HARDY v. LEWIS et al

Filing 39

MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 02/27/2014, that for the foregoing reasons, IT IS ORDERED that Defendants' Motion for Summary Judgment [Doc. # 24 ] is granted and this action is dismissed without prejudice to Plaintiff fully exhausting his administrative remedies. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LESTER HARDY,
Plaintiff,
v.
ROBERT C. LEWIS, REUBEN F. YOUNG,
CRUTCHFIELD, J. GALLIEN,
Defendants.

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1:12CV188

MEMORANDUM OPINION AND ORDER OF
UNITED STATES MAGISTRATE JUDGE
This is a prisoner civil rights action raising Eighth Amendment and Fourteenth
Amendment claims against the administrators of a North Carolina prison. Plaintiff Lester Hardy
contends that he has been subjected to unlawful conditions of confinement in violation of 42
U.S.C. § 1983 by Defendants Robert C. Lewis, the North Carolina Director of Prisons, Reuben
F. Young, Secretary of the Department of Public Safety, Gary Crutchfield, assistant
superintendent of programs at Scotland Correctional Institution (“Scotland”), and Joseph
Gallien who was the assistant unit manager at Scotland. The case is before the Court on
Defendants’ Motion for Summary Judgment [Doc. #24]. Plaintiff, who is proceeding pro se, has
responded to Defendants’ Motion. This action has been referred to the undersigned pursuant
to 28 U.S.C. § 636(c) upon the consent of the parties. (Reference [Doc. #23].) As further set
out below, because Plaintiff failed to exhaust his administrative remedies prior to filing suit,
Defendants’ Motion will be granted and this action will be dismissed without prejudice.

I.

FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff was incarcerated at the Scotland Correctional Institution during the time period

relevant to this action, housed in close custody and serving a 64-year sentence for second-degree
murder. (Crutchfield Aff. [Doc. #25-1] at 1.) Plaintiff’s complaints in this case relate to a
lockdown at Scotland Correctional that began on January 19, 2012, when the Scotland institution
as well as many other close-custody institutions in North Carolina were placed on lockdown
status due to multiple gang-related assaults and major infractions occurring within a very short
period of time. (Id. at 2.) Plaintiff complains of almost every aspect of prison life during the
lockdown period. He complains of being given no opportunity to shower, no exercise for five
days, no medical treatment, no cleaning supplies, cold food, no sunlight or fresh air, dirty
showers and day room, poor ventilation, no educational programs, no religious programs, failure
to respond to grievances, and a non-functioning toilet in his cell for six days. (Id. at 3-4.)
Plaintiff also contends that the lockdown caused his medical conditions to worsen, including
high blood pressure, head and chest pains, swelling in hands and feet, stomach cramps, dry skin,
weight loss, tight muscles, dehydration, trouble breathing, bad nerves, and clogged arteries. (Id.)
Plaintiff seeks as relief an end to the lockdown and damages. (Id. at 4.)
Plaintiff attached to his Complaint copies of two administrative grievances. The first is
dated January 22, 2012, three days after the beginning of the lockdown. This grievance is not
signed by a correctional officer as being received as the form requires and does not bear a
grievance number. Defendants contend that Plaintiff never properly submitted this grievance.
In this grievance, Plaintiff complains about many of the same conditions listed above. Plaintiff

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contends that he sent a copy of his January 22 grievance directly to the office of Defendant
Lewis, the Director of the Division of Prisons, along with a letter contending that prison officials
would not respond to his complaints. Plaintiff also submits a letter he received in response, in
which the grievance was returned to Plaintiff with directions to submit it at Scotland in
accordance with standard administrative remedy procedures. Plaintiff does not contend that he
submitted the grievance at Scotland as directed.
The second grievance attached to the Complaint is dated January 31, 2012. (Id. at 10.)
This grievance reflects that it was received by a correctional officer on February 1, 2012. In this
grievance, Plaintiff asks for a new order of Clonidine medication and says that he has not had
the medication for four days, causing him to have high blood pressure, cramps, head pain,
vomiting, and an eye problem. (Id.)
Defendants support their Motion for Summary Judgment with affidavits and other
documents. (Defs’. Mem. [Doc. #25].) Sorrell Saunders, a correctional administrator at
Scotland, states in his affidavit that the January 19, 2012 lockdown of Scotland was ordered by
the officer-in-charge due to “continuous fighting and assaults conducted by/on inmates.”
(Sorrell Aff. [Doc. #25-3] at 1.) On February 8, 2012, an attempt to bring Scotland back to
normal operating procedures was made, but the lockdown continued because “inmates began
assaulting staff and refusing to obey orders given by staff.” (Id. at 2.) According to the affidavit,
the facility returned to normal operations on February 16, 2012, a few days after Plaintiff filed
his Complaint in this case.

