United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
Lee Hinton, a Virginia inmate proceeding pro se, filed a
civil rights complaint pursuant to 42 U.S.C. § 1983.
There are three claims remaining against Correctional
Officers ("C/O") Anderson, Mullen, and Profit
involving their alleged conduct at a hospital where Plaintiff
received care after a heart attack on May 28, 2012.
Specifically, Plaintiff alleges in claim l(III) that C/Os
Anderson and Mullen placed shackles, a shockbelt, and
handcuffs too tightly on him, causing "excruciating pain
[and] making it extremely hard to breathe" and that
these officers refused to loosen the restraints. In claim
l(VII), C/Os Anderson, Mullen, and Profit refused to loosen
Plaintiffs restraints so he could consume the six crackers
and juice given to him by a doctor to raise his blood sugar.
These defendants continued their refusal even after Plaintiff
warned them that he was a diabetic and "would go into
diabetic shock" without the snack. In claim l(VIII),
Plaintiff alleges he experienced physical injury via
"severe chest pains" that necessitated a
nitroglycerin pill because C/Os Anderson, Mullen, and Profit
refused to help him consume the snack.
filed a motion for summary judgment, arguing that Plaintiff
failed to exhaust available administrative
remedies. After reviewing the record, the court
finds that Defendants are entitled to summary judgment
because Plaintiff did not exhaust available administrative
exhaustion requirement is mandatory and "applies to all
inmate suits about prison life[.]" Porter v.
Nussle, 534 U.S. 516, 524, 532 (2002). "Proper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules." Woodford v.
Ngo. 548 U.S. 81, 90 (2006). When a prison provides an
administrative grievance procedure, the inmate must file a
grievance raising a particular claim and pursue it through
all available levels of appeal to "properly
exhaust." Id.; Dixon v. Page, 291 F.3d
485, 490-91 (7th Cir. 2002). "[A]n administrative remedy
is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing
himself of it." Moore v. Bennette, 517 F.3d
717, 725 (4th Cir. 2008). "[W]hen prison officials
prevent inmates from using the administrative process ...,
the process that exists on paper becomes unavailable in
reality." Kaba v. Stepp, 458 F.3d 678, 684 (7th
Cir. 2006). A defendant has the burden to prove an
inmate's failure to exhaust available administrative
remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
Once a defendant presents evidence of a failure to exhaust,
the burden of proof shifts to the plaintiff to show, by a
preponderance of the evidence, that exhaustion occurred or
administrative remedies were unavailable through no fault of
the plaintiff. See, e.g., Tuckel v. Grover, 660 F.3d
1249, 1254 (10th Cir. 2011).
Department Operating Procedure ("OP") 866.1,
"Offender Grievance Procedure, " provides the
administrative remedies for inmates to resolve complaints,
appeal administrative decisions, and challenge policies and
procedures. The process provides correctional
administrators means to identify potential problems and, if
necessary, correct those problems in a timely manner. All
issues are grievable except issues about policies,
procedures, and decisions of the Virginia Parole Board;
disciplinary hearing penalties and/or procedural errors;
state and federal court decisions, laws, and regulations; and
other matters beyond the VDOC's control.
inmate must file a regular grievance within thirty calendar
days from the date of the occurrence or
incident. Notably, regular grievances that do not
meet the filing requirements of OP 866.1, like being filed
late, are rejected and returned to the inmate within two
working days from the date of receipt. An inmate may
appeal an intake decision by sending the grievance and the
intake decision to a regional ombudsman within five days of
began filing regular grievances on July 19, 2012, about the
three remaining claims that allegedly occurred on May 28,
2012. The grievances were rejected upon intake
as untimely filed. OP 866.1 allowed Plaintiff to appeal the
intake decisions, but Plaintiff failed to timely appeal all
the rejected regular grievances except one. Plaintiff filed
that particular grievance about the tight restraints
discussed in claim l(III) on July 19, 2012. (7:14-cv-00392,
ECF No. 2 at 23-24.) The grievance was rejected as untimely,
and the regional ombudsman affirmed that rejection.
argument that his medical condition and treatment made it
impossible to file grievances within thirty days of May 28,
2012, is not persuasive. OP 866.1 §VI(A)(1) allows a
grievance to be filed within thirty days "except in
instances ... beyond the offender's control ...."
(7:14-cv-00197, ECF No. 36-1 at 10.) Plaintiff states that he
was released from the hospital on May 31, 2012; was housed in
the prison's medical department on June 1, 2012; and was
returned to his housing pod on June 4, 2012. The record
establishes that Plaintiff had access to administrative
remedies upon returning to the housing pod because he pursued
numerous administrative remedies about various matters as
early as June 5, 2012. Even if the court were to toll the
brief period between May 28, 2012, and June 5, 2012,
Plaintiff still did not file a regular grievance within the
subsequent thirty-day period; instead, he waited until July
has not provided any evidence that administrative remedies
were not available to him or that he properly pursued
available administrative remedies as required by OP 866.1.
Accordingly, Defendants are entitled to summary judgment
pursuant to 42 U.S.C. § 1997e(a).
 A party is entitled to summary
judgment if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine dispute as to any material fact. Fed.R.Civ.P. 56(a).
Material factsare those necessary to establish the elements
of a party's cause of action. Anderson v. Liberty
Lobby. Inc.. 477 U.S. 242, 248 (1986). A genuine dispute
of material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in a light most
favorable to the non-moving party, a reasonable fact-finder
could return a verdict for the non-movant. Id. The
moving party has the burden of showing - "that is,
pointing out to the district court -that there is an absence
of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett. 477 U.S. 317, 325 (1986).
If the movant satisfies this burden, then the non-movant must
set forth specific facts that demonstrate the existence of a
genuine dispute of fact for trial. Id. at 322-24. A
party is entitled to summary judgment if the record as a
whole could not lead a rational trier of fact to find in
favor of the non-movant. Williams v. Griffin. 952
F.2d 820, 823 (4th Cir. 1991). "Mere unsupported
speculation ... is not enough to defeat a summary judgment
motion." Ennis v. Nat'l Ass'n of Bus. &
Educ. Radio. Inc.. 53 F.3d 55, 62 (4th Cir. 1995). A
plaintiff cannot use a response to a motion for summary
judgment to amend or correct a complaint challenged by the
motion for summary judgment. Cloaninger v. McDevitt.
555 F.3d 324, 336 (4th Cir. 2009).
 Inmates are oriented to the inmate
grievance procedure when they enter the VDOC's custody
and when they are transferred to other VDOC
 Prior to submitting a grievance, the
inmate must make a good-faith effort to informally resolve
the issue by submitting an informal complaint form, which is