Boone v. Everett et al

Filing 41

MEMORANDUM OPINION and ORDER. Signed by District Judge Anthony J Trenga on 02/3/2016. (dest, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Wally Boone, Plaintiff, I:14cvl619 (AJT/TCB) V. C.D. Everett, ^ aL, Defendants. MEMORANDUM OPINON & ORDER Wally Boone, a Virginia inmate proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983, allegingthat jail officials used excessive force against him and showed deliberate indifference to his serious medical needs at Sussex I State Prison ("SISP"). Defendant Nurse Sidi has filed a Motion to Dismiss in this case, and plaintiff has filed a response. Accordingly, the matter is now ripe for disposition. Upon review ofthe filings, plaintiffs claim against Nurse Sidi must be dismissed due to plaintiffs failure to exhaust his administrative remedies. I. Background a. Plaintiffs Factual Allegations Plaintiff alleges that defendants Everett and Rodriguez, correctional officers at SISP, used excessive force against him on June 3,2014. Dkt. No. 9 at 2-3. Plaintiff states that he was taken to the medical unit on June 3,2014 after the alleged use ofexcessive force. Id at 4. At that time, his "eyes were blackened and swollen[,] [he] had scraps [sic] and abrasions to [his] leg fi:om being dragged, and [his] head and throat was in great pain." Id Defendant Nurse Sidi examined plaintiff after the incident. Id When plaintiff informed her ofthe severe pain in his head and throat, she "stated that 'it was normal after being choked - and all that [he] needed was something cold to drink.' And then she left." Id. Plaintiff states that, later that same night, he experienced a severe headache, dizzmess, and severe pain in his throat that rendered him unable to eat. He submitted an emergency grievance, as well as two sick call requests, regarding this pain. Id. Several hours later, the officer on duty told plaintiffthat defendant Nurse Sidi had directed him to put in another sick call request, and that she would not treat him that night because she had already seen him earlier that day. Id. at 5. Plaintiff states that his emergency grievance "went unanswered" for several days until he was seen in the medical unit on June 7,2014. Id However, plaintiff alleges that he suffered another medical emergency on June 9,2014, allegedly related to the same injuries. Id He states that he would not have suffered this medical emergency had medical staff, in particular Nurse Sidi, properly responded to his emergency grievance on June 3,2014. Id Following his June 9,2014 medical emergency, plaintiffallegedly submitted four sick call requests before he met with a nurse that administered CTMs and Motrin. Id Plaintiff claims that Nurse Sidi was deliberately indifferent by denying him medical attention on June 3,2014. Id at 7. He requests declaratory, injunctive, and monetary relief Id at 8-9. b. Plaintiffs Grievance Historv Plaintiff contends that he fully complied with the grievanceprocedure and that he exhausted all levels of SISP's grievance process as of July 23,2014. Id at 6. He attached his grievances and the related responses to his Amended Complaint. Dkt. No. 9. Regarding defendant Nurse Sidi, plaintiff attached two Informal Complaints that were submitted on June 25,2014 (although they are both dated June 7,2014 by plaintiff), in whichhe indicated that he hadthroat andhead painandthat he did not receive responses to his emergency grievances. Id at Att. 3. On July 7,2014, withinfifteen (15) days of receiving the Informal Complaints,Nurse Woodruffrespondedthat plaintiffwas seen by Nurse Butts on June 7,2014 and by Nurse Thigpen on June 9,2014, and that Dr. Ulephad reviewed plaintiffs medical records. Id Plaintiff did not file Level I Grievances until July 9,2014, over thirty (30) days after Jnne 3,2014, in which he complained that he had not received responses to emergency grievances on June 3,2014 for throat and head pains and stated that he did not know what action he wanted taken. Id. These grievances were rejected because plaintiff had not specified what he was requesting and because they were untimely. Id Plaintiffthen sent a letter to Regional Ombudsman on July 9,2014, which was received on July 11,2014, in which plaintiff claimed that he waited to write and file his grievance until July 8,2014 because he was waiting for a response to his Informal Complaints. Id Plaintiff stated that he believed that his appeal would have been returned "for not following the informal process" if he filed his appeal within the time limit to do so. Id The Virginia Department of Corrections, Operating Procedure 866.1 (OP) provides at Section V(B): "If 15 calendar days have expired fi:om the date the Informal Complaint was logged without the offender receiving a response, the offender may submit a Grievance on the issue and attach the Informal Complaint receipt as documentation of the attempt to resolve the issue informally." Dkt. No. 23, Ex. A at 5. With respect to such Level I Grievances, OP provides that "Grievances are to be submitted within 30 calendar days from the date of the occurrence/incident or discovery of the occurrence/incident." Id at 7. II. Standard of Review Rule 12(b)(6) allows a coxirt to dismiss those allegations which fail "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A court may dismiss claims based upon dispositive issues oflaw. Hishon v. King & Snalding. 