Brown v. Banks et al

Filing 55

MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Henry E. Hudson on 01/31/2017. Copy mailed to Brown as directed.(ccol, )

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

?

8J
JAN 3 I

DENNIS JAMES BROWN,
n frK US. DiSTfliCT COURT

•bichmond,va__

Plaintiff,

Civil Action No. 3:15CV747-HEH

V.

LT. A. BANKS, etal.
Defendants.
MEMORANDUM OPINION

(Granting Motion for Summary Judgment)
Dennis James Brown, a Virginia inmate proceedingpro se and informa pauperis,

filed this 42 U.S.C. § 1983 action.' Brown's claims flow from the alleged
unconstitutional treatment Brown received from Lt. A. Banks and Dr. Inder Gujral in the

aftermath of Brown's hernia surgery. Specifically, Brown contends that:
Claim 1

(a) Defendant Banks violated Brown's rights under the Eighth
Amendment when, on February 10,2015, he ordered Brown to move
some heavy boxes and refused to allow anyone to assist Brown in

moving the boxes. (Compl. 6-7, ECF No. 1.)^
(b) Defendant Banks violated Brown's rights under the Eighth
Amendment when he falsely charged Brown with disobeying a

' That statute provides, inpertinent 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....

42U.S.C§ 1983.

^The Court employs the pagination assigned toBrown's submissions by the CM/ECF docketing
system.

direct order and had Brown locked in segregation for thirty-six (36)
days. {Id. at 6.)

Claim 2

Defendant Gujral failed to provide Brown with adequate medical
care following Brown's injury on February 10, 2015. {Id. at 4.)

Defendant Banks has moved for summary judgment on the ground that Brown has failed
to exhaust his administrative remedies. (ECF No. 20.) Brown 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 "ifthe movant shows thatthere 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 partywill bearthe
burden ofproof 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)).

^The Court will address the claims pertaining to Defendant Gujral in a separate Memorandum
Opinion and Order. That separate Memorandum Opinion and Orderwill also dispense with
Brown's inchoate state law claims.

Defendant Banks asks the Court to dismiss Claim 1(b) because it lacks merit and
to dismiss Claim 1(a) because Brown failed to exhaust his administrative remedies as

required by 42 U.S.C. § 1997e(a). As exhaustion of administrative remedies is an

affirmative defense. Defendant Banks bears the burden of pleading and proving lackof
exhaustion. Jones v. Bock, 549 U.S. 199, 216 (2007).
In support of his Motion for Summary Judgment, Defendant Banks submits: (1)

an affidavit from A. James, the Institutional Grievance Coordinator (Mem. Supp. Mot.
Summ. J. Ex. 1 ("James Aff"), ECF No. 21-1); (2) a copy of Virginia Department of

Corrections ("VDOC") Operating Procedure § 866.1 {id. End. A. ("Operating Procedure
§ 866.1")); and, (3) copies of grievances material submitted by Brown {id. Ends. B-E).
Brown responded to the Motion for Summary Judgment by filing his own affidavit
("Brown Affidavit," ECF No. 29). Although there are a host of other documents in the

record, "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) (quoting

v. Tenneco Resins, Inc., 953

F.2d 909, 915 & n.7 (5th Cir. 1992)). In light of the foregoing submissions, the following
facts are established for the Motion for Summary Judgment. The Court draws all
permissible inferences in favor of Brown.
II. UNDISPUTED FACTS
A. Brown's Conviction of an Institutional Infraction

On or about January 10, 2015, Brown underwent hernia surgery. (Brown Aff.
3.) Brown's surgeon ordered Brown not to lift anything heavy for at least six weeks

{Id. (citation omitted).) On February 10, 2015, after Brown had returned to prison.

Defendant Banks ordered Brown to pack up his personal possessions in some boxes and
prepare to move to a different housing unit. {Id. ^ 4.) After packing the boxes. Brown
informed Banks that he was under medical orders not to move anything heavy and Brown

asked for assistance in moving the boxes. {Id.) Defendant Banks refused to provide
assistance and told Brown that he must move the boxes himself. {Id.) Brown repeated
that he was under a medical restriction not to lift heavy items. {Id.) Defendant Banks

then left Brown in his cell. {Id.)

Shortly thereafter, a sergeant appeared at Brown's cell and informed Brown that
Defendant Banks had ordered Brown assigned to administrative segregation for refijsing
to lift the boxes. {Id. ^5.) Brown then moved his boxes. {Id.) In the process of moving
his boxes. Brown felt a "snapping and pulling" in his groin area, near where the surgery
had occurred. {Id. TI6.)
On February 10, 2015, Brown received a disciplinary charge filed by Defendant
Banks. {Id. T16.) Defendant Banks charged Banks with refusing to move to another cell.

