Coleman v. McNelis et al

Filing 47

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 7/31/2018. Copy to Coleman as directed. (jsmi, )

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

Richmond Division

RAYMOND COLEMAN,
Plaintiff,
Civil Action No. 3:16CV961-HEH

V.

K. McNELIS, etal.
Defendants.
MEMORANDUM OPINION

(Granting Motion for Summary Judgment)

Raymond Coleman, a former Virginia inmate' proceeding pro se and informa
pauperis, brings this action pursuant to 42 U.S.C. § 1983.^ In his Complaint, Coleman
contends that Correctional Officer K. McNeils and Correctional Officer N. Melton

("Defendants") acted with deliberate indifference in violation of Coleman's Eighth

'It appears that Coleman is no longer incarcerated. {See ECF No. 41.)
The 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.
-I

By Memorandum Opinion and Order entered on June 26, 2018,the Court dismissed four
Unknown and Unnamed Employees listed in his Complaint because Coleman had failed to serve
them. (ECF Nos. 45-46.)

Amendment'^ rights by allowing him to be attacked by a fellow inmate. On December 5,
2017, the Court denied without prejudice two Motions for Summary Judgment filed by
Defendants McNeils and Melton. (EOF Nos. 33-34.) The matter is now before the Court
on Defendants' Renewed Motion for Summary Judgment("Motion for Summary
Judgment," ECF No. 38), wherein the Defendants argue that Coleman failed to exhaust
his administrative remedies. Defendants provided Coleman with the appropriate

Roseboro^ notice. (ECF No. 40.) Coleman has not responded to the Motion for
Summary Judgment. The matter is ripe for disposition.
I. Summary of Allegations

In the days leading up to November 25, 2014, Coleman was incarcerated at Deep

Meadow Correctional Center("DMCC"). {See Compl.fl 13, 16, ECF No. 1.)^ Prior to
November 25, 2014, Coleman witnessed fellow inmate Jonathan Scott Lemay

create a big scene shouting, threatening and warning DMCC staff. Officer
K.[] McNeils . .. who was on the floor, and [Correctional Officer] Melton
. . . who was in the control booth, of [Lemay's] intentions to harm
someone if they didn't transfer him from DMCC stating: "TbV/ better get
me up offofhere or else I'm goin' to do somethin'to somebodyV
{Id. 116.) McNeils and Melton laughed off Lemay's warnings and did not take him
seriously. {Id. 117.)

^ "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const, amend. Vlll.

^ Roseboro v. Garrison, 528 F.2d 309(4th Cir. 1975).
^ The Court employs the pagination assigned by the CM/ECF docketing system to Coleman's
submissions. The Court corrects the capitalization, spacing, punctuation, and spelling in
quotations from Coleman's Complaint. Throughout his Complaint, Coleman cites to his attached
Affidavit. In the interest of brevity, the Court omits all secondary citations from the Complaint.

On November 25, 2014, Coleman returned to Building One at DMCC "after
feeding," where he and Lemay were housed. {Id.

18-19.) When Coleman entered the

building,"he observed Lemay sitting on his own bunk facing opposite [of] Coleman's
bunk." {Id.f 18.) Coleman sat down in the chair next to his bunk and began watching
T.V. {Id.) Approximately five minutes later, Coleman laid down on his bunk. {Id.
118.)

A few minutes later, Coleman saw Lemay in line for the microwave. {Id. 120.)
Coleman continued to lay in his bunk and watch T.V. {Id.) "The next thing [Coleman]
knew,scolding hot water was thrown was thrown in his face, neck, chest, arm, and upper

torso." {Id. 121.) Coleman jumped up and saw Lemay standing before him with a pool
ball in his hand. {Id. 122.) Lemay began shouting,'''Come on, mutherfucker!I'm gon'to
kill your ass!I'm gon'to kill yo'a^^!" {Id?) Lemay then began swinging the pool ball,
and Coleman, believing his life was in danger,"tussled" with him. {Id. H 23, 24.)
Lemay hit Coleman with the pool ball and the pair "tussled some more" before Coleman
threw Lemay onto a pool table and several officers arrived. {Id. 124.) Coleman was
immediately taken to DMCC medical and then to the Medical Center of Virginia
("MCV")where he was treated for second and third degree burns to his face, neck, chest,

arm, and torso. {Id. 125.) That same day, Coleman was charged with violating VDOC
Operating Procedure 861.1, Offense Code 218 (fighting with any person). {Id. 12.)

