McCoy v. Unknown
Filing
29
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 10/28/11. Copy sent: Yes(tdai, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ANTHONY JO-ALLEN McCOY,
Plaintiff,
v.
Civil Action No. 3:10CV349
K. WILLIAMS, etal,
Defendants.
MEMORANDUM OPINION
Anthony Jo-Allen McCoy, a Virginia prisoner proceeding pro se, submitted this 42
U.S.C. § 1983 action. The action is proceeding on McCoy's Amended Complaint. McCoy
claims that on May 12 and 13, 2010 Defendants1 violated his rights by using excessive force
against his person at Nottoway Correctional Center ("NCC"). Defendants have moved for
summary judgment on the ground that McCoy failed to exhaust his administrative remedies prior
to initiating the present action. McCoy has responded. For the reasons that follow, the Motion
for Summary Judgment will be granted.
I. STANDARD FOR SUMMARY JUDGMENT
Summary judgment must be rendered "if the movant shows that 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). It is the responsibility of the party seeking summary judgment to inform the court
of the basis for the motion, and to identify the parts of the record which demonstrate the absence
of a genuine issue of material fact. See Celotex Corp. v. Catrett, Ml U.S. 317, 323 (1986).
1 McCoy named as Defendants Correctional Officer K. Williams, Assistant Warden
Townsend, and Sergeant Gilliam.
u[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a
summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation
marks omitted). When the motion is properly supported, the nonmoving party must go beyond
the pleadings and, by citing affidavits or '"depositions, answers to interrogatories, and
admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id.
{quoting former Fed. R. Civ. P. 56(c) and 56(e) (1986)). In reviewing a summary judgment
motion, the court "must draw all justifiable inferences in favor of the nonmoving party." United
States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v.
Liberty Lobby, Inc., Ml U.S. 242, 255 (1986)). Nevertheless,"'Rule 56 does not impose upon
the district court a duty to sift through the record in search of evidence to support a party's
opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)
(quotingSkotakv. Tenneco Resins, Inc., 953 F.2d 909, 915 & n.7 (5th Cir. 1992)); see Fed. R.
Civ. P. 56(c)(3) ("The Court need consider only cited materials, but it may consider other
materials in the record.").
Here, Defendants contend that McCoy's claims must be dismissed because McCoy failed
to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a). Because the
exhaustion of administrative remedies is an affirmative defense, Defendants shoulder the burden
to plead and prove lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007). In support of
their motion, Defendants have tendered an affidavit from A. James2 and a copy of the pertinent
Virginia Department of Corrections ("VDOC") regulations pertaining to the grievance system.
2 A. James oversees the grievance system at NCC.
2
McCoy responded by submitting an unsworn statement. See United States v. White, 366 F.3d
291, 300 (4th Cir. 2004) (emphasizing that unsworn argument does not constitute evidence). In
light of the foregoing principles and submissions, the facts set forth below are established for
purposes of the Motion for Summary Judgment.
II. SUMMARY OF FACTS
A.
VDOC's Grievance Procedure
The VDOC maintains a grievance procedure for resolving inmate complaints. The
pertinent VDOC regulations require that, before submitting a formal grievance, the inmate must
demonstrate that he or she has made a good faith effort to resolve the grievance informally
through the procedures available at the institution to secure institutional services or resolve
complaints. (Defs.' Mem. Supp. Summ. J. Ex. 1 ("James Aff.") End. A § 866.1.V.A.)
Generally, this requires an inmate to file an informal complaint form. (Id. § 866.1.V.A.I.) Upon
the submission of an acceptable informal complaint, the receipt portion of the informal complaint
(i.e., the last page) is removed and returned to the offender. (Id. § 866.1 .V.3.) If the informal
resolution effort fails, the inmate must initiate a regular grievance by filling out a standard form.
(Id. §866.1.VI.A.2.)
"The original Regular Grievance (no photocopies or carbon copies) should be submitted
by the offender through the facility mail system to the Warden/Superintendent's Office for
processing by the Institutional Ombudsman/Grievance Coordinator." (Id. § 866.1.VI.A.2.b.) The
offender must attach to the regular grievance a copy of the informal complaint. (Id.
§ 866.1 .VI.A.2.a.) Additionally, "[i]f 15 calendar days have expired from 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." (Id. § 866.1.V.A.2.) A formal grievance must be filed
within thirty days from the date of the incident or occurrence, or the discovery of the incident or
occurrence, except in instances beyond the offender's control. (Id § 866.1 .VI.A.I.)
Prior to review of the substance of a formal grievance, prison officials conduct an
"intake" review of the grievance to assure that it meets the published criteria for acceptance. (Id
§ 866.1 .VLB.) For example, prison officials will not process grievances where the inmate fails
to demonstrate that he has made an good faith effort to informally resolve his complaint by
attaching copies of the pertinent information to the grievance. (James Aff. K 3; James Aff. Encl.
