Miller v. Ballard et al

Filing 201

MEMORANDUM OPINION AND ORDER granting defendants' 145 second Motion for Summary Judgment and denying plaintiff's 178 cross Motion for Summary Judgment. Signed by Judge Joseph R. Goodwin on 12/12/2017. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
ANDREW MILLER,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-cv-16868

DAVID BALLARD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the court are the defendants’ second Motion for Summary
Judgment [ECF No. 145] and the plaintiff’s cross Motion for Summary Judgment
[ECF No. 178]. The defendants argue that the plaintiff failed to exhaust his
administrative remedies, and for that reason, they are entitled to summary
judgment. For the reasons stated below, the defendants’ Motion for Summary
Judgement [ECF No. 145] is GRANTED, and the plaintiff’s cross Motion for
Summary Judgment [ECF No. 178] is DENIED.
I.

Background
This is an Eighth Amendment claim brought pursuant to 42 U.S.C. § 1983

regarding conduct that occurred between the plaintiff and the defendants on
November 19, 2013.

The plaintiff is currently serving a criminal sentence at Mount Olive
Correctional Complex (“MOCC”) and has been detained there since November 3,
2010. On November 19, 2013, defendants Miller and Ward were outside the plaintiff’s
cell preparing to conduct a cell search when they observed the plaintiff pouring a
liquid substance down his toilet. Defendant Miller ordered the plaintiff to stop.
Subsequently, defendant Ward sprayed Oleoresin Capsicum (“pepper spray”) into the
plaintiff’s cell. Defendant Blagg deployed a taser against the plaintiff three separate
times. The plaintiff was then removed from his cell, decontaminated, and placed in a
restraint chair for eight hours. See Proposed Findings & Rec. 2 [ECF No. 129].
The record reveals that the plaintiff has filed many grievances related or in
response to being pepper sprayed, tasered, and placed in a restraint chair on
November 19, 2013 by the defendants (“The Event”). These grievances will be
individually addressed in Section III of this Opinion.
In their Answer to the Amended Complaint, the defendants assert, as their
twenty-sixth affirmative defense, that the plaintiff failed to exhaust his
administrative remedies with respect to The Event. Answer to Am. Compl. [ECF No.
79]. However, the defendants filed their first Motion for Summary Judgment on July
14, 2016 and did not argue that the plaintiff failed to exhaust his administrative
remedies. Defs. Mot. Summ. J. [ECF No. 116]; Mem. Law Supp. Defs.’ Mot. Summ. J.
[ECF No. 117]. The court granted in part and denied in part the defendants’ first
Motion for Summary Judgment, and this case was scheduled for trial. Order [ECF
No. 131].

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Because this case was going to trial, on May 15, 2017, Lydia Milnes entered an
appearance as counsel for the plaintiff who had, up until that point, been proceeding

pro se. Notice of Appearance [ECF No. 135]. On June 26, 2017, Ms. Milnes filed a
motion to reopen discovery for a limited period. Unopposed Mot. Reopen Disc. [ECF
No. 137]. On July 14, 2017, Ms. Milnes filed a motion to withdraw as counsel for the
plaintiff. Mot. Withdraw [ECF No. 138]. Simultaneously with granting Ms. Milnes
motion to withdraw, Order [ECF No. 142], the court granted the plaintiff’s unopposed
motion to reopen discovery and set a full scheduling order, including a new deadline
for the filing of dispositive motions. Order [ECF No. 141]. The defendants’ second
Motion for Summary Judgment, alleging the failure to exhaust administrative
remedies, was filed on July 26, 2017, pursuant to the new deadline.
The plaintiff has filed two responses to the defendants’ Motion for Summary
Judgment arguing that he exhausted his administrative remedies. He points to
grievance Nos. 14-MOCC-Q2-530 and 15-MOCC-Q2-28 as evidence that he exhausted
his administrative remedies. Resp. by Pl. in Opp’n 1 [ECF No. 147]; see Resp. (add’l)
by Pl. in Opp’n 1 [ECF No. 165].
II.

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). 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

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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).
Although the court will view all underlying facts and inferences in the light
most favorable to the nonmoving party, the nonmoving party nonetheless must offer
some “concrete evidence from which a reasonable juror could return a verdict” in his
or her favor. Anderson, 477 U.S. at 256. 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. v. Catrett, 477 U.S. 317, 322–23 (1986). 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 a summary judgment motion. 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).
III.

