Owens v. Tibbs et al

Filing 66

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS. Plaintiff's Motion for Partial Summary Judgment on Availability of Administrative Remedies 57 is DENIED. Defendants Shannon Sams and Joseph Wood's Motion for Summary Judgment Rega rding Failure to Exhaust Administrative Remedies 59 is GRANTED. Defendants Timothy Tibbs and Michael Costello's Motion for Summary Judgment 61 is GRANTED. The magistrate judge's R&R 37 is ADOPTED. As such, defendants Shannon Sams and Superintendent Joseph Wood's Motion to Dismiss Plaintiff's Complaint 20 is converted as recommended and GRANTED. Defendants Timothy Tibbs and Michael Costello's Motion for Judgment on the Pleadings 24 is DENIED AS MOOT. The Clerk is instructed to enter judgment in favor of defendants and to strike this matter from the active docket of this Court. Signed by District Judge John Preston Bailey on 7/28/2023. (ag)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
FALCON OWENS,

Plaintiff,
v.

CIVIL ACTION NO. 5:22-CV-271
Judge Bailey

TIMOTHY TIBBS, MICHAEL COSTELLO,
SHANNON SAMS, and SUPERINTENDENT
JOSEPH WOOD,

Defendants.
ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS

Pending before this Court is defendants Shannon Sams and Joseph Wood’s Motion
for Summary Judgment Regarding Failure to Exhaust Administrative Remedies [Doc. 59]
and accompanying Memorandum in Support [Doc. 60]; defendants Timothy Tibbs and
Michael Costello’s Motion for Summary Judgment [Doc. 61] and accompanying
Memorandum in Support [Doc. 62]; and plaintiff’s Motion for Partial Summary Judgment
on Availability of Administrative Remedies [Doc. 57] and accompanying Memorandum in
Support [Doc. 58]. The parties filed respective briefs in opposition to these competing
Motions. See [Docs. 63, 64 & 65].
BACKGROUND

On September 8, 2022, plaintiff filed a complaint under 42 U.S.C.

§ 1983 alleging

a series of constitutional violations occurring during his incarceration in Unit A-8 at North
Central Regional Jail (“NCRJ”). [Doc. 1]. The complaint identifies four defendants: NCRJ
corrections officers Timothy Tibbs and Michael Costello, and NCRJ supervisors Captain
Shannon Sams and Superintendent Joseph Wood. [Id. at ¶~ 4—7].

On December 16, 2022, defendants Sams and Wood filed their Motion to Dismiss,
arguing in part that plaintiff’s claims fail as a matter of law because he failed to exhaust his
administrative remedies. See [Docs. 20 & 21]; see also 42 U.S.C.
shall be brought with respect to conditions under [42

§ 1997e(a) (“No action

u.s.c. § 1983], 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.”). In support, defendants Sams
and Wood attached NCRJ’s grievance policies and procedures and an affidavit by
defendant Wood describing those policies and procedures and explaining that plaintiff
failed to exhaust those administrative remedies. [Doc. 20-1].
On January 3, 2023, defendants Tibbs and Costello filed their Motion for Judgment
on the Pleadings and Memorandum in Support arguing, inter alia, that the complaint must
be dismissed for failure to exhaust administrative remedies and adopting defendant
Wood’s affidavit in support. See [Docs. 24 & 25].
On March 29, 2023, United States Magistrate Judge James P. Mazzone entered his
Report and Recommendation (“R&R”) based upon a consideration of the pleadings and
pertinent law. [Doc. 37]. Therein, the magistrate judge advised that “plaintiff does not
dispute that he has not fully exhausted administrative remedies, Instead, plaintiff raises
a number of questions he contends warrant discovery, including whether grievance forms
and writing materials were given and whether plaintiff was prevented from exhausting his
grievance.” [Id. at 9—10]. However, finding that plaintiff failed to meet his “burden of
presenting facts demonstrating that [] administrative remedies were not actually available
to him,” the magistrate judge recommended that the motion “be converted into a motion
for summary judgment, that the motion be granted, and that this case be dismissed for
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failure to exhaust administrative remedies.” [Id. at 11—13] (emphasis omitted). Following
entry of the R&R, plaintiff filed a Motion seeking a period of discoveryregarding availability
of administrative procedures pursuant to Rule 56(d) of the Federal Rules of Civil
Procedure. [Doc. 39]. On April 27, 2023, this Court granted plaintiff’s Motion and ordered
that “[t]he parties are hereby granted a period of discovery regarding the availability of
administrative remedies” and stayed this action pending discovery. [Doc. 44].
On June 14, 2023, this Court lifted the stay in this action and directed submission
of a joint status report. [Doc. 54]. On June 22, 2023, this Court entered an Order directing
a briefing schedule. [Doc. 56]. The pending Motions followed and are now ripe.
LEGAL STANDARDS

