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Tibbs v. Wang

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

December 26, 2017

ALBERT L. TIBBS, Plaintiff,
v.
L. WANG, et al, Defendants.

          MEMORANDUM OPINION

          HON. MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE

         Albert L. Tibbs, a Virginia inmate proceeding pro se, filed a verified complaint pursuant to 42 U.S.C. § 1983. Plaintiff names as defendants Dr. L. Wang, the facility doctor at Green Rock Correctional Center ("Green Rock"); Sophia Massenburg, the Grievance Coordinator at Green Rock; and K. Crowder, the Western Regional Ombudsman for the Virginia Department of Corrections ("VDOC"). Plaintiff alleges that Dr. Wang was deliberately Indifferent to knee pain and Massenburg and Crowder denied him access to the prison grievance process. Defendants filed motions for summary, and Plaintiff responded, making the matter ripe for disposition.[1]After reviewing the record, the court grants Defendants' motions for summary judgment.

         I.

         A.

         Dr. Wang first examined Plaintiff for right knee pain on May 25, 2015. Plaintiff tested positive for swelling and negative for the following tests: McMurray's test for a tear in the medial meniscus; Drawers' signs to test for potential rupture of cruciate ligaments; and the Valgus stress test for ligament damage. Dr. Wang ordered an X ray of the right knee standing, prescription-strength Ibuprofen, 800 m.g. twice a day, and a bottom bunk assignment. The X ray conducted on May 29, 2015, revealed osteoarthritis.

         Dr. Wang saw Plaintiff on August 17, 2015, for right knee pain. Plaintiffs gait and the knee's range of motion were within normal limits. Dr. Wang ordered Ibuprofen, 600 m.g. twice a day, and scheduled Plaintiff for a knee injection. Dr. Wang administered a corticosteroid and Lidocaine injection on August 21, 2015.

         Thereafter, Plaintiff had visited the medical department for various conditions but did not complain of knee pain again until over a year later on September 26, 2016. Plaintiff sought an MRI for right knee pain. Dr. Wang examined Plaintiff, and Plaintiffs gait and the knee's range of motion were still within normal limits. Plaintiff again tested negative for McMurray's test and the Valgus stress test. Dr. Wang ordered another X ray, which revealed osteoarthritis that had not significantly changed since the prior X ray. Dr. Wang reviewed the result with Plaintiff on December 2, 2016, and ordered Naprosyn, 500 m.g. twice daily, for pain. Plaintiff did not complain about his knee during appointments with medical staff on December 15 and 29, 2016.

         Plaintiff filed a regular grievance on March 20, 2017. Plaintiff complained that Dr. Wang would not order a knee cap replacement and instead treated his knee pain with pills. Because Plaintiff did not note when he last saw medical staff about the pain, Massenburg inquired and learned that the date was December 2, 2016. Consequently, Massenburg rejected the regular grievance as untimely, noting at the bottom of the form, "According to Medical you last saw Dr. Wang on 12/2/16 for this issue." Per policy, Massenburg did not assign a log number to the rejected regular grievance and instead returned it to Plaintiff. Plaintiff appealed by mailing the returned regular grievance to the Western Regional Ombusdman's Office.

         Defendant Crowder upheld Massenburg's decision on appeal. Notably, Crowder also checked the box "Insufficient Information." This provision allows the inmate to "provide the [missing] information to the Grievance Office within 5 days before the grievance can be processed." Crowder asked Plaintiff to explain, "When were you last see in Medical re: this issue?" Crowder asked for this information because the regular grievance Plaintiff mailed to her had omitted Massenburg's handwritten note at the bottom of the form. Plaintiff did not resubmit the grievance, and he commenced this action no sooner than April 21, 2017.

         II.

         Defendants filed motions for summary judgment. A party 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 U.S. 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. "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 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). 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. 2009).

         A.

         Defendants argue that Plaintiff failed to exhaust available administrative remedies as required by 42 U.S.C. § 1997e(a). The court agrees and grants Defendants' motions for summary judgment.

         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 of a failure to exhaust, the ...


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