Herron v. Duffield Jail

Filing 49

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 8/8/2019. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Roanoke Division
BRANDON LUKE HERRON,
Plaintiff,

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v.
BERLIN W. SKEEN, III,
Defendant.

Civil Action No. 7:17cv00560
MEMORANDUM OPINION

The plaintiff, Brandon Luke Herron, (“Herron”), an inmate formerly
incarcerated at the Southwest Virginia Regional Jail Authority, (“Jail”), in
Duffield, Virginia,1 and proceeding pro se, filed this civil rights action pursuant to
42 U.S.C. § 1983, alleging that the defendant, Berlin W. Skeen, III, a Jail
correctional officer, verbally threatened and assaulted him on October 30, 2017, in
violation of his Eighth Amendment rights. Herron seeks monetary damages.2 This
case is before the court on Skeen’s Motion For Summary Judgment And
Memorandum In Support, claiming Herron’s claim should be dismissed for failure
to exhaust his administrative remedies, (Docket Item No. 45) (“Motion”). Herron
did not respond to the Motion. Based on the evidence before the court, I will grant
the Motion and enter summary judgment in the defendant’s favor.

1

By letter received February 25, 2019, Herron informed the court that he had been
released from custody. (Docket Item No. 44.)
2

Herron also sought, in the alternative, “time on [his] charges gone.” However, Herron
has now been released from custody.
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I. Facts3
Although not critical to the court’s decision on the Motion, I will state a
summary of the facts underlying Herron’s lawsuit, as set out in the court’s
February 12, 2019, Amended Opinion And Order, found at Docket Item No. 43. In
his Complaint,4 Herron claims that Skeen assaulted him on October 30, 2017.
When Herron’s claims arose, he was confined at the Jail’s Duffield, Virginia,
facility. On October 30, 2017, another inmate told Herron that the defendant,
Officer Berlin W. Skeen, III, had dared Herron “to flood [his] cell” during pill call.
(Docket Item No. 37.) As Skeen came by, Herron got on the floor of his cell and
yelled under the door, “Fuck you, Skeen. Go kill yourself.” (Docket Item No. 37.)
Another officer told Herron to pack his things because he was going to “the hole.”
(Docket Item No. 37.) Herron thought the officer was joking with him, as officers
often did, and said, “[Y]ou are full of shit and … I’m not going to the hole. I
didn’t do anything wrong.” (Docket Item No. 37.) Herron then went to pill call.
Skeen told him again to pack his things to go to the hole. Still thinking that the
officers were joking, Herron said, “Fuck you, no, fuck off.” (Docket Item No. 37.)
Then, Sgt. Rhymer ordered Herron to pack his things. Eventually, Herron
went to pack his property, although he continued complaining. Skeen followed
3

On a motion for summary judgment, the court may review a number of materials to
determine whether a genuine dispute of any material fact exists, including sworn testimony,
affidavits, sworn pleadings, discovery responses and other materials contained in the record. See
FED. R. CIV. P. 56(C).
4