{Id.) On or about February 18,2015, Brown was found guilty of the above charge and
sentenced to serve eleven (11) days in isolation. {Id. ^7.) The Warden of Sussex II State
Prison, however, overturned the finding of guilty and had the matter expunged from
Brown's record. {Id. ^ 8.)
B. Grievance Procedure

The Virginia Department of Corrections ("VDOC") "Offender Grievance

Procedure[] is a mechanism for offenders to resolve complaints, appeal administrative

decisions and challenge the substance of procedures." (James Aff. ^ 4.) "All issues are
grievable except those pertaining to policies, procedures and decisions of the Virginia
Parole Board, disciplinary hearings, state and federal court decisions, laws and
regulations, and matters beyond the control of the [VDOC]." {Id.

5.)

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.B.)
Generally, a good faith effort requires the inmate to submit an informal complaint form.
{Id. § 866.1.V.B.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.B.2 (emphasis added).) 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" review of the grievance to assure that it meets the published criteria for
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.3.) 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.VI.B.4.) If the inmate desires a review
of the intake decision, he or she must send the grievance form to the Regional

Ombudsman within five calendar days of receipt. {Id. § 866.1.VLB.5.)
2. Grievance Appeals

Up to three levels of review exist for a regular grievance. {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.VLC.1.) If the offender is dissatisfied with the

determination at Level I, he or she may appeal the decision to Level II, a review of which
is conducted by the Regional Administrator, the Health Services Director, the
Superintendent for Education, 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 "qualifies for" an appeal to Level III. {Id. § 866.1.VI.C.2.g.)

3. Emergency Grievances Fail to Satisfy the Exhaustion Requirement

An offender may file an emergency grievance if he or she believes that there is a
situation or condition which may subject him or her to immediate risk of serious personal

injury or irreparable harm. {Id. § 866.1.VII.A.) "The filing of an emergency grievance

does not satisfy the exhaustion requirement." (James Aff. ^ 9.) As previously outlined,
to satisfy the exhaustion requirement the offender must submit his or her complaint "by
filing a regular grievance with the appropriate informal complaint, and appeal it through
all available appeal levels." {Id.)
C. Brown's Limited Efforts to Utilize the Grievance Procedures

1. Submissions that Do Not Pertain to Defendant Banks's Conduct

On February 11, 2015, Brown submitted an emergency grievance wherein he

complained that he had injured his herniaand was experiencing pain, (James Aff. End.

B, at20.)'' Prison staff informed Brown his complaint did not amount to a medical
emergency and to report for sick call. {Id.)

In the following months. Brown submitted a number of Offender Requests and
Informal Complaints wherein he raised concerns about continued discomfort fi-om his
hernia and the adequacy of his medical care. (James Aff. End. C, at 24-37.) These
submissions, however, fail to indicate that Defendant Banks was the cause of Brown's

injury.

On August 11,2015, Brown submitted a regular grievance wherein he
acknowledged that he was receiving pain medication, but expressed his desire to see a

" The Court employs the pagination assigned by CM/ECF for Brown's grievance material.
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specialist. (James Aff. End. C, at 21.) Prison staff returned the grievance to Brown, and
instructed him to provide a date for incident or occurrence. {Id. at 22.)
2. Grievance Material Pertaining to Defendant Banks
On October 29,2015, Brown finally executed a regular grievance ("October 2015

Grievance") wherein he complained that he was injured by Defendant Banks's
indifference to his medical condition and Banks's demand that Brown move heavy boxes.

(James Aff. End. D, at 38.) Prison staff refused to process the grievance because it was
submitted well past the thirty-day filing period. (Id at 39.)
Brown also swears that on February 12, 2015, he delivered an Informal Complaint

"to a security officer... complaining that Lt. Banks had caused me to suffer a physical
injury by ... instruct[ing] me to lift and carry my boxes

" (Brown Aff. 110.)

Brown asserts that he failed to receive a receipt for this Informal Complaint. (Id)

Brown swears that it was the practice of prison officials at "Sussex II State Prison
not to process, receipt, answer and/or return to me meritorious Informal Complaints and

Internal Complaints in a bad faith attempt to prevent me from being heard ...." (Id.
112.)
III. ANALYSIS
A. Lack of Exhaustion

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
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prisonerto 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 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. McCaughtty, 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).
Exhaustion is mandatory, and courts lack discretion to waive the exhaustion requirement.
Porter v. Nussle, 534 U.S. 516, 524 (2002).

Brown's informal complaints and grievance pertaining to his general medical care
are not relevant to the determination of whether Brown exhausted his administrative

remedies for the distinct claim that Defendant Banks injured Brown when he demanded

that Brown move heavy boxes. See, e.g., Moore v. Bennette, 517 F.3d 717, 729 (4th Cir.

