Harris v. Elam et al

Filing 62

OPINION and ORDER ADOPTING REPORT AND RECOMMENDATIONS for 54 Report and Recommendations; overruling objections and dismissing with prejudice Plaintiff's Eighth Amendment claims of excessive force and bystander liability. Signed by Judge James P. Jones on 4/30/2020. (Opinion and Order mailed to Pro Se Party via US Mail)(slt)

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 1 of 10 Pageid#: 744

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ALEXANDER HARRIS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
MARCUS ELAM, ET AL.,
Defendants.

Case No. 7:17CV00147
OPINION AND ORDER
By: James P. Jones
United States District Judge

Alexander Harris, Pro Se Plaintiff; Margaret H. O’Shea, Assistant Attorney
General, Office of the Attorney General of Virginia, Richmond, Virginia, for
Defendants.
This matter is before me on the Report and Recommendation (“Report”)
prepared by United States Magistrate Judge Pamela Meade Sargent and the
objections thereto. After review of these documents and de novo review of the
pertinent portions of the Report and the transcript of the evidentiary hearing, I
conclude that the factual findings of the Report must be adopted and that the claims
against the defendants must be dismissed with prejudice for failure to exhaust
administrative remedies.
I.
A prisoner cannot bring a civil action concerning prison conditions until he
has first exhausted available administrative remedies. 42 U.S.C. § 1997e(a). To
comply with § 1997e(a), an inmate must follow each step of the established

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 2 of 10 Pageid#: 745

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). 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).
Plaintiff Alexander Harris, an inmate proceeding pro se, filed this civil rights
action under 42 U.S.C. § 1983. He alleged that on June 5, 2016, while he was
confined at River North Correctional Center, the defendants used or failed to prevent
excessive force against him and thereafter, retaliated against him for filing
grievances and denied him due process during disciplinary proceedings.

The

defendants moved for summary judgment, in part, under 42 U.S.C. § 1997e(a), and
Harris responded, making the matter ripe for disposition.
The grievance procedures that Harris, as an inmate of the Virginia Department
of Corrections (“VDOC”) was required to exhaust, are undisputed. Under VDOC
Operating Procedure (“OP”) 866.1, 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 the
prison’s Grievance Department. Within two days, the inmate should receive a
receipt, indicating that his Informal Complaint form has been received, assigned a
tracking number, and entered into the VDOC computer system. His form will be
-2-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 3 of 10 Pageid#: 746

forwarded to the appropriate department head for investigation. Within fifteen days,
the inmate should receive a written response on the bottom of the Informal
Complaint form, so that he can use that form 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, the Informal Complaint and all other records
necessary to address his issue. If his Informal Complaint is not returned to him with
a written response, he may attach his receipt to the Regular Grievance as evidence
of his attempt to informally resolve his issue. 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.
I previously granted summary judgment as to Harris’s claims of retaliation
and due process violations. Harris v. Elam, No. 7:17CV00147, 2019 WL 691791,
at *6 (W.D. Va. Feb. 19, 2019). I denied summary judgment, however, on the
defendants’ argument that Harris’s excessive force and bystander liability claims
should be dismissed under 42 U.S.C. § 1997e(a) for failure to exhaust administrative
remedies. Id. at *2–4. While I found the defendants’ evidence to be undisputed that
-3-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 4 of 10 Pageid#: 747

