Duncan v. Clark et al
Filing
45
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 1/6/15. Copy sent: Yes (tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, U.S. DISTRICT COURT
RICHMOND, VA
HENRY RAY DUNCAN, II,
Plaintiff,
v.
Civil Action No. 3:12CV482
HAROLD CLARKE, et al.,
Defendants.
MEMORANDUM OPINION
Henry Ray Duncan, II, a Virginia prisoner proceeding pro se and informa pauperis,
brings this action pursuant to 42 U.S.C. § 1983.1 Duncan contends that Defendants Harold
-J
Clarke, Warden G.M. Hinkle, and Lt. M. R. Handsome ("Defendants"),2 violated his Eighth
Amendment3 rights by failing to protect Duncan from injury and by providing inadequate
medical care during his incarceration in the Greensville Correctional Center. The matter is
before the Court on Defendants' Motion for Summary Judgment (ECF No. 25) on the ground
1The statute provides, in pertinent part:
Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law....
42 U.S.C. § 1983.
2The Court corrects the spelling ofthe Defendants' names as noted in the Memorandum
in Support of Defendant's Motion for Summary Judgment. (See Mem. Supp. Mot. Summ. J. 1
n.l &n.2.)
3"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII.
that Duncan failed to exhaust his administrative remedies. Duncan has responded. (ECF
No. 33.)4 The matter is ripe for disposition.
I.
Summary of Allegations
Around noon on June 21, 2011, Duncan reported to Defendant Handsome that his
roommate, James Stacey, had threatened to beat him up in orderto take Duncan's bottom bunk.
(Compl. 11.) Handsome instructed Sgt. Wharton to return Duncan to his cell and to bring
Stacey to him. (Id.) Duncan explains
While Stacey got ready other CO's done count. Stacey was tak[en] out of cell and
Plaintiffput in the cell. After 5 to 10 minutes Stacey returned to the cell alone (no
CO.) .... Stacey . . . called Plaintiff a snitch and started hitting Plaintiff a
number of times. Plaintiff got around Stacey and ran out of cell but fell down.
While on the floor[,] Stacey kicked Plaintifftwo or three times. Plaintiff got up to
run again but fell back down and Stacey kicked him 10 or more times. Mostly in
the head.
(Id.)
Officers took Duncan to the infirmary where a nurse took his vitals, cleaned the blood
from his head, and sent Duncan to Handsome's office where he remained from 12:15 p.m. until
2:56 p.m. (Id. at 11-12.) Duncan informed Handsome "over and over that his head hurt really
bad, he was dizzy and seeing spots." (Id. at 12.) Handsome sent Duncan to isolation for fighting
with an inmate although the charge was subsequently dropped. (Id.) Duncan contends:
"Defendant... Handsome's lack of action concerning medical complaint by Plaintiff was a
deliberate indifference to Plaintiffs serious medical needs" and violated Duncan's rights under
the Eighth Amendment.
4The Court employs the PageID# assigned by the CM/ECF docketing system for
citations to and quotations from Duncan's submissions. The Court corrects the spelling and
capitalization in quotations from Duncan's submissions.
Afterstaying in isolation for approximately four minutes, at 3:00 p.m. Duncan informed
an officer that he needed to see medical due to pain and dizziness. (Id.) A nurse came to see
him at 3:30 p.m., gave Duncan Tylenol, "but they didn't help at all." (Id) At 4:30 p.m. Duncan
submitted an emergency grievance, and sometime after 6:45 p.m., the medical department sent
Duncan to the emergency room for MRIs. (Id. at 13.) Duncan explains that the
MRI showed Plaintiff has a head concussion-contusing with blood between the
brain and skull. From there Plaintiff was sent to MCV to be seen by a
neurosurgeon who put Plaintiffin ICU for about 2-days (6-21-11 to 6-22-11) after
which Plaintiff was put in DOC's security ward for 2 more days (6-23-11 to 6-2411) to keep check on him and have an eye doctor see Plaintiff for bleary vision.
"Plaintiff now has to use reading glasses to see close up" to this day. After being
released from MCV Plaintiff was put in the infirmary at Greensville Corr. Center
for 13 more days (6-24-11 to 7-6-11) being treated for bad head [illegible].
(Id.)
In his "Legal Claims" section, Duncan raises the following claims for relief:
Claim One:
Defendant Handsome "was deliberate indifference [sic] and violated
Plaintiffs rights, and constituted cruel and unusual punishment under the
Eighth Amendment," "by failing to protect Henry Ray Duncan II from
being attacked by inmate James Stacey." (Id. at 14.)
