Barner v. Allen et al

Filing 51

MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge M. Hannah Lauck on 09/06/2017. (ccol, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

SEP - 6 2017
DAQUAN CHARLIE EARNER,

c&. Hir.HMOND. vAC0UR1
U.S. DiSTrtiCT

Plaintiff,
V.

Civil Action No. 3:15CV648

SGT.B. ALLEN,
Defendants.
MEMORANDUM OPINION

Daquan Charlie Bamer, a Virginia inmateproceeding pro se and informa pauperis, filed

this civil action under 42 U.S.C. § 1983.' The action proceeds on Earner's Particularized

Complaint ("Complaint," ECF No. 23.f The Court has construed Bamer's Complaint to raise
the following claim for relief:

Claim One:

Sgt. B. Allen^ violated Earner's rights under the Eighth Amendment''
when she failed to protect Bamer from an assault by Devin Rawls. (Id. at
1-2.)

' That statute provides, in pertinent part:
Every personwho, under colorof any statute... of any State... subjects,
or causesto be subjected, any citizen of the United States or other person within
thejurisdictionthereofto the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to Ae party injured in an
action at law....

42U.S.C.§ 1983.

^Bamer's initial Complaint named Sgt. B. Allen and Lt. Robinson as Defendants. (ECF
No. 1, at 1-2.) Earner's Particularized Complaint omits any mention of Lt. Robinson.
Accordingly, the action proceeds solely against Sgt. B. Allen.

^Sgt. B. Allen is an officer at the Southside Regional Jail ("SRJ"). (Compl. 1.)
''"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted." U.S. Const, amend. VIII.

By Memorandum Opinion and Order entered on May 19,2017, the Court denied the Motion to
Dismiss filed by Defendant Allen. Earner v. Allen, No. 3:15CV648,2017 WL 2221703, at *4
(E.D. Va. May 19,2017.)
The matter is now before the Court on the Motion for Summary Judgment filed by

Defendant Allen. (ECFNo. 41.) Bamer has filed a Response. (ECFNo. 47.) DefendantAllen
has filed a Reply. (ECFNo. 46.) Bamer has submitteda Surreply. (ECFNo. 49.) Even though

Bamer filed his Surreply without first obtaining leave from the Court to do so,® given his pro
se status, the Court will consider Earner's Surreply in its analysis of the Motion for Summary

Judgment. For the reasons stated below. Defendant Allen's Motion for Summary Judgment will
be GRANTED, and Bamer's claim will be DISMISSED because he failed to exhaust his
administrative remedies.

I. Summary Judgment Standard

Summaryjudgment under Rule 56 is appropriate only when the Court, viewing the record
as a whole and in the light most favorable to the nonmoving party, determines that there exists no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, All U.S. 317,322-24 (1986); Anderson v. Liberty Lobby,
Inc., All U.S. 242,248-50 (1986). "A fact is material if the existence or non-existence thereof
could lead a jury to different resolutions of the case." Thomas v. FTS USA, LLC, No. 3:13cv825,

2016 WL 3653878, *4 (E.D. Va. June 30,2016) (citing Liberty Lobby, All U.S. at 248). Once a

party has properly filed evidence supporting the motion for summaryjudgment, the nonmoving
party may not rest upon mere allegations in the pleadings, but instead must set forth specific

®
Rule 7(F)(1) ofthe Local Rules for the United States District Court for the Eastern
District of Virginia explains that after a party files a response briefto a motion, "the moving
party may file a reply brief within six (6) calendar days after the service of the opposing party's
response brief." E.D. Va. Loc. R. 7(F)(1). "No further briefs or written communications may be
filed without first obtaining leave of Covirt." Id.