2008) (concluding that grievances pertaining to medical care for inmate's pancreatic
condition and Hepatitis C did not exhaust claims pertaining to inadequate medical care

for gout); White v. Levin, No. 3:13CV23, 2014 WL 1056700, at *5 (E.D. Va. Mar. 17,

2014) (citation omitted). Additionally, Brown's October 2015 Grievance pertaining to
Defendant Banks, which was rejected because it was submitted outside the thirty-day

filing period, failed to satisfy the exhaustion requirement. This untimely grievance failed
to provide prison officials the "fair opportunity" to examine the merits ofhis grievance.
Woodford, 548 U.S. at 95. The proper rejection ofBrown's untimely October 2015
Grievance is not sufficient to exhaust his administrative remedies. See Scott v. Kelly,

No. 1:11CV25 (AJT/TCB), 2011 WL 6046400, at *2 (E.D. Va. Dec. 2,2011) (citing
Moore, 517 F.3d at 725, 729).

Although "an administrative remedy is not considered to have been available if a
prisoner, through no fault ofhis own, was prevented from availing himself ofit," Brown
fails to demonstrate that prison officials prevented him fi^om pursuing a timely grievance

pertaining to his alleged mistreatment by Defendant Banks. Moore, 517 F.Sd at 725
(citations omitted). Rather, the record indicates Brown simply did not pursue any such

grievance. See Pinson v. Berkebile, 528 F. App'x 822, 826 (10th Cir. 2013) (observing
that "an inmate 'may not successfully argue that he had exhausted his administrative

remedies by, in essence, failing to employ them'" (quoting Jernigan v. Stuchell, 304 F.3d
1030,1033 (10th Cir. 2002))). Although Brown generally complains that prison officials

consistently failed to respond to his informal complaints and failed to issue him receipts,
the record demonstrates this is simply nottrue. (James Aff. End. C, at 26-32, 36; id.
End. D, at 40; id. End. E, at 47-48.) Brown's "[a]iry generalities [and] conclusory

assertions" that prison officials prevented him exhausting his administrative remedies are
insufficient "to stave off summaryjudgment," where he fails to direct the Court to any

timely, appropriate grievance he submitted regarding Defendant Banks's conduct.
Robinson v. Johnson, No. 3:07CV449, 2009 WL 874530, at *7 n.5 (E.D. Va. Mar. 26,
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2009) (alterations in original) (quoting United States v. Roane, 378 F.3d 382, 400-01 (4th
Cir. 2004)). Accordingly, Claim 1(a) will be dismissed for lack of exhaustion.
B. Allegedly False Disciplinary Charge

In Claim 1(b), Brown contends that Defendant Banks violated his rights under the
Eighth Amendment by falsely charging him with disobeying a direct order. To survive
summaryjudgment on an Eighth Amendment claim, an inmate must demonstrate that

"the prison official acted with a sufficiently culpable state of mind (subjective
component) and [that] the deprivation suffered or injury inflicted on the inmate was

sufficiently serious (objective component)." Iko v. Shreve, 535 F.3d 225,238 (4th Cir.
2008) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). Under the

objective prong, the inmate must demonstrate thatthe deprivation complained of was
extreme and amounted to more than the "routine discomfort" that is "part of the penalty
that criminal offenders pay for their offenses against society." Strickler v. Waters, 989
F.2d 1375,1380 n .3 (4th Cir. 1993) (quotingHudson v. McMillian, 503 U.S. 1, 9

(1992)). "In order to demonstrate such an extreme deprivation, a prisoner must [submit
evidence of] 'a serious or significant physical or emotional injury resulting from the
challenged conditions.'" De 'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)
(quoting Strickler, 989 F,2d at 1381). Deliberate indifference requires the plaintiffto
demonstrate that a particular defendant actually knew of and disregarded a substantial

risk of serious harm to his person. See Farmerv. Brennan, 511 U.S. 825, 837 (1994).
Brownhas failed to submit any evidence that satisfies eitherthe objective or
subjective prongs of his Eighth Amendment claim. The mere fact that the institutional
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charge caused Brown to briefly spend some time in segregation fails to demonstrate that
he was subjected to cruel and unusual punishment. See In re Long Term Admin.
Segregation ofInmates Designated as Five Percenters, 174 F.3d 464,472 (4th Cir.
1999). Accordingly, Claim 1(b) will be dismissed.

Banks's Motion for Summary Judgment (ECF No. 20) will be granted.
An appropriate Order shall accompany this Memorandum Opinion.

/si
HENRY E.HUDSON

Date:

/

UNITED STATES DISTRICT JUDGE

Richmond, Virginia

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