Widener v. City of Bristol, Virginia et al

Filing 35

OPINION AND ORDER denying 30 MOTION for Summary Judgment. Signed by Judge James P. Jones on 7/2/2014. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
CHRISTOPHER WIDENER,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF BRISTOL, VIRGINIA, ET AL., )
)
Defendants.
)

Case No. 1:13CV00053
OPINION AND ORDER
By: James P. Jones
United States District Judge

Charles H. Nave, Roanoke, Virginia, for Plaintiff; Mary F. Russell, Hale,
Lyle & Russell, Bristol, Tennessee, for Defendant Sheriff Jack Weisenburger.
This action under 42 U.S.C. § 1983 arises out of the sexual assault of the
plaintiff, Christopher Widener, by a cellmate while he was incarcerated at the
Bristol, Virginia, City Jail. In his Third Amended Complaint Widener sues Jack
Weisenburger, the Sheriff of the City of Bristol, Virginia, as well as unknown John
Does. The Sheriff has filed a Motion for Summary Judgment contending that the
plaintiff failed to exhaust the Bristol City Jail’s administrative remedies prior to
filing his action, as required by the Prison Litigation Reform Act, 42 U.S.C. §
1997e (“PLRA”).

The plaintiff has opposed the motion, contending that he

exhausted those administrative remedies to the extent that he was able.1
1

The Sheriff first filed a Motion to Dismiss to a Second Amended Complaint
based in part on the exhaustion issue. I denied the Motion to Dismiss as to the other
grounds, but as to the exhaustion issue, treated it as a Motion for Summary Judgment and
allowed a further response by the plaintiff. I also granted the plaintiff leave to file a

The Motion for Summary Judgment has been fully briefed and is ripe for
decision.2 For the following reasons, it will be denied.

I
The following facts are taken from the summary judgment record.
While the plaintiff was an inmate at the Bristol City Jail, he was assigned to
the same cell as Oadis William White. White had previously committed murder,
armed robbery, and three rapes — two against former cellmates. During the night
of October 13, 2011, White raped the plaintiff. The plaintiff cried for help and was
heard by other inmates, but no deputy or other jail employee responded.
The plaintiff was removed from the cell he shared with White the next night
after another inmate told a deputy what had transpired. The plaintiff says that he
did not receive any medical treatment, and contends that he filed a timely
grievance regarding the rape and his lack of medical treatment on October 16,
2011. The plaintiff gave his grievance form to a uniformed, Caucasian, male

Third Amended Complaint. Widener v. City of Bristol, Va., No. 1:13CV00053, 2014
WL 109104, at *2 (W.D. Va. Jan. 13, 2014). Thereafter, the Sheriff filed a separate
Motion for Summary Judgment on the exhaustion issue and I permitted discovery limited
to that issue.
2

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
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deputy. He did not receive a receipt or copy of his grievance form at the time he
filed it or at any other time.
The plaintiff eventually received a blood test to check for sexually
transmitted diseases, but was not informed of the results of the test.
On or about October 21, 2011,3 the plaintiff was released from the Bristol
City Jail on bond. He was released prior to the end of the nine days that a jail
supervisor had to respond to his grievance form. The plaintiff disclosed his new
address during his bond hearing, but did not receive a response to his grievance
form in the mail.
The plaintiff was generally familiar with prison grievance procedures from
previous incarcerations at other jails. At other jails, he had received carbon copies
of grievances he submitted. At the Bristol City Jail, the grievance form was on
plain white office paper, and he did not receive a copy.
White was later convicted in state court of forcible sodomy of the plaintiff.

