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Brown v. Barksdale

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

August 7, 2017

MICHAEL N. BROWN, Plaintiff,
EARL R. BARKSDALE, ET AL., Defendants.

          Michael N. Brown, Pro Se Plaintiff.

          Nancy Hull Davidson, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants Barksdale, Parr, Messer, Fore, Mullins, and Owens; Mary Foil Russell, Russell Law Firm, Bristol, Virginia, for Defendant Gullion.



         Michael N. Brown, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983, alleging that prison officials delayed treatment for his broken foot. After review of the record, I conclude that the defendants' dispositive motions must be granted.


         Brown is incarcerated at Red Onion State Prison (“Red Onion”) in a segregation cell. At about 9:00 a.m. on the morning of July 3, 2015, while kicking the door of his cell because an officer refused him a shower, Brown broke a bone in his right foot. Brown allegedly told two defendants, Officer Mullins and Nurse Gullion, [1] that he had broken his foot, but they did nothing for him. In the next several hours, Brown allegedly filed six Emergency Grievance forms, asking for medical attention for a broken foot. He alleges, “The defendants proceeded to destroy each Emergency Grievance I placed in my cell door #320 that day to prolong my suffering and deny me access to medical treatment.”[2] Compl. ¶ 4, ECF No. 1.

         About 3:00 p.m. during afternoon rounds, Nurse Gullion and Officer Owens came to Brown's cell door and looked at Brown's foot. Gullion states that was foot was “swollen and red, but there was no life threatening emergency.” Gullion Aff. ¶ 10, ECF No. 29-1. Gullion said that he would ask someone to sign the Emergency Grievance form and have Brown brought to medical.

         An hour later, Sergeant Fore allegedly “removed and destroyed that 5th Emergency Grievance, ” gave Brown a blank form, and told him to “fill this one out without naming any Guards [and] then [he] could go to medical for an evaluation.” Compl. ¶ 7, ECF No. 1. Brown did so, Fore accepted the Emergency Grievance, and Nurse Gullion marked that the situation was “an emergency” for which Brown would be brought to medical. Compl. Ex. A, ECF No. 1-1.

         Between 4:26 and 4:55 p.m., Fore escorted Brown to medical, where other medical staff monitored his condition. The next morning, staff notified Dr. Smith, who verbally ordered an ice pack two times per day, continued pain medication, elevation of the injured foot, and an X ray. The X ray, performed on July 6, indicated a “NONDISPLACED FRACTURE THE BASE OF THE FIFTH METATARSAL.” Gullion Aff. ¶ 17, ECF No. 29-1. Staff provided Brown with an elastic bandage that he wrapped around his foot.

         Brown thereafter filed this § 1983 action against Defendants Barksdale, Parr, Messer, Fore, Mullins, Owens, Gullion, and a John Doe officer, seeking monetary damages. Barksdale, Parr, Messer, Fore and Mullins have filed a Motion for Summary Judgment, and Owens has filed a Motion to Dismiss. By separate counsel, Gullion has filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment. Brown has responded to all the motions, and I find them ripe for disposition.


         The Prison Litigation Reform Act, 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), and “applies to all inmate suits about prison life.” 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 and meet all deadlines within that procedure. See Woodford v. Ngo, 548 U.S. 81, 90-94 (2006). Even if the particular form of relief the inmate seeks in his lawsuit is not available through the prison's grievance proceedings, he must, nevertheless, exhaust properly all available remedies under that procedure before bringing a civil action in this court. Booth v. Churner, 532 U.S. 731, 741 (2001).

         Operating Procedure 866.1 is the written administrative remedies procedure that VDOC inmates must follow to comply with § 1997e(a). Messer Aff. ¶ 4 & Enclosure A, ECF No. 25-3. Under this procedure, an inmate with a grievance about some event or issue must first make a good faith effort to resolve his concerns informally, which he may do by completing an Informal Complaint form and submitting it to prison staff. Id. at ¶ 6. The form clearly states: Only one issue per Informal Complaint.” Id. at Enclosure B. Under OP 866.1(V)(B)(3), a staff member receiving an Informal Complaint shall log it into VACORIS (the VDOC's computer data base) and give the inmate a receipt form. OP 866.1(V)(D) states that Informal Complaints “must be addressed at the facility level and may not be referred to departments outside the facility.” Id. at Enclosure A.

         An inmate should receive a written response on the bottom of the Informal Complaint form within fifteen days, in order to allow him to initiate the formal grievance procedure by filing a Regular Grievance within thirty days of the occurrence about which it complains. Id. at ¶ 6. The Regular Grievance form clearly states: “Only one issue per grievance will be addressed.” Id. at Enclosure B. After investigation of the Regular Grievance, the warden or his designee will send the inmate a Level I response. Id. at ¶ 8. If the responding official determines the grievance to be “unfounded, ” the inmate must appeal that holding to Level II, the regional administrator, and in some cases, to Level III. Id. OP 866.1(VI)(D)(5) ...

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