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Defendants’ records show that during the lockdown, certain activities were curtailed and
inmates were subject to reduced freedom of movement. Close custody inmates such as Plaintiff
were served meals in their cells. (Crutchfield Aff. [Doc. #25-1] at 2.) However, according to
Defendants, medical coverage continued 24 hours per day, 7 days per week. (Id.) In addition,
inmates in close custody had access to sinks and toilets in their cells, and showers resumed for
inmates on January 26, 2012. (Id.) Defendants further aver that Scotland’s ventilation system
was tested by an independent entity, along with the sanitation of its showers and dayrooms, and
passed with a 98.6 rating. (Id.) Defendants also aver that Scotland has approximately 144
programs per month and provides vocational classes such as for GED, electrical wiring, sewing,
and a Braille program, although Plaintiff contends that at least some of these programs were not
available for a few weeks during the lockdown.1 (Id.) As for Plaintiff’s toilet, Defendant
Crutchfield states in his affidavit that no one can recall complaints by Plaintiff regarding his
toilet during the relevant time period, but that plungers were available from any available staff
as they made their hourly rounds.2 (Id. at 3.)
Defendant Gallien submitted an affidavit stating that he, as assistant unit manager,
operated under the guidelines of the facility administrator related to the lockdown. (Aff. [Doc.
#25-2] at 1.) Defendant Gallien also states that Plaintiff’s January 22, 2012 grievance was not
ever submitted to staff for processing. With respect to the January 31, 2012 grievance,
1

Defendant Crutchfield attached to his affidavit a copy of Scotland’s January 2012 monthly services
calendar [Doc. #25-1 at 6] which lists several religious services occurring on almost every day of the month. In
addition, Plaintiff states in his “Answer to Defendants[’] Answer” [Doc. #11] that “programs just started back
in March 2012.”
2

Plaintiff later states that he and staff reported his stopped-up toilet and that “Officer Locklear on
Sergeant Pattison[’s] shift came with maintenance man Barton.” (Response [Doc. #11] at 1.)

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Defendant Gallien explains that the prison’s administrative remedy procedure has three steps.
The final step consists of a review by the Inmate Grievance Review Board, and Plaintiff’s
January 31, 2012, grievance did not reach this final step until March 26, 2012. The grievance
documents submitted with the affidavit reflect that Defendant received his requested blood
pressure medication by February 27, 2012, and the January 31, 2012 grievance was therefore
resolved.
A registered nurse, Stephanie Leach, also submitted her affidavit. She is located in
Raleigh and holds the position of Risk Manager/Standards Director in the Department of
Public Safety, Division of Adult Correction. She states that she examined Plaintiff’s medical
records to determine if he saw medical personnel between January 19, 2012, and March 31, 2012.
The records show that Plaintiff submitted a sick call appointment request on February 9, 2012,
complaining of not being able to keep food on his stomach, being cold, head pain, and stomach
cramps. In addition, on February 20, 2012, Plaintiff completed a sick call request complaining
of head and chest pain, stomach cramps, an eye problem, breathing problem, and that he felt
his blood pressure was high. He was seen on February 27, 2012, and was assessed as being
constipated. He was given Ibuprofen and a stool softener and told to return if his symptoms
persisted. (Leach Aff. [Doc. #25-4] at 1-2.) The records also indicate that he was issued his
requested high blood pressure medication. (Grievance Response [Doc. #25-2 at 15]; Plaintiff’s
Exs. [Doc. #28 at 19]). Plaintiff completed two additional sick call requests for congested nose,
eye pain, and constipation. However, according to the medical records, when inquiry was made,
Plaintiff stated that his requests had been addressed. (Leach Aff. at 2-3.) On March 20, 2012,

