Drayton v. Newman et al

Filing 147

MEMORANDUM OPINION. Signed by Chief District Judge Elizabeth K. Dillon on 9/24/2024. (Opinion mailed to Pro Se Party/Parties via US Mail)(tvt)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
LAMONT D. DRAYTON,
Plaintiff,
v.
SGT. NEWMAN, et al.,
Defendants.

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September 24, 2024

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Civil Action No. 7:22-cv-00574
By: Elizabeth K. Dillon
Chief United States District Judge

MEMORANDUM OPINION
Lamont D. Drayton, a Virginia inmate proceeding pro se, filed this case pursuant to 42
U.S.C. § 1983. The case is before the court on the Report and Recommendation (R&R) of U.S.
Magistrate Judge Joel C. Hoppe (Dkt. No. 131), to which Drayton has repeatedly objected since
it was issued (Dkt. Nos. 134, 135, 136, 138, 139, 140, 141). Drayton has also filed responses to
the summary judgment motion (Dkt. No. 79) that underlies the issues addressed in the R&R.
(See Dkt. Nos. 142, 144.) Finally, Drayton filed three motions for leave to file an amended
complaint. (Dkt. Nos. 137, 143, 146.) The court has also considered post-R&R submissions
related to the facts at issue in the R&R. (Dkt. Nos. 132, 133.)
As discussed herein, the court has carefully reviewed de novo Drayton’s objections to the
R&R and his other submissions related to the R&R. Based on its review of the entire record, the
court concludes that the magistrate judge’s proposed findings of fact are supported by the record,
and that Drayton has not shown by a preponderance of the evidence that administrative remedies
were not available to him in this case. For these reasons, discussed in more detail below, the
court will deny Drayton’s attempts to file an amended complaint, overrule Drayton’s objections,
adopt the R&R, grant defendants’ motion for summary judgment on the claims against the

remaining defendants, and enter a final order of dismissal. Plaintiff’s motions for leave to amend
will also be denied.
I. BACKGROUND
In October 2022, Drayton filed a complaint alleging that he was physically assaulted in
his prison cell at River North Correctional Center (RNCC). (Dkt. No. 1.) After several attempts
to amend his complaint, plaintiff was eventually granted leave to file an amended complaint
against defendants J. Adams, Lt. H.M. May, Sgt. Newman, Steven Richardson, and S.M. Snead.
(Dkt. Nos. 69, 70.)
Drayton alleges that on June 24, 2022, he was assaulted in his segregation cell by Sgt.
Newman, Lt. May, Officer Snead, and Officer Adams. (Am. Compl. 3.) On that date, Drayton
complained to Sgt. Newman that Officer Snead took his food tray. Newman and Drayton
exchanged obscenities. Newman then opened the cell door, entered, and assaulted Drayton.
Snead rushed in and hit Drayton across the head twice with a metal pepper spray can. Lt. May
punched Drayton several times, resulting in a bloody nose. Adams pushed Drayton several times
while he was in handcuffs; Drayton claims that Adams was trying to break his wrists. May also
kneeled on Drayton’s back, and Drayton could not breathe. Drayton further alleges that, from
June 24 to August 19, 2022, he was not allowed to shower and was confined to a filthy strip cell
with dried feces on the walls, poor ventilation, and the smell of urine, and he was subject to
mental abuse. (Am. Compl. 4.)
Drayton claims that he was unable to exhaust administrative remedies due to
circumstances beyond his control, such as being held in a strip cell and not having any property,
including a pencil or paper complaint forms. (Id. at 5.) Drayton believes that he was subjected
to these conditions for the purpose of preventing him from exhausting his administrative