Discussion
The Prison Litigation Reform Act of 1995 (“PLRA”) states 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.” 42 U.S.C.
§ 1997e(a). The PLRA’s “exhaustion requirement applies to all inmate suits about

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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). Additionally, the exhaustion requirement applies regardless of the
relief sought or offered through the administrative process. See Booth v. Churner,
532 U.S. 731, 741 (2001).
In

addition,

“the

PLRA[’s]

exhaustion

requirement

requires

proper

exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion requires that
the inmate follow all of the prison’s grievance procedures so that “the prison grievance
system is given a fair opportunity to consider the grievance.” Id. at 95. “[P]roper
exhaustion of administrative remedies . . . ‘means using all steps that the agency
holds out, and doing so properly (so that the agency addresses the issues on the
merits).’” Id. at 90 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002))
(emphasis in original).
A prison inmate’s failure to exhaust administrative remedies is an affirmative
defense, and as such, is required to be pleaded by the defendant in its answer. Jones

v. Bock, 549 U.S. 199, 212 (2007); Fed. R. Civ. P. 8(c). It is not a basis for dismissal
for lack of subject matter jurisdiction as the defendants argue in their memorandum
of law supporting their motion for summary judgment. See Mem. Law Supp. Defs.’
Mot. Summ. J. 3–7; Perez v. Wis. Dep’t of Corrs., 182 F.3d 532, 534 (7th Cir. 1999)
(“Failure to exhaust administrative remedies [as required by the PLRA] does not
deprive a court of jurisdiction.”); see also Zhong v. U.S. Dep’t of Justice, 489 F.3d 126,
133 (2nd Cir. 2007) (noting the PLRA exhaustion requirement is “non-jurisdictional”).

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However, the district court must resolve disputes regarding exhaustion prior to any
consideration of the merits of the underlying claim. See Messa v. Goord, 652 F.2d 305,
308–09 (2nd Cir. 2011).
To evaluate the grievances in this case for exhaustion, I turn first to the
relevant procedures for submitting and appealing a grievance regarding an inmate’s
treatment by prison staff at MOCC. Then, I will evaluate each grievance related to
The Event filed by the plaintiff to determine if it has been submitted and fully
appealed in accordance with such grievance procedures.
a. MOCC Grievance Procedures
A review of the West Virginia Code of Rules in effect on November 19, 2013
reveals the following provisions regarding inmate grievance procedures at MOCC.
First, the West Virginia Code of Rules expressly states that proper exhaustion
requires an inmate to comply with all procedures set out in the inmate grievance
procedure. “Any inmate who fails to fully and properly comply with the provisions set
forth in this Rule shall not be considered to have taken full advantage of
administrative remedies afforded him/her and therefore has not exhausted
administrative remedies.” W. Va. Code R. § 90-9-3.4.
To initiate the grievance process, an inmate is required to file his grievance
with the Unit Manager regarding an occurrence within fifteen (15) days of that
occurrence. W. Va. Code R. § 90-9-4.1. The Unit Manager is required to determine (a)
whether the grievance was filed in a timely manner; (b) whether the grievance
contains excessive pages; (c) whether the grievance is not submitted in the proper

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format; and (d) whether the grievance seeks to discuss matters that were previously
addressed in a prior grievance. W. Va. Code R. § 90-9-4.4. If the Unit Manager
determines any of these four defects are present, he must reject the grievance. Id. The
inmate may correct procedural deficiencies within five (5) days of rejection only if the
deficiency is due to excessive pages or improper formatting. Id. While an inmate may
appeal a rejection, such an appeal concerns only the Unit Manager’s reason for
rejection and does not reach the merits of the grievance. Id. For grievances properly
filed, the Unit Manager is required to respond within five (5) days. W. Va. Code R. §
90-9-4.5. If the Unit Manager fails to respond in that time frame, the inmate may
treat the non-response as a denial of the grievance and may proceed to appeal the
grievance to the Warden/Administrator. Id.
Once the inmate receives a response from the Unit Manager on the merits, the
inmate has five (5) days to appeal that response to the Warden/Administrator. W. Va.
Code R. § 90-9-5.1. On appeal, the Warden/Administrator is required to determine (a)
whether the grievance was filed in a timely manner; (b) whether the grievance
contains excessive pages; (c) whether the grievance is not submitted in the proper
format; and (d) whether the grievance seeks to discuss matters that were previously
addressed in a prior grievance. W. Va. Code R. § 5.3. If the Warden/Administrator
determines any of those four defects is present, he must reject the appeal. Id. If the
grievance is properly appealed, the Warden/Administrator is required to respond to
the appeal within five (5) days. W. Va. Code R. § 90-9-5.4. A grievance that is not
properly submitted on appeal to the Warden/Administrator must be rejected. Id.