Harris did not properly file a Regular Grievance about the June 5, 2016, incident, I
found material disputes of fact concerning whether the prison’s grievance
procedures were available to Harris. Id. at *3-4. I referred the matter to Judge
Sargent for appropriate proceedings, pursuant to 28 U.S.C. § 636(b)(1)(B), for
resolution of the following material disputes:
(1) whether Harris filed one or more Informal Complaint forms about
the June 5, 2016, incident[]; (2) what recourse he had if he never
received a response of any kind; and (3) what information should have
been omitted from his Regular Grievance forms to have them
considered as addressing only one issue.
Id. at *4 (footnote omitted).
After hearing the parties’ evidence on exhaustion, Magistrate Judge Sargent
filed her Report, finding that the prison grievance procedures were not unavailable
to Harris. Specifically, she found Harris’s testimony — about filing two, timely
Informal Request forms regarding the June 5, 2016, excessive force incident —
lacked credibility, based on inconsistencies in his testimony and exhibits. She also
noted that when he failed to receive a receipt for these alleged filings, he could have,
but admittedly did not, make verbal or written requests about their status, despite
evidence that such steps were available to him. Finally, Judge Sargent found that
Harris could have had his timely Regular Grievance of June 30, 2016, accepted for
processing if he had followed directions and focused only on the alleged excessive
force incident. The Regular Grievance form itself states that the inmate should
-4-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 5 of 10 Pageid#: 748

address only one issue.

Instead, in his Regular Grievance, Harris not only

complained about excessive force, but also expressed his desire to bring assault
charges against the defendants and complained that the Grievance Department was
violating his due process rights. In addition, Judge Sargent noted that Harris had
failed to appeal the intake decision rejecting his Regular Grievance for raising more
than one issue, thus failing to utilize another recourse available to him to have his
filing considered.
II.
Harris has demanded a jury trial as to the merits of his underlying § 1983
claims against the defendants. It is well established, however, that “judges may
resolve factual disputes relevant to the exhaustion issue without the participation of
a jury.”1 Woodhouse v. Duncan, 741 F. App’x 177, 178 (4th Cir. 2018) (quoting
Small v. Camden Cty., 728 F.3d 265, 271 (3d Cir. 2013)). In a bench trial, such as
Judge Sargent conducted on the exhaustion issue in this case, the plaintiff carries the
burden of proof by a preponderance of the evidence.2 In re Winship, 397 U.S. 358,

1

I have omitted internal alterations, quotation marks, and/or citations here and
throughout this Opinion, unless otherwise noted.
2

Relying on the recommended factual finding in the Report, Judge Sargent
recommends granting summary judgment for the defendants. Because I have already
denied summary judgment on the issue of exhaustion, however, I will treat the hearing that
Judge Sargent conducted as a bench trial, applying the preponderance of the evidence
standard during my de novo review of the factual findings she recommends, Harris’s
objections, and pertinent parts of the testimony presented at the trial.
-5-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 6 of 10 Pageid#: 749

371 (1970). The burden of showing something by a preponderance of the evidence
requires persuading “the trier of fact to believe that the existence of a fact is more
probable than its nonexistence.” Id. Thus, for Harris to avoid dismissal of his claims
for failure to exhaust, I must be persuaded that it is more likely than not that he was
prevented, through no fault of his own, from pursuing each step of the VDOC
grievance procedure, such that it was unavailable to him.
Judge Sargent found that Harris had not presented credible evidence showing
that these procedures were unavailable to him. The magistrate judge makes only a
recommendation to this court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976).
The court is charged with making “a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). Although the district court may give a magistrate
judge’s proposed findings and conclusions “such weight as [their] merit commands
and the sound discretion of the judge warrants,” the authority and the responsibility
to make an informed final determination of these matters remains with the district
judge. United States v. Raddatz, 447 U.S. 667, 682–83 (1980). Therefore, in
performing a de novo review, the district judge must exercise “his non-delegable
authority by considering the actual testimony, and not merely by reviewing the
magistrate’s report and recommendations.” Wimmer v. Cook, 774 F.2d 68, 76 (4th
Cir. 1985).
-6-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 7 of 10 Pageid#: 750

