United States District Court, W.D. Virginia, Roanoke Division
Marcus Dale Thomas, Pro Se Plaintiff; Margaret Hoehl O’Shea, Office of the Attorney General, Richmond, Virginia, for Defendant.
James P. Jones United States District Judge.
Marcus Dale Thomas, a Virginia inmate proceeding pro se, brought this civil rights action under 42 U.S.C. § 1983, alleging that the defendant prison official, Unit Manager M. Younce, violated his Eighth Amendment rights by failing to assign him to a bottom bunk on a bottom tier as a doctor had ordered. Upon review of the record, I find that Thomas’s claims against Younce are barred by his failure to exhaust his available administrative remedies. 42 U.S.C. § 1997e(a).
Thomas alleges that on June 18, 2013, a doctor issued an order for Thomas to be assigned to a bottom tier cell for one year because his medications make it unsafe for him to navigate stairs. In January 2014, however, Younce assigned Thomas to a top tier cell. Thomas reminded Younce about the doctor’s order on January 23, 2014. Younce allegedly told Thomas, “I don’t have time to cha[n]ge it. . . . Either you go in the cell or get a charge and be locked down.” (Compl. Attach. 3, ECF No. 1-4.) Thomas filed a request form, asking to be moved to a lower tier, but received no response. On February 20, 2014, Younce again allegedly assigned Thomas to a top tier cell, despite the doctor’s order. All the inmates in the pod moved to another housing area on February 26, 2014, and again, Thomas was assigned to a top tier cell.
On March 4, 2014, Thomas filed an emergency grievance stating that he had repeatedly been assigned a top tier cell since January 23, 2014, even after showing facility administrators the doctor’s order. Thomas stated, “I’m a diabetic, plus I take [p]sych/meds and could injur[e] myself coming down the stairs.” (Messer Aff. Encl. B, ECF No. 35-1.) Thomas did not receive a response to this emergency grievance. However, after verifying that the doctor’s order was still in effect, Officer Mullins told Thomas that he had emailed Younce about moving Thomas to a lower tier cell on Monday, March 10, 2014. On March 8, on the way to the shower, Thomas caught his shower shoe in a stair grid and fell down the stairs, injuring his knee.
Thomas filed this § 1983 action in July 2014 in the United States District Court for the Eastern District of Virginia. The case was transferred to this court because the cause of action arose at Red Onion State Prison, located within the jurisdiction of this court. I summarily dismissed the action under 28 U.S.C. § 1915A(b)(1) for failure to state a claim, and Thomas appealed. The United States Court of Appeals for the Fourth Circuit affirmed my dismissal order in part, but reversed and remanded as to Thomas’s claim against Younce. Younce has now moved for summary judgment because Thomas failed to exhaust his administrative remedies before filing this action, and Thomas has responded.
The Prison Litigation Reform Act 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). Failure 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). “[T]he language of section 1997e(a) clearly contemplates exhaustion prior to the commencement of the action as an indispensable requirement, thus requiring an outright dismissal” of unexhausted claims. Carpenter v. Hercules, No. 3:10CV241-HEH, 2012 WL 1895996, at *4 (E.D. Va. May 23, 2012) (quoting Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003)).
Operating Procedure 866.1 is the written administrative remedies procedure that Virginia Department of Corrections inmates must follow to comply with § 1997e(a). Within 30 days of the incident the inmate wishes to grieve, he must attempt informal resolution, usually by filing an informal complaint. Prison staff should respond to such a complaint with 15 calendar days. The inmate may then file a regular grievance, with the informal resolution paperwork attached. After an investigation of this Level I remedy, the warden or his delegate is to respond in writing within 30 days from receipt. The inmate may then appeal to the regional director, who provides a Level II response within 20 days, which is generally the last available appeal.
If a regular grievance does not meet the filing requirements of OP 866.1, the grievance coordinator will reject the document at intake, mark the reason for the rejection on the back of the form, and return it to the inmate within two days. The inmate can correct the noted deficiency and resubmit the regular grievance, or he may appeal the intake rejection decision to the regional ombudsman.
An emergency grievance is intended only for situations where the inmate believes he is subject to an immediate risk of serious personal injury or other irreparable harm. An official should investigate and respond to an emergency grievance within 8 hours. If officials do not find any immediate risk presented by the situation described in the emergency grievance, the form will be returned to the inmate, marked as a nonemergency.
The defendant has submitted the affidavit of Grievance Coordinator Messer that establishes the following sequence of events related to exhaustion. Thomas filed an emergency grievance at 10:56 a.m. on March 4, 2014, about the danger of his top tier cell assignment. Sgt. Hill responded on March 4, 2014, at 12:00 p.m. that the grievance did not meet the definition for an emergency and advised Thomas to address the issue using a proper request form.
Thomas later submitted an undated regular grievance complaining that he never received a response to the March 4 emergency grievance. On March 7, 2014, Messer rejected this regular grievance during the intake process, because Thomas did not first use the informal process to resolve his complaint. Messser noted this reason on the back of the form and returned it to Thomas, also noting that ...