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Jackson v. Barksdale

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

August 10, 2017

DEANDRE L'OVERTURE JACKSON, Plaintiff
v.
EARL BARKSDALE, ET AL., Defendants

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge

         The plaintiff, DeAndre L'Overture Jackson, (“Jackson”), an inmate formerly incarcerated at Red Onion State Prison, (“Red Onion”), and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendants, all of whom are employees of the Virginia Department of Corrections, (“VDOC”), have violated his constitutional rights. This case is before the court on the Defendants' Motion For Summary Judgment, in which they argue that Jackson's claims should be dismissed for failure to exhaust his administrative remedies, (Docket Item No. 20) (“Motion”). None of the parties has requested a hearing on the Motion, making the matter ripe for disposition. For the reasons contained in this Memorandum Opinion, I will grant summary judgment in favor of all of the defendants and dismiss all of Jackson's claims against them.

         I. Facts[1]

         Jackson is a VDOC inmate formerly housed at Sussex I State Prison, (“Sussex I”), and Red Onion.[2] He claims that he was denied necessary medical treatment following an altercation with his cellmate on December 20, 2016, while at Red Onion. Jackson also claims that the defendants transferred him from Sussex I to Red Onion on March 22, 2016, by using forged documents and that his rights were violated when he was placed into general population at Red Onion without due process. He further claims that his personal property was confiscated and destroyed without due process following the December 20, 2016, altercation and that he was forced to take a cold shower in his boxer shorts with no soap, he was not allowed to dry off, and he was placed in a cold segregation cell without a mattress or linens. Jackson also claims that Unit Manager Younce retaliated against him for filing other lawsuits by placing him into a cell with a known aggressive inmate who later assaulted him, and, on another occasion, by placing him into a cell with a high security mentally ill inmate. Finally, he claims that he has filed some grievances to which he never received responses.

         In the Motion, the defendants argue that Jackson failed to exhaust his administrative remedies with regard to any of the claims contained in his Amended Complaint, (Docket Item No. 5). In support of the Motion, the defendants have supplied a sworn affidavit from J. Messer, a Human Rights Advocate at Red Onion responsible for maintaining offender grievance files. (Docket Item No. 21-1, (“Messer Affidavit”), at 1.) In her affidavit, Messer stated that the Offender Grievance Procedure, set out in Operating Procedure, (“OP”), 866.1, provides the mechanism by which offenders are to resolve complaints, appeal administrative decisions and challenge the substance of procedures. (Messer Affidavit at 2.) Each offender is entitled to use the grievance procedure for problem resolution, and reprisals are not imposed upon offenders for filing grievances in good faith. (Messer Affidavit at 2.) Grievances are to be submitted within 30 calendar days from the date of the incident at issue. (Messer Affidavit at 2.) However, prior to submitting a regular grievance, the offender must demonstrate that he has made a good faith effort to informally resolve his complaint, which he may do by submitting an informal complaint form to the appropriate department head. (Messer Affidavit at 2.) Prison staff should respond to the offender's informal complaint within 15 calendar days to ensure that the informal response is provided prior to the expiration of the 30-day time period in which an offender may file his regular grievance. (Messer Affidavit at 2.) When filing a regular grievance, the offender must attach any required documentation regarding his attempt to informally resolve the issue. (Messer Affidavit at 2.) Only one issue per grievance form is addressed. (Messer Affidavit at 2.) Grievances must be appealed through all available levels of review to satisfy the exhaustion requirement before filing a lawsuit. (Messer Affidavit at 2.) The filing of an informal complaint without any further action does not satisfy the exhaustion requirement. (Messer Affidavit at 5.)

         Grievances which do not meet the filing requirements of OP 866.1 are returned to the offender within two working days from the date of receipt, noting the reason for return on the intake section of the grievance form. (Messer Affidavit at 3.) When feasible, the offender is instructed how to remedy any problems with the grievance. (Messer Affidavit at 3.) A copy is made of all grievances returned to the offender, with the justification for return noted on the second page of the grievance form. (Messer Affidavit at 3.) If an offender seeks review of the intake decision on any grievance, he may send the grievance to the Regional Ombudsman. (Messer Affidavit at 3.) There is no further review of the intake decision. (Messer Affidavit at 3.)

