Abdul-Sabur v. Jones et al

Filing 114

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 9/14/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
WAKEEL ABDUL-SABUR,
Plaintiff,
v.
GAIL JONES, et al.,
Defendants.

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Civil Action No. 7:15cv00492
MEMORANDUM OPINION
By: Norman K. Moon
United States District Judge

Wakeel Abdul-Sabur, a Virginia inmate proceeding pro se, filed an amended complaint
pursuant to 42 U.S.C. § 1983 naming as defendants T. Back, a Unit Manager at Augusta
Correctional Center (“Augusta”), and Israel “Big Dawg” Hamilton, the former Assistant Warden
at Red Onion State Prison (“Red Onion”).1 Abdul-Sabur contends that Back was deliberately
indifferent to a known and substantial risk of harm when he allowed Abdul-Sabur to be
transferred to Red Onion, in violation of the Eighth Amendment, and that Hamilton threatened
Abdul-Sabur after the transfer to Red Onion, in violation of the First and Eighth Amendments.
Abdul-Sabur seeks damages against defendants in their official and individual capacities.
Defendants filed a motion for summary judgment, and Abdul-Sabur responded, making this
matter ripe for disposition.2 Having considered the record, I conclude that defendants’ motion
for summary judgment must be granted.
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Abdul-Sabur abandoned claims against previously-named defendants by filing the amended complaint.

Abdul-Sabur also filed replies to defendants’ answers that I had not authorized in accordance with Federal
Rules of Civil Procedure 7(a)(7) and 12(a)(1)(C). Consequently, those replies do not constitute a pleading that is
allowed under the Federal Rules of Civil Procedure or afforded liberal construction, and I do not consider them. See
Fed. R. Civ. P. 7(a); Jourdan v. Jabe, 951 F.2d 108, 109-10 (6th Cir. 1991) (holding that a pro se litigant is not
entitled to special consideration to excuse a failure to follow a straightforward procedural requirement that a lay
person can comprehend as easily as a lawyer); see also Sherrill v. Holder, No. 12-00489, 2013 U.S. Dist. LEXIS
190373, at *1, 2013 WL 11316921, at *1 (D. Az. June 25, 2013) (“This Court did not grant Plaintiff leave to file a
reply to Defendant’s Answer. Further, the Court does not find any basis to permit Plaintiff to file a reply to the
Defendant’s Answer in this case. As such, Plaintiff’s Response to Defendant’s Answer is stricken from the
record.”). Nonetheless, Abdul-Sabur is not prejudiced because “[i]f a responsive pleading is not required, an
allegation is considered denied or avoided.” Fed. R. Civ. P. 8(b)(6).