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate
“if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” The party seeking
summary judgment bears the initial burden of showing the absence of any genuine issues
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). If the
moving party meets this burden, the nonmoving party “may not rest upon the mere
allegations or denials of its pleading, but must set forth specific facts showing there is a
genuine issue for trial.” Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248 (1986). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”

Id.

“The inquiry performed is the threshold inquiry of

determining whether there is the need for a trial—whether, in other words, there are any

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genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Id. at 250.
In reviewing the supported underlying facts, all inferences must be viewed in the
light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing

summary judgment “must do more than simply show that there is some metaphysical doubt
as to the material facts.” Id. at 586. That is, once the movant has met its burden to show
absence of material fact, the party opposing summary judgment must then come forward
with affidavits or other evidence demonstrating there is indeed a genuine issue for trial.
Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323—25; Anderson, 477 U.S. at 248. “If
the evidence is merely colorable, or is not significantly probative, summary judgment may
be granted.” Anderson, 477 U.s. at 249 (citations omitted). Although all justifiable
inferences are to be drawn in favor of the non-movant, the non-moving party “cannot create
a genuine issue of material fact through mere speculation of the building of one inference
upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Further, “the plain
language of Rule 56(c) mandates the entry of summary judgment.

.

.

against a party who

fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.,
477U.5.at322.
When cross-motions for summary judgment are before a district court, as here, the
same standards of review are applied. ITCO Corp. v. Michelin Tire Corp., 722 F.2d 42,
45 n.3 (4th Cir. 1983). Each motion must be considered individually on its own merits, and

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the facts relevant to each must be viewed in the light most favorable to the non-movant.
Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir. 2003) (citing Rossignol v. Voorhaar, 316

F.3d 516, 523 (4th Cir. 2003)). When considering each individual motion, the court must
take care to “resolve all factual disputes and any competing, rational inferences in the light
most favorable” to the party opposing that motion. Rossignol, 316 F.3d at 523 (quoting
Wightman v. Springfield TerminalRy. Co., 100 F.3d 228, 230 (1st Cir. 1996)).
THE PRISON LITIGATION REFORM ACT (“PLRA”)

The PLRA requires inmates to exhaust their administrative remedies before bringing
a lawsuit against prison officials. 42 U.S.C.

§ I 997e(a). Under the PLRA, “[nb 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 correction facility until such
administrative remedies as are available are exhausted.” Id. The PLRA’s “exhaustion
requirement is mandatory.” Anderson v. XVZ Corr. Health Servs., Inc., 407 F.3d 674,
677 (4th cir. 2005). The PLRA “applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porterv. Nussle, 534 U.S. 516, 532 (2002). The exhaustion
requirement extends to suits against prison officials. See Jones v. Bock, 549 U.S. 199
(2007).
The exhaustion standard is stringent and requires that parties utilize the available
administrative remedies correctly and to their fullest extent before a district court may hear
the case. As informed by the Supreme Court of the United States, “[p]roper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules,

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because no adjudication system can function effectively without imposing some orderly
structure on the course of proceedings.” Woodford v. Ngo, 548 U.S. 81, 90—91 (2006).
Further, there is no requirement that these rules or remedies “meet federal standards, nor
must they be plain, speedy, and effective.” Porter, 534

