Bacon v. Curry et al
Filing
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OPINION & ORDER granting in part and denying in part 12 Motion for Summary Judgment; The motion is GRANTED as to they bystander liability claims against defendants Collins, Byington, and Harris, and the clerk SHALL terminate these persons as parties. The motion is DENIED as to the excessive force claims against defendant Curry (Opinion and Order mailed to Pro Se Party). Signed by Judge James P. Jones on 6/10/2019. (tvt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
ADRIAN N. BACON,
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Plaintiff,
v.
J. CURRY, ET AL.,
Defendant.
Case No. 7:18CV00262
OPINION AND ORDER
By: James P. Jones
United States District Judge
Adrian N. Bacon, Pro Se Plaintiff; Laura E. Maughan, Office of the Attorney
General, Richmond, Virginia, for the Defendants.
Adrian N. Bacon, a Virginia inmate proceeding pro se, filed this civil action
under 42 U.S.C. § 1983, alleging that prison officials used excessive force against
him. After review of the record, I conclude that Bacon is barred from pursuing
some of his claims because he failed to exhaust his administrative remedies before
filing this action.
I.
Bacon makes the following factual claims in his sworn Complaint, which I
must accept as true for the present purposes. On May 17, 2018 at Wallens Ridge
State Prison (“Wallens Ridge”), Bacon banged on his cell door to get the attention
of a correctional officer.
Defendants Curry, Byington, Collins, and Harris
approached to speak with Bacon, who had his arm resting across the open tray slot.
He asked to speak to a supervisor, but the officers refused this request. Curry and
Byington removed their canisters of OC spray and threatened to “gas” Bacon. 1
Compl. 1, ECF No. 1. Bacon told them that they could not gas him for wanting to
speak to a supervisor. Curry then kicked the tray slot door closed on Bacon’s arm
approximately four times and sprayed Bacon with OC gas. “Collins, Byington,
and Harris stood by without interfering to stop their co-worker from assaulting”
Bacon. Id.
Bacon’s § 1983 Complaint names all four officers as defendants.
He
contends that Curry used excessive force against him, while the others stood by
and failed to intervene to prevent Curry’s unconstitutional actions. As relief, he
seeks monetary damages and injunctive relief providing him a transfer.
The defendants have filed a Motion for Summary Judgment on the ground
that Bacon failed to exhaust administrative remedies properly before filing this
action. See 42 U.S.C. § 1997e(a). Bacon has responded to their motion, making it
ripe for disposition.
II.
The Prison Litigation Reform Act (“PLRA”) provides that a prisoner cannot
bring a civil action concerning prison conditions until he has first exhausted
1
OC spray is a chemical agent and irritates the eyes, throat, and nose. See, e.g.,
Park v. Shiflett, 250 F.3d 843, 849 (4th Cir. 2001) (describing the physiological effects of
OC spray).
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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).
The defendants contend that Bacon did not exhaust available administrative
remedies before filing this lawsuit. In support of this argument, they present an
affidavit from Wallens Ridge Human Rights Advocate B. Ravizee, who is
responsible for maintaining grievance files on inmates there.
Operating Procedure 866.1 is the written administrative remedies procedure
that VDOC inmates must follow to comply with § 1997e(a). Mem. Supp. Mot.
Summ. J., Ravizee Aff. ¶ 4 & Enclosure A, ECF No. 13-1. 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 — by completing an Informal Complaint
form and submitting it to prison staff. Id. ¶ 6. He should receive a written
response on the bottom of the Informal Complaint form within fifteen days, in
order to allow him to initiate the formal grievance procedure by filing a Regular
Grievance within thirty days of the occurrence about which he complains. Id.
After investigation of the Regular Grievance, the warden or his designee will send
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the inmate a Level I response. Id. ¶ 8. If the responding official determines the
grievance to be unfounded, to complete the exhaustion process, the inmate must
appeal that holding to the regional administrator for a Level II response, and in
some cases, to Level III. Id.
The defendants bear the burden of proving the affirmative defense that
Bacon failed to exhaust available administrative remedies regarding his claims
before filing suit. Jones v. Bock, 549 U.S. 199, 216 (2007). In Ravizee’s review of
Bacon’s grievance file for administrative remedy forms related to the allegations in
this lawsuit, none of Bacon’s recorded administrative remedy forms complained
that Collins, Byington, and Harris failed to intervene to stop Curry’s actions
against Bacon on May 17, 2018. See Ravizee Aff. ¶¶ 11-12, ECF No. 13-1.
