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Herron v. Skeen

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

August 8, 2019

BRANDON LUKE HERRON, Plaintiff,
v.
BERLIN W. SKEEN, III, Defendant.

          MEMORANDUM OPINION

          Pamela Meade Sargent United States Magistrate Judge

         The plaintiff, Brandon Luke Herron, (“Herron”), an inmate formerly incarcerated at the Southwest Virginia Regional Jail Authority, (“Jail”), in Duffield, Virginia, [1] and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that the defendant, Berlin W. Skeen, III, a Jail correctional officer, verbally threatened and assaulted him on October 30, 2017, in violation of his Eighth Amendment rights. Herron seeks monetary damages.[2] This case is before the court on Skeen's Motion For Summary Judgment And Memorandum In Support, claiming Herron's claim should be dismissed for failure to exhaust his administrative remedies, (Docket Item No. 45) (“Motion”). Herron did not respond to the Motion. Based on the evidence before the court, I will grant the Motion and enter summary judgment in the defendant's favor.

         I. Facts[3]

         Although not critical to the court's decision on the Motion, I will state a summary of the facts underlying Herron's lawsuit, as set out in the court's February 12, 2019, Amended Opinion And Order, found at Docket Item No. 43. In his Complaint, [4] Herron claims that Skeen assaulted him on October 30, 2017. When Herron's claims arose, he was confined at the Jail's Duffield, Virginia, facility. On October 30, 2017, another inmate told Herron that the defendant, Officer Berlin W. Skeen, III, had dared Herron “to flood [his] cell” during pill call. (Docket Item No. 37.) As Skeen came by, Herron got on the floor of his cell and yelled under the door, “Fuck you, Skeen. Go kill yourself.” (Docket Item No. 37.) Another officer told Herron to pack his things because he was going to “the hole.” (Docket Item No. 37.) Herron thought the officer was joking with him, as officers often did, and said, “[Y]ou are full of shit and … I'm not going to the hole. I didn't do anything wrong.” (Docket Item No. 37.) Herron then went to pill call. Skeen told him again to pack his things to go to the hole. Still thinking that the officers were joking, Herron said, “Fuck you, no, fuck off.” (Docket Item No. 37.)

         Then, Sgt. Rhymer ordered Herron to pack his things. Eventually, Herron went to pack his property, although he continued complaining. Skeen followed him. In his cell, Herron finished drinking a cup of coffee and threw it at his bunk in the back of the cell. Then he turned around to face Skeen, who said, “I told you to give me the chance and I will put you in the hole.” (Docket Item No. 37.) Skeen also called Herron obscene names. Herron then said, “Fuck you Pussy, if you want to fuck me up so bad, then let's get it.” (Docket Item No. 37.) Herron tried to turn back to his packing. Before he could do so, Skeen entered the cell, pushed Herron into the bunk, hit him in the face, pushed him to the ground and began “stomping [Herron's] entire body.” (Docket Item No. 37.) Herron says he “pass[ed] out due to the pain on [his] back.” (Docket Item No. 37.) As Herron came to, bleeding from his face, he saw Rhymer enter the cell and pull Skeen away. Virginia State Troopers came to the Duffield facility, took pictures and prepared reports. No. criminal charges were filed.

         On both Herron's Original Complaint and his Amended Complaint form, he checked the box indicating that he had not filed any grievances regarding the facts of those Complaints. (Docket Item No. 1 at 1; Docket Item No. 19 at 1.) In a statement attached to his Original Complaint, Herron stated that he did not exhaust the grievance process because he was moved to another jail, preventing him from being able to file the grievance paperwork to exhaust all avenues of the grievance process. (Docket Item No. 1 at 5.)

         As stated above, Herron did not respond to the Motion. This failure to respond leaves uncontroverted those facts relied upon by the defendant in the Motion. See In re Fisherman's Wharf Fillet, Inc., 83 F.Supp.2d 651, 654 (E.D. Va. 1999). However, the defendant still bears the burden of showing that the uncontroverted facts entitle him to judgment as a matter of law. See Fisherman's Wharf, 83 F.Supp.2d at 654. “Thus, the Court, in considering a motion for summary judgment, must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law.” Fisherman's Wharf, 83 F.Supp.2d at 654 (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993)). In support of his Motion, the defendant has supplied a sworn affidavit from Jeannie Patrick, the Administrative Lieutenant at the Jail. (Docket Item No. 45-1, Affidavit of Jeannie Patrick, (“Patrick Affidavit”)). Patrick stated that, as Administrative Lieutenant, she was familiar with the Jail's procedures and policies, including the Administrative Redress Program, also known as the Grievance Procedure. (Patrick Affidavit at 1.) She further stated that she had access to inmate records regarding grievances and appeals under the Grievance Procedure. (Patrick Affidavit at 1.) Patrick stated that the Jail's Grievance Procedure is outlined in the Inmate Handbook, which was attached as Exhibit 1 to her Affidavit. (Patrick Affidavit at 1.) Patrick stated that all Jail inmates, including Herron, are oriented as to this Grievance Procedure and how to access the Inmate Handbook when they are received at a Jail facility, including transfers between Jail facilities. (Patrick Affidavit at 1.)

         Patrick stated that the Jail's Grievance Procedure requires an inmate to first make a good faith attempt to resolve his issue through informal channels. (Patrick Affidavit at 1.) If this does not resolve the issue, the inmate must file a grievance within seven days of the alleged occurrence, she said. (Patrick Affidavit at 1.) A response to an inmate grievance will be given within nine days, and if an inmate is dissatisfied by a response, she said, the inmate must appeal in writing within seven days of receiving the response. (Patrick Affidavit at 1-2.) A review of the Inmate Handbook, attached as Exhibit 1 to Patrick's Affidavit, shows that it contains the following concerning the Jail's Grievance Procedure:

… There are four steps in filing a grievance:
1. You must make a good faith attempt to resolve the issue through informal channels by use of a Request Form or Medical Request Form which are located on the Kiosk, where available.
2. You may file a grievance upon dissatisfaction in the answer to the request form within 7 days of the occurrence. A grievance may be submitted on the Kiosk where available. If the Kiosk is not accessible, the inmate may be given a grievance form. All prerequisites of the grievance procedure must be exhausted prior to filing the grievance. The inmate shall place the grievance in the designated area for outgoing mail. If the issue is an emergency, it may be forwarded to the Shift Commander. If the Shift Commander finds the grievance to not be an emergency, then he/she will indicate said finding and forward[] [it] to the Grievance Officer.
3. The validity of the grievance will be reviewed to determine if it meets the definition of a grievance and if proper informal resolution attempts have been made. If it is not valid, it will be returned to you within nine (9) days of receipt stating the reason it is not valid. If your grievance is valid, there shall be a written finding returned to you for every submitted grievance form within nine (9) days of receipt.
4. When you receive a response to a grievance and [are] not satisfied, you may appeal the result, in writing, within 7 days of receipt of the response, to the Chief of Security, who will process the appeal.

(Docket Item No. 45-2 at 27-28) (emphasis in original). The Inmate Handbook does not list a time period for a response to request forms or medical request forms. Patrick stated that the Jail operates four detention facilities, and a grievance filed at one of these facilities regarding an issue at another facility is addressed in the same manner as though the inmate were at the offending facility. (Patrick Affidavit at 1, 2.) In other words, regardless of the Jail facility in which an inmate is ...


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