Claim Two:
Defendant Handsome exhibited "deliberate indifference to . .. Duncan['s]
serious medical needs" in violation of the Eighth Amendment. (Id.)
Duncan requests monetary damages and any relief deemed appropriate by the Court. (Id.
at 15.)
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). The party seeking summary judgment bears the responsibility of informing the
Court of the basis for the motion and identifying the parts of the record which demonstrate the
absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 411 U.S. 317, 323
(1986). "[W]here the nonmoving party will bear the burdenof proof at trial on a dispositive
issue, a summaryjudgment 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), (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., All U.S. 242, 255 (1986)). However, a mere "'scintilla of evidence'" will not
preclude summaryjudgment. Anderson, All U.S. at 251 (quoting Improvement Co. v. Munson,
81 U.S. (14 Wall.) 442,448 (1872)).
Moreover, not all disputes of fact preclude summary judgment. Instead, "the requirement
is that there be no genuine issue of material fact." Id at 248. With respect to materiality,
"[o]nly disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Id As to genuineness, the nonmoving party
"must produce ... evidence that creates a fair doubt; wholly speculative assertions will not
suffice." Bongam v. Action Toyota, Inc., 14 F. App'x 275, 280 (4th Cir. 2001) (citation omitted)
(internal quotation marks omitted). "A motion for summary judgment may not be defeated by
evidence that is 'merely colorable' or 'is not sufficiently probative."' M& MMed. Supplies &
Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993) (quoting Anderson,
All U.S. at 249-50). Thus, the nonmoving party cannot '"create a genuine issue of material fact
through mere speculation.'" Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008) (quoting
Beale v. Hardy, 769 F.3d 213,214 (4th Cir. 1985)). Nor will mere "'metaphysical doubt as to
the material facts'" create a genuine dispute. Id. (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986)). Accordingly, "[t]he nonmovant can show that a dispute
is genuine only if it provides sufficient evidence so that a 'reasonablejury could return a verdict
for the nonmoving party."' Wiggins v. DaVita Tidewater LLC, 451 F. Supp. 2d 789, 796 (E.D.
Va. 2006) (quoting Anderson, All U.S. at 248).
Defendants ask the Court to dismiss Duncan's claims because Duncan 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' bear the burden of pleading and
proving lack of exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007). In support of their Motion
for Summary Judgment, Defendants submit: the Affidavit of K. Whitehead, the Institutional
Ombudsman at the Greenville Correctional Center (Mem. Supp. Mot. Summ. J. Ex A, at 1-5
("Whitehead Aff.")), a copy of Virginia Department of Corrections ("VDOC") Operating
Procedure § 866.1 (id. Encl. A ("Operating Procedure § 866.1")),5 and copies ofgrievance
material submitted by Duncan (id. Encl. B-E).
As a general rule, a non-movant must respond to a motion for summary judgment with
affidavits or other verified evidence. Celotex Corp., All U.S. at 324. Duncan submitted an
unsworn Complaint and an unsworn Brief in Opposition (ECF No. 33), his own affidavit (ECF
No. 33, at 146-48 ("Duncan Aff.")), and some grievances that he submitted (see, e.g., Br. Opp'n
Ex. 1-A, 4-A). Because Duncan failed to swear to the contents of his Complaint or Brief in
Opposition under penalty of perjury, those documents fail to constitute admissible evidence. See
United States v. White, 366 F.3d 291, 300 (4th Cir. 2004). In light of the foregoing principles
5The Court has omitted the emphasis inthe quotations from this document.
and submissions, the facts set forth below are established for purposes of the Motion for
Summary Judgment.
III. Summary of Pertinent Facts
A.
VDOC's Grievance Procedure
Operating Procedure § 866.1, Offender Grievance Procedure, is the mechanism used to
resolve inmate complaints at Greensville Correctional Center ("Greensville"). (WhiteheadAff.
K4.) Offenders are orientedto the offender grievance procedure when they are initiallyreceived
into the Virginia Department of Corrections ("VDOC") and each time they move to a new
facility. (Id.) 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, a good faith effort requires
the inmate to file an informal complaint form. (Id. § 866.1.V.A.I.) If the informal resolution
effort fails, the inmate must initiate a regular grievance by filling out the standard "Regular
Grievance" 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.
