United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE.
Lamont Woodhouse, a Virginia inmate proceeding pro se,
commenced this action pursuant to 42 U.S.C. § 1983
against defendants associated with the Virginia Department of
Corrections ("VDOC") and the Red Onion State
Prison. Plaintiff asserts various claims related to prison
officials' decisions to house him in segregation.
Currently pending before the court is Defendants' motion
for summary judgment, which had been referred to a United
States Magistrate Judge for a report and recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B).
report and recommendation issued on January 10, 2018, the
Magistrate Judge recommended that the court grant
Defendants' motion for summary judgment. The Magistrate
Judge concluded, based on the evidence in the record and
produced during an evidentiary hearing, that Plaintiff had
failed to exhaust available administrative remedies before
commencing this action in accordance with 42 U.S.C. §
1997e(a). Plaintiff objected to the report and recommendation
pursuant to 28 U.S.C. § 636(b)(1)(C). For the reasons
explained below, the court overrules the objections, adopts
the report and recommendation, and grants Defendants'
motion for summary judgment.
district court must review de novo any part of a
report and recommendation to which a party objects, and it
must provide its independent reasoning when a party raises
new evidence or a new argument in an objection. 28 U.S.C.
§ 636(b)(1)(C); Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). The reasoning need not be elaborate
or lengthy, but it must provide a specific rationale that
permits meaningful appellate review. See, e.g.,
United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). However, de novo review is not required when
objections concern legal issues and not factual issues.
See, e.g., Orpiano, 687 F.2d at 47. Notably, de
novo review is not required "when a party makes
general or conclusory objections that do not direct the court
to a specific error in the magistrate judge's proposed
findings and recommendations." Id. A district
court is also not required to review any issue when no party
objects. See, e.g., Thomas v. Arn, 474 U.S.
140, 149 (1985); Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983).
Fourth Circuit has held that an objecting party must object
"with sufficient specificity so as reasonably to alert
the district court of the true ground for the
objection." United States v. Midgette, 478 F.3d
616, 622 (4th Cir. 2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any
issue that was before the magistrate judge, regardless of the
nature and scope of objections made to the magistrate
judge's report. Either the district court would then have
to review every issue in the magistrate judge's proposed
findings and recommendations or courts of appeals would be
required to review issues that the district court never
considered. In either case, judicial resources would be
wasted and the district court's effectiveness based on
help from magistrate judges would be undermined.
Id. Furthermore, objections that only repeat
arguments raised before a magistrate judge are considered
general objections to the entirety of the report and
recommendation, which has the same effect as a failure to
object. Veney v. Astrue, 539 F.Supp.2d 841, 845
(W.D. Va. 2008), affd, 498 Fed.Appx. 268 (4th Cir.
novo review is precluded for Plaintiffs objections
because none of them constitutes a valid, specific objection
to the findings of facts and conclusions of law in the report
and recommendation. Plaintiffs first two objections complain
about how the VDOC's grievance policy is drafted. The
third and fourth objections ostensibly inquire into the
Magistrate Judge's legal authority to resolve credibility
and factual disputes about the exhaustion of available
administrative remedies instead of a jury. Consequently, the
first and second objections do not direct the court to a
specific error in the report and recommendation and are
deemed general and conclusory, and the third and fourth
objections present a legal issue only. As the final
objection, Plaintiff simply recites the uncontroverted
evidence that the grievance coordinator violated prison
policy by responding to a grievance in three business days
instead of two, and he then cites a case from the Seventh
Circuit Court of Appeals. This last objection, at best, only
suggests a legal conclusion. On these bases alone, Plaintiffs
objections do not warrant de novo review.
Plaintiff would not be afforded relief even if the court
analyzes these invalid objections. They are both unpersuasive
the first and second objections, the VDOC policy clearly
explains that proper exhaustion requires the submission of a
regular grievance that is accepted at intake and
then appealed to highest levels of review. Appealing an
intake decision that rejected a regular grievance
does not constitute valid exhaustion. See Jackson v.
Barksdale, Civil Action No. 7:17cv00031, 2017 U.S. Dist.
LEXIS 126723, at *19, 2017 WL 3446259, at *3 (W.D. Va. Aug.
10, 2017) (recognizing a regular grievance's rejection at
intake, even if appealed, does not constitute exhaustion, and
to qualify as such, it must be resubmitted, accepted, and
appealed to the highest level), affd, 707 Fed.Appx. 786 (4th
Cir. 2018). An administrative remedy process does not become
"unavailable" when an inmate does not comply with
procedural rules. Woodford v. Ngo, 548 U.S. 81, 95
(2006). Notably, the policy does not limit the number of
attempts to correctly file a regular grievance that would be
accepted at intake.
the third and fourth objections, Plaintiff wants a jury to
resolve credibility and factual disputes about exhaustion of
available administrative remedies. However, a court may
resolve that issue on its own and without a jury. Lee v.
Willey, 789 F.3d 673, 677 (6th Cir. 2015); Messa v.
Goord. 652 F.3d 305, 308 (2d Cir. 2011); Drippe v.
Tobelinski, 604 F.3d 778, 782, 785 (3d Cir. 2010);
Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010);
Bryant v. Rich, 530 F.3d 1368, 1375-77 & n.15
(11th Cir. 2008); Pavey v. Conley, 544 F.3d 739, 741
(7th Cir. 2008): Wvatt v. Terhune, 315 F.3d
1108.1119-20 (9th Cir. 2003\ overruled on other
grounds by Albino v. Baca, 747 F.3d 1162, 1166,
1170-71 (9th Cir. 2014) (en banc}. Plaintiffs preference does
not deprive the court of this ability.
the final objection, Plaintiff does not establish that the
brief delay to reject the grievance at intake made
administrative remedies unavailable. See, e.g.,
Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir.
2011) (noting when the burden shifts to a plaintiff to show,
by a preponderance of the evidence, that exhaustion occurred
or administrative remedies were unavailable through no fault
of the plaintiff). The grievance coordinator explained during
the evidentiary hearing that, "under the policy,
regardless of what day [she] rejected it and returned it [to
Plaintiff], [Plaintiffs] appeal period beg[an] when he
receive[d] the rejection...." Evid. Hr'g Tr. 89:1-4.
Thus, the error would not have "in any way impede[d] his
ability to appeal the intake decision" or to refile a
regular grievance. Id., 71:1-74:5. Moreover,
Plaintiff had disclaimed the notion that a fear of
retaliation made remedies unavailable. Id., 97:13 -
98:16. Accordingly, Plaintiff fails to carry his burden to
show that the brief delay prevented him from resubmitting a
grievance or somehow made "the process that exists on
paper become unavailable in reality." Kaba v.
Stepp, 458 F.3d 678, 684 (7th Cir. 2006).
foregoing reasons, the court overrules Plaintiffs objections,
adopts the report and recommendation, and grants