by Douglas Ankney

In what was otherwise a disappointing ruling for a Maryland prisoner, the United States Court of Appeals for the Fourth Circuit held on June 14, 2024, that a prisoner need not exhaust administrative remedies before filing suit accusing officials of sexual misconduct that is not specified in federal law, but was included in state regulations promulgated to carry it out.

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, requires prisoners to exhaust “all available” administrative remedies before filing suit. But it includes an exception for claims under the Prison Rape Elimination Act (PREA), 42 U.S.C. ch. 147 § 15601 et seq. The sensible rationale behind the exemption: It is unfair to force a prisoner to seek a remedy through a process run by the same guards who are also the subject of the prisoner’s complaint—much like putting the fox in charge when the hen files suit for being mauled.

Earl D. Johnson was incarcerated at the Maryland Correctional Training Center (MCTC), where he was assigned to work in the cafeteria as a food server. Allegedly because Johnson had a history of making wine from food scraps (known in prison as “hooch” or “pruno”), he was repeatedly strip-searched upon return from his job assignment—nine times in nine weeks between August 8 and October 3, 2017.

State Department of Public Safety and Correctional Services (DPSCS) guard Chad Zimmerman conducted the strip searches in Johnson’s cell alone and without his supervisor, Lt. Richard Robinette. Nothing was found before a final search uncovered “eight gallons of fermented juice, sugar, and oranges” in Johnson’s cell, as the Court later recalled. Johnson was charged with violating prison rules against possession of “a controlled dangerous substance, intoxicant, or alcohol.” At a hearing on October 19, 2017, Johnson was found guilty. The Hearing Officer imposed a sentence of 60 days in segregation, in part because this was Johnson’s third violation. MCTC’s warden reduced the punishment to 20 days segregation and reassigned Johnson from food service to sanitation.

Johnson initiated his suit pro se on November 13, 2017, proceeding under 42 U.S.C. § 1983 to accuse Zimmerman, Robinette and the Hearing Officer of violating his civil rights. The federal court for the District of Maryland dismissed all claims except those alleging that Zimmerman and Robinette sexually harassed and abused Johnson. He was appointed counsel, who filed an amended complaint alleging that “[d]uring each of these weekly strip searches, Officer Zimmerman sexually assaulted [him] by inappropriately and gratuitously touching [his] naked buttocks and scrotum, and by making comments of a sexual nature, including but not limited to comments about [his] genitals.” Johnson also alleged that Robinette “was aware that Officer Zimmerman [had no] justification” but failed to stop the “improper strip searches.”

The district court held that Johnson’s claims against Zimmerman were exempt from the PLRA’s exhaustion requirement, but not those against Robinette; it therefore dismissed those claims because Johnson failed to exhaust his administrative remedies for them through DPSCS’ Administrative Review Process (ARP). The district court also granted summary judgment to both Zimmerman and Robinette on the merits of Johnson’s claims, finding that the manner of the strip searches violated neither the Fourth Amendment nor PREA.

The Fourth Circuit Giveth
and Taketh Away

Johnson appealed, and the Fourth Circuit agreed that the district court erred in concluding that Johnson’s claims against Robinette were subject to the exhaustion requirement. As the Court observed, the PLRA required Johnson to exhaust only those remedies that were “available” to him, as held in Ross v. Blake, 578 U.S. 632 (2016). To determine whether that was the case here, the Court turned to DPSCS’ “Sexual Misconduct Prohibited” directive, which “assigns responsibilities and establishes procedures for reporting, responding to, investigating, processing, and resolving a complaint of sexual misconduct.”

That directive also “explicitly exempted PREA claims from its ARP process,” the Court noted, quoting the text: “The Department does not permit the use of an informal resolution process or ARP to resolve complaints of rape, sexual assault, sexual harassment, sexual abuse[,] sexual misconduct, inmate on inmate sexual conduct, or other areas afforded protections by standards under the authority of the [PREA] and related Department procedures.’”

Though Johnson’s supervisory liability claims against Robinette  “do not fall within the strict definitions of PREA,” the Court allowed, “DPSCS elected to also exempt ‘sexual misconduct’ claims against a prison official from its ARP process”—a term that is “not defined in PREA, but Maryland defines it to include ‘[a]ction or the lack of action on the part of an employee that contributed to an incident of sexual misconduct.’” Because Johnson’s complaint was that “Lt. Robinette contributed to Officer Zimmerman’s sexual harassment and abuse of him by his failure to intervene,” he was precluded from the ARP, the Fourth Circuit reasoned, and the district court therefore erred in dismissing those claims.

However, the Court agreed with the lower court that the manner of the strip searches violated neither the Fourth Amendment nor PREA. Johnson accused Zimmerman of an illicit motive for the repeated searches—to see the prisoner naked—and accused him of taking advantage of them to engage in unwanted touching. But the Fourth Circuit refused to agree with either contention.

For motive, it credited Zimmerman’s claimed purpose to search for contraband, noting that “deference must be given to the officials in charge” in a detention setting absent “substantial evidence” that their “response to the situation is exaggerated,” as held in Florence v. Bd. Of Chosen Freeholders of Cnty. of Burlington, 566 U.S. 318 (2012).

As for unwanted touching, the Court again credited the guard’s testimony—that his interest in looking inside the prisoner’s undershorts was limited to his contraband concerns. And even if he overstepped the bounds of propriety, he was entitled to qualified immunity (QI), the Court added, because those bounds were not clearly established.

This contrasts with the case of Wilbert Glover, a detainee in Minnesota’s Ramsey County Jail, whose penis was “grabbed” and “squeezed” by a guard named R. Paul; the Eighth Circuit said that such gratuitous contact with a prisoner’s genitals was so clearly out of bounds that denial of QI was appropriate, as PLN reported. [See: PLN, Feb. 2024, p.34.] 

Accordingly, the district court’s judgment was affirmed. Before the Fourth Circuit, Johnson was represented by Washington, D.C. attorney Cynthia C. Robertson of California-based Pillsbury Winthrop Shaw Pittman LLP. See: Johnson v. Robinette, 2024 U.S. App. LEXIS 14505 (4th Cir. 2024).  

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