u.s. at 524 (internal citations and

alternations omitted).
However, when an existing system of administrative remedies has deteriorated such
that obtaining remedies is not possible, the prisoners are relieved of the exhaustion
requirement. See Ross v. Blake, 578 U.S. 632 (2016). “To be sure, if prison officials
impede a prisoner’s attempts to exhaust by denying that inmate the proper forms, by failing
to educate the inmate on the grievance process, or by failing to respond to a proper
grievance, a prisoner may be excused from exhaustion requirements.” Washington v.
Rounds, 223 F.Supp.3d 452, 459 (D. Md. 2016) (Motz, J.) (citing Mitchell v. Horn, 318
F.3d 523, 529 (3d Cir. 2003)); Miller v. Norris, 247 F.3d 736, 740 (4th Cir. 2001). In
considering whether the exhaustion requirement has been met, “[t}he district court is
‘obligated to ensure that any defects in exhaustion were not procured from the action or
inaction of prison officials.” Makdessi v. Clarke, 2012 WL 293155, at *2 (W.D. Va. Jan.
31,2012) (Conrad, C.J .) (citingAquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th
Cir. 2007)).
Failure to exhaust “is an affirmative defense, and defendants have the burden of
raising and proving the absence of exhaustion.” Porter v. Sturm, 781 F.3d 448, 451 (8th
Cir. 2015) (citing Jones v. Bock, 549 U.S. 199, 212—13 (2007)). However, if defendants
are able to make a threshold showing of failure to exhaust, the burden of showing that

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such remedies were unavailable shifts to plaintiff. The availability of administrative
remedies under the PLRA and exhaustion itself are questions of law. See Ray v. Kertes,
130 F.App’x 541, 543—44 (3d Cir. 2005).
THE WEST VIRGINIA DIVISION OF CORRECTIONS AND REHABILITATION
(“WVDCR”) GRIEVANCE PROCESS

WVDCR has promulgated Policy Directive 335.00, which “represents the general
administrative remedy procedures for the Division of Corrections and Rehabilitation.”
[Doc. 55-4 at 3].

As described in Policy Directive 335.00, the grievance policy is

summarized as follows:
1.

An individual must file a grievance within 15 days of the event giving rise to the
issue or complaint expressed in the grievance. Grievance forms must be available
to all incarcerated individuals, including on all housing units. Only one issue or
complaint may be on each form, and it must pertain directly to the individual filing
of the grievance.

2.

Once a form has been obtained and filled out, the individual may submit the form
by US mail, depositing it in a “DCR grievance box,” or handing it to a DCR
employee. The grievance form shall initially be submitted to the Unit Manager.

3.

The individual “shall be provided a copy of his/her grievance form prior to
submission at each level.”

4.

The Unit Manager or their designee will log the grievance and assign it a number
that includes information on the year, the facility, and a distinct sequential number.
In order to track the grievance, “the Unit Manager shall maintain a Grievance Log.”
Upon information and belief, this is also the point at which a copy to be provided to
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the inmate should be produced.
5.

The Unit Manager will inspect the grievance to determine if it conforms with Policy
Directive 335.00. If it does not, it will be rejected. Grounds for rejection include:

6.

a.

Failure to file the grievance timely;

b.

Filing a grievance on an issue that was previously grieved;

c.

Failure to seek actual relief;

d.

Including excessive pages;

e.

Writing on both sides of the page;

f.

Including more than one issue per form; or

g.

The presence of a foreign substance.

If the grievance is rejected, the Unit Manager will provide a brief explanation for the
rejection and the individual will have 10 days to correct and file a new grievance.

7.

An individual may appeal a rejected grievance, but the scope of that appeal is
limited to the rejection itself, and so appealing the rejection through to the
Commissioner does not exhaust administrative remedies as to the issue presented
in the grievance.

8.

The Unit Manager is responsible for ensuring that “an answer to the grievance is
provided back to the inmate within five (5) days.” The response at the first level
should be “clear, concise, complete, and professional.” The Unit Manager “is not
required to personally answer the grievance, so long as he/she ensures that the
grievance ultimately received is timely addressed and, if accepted, answered.”

9.

Should the answer from the Unit Manager not resolve the issue, the inmate may
appeal their grievance to the Superintendent within five days of delivery of the
8

response.
10.

The individual should be provided with a copy of their grievance prior to submission
to the Superintendent.

11.

The Superintendent shall respond to the grievance within five days.

12.

If the individual who filed the grievance does not receive a response from the first
level within five days, they may treat the non-response as a denial and appeal to the
Superintendent. The individual must “indicate on the form

.

.

.

that the grievance

was previously filed without a response.” The Superintendent will investigate the
allegation and, if it is determined that no response was given to the initial grievance,
the Superintendent “shall require an immediate response from the Unit Manager.”
13.