Grievance Intake Procedure
Prior to review of the substance of a grievance, prison officials conduct an "intake"
reviewof the grievance to assure that it meets the published criteriafor acceptance. (Id.
§ 866.1 .VLB.) A grievance meeting the criteria for acceptance is logged in on the day it is
received, and a "Grievance Receipt" is issued to the inmate within two days. (Id.
§ 866.1.VI.B.2.) If the grievance does not meet the criteria for acceptance, prison officials
complete the "Intake" section of the grievance and return the grievance to the inmate within two
working days. (Id. § 866.1.VLB.3.) If the inmate desires a review of the intake decision, he or
she must send the grievance form to the Regional Ombudsman within five calendardays of
receipt. (Id. § 866.1.VI.B.4.)
2.
Grievance Appeals
Up to three levels of review for a regular grievance exist. (Id. § 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.I.) 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 Administrator,
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.
Facts Pertaining to Duncan's Exhaustion of Administrative Remedies
The following facts are undisputed unless otherwise noted. On June 21, 2011, inmate
Stacey attacked Duncan causing Duncan to sustain an injury. (Duncan Aff. fl[ 7-11.)
Institutional records indicate that Duncan was at MCV Hospital from June 22, 2011 until he
returned to Greensville on June 24, 2011. (Whitehead Aff. U10; see also Duncan Aff. |18.)
Duncan was housed in the infirmary in Greensville continuously from June 24,2011 until July 6,
2011. (Whitehead Aff. \ 10.) Offenders assigned to the infirmary have access to the
institutional grievance process and are not prevented from filing grievances. (Id)
1.
Duncan's July 12,2011 Informal Complaint
Records indicate that Duncan waited until July 12, 2011 to file his informal complaint
about the June 21, 2011 incident. (Id. 111; Br. Opp'n Ex. 4-A, at 1.) The staff in housing unit
#10 logged his informal complaint (GCC-INF-05887) on July 14, 2011, and responded on July
22, 2011, well in advance of the July 29, 2011 fifteen-day response period, (Whitehead Aff.
K11; Mem. Supp. Opp'n Ex. 4-A, at l).6
2.
Duncan's July 13,2011 Grievance
On July 13,2011, prior to receiving a response to his informal complaint, Duncan wrote a
regular grievance in which he complained that Handsome and Sergeant Wharton sent Duncan
back to his cell with Inmate Stacey after Stacey had threatened to beat up Duncan. (Whitehead
Aff. K6; id Encl. B, at 1.) On July 14, 2011, staff rejected the grievance on intake because
Duncan failed to attach the informal complaint demonstrating the Duncan had used the informal
process to resolve his complaints prior to filing a grievance as required by Operating Procedure
866.1. (Whitehead Aff. f 6; id. Encl. B, at 2.)
6Duncan states that, while in the infirmary, "prior to July 14, 2011, [he] did fill out and
stick in the closed locked door an Informal Complaint. (Duncan Aff. ^ 2.) In a document
attached to his July 13, 2011 grievance, dated July 15,2011, two days after he signed the
grievance, Duncan alleges that his "informal complaints were wrote and put in the door of cell
HU 11/D7 on the night of 6/27/11," but that he received no response. (Br. Opp'n Ex. 1-A, at 2.)
However, Duncan submits no admissible evidence that he submitted a grievance on June 27,
2011. The Court addresses this allegation infra Part IV.B.3.
8
3.
Duncan's July 14, 2011 Grievance
The grievance office received a second regular grievance on July 14, 2011. (Whitehead
Aff. K7; id. Encl. C, at 1.) Duncan complained that after Stacey attacked him, he received
inadequate medical treatment, was subsequently sent to Handsome's office, and he was forced to
file an emergency grievance to obtain medical care. (Whitehead Aff. ^ 7; id. Encl. C, at 1.) On
July 14, 2011, staff rejected the grievance on intake because he failed to attach an informal
complaint demonstrating his attempts at informal resolution as required by Operating Procedure
866.1. (Whitehead Aff. H7; id. Encl. C, at 2.)
4.
