United States District Court, W.D. Virginia Roanoke Division
SAMUEL G. WILSON, District Judge.
Adrian Nathaniel Bacon, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. 1983, against Red Onion State Prison (ROSP) corrections officers Wood and Webb, alleging they used excessive force by pulling him through a tray slot, and against corrections officers White, Brinkley, and Rose, alleging they failed to protect him from that conduct. The defendants have moved for summary judgment, arguing Bacon failed to properly exhaust his administrative remedies, and Bacon has responded. Finding the defendants have not demonstrated they are entitled to summary judgment based on exhaustion, the court will deny their motion.
The facts in the light most favorable to Bacon are as follows. On September 11, 2013, Bacon was kneeling by his closed cell door when Wood and Webb "literally pulled [him] through the tray slot, " while White, Brinkley, and Rose "stood by without intervening." (Compl. at 3) Bacon allegedly sustained cuts and abrasions that required medical treatment.
ROSP provides an administrative grievance procedure for inmate complaints that requires inmates to attempt to resolve the issue through an informal grievance process and, if the issue remains unresolved, permits the inmate to proceed with the regular grievance process. (See ECF 21-1) ROSP received Bacon's Informal Complaint on September 30, 2013 and responded to it on October 15, 2013. Bacon claims he did not receive ROSP's response before submitting his Regular Grievance. In order to document his good faith effort to resolve the issue using informal grievance procedures, Bacon claims he attached the receipt for his Informal Complaint with his Regular Grievance. (Pl. Response at 1) ROSP officials nonetheless denied Bacon's Regular Grievance because he failed to attach the Informal Complaint itself. Bacon appealed, and the Regional Ombudsman upheld the denial.
The defendants maintain that Bacon failed to exhaust his administrative remedies by submitting his Regular Grievance without attaching his Informal Complaint. Because it appears Bacon complied with administrative procedures by submitting the receipt for his Informal Complaint, the court will deny the defendants' motion for summary judgment.
According to the Prison Litigation Reform Act, "[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." 42 U.S.C. 1997e(a). "The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement." Graham v. Gentry , 413 F.Appx. 660, 663 (4th Cir. 2011) (citing Porter v. Nussle , 534 U.S. 516, 524 (2002)). A remedy becomes "unavailable" if a prisoner, "through no fault of his own, was prevented from availing himself of" the remedy. Moore v. Bennette , 517 F.3d 717, 725 (4th Cir. 2008).
ROSP's administrative remedies are set forth in the Virginia Department of Corrections Operating Procedure (OP) 866.1, which requires an inmate to demonstrate he has made a good faith effort to resolve the issue informally via an Informal Complaint. OP 866.1(V)(B). "If 15 calendar days have expired from the date the Informal Complaint was logged without the offender receiving a response, the offender may submit a Grievance on the issue and attach the Informal Complaint receipt as documentation of the attempt to resolve the issue informally." Id . OP 866.1 also provides that an inmate must submit a Regular Grievance within 30 calendar days from the date of the incident and must attach documentation of his attempt to informally resolve the issue. OP 866.1(VI)(A). Some limited exceptions to the 30-day deadline exist, including circumstances beyond the offender's control. Id.
In the light most favorable to Bacon, it appears that Bacon complied with the administrative procedures relevant to the defendants' motion. When 15 calendar days passed and Bacon had not received any response to his Informal Complaint, he submitted his Regular Grievance along with the receipt for his Informal Complaint, in compliance with OP 866.1(V)(B) and (VI)(A). The defendants provide no evidence disputing Bacon's claims that he did not have a response to his Informal Complaint at the time he filed his Regular Grievance and that he attached the Informal Complaint receipt to his Regular ...