I.
On July 8, 2015, Abdul- Sabur drafted Emergency Grievance #013826 while at Augusta
about not wanting to be transferred to Red Onion because Hamilton was Red Onion’s Assistant
Warden. Thereafter, Abdul-Sabur refused to enter the general population at Augusta, and Back
recommended in August 2015 that Abdul-Sabur be transferred to a Level-4 prison.
On or about August 24, 2015, Abdul-Sabur filed a Regular Grievance about the
recommendation that he be transferred to a Level-4 prison because he allegedly had enemies at
all VDOC Level-4 prisons and wanted to be transferred to the protective custody unit at Dillwyn
Correctional Center. The Warden denied the Regular Grievance, and Abdul-Sabur did not
appeal.
On September 8, 2015, a correctional officer acknowledged receipt of Emergency
Grievance #013826, and the Unit Manger responded, noting that it did not meet the definition of
an emergency and that Abdul-Sabur should use the proper form. On that same day, Abdul-Sabur
was approved to be transferred to Red Onion.
Abdul-Sabur filed a second Regular Grievance on or around September 8 about not
wanting to be housed at Red Onion because of “an investigation” and wanting to be housed at
Dillwyn Correctional Center. The Warden denied the Regular Grievance, and Abdul-Sabur did
not appeal.
Abdul-Sabur was transferred from Augusta to Red Onion on September 18, 2015, and
assigned to segregation upon arrival. On September 26, 2015, Abdul-Sabur was moved into
protective custody at Red Onion. By November 9, 2015, Abdul-Sabur remained in protective
custody at Red Onion and had not filed any regular grievance about his transfer to Red Onion or
his experiences there.
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II.
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “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.” “As to materiality . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that
is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). If, however, the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a court must view the record as a
whole and draw all reasonable inferences in the light most favorable to the nonmoving party.
See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994). A plaintiff may not amend a complaint through argument in a brief
opposing summary judgment. Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).
Defendants claim that they are entitled to summary judgment because Abdul-Sabur failed
to exhaust available administrative remedies. A prisoner cannot bring a civil action concerning
prison conditions until first exhausting available administrative remedies. 42 U.S.C. § 1997e(a);
Porter v. Nussle, 534 U.S. 516, 524 (2002). This exhaustion requirement applies to “all inmate
suits, whether they involve general circumstances or particular episodes, . . . whether they allege
excessive force or some other wrong,” and whether the form of relief the inmate seeks is
available through exhaustion of administrative remedies. Id. To properly exhaust a claim, a
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prisoner must file grievances with sufficient detail to alert prison officials of the possible
constitutional claims that are now alleged as a basis for relief. See Smith v. Rodriguez, No. 7:06cv-00521, 2007 U.S. Dist. LEXIS 43571, 2007 WL 1768705 (W.D. Va. June 15, 2007) (citing
McGee v. Fed. Bureau of Prisons, 118 F. App’x 471, 476 (10th Cir. 2004)).
A prison official has the burden to prove an inmate’s failure to exhaust available
administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007). An inmate’s failure to follow
the required procedures of the prison’s administrative remedy process, including time limits, or
to exhaust all levels of administrative review is not “proper exhaustion” and will bar the claim.
Woodford v. Ngo, 548 U.S. 81, 90 (2006).

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.” Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Once
a defendant presents evidence of a failure to exhaust, the burden of proof shifts to the inmate to
show, by a preponderance of the evidence, that exhaustion occurred or administrative remedies
were unavailable through no fault of the inmate. See, e.g., Tuckel v. Grover, 660 F.3d 1249,
1254 (10th Cir. 2011).
Virginia Department of Corrections (“VDOC”) Operating Procedure (“OP”) 866.1,
“Offender Grievance Procedure,” provides the administrative remedies for inmates to resolve
complaints, appeal administrative decisions, and challenge policies and procedures. The process
provides correctional administrators means to identify potential problems and, if necessary,
correct those problems in a timely manner. All issues are grievable except issues about policies,
procedures, and decisions of the Virginia Parole Board; disciplinary hearing penalties and/or
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procedural errors; “State and Federal court decisions, laws, and regulations”; and other matters
beyond the VDOC’s control.
Inmates are oriented to the inmate grievance procedure when they enter the VDOC’s
custody and when they are transferred to other VDOC facilities. Prior to submitting a grievance,
the inmate usually 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 regular grievance within
thirty calendar days from the date of the occurrence or incident. Only one issue per regular
grievance may be addressed. Regular grievances may receive three levels of review. A facility’s
Warden or Superintendent conducts the first, “Level I” review. If the inmate is unsatisfied with
the Level I determination, the inmate may appeal the determination within five days of receipt to
Level II, which is usually done by a regional ombudsman. For most issues, Level II is the final
level of review.3 A Level I response must be issued within thirty days, and a Level II response
must be issued within twenty days. Expiration of the time limit without issuance of a response at
any stage of the process automatically entitles an inmate to appeal to the next level.
Abdul-Sabur acknowledged on two verified statements filed with the court that he did not
exhaust administrative remedies. In his first statement, Abdul-Sabur affirmed that the cause of
action arose at Red Onion but he was housed in Augusta and believed, erroneously, that he did
not have administrative remedies available. In his second statement, he affirmed the reverse –
the cause of action arose at Augusta but he was housed in Red Onion – and also that remedies
were no longer available because either the issue was nongrievable or because there was no
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For the few issues appealable to Level III, the inmate may appeal the Level II determination within five
days of receipt to the Deputy Director or Director of the VDOC.