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Once the inmate receives a response from the Warden/Administrator on the
merits (or the Warden/Administrator has not responded in five (5) days as required),
the inmate has five (5) days to appeal the Warden/Administrator’s decision to the
Commissioner. W. Va. Code R. § 90-9-6.1. Appeals to the Commissioner must contain
exactly one grievance per envelope. Id. The Commissioner is also required to
determine (a) whether the grievance was filed in a timely manner; (b) whether the
grievance contains excessive pages; (c) whether the grievance is not submitted in the
proper format; and (d) whether the grievance seeks to discuss matters that were
previously addressed in a prior grievance. W. Va. Code R. § 90-9-6.3. If the
Commissioner determines any of those four defects is present, he must reject the
appeal. Id. If the grievance is properly appealed from the Warden/Administrator, the
Commissioner is required to respond to the appeal within ten (10) days. W. Va. Code
R. § 90-9-6.4. A grievance that is not properly submitted on appeal to the
Warden/Administrator must be rejected. Id.
“A rejected grievance does not exhaust the grievance process or that step of the
process.” Id. (emphasis added)
b. Relevant Grievances
On October 5, 2017, the court ordered the defendants to supplement the record
with Grievance No. 13-MOCC-Q2-1810 as well as any other grievances filed by the
plaintiff between November 19, 2013 and May 23, 2014 that related to The Event.
Ord. [ECF No. 187]. On October 12, 2017, the defendants complied with the court’s
order and filed the responsive grievances (in addition to numerous non-responsive

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grievances). Not. Compliance [ECF No. 188]. I will address each relevant grievance
to determine if the plaintiff exhausted his administrative remedies.
i. Grievance No. 13-MOCC-Q2-1810
Grievance No. 13-MOCC-Q2-1810 relates to The Event because it states: “Nov.
19.13 placed in chair for 8 hrs after being maced then tazered 15 seconds
[indecipherable] an made to do the whole 8 hrs.” Not. Compliance Ex. A, at 2 [ECF
No. 188-1]. While the grievance appears to have been timely submitted to the Unit
Manager

on

November

24,

2013,

it

was

not

timely

appealed

to

the

Warden/Administrator. The Unit Manager responded on November 25, 2013;
however, the appeal to the Warden/Administrator was not filed until December 5,
2013, six (6) days beyond the permissible five (5) day window for appeals.
Additionally, the grievance was never appealed to the Commissioner. Accordingly, I
FIND that the plaintiff did not exhaust his administrative remedies with respect to
Grievance No. 13-MOCC-Q2-1810.
ii. Grievance No. 13-MOCC-Q2-1814
Grievance No. 13-MOCC-Q2-1814 relates to The Event because it states: “Nov.
19.13 ([indecipherable]) C.O. Miller an others mace me for pouring out juice in my
toilet in Q2 712 (?) I never showed a sign of violence (indecipherable) at all, all I done
is poured out my juice then mace.” Mot. by Andrew Miller Summ. J. Ex. 1, at 2 [ECF
No. 178-1]. While the grievance was timely submitted to the Unit Manager on
November 24, 2013, it was rejected by the Unit Manager because the issue had been
previously addressed in Grievance No. 13-MOCC-Q2-1810. See W. Va. Code R. § 90-

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9-4.4 (requiring rejection of a grievance seeking to present an issue already
addressed). The grievance was appealed to the Warden/Administrator and to the
Commissioner, and at both stages, it was rejected for procedural deficiencies.
Accordingly, I FIND that the plaintiff did not exhaust his administrative remedies
with respect to Grievance No. 13-MOCC-Q2-1814.
iii. Grievance No. 13-MOCC-Q2-1815
Grievance No. 13-MOCC-Q2-1815 relates to The Event because it states: “Nov.
19.13 C.O. Miller an staff tazered me 15 sec 10 sec to long I thought I’m gone die all
because I dumped out the juice in a non-violent manner.” Mot. by Andrew Miller
Summ. J. Ex. 1, at 4. This grievance suffers from the same deficiencies as Grievance
No. 13-MOCC-Q2-1814. Accordingly, I FIND that the plaintiff did not exhaust his
administrative remedies with respect to Grievance No. 13-MOCC-Q2-1815.
iv. Grievance No. 14-MOCC-Q2-629
Grievance No. 14-MOCC-Q2-629 relates to The Event because it states: “Name
of C.O that tazered me 3x on Nov. 19, 2013.” Not. Compliance Ex. A, at 66. This
grievance was submitted on May 5, 2014, significantly more than 15 days after The
Event occurred on November 19, 2013. As noted above, inmates have 15 days to
submit their initial grievance on a matter. W. Va. Code R. § 90-9-4.1. Therefore,
Grievance No. 14-MOCC-Q2-629 was untimely submitted. If a grievance is untimely,
the Unit Manager is required to reject it, and a rejected grievance fails to exhaust the
inmate’s administrative remedies. W. Va. Code R. § 90-9-4.4; W. Va. Code R. § 90-9-