Duncan's August 4, 2011 Grievance
On August 4,2011, the institutional grievance office received a regular grievance from
Duncan in which he complained about Handsome and Sergeant Wharton placing him in the cell
with Stacey. (Whitehead Aff. ^| 8; id. Encl. D, at 1.) In the grievance, Duncan acknowledged
that the grievance was filed more than thirty days from the June 21, 2011 incident; however, he
explained that the late filing was "beyond inmates control... due to being in MCV & infirmary
for 14 days." (Whitehead Aff. Encl. D, at 1 (internal quotation marks omitted); id. f 8.) On
August 4,2011, staff rejected the grievance on intake and returned the grievance to Duncan
because he failed to provide an informal complaint and complained of more than one issue.
(Whitehead Aff. ^ 8; id Encl. D, at 2.) The grievance instructed Duncan to provide the informal
complaint to the grievance office within five days. (Whitehead Aff. K8; id. Encl. D, at 2.)
On August 8, 2011, the institutional grievance office received a regular grievance from
Duncan with an attached copy of the informal complaint received by the housing unit on July 14,
2011, and responded to on July 22, 2011. (Whitehead Aff. 19; id. Encl. E, at 1-3.) Duncan
again explained that because he was in MCV Hospital and the infirmary for fourteen days, he
should be exempted from the thirty-day grievance deadline. (Whitehead Aff. f 9; id Encl. E, at
1.) On August 8, 2011, staff rejected the grievance because Duncan had failed to file it within
thirty days of the incident of which he complained. Duncan filed no further complaints,
grievances, or appeals.
IV. Exhaustion Analysis
A.
Duncan Failed to Exhaust his Claims
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, prior to bringing his or her action to court.
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." See Jones v. Bock, 549 U.S. 199,218 (2007).
Exhaustion is mandatory, and courts lack discretion to waive the exhaustion requirement. Porter
v. Nussle, 534 U.S. 516, 524 (2002)
10
Here, Duncan clearly failed to exhaust his administrative remedies. Duncan failed to
submit a complete and timely grievance pertaining to his Eighth Amendment claims, thus, he has
failed to comply with 42 U.S.C. § 1997e(a). See Woodford, 548 U.S. at 90. The incident that is
the subject of the instant action occurred on June 21, 2011. Under VDOC Operating Procedure
866,2, Duncan had thirty days, or until July 21, 2011 to submit a regular grievance. Duncan was
responsible for submitting his informal complaint in a timely manner to allow staff to respond
prior to the thirty-day time period permitted for filing a grievance. (Whitehead Aff. \ 5.) The
evidence establishes that Duncan nevertheless waited until July 12, 2011 to file an informal
complaint. Duncan filed two grievances on July 14, 2011 that were rejected because Duncan
failed to demonstrate his attempts at informally resolving the complaint. Despite Duncan's
delay, institutional staff responded to the informal complaint on July 22, 2011, seven days prior
to the fifteen-day deadline of July 29, 2011 as set by institutional policy. After receiving the
response to the informal complaint, Duncan waited until August 1, 2011 to write another
grievance. Staff received and rejected the grievance on August 4,2011, because Duncan failed
to attach the informal complaint. Duncan wrote another grievance with his informal complaint
on August 2, 2011 that was received and rejected as untimely on August 8, 2011.
B.
Duncan Fails to Demonstrate Exhaustion Should Be Excused
The Court construes Duncan to raise two arguments for excusing his failure to exhaust
his administrative remedies. The Court also addresses Duncan's allegation that he submitted an
informal complaint on June 27, 2011 for which he received no response. The Court finds all
three arguments unavailing.
11
1.
Duncan's Infirmary Stay
First, in his Complaint, he contends that "[a]fter being released from MCV[J Plaintiff
was put in the infirmary at Greensville Corr. Center for 13 more days (6-24-11 to 7-6-11) being
treated for head [injuries] during which time Plaintiff had no access to any belongings or papers
to file grievance process." (Compl. 13.) Generously construing the foregoing remark, Duncan
suggests that under Operating Procedure § 866.1 "[grievances are to be submitted within 30
calendar days from the date of occurrence/incident or discovery of the occurrence/incident,
except in instances: I) beyond the offender's control.. .." (Operating Procedure
§ 866.1.VI.A. 1 (emphasis added)).
Although "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 it," Duncan fails to
demonstrate that he was somehow prevented from pursuing an informal complaint or grievance.
Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citations omitted). Section "1997e(a)
does not permit the court to consider an inmate's merely subjective beliefs, logical or otherwise,
in determining whether administrative procedures are 'available.'" Lyon v. Vande Krol, 305
F.3d 806, 809 (8th Cir. 2002) (citation omitted). To excuse compliance with a grievance system,
courts have required an inmate show that he was prevented from filing a grievance by
affirmative action on the part of prison officials. Graham v. Cnty. ofGloucester, Va., 668 F.