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grievance procedure. Abdul-Sabur clarified this second statement in later filings, arguing in the
alternative that his issues were not grievable at all and that he exhausted remedies by filing an
Emergency Grievance.
Abdul-Sabur’s claim that the issues of this case were non-grievable lacks merit. His
lawsuit concerns the conditions of confinement he experienced as a consequence of various
actors’ decisions on where to house him. His claims fall squarely within the issues under the
VDOC’s control and to which OP 866.1 explicitly covers. For example, Abdul-Sabur contends
that this lawsuit concerns criminal matters and that criminal matters involving VDOC staff are
deemed “non-grievable” by OP 866.1. However, the OP excludes “court decisions, laws, and
regulations,” not criminal matters involving VDOC staff. More notably, grievable issues include
“[a]ctions of individual employees” and “[a]ny other matters relating to conditions of care or
supervision within the authority of the DOC which affect the grievant personally.”
Abdul-Sabur’s claim that filing one Emergency Grievance satisfies exhaustion also lacks
merit. On July 17, 2015, OP 866.1 was amended to specifically state in pertinent part:
An offender meets the exhaustion of remedies requirement only when a
Regular Grievance has been carried through the highest eligible level of
appeal without satisfactory resolution of the issue. . . . Submission of an
Emergency Grievance does not satisfy the exhaustion of remedies
requirement; the offender must submit the issue on a Regular Grievance if
not satisfied with the Emergency Grievance response. The exhaustion of
remedies requirement will be met only when the Regular Grievance has
been appealed through the highest eligible level without satisfactory
resolution of the issue.
OP 866.1 § IV.O.2.
Notably, the OP never allowed one Emergency Grievance to serve as a complete means
of exhausting the process described in the rest of the OP, either before or after that amendment.
Although the OP had previously been silent as to the distinction between an Emergency
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Grievance and a Regular Grievance for purposes of exhaustion, the fact the VDOC subsequently
disqualified a practice from exhaustion does not suggest that the practice previously qualified, by
silence, as exhaustion. Furthermore, the filing of an Emergency Grievance would not make the
Regular Grievance process unavailable or otherwise preclude an inmate from seeking informal
resolution, filing a Regular Grievance, or appealing an unfavorable disposition through available
levels of review.

This finding is supported by the OP, which acknowledges the different

purposes of a Regular Grievance and an Emergency Grievance. An Emergency Grievance is
designed to elicit lower-level prison staff’s response within eight hours to remedy an immediate
risk of serious personal injury or irreparable harm. Also, an Emergency Grievance is not
processed or appealed in a way that would provide notice to administrative staff, like a warden,
regional administrator, or a deputy director, which is an objective of OP 866.1.
Additionally, OP 866.1 allowed him to mail a Regular Grievance back to a former prison,
where it would have been processed the same as if it had been filed from within that prison.
Thus, remedies were not made unavailable on account of prison transfers.
The records reflects that Abdul-Sabur did not complete the process for administrative
review for his claims, and his arguments do not establish that administrative remedies were
unavailable through no fault of his own. Accordingly, defendants are entitled to summary
judgment because Abdul-Sabur failed to exhaust available administrative remedies.4

4

I note briefly that Abdul-Sabur sought to defer summary judgment per Federal Rule of Civil Procedure
56(d) because he had not yet received discovery requests to which defendants objected. None of the requests relate
to administrative remedies, and Abdul-Sabur has not established by affidavit that he cannot present facts essential to
justify his opposition on that basis. Therefore, I will not delay the disposition of this case based on 42 U.S.C.
§ 1997e(a). See, e.g., Fed. R. Civ. P. 26(b)(1) (noting discovery should be limited to relevant matters proportional to
the needs of the case).

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III.
For the reasons stated, I will grant defendants’ motion for summary judgment.
ENTER: This 14thday of September, 2017.
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