McCoy v. Terry
Filing
21
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 2/10/12. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
ANTHONY McCOY,
Plaintiff,
Civil Action No. 3:11CV12
v.
OFFICER TERRY,
Defendant.
MEMORANDUM OPINION
Plaintiff Anthony McCoy, a Virginia prisoner proceeding pro se and informapauperis,
brings this action pursuant to 42 U.S.C. § 1983. McCoy contends that, while incarcerated at the
Nottoway Correctional Center ("NCC"), Officer Terry used excessive force against him in
violation ofthe Eighth Amendment.x Officer Terry moves for summary judgment on the ground
that McCoy failed to exhaust his administrative remedies. McCoy has responded. The matter is
ripe for disposition. Because McCoy did not exhaust his administrative remedies, his claim will
be DISMISSED.
I. Summary of Relevant Allegations
On December 31, 2010, Officer Terry was delivering clean laundry to McCoy's cell.
Upon Officer Terry's arrival, McCoy complained to Officer Terry that prisoners in the adjacent
cells were not allowing him access to a newspaper. "Later [Terry] allowed the housemanto get
the newspaper from the prisoner in cell # 103 and pass it to the prisoner in cell #101. [Terry]
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII.
blew me off." (Compl. 5 (spacing corrected).)2 Feeling affronted, McCoy asked Terry to let him
speak to a Sergeant.
McCoy alleges that, in response to this request, Terry "grabbed [McCoy's] clothes [and]
tried to yank them from [McCoy]. [Terry] yanked back [and] forth [and] knocked [McCoy's]
hand into the lock in the tray slot which took a chunk of skin off [McCoy's] thumb." (Id.)
McCoy asserts that, by these actions, Terry violated McCoy's Eighth Amendment right to be free
from cruel and unusual punishment.
II. 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, All U.S. 317, 323
(1986). "[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)). Additionally, '"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 summaryjudgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)
(quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 & n. 7 (5th Cir. 1992)); see Fed. R.
The Court has corrected the capitalization in quotations to the parties' submissions.
Civ. P. 56(c)(3) ("The court need consider only cited materials, but it may consider other
materials in the record.").
Officer Terry asks the Court to dismiss McCoy's claim 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, Officer Terry bears the burden of pleading and
proving lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007). In support of his
contention, Officer Terry submits the affidavit of A. James, the Grievance Coordinator at NCC
(Mem. Supp. Mot. Summ. J. Ex. 1 ("James Aff.")) and a copy of an emergency grievance
submitted by McCoy on December 31, 2010 (James Aff. Enclosure A ("Emergency
Grievance")). Defendants are admonished that, in the first instance, it is their responsibility to
supply the Court with all necessary documents for the resolution of their motion for summary
judgment.
James, in his affidavit, discusses Virginia Department of Corrections ("VDOC")
Operating Procedure § 866.1 ("Operating Procedure § 866.1") at length. Officer Terry has
failed, however, to produce a copy of Operating Procedure § 866.1 in support of his motion for
summaryjudgment. Rather, Officer Terry relies on James's affidavit to convey the substance of
Operating Procedure § 866.1 to the Court. McCoy has not objected to the admissibility of
James's statements concerning Operating Procedure § 866.1. See Fed. R. Civ. P. 56(c)(2),
56(e)(2). The Court will take judicial notice ofOperating Procedure § 866.1.3 Operating
Procedure § 866.1, available at http://www.vadoc.state.va.us/about/procedures/documents/
800/866-l.pdf (last visited Dec. 27, 2011). The Court admonishes Defendant that, in the first
3Perry v. Johnson, No. 3:10CV630, 2011 WL 3359519, at *3 (E.D. Va. Aug. 3, 2011)
(taking judicial notice of VDOC operating procedure); Bowler v. Ray, No. 7:07CV 00565, 2007
WL 4268915, at *1 (W.D. Va. Nov. 30, 2007) (same); Fed. R. Evid. 201(b)(2) (permitting
judicial notice of facts that "can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned").
instance, he should provide all necessary documents for the resolution of his motion for
summary judgment, especially given the regularity with which agency protocol changes.
McCoy submits only his unsworn complaint (Docket No. 1) and an unsworn, one-page
letter (Docket No. 20). These unsworn documents are not admissible evidence and, thus, will
not be considered. Fed. R. Civ. P. 56(c)(4). In light of the foregoing principles and submissions,
the facts set forth below are established for purposes of the Motion for Summary Judgment.
HI. Summary of Pertinent Facts
A.
