability of the Court's rationale. The holding in McCullough is based on the Court's conclusion that the Inmate Grievance Commission has statutory authority to consider "any grievance or complaint [filed by an inmate] against any officials or employees of the Division of Corrections...." § 4-102.1(d), and until that administrative remedy is exhausted, "no court shall entertain ... [the] complaint...." 4-102.1(1 ). Accordingly, we hold that a Maryland prison inmate, seeking monetary damages from the State for personal injuries resulting from a correctional officer's alleged tortious conduct, which occurs in one of the institutions covered by the Inmate Grievance Commission statute, must file a complaint and exhaust his remedies before the Commission, before proceeding with a claim under the Maryland Tort Claims Act.

The disposition of appellant's first issue does not end our discussion of the circuit court's dismissal of Count II of the complaint sub judice. As the Court held in McCullough:

Under circumstances like these, where a plaintiff has both an administrative remedy and an independent judicial action, and the administrative agency's jurisdiction is deemed primary, it is appropriate for the trial court to retain, for a reasonable period of time, jurisdiction over the independent judicial action pending invocation and exhaustion of the administrative procedures.

McCullough v. Wittner, at 612, 552 A.2d 881. Accordingly, that portion of the circuit court's ruling which dismissed Count II of the complaint is reversed in order that the trial court "retain, for a reasonable period of time, jurisdiction over the independent judicial action pending ... exhaustion of the administrative procedures." Id. at 613, 552 A.2d 881.

II.

42 U.S.C. § 1983

(Count I)

The circuit court and the parties assumed, without having raised the issue, that exhaustion of the administrative remedy provided by § 4-102.1 is not a prerequisite to bringing an action under § 1983. Although this issue was not raised below, this Court is free to decide it sua sponte on appeal. Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 787, 506 A.2d 625 (1986).

While the failure to invoke and exhaust an administrative remedy does not ordinarily result in a trial court's being deprived of fundamental jurisdiction, nevertheless, because of the public policy involved, the matter is for some purposes treated like a jurisdictional question. Consequently, issues of primary jurisdiction and exhaustion of administrative remedies will be addressed by this Court sua sponte even though not raised by any party. See, e.g., Comm'n on Human Rel. v. Mass Transit, 294 Md. 225, 232, 449 A.2d 385 (1982); Sec. Dep't of Human Res. v. Wilson, supra, 286 Md. at 645, 409 A.2d 713 [1979].

The question as to whether state administrative remedies must be exhausted prior to proceeding with a § 1983 action was previously decided by this Court in Md.-Nat'l Cap. P. & P. Comm'n v. Crawford, 59 Md.App. 276, 475 A.2d 494 (1984), aff'd 307 Md. 1, 511 A.2d 1079 (1986). We held in that case that "Crawford was not required to exhaust the administrative remedies provided by the [Md. Nat'l Cap. P. & P.] Commission prior to instituting her § 1983 action in the Circuit Court...." Judge Alpert explained for the Court that this holding was necessitated by a series of Supreme Court decisions which rejected the argument that a § 1983 action should be dismissed where the plaintiff has not exhausted State administrative remedies:

In Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), the Supreme Court expressly held that "exhaustion of State remedies should not be required as a prerequisite to bringing an action pursuant to § 1983." Id. at 516, 102 S.Ct. at 2568. The Court did not treat the issue as one of first impression. Rather, the Patsy decision was an affirmation of the principles set out in McNeese v. Board of Education, 373 U.S. 668, 671-72, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622 (1963). Speaking through Justice Douglas, the McNeese Court stated that "relief under [§ 1983] may not be defeated because relief was not first sought under state law which provided a remedy." Id. at 671, 83 S.Ct. at 1435. This is so because "[t]he federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked." Id. (quoting Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961)).

Id. [59 Md.App.] at 290, 475 A.2d 494. See also Marker v. Talley, 502 A.2d 972, 976, 977 (Del.Super.1985); Bungs Bar & Grille, Inc. v. Florence Tp., 206 N.J.Super. 432, 502 A.2d 1198, 1216 (1985); O'Connors v. Helfgott, 481 A.2d 388, 391 (R.I.1984).

The soundness of our reasoning in Crawford was brought into question by the discussions of the courts of several other states which considered this issue and concluded that the holding in Patsy does not affect actions brought in State courts. E.g., Bartschi v. Chico Community Mem. Hosp., 137 Cal.App.3d 502, 508, 187 Cal.Rptr. 61 (1982); State ex. rel. Basham v. Med. Licensing Bd., 451 N.E.2d 691, 694 (Ind.App.1983). These courts properly contend that "[t]he [Patsy ] decision rests heavily on the paramount role assigned by Congress to the Federal courts to protect the [constitutional] rights guaranteed by section 1983." Bartschi, 137 Cal.App.3d at 508, 187 Cal.Rptr. 61 (emphasis in original). As the Supreme Court reasoned in Patsy :

The 1871 Congress intended § 1 to throw open the doors of...

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