Herron’s Original Complaint named the Jail and the Duffield facility as defendants.
The court dismissed it for failure to state a claim. However, the court also granted Herron an
opportunity to amend to identify a proper defendant. Thereafter, Herron named Skeen as the
defendant to the allegations contained in the Original Complaint. (Docket Item Nos. 19, 37.)
This Amended Complaint will be considered, along with the Original Complaint, in deciding the
Motion. Collectively, they will be referred to as the Complaint.
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him. In his cell, Herron finished drinking a cup of coffee and threw it at his bunk
in the back of the cell. Then he turned around to face Skeen, who said, “I told you
to give me the chance and I will put you in the hole.” (Docket Item No. 37.)
Skeen also called Herron obscene names. Herron then said, “Fuck you Pussy, if
you want to fuck me up so bad, then let’s get it.” (Docket Item No. 37.) Herron
tried to turn back to his packing. Before he could do so, Skeen entered the cell,
pushed Herron into the bunk, hit him in the face, pushed him to the ground and
began “stomping [Herron’s] entire body.” (Docket Item No. 37.) Herron says he
“pass[ed] out due to the pain on [his] back.” (Docket Item No. 37.) As Herron
came to, bleeding from his face, he saw Rhymer enter the cell and pull Skeen
away. Virginia State Troopers came to the Duffield facility, took pictures and
prepared reports. No criminal charges were filed.
On both Herron’s Original Complaint and his Amended Complaint form, he
checked the box indicating that he had not filed any grievances regarding the facts
of those Complaints. (Docket Item No. 1 at 1; Docket Item No. 19 at 1.) In a
statement attached to his Original Complaint, Herron stated that he did not exhaust
the grievance process because he was moved to another jail, preventing him from
being able to file the grievance paperwork to exhaust all avenues of the grievance
process. (Docket Item No. 1 at 5.)
As stated above, Herron did not respond to the Motion. This failure to
respond leaves uncontroverted those facts relied upon by the defendant in the
Motion. See In re Fisherman’s Wharf Fillet, Inc., 83 F. Supp. 2d 651, 654 (E.D.
Va. 1999). However, the defendant still bears the burden of showing that the
uncontroverted facts entitle him to judgment as a matter of law. See Fisherman’s
Wharf, 83 F. Supp. 2d at 654. “Thus, the Court, in considering a motion for
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summary judgment, must review the motion, even if unopposed, and determine
from what it has before it whether the moving party is entitled to summary
judgment as a matter of law.” Fisherman’s Wharf, 83 F. Supp. 2d at 654 (quoting
Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993)). In support of his
Motion, the defendant has supplied a sworn affidavit from Jeannie Patrick, the
Administrative Lieutenant at the Jail. (Docket Item No. 45-1, Affidavit of Jeannie
Patrick, (“Patrick Affidavit”)). Patrick stated that, as Administrative Lieutenant,
she was familiar with the Jail’s procedures and policies, including the
Administrative Redress Program, also known as the Grievance Procedure. (Patrick
Affidavit at 1.) She further stated that she had access to inmate records regarding
grievances and appeals under the Grievance Procedure. (Patrick Affidavit at 1.)
Patrick stated that the Jail’s Grievance Procedure is outlined in the Inmate
Handbook, which was attached as Exhibit 1 to her Affidavit. (Patrick Affidavit at
1.) Patrick stated that all Jail inmates, including Herron, are oriented as to this
Grievance Procedure and how to access the Inmate Handbook when they are
received at a Jail facility, including transfers between Jail facilities.

(Patrick

Affidavit at 1.)
Patrick stated that the Jail’s Grievance Procedure requires an inmate to first
make a good faith attempt to resolve his issue through informal channels. (Patrick
Affidavit at 1.) If this does not resolve the issue, the inmate must file a grievance
within seven days of the alleged occurrence, she said. (Patrick Affidavit at 1.) A
response to an inmate grievance will be given within nine days, and if an inmate is
dissatisfied by a response, she said, the inmate must appeal in writing within seven
days of receiving the response. (Patrick Affidavit at 1-2.) A review of the Inmate
Handbook, attached as Exhibit 1 to Patrick’s Affidavit, shows that it contains the
following concerning the Jail’s Grievance Procedure:
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1.
2.

3.

4.

… There are four steps in filing a grievance:
You must make a good faith attempt to resolve the issue
through informal channels by use of a Request Form or Medical
Request Form which are located on the Kiosk, where available.
You may file a grievance upon dissatisfaction in the answer to
the request form within 7 days of the occurrence. A grievance
may be submitted on the Kiosk where available. If the Kiosk is
not accessible, the inmate may be given a grievance form. All
prerequisites of the grievance procedure must be exhausted
prior to filing the grievance. The inmate shall place the
grievance in the designated area for outgoing mail. If the issue
is an emergency, it may be forwarded to the Shift Commander.
If the Shift Commander finds the grievance to not be an
emergency, then he/she will indicate said finding and forward[]
[it] to the Grievance Officer.
The validity of the grievance will be reviewed to determine if it
meets the definition of a grievance and if proper informal
resolution attempts have been made. If it is not valid, it will be
returned to you within nine (9) days of receipt stating the
reason it is not valid. If your grievance is valid, there shall be a
written finding returned to you for every submitted
grievance form within nine (9) days of receipt.
When you receive a response to a grievance and [are] not
satisfied, you may appeal the result, in writing, within 7 days
of receipt of the response, to the Chief of Security, who will
process the appeal.

