United States District Court, W.D. Virginia, Roanoke Division
K. MOON, UNITED STATES DISTRICT JUDGE
Bayadi, a Virginia inmate proceeding pro se, filed a
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that Wallens Ridge State Prison (“Wallens
Ridge”) Warden Flemingand Virginia Department of
Corrections (“VDOC”) Director Clarke retaliated
against him and, later, Wallens Ridge Institutional Ombudsman
Ravizee rejected a grievance in an effort to “cover
up” the retaliation. Defendants filed a motion for
summary judgment and Bayadi responded, making this matter
ripe for disposition. After reviewing the record, I conclude
that defendants' motion for summary judgment must be
alleges that on August 31, 2015, he was transferred from Keen
Mountain Correctional Center (“Keen Mountain”), a
security level 4 facility, to Wallens Ridge, a security level
5 facility, “for no valid reason.” Upon his
arrival at Wallens Ridge, Bayadi was placed in segregation.
On September 8, 2015, Bayadi, who is Muslim, was moved to
general population and placed in a cell with an inmate
“who is a known member of” the Aryan Brotherhood
and who “hates Muslims.” Bayadi alleges that the
other inmate told Bayadi that he and Warden Fleming “go
way back” and that Fleming “wants” him to
“beat [Bayadi] up really bad.” Bayadi also
alleges that the other inmate told Bayadi that if Bayadi
“bothered him at all, he would bash [Bayadi's] head
in with his TV, because he can afford to buy a new one . . .
.” Bayadi does not allege that the other inmate ever
actually hurt him. Bayadi was moved to segregation on
September 30, 2015 after he stated that he feared for his
life in the pod to which he was assigned.
alleges that his transfer to Wallens Ridge and his cell
assignment were retaliation for him having previously filed
two civil rights actions against defendants Fleming and
Clarke. Bayadi states that defendant Ravizee dismissed a
grievance concerning his transfer to Wallens Ridge in an
effort to “cover up” Clarke and Fleming's
their motion for summary judgment, defendants argue that
Bayadi failed to exhaust administrative remedies and that the
claims nevertheless are meritless. It is undisputed that
Bayadi filed an informal complaint at Wallens Ridge
concerning his transfer. It is also undisputed that Bayadi
filed a regular grievance at Wallens Ridge concerning his
transfer, which defendant Ravizee rejected at intake,
indicating that the grievance should have been filed at Keen
Mountain. Bayadi appealed the intake decision to no avail.
Bayadi did not file any grievances at Keen Mountain
concerning his transfer and that Bayadi did not file any
grievances at Wallens Ridge concerning his cell assignment.
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). In adjudicating a motion for summary
judgment, 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. 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
Regional Ombudsman. Pursuant to the OP, if an offender has
been transferred, the inmate should submit the informal
complaint and subsequent grievance to the facility where the
issue originated. When an indigent inmate has been
transferred, the Institutional Ombudsman/Grievance
Coordinator will forward the informal complaint and
subsequent grievance to the facility where the issue
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, I am
“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. § ...