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Wall v. Stevens

United States District Court, W.D. Virginia, Roanoke Division

March 26, 2019

GARY WALL, Plaintiff,
v.
N. STEVENS, etal, Defendants.

          MEMORANDUM OPINION

          Hon. Jackson L. Kiser Senior United States District Judge .

         Gary 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.

         I. Background

         Plaintiff 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.

         In 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.

         Meanwhile, 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.

         Plaintiff 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.

         In the R&R, the magistrate judge recommended granting the Motions because of Plaintiff s failure to exhaust under the Prison Litigation Reform Act ("PLRA").

         II. Standards of Review A. R&R

         In a 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).

         B. Summary Judgment

         Federal 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 250.

         The 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).[1]

         C. ...


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