On his second day at MCV,the nurses packed up Coleman's belongings and stated
that DMCC had ordered them to do so. {Id. 127.) Coleman was then transferred back to
DMCC in a VDOC van rather than in an ambulance. {Id.^ 28.) At DMCC,he was
3

placed in segregation without medical treatment. {Id. T| 29.) The next morning, Coleman
was transferred to Greensville Correctional Center("GCC")"with orders to place him in
segregation." {Id.) At GCC,he was screened by medical personnel. {Id.

30-31.)

Sergeant G.D. Faulcon and Nurse Epps "determined that ifthey placed [Coleman] in
segregation, he would not survive the night." {Id. 131.) Sergeant G.D. Faulcon and
Nurse Epps notified their supervisors of Coleman's condition, and Coleman was placed
in the medical unit at GCC. {Id.) Coleman remained in GCC's medical unit for
approximately one month. {Id. H 33.)
Coleman states that as a result ofthe incident, he has scars on his face, shoulder,

neck, and chest, severe nerve damage, and high blood pressure. {Id. K 35.) Coleman
experiences panic attacks, feelings of hopelessness, and nightmares about the incident
with Lemay. {Id.) Coleman is "currently in the process of releaming how to speak and
write" and is partially blind. {Id.)
11. 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 ofthe party seeking summary
judgment to inform the court of the basis for the motion, and to identify the parts ofthe
record which demonstrate the absence of a genuine issue of material fact. See Celotex
Corp. V. Catrett^ All U.S. 317, 323 (1986). "[WJhere 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
4

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)). 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 summary judgment." Forsyth v. Barr, 19 P.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. Civ. P. 56(c)(3)("The court need consider only cited materials, but it may
consider other materials in the record."). Defendants ask the Court to dismiss
Coleman's claims because Coleman 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 oftheir prior Motions for Summary Judgment, Defendants submitted:
(1)the Affidavit of M. Seay,Institutional Ombudsman at DMCC("Seay Aff. I," ECF
No. 27-1);(2)a copy of VDOC's Operating Procedure § 866.1 (id. End. A,ECF
No. 27-1, at 5-18); and,(3)copies of Coleman's various informal complaints,
grievances, letters, and appeals (id. End. B,ECF No. 27-1, at 19-32). In support oftheir
current Motion for Summary Judgment, Defendants submitted: (1)a Supplemental
Affidavit of M.Seay("Seay Aff. II," ECF No. 39-2);(2)the Affidavit of L. Talbott,

Administrative Staff Specialist Senior at GCC ("Talbott Aff," ECF No. 39-3);(3)the
5

Affidavit of D. Everett, Health Services Administrator at GCC ("Everett Aff.," ECF No.

39-4);(4)the Affidavit ofDefendant K. McNelis("McNelis Aff.," ECF No. 39-6); and,
(5)various copies of Coleman's grievances, records from VDOC detailing Coleman's

grievance history, and copies of Coleman's pertinent medical reports.^
As a general rule, a non-movant must respond to a motion for summary judgment
with affidavits or other verified evidence. Celotex Corp., 477 U.S. at 324. With his
Complaint, Coleman submitted an Affidavit("Coleman Aff.," ECF No. 1-1) and copies

of his various informal complaints, grievances, letters, and appeals.^ (Compl. Ex. 2, ECF
No. 1-2). Coleman submitted a Response to the Defendants' first Motions for Summary
Judgment(ECF Nos. 18, 19), and a second Affidavit. ("Coleman Aff. II," ECF No. 18, at

12-13.) Coleman also submitted a third Affidavit in response to the first Motions for
Summary Judgment. (ECF No. 30-1.)

In light of the foregoing principles and submissions, the facts set forth below are

established for purposes ofthe Motion for Summary Judgment. All permissible
inferences are drawn in Coleman's favor.

' the interests ofjudicial economy, the Court will cite to the CM/ECF citations for these
In
materials as needed.

^ Coleman and Defendants have submitted copies of numerous grievance materials submitted by
Coleman during the course of his incarceration. For purposes ofjudicial efficiency, the Court
omits recitation of grievance materials not pertinent to the Defendants' current Motion for
Summary Judgment.
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III. Summary of Pertinent Facts
A.