3

The plaintiff gives two different dates as the date when he was released on bond.
He states that he “was a resident inmate at the Bristol Virginia Jail from approximately
September 16, 2011, until approximately October 21, 2011.” (Third Am. Compl. ¶ 7,
ECF No. 27.) Later he states that he was released on bond “[o]n or about October 25,
2011.” (Id. ¶ 26.) It is unclear from the summary judgment record which date is correct.
October 21, 2011 would be five days after the plaintiff filed his grievance and four days
before the supervisor was required to respond. October 25, 2011 would be nine days
after the plaintiff filed his grievance and the final day of the supervisor’s response period.
As neither date was past the supervisor’s deadline to respond, this discrepancy does not
change the analysis.
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II
By virtue of the PLRA, before an inmate may bring a claim under § 1983, he
or she must fully exhaust all available inmate grievance procedures before filing
suit. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). The
exhaustion requirement does not impose a heightened pleading standard on an
inmate. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 675 (4th Cir.
2005). Rather, failure to exhaust is an affirmative defense, and the burden falls on
the defendant to prove the inmate’s failure to exhaust. Jones v. Bock, 549 U.S.
199, 216 (2007). The exhaustion requirement is mandatory and unequivocal.
Booth v. Churner, 532 U.S. 731, 739-41 (2001); Anderson, 407 F.3d at 677;
Infinite Allah v. Virginia, No. 2:10CV00075, 2011 WL 251214, at *2 (W.D. Va.
Jan. 25, 2011). If the defendant adequately demonstrates an exhaustion defense,
the inmate’s case is deemed procedurally defective and must be dismissed. See
Woodford, 548 U.S. at 100-01; Bock, 549 U.S. at 221-22.
The Sheriff has the burden of proof in this case to show a failure of
exhaustion by the plaintiff. “In order for a defendant to prevail on a summary
judgment motion based on an affirmative defense, the defendant must shoulder the
burden usually allocated to a plaintiff moving for summary judgment: the
defendant must adduce evidence which supports the existence of each element of
its affirmative defense, and the evidence must be so powerful that no reasonable
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jury would be free to disbelieve it.” Herndon v. Mass. Gen. Life Ins. Co., 28 F.
Supp. 2d 379, 382 (W.D. Va. 1998) (internal quotation marks and citations
omitted).
The administrative remedies available to inmates in the Bristol City Jail are
set forth in an inmate handbook provided by the Sheriff’s Office. (Maples Aff. Ex.
A, ECF No. 13-4.) The system provides for three levels of administrative review
of inmate grievances as follows.
First, to start the process, an inmate must request a grievance form, complete
it, and return it to a deputy. (Id.) The inmate fills out Part I of the form, which
asks the inmate to describe his grievance and the action that he wants.

(Maples

Aff. Ex. B, ECF No. 13-5.) The form is then reviewed by a supervisor, who
approves a staff recommendation. (Maples Aff. Ex. A & B.) The supervisor’s
response is recorded on Part II of the same form that the inmate originally
submitted. (Maples Aff. Ex. B.) The form and response must be returned to the
inmate within nine days. (Maples Aff. Ex. A & B.)
If the inmate wishes to appeal the supervisor’s response, he may appeal to an
administrative officer using the same form. (Id.) The administrative officer will
review and respond to the appeal within nine days. (Id.) The administrative
officer’s response is recorded on Part III of the same form. (Maples Aff. Ex. B.)

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If the inmate wishes to appeal the administrative officer’s response, the
inmate may use the same form to make a final appeal to the Sheriff. The Sheriff
will respond either verbally or in writing within a reasonable time. (Maples Aff.
Ex. A & B.)
Darline Booher, the Deputy of Records at the Bristol, Virginia, Sheriff’s
Office, has further explained some aspects of the grievance process. Grievance
forms are printed on the front and back of plain white paper. (Booher Dep. 27,
ECF No. 34-1.) When a grievance form reaches the supervisor, a copy is made
and placed in the inmate’s active file. The original copy of the grievance form is
always returned to the inmate. (Id. at 35.) All grievance forms are stored in
inmates’ active files while they are incarcerated, and moved to inmates’ permanent
files when they leave the Bristol City Jail. (Id. at 29, 32, 34.) Leaving includes
being transferred or released on bond. (Id. at 34.) The active and permanent files
are both paper files that are retained indefinitely and Booher is not aware of any
electronic back-up system. (Id. at 38, 48.)
Booher also spoke to the plaintiff’s specific situation. She stated that she did
not find a grievance form in the plaintiff’s permanent paper file, and that there is
no other place where a grievance form would have been stored. (Id. at 25-26.)
The PLRA’s exhaustion requirement obligates an inmate to exhaust only
“such administrative remedies as are available” to him. 42 U.S.C. § 1997e(a). As
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the Fourth Circuit has recognized, “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). A
prisoner need only demonstrate that he “utilized all available remedies in
accordance with the applicable procedural rules, so that prison officials have been
given an opportunity to address the claims administratively.”

