Harris v. Elam et al
Filing
46
OPIINION & ORDER granting in part and denying in part 32 Motion for Summary Judgment (Opinion and Order mailed to Pro Se Party). Signed by Judge James P. Jones on 2/19/2019. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ALEXANDER HARRIS,
Plaintiff,
v.
MARCUS ELAM, ET AL.,
Defendants.
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Case No. 7:17CV00147
OPINION AND ORDER
By: James P. Jones
United States District Judge
Alexander Harris, Pro Se Plaintiff; Margaret H. O’Shea, Office of the
Attorney General, Richmond, Virginia, for Defendants.
This prisoner civil rights action under 42 U.S.C. § 1983 is now before me on
the defendants’ Motion for Summary Judgment and the response thereto filed by
the pro se plaintiff, Alexander Harris. After review of the parties’ submissions and
evidence, I conclude that the defendants’ motion must be granted in part and
denied in part.
I. BACKGROUND.
In my previous opinion in this case, Harris v. Elam, No. 7:17CV00147,
2018 WL 1410419, at *1-2 (W.D. Va. Mar. 21, 2018), I summarized Harris’s
allegations about the defendants’ use of force in some detail and, thus, I offer only
a brief overview here. Harris claims that on June 5, 2016, while he was confined at
River North Correctional Center (“River North”), an officer confronted him about
having threatened to harm prison dogs if they bit him. Later, although Harris says
he was posing no threat, he was thrown to the ground, a K-9 was ordered to attack
and bite him, and he was kicked in the face and head. Harris claims he was then
dragged to another area of the prison, thrown on the ground, and punched and
kicked.
Harris also alleges that he tried to exhaust administrative remedies
concerning the officers’ assaults. He warned officials in his grievance documents
that if the grievances were not filed, he would name grievance officials as
defendants in a lawsuit. Because of this warning, Harris was found guilty of the
prison offense of threatening defendant Sheets and penalized with fifteen days of
disciplinary segregation and loss of all statutory good time (“SGT.”) Am. Compl.
Attach. 2, ECF No. 23-2. Other defendants upheld these findings during Harris’
disciplinary appeals.
Harris then filed this § 1983 action. Remaining at issue are the following
claims from his Amended Complaint: (1) on June 5, 2016, defendants Jackson,
Meadows, Lowe, Williams, and Morgan used excessive force against Harris or
failed to intervene; (2) defendant Sheets filed a disciplinary charge against Harris
in retaliation for his exercise of his constitutional right to file grievances, to free
speech, and to access the courts; and (3) defendants Blevins, MacVean, Dowell,
Walrath, and Elam deprived Harris of due process during the disciplinary
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proceedings and furthered the retaliation that Sheets instigated. As relief, Harris
seeks compensatory and punitive damages. On summary judgment, the defendants
contend that the excessive force claim must be dismissed because Harris failed to
exhaust administrative remedies properly before filing this action. They also argue
that Harris’s retaliation claim fails on the merits and that his due process claim is
barred because success on its merits would invalidate his term of confinement.
II. DISCUSSION.
A. The Summary Judgment Standard.
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.” Fed. R. Civ. P. 56(a). “Only 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 short, a motion for summary judgment should be granted when the
proof, taken in the form admissible at trial and resolving all factual doubts in
favor of the non-moving party, would lead a reasonable juror to but one
conclusion. Id. at 247-52. I must “view the facts and draw reasonable inferences
in a light most favorable” to Harris, as the nonmoving party. Shaw v. Stroud, 13
F.3d 791, 798 (4th Cir. 1994).
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The defendants have filed supporting affidavits and documentation.
Accordingly, to survive the defendants’ motion, Harris must present sufficient
evidence that could carry the burden of proof of his claims at trial. See Id. He
“may not rest upon the mere allegations or denials of his pleading, but must set
forth specific facts showing that there is a genuine [factual] issue for trial” on
which the jury could find in his favor.
Anderson, 477 U.S. at 248.1
“Unsupported speculation is not sufficient to defeat a summary judgment
motion.” Baber v. Hosp. Corp. of Am., 977 F.2d 872, 875 (4th Cir. 1992).
B. Exhaustion of Administrative Remedies.
The Prison Litigation Reform Act (“PLRA”) provides that a prisoner cannot
bring a civil action concerning prison conditions until he has first exhausted
available administrative remedies.
