United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge
Bond, a Virginia inmate proceeding pro se, has filed a civil
rights action, pursuant to 42 U.S.C. § 1983, alleging
that his Eighth Amendment rights were violated by employees
at Greensville Correctional Center ("GCC"). On
September 16, 2016, defendants filed a Motion for Summary
Judgment as well as memoranda of law with supporting
exhibits. Dkt. No. 16. Plaintiff was given the
Notice required by Local Rule 7(K) and the opportunity to
file responsive materials pursuant to Roseboro v.
Garrison. 528 F.2d 309 (4th Cir. 1975). After having
been granted an extension of time to respond, plaintiff filed
a Motion in Opposition to Granting Summary Judgment. Dkt. No.
21. This matter is now ripe for disposition. For the reasons
stated below, defendants' Motion for Summary Judgment
must be granted and plaintiffs claims must be dismissed, with
prejudice. In addition, plaintiffs pending Motion for
Preservation of Evidence, Dkt. No. 6, will be denied as moot.
had surgery on his right knee on January 15, 2015. Dkt. No.
1-3. He alleges that, on February 14, 2015, as he was leaving
his job in GCC's kitchen, each inmate was strip searched.
Dkt. No. 1. Plaintiff states that he informed Officer
O'Donnell that he was unable to squat and remove his
garments because of the recent knee surgery. Id.
Then, according to plaintiff, Officer Woods conducted a
"thorough hand patdown [sic]" and plaintiff was
allowed to leave. Id. Plaintiff states that he then
explained what had just happened to Lieutenant Clark, who
confirmed with Officers O'Donnell and Woods that
"everything was okay;" however, plaintiff asserts,
Lieutenant Clark then instructed that plaintiff be searched
again. Id. Plaintiff claims that he informed
Lieutenant Clark that he was not refusing instructions to be
searched, but rather that squatting was impossible for him
because of his knee surgery and the knee brace he wore.
Id. Lieutenant Clark then allegedly shoved plaintiff
against the wall, placed him in handcuffs, and threw him on
the floor where Officers O'Donnell and Mills held him
down. Id. Plaintiff asserts that Lieutenant Clark
aggressively pulled his clothes off with "total
disregard" for plaintiffs knee injury. Id.
Lieutenant Clark allegedly "continued to twist, bend,
enter[, ] and unloosen portion[s] of the 'medical
brace' in search of contraband." Id.
Plaintiff states that this caused his "quadricep [sic]
tendon" in his right knee to re-tear and "severely
severed the Patella Tendon." Id. Plaintiff
claims that, instead of being taken to the medical unit,
Lieutenant Clark instructed Officers O'Donnell and Woods
to take plaintiff to "HU-10" where he was
"placed on pre-hearing detention." Id.
Plaintiff states that he was seen by a nurse that day who
referred him to the institutional doctor, who he saw three
weeks later. Id. Plaintiff also states that the
institutional doctor informed administrators of the facility
that it was "urgent" that plaintiff "be seen
by Surgeon MarQueen" because he had missed a follow up
appointment. Id. By the time plaintiff left HU-10 on
March 16, 2015, he asserts that he "still hadn't had
[his]  follow up nor [had he been] given a prognosis of the
damage inflicted to his 'knee' [sic] by Lieutenant
Clark and Officers O'Donnell and Mills."
states he filed a "complaint" that was sent to Unit
Manager Long, but that before a response was given, Sergeant
Turner interviewed him on February 20, 2015, and told him
that someone from "InterAffairs [sic]" would see
him at a later date. Id. Plaintiff asserts that
Captain Long failed to address the issues he raised in his
"complaint, " causing plaintiff to file multiple
grievances. Id. When plaintiff appealed his
grievances, he was told that "[his] filing time had
elapsed." Id. Plaintiff argues that he was not
able to get a prognosis of the damage done to his knee until
he was allowed to see Surgeon MarQueen on April 8, 2015, and
have an MRI performed on May 14, 2015. Id. Plaintiff
states that Warden Davis knew what happened but never
investigated the situation, Investigator Johnson told
plaintiff on June 21, 2015 that "the matter would be
turned over to Intel Staff' but no one ever came, and
Investigators Fields and Turner interviewed plaintiff on
September 16, 2015 and told plaintiff "that Mr. Peters
would come see [him]... and would handle the details."
Id. Plaintiff claims he filed complaints and
grievances, but that Mr. Peters never forwarded the evidence
to the person investigating plaintiffs matter. Id.