VDOC's Grievance Procedure

Operating Procedure § 866.1, Inmate Grievance Procedure, is the mechanism used
to resolve inmate complaints. {See Seay Aff. IH 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.B, Seay Aff. II End. B,EOF No. 39-2.) A
good faith effort requires the inmate to file an informal complaint form. {Id.
§ 866.1.V.B.1.) Ifthe informal resolution effort fails, the inmate must initiate a regular
grievance by filling out the standard "Regular Grievance" form. {Id. § 866.1.VLA.2.)

"The offender is responsible for submitting the Informal Complaint in a timely manner to
allow time for staff response within the time period allowed to file a [Regular]
Grievance" {id. § 866.1.V.B.2(emphasis omitted)), and that "[t]he time for staff
response to an offender's informal complaint shall be no longer than 15 calendar days to

ensure responses are provided prior to the expiration ofthe 30-day time requirement for
an offender to file his/her grievance." {id. § 866.1.V.C.) Regular grievances must be
submitted within 30 calendar days from the date ofthe incident. {Id. § 866.1.VI.A.1.)
"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."
The Court omits the emphasis in the quotations from the Operation Procedure.
7

{Id. § 866.1.VI.A.2.b.) The offender must attach to the regular grievance a copy ofthe
informal complaint. {Id. § 866.1.VLA.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.I.V.B.2.) A regular grievance must be filed within thirty days from the date ofthe
incident or occurrence, or the discovery ofthe incident or occurrence, except in instances
beyond the offender's control. {Id. § 866.1.VI.A.1.)
1.

Grievance Intake Procedure

Prior to review ofthe substance of a regular 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.) Ifthe grievance does not meet the criteria for acceptance,
prison officials complete the "Intake" section ofthe grievance and return the grievance to

the inmate within two working days. {Id. § 866.1.VLB.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 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.1.) If the offender is dissatisfied with the determination
8

at Level I, he may appeal the decision to Level II, a review which is conducted by the

Regional Administrator, the Health Services Director, Superintendent for Education, or
the Chief of Operations for Offender Management Services. {Id. § 866.LVLC.2.) The

Level II response informs the offender whether he or she may pursue an appeal to Level
TIL {Id. § 866.1.VLC.2.g.)

B.

Facts Pertaining to Coleman's Exhaustion of Administrative Remedies

As alleged in Coleman's Complaint, immediately after the altercation at DMCC
on November 25, 2014, Coleman was transferred to MVC where he remained until

November 28, 2014, when he returned to DMCC. (Everett Aff.^ 5.) The next day, on
November 29, 2014, Coleman was transferred to GCC where he was placed in the

infirmary. (Talbott Aff. H 4.) Coleman remained in the infirmary at GCC until December
24, 2014. (Seay Aff. IIH 5.) After December 24, 2014, Coleman was placed in
segregation at GCC. (Talbott Aff. ^4.)
On December 24 and 25, 2014, while housed in segregation at GCC,Coleman

filed three Emergency Grievances wherein he complained about his medical care.
(Talbott Aff. H 5; id. End. A,ECF No. 39-3, at 4-6.) On December 29, 2014, GCC

received an Informal Complaint from Coleman wherein he complained about his medical
care. (Seay Aff. IIH 7; id. End. D,ECF No. 39-2, at 31.) Coleman subsequently

submitted three more Informal Complaints to GCC that were received on January 12,
2015, January 15, 2015, and January 22,2015. {Id. End. D,ECF No. 39-2, at 31.) In

each ofthese Informal Complaints, Coleman complained of his medical care. {See id.)

The record establishes that Coleman's first complaint regarding the November 25,
2014 incident was received on February 23, 2015. Specifically, on February 23, 2015, an
Operations Manager at DMCC received an Informal Complaint from Coleman wherein
he detailed the November 25, 2014 incident, complained that he was charged with
defending himself, and recounted that he lost a month of good time credit. (Seay Aff. II ^
6; id. End. C., ECF No. 39-2, at 21.) On February 25, 2015, Operations Manager Ware
responded that Coleman "failed to address these issues in accordance with policy.
Expired filing time[]." {Id. End. C., ECF No. 39-2, at 21.)
On April 17, 2015, Coleman submitted a second Informal Complaint to DMCC

