LordMaster v. Augusta Correctional Center Personnel et al

Filing 41

MEMORANDUM OPINION. Signed by District Judge Michael F. Urbanski on 7/9/2014. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
FRANKIE JAE LORDMASTER,
Plaintiff,
v.
AUGUSTA CORRECTIONAL
CENTER PERSONNEL, et al.,
Defendants.

)
)
)
)
)
)
)
)

Civil Action No. 7:13-cv-00506
MEMORANDUM OPINION
By:

Hon. Michael F. Urbanski
United States District Judge

Frankie Jae Lordmaster, a Virginia inmate proceeding pro se, filed an Amended
Complaint pursuant to 42 U.S.C. § 1983, naming various staff of the Virginia Department of
Corrections and the Augusta Correctional Center (“ACC”) as defendants. All but two defendants
filed a motion for summary judgment, and Plaintiff responded, making the matter ripe for
disposition. After reviewing the record, the court will grant the motion for summary judgment
filed by defendants Hinkle, Jennings, Wheeler, Linkenholker and Shifflet because Plaintiff did
not exhaust available administrative remedies.1
I.
Plaintiff generally alleges four claims in the Amended Complaint. First, Plaintiff told
defendants Warden Jennings, Regional Director G. Hinkle, Building C/D Sergeant, and Building
C/D Lieutenant that he did not get along with his cellmate and his cellmate later attacked him.
Second, defendant Lt. Wheeler tackled Plaintiff during a prison lockdown. Third, defendant
Officer Linkenholker painfully bent Plaintiff’s wrist while escorting Plaintiff to a segregation
cell. Fourth, defendant Officer Shifflet aggressively manipulated Plaintiff’s head while escorting
Plaintiff to a segregation cell. Plaintiff does not describe when these alleged events occurred.
1

Service has not yet been accomplished on defendants Building C/D Sergeant and Building C/D Lieutenant due
to Plaintiff’s unwillingness to describe them. However, Plaintiff failed to exhaust administrative remedies for the
claim related to these two defendants, and the claims against them are dismissed without prejudice, pursuant to 28
U.S.C. § 1915A.

During his confinement at ACC between July 8, 2010, and January 30, 2013, Plaintiff
filed one related grievance on April 18, 2012, alleging that Officer Linkenholker made
unprofessional comments and placed him at risk. The grievance was denied as unfounded, and
Plaintiff did not appeal that determination.
II.
Defendants argue that Plaintiff failed to exhaust his administrative remedies. Liberally
construed, Plaintiff argues in response that any failure to exhaust was due to his unspecified fear
of retaliation and his transfer from ACC to Sussex II State Prison (“Sussex II”). After reviewing
the record, the court finds that Plaintiff did not exhaust available administrative remedies.
The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect
to prison conditions under [§ 1983] . . ., 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). The exhaustion requirement is mandatory and “applies to all inmate suits
about prison life[.]” Porter v. Nussle, 534 U.S. 516, 524, 532 (2002). “Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules.” Woodford
v. Ngo, 548 U.S. 81, 90 (2006). When a prison provides an administrative grievance procedure,
the inmate must file a grievance raising a particular claim and pursue it through all available
levels of appeal to “properly exhaust.” Id. However, “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). “[W]hen prison
officials prevent inmates from using the administrative process . . ., the process that exists on
paper becomes unavailable in reality.”2 Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

2

An inmate’s failure to exhaust is an affirmative defense that a defendant has the burden to prove. Jones v.
Bock, 549 U.S. 199, 216 (2007). Once a defendant presents evidence of a failure to exhaust, the burden of proof

VDOC Department Operating Procedure (“OP”) 866.1, the “Offender Grievance
Procedure,” provides the administrative remedies for inmates to resolve complaints, appeal
administrative decisions, and challenge policies and procedures.3 The process provides
correctional administrators means to identify potential problems and, if necessary, correct those
problems in a timely manner.
An inmate must make a good faith effort to informally resolve the issue by submitting an
informal complaint form, which is available in housing units. If the issue is not informally
resolved, the inmate must file a grievance within thirty calendar days from the date of the
occurrence or incident. A properly-filed grievance may receive three levels of review. A
facility’s warden or superintendent conducts the first, “Level I” review. If the warden or
superintendent does not grant relief, the inmate may file an appeal to Level II, which is usually
done by a regional director. For most issues, Level II is the final level of review. For the few
issues appealable to Level III, the Deputy Director or Director of the VDOC conducts the final
administrative review. Copies of processed informal complaints, grievances, and appeals are
maintained in an inmate’s grievance file.
Plaintiff’s uncontested grievance record establishes that he failed to exhaust available
administrative remedies for his claims because he did not appeal the Level I response about
Officer Linkenholker to Level II and never filed any other relevant grievance. Plaintiff fails to
substantiate how his alleged fear of retaliation made administrative remedies unavailable, and his
conclusory allegation of retaliation is not persuasive. See Adams v. Rice, 40 F.3d 72, 74 (4th

shifts to the plaintiff to show, by a preponderance of the evidence, that exhaustion occurred or administrative
remedies were unavailable through no fault of the plaintiff. See, e.g., Tuckel v. Grover, 660 F.3d 1249, 1254 (10th
Cir. 2011).
3
All issues are grievable except issues about policies, procedures, and decisions of the Virginia Parole Board;
disciplinary hearing penalties and/or procedural errors; state and federal court decisions, laws, and regulations; and
other matters beyond the VDOC’s control.

Cir. 1994) (noting an inmate must present more than conclusory allegations of retaliation and
that inmates’ claims of retaliation are generally regarded with skepticism because every act of
discipline by prison officials is by definition “retaliatory” in the sense that it responds directly to
prisoner misconduct). Furthermore, Plaintiff incorrectly believes he was relieved of pursuing
administrative remedies about conduct at ACC when he was transferred to Sussex II. OP 866.1
specifically states, “If the [inmate] has been transferred, the [inmate] should submit the informal
complaint and subsequent grievance to the facility where the issue originated.” OP 866.1
§ VI(A)(2)(b). Accordingly, the court finds that administrative remedies were available to
Plaintiff and that he failed to exhaust them.
III.
For the foregoing reasons, the court grants defendant Hinkle, Jennings, Wheeler,
Linkenholker and Shifflet’s motion for summary judgment for failure to exhaust available
administrative remedies. The court also dismisses the claims against defendants Building C/D
Sergeant and Building C/D Lieutenant without prejudice, pursuant to 28 U.S.C. § 1915A(b)(1).
Entered: July 9, 2014

/s/ Michael F. Urbanski

Michael F. Urbanski
United States District Judge