Ravizee’s search did reflect that Bacon submitted Informal Complaint
WRSP-18-INF-01192, dated May 17, 2018. Id. ¶ 11 & Enclosure B. Bacon
complained that he is asthmatic, but Curry kicked the tray slot door closed on his
arm and used OC gas on him without first seeking medical approval. Bacon also
filed Informal Complaint WRSP-18-INF-01275, dated May 20, 2018. Id. ¶ 12 &
Enclosure C. In it, he complained that Curry should be written up for bringing
disciplinary charges against Bacon for the incident on May 17, 2018, 2 when it was
2
Defendants present evidence that after the incident on May 17, 2018, Bacon
received five disciplinary charges: disobeying a direct order (two charges), tampering
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Curry who assaulted Bacon that day. Id. Unit Manager Collins received and
logged both of Bacon’s Informal Complaint forms.
On May 31, 2018, Lieutenant K. M. Fleming spoke with Bacon to resolve
the Informal Complaints. According to Fleming, “Bacon was cooperative during
the meeting and admitted to [Fleming] that he was disruptive and had dislodged
that tray slot from the cell door on May 17, 2018.” Id. at Fleming Aff. ¶ 8, ECF
No. 13-2.
Given the staff’s incident reports and video documentation of the
incident on May 17, 2018, Fleming told Bacon that he did not believe the
responses to the Informal Complaints would be favorable to Bacon.
Fleming states that Bacon voluntarily chose to withdraw the Informal
Complaints. The copies of the forms in the record reflect that on May 31, 2018,
Bacon signed each form, indicating that he wished to “voluntarily withdraw this
Informal Complaint,” and acknowledging that in so doing, he would not receive a
response or be able to file any other Informal Complaint or grievance on the same
issue. Id. at Ravizee Aff., Enclosure C, ECF No. 13-1. Fleming states that he “did
not threaten, force, or coerce Bacon into withdrawing the Informal Complaints nor
did anyone else in the meeting” on May 31, 2018. Id. at Fleming Aff. ¶ 11, ECF
No. 13-2.
with security equipment (two charges), and attempting to assault a non-offender. He was
found guilty of all five charges.
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Bacon does not disagree with the defendants’ representations about his
failure to present his current claims to prison officials through all levels of the OP
866.1 grievance procedures, nor does he offer evidence to the contrary.
Accordingly, I conclude that the defendants have established Bacon’s failure to
exhaust administrative remedies as required under § 1997e(a).
An inmate who has failed to exhaust compliance with § 1997e(a) may
escape summary judgment if he states facts showing that the remedies under the
established grievance procedure were not available to him. Ross, 136 S. Ct. at
1859.
Generally, “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).
In his response to the defendants’ motion, Bacon does not make any
argument or offer any further evidence on any aspect of the exhaustion issue. In
his notarized Complaint, however, he contends that he withdrew the Informal
Complaints about Curry’s actions because he was threatened. Specifically, Bacon
states that on May 25 and 31, 2018, he “was threatened to withdraw [his]
complaints or [he]’d be left/put back in seg for a threatening bodily harm.
Therefore, [he] withdrew due to duress and intimidation.” Compl. 2, ECF No. 1.
Officers’ actions that “thwarted the effective invocation of the administrative
process through threats, game-playing, or misrepresentations” may be sufficient to
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show that the grievance procedure was unavailable to the inmate. Ross, 136 S. Ct.
at 1862 (emphasis added).
Taking the evidence on exhaustion in the light most favorable to Bacon, I
conclude that the defendants’ motion under § 1997e(a) must be granted in part and
denied in part. Bacon has presented no evidence that he attempted to file any
administrative remedy form to complain that Collins, Byington, and Harris did not
intervene on his behalf on May 17, 2018. I also find no evidence indicating that
Bacon could now exhaust administrative remedies against these defendants and
refile his claims against them. Accordingly, I will grant summary judgment for
Collins, Byington, and Harris.
I do find a material disputed fact that precludes summary judgment for
defendant Curry, however. Bacon may be able to persuade a reasonable fact finder
that his undisputed attempts to exhaust administrative remedies were stymied by
threats of segregated confinement if he did not withdraw his Informal Complaints
about Curry. Accordingly, I will deny summary judgment under § 1997e(a) for
Curry and refer this exhaustion question to the magistrate judge for further factual
development.
III.
For the reasons stated, it is hereby ORDERED as follows:
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1.
The defendants Motion for Summary Judgment, ECF No. 12, is
GRANTED IN PART AND DENIED IN PART. The motion is
GRANTED as to the bystander liability claims against
defendants Collins, Byington, and Harris, and the clerk SHALL
terminate these persons as parties. The motion is DENIED as
to the excessive force claim against defendant Curry; and
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 Bacon.
ENTER: June 10, 2019
/s/ James P. Jones
United States District Judge
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