facts illustrating genuine issues for trial. Celotex Corp., All U.S. at 322-24. These facts must
be presented in the form of exhibits and sworn affidavits. Fed. R. Civ. P. 56(c).
A court views the evidence and reasonable inferences drawn therefrom in the light most

favorable to the nonmoving party. Liberty Lobby, All U.S. at 255. Whether an inference is
reasonable must be considered in conjunction with competing inferences to the contrary. Sylvia
Dev. Corp. v. Calvert Cty., 48 F.3d 810, 818 (4th Cir. 1995). Nonetheless, the nonmoving "party

is entitled 'to have the credibility of his evidence as forecast assumed.'" Miller v. Leathers, 913
F.2d 1085,1087 (4th Cir. 1990) (en banc) (quoting Charbonnages de France v. Smith, 597 F.2d
406,414 (4th Cir. 1979)). Ultimately, the court must adhere to the affirmative obligation to bar
factually unsupportable claims from proceeding to trial. Felty v. Graves-Humphreys Co., 818
F.2d 1126,1128 (4th Cir. 1987) (citing Celotex Corp., All U.S. at 323-24). The ultimate

inquiry in examining a motion for summary judgment is whether there is "sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted." Liberty
Lobby, All U.S. at 249-50 (citations omitted).
Defendant Allen asks the Court to dismiss Earner's claim because Bamer 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, Defendant Allen bears the

burden ofpleading and proving lack of exhaustion. Jones v. Bock, 549 U.S. 199,216 (2007). In

support of her Motion for Summary Judgment, Defendant Allen submits: (1) a copy of the
Southside Regional Jail Inmate Handbook (Mem. Supp. Mot. Summ. J. Attach. 1 ("Inmate

Handbook"), ECF No. 42-1); (2) a copy of Earner's "keep separate" list {id. ("Keep Separate
List")); (3) copies of grievances submitted by Earner {id. ("Grievance Material")); (4) copies of
the Incident Reports regarding Devin Rawls' assault on Earner {id. ("Incident Reports")); (5)

copies of Earner's medical records {id. ("Medical Records")); (6) an affidavit from Lieutenant
Michael Strickland, the actingRecords Manager at SRJ {id. Attach. 2 ("Strickland Aff."), ECF

No. 42-2); (7) Defendant Allen's affidavit {id. Attach. 3 ("Allen Aff."), ECF No. 42-3); and, (8)
an affidavit from Captain Anthony Johnson, the acting Chiefof Security at SRJ {id. Attach. 4
("Johnson Aff."), ECF No. 42-4).

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. With his Response, Bamer

provided no affidavits but did submitcopies of three grievances. (Pl.'s Resp. Exs. 1 through 3,
ECF No. 47-1.) Moreover, while Bamer signedhis Complaint "underpenaltyof pequry,"

(Compl. 3), he declared "that the facts andthe law in the foregoing particularized complaint are
tme and correct according to the best of my knowledge and belief" (Compl. 3.) Such a
statement fails to transform the statements in the Complaint into admissible evidence. Hogge v.

Stephens,^o. 3:09CV582,2011 WL2161100, at *2-3 & n.5 (E.D. Va. June 1,2011) (treating
statements swornto under penalty of perjury, but made upon information and beliefas "mere
pleading allegations" (quoting Walker v. Tyler Cty. Comm 'n, 11 F. App'x 270,274 (4th Cir.
2001))). Therefore, the matters referred to as "on information and belief will not be afforded
evidentiary effect. Accordingly, the only evidence providedby Bamer in oppositionto the

Motionfor Summary Judgment are the copiesof the three grievances attached to his Response.
In light of the foregoing principles and submissions, the following facts are established
for the purposes of the Motion for Summary Judgment. All permissible inferences are drawn in
favor of Bamer.

