Murray v. Rubenstein et al

Filing 300

MEMORANDUM OPINION AND ORDER granting Defendant Corporal Paul Donelson's 222 MOTION for Summary Judgment. Signed by Judge Joseph R. Goodwin on 10/18/2017. (cc: counsel of record; any unrepresented party) (taq)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

GARLAND MURRAY,
v.

CIVIL ACTION NO. 2:13-cv-15798

RUSSELL MATHENEY, et al.,

MEMORANDUM OPINION AND ORDER
Pending before the court is Defendant Corporal Paul Donelson’s Motion for
Summary Judgment [ECF No. 222]. The plaintiff filed a Response [ECF No. 242], and
the defendant filed a Reply [ECF No. 247]. The motion is now ripe for adjudication.
For the reasons stated below, the defendant’s motion is GRANTED.
I.

Legal Standard
To obtain summary judgment, the moving party must show that there is no

genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “Facts are ‘material’ when they
might affect the outcome of the case.” Lester v. Gilbert, 85 F. Supp. 3d 851, 857 (S.D.
W. Va. 2015) (quoting News & Observer Publ’g. Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010)). “A genuine issue of material fact exists if . . . a
reasonable fact-finder could return a verdict for the non-movant.” Runyon v. Hannah,
No. 2:12-1394, 2013 WL 2151235, at *2 (S.D. W. Va. May 16, 2013) (citations omitted);

Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991) (“Disposition by summary
1

judgment is appropriate . . . where the record as a whole could not lead a rational
trier of fact to find for the non-movant.”). The moving party bears the burden of
showing that “there is an absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In considering a motion for summary judgment, the court will not “weigh the
evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). Instead, the court will draw any permissible inference from the
underlying facts in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). Summary judgment is
appropriate when the nonmoving party has the burden of proof on an essential
element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp., 477 U.S. at 322–23. The
nonmoving party must satisfy this burden of proof by offering more than a mere
“scintilla of evidence” in support of his or her position. Anderson, 477 U.S. at 252.
Likewise, conclusory allegations or unsupported speculation, without more, are
insufficient to preclude the granting of summary judgment. See Dash v. Mayweather,
731 F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191
(4th Cir. 1997).
II.

Prison Litigation Reform Act
The defendant argues that summary judgment is proper because the plaintiff

failed to exhaust his administrative remedies as required by the Prison Litigation
2

Reform Act (“PLRA”) and the West Virginia Prison Litigation Reform Act
(“WVPLRA”). Mem. Law Supp. Def. Corporal Paul Donelson’s Mot. Summ. J. 5–8
(“Def.’s Mem.”) [ECF No. 223]; Def. Paul Donelson’s Reply to Pl.’s Resp. to Def.’s Mot.
Summ. J. 3–5 (“Def.’s Reply”) [ECF No. 247].
The PLRA states that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a prisoner confined in any . . .
correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that the “PLRA’s
exhaustion requirement 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
“Not only must a prisoner exhaust his administrative remedies, but he must
also do so properly.” Wells v. Parkersburg Work Release Ctr., No. 2:15-cv-04103, 2016
WL 696680, at *3 (S.D. W. Va. Jan. 19, 2016), adopted by 2016 WL 707457 (S.D. W.
Va. Feb. 19, 2016). “Proper exhaustion demands compliance with an agency’s
deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its
proceedings.” Id. (citing Woodford v. Ngo, 548 U.S. 81, 90–91 (2006)).
Like the PLRA, the WVPLRA “require[s] inmates to exhaust their
administrative remedies before they bring a lawsuit.” Legg v. Adkins, No. 2:16-cv01371, 2017 WL 722604, at *2 (S.D. W. Va. 2017) (citing 42 U.S.C. § 1997e(a); W. Va.
3