467 U.S. 69,73 (1984). The alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no reliefcould be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Soalding. 467 U.S. 69, 73 (1984). III. Analysis Pursuant to the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 ofthis 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); Woodford v. Ngo» 548 U.S. 81, 85 (2006) ("Exhaustion is no longerleft to the discretion of the district court, but is mandatory."). The PLRA requires "proper" exhaustion,which demands"compliancewith an agency's deadlines and other critical procedural rules." Woodford. 548 U.S. at 90-91,93. In the contextof prisoner suits,properexhaustion provides prisons the opportunity to correcttheir errors beforebeing hauled into federal court, reduces the quantity of prisoner suitsby eithergranting reliefat the administrative levelor persuading prisoners not to further pursue their claimin a federal court, and improves the quality of the prisoner suits that are filed in federal court by creating an administrative record for the court to reference. Id Thebenefits of proper exhaustion are only realized if the prisongrievance system is given a "fair opportunity to consider the grievance" whichwill not occur "unless the grievant complies withthe system's critical procedural rules." Id. at 95; also Moore v. Bennette. 517 F.3d 717, 725 (4th Cir. 2008). As an inmate in a local jail, plaintiff is required to exhaust the claims raised in his complaint in accordance withhis institution's grievance process. Before bringing his claims in a federal lawsuit, plaintiff must file a grievance as to each claim and must receive a response to the grievance. If plaintiff finds the response is unsatisfactory, he must pursue the grievance through allavailable levels ofappeal before presenting the claim infederal court. Ashas been recognized previously in this district, *the PLRA amendment made [it] clear that exhaustion is now mandatory." Langford v. Couch. 50 F. Supp. 2d544, 548 (E.D. Va. 1999) (Ellis, J.). Inthis case, plaintiff has failed to follow the mandatory requirement to fully and properly exhaust his claim ofdeliberate indifference against Nurse Sidi ina timely manner. The exhaustion requirement applies regardless ofthe availability ofthe relief sought in the grievances andregardless of whether the inmate claims exhaustion would be futile. Booth v. Chumer. 532 U.S. 731, 741 n.6 (2001). By his own admission, plaintiffdid not file a timely regular grievance regarding his medical care provided byNurse Sidi onJune 3,2014. ^ Dkt. No. 9,Att. 2. Plaintiffspecifically statedto Regional Ombudsman that he did not do so because he believed it would befutile to grieve his complaints since he had not received timely responses tohis Informal Complaints; however, OP clearly states otherwise. ^ Dkt. No. 23, Ex. A. Thus, plaintiff's assertion offutility isno excuse for failing to properly and timely utilize the grievance procedure at SISP. Accordingly, this Court lacks jurisdiction to consider the merits of plaintiffs deliberate indifference claim, andthe claim against defendant Nurse Sidi must be dismissed. Woodford. 548 U.S. at 85. The claim of excessive force against defendants Everett and Rodriguez remains pending. Plaintiffs Motion toAmend must be denied because heappears tohave already submitted all documents relevant to the exhaustion of his administrative remedies at SISP. A motion to amend warrants denial where there is "anapparent ordeclared reason [for doing so] - such as undue delay, bad faith, or dilatory motive onthepartof themovant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice tothe opposing party... [or] futility of [the] amendment." Dluhos v. Floating & Abandoned Vessel Known as "New York." 162 F.3d 63, 69 (2nd Cir. 1998) (quoting Foman v. Davis. 371 U.S. 178,182 (1962)). Allowing plaintiffto amend his complaint atthis time would be futile since he has already submitted all relevant documentation of his grievances filed at SISP. Accordingly, it is hereby ORDERED that defendant Nurse Sidi's Motion to Dismiss (Dkt. No. 22) beand is GRANTED; and it is further ORDERED that plaintiffs Motion to Amend (Dkt. No. 30) beand is DENIED WITHOUT PREJUDICE; and it is further ORDERED thatplaintiffs Eighth Amendment claim against defendant Nurse Sidi be and is DISMISSED WITH PREJUDICE for lack ofjurisdiction pursuant to 42 U.S.C. § 1997e(a).' The Clerk is directed toenter final judgment infavor ofdefendant Nurse Sidi, pursuant to Fed. R. Civ. P. 58, and tosend ofcopy ofthis Memorandum Opinion and Order toplaintiffand to counsel of record for defendants. Entered this 3^ davof 2016. Alexandria, Virginia Anthony J.Treni United States DistictJudge ' In deference to plaintiffs pro sq status, he is advised that this Order is not appealable until afinal disposition has been entered regarding his remaining claims in this case. Ifplaintiffwishes to appeal this Order, he must do so within thirty (30) days ofthis Court entering afinal decision in this case, by filing a written notice ofappeal with the Clerk's Office. ^ Fed. R. App. P. 4(a). Awritten notice of appeal is a short statement stating adesire to appeal this Order and noting the date ofthe Order plaintiff wants toappeal. Plaintiffneed not explain the grounds for appeal until sodirected by the court. Failure totimely file a notice ofappeal waives the right toappeal this decision.

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