William Graham v. Sheriff Gentry

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:08-cv-00279-RBS-FBS Copies to all parties and the district court/agency. [998527800] [09-8161]

Case: 09-8161

Document: 57

Date Filed: 02/18/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-8161

WILLIAM L. GRAHAM,
Plaintiff - Appellant,
v.
SHERIFF E.S. GENTRY; MAJOR DOSS; CAPTAIN PROCTOR; LT. HOGG;
SARGEANT (SGT) BURGESS; DEPUTY GAGNE,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00279-RBS-FBS)

Argued:

December 8, 2010

Decided:

February 18, 2011

Before SHEDD, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach,
Virginia, for Appellees. ON BRIEF: Samuel Leven, Third Year Law
School Student, David Rhinesmith, Third Year Law School Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation
Clinic, Charlottesville, Virginia, for Appellant.
Lisa Ehrich,
PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The facts forming the basis of this action occurred while
William

L.

Graham,

incarcerated
jail).
Graham

in

the

a

former

Gloucester

correctional
County

Jail

officer,
Virginia

in

was
(the

After being assaulted in the jail by other inmates,
filed

this

complaint

under

42

U.S.C.

§

1983

against

Sheriff E.S. Gentry, the chief law enforcement officer for the
County

of

Gloucester,

and

several

other

officials (collectively, the defendants).

local

correctional

Graham claimed that

the defendants violated his constitutional rights because of the
conditions

of

his

confinement,

inadequate

protection

purportedly

received

while

because

he

allegedly

incarcerated,

inadequate

medical

and

care

received

because

following

he
the

assault.
The

defendants

filed

a

motion

for

summary

judgment,

contending that Graham’s action should be dismissed because he
had

not

grievance

first

submitted

procedure.

his

Thus,

complaints
the

through

defendants

the

jail’s

argued,

Graham

improperly failed to exhaust his administrative remedies before
filing this lawsuit.

The district court agreed, and awarded

summary judgment in the defendants’ favor.

Upon consideration

of Graham’s appeal, we affirm the district court’s judgment.

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I.
The
formal

issues

presented

grievance

in

procedure

this
and

appeal

Graham’s

compliance with, the required procedure.

involve

the

knowledge

jail’s

of,

and

We review the facts in

the record in the light most favorable to Graham, the non-moving
See Anderson v. Liberty Lobby,

party in the district court.
Inc., 477 U.S. 242, 255 (1986).
Graham

was

incarcerated

at

the

jail

on

June

8,

2006.

Because Graham was formerly a correctional officer employed at a
prison

facility

near

the

jail,

he

initially

was

placed

in

protective custody pursuant to the jail’s policy.
Upon his arrival at the jail, Graham was provided with a
copy

of

the

acknowledged

jail’s
in

inmate

writing

handbook

that

he

had

(the

handbook).

received

a

Graham

copy

of

the

handbook, which refers to an inmate’s right “[t]o be advised of”
the jail’s grievance procedure.

The handbook also states that

“[i]f you have any questions regarding the rules you may request
information from the correctional deputy on duty.

If you need

any of the mentioned forms they will also be provided by the
correctional deputies.”
In

August

procedure

2006,

during

an

with other inmates.
that

orientation

jail

officials

orientation

discussed

session

that

the

grievance

Graham

attended

Although the parties dispute the details of

session,

Graham
3

admits

that

the

orientation

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provided a “verbal overview of the [grievance] procedure which
included an explanation of what constitutes a grievance and the
types of problems that may be grieved.”

After attending this

orientation session, Graham signed a form stating that he had
been

“advised

that

this

facility

has

an

official

grievance

procedure[,] which is explained in the inmate handbook.”

While

a separate written policy specified the details of the jail’s
grievance procedure, that written policy was not included in the
inmate

handbook.

written

copy

of

Graham
the

neither

actual

requested

grievance

nor

received

procedure

during

a
his

incarceration at the jail.
Although Graham initially was placed in protective custody,
he was moved in early July 2006 into a holding cell with several
other

inmates.