VDOC's Grievance Procedure
Operating Procedure § 866.1, Inmate Grievance Procedure, is the mechanism used to
resolve inmate complaints at NCC. (James Aff. ^ 4.) Operating Procedure § 866.1 requires 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. (Operating Procedure
§ 866.1.V.A.) Generally, this requires an inmate to file an informal complaint form. (Id.
§ 866.1.V.A.1.) 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 Facility Unit Head'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. 1.)
1.
Emergency Grievances
"Special provisions are made for responding to situations or conditions which may
subject the offender to immediate risk of serious personal injury or irreparable harm." (Id.
§ 866.1. VII.A.) If an offender believes he or she is subject to an immediate risk of serious
personal injury or irreparable harm, then that offender may obtain and submit an emergency
grievance. (Id. § 866.1.VII.B.) Staff must respond to emergency grievances within eight hours.
(Id. § 866.1.VII.F.) "If the issue does not subject the offender to immediate risk of serious
personal injury or irreparable harm, it is so indicated on the Emergency Grievance, signed with
date and time of response by the designated staff person." (Id. § 866.1.VII.E.2.) "If an inmate is
not satisfied with the emergency grievance response, he [or she] may proceed with the
procedures for submitting formal grievance." (James Aff. K9.)
2.
Grievance Appeals
Up to three levels of review for a regular grievance exist. (Operating Procedure
§ 866.1.VI.C.) The Facility Unit Head of the facility in which the offender is confined is
responsible for Level I review. (Id. § 866.1 .V.C. 1.) If the offender is dissatisfied with the
determination at Level I, he may appeal the decision to Level II, a review which is conducted by
the Regional Director, the Health Services Director, or the Chief of Operations for Offender
Management Services. (Id. § 866.1.VI.C.2.) The Level II response informs the offender
whether he or she may pursue an appeal to Level III. (Id. § 866.1.VI.C.2.f.)
B.
McCoy's Emergency Grievance
On December 31,2010, McCoy submitted an emergency grievance detailing the incident
involving Officer Terry ("Emergency Grievance"). (James Aff. ^ 11; Emergency Grievance.)
Sergeant Pace responded to the Emergency Grievance on January 1, 2011, within the eight hour
response window required by the Operating Procedure. (James Aff. ^ 11; Emergency Grievance;
Operating Procedure § 866.1. VII.F.) Sergeant Pace checked the box beside the pre-printed
phrase: "Your grievance does not meet the definition for an emergency." (Emergency
Grievance.) Below this pre-printed line, Sergeant Pace handwrote, "Submit an informal
complaint form." (Id.) NCC personnel then returned the Emergency Grievance to McCoy.
(James Aff. ^ 11.) McCoy did not file an informal complaint or regular grievance relating to the
incident with Officer Terry. (Id. ^ 12.)
IV. Exhaustion Analysis
The pertinent statute provides: "No action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983) 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 Woodford v. 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 "[pjroper 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). McCoy's emergency grievance did not qualify as a proper emergency
grievance under the pertinent prison rules. Specifically, McCoy's emergency grievance did not
reflect that McCoy was subject "to immediate risk of serious personal injury or irreparable
harm." (Operating Procedure § 866.1.VII.E.3.) Thus, McCoy's submission of the emergency
grievance did not satisfy his obligation to exhaust his administrative remedies. See Moore v.
Bennette, 517 F.3d 717, 729-30 (4th Cir. 2008); Wells v. Cain, No. 7:07cv00418, 2008 WL
474125, at *2-3 (W.D. Va. Feb. 20, 2008).
McCoy did not pursue any informal or regular grievance after he filed the emergency
grievance as to his claim and the time limitation now bars him from doing so. (James Aff. ^ 12;
see Operating Procedure § 866.1 .VI.A.l (requiring grievances to be filed within thirty days of
the date of incident).) "[Dismissal with prejudice may be appropriate '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.'" McCoy v.
Williams,^. 3:10CV349, 2011 WL 5153253, at *4 (E.D. Va. Oct. 28, 2011) (quotingBerry v.
Kerik, 366 F.3d 85, 88 (2d Cir. 2004)). McCoy's claim falls within this criteria. Accordingly,
McCoy's claim will be DISMISSED WITH PREJUDICE.
V. Conclusion
McCoy's claims will be DISMISSED WITH PREJUDICE. Officer Terry's Motion for
Summary Judgment (Docket No. 17) will be GRANTED. The action will be DISMISSED.
An appropriate Order shall issue.
Date: S.\^ 0 ^
Richmond, Virginia
JsL
James R. Spencer
United States District Judge
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