(Docket Item No. 45-2 at 27-28) (emphasis in original). The Inmate Handbook
does not list a time period for a response to request forms or medical request
forms. Patrick stated that the Jail operates four detention facilities, and a grievance
filed at one of these facilities regarding an issue at another facility is addressed in
the same manner as though the inmate were at the offending facility. (Patrick
Affidavit at 1, 2.) In other words, regardless of the Jail facility in which an inmate
is housed, the Grievance Procedure is available to address issues that arise at any
other Jail facility. (Patrick Affidavit at 2.)
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Patrick stated that a review of Herron’s inmate grievance file showed that
Herron did not properly exhaust his administrative remedies as to Skeen’s alleged
October 30, 2017, assault and threats, in that Herron did not file any grievance
related to these events. (Patrick Affidavit at 2.) According to Patrick, Herron did,
however, file other informal and formal grievances, all of which were unrelated to
the subject matter of his current litigation, during the same timeframe as the
alleged assault by Skeen, thus demonstrating that he was familiar with and able to
avail himself of the Grievance Procedure. (Patrick Affidavit at 2.) As noted
above, Herron alleged in his Complaint that he could not properly exhaust
administrative remedies under the Jail’s Grievance Procedure because he was
transferred to another Jail facility.5 Also as stated above, Herron has not responded
to Skeen’s Motion.
II. Analysis
With regard to a motion for summary judgment, the standard for review is
well-settled. The court should grant summary judgment only when the pleadings,
responses to discovery and the record reveal that “there is no genuine dispute as to
any material fact and the movant is entitled to a judgment as a matter of law.”
FED. R. CIV. P. 56(a); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A
genuine issue of fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
5

