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Abdul-Sabur v. Jones

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

September 14, 2017

WAKEEL ABDUL-SABUR, Plaintiff,
v.
GAIL JONES, et al., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE

         Wakeel Abdul-Sabur, a Virginia inmate proceeding pro se, filed an amended complaint pursuant to 42 U.S.C. § 1983 naming as defendants T. Back, a Unit Manager at Augusta Correctional Center (“Augusta”), and Israel “Big Dawg” Hamilton, the former Assistant Warden at Red Onion State Prison (“Red Onion”).[1] Abdul-Sabur contends that Back was deliberately indifferent to a known and substantial risk of harm when he allowed Abdul-Sabur to be transferred to Red Onion, in violation of the Eighth Amendment, and that Hamilton threatened Abdul-Sabur after the transfer to Red Onion, in violation of the First and Eighth Amendments. Abdul-Sabur seeks damages against defendants in their official and individual capacities. Defendants filed a motion for summary judgment, and Abdul-Sabur responded, making this matter ripe for disposition.[2] Having considered the record, I conclude that defendants' motion for summary judgment must be granted.

         I.

         On July 8, 2015, Abdul- Sabur drafted Emergency Grievance #013826 while at Augusta about not wanting to be transferred to Red Onion because Hamilton was Red Onion's Assistant Warden. Thereafter, Abdul-Sabur refused to enter the general population at Augusta, and Back recommended in August 2015 that Abdul-Sabur be transferred to a Level-4 prison.

         On or about August 24, 2015, Abdul-Sabur filed a Regular Grievance about the recommendation that he be transferred to a Level-4 prison because he allegedly had enemies at all VDOC Level-4 prisons and wanted to be transferred to the protective custody unit at Dillwyn Correctional Center. The Warden denied the Regular Grievance, and Abdul-Sabur did not appeal.

         On September 8, 2015, a correctional officer acknowledged receipt of Emergency Grievance #013826, and the Unit Manger responded, noting that it did not meet the definition of an emergency and that Abdul-Sabur should use the proper form. On that same day, Abdul-Sabur was approved to be transferred to Red Onion.

         Abdul-Sabur filed a second Regular Grievance on or around September 8 about not wanting to be housed at Red Onion because of “an investigation” and wanting to be housed at Dillwyn Correctional Center. The Warden denied the Regular Grievance, and Abdul-Sabur did not appeal.

         Abdul-Sabur was transferred from Augusta to Red Onion on September 18, 2015, and assigned to segregation upon arrival. On September 26, 2015, Abdul-Sabur was moved into protective custody at Red Onion. By November 9, 2015, Abdul-Sabur remained in protective custody at Red Onion and had not filed any regular grievance about his transfer to Red Onion or his experiences there.

         II.

         Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment “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.” “As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be “‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). If, however, the evidence of a genuine issue of material fact “is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A plaintiff may not amend a complaint through argument in a brief opposing summary judgment. Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).

         Defendants claim that they are entitled to summary judgment because Abdul-Sabur failed to exhaust available administrative remedies. A prisoner cannot bring a civil action concerning prison conditions until first exhausting available administrative remedies. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 524 (2002). This exhaustion requirement applies to “all inmate suits, whether they involve general circumstances or particular episodes, . . . whether they allege excessive force or some other wrong, ” and whether the form of relief the inmate seeks is available through exhaustion of administrative remedies. Id. To properly exhaust a claim, a prisoner must file grievances with sufficient detail to alert prison officials of the possible constitutional claims that are now alleged as a basis for relief. See Smith v. Rodriguez, No. 7:06-cv-00521, 2007 U.S. Dist. LEXIS 43571, 2007 WL 1768705 (W.D. Va. June 15, 2007) (citing McGee v. Fed. Bureau of Prisons, 118 F. App'x 471, 476 (10th Cir. 2004)).

         A prison official has the burden to prove an inmate's failure to exhaust available administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). An inmate's failure to follow the required procedures of the prison's administrative remedy process, including time limits, or to exhaust all levels of administrative review is not “proper exhaustion” and will bar the claim. Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). “[W]hen prison officials prevent inmates from using the administrative process . . ., the process that exists on paper becomes unavailable in reality.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Once a defendant presents evidence of a failure to exhaust, the burden of proof shifts to the inmate to show, by a preponderance of the evidence, that exhaustion occurred or administrative remedies were unavailable through no fault of the inmate. See, e.g., Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011).

         Virginia Department of Corrections (“VDOC”) Operating Procedure (“OP”) 866.1, “Offender Grievance Procedure, ” provides the administrative remedies for inmates to resolve complaints, appeal administrative decisions, and challenge policies and procedures. The process provides correctional administrators means to identify potential problems and, if necessary, correct those problems in a timely manner. All issues are grievable except issues about policies, procedures, and decisions of the Virginia Parole Board; disciplinary hearing penalties and/or procedural errors; “State and Federal court decisions, laws, and regulations”; and other matters beyond the VDOC's control.

         Inmates are oriented to the inmate grievance procedure when they enter the VDOC's custody and when they are transferred to other VDOC facilities. Prior to submitting a grievance, the inmate usually must make a good-faith effort to informally resolve the issue ...


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