42 U.S.C. § 1997e(a).
This exhaustion
requirement is “mandatory,” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016), and
“applies to all inmate suits about prison life.” Porter v. Nussle, 534 U.S. 516, 532
(2002). To comply with § 1997e(a), an inmate must follow each step of the
established grievance procedure that the facility provides to prisoners and meet all
deadlines within that procedure. See Woodford v. Ngo, 548 U.S. 81, 90-94 (2006).
Even if the particular form of relief the inmate seeks in his lawsuit is not available
1
I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
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through the prison’s grievance proceedings, he must, nevertheless, exhaust
properly all available remedies under that procedure before bringing a civil action
in this court. Booth v. Churner, 532 U.S. 731, 741 (2001). The defendants bear
the burden of proving the affirmative defense that Harris failed to exhaust available
administrative remedies regarding his claims before filing suit. Jones v. Bock, 549
U.S. 199, 216 (2007).
The defendants argue that Harris did not exhaust available administrative
remedies regarding his excessive force claims before filing this lawsuit. In support
of this contention, they present an affidavit from River North Grievance
Coordinator B. Walls.
Operating Procedure (“OP”) 866.1 is the written administrative remedies
procedure that Virginia Department of Corrections (“VDOC”) inmates must follow
to comply with § 1997e(a). Mem. Supp. Mot. Summ. J. Ex. 1, Walls Aff. ¶ 4 and
Enclosure A, ECF No. 33-1. Under this procedure, an inmate with a grievance
about some event or issue must first make a good faith effort to resolve his
concerns informally, which he may do by completing an Informal Complaint form
and submitting it to prison’s Grievance Department. His form will be forwarded to
the appropriate department head for investigation. The inmate should receive a
written response on the bottom of the Informal Complaint form within fifteen days,
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so that he can use that form necessary to initiate the formal grievance procedure by
filing a Regular Grievance.
A Regular Grievance must be submitted within thirty days of the occurrence
about which it complains and may address only one issue. The inmate should
submit with the Regular Grievance along with the Informal Complaint and all
other records necessary to address his issue. The Regular Grievance is considered
to have been received on the working day when it is dated/date stamped by the
Grievance Department. After investigation of the Regular Grievance, the warden
or his designee will send the inmate a Level I response. If the responding official
determines the grievance to be unfounded, to satisfy exhaustion under § 1997e(a),
the inmate must appeal that holding to Level II, the regional administrator, and in
some cases, to Level III. Walls Aff. ¶ 8, ECF No. 33-1.
Walls states that based on a review of prison records, Harris did not file any
Informal Complaint form about the June 5, 2016 incidents. Id. at ¶ 10. In Harris’s
verified Complaint and in his affidavit in response to defendants’ motion, he states
that he did file Informal Complaint forms about the incidents on June 5, 2016, but
never received any response or answer. 2 The parties agree that Harris filed at least
2
Harris also states that he sent to the court copies of the Informal Complaint
forms about the excessive force allegations. See Resp. M. Summ. J. Harris Aff. ¶ 29,
ECF No. 41-1. While no such document appears in the record of this case, I have located
one Informal Complaint about the June 5, 2016, incident that Harris submitted with his
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three Regular Grievance forms about the June 5, 2016 incidents, all of which were
rejected at intake.
The following documents are contained in the record. Harris signed and
dated a Regular Grievance on June 30, 2016, stating his desire “to take charge of
assault out on” Officers Jackson and Lowe for excessive force involving an “attack
dog.” Id. at ¶ 11 and Enclosure B, ECF No. 33-1. This document did not include
the date of the alleged excessive force. Harris warned, “if you refuse to file my
grievance I have no choice, but to file a § 1983 civil action case to the court
nam[i]ng you as a defendant alone [sic] with Sgt. Jackson and C/O Lowe naming
you as a defendant den[y]ing me my constitutional rights to file a grievance.” Id.
at Enclosure B. This document also stated that Harris had previously filed an
Informal Complaint form and another Regular Grievance form about seeking
charges against these officers. It requested a receipt showing that the June 30
Regular Grievance had been filed and asked for review of the video. The June 30
Regular Grievance was rejected at intake because it complained about more than
one issue. Harris did not appeal this intake decision.
On July 4, 2016, Harris signed and dated a Regular Grievance about the use
of force by Jackson and Lowe on June 5, 2016. Walls Aff. ¶ 13 and Enclosure C,
ECF No. 33-1. Harris stated, “I will name you in my § 1983 and for what reason if
§ 1983 Complaint in an earlier action, Case No. 7:16CV00460, V.S. 5, ECF No. 2. I will
consider this document to be incorporated by reference into the current lawsuit.