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Plaintiff completed another sick call request complaining of head and chest pain, eye problems,
and breathing problems. Nurse Torres saw him on March 27, 2012, and noted that his blood
pressure was elevated and that his eye pain was related to an old stab wound. He was to return
to medical in two hours for a recheck and for a doctor’s appointment. A mental health referral
was also to be completed. Plaintiff agreed with that plan.
Defendants contend that summary judgment should be granted in their favor because
Plaintiff has not exhausted his administrative remedies, his claims for declaratory and injunctive
relief are moot, he cannot show that his constitutional rights were violated, respondeat superior
liability is not applicable to Plaintiff’s claims, and monetary damages are not available from
Defendants in their official or individual capacities.
Plaintiff filed a Response to Defendants’ motion. He focuses on more fully explaining
the conditions under which he is housed and devotes little time to the issue of the exhaustion
of his administrative remedies. For example, he contends that his rights have been violated
because he is not allowed to move freely “in & out of his room,” he is not allowed to wear a
jacket indoors, and he is only allowed “nine hours a day out of his room plus 45 minute out door
exercise three times a week.” With respect to the grievances, Plaintiff simply says that he sent
a copy of a grievance to Director Lewis’ office, which sent it back to Scotland, and that
Defendant Crutchfield failed to respond to it. (Response [Doc. #28] ¶ 4.) Plaintiff has
complained throughout the case of Defendants not responding to discovery. The Court denied
his motion to compel discovery (Doc. #21 and text order dated 3/28/2013 (a copy of which
was sent to Plaintiff)) and explained that he must first properly serve a discovery request.

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Plaintiff has not shown that he has properly served discovery to which Defendants have not
responded.
II.

DISCUSSION
A.

Standard

Summary judgment is appropriate only when no genuine issue of material fact exists.
Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). A genuine issue of fact exists if the
evidence presented could lead a reasonable fact-finder to return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A court considering
a motion for summary judgment must view all facts and draw all reasonable inferences from the
evidence before it in a light most favorable to the non-moving party. Id. The proponent of
summary judgment “bears the initial burden of pointing to the absence of a genuine issue of
material fact.” Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). If the movant carries this burden, then the
burden “shifts to the non-moving party to come forward with facts sufficient to create a triable
issue of fact.” (Id. at 718-19 (citing Anderson, 477 U.S. at 247-48).) A mere scintilla of evidence
supporting the non-moving party’s case is insufficient to defeat a motion for summary judgment.
See, e.g., Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994); see also Anderson, 477 U.S. at 248
(non-moving party may not rest upon mere allegations or denials.)
B.

Exhaustion

Pursuant to 42 U.S.C. § 1997e(a), “[n]o 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

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any jail, prison, or other correctional facility until such administrative remedies as are available
are exhausted.” In Porter v. Nussle, 534 U.S. 516, 532 (2002), the Court held “that the PLRA’s
exhaustion requirement applies to all inmate suits about prison life.” Exhaustion of available
administrative remedies is mandatory and a prerequisite to suit. Anderson v. XYZ Corr. Health
Servs., Inc., 407 F.3d 674, 676-77 (4th Cir. 2005); see also Porter, 534 U.S. at 524 (“Once within
the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory.
All available remedies must now be exhausted; those remedies need not meet federal standards,
nor must they be plain, speedy, and effective. Even when the prisoner seeks relief not available
in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.” (citations
and internal quotation marks omitted)). In this case, Plaintiff’s claims involve his conditions
of confinement, and such claims must be fully exhausted prior to Plaintiff filing suit.
The record shows that as of the time of the filing of Plaintiff’s Complaint, Plaintiff had
not fully exhausted any of his claims. He relies upon the two grievance forms discussed above.
With respect to the grievance dated January 22, 2012, Plaintiff contends that he mailed a copy
of that grievance directly to the office of Defendant Lewis, the Director of the Division of
Prisons. However, the February 9 response from Director Lewis’ office to that grievance
advises Plaintiff to submit his grievance at Scotland in accordance with standard procedures, but
there is no evidence that Plaintiff did so. The grievance itself fails to show that it was received
by a corrections official at Scotland. Plaintiff does not contend that he submitted the grievance
at Scotland as directed. Thus, the contentions related to the January 22 grievance were never
exhausted.

