United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge.
Kershner, a Virginia inmate proceeding pro se, filed a civil
rights complaint pursuant to 42 U.S.C. § 1983, naming
various correctional and medical staff associated with River
North Correctional Center ("RNCC"). Plaintiff
argues that defendants violated the Eighth Amendment by
failing to protect him from another inmate's attack and
for deliberate indifference to resultant serious medical
needs. Defendants Rose Dulaney, Rachel Wells, Christie King,
and Lisa Parks (collectively, "Medical Defendants")
filed a motion for summary judgment, arguing that Plaintiff
failed to exhaust available administrative remedies. ECF Nos.
34, 42. After reviewing the record, the court finds that the
Medical 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.
submitting a regular grievance, the inmate must make a
good-faith effort to informally resolve the issue by
submitting an informal complaint form, which is available in
housing units. If still unsatisfied, an 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 receipt.
filed informal complaints about the attack on March 8, 9, and
11, 2015, and filed regular grievances on March 11 and 18,
2015. However, none of the submissions addressed allegedly
deficient medical care. Consequently, Plaintiff fails to
establish that he pursued available administrative remedies
about the medical care within thirty days of the attack or
that administrative remedies were not available. Moreover,
there is no unwritten "special circumstances"
exception to 42 U.S.C. § 1997e(a) to allow the claims
about the medical care to proceed, regardless of any injuries
sustained. Ross v. Blake, U.S., 136 S.Ct. 1850, 1855
(2016). Accordingly, the four Medical Defendants (Rose
Dulaney, Rachel Wells, Christie King and Lisa Parks) are
entitled to summary judgment pursuant to 42 U.S.C. §
1997e(a), and the case is dismissed as to them.
 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 facts are 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
 A copy of the intake decision is kept
in the inmate's ...