On

July

10,

2006,

several unidentified inmates.

Graham

was

assaulted

by

Thereafter, the jail began an

investigation of the assault, and jail officials held a meeting
on July 12, 2006 with Graham and his mother to discuss the
incident.

At that time, the jail officials told Graham that the

assault would be “looked into,” but the jail’s formal grievance
procedure was not discussed during this meeting.
Additionally,

at

that

meeting,

Graham

signed

a

document

requesting that the Sheriff’s Office “stop all investigations
that are directed at what occurred on the night of July 10,
2006,” and stating that Graham would not hold Gloucester County
4

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responsible

for

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the

Date Filed: 02/18/2011

assault.

Graham

also

Page: 5

affirmed

in

this

document that he would not give any further statements about the
assault and would not testify against any of his attackers if
charges were brought.
It
grievance

is

undisputed

challenging

that

the

Graham

conditions

never
of

filed

his

a

written

confinement,

the

defendants’ purported failure to protect him from any attacks,
or the medical treatment that he received after being injured.
It is also undisputed that Graham did not request any grievance
forms

or

ask

any

jail

official

how

to

pursue

a

grievance.

Further, Graham does not contend, nor is there any evidence in
the record, that any Gloucester County or jail official impeded
or discouraged any efforts that Graham made or could have made
to file a grievance.
Graham filed the present action against the defendants in
June

2008.

The

defendants

thereafter

moved

for

summary

judgment, contending that Graham’s action was barred because he
had failed to exhaust his administrative remedies.

The district

court agreed with the defendants, holding that an administrative
remedy was “available” to Graham, and that he failed to pursue
this remedy despite the fact that he “was advised of and knew
about the existence of the system, and he could have asked for
any further information he required.”

The district court also

concluded that the exhaustion requirement could not be “waived,”
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rejecting Graham’s argument that because he raised some of these
issues

during

the

meeting

with

jail

officials,

a

formal

grievance would have been a useless formality.

II.
We review the district court’s award of summary judgment de
novo, applying the same standard as the district court.

See

Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc).
Under that standard, summary judgment is appropriate when “there
is no genuine issue as to any material fact.”

Id.; Fed. R. Civ.

P. 56(a).
The defendants argue on appeal, as they did in the district
court,
exhaust

that
his

Graham’s

claims

administrative

are

barred

remedies.

because

he

Under

failed

the

to

Prison

Litigation Reform Act (the Act), 42 U.S.C. § 1997e(a), an inmate
is required to exhaust any “available” administrative remedies
before pursuing a § 1983 action in federal court. 1

The Act’s

exhaustion requirement “applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

1

The

The statute provides, in relevant part, that “No action
shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a).
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exhaustion

Document: 57

requirement

is

Date Filed: 02/18/2011

mandatory,

authority to waive that requirement.

and

Page: 7

courts

lack

the

See id. at 524.

Although the Act does not define the term “available,” we
have held that “an administrative remedy is not considered to
have been available if a prisoner, through no fault of his own,
was

prevented

remedy].”

from

availing

himself

of

[the

administrative

Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).

Thus, the key issue presented in this appeal is whether the
jail’s formal grievance procedure was “available” to Graham, or
whether Graham was prevented from obtaining access to the jail’s
grievance process.
Graham

first

argues

that

because

he

was

not

instructed

explicitly regarding how to file a grievance, a genuine issue of
material fact exists whether he “knew of the existence of the
grievance procedure and knew he could ask questions about it.”
This argument fails, however, in light of the undisputed facts
concerning the references to the jail’s grievance policy in the
inmate handbook and the information that Graham received during
the orientation session.

These facts demonstrate that Graham

knew of the existence of the grievance procedure, and knew that
he could ask jail officials questions about the procedure.
Graham maintains, nevertheless, that while he knew about
the existence of a grievance procedure and that he could ask
questions about it, the procedure was not “available” to him
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because he knew nothing more about it. 2

Page: 8

We find no merit in this

argument, because it completely fails to apply the meaning of
the term “available” articulated in our Moore decision.

