United States District Court, W.D. Virginia, Roanoke Division
ALBERT L. TIBBS, Plaintiff,
L. WANG, et al, Defendants.
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
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.After reviewing the record, the court
grants Defendants' motions for summary judgment.
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.
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.
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.
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.
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.
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).
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.
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 ...