Supp. 2d 734, 738 (E.D. Va. 2009) (citing Brown v. Croak, 313 F.3d 109, 112-13 (3d Cir. 2002);
Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000); Born v. Monmouth Cnty. Corr. Inst,
No. 07-3771,2008 WL 4056313, at *3-4 (D.N.J. Aug. 28, 2008)).
Defendants aver that inmates in the infirmary have access to the institutional grievance
process, and are not prevented from filing grievances. (Whitehead Aff. ^ 10.) Duncan does not
12
claim that he lacked access to the grievance procedure during his time in the infirmary.
Moreover, Duncan fails to provide, and the Court fails to discern, why he needed "belongings or
papers" to file a grievance. (Compl. 13.) Duncan only needed to record his memory of the
incident on the appropriate form to file an informal complaint or a grievance. Duncan's
subjective beliefs about the availability of the grievance system fail to excuse his lack of
exhaustion. Lyon, 305 F.3d at 809.
In addition, the record establishes that Duncan was released from the infirmary on July 6,
2011. Duncan waited another six days, or until July 12, 2011, to file an informal grievance.
Thus, Duncan's hospitalization Duncan's fails to excuse his lack of exhaustion.
2.
No Formal Orientation to Grievance Process
Next, for the first time in his Brief in Opposition, Duncan argues that his failure to
receive a formal orientation about Greensville's grievance procedure policy should excuse his
failure to exhaust his administrative remedies. In support of this allegation, Duncan avers that he
"was at no time instructed by anyone at Greensville Correctional Center as to the grievance
procedure policy, nor was I given a Memorandum stating such policy." (Duncan Aff. f 1.)
Duncan argues that Defendants "offer[ ] no evidence that Duncan was oriented as to the
grievance procedure other than a bold assertion with the assumption that all offenders are
oriented ... upon arrival to initial intake and each time an offender transferred to a new facility."
(Br. Opp'n 1.) Assuming without deciding that Defendants provided Duncan with no formal
orientation to the grievance procedure upon his admittance to Greensville Correctional Center,
Duncan fails to demonstrate, as he must, that the failure to formally orient him made the
grievance procedure unavailable. See Moore, 517 F.3d at 725.
13
Clearly, Greensville had a grievance process available for Duncan to file complaints.
Thus, § 1997(e) required Duncan to exhaust all available administrative remedies as a mandatory
pre-condition to filing his § 1983 action. Porter, 534 U.S. at 524. Courts have declined to find
that a "lack of awareness" of grievance procedures makes such procedures unavailable and
excuses compliance with the exhaustion requirement. Albino v. Baca, 697 F.3d 1023,1026 (9th
Cir. 2012) (holding that "[a]n inmate's lack of awareness of a . .. grievance procedure does not
make the administrative remedy 'unavailable'"); Twitty v. McCoskey, 226 F. App'x 594, 596
(7th Cir. 2007) (holding that "[a] prisoner's lack of awareness of a grievance procedure ... does
not excuse compliance"); Brock v. Kenton Cty., Ky., 93 F. App'x 793, 797 (6th Cir. 2004)
(citations omitted) (same); Gonzales-Liranza v. Naranjo, 16 F. App'x 270,272-73 (10th Cir.
2003) (same); Graham, 668 F. Supp.2d at 741 (same).
Here, the "court cannot conclude based on the undisputed facts that [Duncan] was
affirmatively prevented from utilizing the system or that he was wholly without any
responsibility for his failure to [timely] grieve." Graham, 668 F. Supp. 2d at 739. Moreover, the
record demonstrates that Duncan was aware of the grievance process. Duncan states that prior to
his admittance to Greensville, the VDOC housed him in Halifax Correctional Center another
VDOC facility governed by VDOC Operating Procedure 866.2. Duncan only swears that
Greensville failed to provide appropriate orientation. Moreover, in his Complaint, Duncan
alleges that on June 21, 2011, after Stacey attacked him, Duncan "filled out an Emergency
Grievance to try to get some [medical] help." (Compl. 12.) Thus, Duncan was undisputably
aware of the grievance process as evidenced by his utilization of the process.
