United States District Court, W.D. Virginia, Roanoke Division
Jackson L. Kiser Senior United States District Judge .
Wall, a Virginia inmate proceeding pro se, commenced this
action pursuant to 42 U.S.C. § 1983 against defendants
associated with the Red Onion State Prison
("ROSP"). Currently pending are Defendants'
Motions for Summary Judgment ("the Motions") [ECF
Nos. 48, 51] and Plaintiffs Motion for Spoliation [ECF No.
55]. The Motions had been referred to a United States
Magistrate Judge for a report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B) (the "R&R") [ECF
No. 64], and Plaintiff timely filed his objections [ECF No.
65]. For the reasons that follow, I will reject Plaintiffs
objections, adopt the R&R in its entirety, and deny
Plaintiffs Motion for Spoliation as moot.
filed the current civil action on August 10, 2016 and, after
amendments, he alleged that Defendants violated various
federal and state laws by retaliating against him, imposing
cruel and unusual punishment, not providing adequate process,
negligently investigating his accusations, and being
willfully and wantonly negligent. By Order entered on January
30, 2018, I granted summary judgment in favor of Defendants
on all but Plaintiffs claim of retaliation against Defendants
A. Vaughan, N. Stevens, L. McCowan, and A. O'Quinn, and
Plaintiffs claim for supervisory liability against Defendants
Lt. C. Gilbert and Sgt. J. Hall. Plaintiff alleged that
Defendants Vaughan, Stevens, McCowan, and O'Quinn
retaliated against him for filing complaints and grievances
against them for making him submit to unnecessary strip
searches, denying him showers and recreation, and filing a
false disciplinary charge against him. Plaintiff alleged that
Defendants Gilbert and Hall are liable as supervisors for the
retaliation because they failed to prevent the retaliations.
support of their Motions, Defendants submitted the affidavit
of J. Messer, the Institutional Ombudsman at ROSP. Messer
stated that she received a regular grievance from Plaintiff
on February 19, 2016. Messer said that this Regular Grievance
complained that Defendants Stevens arid Vaughan denied
Plaintiff showers on January 17, 20, 29, and 30, 2016, for
noncompliance with the strip-search procedure. Messer said
that Plaintiff also complained about retaliation, an
investigation, and strip-search procedures in segregation.
Messer stated that she rejected the grievance on intake on
February 19, 2016, and returned it to Plaintiff because it
contained more than one issue. Messer instructed Plaintiff to
rewrite and resubmit the grievance in "simpler
terms." Plaintiff did not resubmit the grievance and,
instead, filed an appeal of her intake decision. The Regional
Ombudsman upheld Messer's rejection. Messer asserts that
she did not receive any other regular grievances from
Plaintiff concerning the issues in this lawsuit and Plaintiff
had not submitted any grievances for Level II response.
Plaintiff stated that he resubmitted a grievance containing
only one issue as instructed by Messer within the 30-day
timeframe required under VDOC Operating Procedures
("OP"). Plaintiff did not specify which one issue
he complained of in this grievance. Plaintiff admits that he
never received a Level I response to this resubmitted
grievance and he did not pursue a Level II appeal. He
contends that he did not have the information necessary to
file an appeal to Level II.
also presented various Offender Requests and letters from
early 2016. In the writings, Plaintiff complained that he was
not provided with Informal Complaint forms, grievances had
disappeared without responses, his attempts to utilize the
grievance process to exhaust administrative remedies were
being "hindered, thwarted, or denied in some
fashion," and a grievance was "destroyed."
Plaintiff provided several letters to the court but failed to
present evidence of: (1) what claims were in the lost,
destroyed, or hindered grievances; (2) that he actually
mailed the letters; or (3) that Defendants received them.
R&R, the magistrate judge recommended granting the
Motions because of Plaintiff s failure to exhaust under the
Prison Litigation Reform Act ("PLRA").
Standards of Review A. R&R
report pursuant to 28 U.S.C. § 636(b), the magistrate
judge makes only recommendations to the court. The
recommendations have no presumptive weight, and
responsibility for making a final determination remains with
the court. Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo
review of those portions of the report to which specific
objection is made, and may "accept, reject, or modify,
in whole or in part, the findings or recommendations" of
the magistrate judge. 28 U.S.C. § 636(b)(1). In the
absence of specific objections to the report, the court is
not required to give any explanation for adopting the
recommendation. Cambv v. Davis, 718 F.2d 198,
199-200 (4th Cir. 1983). 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).
Rule of Civil Procedure 56(a) provides that a court 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." "As to
materiality, . . . [o]nly 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
09861 The dispute over a material fact must be genuine,
"such that a reasonable jury could return a verdict for
the nonmoving party." IcL; see also JKC Holding; Co.
v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001). As such, the moving party is entitled to summary
judgment if the evidence supporting a genuine issue of
material fact "is merely colorable or is not
significantly probative." Anderson, 477 U.S. at
moving party bears the burden of proving that judgment on the
pleadings is appropriate. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). If the moving party meets this
burden, then the nonmoving party must set forth specific,
admissible facts to demonstrate a genuine issue of fact for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). In considering a motion
for summary judgment, the court must view the record as a
whole and draw all reasonable inferences in the light most
favorable to the nonmoving party. Celotex, 477 U.S.
at 322-324; Shaw v. Stroud, 13 F.3d 791, 798 (4th
Cir. 1994). However, the nonmoving party may not rely on
beliefs, conjecture, speculation, or conclusory allegations
to defeat a motion for summary judgment. Baber v. Hosp.
Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
evidence set forth must meet the "substantive
evidentiary standard of proof that would apply at a trial on
the merits." Mitchell v. Data Gen. Corp., 12
F.3d 1310, 1315-16 (4th Cir. 1993).