Harris has filed timely objections to the Report. After careful consideration
of these objections and de novo review of the parts of the Report and the record to
which they refer, I conclude that they must be overruled.
Harris first asserts that the court erred in denying him court-appointed counsel
for the evidentiary hearing. He claims that he has a learning disability, a ninth-grade
education, and mental health issues, and that all of his pleadings have been produced
by other inmates acting in his stead. He blames any issues of credibility during the
evidentiary hearing on the effects of his mental health medications, which include
confusion and memory lapses. Harris mentioned none of these problems in his
motion seeking appointment of counsel, however. He also made no mention of them
to Judge Sargent during the hearing, and his alleged disabilities are not suggested by
his testimony at that proceeding.
Harris claims that confusion caused by his medication prevented him from
explaining that after the June 5, 2016, incident, he was not immediately placed on
strip cell status. He claims to have filed an Informal Complaint form on June 6,
2016, that he dated June 5, 2016, for unexplained reasons, and an Informal
Complaint form dated June 8, 2016. Harris alleges that in retaliation for these filings,
officials thereafter placed him on strip cell status for fifteen days, during which time
he had no access to the grievance procedures. This timing clarification does not
significantly undermine Judge Sargent’s finding on the totality of the evidence
-7-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 8 of 10 Pageid#: 751

presented that his claim of properly and timely filing these Informal Complaint
forms is simply not credible.
Harris also objects to the Report’s finding that he failed to lodge verbal or
written requests for assistance when he failed to receive a receipt for, or a response
to, each of his alleged Informal Complaint forms. The defendants testified that
inmates could use these procedures to investigate lack of a receipt or a response.
Harris complains that OP 866.1 does not require inmates to take such measures. I
agree that his failure to make verbal or written complaints, alone, does not constitute
noncompliance with the exhaustion requirement in § 1997e(a). The absence of such
evidence does, however, undermine the credibility of his contention that the required
grievance procedures were unavailable to him through no fault of his own.
In a similar vein, Harris complains that his lack of counsel prevented him from
calling witnesses who could have testified about receiving and passing along his
Informal Complaints, which he properly entrusted to them for conveyance to the
Grievance Department. He asserts that Judge Sargent should have recognized his
lack of legal acumen and remedied it by allowing him to obtain such testimony.
Harris made no such argument during the hearing, however. Moreover, even if
witnesses testified to receiving his Informal Complaint forms, I conclude that
Harris’s failure to investigate the status of his forms, after he submitted them and
received no receipts, undermines the credibility of his claim that “he did everything
-8-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 9 of 10 Pageid#: 752

humanly possible and reasonable to diligently exhaust his available administrative
remedies,” but the actions of prison officials made them unavailable. Obj. 6, ECF
No. 58.
I have carefully reviewed Harris’s objections, the Report, and pertinent parts
of the record. I have also conducted de novo review of the witness testimony as
reflected in the unchallenged transcript of the bench trial evidence. I conclude that
the evidence presented supports the magistrate judge’s factual findings that Harris
did not properly exhaust the required steps of the administrative remedies and that
those remedies were not unavailable to him. Thus, I will overrule Harris’s objections
to Judge Sargent’s factual findings as outweighed or discredited by other evidence
in the record. Rather, I conclude that Harris has failed to prove by a preponderance
of the evidence that administrative remedies were unavailable to him. As I find no
evidence that Harris could now begin the exhaustion process anew, I will dismiss
his claims with prejudice as barred by his noncompliance with 42 U.S.C. § 1997e(a).
III.
For the reasons stated in this Opinion, it is hereby ORDERED as follows:
1.

The Objections by Plaintiff are OVERRULED;

2.

The factual findings of the Report, ECF No. 54, are hereby
ADOPTED, as supplemented by this Opinion; and

-9-

Case 7:17-cv-00147-JPJ-PMS Document 62 Filed 04/30/20 Page 10 of 10 Pageid#: 753

3.

The Plaintiff’s Eighth Amendment claims of excessive force and
bystander liability are hereby DISMISSED WITH PREJUDICE,
based on his failure to exhaust available administrative remedies,
as required under 42 U.S.C. § 1997e(a).

A final judgment in favor of the defendants will be entered forthwith.
ENTER: April 30, 2020
/s/ JAMES P. JONES
United States District Judge

-10-