McCullough v. Wittner

• Decision Date: 01 September 1987
• Docket Number: No. 32,32
• Citation: 314 Md. 602,552 A.2d 881
• Parties: Patrick McCULLOUGH v. Michael WITTNER. ,
• Court: Maryland Court of Appeals

Page 602

314 Md. 602

552 A.2d 881

Patrick McCULLOUGH v.Michael WITTNER.

No. 32, Sept. Term, 1987.

Court of Appeals of Maryland.

Feb. 6, 1989.

Sandra Z. Berenson and Lawrence B. Coshnear, Baltimore, for appellant.

Dennis M. Sweeney, Deputy Atty. Gen. (J. Joseph Curran, Attorney General, Richard M. Kastendieck and C.J. Messerschmidt, Asst. Attys.Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and ADKINS, JJ., and JAMES F. COUCH, Jr., Associate Judge of the Court of Appeals of Maryland(retired) specially assigned.

ELDRIDGE, Judge.

The Inmate Grievance Commission was created in 1971 as a separate agency within the Department of Public Safety and Correctional Services.SeeCh. 210 of Acts of 1971, now codified in Maryland Code(1957, 1986 Repl.Vol., 1988 Cum.Supp.), Art. 41, § 4-102.1.Under the statutory provisions establishing the Commission, "any person confined to an institution within the Division of Correction, or otherwise in the custody of the Commissioner of Correction, or confined to the Patuxent Institution" is entitled to submit to the Commission "any grievance or complaint against any officials or employees of the Division of Correction or the Patuxent Institution."§ 4-102.1(d).

The statute goes on to require that the Inmate Grievance Commission provide a hearing for any grievance or complaint which is not wholly lacking in merit.§ 4-102.1(f).The Commission must then issue an order "which shall include a statement of the findings of fact, the Commission's conclusions and its disposition of the complaint."Ibid.The Commission's final order, other than an order dismissing the complaint, is subject to review by the Secretary of Public Safety and Correctional Services.Finally, the Act specifies: "No court shall entertain an inmate's grievance or complaint within the jurisdiction of the Inmate Grievance Commission unless and until the complainant has exhausted the remedies as provided in this section."§ 4-102.1(l ).With regard to the Commission, see generallyCollins v. Foster, 302 Md. 328, 487 A.2d 1189(1985);Holsey v. Inmate Griev. Comm'n, 296 Md. 601, 464 A.2d 1017(1983);State v. McCray, 267 Md. 111, 142-144, 297 A.2d 265(1972);Hewitt v. Dept. of Pub. Safe. and Correct., 38 Md.App. 710, 382 A.2d 903(1978);Bryant v. Dep't of Public Safety, 33 Md.App. 357, 365 A.2d 764(1976);McCargo v. Mister, 462 F.Supp. 813(D.Md.1978);Comment, Maryland Inmate Grievance Commission, 35 Md.L.Rev. 458(1976).

Turning to the case before us, Patrick McCullough, an inmate at the Maryland Correctional Institution in Jessup, brought a common law tort action against Michael Wittner in the Circuit Court for Anne Arundel County, seeking compensatory and punitive damages.McCullough alleged that, while in his cell at the Institution, he was repeatedly struck by Wittner, a correctional officer at the Institution.McCullough further alleged that the assault and battery caused his head to bleed, requiring medical treatment at the Institution and at the Maryland House of Correction.McCullough claimed that Wittner acted maliciously, and that the malicious conduct resulted in McCullough's experiencing dizzy spells and further loss of hearing, ¹ as well as suffering injuries to his middle ear, right wrist, left eye, and head.Finally, McCullough stated that the assault and battery "was done without any provocation on the part of the plaintiff."The circuit court granted Wittner's motion to dismiss on the ground that, because McCullough had not filed a grievance with the Inmate Grievance Commission, he had failed to invoke and exhaust his administrative remedies.Thereafter, McCullough appealed to the Court of Special Appeals.While the case was pending in that court, we issued a writ of certiorari.

