Wall v. Robinson et al

Filing 31

MEMORANDUM OPINION. Signed by District Judge T. S. Ellis, III on 03/14/2012. (jlan)

IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF VIRGINIA

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Alexandria Division

Gary Wall,
Plaintiff,

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v.

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Lt. Ruffin,
Defendant.

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l:09cv5*74(TSE/TCB)

MEMORANDUM OPINION *

Gary Wall, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983, alleging in pertinent part that he was subjected to the use of excessive force at
Sussex II State Prison ("Sussex II"). The matter is now before the Court on several motions.

Defendant Lt. Ruffin has filed a Motion for Summary Judgment and supporting memorandum of

law, arguing that plaintiffs claim cannot be entertained as plaintiff failed to exhaust his
administrative remedies prior to bringing this federal action. Plaintiff was provided with notice as

required by Local Rule 7(k) and Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975) that he
could file responsive materials within twenty (20) days, and plaintiff filed a response on October
27,2011. For the reasons which follow, defendant's Motion for Summary Judgment must be

denied, without prejudice to his ability to file a renewed summary judgment request on the merits
of plaintiffs claim.
Also before the Court are additional motions by both parties pertaining to discovery
requests by plaintiff and other matters. For the reasons explained below, plaintiffs request for an
extension of time to provide the Court with the name and location of the defendant now

denominated as "Lt. Name Unknown" will be granted, and defendant's Motion for Protective
Order will be denied. Defendant will be allowed thirty (30) days within which to respond to
plaintiffs Request for Production of Documents and Interrogatories. Lastly, defendant Lt.
Ruffin's Motion to Substitute Attorney will be granted.
I. Background

In the initial complaint in this action, Wall alleged nine claims of violations of his
constitutional rights. By Order dated June 29,2009, claims 1 through 5 and 7 through 9 of the

complaint were dismissed, and plaintiff was directed to particularize and amend his allegations
in an Amended Complaint with respect to claim 6, where plaintiff alleged that he was subjected
to the use of excessive force by Lt. Royals and a "John Doe" officer at Sussex II on January 4,
2009. In the Amended Complaint, plaintiff identified the individual he formerly denominated
"John Doe" as Lt. Grey. Subsequently, the Office of the Attorney General informed the Court
that VDOC never had an employee named Royals at plaintiffs institution, and that no VDOC

employee named Grey was working at the institution during time period relevant to plaintiffs
claim. Plaintiff thereupon moved for leave to amend to substitute Lt. Ruffin and an officer
identified as Lt. Name Unknown as the individuals who allegedly applied excessive force.
Plaintiffs motion was granted, Lt. Ruffin was served with the amended complaint, and plaintiff
was directed to provide the Court with the name and location of Lt. Name Unknown within thirty
(30) days.

II. Defendant's Motion for Summary Judgment
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of proving that summary

judgment is appropriate. See Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986) (moving party
bears the burden of persuasion on all relevant issues). To meet that burden, the moving party
must demonstrate that no genuine issues of material fact are present for resolution. Id at 322.
Once a moving party has met its burden to show that it is entitled to judgment as a matter of law,
the burden of production then shifts to the non-moving party to point out the specific facts which
create disputed factual issues. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,248 (1986);
Matsushita Electrical Industrial Co. v. Zenith Radio Corp.. 475 U.S. 574, 587 (1986). In
evaluating a motion for summaryjudgment, a district court should consider the evidence in the
light most favorable to the non-moving party and draw all reasonable inferences from those facts

in favor of that party. United States v. Diebold. Inc.. 369 U.S. 654, 655 (1962). Facts the

moving party bears the burden of proving are facts that are material. As the Supreme Court has
noted, "the substantive law will identify which facts are material. Only disputes over facts which

might affect the outcome of the suit under the governing law will properly preclude the entry of
summaryjudgment." Anderson. 477 U.S. at 248. An issue of material fact is genuine when, "the
evidence... create[s] [a] fair doubt; wholly speculative assertions will not suffice." Ross v.

Communications Satellite Corp.. 759 F.2d 355,364 (4th Cir. 1985).

Under the Prison Litigation Reform Act ("PLRA"), an inmate must exhaust any available
administrative remedies as to his claim before pursuing a § 1983 action in federal court. This
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). Moreover,

administrative exhaustion is mandatory, and courts lack the authority to waive that requirement.
Id. at 524; see also. Anderson v. XYZ Corr. Health Servs.. Inc.. 407 F.3d 674, 677 (4th Cir.
2005). However, "an administrative remedy is not considered to have been available if a

prisoner, through no fault of his own, was prevented from availing himself of [the administrative
remedy]." Moore v. Bennette. 517 F.3d 717, 725 (4th Cir. 2008). Thus, courts must ensure that
any defects in the exhaustion process were not caused by the action or inaction of prison
officials. Aauilar-Avellaveda v. Terrell. 478 F.3d 1223,1225 (10th Cir. 2007).