Grievance Department("April 15, 2015 Informal Complaint,"), wherein he stated,
On [November 25, 2014] Offender J. Lemay . . . intentionally threw a
container of microwave boiling hot water in my face and upper torso
causing significant injury. Such action was [a] direct result of[Correctional
Officer] McNeils and [Correctional Officer] Melton's negligence and
breach of duty of ordinary care in failing to prevent the confrontation prior
to the assault, where Lemay had notified staff of his intent to do a violent
act then proceeded to argue at me.
(ECF Nos. 15-1, at 22; 27-1, at 22.) In response, the Institutional Ombudsman
replied on April 24, 2015 stating,"You submitted [a prior Informal Complaint] on
February 23, 2015—nothing further was sent... Expired filing time." (ECF
Nos. 15-1, at 22; 27-1, at 22.)
On May 1, 2015, Coleman submitted a Regular Grievance complaining that
he was injured by Lemay on November 25, 2014 because Officers McNeils and
Melton failed to prevent the attack. (Grievance Materials, ECF Nos. 15-1 at 19;
27-1 at 19.) The DMCC Institutional Grievance Office received Coleman's
10

regular grievance on May 5, 2015. (Seay Aff. K 8.) Coleman's regular grievance
was rejected at intake on May 5, 2015 because the period for which to file a

regular grievance had expired. (ECF Nos. 15-1, at 20; 27-1, at 20.)'*^
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, 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

The record reflects that Coleman filed various appeals of GCC's rejection of his May 1,2015
Informal Complaint, and many subsequent informal complaints and regular grievances about the
"nightmares" he experienced as a result of the November 25, 2014 incident. However, because
the Court's exhaustion analysis focuses solely on whether Coleman timely filed an informal
complaint and regular grievance about the November 25, 2014 incident, the only claim currently
before the Court, the Court omits recitation of Coleman's other grievances and appeals.
11

"define the boundaries of proper exhaustion." See Jones v. Bock, 549 U.S. 199, 218
(2007).

As explained by the United States Court of Appeals for the Fourth Circuit, the
lone exception to the PLRA's exhaustion requirement is found in the text itself: "A
prisoner need not exhaust remedies if they are not 'available.'" Germain v. Shearin, 653
F. App'x 231, 232(4th Cir. 2016)(quoting

v. Blake, 136 S. Ct. 1850, 1855 (2016)).

The Supreme Court has identified three circumstances where remedies are

considered not available to a prisoner:
(1) where the procedure "operates as a simple dead end" because officials
are "unable or consistently unwilling to provide any relief to aggrieved
inmates[;]" (2) where the grievance process itself is so incomprehensible
that "no ordinary prisoner can discern or navigate it [;]" and (3) where
administrators prevent inmates from availing themselves of remedies by
way of"machination, misrepresentation, or intimidation."
Id. at 232-33 (alterations in original)(citation omitted).
The record reflects that Coleman failed to file both an informal complaint and a
regular grievance in the time required by Operating Procedure § 866.1. Specifically, the
record establishes that the earliest Informal Complaint that Coleman filed about the

November 25, 2014 incident was received by DMCC on February 23, 2015. This is well
outside the timeframe established in Operating Procedure § 866.1.V.B.2. The record also
establishes that the earliest Regular Grievance that Coleman filed about the November
25, 2014 incident was on May 1, 2015. (Grievance Materials, ECF Nos. 15-1 at 19; 27-

1 at 19.) This too is well outside the 30 day timeframe for filing regular grievances
established by Operating Procedure § 866.1.

12

In response to the Defendants' first Motions for Summary Judgment, Coleman
advances two arguments. First, Coleman argued that Operating Procedure § 866.1 "does
not stipulate a filing time requirement for informal complaints, only regular grievances,"
(EOF No. 18, at 7), and that therefore, his April 17, 2015 Informal Complaint regarding

the November 25, 2014 incident should not have been rejected as untimely.^* {Id.)
Coleman is incorrect. As detailed herein, Operating Procedure § 866.1 states that "[t]he

offender is responsible for submitting the Informal Complaint in a timely manner to
allow time for staff response within the time period allowed to file a [Regular]
Grievance,"(Operating Procedure § 866.1.V.B.), and that "[t]he time for staff response to
an offender's informal complaint shall be no longer than 15 calendar days to ensure
responses are provided prior to the expiration ofthe 30-day time requirement for an

offender to file his/her grievance." (Operating Procedure § 866.1.V.C.) Therefore,
Coleman was required to file his April 17, 2015 Informal Complaint at the very latest,
within thirty days of the November 25, 2014 incident. {See Operating Procedure §
866.1.V.C.) He failed to do so and, thus, his April 17, 2015 Informal Complaint was
properly denied at intake as untimely.
Second, Coleman argues that he did not file an informal complaint and regular
grievance about the November 25, 2014 incident within the required time frame because

the "traumatic event" prevented him from complying with such requirements. Coleman