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you won’t file my grievance so don’t claim this is more than one issue.” Id. at
Enclosure C. He also mentioned having filed a prior Informal Complaint form,
wanting to bring an assault charge, and wanting video reviewed.
K. Sheets
rejected this Regular Grievance for insufficient information because no Informal
Complaint Form was attached. Harris did not appeal this intake decision.
After his July 4, 2016, Regular Grievance was rejected, Harris resubmitted
it. Id. at ¶ 13 and Enclosure D, Ecf No. 33-1. The resubmitted Regular Grievance
was rejected on July 12, 2016, for providing insufficient information, for failing to
attach the Informal Complaint, and for being filed more than thirty days after the
incident. Harris did not appeal this intake decision.
Given this evidence, I find it to be undisputed that Harris did not properly
file a Regular Grievance within thirty days after the June 5, 2016, incidents that
included an attached Informal Complaint form, in compliance with OP 866.1.
Accordingly, I conclude that the defendants have established Harris’s failure to
exhaust administrative remedies as required under § 1997e(a).
However, an inmate may escape summary judgment under § 1997e(a) if he
states facts showing that the remedies under the established grievance procedure
were not “available” to him. Ross, 136 S. Ct. at 1859 (noting that circumstances
making prison grievance procedures unavailable “will not often arise”). Generally,
“an administrative remedy is not considered to have been available if a prisoner,
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through no fault of his own, was prevented from availing himself of it.” Moore v.
Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
Liberally construed, Harris’s submissions state that he filed Informal
Complaint forms and received no responses. If Harris could prove this allegation,
he might also prove that he was prevented, through no fault of his own, from
attaching a completed Informal Complaint form to the Regular Grievance he filed
on June 4, 2016. That Regular Grievance was timely filed and was rejected
because no Informal Complaint was attached.
The defendants rely on their
evidence that the Grievance Department had no record of receiving Informal
Complaint forms from Harris about the June 5, 2016, incidents,3 thus creating a
material dispute as to the issue of availability of the grievance procedures.
Accordingly, I will deny the defendants’ motion for dismissal of Harris’s excessive
force claims under § 1997e(a) and refer the matter to the magistrate judge for
further proceedings on exhaustion.4 Specifically, I find the following material
3
As stated, Harris received a disciplinary charge related to the threatening letter
he addressed to Ms. Sheets and attached to his resubmitted Regular Grievance. During
the disciplinary hearing on that charge, Harris claimed that he could not read or write,
and that another inmate had filed the grievances on his behalf and had written the letter.
The defendants contend that these statements preclude Harris from now claiming that he
filed the Regular Grievances in the record. I cannot find that these statements alone
resolve the exhaustion disputes for summary judgment purposes. Indeed, the disciplinary
hearing officer found Harris guilty of making the threat. Moreover, Walls’ affidavit
states that Harris submitted the Regular Grievance documents in the record.
4
As stated, the defendants bear the burden of proving the affirmative defense that
the plaintiff inmate failed to exhaust available administrative remedies regarding his
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disputes: (1) whether Harris filed one or more Informal Complaint forms about
the June 5, 2016, incidents; (2) what recourse he had if he never received a
response of any kind; 5 and (3) what information should have been omitted from
his Regular Grievance forms to have them considered as addressing only one issue.
C. The Retaliation Claim.
To state a cause of action under 42 U.S.C. §1983, the plaintiff must establish
that he has been deprived of rights guaranteed by the Constitution or laws of the
United States and that this deprivation resulted from conduct committed by a
person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
“Retaliation, though it is not expressly referred to in the Constitution, is
nonetheless actionable [under § 1983] because retaliatory actions may tend to chill
claims. Jones, 549 U.S. at 212. Once they have done so, the burden of proof shifts to the
plaintiff to show by a preponderance of the evidence that the administrative remedies
were unavailable to him through no fault of his own. Graham v. Gentry, 413 F. App’x
660, 663 (4th Cir. 2011) (unpublished) (citing Moore, 517 F.3d at 725). “The circuit
courts of appeals have uniformly found that a judge can resolve factual disputes
concerning exhaustion of administrative remedies under the PLRA.” Hill v. Haynes, No.
3:06-CV-136, 2014 WL 4197588, at *3 (N.D.W. Va. Aug. 22, 2014), aff’d, 591 F. App’x
223 (4th Cir. 2015) (unpublished). Such questions of law arising in prisoner civil rights
actions may be referred to a magistrate judge for factual development and preparation of
a report making proposed findings of fact, conclusions of law, and recommended
disposition of the issue. 28 U.S.C. § 636(b)(1)(B), (C).
