Nahwoosky v. Unknown

Filing 37

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 04/14/2016. Copy mailed to Plaintiff. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

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Q;ERK. U.S. DISTRICT COUAr
MONO VA

RICHARD F. NAHWOOKSY,
Plaintiff,

v.

Civil Action No. 3:14CV853

HAROLD CLARKE, et al.,
Defendants.

MEMORANDUM OPINION
Richard F. Nahwooksy, a Virginia prisoner proceeding pro se and in for ma pauperis,
brings this action pursuant to 42 U.S.C. § 1983. Nahwooksy's Complaint, with attachments,
spans 285 pages. (ECF No. 7.) 1 Nahwooksy raises seven separate causes of action, each of
which includes a host of sub-claims in various stages of factual and legal development. By
Memorandum Opinion and Order entered on February 29, 2016, the Coun dismissed all of
Nahwooksy's claims, except for Claim 7(d). See Nahwooksy v. Clarke, No. 3:14CV853, 2016
WL 831937, at *16 (E.D. Va. Feb. 29, 2016). 2 As pertinent here, the Court found that
Nahwooksy had failed to exhaust his administrative remedies with respect to his claims that he
was assaulted by Defendant White. Id. at *8-10.
With respect to Claim 7( d), the Coun noted:
The John Doe Correctional Officer, named in conjunction with Claim 7(d), has
yet to be identified and served with process. Nevertheless, it is apparent from the
record that, should Nahwooksy ever identify and serve the John Doe Correctional
1

Although the docket describes this document as an amended complaint, it is actually the
original complaint because Nahwooksy's initial filing in this matter was simply a letter. (ECF
No. 1.)
2

In Claim 7(d), Nahwooksy charged that Defendant John Doe, a correctional officer,
violated Nahwooksy's rights under the Eighth Amendment when he permitted Defendant White
to assault Nahwooksy. (Compl. ~~ 332-33.A-B.)

Officer, Claim 7(d) would be subject to dismissal for lack of exhaustion. See 42
U.S.C. 1997e(a). "After giving notice and a reasonable time to respond, the court
may ... consider summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute." Fed. R. Civ. P. 56(f)(3).
Given the current state of the record, within twenty (20) days of the date of entry
hereof, Nahwooksy is directed to show good cause why the Court should not
grant summary judgment and dismiss Claim 7(d) because he failed to exhaust his
administrative remedies for Claim 7(d). See Smith v. Godinez, No. 12-1498,
2014 WL 471790, at *2-3 (C.D. Ill. Feb. 5, 2014) (granting summary judgment
sua sponle for lack of exhaustion); see also Anderson v. XYZ Corr. Health Servs.,
Inc., 407 F.3d 674, 682 (4th Cir. 2005) (observing that "a district court may raise
the issue of exhaustion of remedies on its own motion").

Id at * 15 (footnoted omitted).
More than twenty (20) days have elapsed since the entry of the February 29, 2016
Memorandum Opinion and Order. For the reasons set forth more fully in the February 29, 2016
Memorandum Opinion, Claim 7(d) will be DISMISSED WITHOUT PREJUDICE because
Nahwooksy failed to exhaust his administrative remedies. The action will be DISMISSED.
An appropriate Final Order shall accompany this Memorandum Opinion.

Isl
James R. Spencer

'+ . . /

Date:'t- 1
b
Richmond, Virginia

Senior U. S. District Judge

2