Here, defendant argues in his Memorandum in Support of Motion for Summary Judgment
that plaintiffs claim should be dismissed for his failure to comply with the exhaustion
requirement. Appended as a exhibit to the Memorandum is the affidavit of Wanda Rollins,
Operations Officer at Sussex II. Affiant states that she reviewed Wall's grievance records, and

that "there are no records that indicate offender Wall submitted an informal complaint or regular
grievance concerning the allegations" giving rise to this lawsuit. Rollins Aff. ^ 8.

Plaintiff has filed a response to defendant's summaryjudgment motion supported by
several exhibits. Plaintiff states under penalty of perjury that his attempts to exhaust his
administrative remedies as to his present claim were thwarted by prison officials. Specifically,
plaintiff states that after his assault at Sussex U on January 4,2009, he was transferred on an

emergency basis to Sussex I State Prison the following day. When an institutional investigator
came to speak to him on January 6, plaintiff informed her of the assault but was told that because

he didn't know the identity of his assailants, his claim could not be investigated. Plf. Resp. at 2.
The investigator told plaintiff he would have to address the issue with Sussex n. The following

day, plaintiff told his Unit Manager at Sussex I about the assault, and she told him once again

that he needed to contact Sussex U about his issues. Id. Plaintiff wrote several informal

complaints to Sussex U on January 8, 2009 which included the issue of his assault by officers at
Sussex II. Plf. Resp. at 3. When plaintiff received no response within 15 days, he resubmitted a

second set of informal complaints on January 23. Id. Plaintiff mailed his disciplinary appeal on
January 28, and became suspicious that his mail was being "trashed" because he received no
responses to any of his mailings. Id. On January 30, plaintiff sent a request to the mailroom to

confirm that his mail was being posted, a copy of which is attached as an exhibit to plaintiffs
response. On February 5, a staff member responded that "per policy, we don't log special

purpose mail, only legal." Plf. Resp., Att. 2. Plaintiff proceeded to file a grievance concerning
the alleged interference with his mail, Plf. Resp., Att. 3, which was forwarded by the Regional
Ombudsman to the VDOC Regional Ombudsman on March 11,2009. Plf. Resp., Att. 4. When

plaintiff received no response, he sent a letter of inquiry to the Regional Director, and on March
11,2009, Warden Senior D. B. Everett responded that the letter had been forwarded to him for

investigation and a response. According to the Warden Senior, the response to plaintiffs appeal
was returned to him on or about February 25,2009. Plf. Resp., Att. 5-6.
At this juncture, defendant as the movant for summaryjudgment has failed to carry his
burden to demonstrate that no genuine issues of material fact are present for resolution. Cf.

Celotex Corp.. 477 U.S. at 322. Specifically, plaintiffs sworn response and exhibits call into
question the availability of administrative remedies to him for the claim under consideration
here, because they suggest that plaintiff may have been prevented from availing himself of
administrative remedies through the actions of prison officials. See Moore. 517 F.3d at 725;

Aquilar-Avellaveda. 478 F.3d at 1225. Accordingly, defendant's Motion for Summary Judgment

must be denied. Defendant will be allowed an opportunity to move for summary relief on the
merits of plaintiffs claim, should he wish to do so.
III. Additional Motions

As noted above, plaintiff previously was directed to provide the Court with the name and
location of defendant Lt. Name Unknown within thirty (30) days. Plaintiff has moved for an
extension of that period, on the ground that he needs additional time to seek the information
through discovery. In consideration of his pro se status, plaintiffs request for an extension will
be granted, and he will be allowed an additional thirty (30) days from the date of this Order to

supply the name and whereabouts of Lt. Name Unknown. Plaintiff is cautioned that failure to do
so within the time specified will result in the dismissal of Lt. Name Unknown as a party to this
action pursuant to Fed. R. Civ. P. 4(m).
On October 4, 2011, plaintiff served on defendant Lt. Ruffin a Request for Production of
Documents and Video Recordings, as well as a set of Interrogatories. On October 14, defendant

moved for a protective order on the ground that the discovery requests were premature since his

then-pending Motion for Summary Judgment might be dispositive of the case. As that Motion is
being denied herein, defendant's Motion for Protective Order also must be denied, and he will
have thirty (30) days within which to respond to plaintiffs discovery requests.
Lastly, defendant has moved for an Order substituting Assistant Attorney General J.
Michael Parsons as counsel of record for defendant, as his previous counsel is no longer
employed with the Office of the Attorney General. Defendant's motion must be granted.
IV. Conclusion

For the foregoing reasons, defendant's Motion for Summary Judgment must be denied,

and he will be permitted thirty (30) days within which to move for summary adjudication of
plaintiffs claim onthe merits, should hewish to do so. Defendant's Motion for Protective Order

will be denied, and defendant shall have thirty (30) days within which to respond or object to
plaintiffsdiscovery requests. PlaintifFs Motion for Extension ofTime and defendant's Morion

for Substitution of Counsel both must begranted. An appropriate Order shall issue.

Entered this / '

day of

/J /ff/KJ]/

2012.

Alexandria, Virginia

T. S. ElJJvIlT

United States District Judge