United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, Chief District Judge.
Corey Jermaine Smith, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, with supplemental claims under state law. Smith alleges that a group of correctional officers used excessive force against him or merely watched without intervening as others used excessive force. Smith also alleges that the defendant nurse at Red Onion State Prison deprived him of timely medical treatment. After review of the record, the court must deny defendants' motions seeking dismissal of the action under 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies and Defendant Tate's motion to dismiss.
On July 18, 2012, in the process of transporting Smith to Red Onion State Prison, correctional officers from Wallens Ridge State Prison-Fannon, Ely, and Carico-allegedly beat Smith, sprayed him with pepper spray, and shocked him excessively with an electric stun belt, while yelling threats and racial slurs at him. Two other officers-Combs and Fields-allegedly stood by and watched this use of force and did not intervene.
At Red Onion, Nurse Glenda Tate allegedly looked at Smith's injuries, told him he would live, welcomed him to Red Onion, and provided no medical treatment. Smith also alleges that Nurse Meade misrepresented his injuries in her medical notes and interfered with his attempts to show his injuries to the doctor during his intake medical screening by saying he should sign up for sick call. Smith also complains that on August 7, he reported the July 18 attack to Red Onion Warden Mathena, who said the officers reportedly activated the stun belt because Smith was kicking the transportation van, which Smith denied. Mathena allegedly promised an investigation and medical treatment for Smith's injuries, but no medical treatment was provided at that time. Smith later learned that no investigation had been instigated in 2012.
Before the court are motions for summary judgment under 42 U.S.C. § 1997e(a), filed by Ely, Carico, Fields, Combs, and Mathena, and by Fannon, who is represented by separate counsel. These defendants seek dismissal of Smith's claims for failure to exhaust administrative remedies as required under § 1997e(a). Defendant Tate has filed a motion to dismiss. Smith has responded to defendants' motions, making them ripe for disposition.
II. Defendants' Motions for Summary Judgment
The Prison Litigation Reform Act ("PLRA"), among other things, provides in 42 U.S.C. § 1997e(a) that a prisoner cannot bring a civil action concerning prison conditions until he has first exhausted available administrative remedies. Porter v. Nussle, 534 U.S. 516, 524 (2002). This exhaustion requirement applies to "all inmate suits, whether they involve general circumstances or particular episodes, ... whether they allege excessive force or some other wrong, " and whether the form of relief the inmate seeks is available through exhaustion of administrative remedies. Id . Failure to follow the required procedures of the prison's administrative remedy process, including time limits, or to exhaust all levels of administrative review is not "proper exhaustion" and will bar an inmate's § 1983 action. Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Operating Procedure ("OP") 866.1 is the written administrative remedies procedure that inmates in the Virginia Department of Corrections ("VDOC") must follow to comply with § 1997e(a). Inmates are oriented to the steps of this procedure each time they are transferred to a new prison facility. An inmate must first attempt to resolve his issues informally by completing an informal complaint form for which he receives a receipt. As the form itself states, if the inmate does not receive a response to his informal complaint within 15 days, he may file a regular grievance, using his receipt as evidence that he attempted the informal complaint process. A regular grievance must be filed within 30 days of the occurrence. If the grievance is not timely filed, the intake officer will mark "Expired Filing Period" on the back of the form and return it to the filer. If the inmate disagrees with the intake decision, he then has 5 days to appeal to the regional ombudsman, whose decision is final.
Defendants' evidence about the administrative remedy forms Smith has filed at Wallens Ridge and Red Onion is largely undisputed and demonstrates that he did not complete the regular grievance procedure under OP 866.1 as to any of his claims. On August 7, 2012, Smith filed an informal complaint claiming that Fannon had attacked him on July 18, 2012. Although Smith admits that he received a receipt for the informal complaint, which he could have used to file a regular grievance about the assault, Smith did not file a regular grievance at Red Onion in 2012 on that event. Smith filed an informal complaint to Wallens Ridge officials, received December 5, 2012, which complained about Fannon's alleged assault in July 2012. Smith did not file a regular grievance at Wallens Ridge about the assault, however.
Similarly, Smith filed an informal complaint on October 25, 2012, about allegedly being denied medical assessment by Tate when he arrived at Red Onion. He did not file a regular grievance in 2012 about Tate's denial of medical care.
In July 2013, Smith filed a civil rights complaint in this court under 42 U.S.C. § 1983, asserting that the defendants' actions on July 18, 2012 had violated his constitutional rights. See Smith v. Ely, Case No. 7:13CV00329. The court summarily dismissed this action without prejudice on October 25, 2013, based on Smith's inaccurate statement in his pleadings that his exhibits proved exhaustion of administrative remedies before filing the lawsuit, as required under 42 U.S.C. § 1997e(a). Smith did not appeal. Smith filed the current lawsuit in April 2014.
As stated, defendants' evidence establishes, and Smith does not deny, that he failed to comply with the time limits of OP 866.1. While nonexhaustion under the PLRA is an affirmative defense, Jones v. Bock, 549 U.S. 199, 212 (2007), a prisoner may survive summary judgment on this ground by demonstrating that the grievance system was not "available" to him-by stating "facts showing that he was prevented, through no fault of his own, from availing himself of that procedure." Graham v. Gentry, 413 F.App'x 660, 663 (4th Cir. 2011) (unpublished) (citing Moore v. Bennett, 517 F.3d 717, 725 (4th Cir. 2008)). Accordingly, defendants are entitled to summary judgment based on plaintiff's failure to exhaust only if they can "show that the evidence is so one-sided that no reasonable factfinder could find that [the prisoner] was prevented from exhausting his administrative remedies." Hill v. O'Brien, 387 F.App'x 396, 399 (4th Cir. July 12, 2010) (unpublished) (reversing an award of summary judgment against a prisoner who claimed that prison officials had hindered his ability to file administrative grievances); Makdessi v. Clarke, No. 7:11cv262, 2012 WL 293155, at *2 (W.D. Va. Jan. 31, 2012) (noting court's obligation "to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials") (internal quotations and citation omitted).
Smith asserts that the grievance procedures at Red Onion and Wallens Ridge were unavailable to him. Smith states that he was assigned to segregation at Red Onion and was without his personal property for several days, while officials searched it for contraband. In this housing assignment, Smith had no personal access to remedy forms, which supervisors are to provide upon request. Smith states that on July 18, 2012, he asked two different officials for informal complaint forms to protest the excess force and denial of medical treatment, but neither official provided him with forms. He alleges that for the next two weeks, he continued to ask officers, without success, for forms. Once he received his property on August 5, 2012, he allegedly filed the only informal complaint form he had, complaining about ...