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remedies. (Id.) Finally, Drayton alleges that Richardson failed to discipline the officers
involved in the assault, thus tacitly authorizing their actions, and that Snead retaliated against
him by writing a false disciplinary report, resulting on Drayton’s transfer and unspecified
sanctions. (Id. at 6.)
Defendants moved for summary judgment, arguing that Drayton did not exhaust his
administrative remedies on his claims for excessive force, assault, battery, and retaliation. (Dkt.
No. 79.) The court found that “there is an issue of fact as to whether the administrative remedies
were available to Drayton.” (Dkt. No. 104 at 11.) “First, the fact that Drayton only had one or
two days upon being released from safety precautions suggests that administrative remedies may
have been unavailable. Second, while defendants have outlined procedures that were
purportedly available to pursue exhaustion while on safety precautions, there is no evidence that
the existence of these procedures—such as the ability to request a pen and use it under
supervision or to dictate his grievance to a staff member acting as a scribe—was communicated
to inmates generally or to Drayton in particular.” (Id.) Thus, the court found that defendants
were not entitled to summary judgment on the exhaustion issue with respect to plaintiff’s claims
for excessive force, assault, and battery. (Id. at 12.) The court also denied summary judgment on
plaintiff’s retaliation claim against Officer Snead because “there are issues of fact related to
whether administrative remedies were available to Drayton such that he could grieve this alleged
incident, for the reasons already stated herein.” (Id.) Thus, the court referred this matter to the
magistrate judge “for an evidentiary hearing and preparation of a report and recommendation as
to whether administrative remedies were available to plaintiff with respect to his excessive force
and retaliation claims.” (Dkt. No. 105.)
In his R&R, the magistrate judge made the following findings of fact:

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1.

Drayton was incarcerated at RNCC during the relevant time. He arrived at RNCC

on April 14, 2022.
2.

RNCC operated under OP 866.1, the VDOC’s standard Offender Grievance

Procedure, during the relevant time.
3.

Drayton had experience with OP 866.1 before he arrived at RNCC.

4.

Drayton was oriented to the grievance process upon intake at RNCC.

5.

Pursuant to OP 866.1, an inmate properly exhausts his administrative remedies by

timely filing a regular grievance at the institutional level and appealing that regular grievance
through all applicable levels of review.
6.

Prior to filing a grievance, an inmate must demonstrate that he has made a good

faith effort to informally resolve his complaint using the Informal Complaint Process. The
Informal Complaint Process involves an inmate submitting both a verbal complaint and an
Informal/Written Complaint.
7.

An Informal/Written Complaint must be filed within 15 days of the incident or

discovery of the incident of which the inmate complains. Regular Grievances are to be
submitted within 30 calendar days from the date of the incident.
8.

OP 866.1 requires an inmate to submit a copy of his Written Complaint with his

Regular Grievance to show that he or she attempted informal resolution.
9.

Drayton alleges that on June 24, 2022, he was assaulted in his segregation cell by

Sgt. Newman, Lt. May, Officer Snead, and Officer Adams.
10.

On June 24, 2022, Drayton was placed in cell A-2-203 on safety precautions

based on the directive of the River North Mental Health Department. With this placement, one
precaution is that an inmate is not allowed to have a pen or any writing instrument in his cell, the

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concern being that the inmate may try to harm himself or others.
11.

Drayton was on safety precautions until the morning of July 7, 2022. At

approximately 9:30 a.m. on July 7, 2022, Drayton was removed from safety precautions and
moved from cell A-2-203 to cell A-2-242, where he was permitted once again to have his
property.
12.

Drayton’s deadline for filing an Informal Grievance related to the June 24

incident was July 9, 2022; his deadline for filing a Regular Grievance was July 24, 2022.
13.

Drayton submitted Written/Informal Complaint, Log No. RNCC-22-INF-01071,

and it was received in the River North Grievance Office on July 18, 2022. Drayton wrote that he
had been assaulted on June 24, 2022, by Sgt. Newman, Lt. May, Officer Snead, and Officer
Adams.
14.

Drayton submitted three nearly identical Regular Grievances that were received in

the River North Grievance Office on July 18, 2022. Drayton signed and dated all three of these
Regular Grievances as July 18, 2022. All three Regular Grievances contained essentially the
same allegations of being assaulted by staff.
15.

Counselor Snow, the acting Grievance Coordinator, did not accept the three

Regular Grievances because they did not meet the intake criteria. Drayton did not attach his
Written/Informal Complaint to document his attempt for the Informal Complaint Process.
Counselor Snow did not assign a log number to these grievances and returned them to Drayton.
16.