The Court notes that the record establishes that Coleman's first Informal Complaint regarding
the November 25, 2014 incident was received by DMCC on February 23, 2015 and was rejected
at intake as untimely. It is unclear why Coleman focuses his argument on the April 17, 2015
Informal Complaint.
13

contends that he sustained physical and emotional injuries that were "beyond his control"

and therefore he should not have been subject to the time line detailed in Operating
Procedure § 866.1. (EOF No. 18, at 8-10;

Coleman Aff. II fl 7-9, EOF No. 18, at

12.)

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," Moore
V. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)(citations omitted), Coleman fails to

demonstrate that he was somehow prevented from pursuing an informal complaint or

grievance. 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
to show that he was prevented from filing a grievance by affirmative action on the part of

prison officials. See Ross v. Bliake, 136 S. Ct. 1850, 1859-61 (2016)(reaffirming that
grievance procedures are only unavailable when they operate as a dead end, the
administrative scheme is unnavigable, or prison administrators thwart an inmate from

taking advantage of it); 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)).
The record reflects that while Coleman was housed in the infirmary and

segregation at GCC,he had access to the institutional grievance process and was not
14

prevented from filing grievances. (Talbott Aff.f 5.) Furthermore, Coleman actually
filed three Emergency Grievances while housed in segregation at GCC wherein he
complained about his medical care, and one of these Emergency Grievances was filed
during the thirty days following the November 25, 2014 incident. {See id. f 6; Mem.
Supp. Mot. Summ. J. 7-11.) Moreover,"had Coleman requested assistance with a

grievance, security and administrative staff were available to assist him with completing
any informal complaints and grievance forms." (Talbott Aff.^ 6.)
Given the current record, Coleman cannot stave off summary judgment with his
vague assertions that his medical condition prevented him from filing a grievance in a
timely manner. See United States v. Roane, 378 F.3d 382,400-01 (4th Cir. 2004)

(alteration in original)(internal quotation marks omitted)(citations omitted)(observing

that "[ajiry generalities, conclusory assertions and hearsay statements [do] not suffice to
stave offsummary judgment"); Gray v. Corizon Health Servs., No. l:14-CV-947,2015

WL 5098384, at *6(W.D. Mich. Aug. 31, 2015)(granting summary judgment to

defendants because plaintiff did not submit any medical evidence in support of his
argument that his medical condition prevented him from utilizing the grievance process).
The record establishes that Coleman filed at least one Emergency Grievance
complaining about his medical care within the thirty-day time frame ofthe November 25,
2014 incident. The record further establishes that prison personnel were available to

assist Coleman with filing any grievances while he was housed in the infirmary.
Coleman has not provided any evidence that administrative remedies were not available

to him or that he properly pursued available administrative remedies as required by
15

Operating Procedure 866.1. Accordingly, Defendants are entitled to summary judgment
pursuant to 42 U.S.C. § 1997e(a). See Hinton v. O'Connor, No. 7:14-CV-00197, 2016

WL 3042969, at *2(W.D. Va. May 27,2016)(rejecting plaintiffs argument that his
medical condition prevented him from filing a timely grievance because, inter alia, he
pursued other grievances during the applicable timeline), aff'd sub nom. Hinton v.
Anderson,671 F. App'x 144(4th Cir. 2016); Duncan v. Clarke, No. 3:12CV482,2015

WL 75256, at *7(E.D. Va. Jan. 6, 2015)(granting summary judgment where plaintiff did
not dispute that he had access to the grievance procedure during his time in the
infirmary), aff'd, 616 F. App'x 57(4th Cir. 2015), cert, denied, 136 S. Ct. 1671 (2016).
Accordingly, Defendants' Motion for Summary Judgment(EOF No. 38) will be granted.
VI. Conclusion

In light of the foregoing, Defendant's Motion for Summary Judgment(ECF
No. 38) will be granted. Coleman's claims will be dismissed. The action will be
dismissed.

An appropriate Order will accompany this Memorandum Opinion.

/s/

HENRY E.HUDSON

Date:XL3/go/g

SENIOR UNITED STATES DISTRICT JUDGE

Richmond? Vuginia

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