Code § 25-1A-2a(i)). Under the WVPLRA, “[a]n inmate may not bring a civil action
regarding an ordinary administrative remedy until the procedures promulgated by
the agency have been exhausted.” W. Va. Code § 25-1A-2(c). The WVPLRA defines an
ordinary administrative remedy as “a formal administrative process by which an
inmate submits a grievance seeking redress or presenting concerns regarding any
general or particular aspect of prison life. . . . An ordinary administrative remedy
includes, but is not limited to, . . . staff treatment or some other alleged wrong.” Id. §
25-1A-2(a). Under the WVPLRA,
An ordinary administrative remedy is considered
exhausted when the inmate’s grievance complies with duly
promulgated rules and regulations regarding inmate
grievance procedures, has been accepted, fully appealed
and has received a final decision from the Commissioner of
Corrections or the Commissioner's designee, or the
Executive Director of the Regional Jail Authority, or the
Director's designee.
§ 25-1A-2(d).
If a plaintiff fails to exhaust his or her administrative remedies under the
PLRA, then the defendant is entitled to judgment as a matter of law. Legg v. Adkins,
No. 2:16-cv-01371, 2017 WL 722604, at *2 (S.D. W. Va. 2017). Whether an
administrative remedy has been exhausted for purposes of the PLRA “is a question
of law to be determined by the judge.” Creel v. Hudson, No. 2:14-cv-10648, 2017 WL
4004579, at *3 (S.D. W. Va. 2017) (citing Drippe v. Tobelinski, 604 F.3d 778, 782 (3d
Cir. 2010)). Thus, disputed questions of fact regarding exhaustion of administrative
remedies are resolved by the court. See id.
4

At the time the plaintiff filed his grievances regarding the issues in this case,
Section 90 of the West Virginia Code provided the controlling procedures. The steps
for filing and appealing grievances are outlined below:
An inmate may file a grievance using forms provided by the
prison “within fifteen (15) days of any occurrence that
would cause him/her to file a grievance.” [W. Va. Code] §
90-9-4.1. Only one issue or complaint may be grieved per
form, and the inmate must submit the form to his or her
unit manager. §§ 90-9-4.2, 90-9-4.3. Upon receipt of the
grievance form, the unit manager logs the grievance and
assigns it a number. § 90-9-4.3. The unit manager is
required to return an answer to the grievance back to the
inmate within five days. § 90-9-4.5. If the unit manager
fails to answer or reject the grievance within five days, the
inmate may treat the non-response as a denial and proceed
to the next level of review. Appeals from the unit manager’s
response (or non-response, as the case may be) are
submitted “to the Warden/Administrator within five (5)
days from delivery of the response.” § 90-9-5.1. “The
Warden/Administrator shall respond to the appeal ...
within five (5) days.” § 90-9-5.4. Finally, if the warden’s
response is unsatisfactory, or if the warden does not
respond within the applicable time, the inmate may appeal
to the Commissioner of the Division of Corrections within
five days of the warden’s response or after the applicable
time has passed. § 90-9-6.1. The Commissioner is allotted
ten days to respond to the appeal. § 90-9-6.3.

Id.
Here, the plaintiff argues that he filed three grievances that exhausted his
administrative remedies as required by the PLRA and WVPLRA, including grievance
numbers 279, 414, and 500. Pl.’s Resp. Opp’n to Def. Donelson’s Mot. Summ. J. 12
(“Pl.’s Resp.”) [ECF No. 242]. The court will address each individual grievance below.

5

a. Grievance Number 414
The plaintiff argues that grievance number 414, which was filed on April 8,
2013, properly exhausted his administrative remedies because the commissioner
placed a check mark in the “accepted” section of the grievance. Pl.’s Resp. 12 n.4.
Generally, the plaintiff would be correct, because “accepted” means that the grievance
was formally received and reviewed on the merits. Policy Directive No. 335, State of
West Virginia Division of Corrections 1 (“Policy Dir. No. 335”). Here, however, the
commissioner checked the accepted box without actually reviewing the complaint on
the merits. Instead, the commissioner affirmed the prior findings of the warden that
the plaintiff did not follow proper procedures in filing his grievances. Pl.’s Resp. Ex.
J, at 2 [ECF No. 234-6]. Specifically, the warden rejected the grievance for asserting
more than “one issue/ [claim for] relief . . . in a single grievance.” Id.
DOC Policy Directive 335(V)(A)(4) states “[a]ny inmate who fails to fully and
properly comply with the provisions set forth in this Policy Directive shall not be
considered to have taken full advantage of administrative remedies afforded him/her
and therefore has not exhausted his administrative remedies.” Policy Dir. No. 335, at
5. The Policy Directive also states that “[a]n inmate may grieve only one (1) issue or
complaint per form.” Id. at 6. The plaintiff failed to follow this directive. Thus,
grievance number 414 was not properly exhausted, and therefore does not satisfy the
requirements of the PLRA or WVPLRA. The plaintiff could have corrected this defect
within five days and refiled the grievance, but he failed to do so. Id.
6

