United States District Court, W.D. Virginia, Roanoke Division
E. Conrad Chief United States District Judge
Herman Adams, a Virginia inmate proceeding pro se, filed this
civil rights action pursuant to 42 U.S.C. § 1983,
alleging that prison officials at Red Onion State Prison
placed him in four-point restraints for eight hours without
justification or due process. Upon review of the record, the
court finds that the action must be summarily dismissed under
42 U.S.C. § 1997e(a), because it is clear from the face
of the complaint that Adams did not file a grievance before
commencing this lawsuit.
is incarcerated at Wallens Ridge State Prison ("Wallens
Ridge"). He alleges that on September 16, 2015,
"Adams was informed by Light to pack his personal
property after he stopped kicking his cell door, after Adams
advised Collins that Corrections Officer J. Dean had denied
him his outside recreation, then Collins said to Adams that
'my officers don't lie.'" (Compl. Attach. 3
¶ 1, ECF No. 1-3.) Thereafter, officers escorted Adams
to another cell, stripped him to his undershorts, placed a
chain linking his handcuffs, waist chain, and leg irons, and
left him restrained in that manner for nearly eight hours.
Later that day, Collins brought a disciplinary charge against
Adams for tampering with security equipment or device.
filed this § 1983 action in January 2017. Liberally
construing his complaint, he alleges that holding him in
four-point restraints for nearly eight hours without a
hearing violated his rights under the Eighth and Fourteenth
Amendments; Collins violated due process by bringing a false
disciplinary charge; and supervisory officials allowed these
violations to occur. As relief, Adams seeks monetary damages.
Prison Litigation Reform Act ("PLRA") provides,
among other things, that a prisoner cannot bring a civil
action concerning prison conditions until he has first
exhausted available administrative remedies. Nussle v.
Porter, 534 U.S. 516, 524 (2002). This exhaustion
requirement is "mandatory." Ross v. Blake.
136 S.Ct. 1850, 1856 (2016). It applies to "all inmate
suits, whether they involve general circumstances or
particular episodes, . . . whether they allege excessive
force or some other wrong, " and whether or not the form
of relief the inmate seeks is available through exhaustion of
administrative remedies. Id. (citing Booth v.
Churner, 532 U.S. 731, 741 (2001)). To comply with
§ 1997e(a), an inmate must properly follow each step of
the established administrative procedure that the state
provides to prisoners and meet all deadlines within that
procedure before filing his § 1983 action. See
Woodford v. Ngo, 548 U.S. 81, 90-94 (2006). "A
court may sua sponte dismiss a complaint when the alleged
facts in the complaint, taken as true, prove that the inmate
failed to exhaust his administrative remedies."
Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).
court takes judicial notice of the fact that Virginia
Department of Corrections ("VDOC") Operating
Procedure ("OP") 866.1 is the written
administrative remedies procedure that VDOC inmates, such as
Adams, must follow to comply with §
19976(a). Under OP 866.1, an inmate with a grievance
about some event or issue must first make a good faith effort
to resolve his concerns informally immediately after the
incident, normally by filing an informal complaint form.
Prison staff should provide the inmate with a written
response on the bottom of the informal complaint form and
return it to him within fifteen days. The inmate can then
initiate the next step under OP 866.1 - a regular grievance,
with the informal complaint attached.
regular grievance must be filed within 30 days of the
occurrence about which it complains. After investigation of
the grievance, the warden or his designee will send the
inmate a Level I response. If the responding official
determines the grievance to be "unfounded, " for
full exhaustion of available remedies, the inmate, must
appeal that holding to Level II, the regional administrator,
and in some cases, to Level III.
face of his complaint, Adams states that he did not file any
grievances regarding the claims raised in his § 1983
complaint. He has also submitted copies of other remedy forms
he filed, purportedly in an effort to exhaust. More than a
year after the incident at issue, Adams first filed an
informal complaint form, dated October 16, 2016, complaining
that officers had placed him in "ambulatory
restraints" for eight hours on September 16, 2016.
(V.S., at 3, ECF No. 2.) The response, dated October 21,
2016, stated that according to records, no ambulatory
restraints had been applied to Adams on September 16, 2016.
Adams filed a second informal complaint, dated October 24,
2016, making the same complaint, but stating the correct date
of the ambulatory restraints incident as September 16, 2015.
The written response, dated November 11, 2016, indicated that
Adams' had waited more than 30 days to file an informal
complaint about a September 2015 incident. Based on this
response, Adams argues that he had no available
administrative remedies in October 2016 and that any attempt
to file a regular grievance or further appeals was futile. He
argues that this alleged futility in 2016 excused him from
the exhaustion requirement under § 1997e(a). He is
does not state any facts suggesting that the grievance
procedures at Wallens Ridge were unavailable to him in any
respect in September and October 2015, or that the procedures
did not offer any relief. Ross, 136 S.Ct. at 1859.
Rather, Adams' allegations, taken as true, show that he
failed to attempt exhaustion of such grievance procedures
immediately following the September 2015 incident and,
instead, waited more than a year to file his first informal
complaint forms about it. Once told that he had filed outside
the 30-day deadline for a regular grievance, he stopped
attempting exhaustion. Thus, it is clear from the face of
Adams' complaint and attachments that he did not complete
the available steps in the VDOC grievance procedure: he did
not file a timely informal complaint or regular grievance in
the 30 days following the incident and, as a consequence,
failed to pursue the administrative remedies and appeals then
available to him under OP 866.1. The court concludes that
this clear failure to comply with 42 U.S.C. § 1997e(a)
before filing his § 1983 complaint bars this lawsuit.
Accordingly, the court will summarily dismiss the action
without prejudice. An appropriate order will issue this day.
Clerk is directed to send copies of this memorandum opinion
and accompanying order to plaintiff.