Drayton attempted to follow-up his previous Written/Informal Complaint, Log

No. RNCC-22-INF-01071, with a Regular Grievance dated August 1, 2022. The River North
Grievance Coordinator rejected Drayton’s Regular Grievance at intake and determined that it as
non-grievable because it concerned a disciplinary charge that Drayton received related to the

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incident. The stated reason for rejecting the grievance was incorrect because Drayton did not
mention a disciplinary charge. The Grievance Coordinator did not assign a log number and
returned it to Drayton.
17.

Drayton submitted several other Informal Complaints to the River North

Grievance Officer on July 18 and 19, 2022, related to the allegations in this lawsuit. CHAP
[Chief of Housing and Programs] McBride responded to each Informal Complaint 1 and wrote,
“Answered on RNCC-22-01071”.
18.

Drayton also submitted Regular Grievances for each of these Informal

Complaints, dated either August 1, 2, or 3, 2022, about the June 24 incident. The Grievance
Coordinator did not accept any of these Regular Grievances because they concerned the
disciplinary process.
19.

Drayton did not appeal any of the rejections of his grievances while he was at

River North.
20.

Inmates in safety cells at River North are checked by staff every fifteen minutes.

21.

Drayton had access to a writing utensil and grievance forms after being released

from the safety cell on July 7, 2022.
22.

Between the dates of January 1, 2022, and June 30, 2023, grievances were filed

by prisoners who were housed in a safety cell at River North, but no evidence showed that any of
those inmates were under similar precautions as Drayton.
23.

Drayton did not file any timely informal complaints about his alleged June 24,

2022 assault.
24.

Drayton did not file any timely regular grievances about his alleged June 24, 2022

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The Informal Complaints were assigned the following log numbers: RNCC-22-INF-01060, 01070,
01079, 01080, 01081, and 01082.

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assault.
25.

Drayton did not appeal any timely regular grievances about his alleged June 24,

2022 assault through all applicable levels of review. (See R&R 15–19.)
Then, after analyzing the evidence, the magistrate judge found that Drayton did not show,
by a preponderance of the evidence, that administrative remedies were not available to him in
this case. (R&R 19–21.)
II. ANALYSIS
A. Amended Complaint
Rule 15 of the Federal Rules of Civil Procedure provides that the court should “freely
give leave” to amend the complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). The
court should deny leave to amend when (1) the opposing party would be prejudiced, (2) the
amendment is sought in bad faith, and (3) the proposed amendment would be futile. Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006).
The court finds that defendants would suffer prejudice if the amendment were allowed at
this late stage in this case. Moreover, two of the proposed amendments seek only to amend the
amount of damages sought by Drayton. (Dkt. Nos. 143, 146.) These amendments would be
futile because they do not alter the court’s finding in this matter that defendants are entitled to
summary judgment due to plaintiff’s failure to exhaust his administrative remedies.
Accordingly, the motions for leave to amend will be denied.
B. Standard of Review
With regard to the R&R, the court must review de novo “those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). An objection is properly noted, however, only if it is stated “with sufficient

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specificity so as reasonably to alert the district court of the true ground for the objection.”
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). See also Page v. Lee, 337 F.3d
411, 416 n.3 (4th Cir. 2003). Objections must direct the court to a specific error in the report and
recommendation. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). General or
conclusory objections, therefore, are not proper; they are in fact considered the equivalent of a
waiver. Id.
Upon review, the court “may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3); accord 28 U.S.C. § 636(b)(1)(C). In evaluating a magistrate judge’s findings
after an evidentiary hearing, the court may give a magistrate judge’s report and recommendation
“such weight as [their] merit commands and the sound discretion of the judge warrants,” United
States v. Raddatz, 447 U.S. 667, 682–83 (1980) (internal quotations omitted), but the court must
exercise its 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) (citations omitted).
C. Exhaustion
The Prison Litigation Reform Act (PLRA) requires a prisoner to exhaust his
administrative remedies before filing a 1983 action. 42 U.S.C. § 1997e(a). The PLRA provides,
in pertinent part, that “[n]o 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.” Id.
In Porter v. Nussle, 534 U.S. 516, 532 (2002), the Supreme Court held that the PLRA’s
exhaustion requirement applies to all inmate suits about prison life. “There is no question that

