United States District Court, W.D. Virginia, Roanoke Division
ADRIAN N. BACON, Plaintiff,
J. CURRY, ET AL., Defendant.
N. Bacon, Pro Se Plaintiff; Laura E. Maughan, Office of the
Attorney General, Richmond, Virginia, for the Defendants.
OPINION AND ORDER
P. Jones United States District Judge
N. Bacon, a Virginia inmate proceeding pro se, filed this
civil action under 42 U.S.C. § 1983, alleging that
prison officials used excessive force against him. After
review of the record, I conclude that Bacon is barred from
pursuing some of his claims because he failed to exhaust his
administrative remedies before filing this action.
makes the following factual claims in his sworn Complaint,
which I must accept as true for the present purposes. On May
17, 2018 at Wallens Ridge State Prison (“Wallens
Ridge”), Bacon banged on his cell door to get the
attention of a correctional officer. Defendants Curry,
Byington, Collins, and Harris approached to speak with Bacon,
who had his arm resting across the open tray slot. He asked
to speak to a supervisor, but the officers refused this
request. Curry and Byington removed their canisters of OC
spray and threatened to “gas”
Bacon.Compl. 1, ECF No. 1. Bacon told them that
they could not gas him for wanting to speak to a supervisor.
Curry then kicked the tray slot door closed on Bacon's
arm approximately four times and sprayed Bacon with OC gas.
“Collins, Byington, and Harris stood by without
interfering to stop their co-worker from assaulting”
§ 1983 Complaint names all four officers as defendants.
He contends that Curry used excessive force against him,
while the others stood by and failed to intervene to prevent
Curry's unconstitutional actions. As relief, he seeks
monetary damages and injunctive relief providing him a
defendants have filed a Motion for Summary Judgment on the
ground that Bacon failed to exhaust administrative remedies
properly before filing this action. See 42 U.S.C.
§ 1997e(a). Bacon has responded to their motion, making
it ripe for disposition.
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).
defendants contend that Bacon did not exhaust available
administrative remedies before filing this lawsuit. In
support of this argument, they present an affidavit from
Wallens Ridge Human Rights Advocate B. Ravizee, who is
responsible for maintaining grievance files on inmates there.
Procedure 866.1 is the written administrative remedies
procedure that VDOC inmates must follow to comply with §
1997e(a). Mem. Supp. Mot. Summ. J., Ravizee Aff. ¶ 4
& Enclosure A, ECF No. 13-1. 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 -
by completing an Informal Complaint form and submitting it to
prison staff. Id. ¶ 6. He should receive a
written response on the bottom of the Informal Complaint form
within fifteen days, in order to allow him to initiate the
formal grievance procedure by filing a Regular Grievance
within thirty days of the occurrence about which he
complains. Id. After investigation of the Regular
Grievance, the warden or his designee will send the inmate a
Level I response. Id. ¶ 8. If the responding
official determines the grievance to be unfounded, to
complete the exhaustion process, the inmate must appeal that
holding to the regional administrator for a Level II
response, and in some cases, to Level III. Id.
defendants bear the burden of proving the affirmative defense
that Bacon failed to exhaust available administrative
remedies regarding his claims before filing suit. Jones
v. Bock, 549 U.S. 199, 216 (2007). In Ravizee's
review of Bacon's grievance file for administrative
remedy forms related to the allegations in this lawsuit, none
of Bacon's recorded administrative remedy forms
complained that Collins, Byington, and Harris failed to
intervene to stop Curry's actions against Bacon on May
17, 2018. See Ravizee Aff. ¶¶ 11-12, ECF
search did reflect that Bacon submitted Informal Complaint
WRSP-18-INF-01192, dated May 17, 2018. Id. ¶ 11
& Enclosure B. Bacon complained that he is asthmatic, but
Curry kicked the tray slot door closed on his arm and used OC
gas on him without first seeking medical approval. Bacon also
filed Informal Complaint WRSP-18-INF-01275, dated May 20,
2018. Id. ¶ 12 & Enclosure C. In it, he
complained that Curry should be written up for bringing
disciplinary charges against Bacon for the incident on May
17, 2018,  when it was Curry who assaulted Bacon that
day. Id. Unit Manager Collins received and logged
both of Bacon's Informal Complaint forms.
31, 2018, Lieutenant K. M. Fleming spoke with Bacon to
resolve the Informal Complaints. According to Fleming,
“Bacon was cooperative during the meeting and admitted
to [Fleming] that he was disruptive and had dislodged that
tray slot from the cell door on May 17, 2018.”
Id. at Fleming Aff. ¶ 8, ECF No. 13-2. Given
the staff's incident reports and video documentation of
the incident on May 17, ...