11. Relevant Facts

A. Facts Underlying Earner's Claim

On January 11,2015, inmate Devin Rawls was added to Earner's Keep Separate List at

SRJ. (Keep Separate List at33./
On January 25,2015, Defendant Allen "was working as a booth officer in the control
room that oversees ingress and egress into certain housing areas at the Jail, including HA-300
and HA-400." (Allen Aff. 15.) On that date, Rawls "was housed in HA-300 and Earner was

housed in HA-400." (Id. 16.)
"At approximately 9:00 a.m., inmate visitation was ongoing, and [Defendant Allen] was
operating slider doors to facilitate inmate movement to and from visitation." {Id. *^1', see
Incident Reports at 38,40.) Lieutenant Robinson, the Watch Commander at SRJ, was in the
control booth with Defendant Allen. (Allen Aff. ^ 7.) Officer Smalls "was standing outside the
slider door to the visitation area waiting to receive two iimiates who had scheduled visitation:
inmate Calvin Kelly..., who was housed in HA-400, and Rawls, who was housed in HA-300."
{Id.; see Incident Reports at 38.) At the same time. Earner was in the day room area of HA-400.
(Allen Aff.

8.) Defendant Allen did not know that Earner was in the day room area. {Id.)

"Rawls and Kelly were put on standby, at which point [Defendant Allen] opened the
slider doors to both HA-300 and HA-400 to facilitate Rawls' and Kelly's movement to

visitation." {Id.) Defendant Allen "observed Rawls begin to run towards HA-400. At the same
time, Lt. Robinson yelled, 'Shut the door!' [Defendant Allen] immediately attempted to secure
the door to HA-400, but Rawls entered HA-400 before [she] was able to do so." {Id.; see

^The Inmate Handbook, Keep Separate List, Grievance Material, Incident Reports, and
Medical Records are all located at ECF No. 42-1. For ease of reference, the Court employs the
"SRJ" numbering at the bottom of each page, which is the pagination assigned to these exhibits
by SRJ.

Incident Reports at 38,40.) Defendant Allen then "overrode all doors to enable Jail Officers to
enter the HA-400 day room[, where] Rawls and Earner were fighting. Lt. Robinson and Ofc.
Smalls quickly restrained Rawls and Earner." (Allen Aff. ^ 9; see Incident Reports at 38-40.)
Eoth Earner and Rawls refused medical treatment. (Incident Reports at 38^0.) Rawls received

an institutional charge for Assault Upon Any Person. {Id. at 38,40.)
When Defendant Allen opened the slider doors to HA-300 and HA-400, she did not
know that Rawls had been recently added to Earner's keep separate list. (Allen Aff.

10,12.)

She also did not know that Earner was in the day room and did not know that Rawls would run

into HA-400 to fight Earner. {Jd. If 12.) Defendant Allen "forgot to check Rawls' enemy list
before opening the slider doors to HA-300 and HA-400." {Jd. 111.) "If [she] had known that

Rawls had an enemy in HA-400, [she] would not have opened the slider doors to HA-300 and
HA-400 simultaneously." (/rf.)

"Immediately after Earner and Rawls were separated, Lt. Robinson asked [Defendant
Allen] if [she had] checked the enemy list, and [Defendant Allen] told Lt. Robinson that [she]

forgot to check Rawls' list; that [she] made a mistake in not checking the list; and that this

mistake was unintentional." {Id. 113; see Incident Reports at 40.) Lieutenant Robinson advised
Defendant Allen "to always check the enemy list and make sure an officer is present before the
sliders are opened." (Incident Reports at 40.)
B. SRJ*s Grievance Procedure

At SRJ, the grievance procedure is stated in the Inmate Handbook. (Johnson Aff. Tf 7;
Inmate Handbook at 15.) Earner received a copy of the Inmate Handbook on December 11,

2014. (Johnson Aff. ^ 8; Inmate Handbook at 29-30.)
An inmate wishing to submit a grievance "must request a Grievance Form between 5:30

a.m. to 8:00 a.m. from the Housing Unit Officer." (Inmate Handbook at 15.) The form must be

completely filled out. {Id.) All grievance forms are picked up once per day between 11:30 p.m.
and 8:00 a.m. {Id.) Only originals of the form are accepted. {Id.)
All completed grievance forms are given to the Shift Commander, unless they are related
to medical or dental care. {Id) In that case, they are given to the Head of the Medical
Department. {Id.) Written responses are provided within nine days of receipt. {Id.) The

response informs the inmate "whatactions arebeing taken to handle [hisor her] complaint."
{Id.) The inmatewill also be informed in writingifthe grievance is deemedinvalid. {Id.)
An inmate who is dissatisfied with a response to a grievance may appeal to the Chief of

