Derrick Toomer v. BCDC

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999153056-2] Originating case number: 8:12-cv-00083-DKC Copies to all parties and the district court/agency. [999166567]. Mailed to: appellant. [13-6394]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6394

DERRICK TOOMER,
Plaintiff - Appellant,
v.
BCDC; WARDEN OLIVER; WENDELL FRANCE, Commissioner; M.
FERNANDEZ, Security Chief; OFFICER WILLIS; BOLA AYENI,
Correctional Officer II; OLIVER, Warden,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:12-cv-00083-DKC)

Submitted:

July 18, 2013

Decided:

August 6, 2013

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Derrick Toomer, Appellant Pro Se. Douglas F. Gansler, Attorney
General,
Beverly
F.
Hughes,
Assistant
Attorney
General,
Pikesville, Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Derrick

Toomer

appeals

the

district

court’s

order

granting Defendants’ motions for summary judgment and dismissing
his

42

U.S.C.

§ 1983

(2006)

administrative remedies.

action

for

failure

to

exhaust

For the reasons that follow, we affirm

in part, vacate in part, and remand for further proceedings.
We review a district court’s grant of summary judgment
de novo, viewing the facts and drawing reasonable inferences in
the light most favorable to the nonmoving party.
Clipse, 602 F.3d 605, 607 (4th Cir. 2010).

Robinson v.

Summary judgment is

appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“a

reasonable

jury

Summary judgment will be granted unless

could

return

a

verdict

for

the

nonmoving

party” on the evidence presented.

Anderson v. Liberty Lobby,

Inc.,

“Conclusory

477

U.S.

allegations
evidence

in

do

242,

248

(1986).

not

suffice,

support

of

nor

[the

does

a

nonmoving

mere

or

speculative

scintilla

party’s]

of

case.”

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (internal quotation marks omitted).
The Prison Litigation Reform Act requires that inmates
exhaust all available administrative remedies before filing an
action

challenging

prison

conditions.

2

42

U.S.C.

§ 1997e(a)

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(2006).

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This

exhaustion

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requirement

“applies

to

all

inmate

suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532
(2002), and without regard to whether the form of relief the
inmate seeks is available through exhaustion of administrative
remedies.
“an

Booth v. Churner, 532 U.S. 731, 741 (2001).

administrative

available

if

a

remedy

prisoner,

is

not

through

considered
no

fault

prevented from availing himself of it.”
F.3d 717, 725 (4th Cir. 2008).

to

of

However,
have

his

been

own,

was

Moore v. Bennette, 517

Thus, “when prison officials

prevent inmates from using the administrative process . . . ,
the

process

reality.”

that

exists

on

paper

becomes

unavailable

in

Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

Accordingly, the district court is “obligated to ensure that any
defects

in

exhaustion

were

not

inaction of prison officials.”

procured

from

the

action

or

Aquilar-Avellaveda v. Terrell,

478 F.3d 1223, 1225 (10th Cir. 2007).
Although it is clear from the record that Toomer did
not exhaust his administrative remedies regarding the May and
September

2009

attacks

and

his

claim

that

prison

officials

failed to comply with the hospital’s discharge instructions, we
conclude that the district court erred by granting Defendants’
motions

for

exhaust

his

summary

judgment

administrative

based

remedies

3

on

Toomer’s

regarding

the

failure
April

to
2010

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attack.

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After receiving a favorable outcome on the merits of

his grievance at a lower step in the process, Toomer was not
obligated

to

order

exhaust

to

McGinnis,
prisoner
“received

380

pursue

an

his

F.3d

administrative

administrative
663,

had

exhausted

a

favorable

669

(2d

appeal

Step

remedies.
Cir.

administrative
ruling

to

.

2004)

.

v.

(holding

remedies

.

in

Abney

See

III

where

[and]

no

that

he

had

further

administrative proceedings were available”); Dixon v. Goord, 224
F.

Supp.

2d

739,

749

(S.D.N.Y.

2002)

(holding

that

“[t]he

exhaustion requirement is satisfied by resolution of the matter,
i.e., an inmate is not required to continue to complain after
his grievances have been addressed”); see also Woodford v. Ngo,
548 U.S. 81, 90 (2006) (holding that exhaustion “means using all
steps that the agency holds out, and doing so properly,” to
allow the agency a full and fair opportunity to address the
issues on the merits); Booth, 532 U.S. at 736 (recognizing that
“exhaustion is [not] required where the relevant administrative
procedure lacks authority to provide any relief or to take any
action whatsoever in response to a complaint”).
Moreover,

the

instructions

given

in

response

to

Toomer’s July 26 grievance only directed Toomer to file a Step
III

grievance

if

he

was

dissatisfied

with

the

decision.

Defendants provide no indication that Toomer was dissatisfied

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with the decision, and Toomer maintains that he was satisfied.
The instructions also suggested that action already had been
taken

on

Toomer’s

grievance

and

that

any

further

complaints

should be addressed in a new grievance, not in an appeal of the
current

grievance.

Because

the

instructions

essentially

diverted Toomer from filing a Step III grievance, we conclude
that, even if Toomer had been obligated to file a Step III
grievance,

Defendants

failed

exhaust

to

are

his

estopped

from

administrative

arguing

remedies.

that
See

Toomer
Dole

v.

Chandler, 438 F.3d 804, 811 (7th Cir. 2006) (concluding that
district court erred by finding that prisoner had not exhausted
administrative

remedies

“[b]ecause

[prisoner]

took

all

steps

necessary to exhaust one line of administrative review, and did
not receive instructions on how to proceed once his attempts at
review were foiled” and remanding “for further proceedings on
the merits of [prisoner’s] claim”); Brown v. Croak, 312 F.3d
109, 112-13 (3d Cir. 2002) (holding that incorrect advice from
prison

officials

essentially

made

grievance

procedure

unavailable to prisoner).
Accordingly, we vacate the district court’s grant of
summary judgment on the ground that Toomer failed to exhaust his
administrative remedies regarding the April 2010 attack, remand
to allow the district court to consider Defendants’ alternative

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grounds for summary judgment and for any further proceedings
that may be appropriate, and affirm the district court’s grant
of summary judgment regarding Toomer’s other allegations against
Defendants.

We also deny Toomer’s request for appointment of

counsel on appeal.
facts

and

materials

legal
before

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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