B. July 27, 2010 Grievance 1-2.) The grievance form directs the inmate to "[ajttach Informal
Complaint or other documentation of informal process." (James Aff. Encl. B. July 27, 2010
Grievance 1.) Prison officials note the reason the grievance was not processed on the grievance
form and return the form to the inmate. If an offender disagrees with an intake decision on any
grievance, he/she may send the grievance form, within five (5) calendar days of receipt, to the
appropriate Regional Ombudsman for a determination. (James Aff. ^ 8.)
B.
McCoy's Grievances Filed at NCC
On July 27, 2010, McCoy submitted a grievance wherein he complained "the Major" had
not responded to an informal complaint McCoy had submitted regarding an assault by Sergeant
Gilliam. (James Aff. Encl. B. July 27, 2010 Grievance 1.) The grievance was returned to
McCoy because he had not used the informal process at the institution to resolve his complaint.
(Id. at 2.) McCoy was instructed to rewrite the informal complaint. (Id at 2.) The record does
not indicate that McCoy did so.
On September 16, 2010, McCoy submitted a grievance, directed to the institutional
investigator, wherein McCoy asked, "Why won't you respond to my requests regarding my
criminal complaint paperwork that I filled out because Sgt. Gilliam assaulted me." (James
Aff. Encl. B. Sept. 16, 2010 Grievance 1 (capitalization corrected).) Once again the grievance
was returned to McCoy because there was no indication that he had used informal procedures
available at NCC to resolve his complaint. (Id. at 2.)
III. EXHAUSTION ANALYSIS
The pertinent statute provides: "No 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 any
jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted." 42 U.S.C. 1997e(a). This language "naturally requires a prisoner to exhaust the
grievance procedures offered, whether or not the possible responses cover the specific relief the
prisoner demands." Booth v. Churner, 532 U.S. 731, 738 (2001). Generally, in order to satisfy
the exhaustion requirement, the inmate must file a grievance raising the claim and pursue the
grievance through all available levels of appeal. See Woodfordv. Ngo> 548 U.S. 81, 90 (2006).
Additionally, the Supreme Court has instructed that section 1997e(a) "requires proper
exhaustion." Id. at 93. The Supreme Court explained that "[p]roper exhaustion demands
compliance with an agency's deadlines and other critical procedural rules," id. at 90, "'so that the
agency addresses the issues on the merits.'" Id. (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002)). The applicable prison rules "define the boundaries of proper exhaustion."
Jones v. Bock, 549 U.S. 199, 218 (2007).3
Here, McCoy fails to demonstrate that he complied with the applicable prison rules for
properly exhausting his administrative remedies. Id. These rules required McCoy first to submit
an informal complaint concerning his claims. (James Aff. Encl. A § 866.1. V.A.I.) If McCoy
was dissatisfied with the response to his informal complaint or did not receive a timely response
to his informal complaint, he could then file a regular grievance. McCoy was required to
demonstrate his attempt to informally resolve the issue by attaching either the informal complaint
or the receipt for his informal complaint to the grievance form. (James Aff. ^ 7.) There is no
evidence that McCoy complied with this requirement. See Joyner v. Combs, No. 7:06-CV00377, 2007 WL 152105, at *3 (W.D. Va. Jan. 17, 2007) (concluding inmate's grievances, which
were returned for insufficient information and failure to utilize the informal process, did not
serve to exhaust his administrative remedies for the claims contained therein); Watts v. O 'Brien,
No. 7:06CV00269, 2006 WL 1401489, at *2 (W.D. Va. May 18, 2006). Accordingly, McCoy
failed to properly exhaust the administrative remedies for his claims. The Motion for Summary
Judgment (Docket No. 23) will be GRANTED.
Although the normal remedy for a failure to exhaust under § 1997e(a) is dismissal
without prejudice, see, e.g., Booth, 532 U.S. at 735, dismissal with prejudice may be appropriate
3 In his Amended Complaint, McCoy suggests that he exhausted his administrative
remedies by writing complaints to the warden at his institution. McCoy is wrong. "[T]he lower
courts consistently have rejected arguments that an inmate has satisfied § 1997e(a) by raising his
claims informally when prison regulations designate the established grievance procedure as the
proper method for exhausting claims." Lee v. Clarke, 3:11CV135, 2011 WL 3840979, at *4
(E.D. Va. Aug. 29, 2011) (citing cases).
"where exhaustion was required but administrative remedies have become unavailable after the
prisoner had ample opportunity to use them and no special circumstances justified failure to
exhaust." Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004); see Van Houten v. Marlett, 330 F.
App'x 161, 162-63 (10th Cir. 2009). That is the case here.4 Accordingly, McCoy's claims will
be DISMISSED WITH PREJUDICE. The action will be DISMISSED.
An appropriate Order shall issue.
Date:/ft-
- ((
Richmond, Virginia
/s/
James R. Spencer
Chief United States District Judge
4 McCoy was required to file grievances with respect to the incidents of May 12 and 13,
2010 by June 13, 2010. (James Aff. End A § 866.1.VI.A.I.) McCoy does not identify any
special circumstances that prevented him from complying with that requirement.
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