Security or Chief of Operations unlessthey are involved. {Id.) The Assistant Superintendent

hears appeals of grievances involving the Chiefs of Security and Operations. {Id.) "In addition
to being stated in the Inmate Handbook, the appeal procedure is conspicuously stated in capital
letters at the bottomof the form. Once an appeal has been submitted, the inmate has exhausted

his available administrative remedies." (Johnson Aff. 17.)
C. Facts Pertaining to Earner's Exhaustion of Administrative Remedies

On January 25,2015, Earner submitted his first grievance in which he mentioned that he

had hit his head on the floor during the altercation withRawls. (Pl.'s Resp. Ex. 1,ECF No. 471, at 1.) On February 6,2015, an officer responded to the grievance and noted that Bamer had

been seen in medical on January 29,2015 and had been prescribed Motrin asneeded for pain.
{Id.) The responding officer also stated that Earner had denied initial medical treatment after the

incident. {Id.) The record does not reflect that Bamer appealed this response.' {See id.)
On January 28,2015, Bamer submitted a second grievance in whichhe asked for

information conceming which officer allowed Rawls to enter Bamer's housing unit even though

' The section on the grievance form for the inmate to sign ifhe or she wishes to appeal is
blank. (Pl.'s Resp. Ex. 1, ECF No. 47-1, at 1.)

Rawlswas on Earner's keep separate list. (PL's Resp. Ex. 2, ECF No. 47-1, at 2.) On February
6,2015, the responding officer told Bamer that DefendantAllen had been operatingthe doors to

allow inmates out for visitation. {Id.) The responding officerexplained that Bamer had received
and completed a criminal complaint form that authorities provided to the courtthat was handling
the matter and confirmed that Bamer and Rawls were on each other's keep separate lists. (Id.)
The record does not reflect that Bamer appealed this response. {See id.)
On January 28,2015, Bamer submitted a third grievance in which he complained that on
January 25,2015, Lieutenant Robinson failed to take Bamer to medical after discovering his

injuries and instead offered him dmgs. (Grievance Material at 37.) Nurse Justice responded on
January 29,2015, noting that Bamer had been seen in medical on January 29,2015 after

receiving a health request. {Id.) Nurse Justice explained to Bamer "that the correct procedure
was followed by all involved once [Bamer] refused medical treatment." {Id.) "Bamer could
have appealed this response, but he did not do so." (Johnson Aff. H9.)
On January 31,2015, Bamer submitted a fourth grievance conceming Lieutenant

Robinson's actions. (Grievance Material at 36.) On February 2,2015, the responding officer

noted that Bamer's grievance was "already answered. See grievance dated 1-28-15. Answered
on 1-29-15." {Id.) Again, Bamer could have appealed, but he did not. (Johnson Aff. f 10.)
On February 3,2015, Bamer submitted a fifth grievance in which he asked if it would be

possible for him to receive health services for his injuries without being charged. (PL's Resp.
Ex. 3, ECF No. 47-1, at 3.) Bamer stated that he could not chew on the left side of his mouth

without experiencing pain and that he was having severe headaches. {Id.) On Febmary 6,2015,

the respondmg officer noted that Bamer was seen by medical on January 29,2015 at no cost to
him, and that he was prescribed 400mg of Motrin to take twice a day, "per [his] request at pillcall ... also at no cost to [Bamer]." {Id.) The responding officer noted that Bamer had not
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asked for the Motrin "[a]t this time,"thus he would need to submit a Health Services Request to

be seen at his cost. {Id.) Therecord does not reflect thatBamer appealed thisresponse. {See
id.)

