United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
Lee Moore, a Virginia inmate proceeding pro se, commenced
this action pursuant to 42 U.S.C. § 1983. Plaintiff
names numerous staff of the Red Onion State Prison
("ROSP") as defendants. Plaintiff argues that
Defendants violated the Eighth Amendment by not giving him a
mattress for two nights. Defendants filed motions for summary
judgment, and Plaintiff responded, making the matter ripe for
disposition. After reviewing the record, the court grants
Defendants' motion for summary judgment because Plaintiff
failed to exhaust available administrative remedies and fails
to establish a violation of the Eighth Amendment.
filed two informal complaints in early November 2016. On
November 3, Plaintiff submitted the first informal complaint,
#ROSP-16-INF-02243. Plaintiff explained that he was placed
into a segregation cell without a mattress on October 26,
asked several staff for a mattress, and did not receive a
mattress until forty-eight hours later on October 28. On
November 7, Plaintiff submitted a second informal complaint,
#ROSP-16-INF-02138, repeating the allegations from the first.
Plaintiff also noted in the second informal complaint that he
had been able to sleep on a "cold metal-concrete
slab." The informal complaint form told Plaintiff
timelines for a response. "If no response is received
within [fifteen] calendar days, you may proceed in filing a
regular grievance. You may utilize your receipt as evidence
of your attempt to resolve your complaint." Grievance
Department staff should issue the receipt within two working
days of receiving the informal complaint.
of waiting for a response to the informal complaints,
Plaintiff filed his first regular grievance on November 10.
Plaintiff did not attach an informal complaint response or
receipt because he filed the regular grievance too soon after
filing the informal complaints.
November 15, defendant Lt. Sykes responded to informal
complaint #ROSP-16-INF-02138. Lt. Sykes noted that he had
spoken to the staff named in the informal complaint and
determined that Plaintiff already had received a mattress.
This response would be routed from Lt. Sykes to Plaintiff via
the Grievance Department and institutional mail service.
November 16, 2016, Plaintiff received a receipt for and the
answer to the first informal complaint, #ROSP-16-INF-02243.
Grievance staff replied, "This is a repeat complaint.
Please be patient and wait for a reply to ROSP-16-INF-02138
due back 11/22/2016 concerning this issue."
November 16, the Grievance Coordinator rejected the first
regular grievance at intake because no answered informal
complaint had been attached. Plaintiff chose to appeal the
decision instead of waiting until November 22 for either the
arrival of staff s response to the informal complaint or for
staffs response time to expire. A regional ombudsman upheld
the intake decision on November 28, noting that Plaintiff had
"filed [the] grievance BEFORE informal [complaint] was
waited until December 7 to file a second regular grievance.
Because more than thirty days had passed since the incident
occurred, the Grievance Coordinator rejected it at intake as
untimely. A regional ombudsman upheld the intake decision on
is entitled to summary judgment if the pleadings, the
disclosed materials on file, and any affidavits show that
there is no genuine dispute as to any material fact.
Fed.R.Civ.P. 56(a). Material facts are those necessary to
establish the elements of a party's cause of action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A genuine dispute of material fact exists if, in
viewing the record and all reasonable inferences drawn
therefrom in a light most favorable to the non-moving party,
a reasonable fact-finder could return a verdict for the
non-movant. Id. The moving party has the burden of
showing - "that is, pointing out to the district court -
that there is an absence of evidence to support the nonmoving
party's case." Celotex Corp. v. Catrett 477
US. 317, 325 (1986). If the movant satisfies this burden,
then the non-movant must set forth specific facts that
demonstrate the existence of a genuine dispute of fact for
trial. Id. at 322-24. A party is entitled to summary
judgment if the record as a whole could not lead a rational
trier of fact to find in favor of the non-movant.
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.
1991). "Mere unsupported speculation... is not enough to
defeat a summary judgment motion." Ennis v.
Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53
F.3d 55, 62 (4th Cir. 1995). A plaintiff cannot use a
response to a motion for summary judgment to amend or correct
a complaint challenged by the motion for summary judgment.
Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir.
argue, inter alia, that Plaintiff failed to exhaust
available administrative remedies as required by 42 U.S.C.
§ 1997e(a). The exhaustion requirement is mandatory
and "applies to all inmate suits about prison
life[.]" Porter v. Nussle,534 U.S. 516, 524,
532 (2002). "Proper exhaustion demands compliance with
an agency's deadlines and other critical procedural
rules." Woodford v. Ngo, 548 U.S. 81, 90
(2006). When a prison provides an administrative grievance
procedure, the inmate must file a grievance raising a
particular claim and pursue it through all available levels
of appeal to "properly exhaust." Id; Dixon v.
Page. 291 F.3d 485, 490-91 (7th Cir. 2002). "[A]n
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). A defendant has the burden
to prove an inmate's failure to exhaust available
administrative remedies. Jones v. Bock, 549 U.S.
199, 216 (2007). Once a defendant presents evidence ...