United States District Court, W.D. Virginia, Roanoke Division
Lee Childress, Pro Se Plaintiff; Rosalie Pemberton Fessier,
Timberlake, Smith, Thomas & Moses, P.C., Staunton,
Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge
plaintiff, Eric Lee Childress, a Virginia inmate proceeding
pro se, brought this civil rights action under 42 U.S.C.
§ 1983, alleging that a jail investigator sexually
assaulted him during a pat down search. After careful review
of the record, I conclude that the defendants' Motion for
Summary Judgment on the ground of failure to exhaust
administrative remedies must be denied.
was confined at the New River Valley Regional Jail for
several months as a pretrial detainee. He alleges that on
December 2, 2014, jail investigator S. Ainsworth and officers
J. Murphy and Atkins came to his cell to conduct a cell
search. While Murphy searched the cell for contraband,
Ainsworth told Childress to stand facing the wall of the cell
for a pat down search. During the course of this pat down,
Ainsworth allegedly fondled Childress's testicles and
penetrated his rectum with an unidentified object. Childress
said aloud that Ainsworth was hurting him, but Murphy did not
stop Ainsworth's actions.
filed a request form on December 7, asking to speak with a
mental health nurse about sexual assault. Murphy allegedly
intercepted and destroyed this form. Childress filed a
request form to the superintendant about the loss of his
prior request and was allegedly told to forward all request
forms to the superintendant.
December 8, 2014, with the help of a jail captain, Childress
filed a complaint with the Virginia State Police and was
transported to a local hospital. Medical staff there
allegedly took pictures and told Childress that they saw
evidence of healing to the rectum area. Childress alleges
that he suffered psychological and physical damage from the
filed his § 1983 Complaint in May 2016, seeking monetary
damages against Ainsworth and Murphy, respectively, for
sexual assault and bystander liability. The defendants
have filed a Motion for Summary Judgment, supported with the
affidavit of the jail superintendant. Their motion contends
that Childress is barred from pursuing this action because he
failed to exhaust available administrative remedies at the
jail before filing the lawsuit. Childress has responded to
the motion, making the matter ripe for resolution.
award of summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). In determining whether to
grant a motion for summary judgment, the court must take the
non-movant's evidence as true and draw “all
justifiable inferences” from the evidence in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). To withstand a summary judgment motion, the
non-movant must produce sufficient evidence from which a
reasonable fact finder could return a verdict in his favor.
Id. at 249-50.
Prison Litigation Reform Act (“PLRA”), among
other things, provides in 42 U.S.C. § 1997e(a) that a
prisoner cannot bring a civil action concerning prison
conditions until he has first exhausted available
administrative remedies. This exhaustion requirement is
“mandatory.” Ross v. Blake, 136 S.Ct.
1850, 1856 (2016). It “applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle,
534 U.S. 516, 532 (2002). To comply with § 1997e(a), an
inmate must follow each step of the established grievance
procedure that the facility provides to prisoners before
filing his § 1983 action. See Woodford v. Ngo,
548 U.S. 81, 90-94 (2006). The defendants bear the burden of
proving the affirmative defense that Childress failed to
exhaust available administrative remedies regarding his
claims before filing suit. Jones v. Bock, 549 U.S.
199, 216 (2007).
jail's Inmate Grievance Procedure is set forth in the
Inmate Handbook. As the first step in the procedure, the
inmate must make a good faith effort to resolve the complaint
informally by talking with the staff member(s) involved or
the supervisor within three days of the incident. If this
effort does not resolve the issue, then the inmate may submit
a written Request to Staff to the Shift Commander
within seven days of the incident. If still dissatisfied with
the officials' responses, then the inmate may submit an
Offender Grievance Form along with a copy of the
Request to Staff within ten days from the date of
the response to the Request to Staff. An
Offender Grievance Form will not be accepted if
submitted more than thirty days from the incident or from the
response to the Request to Staff unless the
Superintendent orders an exception. Jail staff members are to
respond to an Offender Grievance Form within nine
days of receipt (Level I).
inmate is not satisfied with the Level I response, then he
has forty-eight hours to note an appeal. Within forty-eight
hours of receiving a Level II response, the inmate may appeal
it to the ...