United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge.
Edward Hailey, a Virginia inmate proceeding pro se, commenced
this action pursuant to 42 U.S.C. § 1983. Plaintiff
names three defendants who are associated with the Keen
Mountain Correctional Center ("KMCC"): R. Clary,
the Assistant Warden; D. Turner, a Unit Manager; and Lt. D.
Owens, the Institutional Classification Authority. Plaintiff
alleges that Defendants were deliberately indifferent to
cruel and unusual living conditions in violation of the
Eighth Amendment of the United States Constitution.
Defendants filed a motion for summary judgment, and Plaintiff
responded, making this matter ripe for
disposition. After reviewing the record, the court
grants Defendants' motion for summary judgment because
Plaintiff failed to exhaust available administrative
May 18 and 19, 2016, at KMCC, Plaintiff was strapped to a bed
via five-point restraints and was allegedly forced to lay in
his waste without water or bathroom breaks for twenty-four
hours. He alleges that each defendant came into his cell,
observed his condition, did nothing about it, and threatened
to increase the time he would remain restrained.
wrote a regular grievance on October 13, 2016, claiming that
he had sent two informal complaint forms about being in
five-point restraints to the KMCC Operations Officer at some
unspecified time. The KMCC Grievance Coordinator rejected the
regular grievance at intake for failing to submit an informal
complaint about the delayed response and further noted that
she had not received the informal complaints. Notably,
Plaintiff did not appeal the intake decision.
filed an informal complaint on December 25, 2016, complaining
about being in five-point restraints in May 2016. Unit
Manager Turner responded on January 10, 2017, explaining why
five-point restraints had been used.
filed a regular grievance on January 27, 2017, complaining
again of the five-point restraints used in May 2016. The
regular grievance was rejected at intake as untimely filed,
and Plaintiff appealed. The Regional Ombudsman determined
that Plaintiff did not file the appeal within the five day
allowance and upheld the intake decision.
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 admissible evidence 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. A party is
entitled to summary judgment if the admissible evidence 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. 2009).
argue in their motion for summary judgment that Plaintiff
failed to exhaust available administrative remedies. 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). Once a defendant presents evidence of
a failure to exhaust, the burden of proof shifts to the
plaintiff to show, by a preponderance of the evidence, that
exhaustion occurred or administrative remedies were
unavailable through no fault of the plaintiff. See,
e.g., Tuckel v. Grover, 660 F.3d 1249, 1254
(10th Cir. 2011); Moore v. Bennette, 517 F.3d 717,
725 (4th Cir. 2008). "When an administrative process is
susceptible of multiple reasonable interpretations, Congress
has determined that the inmate should err on the side of
exhaustion." Ross v. Blake, 578 U.S. ___, 136
S.Ct. 1850, 1859 (2016).
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 VDOC's control. Inmates are
oriented to the inmate grievance procedure when they enter
the VDOC's custody and when they are transferred to other
submitting a grievance, an inmate must make a good-faith
effort to informally resolve the issue by submitting an
informal complaint form, which is available in housing
units.If the issue is not informally resolved,
the inmate must file a regular grievance within thirty
calendar days from "the date of occurrence/incident or
discovery of the occurrence/incident" except in certain
circumstances like events beyond the inmate's control.
Regular grievances that do not meet the filing requirements
of OP 866.1 are returned to the inmate within two working
days from staffs receipt. An inmate may appeal an intake