         If a regular grievance is accepted during the intake process, there are three levels of review available. (Messer Affidavit at 3.) Level I reviews are conducted by the Warden or Superintendent of the prison. (Messer Affidavit at 3.) If the offender is dissatisfied with the determination, he may appeal to Level II. (Messer Affidavit at 3.) Level II responses are provided by the Regional Administrator, Health Services Director, Chief of Operations for Offender Management Services or Superintendent for Education. (Messer Affidavit at 3.) For most issues, Level II is the final level of review. (Messer Affidavit at 3.) For those issues appealable to Level III, the Deputy Director or Director of the VDOC conducts a review of the regular grievance. (Messer Affidavit at 3.) The time limit for issuing a Level I response is 30 days, 20 days for a Level II response and 20 days for a Level III response. (Messer Affidavit at 3.) Expiration of the time limit without issuance of a response at any stage of the process automatically qualifies the grievance for appeal. (Messer Affidavit at 3.)

         Messer stated that a review of Jackson's grievance file showed that he submitted Informal Complaint ROSP-16-INF-02470, dated December 11, 2016, complaining that he did not receive a response from Regular Grievance ROSP-16-REG-00413 on November 14, 2016, that he felt like staff were retaliating against him and that his safety was in jeopardy. (Messer Affidavit at 4; Encl. B to Messer Affidavit.) Shannon Escoffery responded to ROSP-16-INF-02470 on December 13, 2016, advising Jackson that records showed that the grievance in question was logged out, and a copy was sent to him on November 14, 2016. (Messer Affidavit at 4; Encl. B to Messer Affidavit.) The grievance in question, ROSP-16-REG-00413, dated October 12, 2016, was a complaint about a power of attorney and certain copies that he had requested from Counselor Nicole Deel not being timely returned to him, causing him to miss a court deadline.[3] (Messer Affidavit at 4; Encl. C to Messer Affidavit; Encl. C to Messer Affidavit.) A Level I response, dated November 14, 2016, was provided to Jackson. (Messer Affidavit at 4; Encl. C to Messer Affidavit.) In this response, Jackson's grievance was deemed unfounded based upon Counselor Deel's statement that she returned the copies to Jackson at the earliest opportunity upon receiving his request and that he provided no proof of a court deadline when asked. (Encl. C to Messer Affidavit.) It was noted that Jackson's request would have been given priority if he had provided Deel with documentation of such a deadline. (Encl. C to Messer Affidavit.) Level I grievance responses are sent to the offenders through the institutional mail system. (Messer Affidavit at 4.) Messer stated that she had no reason to believe that Jackson did not receive the Level I response, but that he could have requested another copy of the grievance response. (Messer Affidavit at 4.)

         Jackson submitted another Informal Complaint, ROSP-16-INF-02570, dated December 26, 2016, complaining that his television and other property were confiscated on December 20, 2016, because there was blood on the items, and he wanted the opportunity to clean off his television so he could keep it. (Messer Affidavit at 5; Encl. D to Messer Affidavit; Docket Item No. 30-1 at 12.) Sergeant Farmer responded on January 3, 2017, advising Jackson that records reflected the television was disposed of shortly after the incident on December 20, 2016. (Messer Affidavit at 5; Encl. D. to Messer Affidavit; Docket Item No. 30-1 at 12.) Pursuant to OP 802.1, which governs Offender Property, and OP 740.2, which governs Infectious Waste Management and Disposal, staff are required to observe universal precautions and immediately dispose of any items containing blood. (Messer Affidavit at 5; Encl. D to Messer Affidavit; Docket Item No. 30-1 at 12.) Jackson has provided the court with a regular grievance, dated January 4, 2017, in which he complained about the seizure and disposition of his personal property, including his television, because it had blood on it from the December 20, 2016, altercation. (Docket Item No. 2 at 2.) He alleged that the property should have been returned to him so that he could dispose of it himself. Jackson requested to be reimbursed for his property and to be transferred to a security level 3 prison.[4]This regular grievance, however, was rejected at intake on January 6, 2017, due to an expired filing period.