5
OP 866.1(V)(A)(3) states that if an inmate does not receive a timely response to
an Informal Complaint form, he may, nevertheless, file a Regular Grievance and attach
an Informal Complaint receipt, instead of the Informal Complaint form itself. The parties
have provided no evidence that such receipts are issued at River North, when they are
issued, or what an inmate could do if he did not receive a timely receipt after submitting
an Informal Complaint form.
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individuals’ exercise of constitutional rights.”
Am. Civil Liberties Union v.
Wicomico Cty., 999 F.2d 780, 785 (4th Cir. 1993). Specifically, prison officials
may not retaliate against an inmate for exercising his constitutional right to access
the court, Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978), nor may they
take actions that violate his First Amendment “right to file a prison grievance free
from retaliation.” Booker v. S.C. Dep’t of Corr., 855 F.3d 533, 545 (4th Cir.
2017).
On the other hand, I must treat an inmate’s claim of retaliation by prison
inmates “with skepticism because every act of discipline by prison officials is by
definition retaliatory in the sense that it responds directly to prisoner misconduct.”
Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996).
[T]o state a colorable retaliation claim under Section 1983, a plaintiff
must allege that (1) he engaged in protected First Amendment
activity, (2) the defendant took some action that adversely affected his
First Amendment rights, and (3) there was a causal relationship
between his protected activity and the defendant’s conduct.
Martin v. Duffy, 858 F.3d 239, 249 (4th Cir. 2017), cert. denied, 138 S. Ct. 738,
(2018). “For purposes of a First Amendment retaliation claim under Section 1983,
a plaintiff suffers adverse action if the defendant’s allegedly retaliatory conduct
would likely deter a person of ordinary firmness from the exercise of First
Amendment rights.” Id.
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Three times Harris filed a Regular Grievance form about the use of force
incident on June 5, 2016. In the text on each of those forms, he stated his intention
to file a lawsuit and include as defendants whoever refused to file his grievance
form. These Regular Grievance forms were rejected as improperly filed — either
for covering more than one issue, for failing to attach an Informal Complaint form,
and/or for being untimely. Harris alleged in the Amended Complaint that Sheets
brought a disciplinary charge against him because of these statements about his
intended lawsuit. The uncontroverted evidence now in the record, however, cannot
support this claim.
When Harris resubmitted his second Regular Grievance form, attached to it
was a separate letter addressed to “Ms. Sheets.” Walls Aff. ¶ 13 and Enclosure D,
ECF No. 33-1. Both documents were stamped as received on July 12, 2016. The
letter stated, in part, verbatim:
Yes I am requesting my grievance receipt of this grievance
being file[d], and will be in my grievance file. I am faile [sic] a
§ 1983 civil action against these officers in this matter . . . if you are
not trying to be name with these defendants in my § 1983 claim for
refus[]ing to file my grievance. I ask that you file my grievances.
Id. The letter closed with “A. Harris” and listed his inmate number and housing
assignment. Id. The Regular Grievance was returned to Harris as improperly filed
because July 12 was more than thirty days after the incident about which it
complained and no Informal Complaint was attached.
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On July 12, 2016, Harris was served with a Disciplinary Offense Report
(“DOR”) under OP 861.1 that charged him with committing an offense code 112
— demanding or receiving anything of value under threat of any kind, including by
extortion or blackmail. On the DOR was this statement:
On 07-12-2016 . . . I, K. Sheets, received an envelope addressed to my
attention. Upon opening the envelope, inside was a demanding and
threating [sic] letter and grievance form from [Harris] insisting that I
violate VADOC procedure, 866.1, by processing his grievance that
does not meet intake specifications or he would file a civil claim
against me. Due to the threating [sic] nature of the letter this charge
was written.
V.S. 9, ECF No. 5. Defendant Blevins signed the DOR as the Officer-In-Charge,
and defendant MacVean conducted the disciplinary hearing. He found Harris
guilty of committing an offense code 112 and imposed penalties of fifteen days in
disciplinary segregation and “loss of ALL SGT – All.” Id. at 10. This referred to
statutory good time that Harris had already earned toward reducing his term of
confinement. Mem. Supp. Mot. Summ. J. Ex. 2, MacVean Aff. ¶ 15, ECF No. 332. Defendant Dowell, a Unit Manager, approved the disciplinary findings, as did
defendants Walrath, the River North Warden, and Elam, the Regional
Administrator.