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6.4. Accordingly, I FIND that the plaintiff did not exhaust his administrative
remedies with respect to Grievance No. 14-MOCC-Q2-629.
v. Grievance No. 14-MOCC-Q2-366
Grievance No. 14-MOCC-Q2-366 relates to The Event because it states:
“Placed in restraint chair for 8 hrs after being maced and tazered 15 seconds for
dumping out juice.” Not. Compliance Ex. A, at 74. This grievance was submitted to
the Unit Manager on March 19, 2014, significantly more than 15 days after The
Event. This grievance suffers from the same deficiencies as Grievance No. 14-MOCCQ2-629. Accordingly, I FIND that the plaintiff did not exhaust his administrative
remedies with respect to Grievance No. 14-MOCC-Q2-366.
vi. Grievance No. 13-MOCC-Q2-1876
Grievance No. 13-MOCC-Q2-1876 relates to The Event because it states:
“Placed in chair 8 hrs after maced an[d] tazered by C.O. Miller.” Not. Compliance Ex.
A, at 76. This grievance was submitted to the Unit Manager on December 11, 2013,
22 days after The Event occurred on November 19, 2013. Although this grievance
does not appear to have been timely filed, the plaintiff received a response on the
merits from both the Unit Manager and the Warden/Administrator. However, he did
not appeal the Warden/Administrator’s determination to the Commissioner.
Accordingly, I FIND that the plaintiff did not exhaust his administrative remedies
with respect to Grievance No. 13-MOCC-Q2-1876.

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vii. Grievance NO. 14-MOCC-Q2-136
Grievance No. 14-MOCC-Q2-136 relates to The Event because it states: “C.O.
Miller & team mace me tazerd me an[d] put me in restraint chair 8 hrs then on b.m.p.
6 months.” Not. Compliance Ex. A, at 78. This grievance was submitted to the Unit
Manager on February 3, 2014. The following day, it was rejected by the Unit Manager
for being incomplete and not specifying dates and times of the issue complained
about. The plaintiff appealed this rejection to the Warden/Administrator, and the
Warden/Administrator rejected the appeal on the same grounds. As previously
stated, a rejection does not exhaust the grievance. Accordingly, I FIND that the
plaintiff did not exhaust his administrative remedies with respect to Grievance No.
14-MOCC-Q2-136.
viii. Grievances Nos. 14-MOCC-Q2-530 and 15-MOCC-Q2-28
In his response to the defendants’ Motion for Summary Judgment, the plaintiff
claims that he exhausted his administrative remedies with respect to The Event via
Grievances Nos. 14-MOCC-Q2-530 and 15-MOCC-Q2-28. Resp. by Pl. in Opp’n 1; see
Resp. (add’l) by Pl. in Opp’n 1. Grievance No. 14-MOCC-Q2-530 states the nature of
the grievance as “medical.” Resp. by Pl. in Opp’n. Ex. A, at 3 [ECF No. 147-1]. It
requests “proper medical attention to resolve the conflict.” Id. The plaintiff submitted
Grievance No. 14-MOCC-Q2-530 to the Unit Manager on April 23, 2014. Id.
Grievance No. 15-MOCC-Q2-28 states the nature of the grievance as “medical.” Resp.
by Pl. in Opp’n. Ex. A, at 1. It requests “treatment to resolve the problem” as relief.

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Id. The plaintiff submitted Grievance No. 15-MOCC-Q2-28 to the Unit Manager on
January 25, 2015. Id.
Based on the submission dates alone, both grievances would be untimely if
they were related to The Event, which occurred on November 19, 2013. However, it
is clear that these grievances do not relate to The Event based on the nature of the
issue complained about in each one. Grievances regarding medical treatment are not
grievances regarding excessive use of force by correctional officers on inmates.
Accordingly, I FIND that Grievance Nos. 14-MOCC-Q2-530 and 15-MOCC-Q228 do not relate to The Event, and I FIND the plaintiff did not exhaust his
administrative remedies regarding The Event via Grievance Nos. 14-MOCC-Q2-530
and 15-MOCC-Q2-28.
IV.

Conclusion
Under the PLRA, the defendants are entitled to judgment as a matter of law if

the inmate fails to exhaust his administrative remedies. This is so even when, as
here, a prisoner has made most serious allegations of mistreatment by prison
officials. Having reviewed the record, I FIND that the plaintiff failed to exhaust his
administrative remedies regarding The Event that occurred on November 19, 2013,
where the defendant correctional officers pepper sprayed and tasered the plaintiff,
and then placed him in the restraint chair for eight hours and which is the subject of
the present lawsuit. The defendants’ second Motion for Summary Judgment [ECF
No. 145] is GRANTED. The plaintiff’s cross Motion for Summary Judgment [ECF No.
178] is DENIED.

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The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:

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December 12, 2017