         The court notes that a Notice of Confiscation of Property was signed by Jackson on December 21, 2016 which stated that a television, headphones and mail/legal mail were seized on that date. (Docket Item No. 30-1 at 14.) The television and mail/legal mail were seized because they had blood on them, and the headphones were seized because they were “altered.” On this signed Notice, Jackson was advised that he may appeal the confiscation of property through the offender grievance procedure, but any such complaint must be submitted within seven days of receipt of the Notice. It further indicated that the Notice completed the informal process of the grievance procedure. As stated above, the grievance procedure normally allows an offender 30 days from the date of the incident to file a regular grievance. However, the grievance procedure also states as follows: “Grievances are to be submitted within 30 calendar days from the date of occurrence/incident … except in instances: … [w]here a more restrictive time frame has been established in operating procedures to prevent loss of remedy or the issue from becoming moot.” (Docket Item No. 21-1 at 13.) Jackson appealed the intake decision to the Regional Ombudsman on January 11, 2017, but the decision was upheld, noting that the property confiscation form was signed and dated December 21, 2016. (Docket Item No. 2 at 3.) The regular grievance form itself states that the Regional Ombudsman's decision is final, and pursuant to OP 866.1, if a regular grievance is deemed to not meet the criteria for acceptance and review by the Regional Ombudsman, this does not result in intake into the grievance process. (Docket Item No. 21-1, (“OP 866.1”), at 12.) Instead, the issue must be resubmitted in accordance with the criteria for acceptance. The exhaustion of remedies will be met only when the regular grievance has been accepted into the grievance process and appealed through the highest eligible level without satisfactory resolution of the issue.

         Jackson submitted another Informal Complaint, ROSP-17-INF-00035, dated January 3, 2016, [5] complaining that he did not receive any medical treatment or medication after the December 20, 2016, altercation with his cellmate and that he was placed in a cold segregation cell while still wet, without shoes or clothes. (Messer Affidavit at 5.) Nurse Bledsoe responded on January 6, 2017, advising Jackson that, per Incident Report 16-0484, he refused any treatment from the Medical Department and that the nurse who assessed him advised him to follow up with the Medical Department as needed. (Messer Affidavit at 5; Encl. E to Messer Affidavit.)

         Jackson submitted another Informal Complaint, ROSP-17-INF-00051, dated January 4, 2017, and directed to the Warden, in which he complained that after being stabbed during the December 20, 2016, altercation, no incident report was prepared by anyone, and if such an incident report had been prepared, he would have seen a doctor. (Docket Item No. 30-1 at 9.) Instead, Jackson claims that he was placed on sick call on January 3, 2017. (Docket Item No. 30-1 at 9.) On January 9, 2017, Nurse J. Bledsoe again responded that, per Incident Report 16-0484, Jackson was assessed, but refused medical treatment, and he was advised to follow up with the Medical Department as needed. (Docket Item No. 30-1 at 9.) On January 23, 2017, Jackson filed a regular grievance, inquiring when a medical assessment was performed on him, and stating that he never signed any documents or refused medical treatment. (Docket Item No. 30-1 at 10.) Jackson requested to be advised what a “medical assessment” consists of, and he requested the medical and nursing procedures, rules, codes, regulations and documentation related to the same. He further requested the procedures, rules, codes, regulations and documentation regarding refusal of treatment. (Docket Item No. 30-1 at 10.) On February 1, 2017, Messer rejected Jackson's regular grievance at intake on two grounds. First, she stated that Jackson was making a statement, as opposed to voicing a complaint. Second, she noted that the incident occurred on December 20, 2016, implying that the regular grievance was not timely filed. (Docket Item No. 30-1 at 11.) Jackson appealed this decision to the Regional Ombudsman, who, on February 6, 2017, upheld the intake decision, as the incident at issue occurred more than 30 days prior to the filing of the regular grievance. (Docket Item No. 30-1 at 11.)

         In his Amended Complaint, Jackson makes several general allegations that he exhausted his administrative remedies with regard to his claims. Jackson also makes several claims that he filed complaints or grievances to which he received no response or that he attempted to file complaints or grievances. In his response to the Motion, (Docket Item No. 30), however, Jackson concedes that the only grievances he filed regarding his claims were denied at intake and that the intake decisions were upheld on appeal.

         In particular, Jackson stated that he attempted to exhaust his administrative remedies with regard to his claim that his property had been confiscated after his December 20, 2016, assault, by filing Informal Complaint, ROSP-16-INF-02570. Jackson stated that he then filed a grievance. Jackson attached his regular grievance, dated January 4, 2017, to his Verified Statement regarding exhaustion of administrative remedies. (Docket Item No. 2 at 2-3.) This document shows that this grievance was rejected as untimely, and the intake decision was upheld on review by the Regional Ombudsman. (Docket Item No. 2 at 3.) Jackson also stated that he attempted to exhaust his administrative remedies with regard to his claims that he was denied medical care for his December 20, 2016, injuries by filing Informal Complaint ROSP-17-INF-00051. Jackson stated that he then filed a regular grievance, which he attached to his response. ...


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