If the Superintendent’s response does not resolve the issue, or the Superintendent
fails to respond within five days, the individual may appeal to the Commissioner.
The appeal must be submitted within five days of receiving the response, or within
five days of when a response should have been received. “The appeal shall be
submitted using the same form as was submitted to the Unit Manager and signing
the appropriate location.”

14.

Each grievance submitted to the Commissioner level must be mailed by first class
mail. Only one grievance per envelope may be submitted.

15.

The individual shall be provided with a copy of their grievance form prior to
submission to the Commissioner.

[Id.].

9

DISCUSSION

In consideration of the PLRA and the arguments asserted by the parties, this Court
finds that defendants have made a clear showing of plaintiffs failure to exhaust, and that
showing has not been rebutted by plaintiff. Plaintiff, throughout his briefing, does not
dispute that he did not exhaust administrative remedies; rather, he contends he should be
excused from the PLRA’s exhaustion requirement because the grievance process was not
available on plaintiff’s unit during the relevant time frame.1 See [Doc. 58 at 6—7]. Plaintiff’s
arguments in this regard are totally belied by his own deposition testimony and the record.
I.

Plaintiffs deposition testimony demonstrates a failure to exhaust
administrative remedies.
For example, plaintiff testified that NCRJ staff gathered the inmates being housed

on Unit A-8 for numerous group sessions regarding instructions on how to file grievances
and the process to do so. [Doc. 57-1 at 10:22—14:13]. The first of these meetings occurred
within one week of the move. [Id. at 14:4—8]. According to plaintiff, several defendants
participated in those sessions. [Id. at 14:9—13]. Plaintiff also testified that he believed
NCRJ’s policies were located on electronic kiosks. [Id. at 21:1—8].

1More specifically, plaintiff correctly identifies there are three circumstances “in
which an administrative remedy, although officially on the books, is not capable of use to
obtain relief.” Ross v. Blake, 578 U.S. 632, 643 (2016). First, “an administrative
procedure is unavailable when (despite what regulations of guidance materials may
promise) it operates as a simple dead end—with officers unable or consistently unwilling to
provide any relief.” Id. Second, “an administrative scheme might be so opaque that it
becomes, practically speaking, incapable of use.” Id. at 643—44. Third, administrative
remedies are not available “when prison administrators thwart inmates from taking
advantage ora grievance process through machination, misrepresentation, or intimidation.”
Id. When one or more of these circumstances arise, “an inmate’s duty to exhaust
‘available’ remedies does not come into play.” Id.; see also Griffin v. Bryant, 56 F.4th
328, 335 (4th Cir. 2022).
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Plaintiff testified that there were occasionally delays in getting grievance forms when
he asked for them, but he could not remember any occasions on which anyone specifically
denied him one. [Id. at 24:2—3; 32:13—15]. Plaintiff testified that grievance forms were
available in Unit A-8 and admitted to stockpiling them in his cell. [Id. at 115:12—116:6].
Plaintiff testified that he filed at least fifteen grievances throughout his incarceration at
NCRJ but that only five or six made it “down the hall.” [Id. at 24:22—25:1].
Plaintiff could not remember how many grievances he filed while he was in Unit A-8
specifically, nor could he remember to whom he delivered them. [Id. at 33:21—34:8].
However, plaintiff testified that NCRJ staff accepted several grievances during his period
of incarceration in Unit A-8 that specifically concerned the incidents which form the basis
of his complaint. [Id. at 37:10—38:21] (discussing the first of three May 11, 2022
grievances); [id. at 42:2—18] (discussing the second of three May 11, 2022 grievances); [id.
at 44:2—21] (discussing the third of three May 11, 2022 grievances); [id. at 47:21—8]
(discussing the June 2, 2022 grievance).

