Webster v. Russell et al
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Robert S. Ballou on 9/20/2018. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
CHRISTOPHER TIMOTHY WEBSTER,
Plaintiff,
v.
BOBBY RUSSELL, et al.,
Defendants.
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Civil Action No. 7:16-cv-00487
MEMORANDUM OPINION
By:
Hon. Robert S. Ballou
United States Magistrate Judge
Christopher Timothy Webster, a Virginia inmate proceeding pro se, commenced a civil
rights action pursuant to 42 U.S.C. § 1983, naming three staff associated with the Western
Virginia Regional Jail (“Jail”) as defendants: Superintendent Bobby Russell, Lieutenant Colonel
Cox, and Major Amanda Trent. Plaintiff alleges that defendants were deliberately indifferent to
dangerous conditions of confinement. After the denial of their motion to dismiss, defendants
filed a motion for summary judgment, to which Plaintiff responded. For the following reasons, I
grant defendants’ motion for summary judgment.1
I.
Plaintiff alleges the following facts in his verified complaint:
I was made to use a toxic paint (Rustoleum spray-in bedliner) inside of a 12x12
guard booth with no ventilation and no respirator. I was exposed to it for 3 ½
hours, causing me to vomit blood and have uncontrolled muscle spasms with
on-going non-stop migraine headaches ever since. The guards in the booth at
the time also got sick and it prompted them to read the label on the paint can
which stated very clearly that it was toxic, was to only be used outdoors or in a
well ventilated area with outside access . . . and was not to be used w/out a
respirator . . . [or] be exposed to it for longer than 30 minutes. I asked the C.O.s
5 times for respiratory protection, and they even told the Sgt and Lt on duty
about my request, who ignored it completely. I also told them I was getting
progressively sicker over a 3 hour period which was ignored until the C.O.s
themselves got sick at which time they made us stop. I couldn’t breathe well
and my body was trembling badly. Plus, I had turned white with red splotches,
so I asked for medical attention, which was ignored until I started spitting and
vomiting blood, at which time a C.O. became worried and took me to medical
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The parties have consented to the disposition of this matter in accordance with 28 U.S.C. § 636(c)(1).
where I was given Tylenol and told to take the rest of the night off, and that was
all that was done even though I had an eighth of a trash bag filled with blood
and vomit.
Allegedly, Major Trent had approved the job and was disappointed that Plaintiff complained
about the job and its physical effects because “she was the one getting in trouble.” Major Trent
allegedly told Plaintiff that she had told staff to offer Plaintiff gloves and respirator masks for the
job. Liberally construed, Plaintiff also allegedly experienced retaliation for complaining about
these events because staff wanted to replace clothes that fit with clothes that did not. Plaintiff is
now an inmate in the Virginia Department of Corrections. He has been diagnosed with chemical
pneumonitis as a consequence of the job.
II.
Defendants filed a motion for summary judgment. A party is entitled to summary
judgment if the pleadings, the disclosed materials on file, and any affidavits show that there is no
genuine dispute as to any material fact. Fed. R. Civ. P. 56(a). Material facts are those necessary
to establish the elements of a party’s cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A genuine dispute of material fact exists if, in viewing admissible evidence and
all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a
reasonable fact-finder could return a verdict for the non-movant. Id. The moving party has the
burden of showing – “that is, pointing out to the district court – that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). If the movant satisfies this burden, then the non-movant must set forth specific facts that
demonstrate the existence of a genuine dispute of fact for trial.2 Id. at 322-24. A party is entitled
to summary judgment if the admissible evidence as a whole could not lead a rational trier of fact
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Plaintiff’s response to the motion for summary judgment consists of an unverified memorandum. Cf. 28
U.S.C. § 1736.
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to find in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
“Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis
v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A plaintiff cannot
use a response to a motion for summary judgment to amend or correct a complaint challenged by
the motion for summary judgment. Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).
III.
Defendants first argue that Plaintiff failed to exhaust administrative remedies as required
by 42 U.S.C. § 1997e(a). After reviewing the record, I find that defendants sufficiently establish
that that Plaintiff failed to exhaust available remedies.
The exhaustion requirement of 42 U.S.C. § 1997e(a) 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.; Dixon v. Page, 291 F.3d 485, 490-91 (7th
Cir. 2002). “[A]n 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). A defendant has the burden to prove an
inmate’s failure to exhaust available administrative remedies. Jones v. Bock, 549 U.S. 199, 216
(2007). Once a defendant presents evidence of a failure to exhaust, the burden of proof shifts to
the plaintiff to show, by a preponderance of the evidence, that exhaustion occurred or
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administrative remedies were unavailable through no fault of the plaintiff. See, e.g., Tuckel v.
Grover, 660 F.3d 1249, 1254 (10th Cir. 2011).
The Jail’s grievance policy required Plaintiff to first submit an Informal Grievance
Complaint Form that described the complaint and requested a grievance form. Plaintiff affirms
that he “has not filled out any grievances in this matter” but only because of “fear of retribution
from jail staff/administration as [he] ha[d] already been treated maliciously on several occasions
since the incident occurred.”
A conclusory allegation of retaliation is not persuasive. See Adams v. Rice, 40 F.3d 72,
74 (4th 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). Plaintiff’s allegation of a speculative fear neither demonstrates that
remedies were unavailable to him nor excuses his failure to comply with the exhaustion policy.
See, e.g., Waddell v. Pulley, No. DKC-15-3286, 2017 U.S. Dist. LEXIS 18954, at *19, 2017 WL
550033, at *7 (D. Md. Feb. 10, 2017) (collecting cases holding that a general fear of retaliation is
not sufficient to establish that remedies were unavailable); cf. Ross, 136 S. Ct. at 1856
(recognizing a court may not excuse a failure to exhaust available remedies, even to take into
account “special circumstances”). Moreover, Plaintiff cannot avoid summary judgment by
asserting he was ignorant of the exhaustion process or the exhaustion requirement. See, e.g.,
Adams v. Southwest Va. Reg’l Jail, No. 7:12cv462, 2014 U.S. Dist. LEXIS 106195, at *8, 2014
WL 3828392, at *3 (W.D. Va. Aug. 4, 2014) (collecting cases). “By the plain language of the
statute, exhaustion of administrative remedies is a precondition to the filing of a prisoner’s civil
rights action.” Wells v. Cain, 2008 U.S. Dist. LEXIS 12589, at *7, 2008 WL 474125, at *2
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(W.D. Va. Feb. 20, 2008). Accordingly, Plaintiff fails to establish that remedies were not
available, and defendants are entitled to summary judgment due to his failure to exhaust.
III.
For the foregoing reasons, I grant defendants’ motion for summary judgment.
Enter: September 19, 2018
/s/ Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge
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