On April 1,2015, Bamer submitted his sixth grievance, asking whether Rawls would be
requu-ed to pay the $35.00 copayment Bamer needed to pay in order to see the institutional

psychiatrist. (Grievance Material at 35.) On April 3,2015, Nurse Justice responded, explaining
that "[t]he inmate handbook does not state that another inmate will be responsible for your
medical fees." {Id.) Again, Bamer could have, but did not, appeal this response. (Johnson Aff.
Ill-)

Captain Johnson avers that "Bamer has not exhausted his administrative remedies related
to the January 25,2015 incident with respect to any grievance." {Id. TI14.)
III. 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, an aggrieved party 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). The Supreme Court has instmcted 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 ofproper exhaustion." Jones v. Bock, 549 U.S. 199,218 (2007).
Exhaustion ismandatory, and courts lack discretion to waive the exhaustion requirement. Porter
V. Nussle, 534U.S. 516, 524(2002).

Here, Bamer clearly failed toexhaust his administrative remedies with regard tohis
claim. As explained above, Bamer filed six grievances concerning the altercation with Rawls
that occurred on January 25,2015. Five ofthese grievances concerned Bamer's medical care

after the incident. Only one grievance concerned the identity ofthe officer who opened the

doors between Rawls' and Bamer's housing units. Bamer never exercised his right to appeal any
of the responses to these six grievances.

The Court construes Bamer to raise one argument for excusing his failure toexhaust his

administrative remedies. In his Surreply, Bamer argues that Captain Johnson "disregarded

[Bamer's] vain attempts to continue to pursue and exhaust [his] remedies." (Surreply 2, ECF
No. 49.) Bamer apparently believes that Captain Johnson frustrated his ability to exhaust his
remedies. {Id. at 2-3.)

Although "anadministrative remedy is notconsidered to have been available if a

prisoner, through no fault ofhis [or her] own, was prevented from availing himself [or herself] of
it," Moore v. Bemette, 517 F.3d 717, 725 (4th Cir. 2008) (citations omitted), Bamer fails to
demonstrate that he was somehow prevented from pursuing appeals ofhis grievances. 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); see Ross v. Blake, 136 S. Ct. 1850,
1856-59 (2016) (discussing when administrative procedures are unavailable to an inmate). To
excuse compliance with a grievance system, courts have required an inmate show that he orshe
10

was prevented from filing a grievance by affirmative action on the part of prison officials.

Graham v. Cty. ofGloucester, Va., 668 F. Supp. 2d 734, 738 (E.D. Va. 2009) (citing Brown v.
Croak, 312 F.3d 109, 112-13 (3d Cir. 2002); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.
2000); Born v. Monmouth Cty. Corr. Inst., No. 07-3771, 2008 WL 4056313, at *3-4 (D.N.J.
Aug. 28, 2008)), aff'd sub nom. Graham v. Gentry, 413 F. App'x 660 (4th Cir. 2011).
Barner fails to provide any evidence that Captain Johnson, or any other officer at SRJ,
affinnatively prevented him from appealing his grievances or pursuing a grievance challenging
Defendant Allen's alleged unconstitutional actions. Barner's subjective belief about the
availability of the grievance system fails to excuse his lack of exhaustion. Lyon, 305 F.3d at 809.
The record therefore establishes that Barner failed to comply with 42 U.S.C. § 1997e(a). See

Woodford, 548 U.S. at 90. Accordingly, Bamer's claim will be DISMISSED WITHOUT
PREJUDICE. See Duncan v. Clarke, No. 3:12CV482, 2015 WL 75256, at *9 (E.D. Va. Jan. 6,
2015) (explaining that "the nonnal remedy for a failure to exhaust under§ 1997e(a) is dismissal
without prejudice" (citing Booth, 532 U.S. at 735)).

IV. Conclusion
Accordingly, the Motion for Summary Judgment (ECF No. 41) will be GRANTED.
Earner's claim will be DISMISSED WITHOUT PREJUDICE. Barner remains free to file a new
complaint once he has properly exhausted his administrative remedies with respect to his claims.
The action will be DISMISSED.
An appropriate Order will accompany this Memorandum Opinion.

M.Hannah~

United States District Judge

S£P 0 6 2011.

Date:
Richmond, Virginia

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