A review of the docket reveals that, by the time Herron filed his Original Complaint in
December 2017, he was housed at the Jail’s Haysi, Virginia, facility. (Docket Item No. 1-1.)
There is no evidence in the record that Herron was transferred to any other facility between his
incarceration at the Duffield facility and the Haysi facility.
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considering a motion for summary judgment, the court must view the facts and the
reasonable inferences to be drawn from the facts in the light most favorable to the
party opposing the motion. See Anderson, 477 U.S. at 255; Matsushita, 475 U.S. at
587. In order to be successful on a motion for summary judgment, a moving party
"must show that there is an absence of evidence to support the non-moving party's
case" or that "the evidence is so one-sided that one party must prevail as a matter
of law." Lexington-South Elkhorn Water Dist. v. City of Wilmore, Ky., 93 F.3d 230,
233 (6th Cir. 1996). When a motion for summary judgment is made and is properly
supported by affidavits, depositions or answers to interrogatories, the nonmoving
party may not rest on the mere allegations or denials of the pleadings. See Oliver
v. Va. Dep’t of Corrs., 2010 WL 1417833, at *2 (W.D. Va. Apr. 6, 2010) (citing
FED. R. CIV. P. 56(e)). Instead, the nonmoving party must respond by affidavits or
otherwise and present specific facts from which a jury could reasonably find for
either side. See Anderson, 477 U.S. at 256-57.
The Prison Litigation Reform Act of 1995, (“PLRA”), requires a prisoner to
exhaust any available administrative remedies before challenging prison conditions
in federal court. See 42 U.S.C.A. § 1997e(a) (West 2012). It provides as follows:
“No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, 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.A. § 1997e(a). Exhaustion is mandatory under § 1997e(a),
and courts have no discretion to waive the requirement. See Woodford v. Ngo, 548
U.S. 81, 85 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)); Porter v.
Nussle, 534 U.S. 516, 524 (2002). “[F]ailure to exhaust is an affirmative defense
under the PLRA” and, therefore, must be both pled and proven by the defendants.
Jones v. Bock, 549 U.S. 199, 216 (2007). A prisoner must exhaust administrative
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remedies even where the relief sought, such as monetary damages, cannot be
granted by the administrative process. See Woodford, 548 U.S. at 85 (citing Booth,
532 U.S. at 734). The Supreme Court has instructed that the PLRA “requires
proper exhaustion.” Woodford, 548 U.S. at 93. Proper exhaustion of administrative
remedies for PLRA purposes means using all steps that the agency holds out, and
doing so properly, so that the agency addresses the issues on the merits. See
Woodford, 548 U.S. at 90. Therefore, in order to satisfy the exhaustion
requirement, the inmate must file a grievance raising the claim and pursue the
grievance through all available levels of appeal, prior to bringing his action to
court. See Woodford, 548 U.S. at 90.
All of this being said, then, before Herron may proceed with his claim in this
court, he must first have exhausted the administrative remedies available to him
through the Jail’s Grievance Procedure. “[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).
Based on the evidence before the court, I find that there is no genuine
dispute of material fact, and that, based on these undisputed facts, Herron did not
properly exhaust his administrative remedies before filing suit. The undisputed
facts before the court show that, to fully exhaust all administrative remedies
available under the Jail’s Grievance Procedure, a Jail inmate must, after first
attempting to exhaust informal measures to remedy his complaint, file a written
grievance within seven days of the aggrieving event. Herron has conceded that he
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did not file any grievance within seven days of the alleged October 30, 2017,
assault by Skeen, nor did he ever do so. Also, the court may not excuse a prisoner
from the requirement that he utilize all available administrative remedies before
filing suit. See Woodford, 548 U.S. at 85 (emphasis added). Although Herron
claimed that he did not file any grievances because he was transferred to another
facility, thereby making it impossible for him to do so, Patrick stated in her sworn
Affidavit that an inmate may file a grievance, based on incidents at one Jail
facility, at any of the other three Jail facilities, and it will be treated in a manner as
though it were filed at the facility were the incident complained of occurred. The
docket sheet reveals that Herron was transferred from the Duffield facility to the
Haysi facility, two of the four jails comprising the Southwest Virginia Regional
Jail Authority system. Therefore, to the extent that Herron’s statement may be
construed as an argument that the Grievance Procedure was unavailable to him, I
am not persuaded. As stated above, “[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, 517 F.3d at 725. “[W]hen prison officials
prevent inmates from using the administrative process …, the process that exists on
paper becomes unavailable in reality.” Kaba, 458 F.3d at 684. Here, there is
undisputed evidence that Herron was aware of the Jail’s Grievance Procedure and
that he had utilized it with respect to issues unrelated to the facts underlying the
merits of his current lawsuit around the same time period as he alleges that Skeen
assaulted him on October 30, 2017. The defendant has provided evidence from
Patrick, the Administrative Lieutenant at the Jail, that Herron was oriented to the
Grievance Procedure and how to obtain a copy of it when he was booked into the
Duffield facility. According to Patrick’s sworn Affidavit, Herron also would have
been oriented to it when he was transferred to the Haysi facility. Thus, any failure
to avail himself of the Grievance Procedure, was Herron’s own fault, not that of
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prison officials. Likewise, I find that prison officials did not prevent Herron from
using the Grievance Procedure. All of this being the case, I find any argument by
Herron that the Grievance Procedure was unavailable to him due to his transfer to
another Jail facility, unpersuasive.
Based on the above, I will enter summary judgment in the defendant’s favor.
ENTERED: August 8, 2019.

Pamela Meade Sargent

/s/
UNITED STATES MAGISTRATE JUDGE

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