Boone v. Everett et al

Filing 41

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

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.