Id. (internal

quotation marks and citation omitted). Having done so, “a prisoner has exhausted
his available remedies, even if prison employees do not respond.” Id.
The Sheriff argues that because the Bristol City Jail does not have a record
of the plaintiff filing a grievance, his Motion for Summary Judgment should be
granted.
In contrast, the plaintiff swears that he filed a grievance form, but did not
receive a copy or receipt. It is undisputed that he would not normally receive a
copy or receipt, or have access to the original until it was returned to him.
Therefore, it is not dispositive that the plaintiff has no record that he filed a
grievance form.
The plaintiff was released during the nine days in which the supervisor
would have had to respond to his grievance. There are several ways that the
original grievance form could have been lost or not returned to the plaintiff. The
deputy could have failed to give it to the supervisor. The supervisor could have
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decided not to respond since the plaintiff had been released. The supervisor could
have responded to the grievance, but the form could have been lost during the
rearranging of the plaintiff’s active and permanent files. The possibilities are
numerous particularly since there does not appear to be an administrative
procedure for handling a grievance form when an inmate is released while his
grievance is pending.
The inmate handbook, on which the Sheriff relies in seeking to demonstrate
lack of exhaustion, does not appear to address what inmates should do when they
are released while a grievance is pending. The Sheriff states in his response to the
plaintiff’s interrogatories that “[a]n inmate who is transferred or released before
fully exhausting the grievance process would be required to return the grievance
appeal by mail (or other delivery) to the Bristol Virginia Jail for the process to be
continued and to exhaust his administrative remedies.” (Pl.’s Opp’n Mot. Summ.
J. Ex. 3 ¶ 6, ECF No. 34-3.) However, there is no indication that inmates are made
aware of this requirement. Furthermore, the inmate grievance procedures use the
same form for all levels of appeal. Without the original grievance form that he
submitted, the plaintiff might not have been able to pursue his grievance through
all levels of appeal.
Moreover, the plaintiff’s change in location might have rendered the Bristol
City Jail’s grievance process unavailable to him. See, e.g., Bradley v. Washington,
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441 F. Supp. 2d 97, 102-03 (D.D.C. 2006) (denying motion to dismiss for lack of
exhaustion where inmate was transferred from jail to federal system, and where
jail’s grievance procedures made no provision for persons no longer contained in
jail). But see King v. Doe, No. 10-573(JBS/AMD), 2011 WL 4351797, at *4-6 (D.
Del. Sept. 16, 2011) (finding lack of exhaustion because plaintiff did not pursue all
available levels of appeal, where plaintiff filed a grievance regarding an assault one
day after it occurred, but was released three days later after he posted bail). While
courts may differ on the impact of release or transfer on an inmate’s ability to
exhaust grievance procedures, in this case there is no evidence that a procedure
existed that the plaintiff knew he should have followed, but did not.
It appears that the plaintiff attempted to fully exhaust the administrative
measures available to him before filing this suit. Considering the facts in their
totality, the defendant has failed to meet his required burden of proof to succeed on
an affirmative exhaustion defense.

III
For the reasons stated, it is ORDERED that the defendant’s Motion for
Summary Judgment (ECF No. 30) is DENIED.

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ENTER: July 2, 2014
/s/ James P. Jones
United States District Judge

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