Plaintiff acknowledged that he received

responses to each of those grievances. [Id. at 39:20—40:7; 43:3—7; 45:5—1 6; 48:9—1 9].
Plaintiff testified that he only appealed one of his grievances to the Superintendent.
[Id. at 49:1—50:10]. Notably, plaintiff acknowledged that he received a response to that
appeal which was signed by the Superintendent, and which terminated the grievance in
plaintiffs favor. [Id.]. Plaintiff testified that the Superintendent’s response to plaintiff’s
appeal was “acceptable.” [Id. at 122:14—19]. Importantly, plaintiff testified that he did not
appeal any of his grievances to the Commissioner level. [Id. at 54:19—24; 83:4—8]. Plaintiff
acknowledged that his decision not to appeal to the Commissioner level was a conscious
one that resulted from the fact that his appeal to the Superintendent terminated in plaintiffs
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favor. [Id. at 89:1—10]. Plaintiff did not recall seeing anyone at NCRJ ever physically
destroy any grievance forms. [Id. at 98:20—99:4]. Plaintiff does not believe that NCRJ staff
retaliated against him or anyone else for filing a grievance. [Id. at 103:11—14]. Plaintiff
acknowledged that his cellmate—like plaintiff—was also able to file grievances during the
relevant period. [Id. at 116:7—11].
II.

The record evidence demonstrates a failure to exhaust administrative
remedies.
Plaintiff’s testimony concerning his conscious failure to exhaust administrative

remedies is further supported by the deposition testimony of sister-litigation plaintiffs, which
provides, in relevant part:
1.

NCRJ staff, including some of defendants, gathered plaintiffs in Unit A-8 for multiple
group sessions regarding how to file grievances while they were being housed in
that unit. See [Doc. 55-1 at 10:22—14:13].

2.

Plaintiffs were required to watch a video regarding NCRJ’s grievance procedures
upon intake. See [Doc. 55-5 at 50:15—20]. The video “told you how to file”
grievances and explained that “[t]here was nothing wrong with filing. Filing made
it better for you in the long run because it helped make things better for the next
person behind you.” [Id. at 52:15—20].

Plaintiff Francisco agreed that NCRJ

“encourages inmates to file grievances to enhance personal life for.

.

.

inmates.”

[Id. at 94:23—95:4].
3.

Plaintiffs were provided with a “blue book” that included the same general
substance as the grievance instructions video. [Id. at 66:6—67:17].

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4.

None of the plaintiff’s witnessed anyone discarding or throwing away any grievance
forms. See [Doc. 55-1 at 98:20—99:4; Doc. 55-5 at 90:21—91:9; Doc. 55-11 at
31:19—32:1].

5.

None of the plaintiffs were threatened or retaliated against for filing grievances.
[Doc. 55-1 at 103:11—14; Doc. 55-5 at 94:20—22; Doc. 55-11 at 112:16—113:9]. 2

Ill.

Excusing plaintiff’s failure to exhaust is an entirely unwarranted avenue given
the circumstances of this case.
Based on the undisputed record, this Court declines to excuse plaintiff’s failure to

exhaust administrative remedies. This is so because none of plaintiff’s three arguments
in support of his request to excuse his failure to exhaust are persuasive.
A.

Plaintiff cannot establish that NCRJ’s grievance procedures operated
as a “dead end.”

Plaintiff argues that “[t]he grievance process in Unit A8 at NCRJ was a dead end,
in which NCRJ officials were either unable or unwilling to provide redress for complaints.”
[Doc. 58 at 8]. Plaintiff further alleges that “NCRJ officials also turned the grievance
process into a dead end for an entire category of grievances, which they deemed to be
raising ‘non-grievable issues.” [Id. at 10—11]. Plaintiff also contends that he consistently
did not obtain the relief he sought and that NCRJ did not do enough to satisfy him. [Id.].
First, plaintiff appears to confuse his responsibility to exhaust administrative remedy
procedures with entitlement to substantive remedies that may be available under those
procedures. Plaintiff repeatedly laments that NCRJ’s responses to plaintiff’s grievances
were “boilerplate responses” that did not remedy any of his grievances. In support, plaintiff
2This line of testimony is further supported by the unrebutted affidavit of former
Correctional Counselor for Unit A-8 Heather Copeland. See [Doc. 54-3].
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cites to Booth v. Churner, 532

u.s. 731, 738—39 (2001) for the proposition that “the PLRA

presupposes ‘some redress for a wrong.” [Id.] (citing Booth, 532 U.S. at 736) (cleaned
up). However, Booth does not presuppose entitlement to any substantive remedies.
Rather, Booth stands for the opposite: “one exhausts processes, not forms of relief, and
the [PLRA] provides that one must.

.

.