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The second grievance dated January 31, 2012, which relates only to Plaintiff’s request for
certain high-blood pressure medication, shows that it was received by a corrections official on
February 1, 2012, about 20 days before Plaintiff filed this action. However, Defendants show
that the January 31 grievance did not make its way to the third step in the grievance process until
March 26, 2012, well after the filing of this action in February 2012. (Grievance [Doc. #25-2]
at 13.) Thus, Plaintiff failed to fully exhaust his January 31, 2012 administrative grievance prior
to filing suit. See Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (“While we recognize
that plaintiff made some attempts to go through the prison’s grievance procedures, we must
dismiss plaintiff’s complaint because he filed his federal complaint before allowing the
administrative process to be completed.”); Woodward v. Daugherty, 845 F. Supp. 2d 681, 684
(W.D.N.C. 2012) (prisoner may not exhaust during pendency of federal suit); Harris v. Midford,
No. 1:10cv263, 2011 WL 1601446 (W.D.N.C. Apr. 27, 2011) (prisoner does not comply with
PLRA by exhausting remedies during the course of litigation); Rogers v. Bullock, No.
1:06CV350, 2007 WL 2712922 (M.D.N.C. Sept. 14, 2007) (“the record shows that Plaintiff
Rogers had not exhausted his administrative remedies regarding his food claims at the time he
filed this section 1983 action. Under the authority of 42 U.S.C. § 1997e(a), Booth v. Churner,
and Johnson v. Jones, the Court finds that this claim must be dismissed for lack of proper
exhaustion.”), aff’d, 280 F. App’x 286 (4th Cir. 2008).3
3

The Court further notes that with respect to the January 31, 2012 grievance related to Plaintiff’s highblood pressure medication, the record establishes that by February 27, 2012, Plaintiff was issued the Clonidine
medication he requested. (Grievance Response [Doc. #25-2 at 15].) Thus, the issue raised in the January 31, 2012
grievance was resolved prior to the conclusion of the administrative grievance process. Moreover, in the
circumstances, it does not appear that the issue raised in the January 31 grievance would support a claim that
prison officials were deliberately indifferent to Plaintiff’s medical needs in any event, given the records of multiple
medical visits and prescriptions in February and March 2012.

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Thus, in light of the undisputed evidence, the Court concludes that Plaintiff did not
exhaust his administrative remedies prior to filing suit. Moreover, there is no evidence from
which a reasonable factfinder could conclude that Plaintiff was prevented from exhausting his
administrative remedies. Accordingly, this action should be dismissed without prejudice to
Plaintiff fully exhausting his administrative remedies.
C.

Remaining Arguments and Contentions

Defendants argue on several other bases that Plaintiff’s claims should be dismissed.
Because Plaintiff has not exhausted any of his claims, the claims are not properly before the
Court. Should Plaintiff exhaust his remedies and re-file this action, Defendants’ remaining
arguments for dismissal of those claims may be presented.
Finally, the Court notes that for his part, Plaintiff raises additional contentions in several
“Supplements” and “Notices” [Docs. #14, 17, 22, 29, 31, 32, 33, 34, 35, 36, 37, 38] complaining
of various on-going aspects of prison life that occurred after the filing of the Complaint. To the
extent Plaintiff requests leave to add additional claims in this case, that request will be denied.
Plaintiff must exhaust his administrative remedies with respect to any new claim or contention
he wishes to raise, and must then file a separate action on the proper forms, setting out the
specific basis for his claims.

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III.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendants’ Motion for Summary

Judgment [Doc. #24] is granted and this action is dismissed without prejudice to Plaintiff fully
exhausting his administrative remedies.
This, the 27th day of February, 2014.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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