Plaintiff states he had another surgery on his right knee on
August 5, 2015 and underwent rehabilitation from September 8,
2015 to November 12, 2015, starting again on December 4,
Standard of Review
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). The moving party bears the
burden of proving that judgment on the pleadings is
appropriate. See Celotex Corp. v. Citrate,
477 U.S. 317, 323 (1986) (moving party bears the burden of
persuasion on all relevant issues). To meet that burden, the
moving party must demonstrate that no genuine issues of
material fact are present for resolution. Id. at
322. Once a moving party has met its burden to show that it
is entitled to judgment as a matter of law, the burden men
shifts to the non-moving party to point out the specific
facts which create disputed factual issues. Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 248 (1986);
Matsushita Electrical Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In evaluating a motion
for summary judgment, a district court should consider the
evidence in the light most favorable to the non-moving party
and draw all reasonable inferences from those facts in favor
of that party. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962). Those facts which the moving party
bears the burden of proving are facts which are material.
"[T]he substantive law will identify which facts are
material. Only disputes over facts which might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment."
Anderson, 477 U.S. at 248. An issue of material fact
is genuine when, "the evidence... create[s] [a] fair
doubt; wholly speculative assertions will not suffice."
Ross v. Communications Satellite Corp., 759 F.2d
355, 364 (4th Cir. 1985). Thus, summary judgment is
appropriate only where no material facts are genuinely
disputed and the evidence as a whole could not lead a
rational fact finder to rule for the non-moving party.
Matsushita, 475 U.S. at 587.
Exhaustion of Administrative Remedies
Pursuant to the Prison Litigation Reform Act
("PLRA"), "[n]o action shall be brought with
respect to prison conditions under section 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."
See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548
U.S. 81, 85 (2006) ("Exhaustion is no longer left to the
discretion of the district court, but is mandatory").
The PLRA requires "proper" exhaustion, which
demands "compliance with an agency's deadlines and
other critical procedural rules." Woodford, 548
U.S. at 90-91, 93.
exhaustion provides prisons the opportunity to correct their
errors before being hauled into federal court, reduces the
quantity of prisoner suits by either granting relief at the
administrative level or persuading prisoners not to further
pursue their claim in a federal court, and improves the
quality of the prisoner suits that are filed in federal court
by creating an administrative record for the court to
reference. Id. The benefits of proper exhaustion are
only realized if the prison grievance system is given a
"fair opportunity to consider the grievance" which
will not occur "unless the grievant complies with the
system's critical procedural rules." Id. at
95; see also Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008). As the Supreme Court has noted, if a
prisoner could properly exhaust his claims without complying
with the procedural rules of the prison's grievance
system, a prisoner who did not want to participate in the
prison grievance process could avoid the process altogether
by simply filing a prison grievance he knew would be
dismissed for procedural deficiency. Id. at 96. To
prevent this type of abuse, the Fourth Circuit has held that
a prisoner cannot exhaust his administrative remedies by
failing to follow the required procedural steps, and the
proper return of an improperly filed grievance does not serve
to exhaust a prisoner's administrative remedies.
Moore, 517 F.3d at 725, 729.
addition, a prisoner must exhaust all available
administrative remedies, whether or not they meet federal
standards or are plain, speedy or effective, Porter v.
Nussle, 534 U.S. 516, 524 (2002), and even if exhaustion
would be futile because those remedies would not provide the
relief the inmate seeks. Davis v. Stanford, 382
F.Supp.2d 814, 818 (E.D. Va. 2005) (Hilton, J.),
affd, 127 Fed.App'x 680 (4th Cir. May 10, 2005).
"The only limit to § 1997e(a)'s mandate is the
one baked into its text: An inmate need exhaust only such
administrative remedies as are 'available.'"
Ross v. Blake, __ U.S.__, __, 136S.Ct. 1850,
1862(2016). Administrative remedies are not considered to be
available "when (despite what regulations or guidance
materials may promise) it operates as a simple dead end-with
officers unable or consistently unwilling to provide any
relief to aggrieved inmates, " when "some mechanism
exists to provide relief, but no ordinary prisoner can
discern or navigate it, " or "when prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation." Id. at __, 136 S.Ct. at 1859-60.
as here, a Virginia prisoner is confined in a state jail,
before bringing an action in federal court he must receive a
response to his properly-filed grievance and, if
unsatisfactory, he must pursue it through all available
levels of appeal before presenting that claim in federal
court. Specifically, Virginia Department of Corrections
Operating Procedure ("VDOC OP") 866.1 requires that
"[g]rievances are to be submitted within 30 calendar
days from the date of occurrence/incident or discovery of the
occurrence/incident, except in instances beyond the
offender's control." VDOC OP 866. 1(VI)(A)(1)(a).
"Those grievances that do not meet the filing
requirements of [VDOC] ¶ 866.1 are returned to ...