Congress meant to require procedural exhaustion

regardless of the fit between a prisoner’s prayer for relief and the administrative remedies
possible.” Booth, 532 U.S. at 738—39 (2001) (holding that the PLRA requires exhaustion
even if the relief sought is outside the purview of that which is available through
administrative remedies).
Next, plaintiff’s contention that NCRJ officials removed non-grievable offenses from
its administrative remedies process is inapposite as plaintiff does not allege that any of his
grievances were returned or removed as “non-grievable.” Instead, there is no question that
NCRJ’s grievance procedures provided plaintiff with the potential for relief because plaintiff
indisputably obtained relief through those procedures on a least one prior occasion. In his
deposition, plaintiff acknowledged that he filed multiple grievances and that he appealed
one of them to the Superintendent level, which terminated the grievance in plaintiff’s favor.
Plaintiff consciously chose not to appeal that decision to the Commissioner level because
the superintendent’s response was “acceptable.” In other words, plaintiff’s claim that
NCRJ’s grievance procedures operated as a dead end is entirely speculative.
B.

Plaintiff cannot establish that NCRJ’s grievance procedures were too
opaque to be capable of use.

Plaintiff argues that “[a]dministrative remedies were not available to [him] during the
relevant period because the grievance process was so opaque as to be practically
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incapable of use.” [Doc. 58 at 9]. In support, plaintiff relies on purported disparities
between various NCRJ documents describing its grievance procedures and the extent to
which various NCRJ officials were able to recall the intricacies of those documents during
their depositions. [Id. at 9—16]. This argument is totally belied by plaintiffs procedurally
successful grievance filing.
Further, plaintiff contends that NCRJ’s grievance process is opaque because the
NCRJ Orientation Handbook states that inmates are required to use electronic kiosks to
file grievance forms, but NCRJ’s Policy states that “[amy inmate may file a grievance
utilizing the Inmate Grievance Form.” [Id.]. There does not appear to be any disparity
between these documents, much less one that would result in a finding of opacity by this
Court. Both the Policy and Handbook appear to require that inmates file grievance forms,
with an added instruction to use a kiosk to file such forms if the inmate has a pin number
equipping them to do so. In any event, plaintiff did not file a grievance form related to the
allegations in the complaint either by paper or electronically.
Plaintiff’s arguments attempting to discredit NCRJ officials regarding their inability
to testify about the details of grievance documents is unpersuasive. There is nothing in the
PLRA or interpreting case law requiring jail officials to recite the details of their institution’s
grievance procedures because the PLRA requires only that administrative remedies be
transparent enough that the inmates who are subject to it understand how to use it.
In sum, plaintiff cannot establish that NCRJ’s grievance procedures were opaque
because he was fully aware of and utilized the process on another occasion, even
obtaining a result favorable to him through said process.

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C.

Plaintiff cannot establish NCRJ’s officials denied access to
administrative remedies through machination, misrepresentation, or
intimidation.

Plaintiff claims that “administrative remedies were not available to [him] during the
relevant time period due to the machination, misrepresentation, and intimidation by prison
officials.” [Doc. 56 at 18]. These contentions are based on pure speculation. Moreover,
this speculation is directly refuted by plaintiffs own deposition testimony as discussed
herein.
CONCLUSION
Plaintiff was required to exhaust all available administrative remedies prior to
initiating this action. He did not do so, and no factors exist such that this Court would
excuse plaintiff’s failure to exhaust. Accordingly, plaintiff’s Motion for Partial Summary
Judgment on Availability of Administrative Remedies [Doc. 57] is DENIED. Defendants
Shannon Sams and Joseph Wood’s Motion for Summary Judgment Regarding Failure to
Exhaust Administrative Remedies [Doc. 59] is GRANTED. Defendants Timothy Tibbs and
Michael Costello’s Motion for Summary Judgment [Doc. 61] is GRANTED.
The magistrate judge’s R&R [Doc. 37] is ADOPTED. As such, defendants Shannon
Sams and Superintendent Joseph Wood’s Motion to Dismiss Plaintiff’s Complaint
[Doc. 20] is converted as recommended and GRANTED. Defendants Timothy Tibbs and
Michael Costello’s Motion for Judgment on the Pleadings [Doc. 24] is DENIED AS MOOT.
The Clerk is instructed to enter judgment in favor of defendants and to strike this
matter from the active docket of this Court.
It is so ORDERED.

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The Clerk is directed to forward a copy of this Order to all counsel of record..
DATED: July2~’ ,2023.

JOHN PRESTON BAILEY
UNITED STATES DISTRICT JUDGE

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