United States District Court, W.D. Virginia, Roanoke Division
K. MOON UNITED STATES DISTRICT JUDGE
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”). 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. Having considered the record, I
conclude that defendants' motion for summary judgment
must be granted.
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.
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.
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
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.
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
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).
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)).
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).
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
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 ...