There,

we held that in order to show that a grievance procedure was not
“available,” a prisoner must adduce facts showing that he was
prevented, through no fault of his own, from availing himself of
that procedure.

See id.

We conclude that Graham failed to make this showing.

We

again note that Graham knew about the existence of the grievance
procedure, but he never inquired about how to file a grievance
under

that

there

is

procedure.

no

evidence

Further,
in

the

we

record

find
that

it

significant

any

jail

that

official

impeded or discouraged any efforts that Graham made or could
have made to file a grievance.

Thus, although Graham knew about

the existence of the jail’s formal grievance procedure, he took
no steps to comply with the process then in place, and his
failure to do so cannot be attributed to anyone but himself.
Graham therefore cannot demonstrate that he was “prevented” from
availing himself of the jail’s administrative remedy. 3

2

We observe that the premise for this argument contradicts
Graham’s prior argument that he did not know of the existence of
the grievance procedure or that he could ask questions about it.
3

In order to avoid the meaning of the term “available,” as
set forth in Moore, Graham proposes that we adopt the Second
Circuit’s
“objective”
test
for
determining
whether
an
(Continued)
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We

also

Document: 57

reject

Graham’s

Date Filed: 02/18/2011

argument

that

he

Page: 9

exhausted

his

administrative remedies by informing jail officials of some of
his complaints during the July 12, 2006 meeting.

As an initial

matter, Graham does not contend that his participation in this
meeting was a required step in the jail’s grievance process.
Also, Graham requested during this meeting that the defendants
halt any investigation into the assault, and Graham represented
that he would not make any statements about the events that
transpired

during

defendants

that

the
the

assault.
jail

Thus,

officials

we

agree

were

not

with

the

given

the

opportunity to assess thoroughly Graham’s claims during the time
period in which an effective administrative review could have
been conducted.
Cir.

2000)

remedies

Cf. Camp v. Brennan, 219 F.3d 279, 280-81 (3d

(holding

even

though

that
he

plaintiff

did

not

exhausted

fully

comply

administrative
with

grievance

procedures, because prison guards refused to process grievance
forms

and

reviewing

state

prison

agency

conducted

a

“full[]

examin[ation] on the merits” of plaintiff’s claims).

administrative remedy was available.
Under this analysis, a
reviewing
court
considers
whether
“a
similarly
situated
individual of ordinary firmness [would] have deemed [the
grievance procedures] available.” See Hemphill v. New York, 380
F.3d 680, 688 (2d Cir. 2004). We reject Graham’s invitation to
adopt this additional layer of analysis, because we conclude
that the standard articulated in Moore is more than adequate to
resolve cases of this nature.

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For these reasons, we conclude that the district court did
not err in awarding summary judgment in the defendants’ favor,
because

Graham

failed

to

exhaust

the

jail’s

administrative remedies before filing this action.

available

Accordingly,

we affirm the district court’s judgment. 4
AFFIRMED

4

We do not address Graham’s contention that the district
court should have dismissed his lawsuit without prejudice,
rather than with prejudice, because the jail’s grievance policy
does not specify a time period in which an inmate must file a
claim.
Graham did not make this argument in his appellate
brief, and only raised it during his rebuttal at oral argument.
It also does not appear that Graham asked for this relief in the
district court.
Therefore, we conclude that Graham waived any
argument concerning whether his lawsuit should have been
dismissed without prejudice.
See Equal Rights Ctr. v. Niles
Bolton Assocs., 602 F.3d 597, 604 n.4 (4th Cir. 2010) (holding
that argument not raised in opening appellate brief is waived);
United States v. Williams, 378 F.2d 665, 666 (4th Cir. 1967)
(per curiam) (holding issues argued orally but not addressed in
brief are waived).

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