The record demonstrates that, Duncan, through his own dilatoriness, failed to properly
exhaust his administrative remedies. Thus, Duncan fails to establish that "through no fault of his
14
own, [he] was prevented from availing himself of' the grievance process." Moore, 517 F.3d at
725 (citations omitted); see Graham, 668 F. Supp. 2d at 741 (holding "that a prisoner's claim
that a grievance system was unavailable to him because he lacked full knowledge of the specifics
of the grievance process does not excuse or waive a failure to exhaust administrative remedies").
3.
Alleged June 27,2011 Informal Complaint
Duncan avers that "prior to July 14, 2011, [I] did fill out and stick in a closed locked door
an Informal Complaint... which went unanswered and unacknowledged" and cites to an exhibit
to his Brief in Opposition. Duncan provides no sworn statement about the date he submitted this
alleged informal complaint. The cited exhibit contains an attachment to his grievance submitted
on July 13,2011, in which Duncan states that he wrote an earlier informal complaint "and put in
door of cell HU 11/D7 on the night of 6/27/11." (Br. Opp'n Ex. 1-A, at 2.) Duncan further
alleges that he received no response to the informal complaint. (Id) Duncan signed and dated
this attachment on July 15, 2011, two days after he wrote the July 13,2011 grievance that he
seemingly suggests he attached it to. (Id.) As previously discussed, the contents of Duncan's
Brief in Opposition fail to constitute admissible evidence. Thus, Duncan fails to provide
admissible evidence that he submitted an informal complaint on June 27,2011, and accordingly,
he creates no genuine dispute of fact about when he first filed an informal complaint. For this
reason alone, summary judgment should be granted. See United States v. Roane, 378 F.3d 382,
400-01 (4th Cir. 2004) (citation omitted) (internal quotation marks omitted) (concluding that
"[a]iry generalities [and] conclusory assertions ... [do] not suffice to stave off summary
judgment...")
Moreover, while Respondents failed to address Duncan's allegation that he submitted an
informal complaint on June 27, 2011, the Court observes that Duncan's allegations also warrant
15
no further briefing. First, Duncan claims that he received no response to his alleged June 27,
2011 informal complaint. However, the informal complaint form itself alerts Duncan that "[a]
receipt is issued within 2 working days from the date received if the informal complaint is not
returned during intake." (Br. Opp'n Ex. 4-A, at 1.) After receiving no receipt by June 29,2011,
two days after he claims he "put [the grievance] in the door of cell HU 11/D7," (id Ex. 1-A, at
2), Duncan should have acted promptly to inquire why no receipt had been issued and to remedy
any error. Furthermore, Duncan's allegation that he filed an informal complaint on June 27,
2011, is difficult to square with his other allegations that he could not file an informal complaint
or a grievance while he was housed in the infirmary between June 24, 2011 and July 6, 2011.
(See Compl. 13); cf In re Family Dollar FLSA Litigation, 637 F.3d 508, 512 (4th Cir. 2011)
("*[I]t is well established that a genuine issue of fact is not created where the only issue of fact is
to determine which of the two conflicting versions of a party's testimony is correct.'" (quoting
Erwin v. United States, 591 F.3d 313, 325 n.7 (4th Cir. 2010))). Thus, Duncan creates no
genuine dispute of material fact about whether he submitted an earlier informal complaint.
Accordingly, the evidence demonstrates that Duncan failed to exhaust his administrative
remedies and Defendants' Motion for Summary Judgment (ECF No. 25) will be GRANTED.
V.
Conclusion
"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
'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,No. 3:10CV349,2011 WL 5153253, at *4 (E. D. Va. Oct. 28,
2011) (quoting Berry v. Kerik, 366 F.3d 85, 88 (2d Cir.2004)). Duncan's claims meet these
16
criteria. Accordingly, the Motion for Summary Judgment (ECF No. 25) will be GRANTED.
The action will be DISMISSED WITH PREJUDICE.
Duncan also filed a Motion to Compel Discovery (ECF No. 29) and a Renewed Motion
for Production of Documents (ECF No. 34). Duncan's requests for discovery seek documents
relating to his underlying Eighth Amendment claims, and do not appear to relate to exhaustion.
Accordingly, the Motion to Compel Discovery (ECF No. 29) and the Renewed Motion for
Production of Documents (ECF No. 34) will be DENIED AS MOOT.
An appropriate Order shall accompany this Memorandum Opinion.
/s/
Date:/-I?-If
James R. Spencer
Senior U. S. District Judge
Richmond, Virginia
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