United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge
Darden, a Virginia inmate proceeding pro se, filed a
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that the defendant violated his religious rights.
Defendant filed a motion for summary judgment, and Darden
responded, so this matter is ripe for disposition. Having
considered the record, the court concludes that
defendant's motion for summary judgment must be granted.
a Sunni Muslim, alleges that the defendant violated his
rights under the Religious Land Use and Institutionalized
Persons Act (“RLUIPA”) and First Amendment by not
permitting group prayer in his housing unit during recreation
time and by not allowing him to freely wear his kufi around
the prison. Darden states that the prison prohibitions on
group prayer and wearing his kufi impose a substantial burden
on him. Darden believes that his prayers will not be accepted
by Allah and/or he will not receive “requisite
blessings” from Allah if he cannot participate in group
prayer and wear his kufi, especially during prayer. In his
verified complaint, Darden alleges that he filed an informal
complaint on September 9, 2015, and that the defendant
responded to it on September 25, 2015, by stating,
“Your religious rights are not being violated. You can
pray in your cell and at your specific religious
service.” On September 29, 2015, Darden filed a regular
grievance that was rejected at intake, indicating that Darden
had failed to utilize the informal process to resolve his
complaint as required by the Virginia Department of
Corrections' (“VDOC”) grievance procedure.
Darden alleges that his regular grievance “was not
logged, ” violating his right “to be free to
petition the government seeking redress of grievances.”
In his motion for summary judgment, defendant argues that
Darden failed to exhaust administrative remedies prior to
filing this action. Defendant states that although Darden
filed a regular grievance pertaining to the subject matter of
his § 1983 complaint, the regular grievance was rejected
at the intake level on the basis that Darden failed to
utilize the informal process to resolve his complaint before
filing the grievance. Specifically, Darden did not attach an
informal complaint with his regular grievance or resubmit his
grievance with an informal complaint attached. Darden also
did not request that the Regional Ombudsman review the intake
decision for this grievance. Further, Darden did not file an
informal complaint or grievance concerning his September 29,
2015 grievance being rejected at intake.
response to the motion for summary judgment, Darden argues
that he “did in fact exhaust his administrative
remedies.” He acknowledges that his grievance was
rejected “because of technical reasons, ” but
argues that these reasons are “insufficient to deem his
complaint unexhausted” because he was not given the
opportunity to “redeem his complaint by reattaching
said ‘informal complaint' to the grievance.”
He does not allege that anyone prevented him from
re-submitting the grievance or appealing the intake decision.
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 issue 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, admissible facts that demonstrate the existence of
a genuine issue of fact for trial. Id. at 322-23. 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); see Ennis v. Nat'l
Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55,
62 (4th Cir. 1995) (“Mere unsupported speculation . . .
is not enough to defeat a summary judgment motion.”).
However, summary judgment is not appropriate where the
ultimate factual conclusions to be drawn are in dispute.
Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931,
937 (4th Cir. 1991). A court may not resolve disputed facts,
weigh the evidence, or make determinations of credibility.
Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th
Cir. 1995); Sosebee v. Murphy, 797 F.2d 179, 182
(4th Cir. 1986). Instead, a court accepts as true the
evidence of the non-moving party and resolves all internal
conflicts and inferences in the non-moving party's favor.
Charbonnages de France v. Smith, 597 F.2d 406, 414
(4th Cir. 1979).
Operating Procedure (“OP”) § 866.1, Offender
Grievance Procedure, is the mechanism used to resolve inmate
complaints and requires that, before submitting a formal
grievance, the inmate must demonstrate that he has made a
good faith effort to resolve the grievance informally through
the procedures available at the institution to secure
institutional services or resolve complaints.
informal resolution effort fails, the inmate must initiate a
regular grievance by filling out the standard “Regular
Grievance” form. If the inmate submits a regular
grievance, he must attach required documents, including the
informal complaint, to demonstrate his or her attempt to
resolve the issue informally. Prior to review of the
substance of a grievance, prison officials conduct an
“intake” review of the grievance to assure that
it meets the published criteria for acceptance. A grievance
meeting the criteria for acceptance is logged in on the day
it is received. If the grievance does not meet the
criteria for acceptance, prison officials complete the
“Intake” section of the grievance and return the
grievance to the inmate. If the inmate desires a review of
the intake decision, he must send the grievance form to the
Prison Litigation Reform Act (“PLRA”) provides
that “[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.” 42 U.S.C. 1997e(a). “[E]xhaustion is
mandatory under the PLRA and . . . unexhausted claims cannot
be brought in court.” Jones v. Bock, 549 U.S.
199, 211 (2007) (citing Porter v. Nussle, 534 U.S.
516, 524 (2002)). “‘[T]he language of section
1997e(a) clearly contemplates exhaustion prior to
the commencement of the action as an indispensible
requirement, thus requiring an outright dismissal [of
unexhausted claims] rather than issuing continuances so that
exhaustion may occur.'” Carpenter v.
Hercules, No. 3:10cv241, 2012 U.S. Dist. LEXIS 72096, at
*12, 2012 WL 1895996, at *4 (E.D. Va. May 23, 2012) (emphasis
in original) (quoting Johnson v. Jones, 340 F.3d
624, 628 (8th Cir. 2003)). The exhaustion requirement
“allow[s] a prison to address complaints about the
program it administers before being subjected to suit,
reduc[es] litigation to the extent complaints are
satisfactorily resolved, and improv[es] litigation that does
occur by leading to the preparation of a useful
record.” Jones, 549 U.S. at 219. 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).
an inmate must follow the required procedural steps in order
to exhaust his administrative remedies. Moore v.
Bennette, 517 F.3d 717, 725, 729 (4th Cir. 2008);
see Langford v. Couch, 50 F.Supp.2d 544, 548 (E.D.
Va. 1999) (“[T]he PLRA amendment made clear that
exhaustion is now mandatory.”). But, the court is
“obligated to ensure that any defects in administrative
exhaustion were not procured from the action or inaction of
prison officials.” Aquilar-Avellaveda v.
Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007); see
Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). An
inmate need only exhaust “available” remedies. 42
U.S.C. § 1997e(a). An administrative remedy is not
available “if a prisoner, through no fault of his own,
was prevented from availing himself of it.” Moore
v. Bennette, 517 F.3d at 725.
undisputed that Darden's regular grievance was rejected
at intake because he did not attach the informal complaint
form to the grievance, as required by the VDOC grievance
procedure. It is also undisputed that Darden did not seek
review of the intake decision by the Regional Ombudsman, as
required by the VDOC grievance procedure. Finally, it is
undisputed that Darden did not resubmit his regular grievance
with the required documentation or file an informal complaint
or grievance concerning the intake decision. Accordingly, it
is clear to the court that Darden did not exhaust available
administrative remedies prior to filing this action, and