MEMORANDUM

J. FREDERICK MOTZ, District Judge.

Background

Plaintiff Milton J. Smith, Jr. ("Smith"), a prisoner currently incarcerated at Baltimore City Correctional Center ("BCCC"), filed this action under 42 U.S.C. §1983 seeking money damages1 and alleging that while housed at Metropolitan Transition Center ("MTC") he was physically and verbally assaulted on May 17, 2011 by Sgt. Simpkins. Smith further claimed that on May 26, 2011, Simpkins verbally harassed him and told other prisoners in the vicinity that Smith was a "snitcher" who provided information concerning phones and tobacco coming into the prison. Finally, Smith complained that Warden Hejirika delayed his response to Smith's Administrative Remedy Procedure ("ARP") requests.2 Defendants have filed a motion to dismiss or for summary judgment.

Standard of Review

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept[s] the well-pled allegations of the complaint as true" and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). However, "because the court is testing the legal sufficiency of the claims, the court is not bound by plaintiff's legal conclusions." Takacs v. Fiore, 473 F.Supp.2d 647, 651 (D. Md. 2007).

Fed. R. Civ. P. 56(a) provides that:

"The party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court should "view the evidence in the light most favorable to....the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, 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)). "The party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial." Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240 (4th Cir. 1988).

Analysis

The complaint raises important issues under the Eighth Amendment. The court, however, cannot consider the merits of a key issue in the case relating to whether defendant Simpkins physically and verbally assaulted Smith on May 17, 2011. Instead, the court shall dismiss that portion of the case because Smith failed to exhaust available administrative remedies, a deficiency which defendants have asserted as an affirmative defense to suit. See ECF No. 9, Exhibits 1-7, and Exhibit 8, Declaration of Scott S. Oakley, Executive Director, Inmate Grievance Office ("IGO").

The Prison Litigation Reform Act ("PLRA") generally requires a prisoner to exhaust administrative remedies before filing suit in federal court. Title 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under § 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." The Supreme Court has interpreted the language of this provision broadly, holding that 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). Thus, the exhaustion provision plainly extends to Smith's claims, which must be dismissed unless Smith can show that he has satisfied the administrative exhaustion requirement under the PLRA or that the correctional defendants have forfeited their right to raise non-exhaustion as a defense. See Chase v. Peay, 286 F.Supp.2d 523, 528 (D. Md. 2003).

The PLRA's exhaustion requirement is designed so that prisoners pursue administrative grievances until they receive a final denial of the claims, appealing through all available stages in the administrative process. Id. at 530; see also Booth v. Churner, 532 U.S. 731, 735 (2001) (affirming dismissal of prisoner's claim for failure to exhaust where he "never sought intermediate or final administrative review after the prison authority denied relief"); Thomas v. Woolum, 337 F.3d 720, 726 (6th Cir. 2003), abrogated on other grounds by Woodford v. Ngo, 548 U.S. 81 (2006) (noting that a prisoner must appeal administrative rulings "to the highest possible administrative level"); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (prisoner must follow all administrative steps to meet the exhaustion requirement, but need not also seek judicial review); Gibbs v. Bureau of Prisons, 986 F.Supp. 941, 943-44 (D. Md. 1997) (dismissing a federal prisoner's lawsuit for failure to exhaust, where plaintiff did not appeal his administrative claim through all four stages of the BOP's grievance process).

In Maryland, filing a request for administrative remedy with the Warden of the prison in which one is incarcerated within thirty calendar days of the incident (or of the date the inmate first gained knowledge of the incident or injury) is the first of three steps in the ARP process provided by the Division of Correction to its prisoners. If this request is denied, the prisoner has thirty calendar days to file an appeal with the Commissioner of Correction. If this appeal is denied, the prisoner has thirty days in which to file an appeal to the Executive Director of the IGO. See Division of Correction Directive 185-002.VI.L-N; see also Md. Code Ann. Corr. Serv. §§ 10-201 to 10-209. Smith pursued an ARP complaint about the May 17, 2011 incident to the Commissioner.3 ECF No. 12, Memorandum at 2-3. Smith did not, however, complete administrative review by filing an appeal to the IGO. ECF No. 9, Exhibit 8.

The remaining claim concerning Simpkins' alleged statement that Smith was a "snitcher" must be examined on its merits, as it was fully exhausted through the ARP process.4 In essence, the claim goes to the core of whether Simpkins' alleged conduct placed Smith in danger at the hands of fellow prisoners. In order to prevail on an Eighth Amendment claim of failure to protect from violence, Smith must establish that Simpkins exhibited deliberate or callous indifference to a specific known risk of harm. See Pressly v. Hutto, 816 F.2d 977, 979 (4th Cir. 1987).

Farmer v. Brennan, 511 U.S. 825, 833B 34 (1994) (citations omitted).

The Commissioner investigated the issue, concluded that Simpkins did call Smith a "snitcher," and found that the statements "may" have been overheard by other prisoners. The Commissioner did not conclude that the incident demonstrated "harassment" and indicated that the investigation found Smith had suffered "no ill effects" stemming from the incident. This court concurs. While the conduct alleged was unprofessional, it appears to have been a one-time incident that did not create an intolerable risk of harm. Smith has not been injured and is not entitled to damages as a result of Simpkins' statement.

Defendants are entitled to summary judgment in this case. A separate Order shall be entered in accordance with this Memorandum.