United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING MOTION FOR SUMMARY
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE.
Coleman, a former Virginia inmate proceeding pro se
and in forma pauper is, brings this action
pursuant to 42 U.S.C. § 1983. In his Complaint, Coleman
contends that Correctional Officer K. McNelis and
Correctional Officer N. Melton
("Defendants") acted with deliberate indifference in
violation of Coleman's Eighth Amendment rights by
allowing him to be attacked by a fellow inmate. On December
5, 2017, the Court denied without prejudice two Motions for
Summary Judgment filed by Defendants McNelis and Melton. (ECF
Nos. 33-34.) The matter is now before the Court on
Defendants' Renewed Motion for Summary Judgment
("Motion for Summary Judgment," ECF No. 38),
wherein the Defendants argue that Coleman failed to exhaust
his administrative remedies. Defendants provided Coleman with
the appropriate Roseboro notice. (ECF No. 40.)
Coleman has not responded to the Motion for Summary Judgment.
The matter is ripe for disposition.
Summary of Allegations
days leading up to November 25, 2014, Coleman was
incarcerated at Deep Meadow Correctional Center
("DMCC"). (See Compl. ¶¶ 13, 16,
ECF No. I.) Prior to November 25, 2014, Coleman
witnessed fellow inmate Jonathan Scott Lemay
create a big scene shouting, threatening and warning DMCC
staff, Officer K.  McNelis . . . who was on the floor, and
[Correctional Officer] Melton . . . who was in the control
booth, of [Lemay's] intentions to harm someone if they
didn't transfer him from DMCC stating:
"Ya'll better get me up off of here or else
I'm goin' to do somethin' to somebody]"
(Id. ¶ 16.) McNelis and Melton laughed off
Lemay's warnings and did not take him seriously.
(Id. ¶ 17.)
November 25, 2014, Coleman returned to Building One at DMCC
"after feeding," where he and Lemay were housed.
(Id. ¶¶ 18-19.) When Coleman entered the
building, "he observed Lemay sitting on his own bunk
facing opposite [of] Coleman's bunk." (Id.
¶ 18.) Coleman sat down in the chair next to his bunk
and began watching T.V. (Id.) Approximately five
minutes later, Coleman laid down on his bunk. (Id.
minutes later, Coleman saw Lemay in line for the microwave.
(Id. ¶ 20.) Coleman continued to lay in his
bunk and watch T.V. (Id.) "The next thing
[Coleman] knew, scolding hot water was thrown was thrown in
his face, neck, chest, arm, and upper torso."
(Id. ¶ 21.) Coleman jumped up and saw Lemay
standing before him with a pool ball in his hand.
(Id. ¶ 22.) Lemay began shouting, "Come
on, mutherfucker I I'm gon' to kill your ass!
I'm gon' to killyo' assl" (Id.) Lemay
then began swinging the pool ball, and Coleman, believing his
life was in danger, "tussled" with him.
(Id. ¶¶ 23, 24.) Lemay hit Coleman with
the pool ball and the pair "tussled some more"
before Coleman threw Lemay onto a pool table and several
officers arrived. (Id. ¶ 24.) Coleman was
immediately taken to DMCC medical and then to the Medical
Center of Virginia ("MCV") where he was treated for
second and third degree burns to his face, neck, chest, arm,
and torso. (Id. ¶ 25.) That same day, Coleman
was charged with violating VDOC Operating Procedure 861.1,
Offense Code 218 (fighting with any person). (Id.
second day at MCV, the nurses packed up Coleman's
belongings and stated that DMCC had ordered them to do so.
(Id. ¶ 27.) Coleman was then transferred back
to DMCC in a VDOC van rather than in an ambulance.
(Id. ¶ 28.) At DMCC, he was placed in
segregation without medical treatment. (Id. ¶
29.) The next morning, Coleman was transferred to Greensville
Correctional Center ("GCC") "with orders to
place him in segregation." (Id.) At GCC, he was
screened by medical personnel. (Id. ¶¶
30-31.) Sergeant G.D. Faulcon and Nurse Epps "determined
that if they placed [Coleman] in segregation, he would not
survive the night." (Id. ¶ 31.) Sergeant
G.D. Faulcon and Nurse Epps notified their supervisors of
Coleman's condition, and Coleman was placed in the
medical unit at GCC. (Id.) Coleman remained in
GCC's medical unit for approximately one month.
(Id. ¶ 33.)
states that as a result of the incident, he has scars on his
face, shoulder, neck, and chest, severe nerve damage, and
high blood pressure. (Id. ¶ 35.) Coleman
experiences panic attacks, feelings of hopelessness, and
nightmares about the incident with Lemay. (Id.)
