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Coleman v. McNelis

United States District Court, E.D. Virginia, Richmond Division

July 31, 2018

K. McNELIS, et al., Defendants.



         Raymond Coleman, a former Virginia inmate[1] proceeding pro se and in forma pauper is, brings this action pursuant to 42 U.S.C. § 1983.[2] In his Complaint, Coleman contends that Correctional Officer K. McNelis and Correctional Officer N. Melton ("Defendants")[3] acted with deliberate indifference in violation of Coleman's Eighth Amendment[4] 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[5] notice. (ECF No. 40.) Coleman has not responded to the Motion for Summary Judgment. The matter is ripe for disposition.

         I. Summary of Allegations

         In the days leading up to November 25, 2014, Coleman was incarcerated at Deep Meadow Correctional Center ("DMCC"). (See Compl. ¶¶ 13, 16, ECF No. I.)[6] 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.)

         On 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. ¶18.)

         A few 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. ¶ 12.)

         On his 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.)

         Coleman 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. (Id.)

         II. Standard for Summary Judgment

         Summary 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 (2007).

         In 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.[7]

         As a 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.[8] (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.)

         In 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 Coleman's favor.

         III. Summary of Pertinent Facts

         A. VDOC's Grievance Procedure

         Operating 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.[9] (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. ยง 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 ...

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