I conclude from the evidence that Harris has established two of the elements
of his retaliation claim. Harris’s filing of grievances was an exercise of his First
Amendment rights. Martin, 858 F.3d at 249. Moreover, the disciplinary charge
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and subsequent penalties imposed on Harris were contemporaneous actions likely
to “deter a person of ordinary firmness” from further exercising his First
Amendment rights. Id.
I find no material fact in dispute, however, on which Harris could prove a
causal connection between his filing of grievances and the disciplinary charge, as
the required third element in the retaliation analysis.
On the contrary, the
disciplinary charge was expressly based on Harris’s threatening letter directed to
Sheets and not on the grievance that accompanied the letter. Sheets also states in
her affidavit that she brought the charge because of the threatening letter. Offense
Code 112 prohibits inmates from using a threat of any kind to demand something
of value. In the letter, Harris used the threat of a lawsuit as an attempt to obtain a
thing of value to him — to have Sheets file his resubmitted Regular Grievance,
even though she had already found that it did not comport with OP 866.1.
Although Harris made lawsuit-related comments in the Regular Grievances filed
on June 30 and July 4, 2016, undirected at any individual, those undirected threats
did not generate a disciplinary charge. Those grievances, as well as the Regular
Grievance resubmitted with the letter on July 12, 2016, were processed under the
OP 866.1 procedures and rejected for noncompliance with those procedures. On
these facts, Harris could not persuade a jury of a causal connection between his
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filing grievances and his disciplinary charge.
Accordingly, I will grant the
defendants’ Motion for Summary Judgment as to Harris’s retaliation claims.
D. The Due Process Claim.
“[A] state prisoner’s § 1983 action is barred . . . if success in that action
would necessarily demonstrate the invalidity of [that prisoner’s] confinement or its
duration,” unless the prisoner proves that the challenged criminal or disciplinary
conviction has been terminated in his favor. Wilkinson v. Dotson, 544 U.S. 74, 8182 (2005) (interpreting Heck v. Humphrey, 512 U.S. 477 (1994)); see also
Edwards v. Balisok, 520 U.S. 641, 647-48 (1997) (applying Heck to § 1983 claim
seeking restoration of good conduct time forfeited as penalty for prison
disciplinary conviction).
Thus, when an inmate’s § 1983 claim about a
disciplinary conviction, if successful, could shorten his term of imprisonment
through the restoration of forfeited good conduct time, the claim is barred under
Heck, unless he first proves that the conviction has been terminated in his favor,
through habeas proceedings or otherwise. If the plaintiff does not establish this
favorable termination element, his § 1983 claim for damages is premature, and
must be dismissed.
The record now establishes that because of the offense code 112 infraction,
Harris forfeited all his earned good conduct time. If he prevailed in claims that the
disciplinary proceedings violated due process, that result would imply that his term
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of confinement as currently calculated because of the forfeited good conduct time
is invalid. Harris offers no evidence that the disciplinary conviction has been
vacated in any administrative or habeas corpus proceeding. Accordingly, he is
barred from proceeding with any § 1983 claim that challenges the validity of that
conviction and the resulting penalties. Therefore, I will grant the defendants’
Motion for Summary Judgment as to Harris’s due process claims. 6
III. CONCLUSION
For reasons stated, it is hereby ORDERED as follows:
1.
The defendants’ Motion for Summary Judgment, ECF No. 32,
is GRANTED IN PART AND DENIED IN PART. The motion
is GRANTED as to Claims (2) and (3), alleging due process
and retaliation claims against defendants Sheets, Blevins,
MacVean, Dowell, Walrath, and Elam, and the clerk SHALL
terminate these persons as parties.
(Defendants Ponton,
McBride, and Kanode have previously been terminated as
parties by Order of March 21, 2018, ECF No. 29.) The motion
is DENIED at this time as to Claim (1), alleging excessive force
and bystander liability;
6
Harris mentioned due process in connection with the disciplinary proceedings
only in his initial Complaint, and not in the Amended Complaint. Because the so-called
Amended Complaint is more akin to a supplement to the initial Complaint, however, I
have elected to construe his submissions, as a whole, as raising a due process challenge.
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2.
The case is hereby REFERRED to the Honorable Pamela
Meade Sargent, United States Magistrate Judge, pursuant to 28
U.S.C. § 636(b)(1)(B), for conduct of further proceedings,
including an evidentiary hearing and preparation of a Report
and Recommendation, in order to resolve the dispute regarding
whether or not the established grievance procedures were
available to Harris.
ENTER: February 19, 2019
/s/ James P. Jones
United States District Judge
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