The question before this Court is whether 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 Commissionstatute, must file a complaint with and exhaust his remedies before the Commission prior to bringing a common law tort action.We hold that he must.²

McCullough maintains that his failure to submit a grievance to the Inmate Grievance Commission did not require that his suit be dismissed.First, he argues that the Commission does not have jurisdiction over tort claims seeking damages for personal injuries.In the alternative, he contends that even if the Commission had jurisdiction, this case would fall within "exceptions" to the general rule that an administrative agency's jurisdiction must be invoked and exhausted before resorting to the courts.These exceptions, according to McCullough, are (1) when the Legislature has indicated an intention that the agency's jurisdiction not be primary and that an independent judicial remedy may be pursued without resort to the administrative remedy, (2) where " 'the administrative agency cannot provide to any substantial degree a remedy,' " and (3) when the object and issues of the " 'judicial proceeding only tangentially or incidentally concern matters which the administrative agency was legislatively created to solve, and do not, in any meaningful way, call for or involve applications of its expertise.' "(Appellant's briefpp. 9-10, quoting fromPrince George's Co. v. Blumberg, 288 Md. 275, 284-285, 418 A.2d 1155(1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808(1981)).³

Although couched as two alternative arguments, with the second argument based on asserted exceptions to the general principle concerning the need for invocation and exhaustion of administrative remedies, McCullough's arguments all come down to a single contention.The contention is that, under the Inmate Grievance Commissionstatute, the Commission lacks authority to award money damages.Because of this alleged lack of statutory authority to make a monetary award, McCullough maintains that the Commission had no jurisdiction over his claim.His alternate argument that, even if the Commission had jurisdiction, he need not invoke and exhaust the administrative remedy, is also based on the Commission's alleged lack of statutory power to make a monetary award.Thus, because of this claimed lack of authority to award damages, McCullough asserts that the General Assembly did not intend that an inmate in his position be required to invoke and exhaust the administrative remedy.In light of this same asserted absence of statutory authority, he argues that the administrative remedy is inadequate and cannot to any substantial degree provide a remedy.McCullough's premise, that the Inmate Grievance Commission does not have authority to make a monetary award, is largely based on an early opinion of the Attorney General(60 Op.Atty.Gen. 360(1975)).See alsoMcCray v. Burrell, 367 F.Supp. 1191(D.Md.1973), rev'd on other grounds, 516 F.2d 357(4th Cir.1975), cert. dismissed, 426 U.S. 471, 96 S.Ct. 2640, 48 L.Ed.2d 788(1976).

There are two answers to McCullough's position, either one of which is dispositive.First, even if the Commission did lack statutory authority to make a monetary award, McCullough would be required to invoke and exhaust his administrative remedy prior to pursuing his tort action.Second, the Commission does have authority to make a monetary award as long as funds are appropriated or otherwise lawfully available for this purpose.

(1)

It is a settled principle of administrative law that an agency's lack of power to grant the particular type of relief sought does not necessarily mean that the agency lacks jurisdiction over a matter or that the administrative remedy need not be invoked and exhausted.As Professor Davis has pointed out, "[t]hat the agency has no power to grant the relief sought is not a reason for refusing to require prior resort to the agency, if the case involves a question within the agency's special competence."3 Davis, Administrative Law Treatise, § 19.07(1958).See alsoGingell v. County Commissioners, 249 Md. 374, 376, 239 A.2d 903(1968).With regard to a monetary award, the Supreme Court, for example, in Thompson v. Texas Mexican Railway, 328 U.S. 134, 151, 66 S.Ct. 937, 947, 90 L.Ed. 1132(1946), held that a railroad, seeking contractual damages, was required to bring a proceeding before the Interstate Commerce Commission even though the ICC did not have the authority to award money damages.

If it be assumed arguendo that the Inmate Grievance Commission does not have the statutory authority to make a monetary award, and can only issue directives and orders of an equitable nature as contended for by McCullough, nevertheless, under the circumstances here, McCullough was required to invoke and exhaust the administrative remedy before the Commission before he was entitled to an adjudication of his tort suit.

It is undisputed that an inmate's complaint, based on an attack by a correctional officer in the inmate's cell, falls within the Inmate Grievance Commission's jurisdiction as long as the inmate seeks a remedy other than money damages.In substance, McCullough's argument is not that the nature of his complaint is outside of the Commission's jurisdiction; it is that the remedy sought is beyond the Commission's power.Furthermore, this Court has recognized that an inmate's complaint against correctional officers, based on an assault in an institution, falls within the Inmate Grievance Commissionstatute.Holsey v. Inmate Griev. Comm'n, supra, 296 Md. at 603, 464 A.2d at 1019.

In light of the nature of McCullough's complaint, the necessity for invocation and exhaustion of administrative remedies could not have been more forcefully expressed in the statute.The General Assembly mandated that "[n]o court shall entertain an inmate's grievance or complaint within the jurisdiction of the Inmate Grievance Commission unless and...