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exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in
court.” Jones v. Bock, 549 U.S. 199, 211 (2007) (citing Porter, 534 U.S. at 524). Because
exhaustion of administrative remedies is an affirmative defense, defendants have the burden of
pleading and proving lack of exhaustion. Id. at 216.
In this matter, it is undisputed that Drayton “did not file any timely informal complaint or
regular grievances or appeal any timely regular grievances through all applicable levels of
review—and thus did not exhaust his administrative remedies . . . .” (R&R 19.) Thus, the
burden shifts to Drayton “to show, by a preponderance of the evidence, that . . . administrative
remedies were unavailable through no fault of the plaintiff.” George v. Lt. Michalek, No.
3:19cv155, 2022 WL 3580746, at *8 (E.D. Va. Aug. 19, 2022).
D. Objections to the R&R
As noted, plaintiff has filed several responses to the R&R and to the motion for summary
judgment (Dkt. No. 79), and he has also filed various factual submissions for the court to
consider. (See Dkt. Nos. 132–36, 138–42, 144.) The court has thoroughly reviewed these filings
by Drayton. The court addresses the most relevant objections as follows.
First, plaintiff argues that the short time frame that he had to exhaust his remedies,
particularly only having two days after being released from safety precautions on July 7, 2022,
was unfair to him and illustrates that administrative remedies were not available to him. (Dkt.
No. 132.) This argument ignores that plaintiff still had access to the grievance procedure while
he was in a safety cell. “VDOC witnesses at the evidentiary hearing testified consistently that
placement in a safety cell, even with mental health precautions, is not a barrier to pursuing a
grievance.” (R&R 19.) VDOC witnesses Steven Richardson, Brian Hall, and Joseph Bateman
explained that while inmates on safety precautions are not allowed to have personal property in

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their cell for safety reasons, such inmates “can either ask any staff member to take dictation of a
complaint or grievance or ask to write a grievance under staff supervision.” (Id.) And
Richardson testified that he “specifically told Drayton that he could use this process when he was
in the safety cell, but Drayton did not respond.” (Id. 19–20.)
Second, plaintiff has lodged several requests for the court to review certain documents in
the record. (See, e.g., Dkt. Nos. 133–35.) The court has reviewed these documents and
submissions pursuant to the court’s de novo review.
Third, plaintiff has referenced an appeal to the Regional Ombudsman, which occurred
after he was transferred from RNCC. (See Dkt. Nos. 138–42, 144.) These complaints (see Dkt.
Nos. 101, 102) were filed late in 2023, well after the time to exhaust his remedies as set forth in
OP 866.1. (See Dkt. No. 102 at 2 (noting expired filing period).) Moreover, it is undisputed that
Drayton did not exhaust his administrative remedies. As the R&R explains, plaintiff “conceded
that he did not exhaust his administrative remedies with respect to the alleged assault on June 24,
2022 . . . .” (R&R 4 (citing Am. Compl. 6).) The only issue for the court is whether
administrative remedies were available to Drayton. As noted above, administrative remedies
were available during the relevant time period for plaintiff to exhaust.
For these reasons, Drayton’s objections will be overruled.
E. Summary Judgment
Summary judgment is appropriate where “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). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported

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motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original).
Defendants moved for summary judgment on the basis that Drayton did not exhaust his
administrative remedies. Defendants have met their burden of proving, by a preponderance of
the evidence, that Drayton did not exhaust his administrative remedies. Conversely, Drayton did
not meet his burden of proving, by a preponderance of the evidence, that administrative remedies
were not available to him. Accordingly, defendants are entitled to summary judgment.
III. CONCLUSION
For the foregoing reasons, the court will overrule Drayton’s objections, adopt the R&R,
and enter judgment in favor of defendants. An appropriate order will be entered.
Entered: September 24, 2024.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
Chief United States District Judge

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