Coleman is "currently in the process of relearning how
to speak and write" and is partially blind.
Standard for Summary Judgment
judgment must be rendered "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). It is the responsibility of the party
seeking summary judgment to inform the court of the basis for
the motion, and to identify the parts of the record which
demonstrate the absence of a genuine issue of material fact.
See Celotex Corp. v. CatretU 477 U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the
burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on
the pleadings, depositions, answers to interrogatories, and
admissions on file." Id. at 324 (internal
quotation marks omitted). When the motion is properly
supported, the nonmoving party must go beyond the pleadings
and, by citing affidavits or '"depositions, answers
to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for
trial.'" Id. (quoting former Fed.R.Civ.P.
56(c), (e) (1986)). Additionally, "Rule 56 does not
impose upon the district court a duty to sift through the
record in search of evidence to support a party's
opposition to summary judgment." Forsyth v.
Ban, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915
& n.7 (5th Cir. 1992)); see Fed. R. Civ. P.
56(c)(3) ("The court need consider only cited materials,
but it may consider other materials in the record.").
Defendants ask the Court to dismiss Coleman's claims
because Coleman failed to exhaust his administrative remedies
as required by 42 U.S.C. § 1997e(a). Because the
exhaustion of administrative remedies is an affirmative
defense, Defendants bear the burden of pleading and proving
lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216
support of their prior Motions for Summary Judgment,
Defendants submitted: (1) the Affidavit of M. Seay,
Institutional Ombudsman at DMCC ("Seay Aff. I," ECF
No. 27-1); (2) a copy of VDOC's Operating Procedure
§ 866.1 (id. End. A, ECF No. 27-1, at 5-18);
and, (3) copies of Coleman's various informal complaints,
grievances, letters, and appeals (id. Encl. B, ECF
No. 27-1, at 19-32). In support of their current Motion for
Summary Judgment, Defendants submitted: (1) a Supplemental
Affidavit of M. Seay ("Seay Aff. II," ECF No.
39-2); (2) the Affidavit of L. Talbott, Administrative Staff
Specialist Senior at GCC ("Talbott Aff," ECF No.
39-3); (3) the Affidavit of D. Everett, Health Services
Administrator at GCC ("Everett Aff.," ECF No.
39-4); (4) the Affidavit of Defendant K. McNelis
("McNelis Aff.," ECF No. 39-6); and, (5) various
copies of Coleman's grievances, records from VDOC
detailing Coleman's grievance history, and copies of
Coleman's pertinent medical reports.
general rule, a non-movant must respond to a motion for
summary judgment with affidavits or other verified evidence.
Celotex Corp., 477 U.S. at 324. With his Complaint,
Coleman submitted an Affidavit ("Coleman Aff.," ECF
No. 1-1) and copies of his various informal complaints,
grievances, letters, and appeals. (Compl. Ex. 2, ECF No. 1-2).
Coleman submitted a Response to the Defendants' first
Motions for Summary Judgment (ECF Nos. 18, 19), and a second
Affidavit. ("Coleman Aff. II," ECF No. 18, at
12-13.) Coleman also submitted a third Affidavit in response
to the first Motions for Summary Judgment. (ECF No. 30-1.)
light of the foregoing principles and submissions, the facts
set forth below are established for purposes of the Motion
for Summary Judgment. All permissible inferences are drawn in
Summary of Pertinent Facts
VDOC's Grievance Procedure
Procedure § 866.1, Inmate Grievance Procedure, is the
mechanism used to resolve inmate complaints. (See
Seay Aff. I ¶ 4.) Operating Procedure § 866.1
requires that, before submitting a formal grievance, the
inmate must demonstrate that he or she has made a good faith
effort to resolve the grievance informally through the
procedures available at the institution to secure
institutional services or resolve complaints. (Operating
Procedure § 866.1.V.B, Seay Aff. II End. B, ECF No.
39-2.) A good faith effort requires the inmate to file an
informal complaint form. (Id. § 866.1. V.B.I.)
If the informal resolution effort fails, the inmate must
initiate a regular grievance by filling out the standard
"Regular Grievance" form. (Id. §
866.1 .VLA.2.) "The offender is responsible for
submitting the Informal Complaint in a timely manner to allow
time for staff response within the time period allowed to
file a [Regular] Grievance" (id. §
866.1.V.B.2 (emphasis omitted)), and that "[t]he time
for staff response to an offender's informal complaint
shall be no longer than 15 calendar days to ...