United States District Court, W.D. Virginia, Roanoke Division
MICHAEL N. BROWN, Plaintiff,
EARL R. BARKSDALE, ET AL., Defendants.
Michael N. Brown, Pro Se Plaintiff.
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.
P. JONES, UNITED STATES DISTRICT JUDGE
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.
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,  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.” Compl. ¶ 4, ECF No. 1.
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.
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
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.
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
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
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.
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) ...