United States District Court, W.D. Virginia, Roanoke Division
Alexander Harris, Pro Se Plaintiff;
Margaret H. O'Shea, Office of the Attorney General,
Richmond, Virginia, for Defendants.
OPINION AND ORDER
P. Jones United States District Judge
prisoner civil rights action under 42 U.S.C. § 1983 is
now before me on the defendants' Motion for Summary
Judgment and the response thereto filed by the pro se
plaintiff, Alexander Harris. After review of the parties'
submissions and evidence, I conclude that the defendants'
motion must be granted in part and denied in part.
previous opinion in this case, Harris v. Elam, No.
7:17CV00147, 2018 WL 1410419, at *1-2 (W.D. Va. Mar. 21,
2018), I summarized Harris's allegations about the
defendants' use of force in some detail and, thus, I
offer only a brief overview here. Harris claims that on June
5, 2016, while he was confined at River North Correctional
Center (“River North”), an officer confronted him
about having threatened to harm prison dogs if they bit him.
Later, although Harris says he was posing no threat, he was
thrown to the ground, a K-9 was ordered to attack and bite
him, and he was kicked in the face and head. Harris claims he
was then dragged to another area of the prison, thrown on the
ground, and punched and kicked.
also alleges that he tried to exhaust administrative remedies
concerning the officers' assaults. He warned officials in
his grievance documents that if the grievances were not
filed, he would name grievance officials as defendants in a
lawsuit. Because of this warning, Harris was found guilty of
the prison offense of threatening defendant Sheets and
penalized with fifteen days of disciplinary segregation and
loss of all statutory good time (“SGT.”) Am.
Compl. Attach. 2, ECF No. 23-2. Other defendants upheld these
findings during Harris' disciplinary appeals.
then filed this § 1983 action. Remaining at issue are
the following claims from his Amended Complaint: (1) on June
5, 2016, defendants Jackson, Meadows, Lowe, Williams, and
Morgan used excessive force against Harris or failed to
intervene; (2) defendant Sheets filed a disciplinary charge
against Harris in retaliation for his exercise of his
constitutional right to file grievances, to free speech, and
to access the courts; and (3) defendants Blevins, MacVean,
Dowell, Walrath, and Elam deprived Harris of due process
during the disciplinary proceedings and furthered the
retaliation that Sheets instigated. As relief, Harris seeks
compensatory and punitive damages. On summary judgment, the
defendants contend that the excessive force claim must be
dismissed because Harris failed to exhaust administrative
remedies properly before filing this action. They also argue
that Harris's retaliation claim fails on the merits and
that his due process claim is barred because success on its
merits would invalidate his term of confinement.
Summary Judgment Standard.
should grant summary judgment “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). “Only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In short, a motion for summary judgment should be
granted when the proof, taken in the form admissible at trial
and resolving all factual doubts in favor of the non-moving
party, would lead a reasonable juror to but one conclusion.
Id. at 247-52. I must “view the facts and draw
reasonable inferences in a light most favorable” to
Harris, as the nonmoving party. Shaw v. Stroud, 13
F.3d 791, 798 (4th Cir. 1994).
defendants have filed supporting affidavits and
documentation. Accordingly, to survive the defendants'
motion, Harris must present sufficient evidence that could
carry the burden of proof of his claims at trial. See
Id. He “may not rest upon the mere allegations or
denials of his pleading, but must set forth specific facts
showing that there is a genuine [factual] issue for
trial” on which the jury could find in his favor.
Anderson, 477 U.S. at 248. “Unsupported
speculation is not sufficient to defeat a summary judgment
motion.” Baber v. Hosp. Corp. of Am., 977 F.2d
872, 875 (4th Cir. 1992).
Exhaustion of Administrative Remedies.
Prison Litigation Reform Act (“PLRA”) provides
that a prisoner cannot bring a civil action concerning prison
conditions until he has first exhausted available
administrative remedies. 42 U.S.C. § 1997e(a). This
exhaustion requirement is “mandatory, ” Ross
v. Blake, 136 S.Ct. 1850, 1856 (2016), and
“applies to all inmate suits about prison life.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). To
comply with § 1997e(a), an inmate must follow each step
of the established grievance procedure that the facility
provides to prisoners and meet all deadlines within that
procedure. See Woodford v. Ngo, 548 U.S. 81, 90-94
(2006). Even if the particular form of relief the inmate
seeks in his lawsuit is not available through the
prison's grievance proceedings, he must, nevertheless,
exhaust properly all available remedies under that procedure
before bringing a civil action in this court. Booth v.
Churner, 532 U.S. 731, 741 (2001). The defendants bear
the burden of proving the affirmative defense that Harris
failed to exhaust available administrative remedies regarding
his claims before filing suit. Jones v. Bock, 549
U.S. 199, 216 (2007).
defendants argue that Harris did not exhaust available
administrative remedies regarding his excessive force claims
before filing this lawsuit. In support of this contention,
they present an affidavit from River North Grievance
Coordinator B. Walls.
Procedure (“OP”) 866.1 is the written
administrative remedies procedure that Virginia Department of
Corrections (“VDOC”) inmates must follow to
comply with § 1997e(a). Mem. Supp. Mot. Summ. J. Ex. 1,
Walls Aff. ¶ 4 and Enclosure A, ECF No. 33-1. Under this
procedure, an inmate with a grievance about some event or
issue must first make a good faith effort to resolve his
concerns informally, which he may do by completing an
Informal Complaint form and submitting it to prison's
Grievance Department. His form will be forwarded to the
appropriate department head for investigation. The inmate
should receive a written response ...