Thus, the court FINDS that grievance number 414 was not properly exhausted,
nor was it made unavailable to the plaintiff.
b. Grievance Number 500
Grievance number 500 states:
My only question is “after i explained i feared recing w/
racist inmates & after knowing thes inmates were in some
racist group / practicing racist beliefs (why) didn’t you take
me off their rec group” ? Why did i have to get attacked
before someone takes action ? Even the fact that one of
racist inmates already [sic] into other attacks (why) give
opportunitys available to him to provoke others to do
stabbings/attacks?
Def. Corporal Paul Donelson’s Mot. Summ. J. Ex. 3, at 6 (“Def.’s Mot.”) [ECF No. 2223]. In the relief sought section of the grievance, the plaintiff states “*explanation of
why (i) got set up for a hate crime*?” Id.
The unit manager accepted this grievance and responded “There was no
evidence that you were in danger from any of the other I/M’s.” Id. The plaintiff
appealed the unit manager’s response to the warden. Id. The warden rejected the
grievance stating his reason as “Question instead of a grievance/complaint.” Id. The
plaintiff appealed the warden’s answer to the commissioner. Id.
The plaintiff concedes that grievance number 500 was not properly exhausted,
but argues that it should be considered exhausted, because prison officials prevented
him from exhausting it in two ways. First, he argues that the warden prevented him
from exhausting his administrative remedies by rejecting his grievance for improper
reasons. Second, he argues that the commissioner prevented him from exhausting his
7

administrative remedies by failing to return the grievance to him.
Under the PLRA, prisoners must exhaust “such administrative remedies as
are available.” 42 U.S.C.A. § 1997e(a) (emphasis added). Prisoners, however, “need
not exhaust remedies if they are not ‘available.’” Ross v. Blake, 136 S. Ct. 1850, 1855
(2016). “[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). “Once the defendant has made
a threshold showing of failure to exhaust, the burden of showing that administrative
remedies were unavailable falls to the plaintiff.” Creel, 2017 WL 4004579, at *4. Since
whether an administrative remedy has been exhausted for purposes of the PLRA “is
a question of law to be determined by the judge,” disputed questions of fact are
resolved by the court. Id.
The defendant has met his burden of proving that the plaintiff failed to exhaust
this grievance. Thus, the next question is whether the plaintiff has met his burden of
proving that the administrative remedy was unavailable. In a previous order ruling
on a different motion for summary judgment in this case, the court held that the
plaintiff failed to sufficiently prove that his ability to exhaust his administrative
remedies was made unavailable because the commissioner failed to return his
grievances. Mem. Op. & Order 11–13 [ECF No. 299]. The court finds that the same is
true here.
The warden’s reason for rejecting the grievance also did not make the
8

administrative procedures unavailable to the plaintiff. The warden rejected the
grievance stating his reason as “Question instead of a grievance/complaint.” Def.’s
Mot. Ex. 3, at 6. Policy Directive No. 335(V)(D)(1) states “[s]hould the inmate believe
that the Warden/Administrator’s response does not resolve his/her greivance . . . the
inmate may submit an appeal to the Commissioner . . . within five (5) days.” Thus, if
the plaintiff was unsatisfied with the reason for the warden’s rejection, he could have
appealed it, which he did. The court cannot find that the administrative process was
made unavailable to the plaintiff given that there were administrative procedures in
place for him to appeal the warden’s answer.
Thus, the court FINDS that grievance number 500 was not properly exhausted,
nor was it made unavailable to the plaintiff.
c. Grievance Number 279
Lastly, the plaintiff argues that grievance number 279 should be considered
exhausted because the grievance was not returned to him by the unit manager until
after the time to appeal had expired. This argument, like the ones above, turns on
whether the unit manager’s alleged failure to return the grievance to the plaintiff
made the administrative remedy “unavailable” to the plaintiff.
This argument also fails. First, Policy Directive No. 335(V)(B)(7) states that if
a unit manager fails to answer or reject a grievance within five days, then “the inmate
may treat the non-response as a denial of his/her grievance.” The inmate may then
appeal the denial to the warden and indicate that the unit manager failed to respond
9

in a timely fashion. Policy Dir. No. 335(V)(B)(7). Thus, the unit manager’s failure to
respond did not make the administrative process unavailable to the plaintiff. To the
contrary, the plaintiff could have continued on through the grievance process by
appealing the grievance to the warden.
Thus, the court FINDS that grievance number 279 was not properly exhausted,
nor was it made unavailable to the plaintiff.
III.

Conclusion

The plaintiff failed to exhaust his administrative remedies as required by the
PLRA and WVPLRA as to Defendant Donelson. Therefore, Defendant Corporal Paul
Donelson’s Motion for Summary Judgment is GRANTED.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

10

October 18, 2017