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Childress v. Ainsworth

United States District Court, W.D. Virginia, Roanoke Division

February 27, 2017

ERIC LEE CHILDRESS, Plaintiff,
v.
S. AINSWORTH, ET AL., Defendants.

          Eric Lee Childress, Pro Se Plaintiff; Rosalie Pemberton Fessier, Timberlake, Smith, Thomas & Moses, P.C., Staunton, Virginia, for Defendants.

          OPINION AND ORDER

          James P. Jones United States District Judge

         The 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.

         I.

         Childress 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.

         Childress 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.

         On 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 assault.

         Childress filed his § 1983 Complaint in May 2016, seeking monetary damages against Ainsworth and Murphy, respectively, for sexual assault and bystander liability.[1] 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.

         II.

         An 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.

         The 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).

         The 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).

         If the 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 ...


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