Saunders v. Kummer et al

Filing 67

MEMORANDUM OPINION AND ORDER granting 51 MOTION by Baisden, Kummer for Summary Judgment; all claims asserted against defendants CO II John Kummer and Lt. Jimmie Baisden are dismissed without prejudice, as set forth herein. Signed by Senior Judge John T. Copenhaver, Jr. on 4/26/2021. (cc: counsel of record; any unrepresented parties) (kew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
QUAUNTEL SAUNDERS,
Plaintiff,
v.

Civil Action No. 2:18-cv-01514

CO II KUMMER and LT. BAISDEN,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is defendants CO II John Kummer and Lt. Jimmie
Baisden’s motion for summary judgment, filed December 8, 2020.
ECF No. 51.
I.

Background

Plaintiff Quauntel Saunders, proceeding pro se, filed
this action, using the United States District Court for the
Southern District of West Virginia’s form complaint for 42
U.S.C. § 1983 claims, on December 13, 2018.

ECF No. 2.

Saunders, an inmate at Mount Olive Correctional Complex, alleges
in his complaint that Kummer, accompanied by CO I David Ewing,
sprayed him with “phantom (clear out),” a type of pepper spray,
on February 27, 2017 “for no reason at all.”

Id. at ¶ IV.

Saunders claims that contrary to the directions of medical

staff, Kummer and Lt. Baisden did not allow him to shower and
wash off the pepper spray for three days after placing him back
in the pod where the assault allegedly occurred.

Id.

He states

that he developed skin problems from the pepper spray and that
defendant Dr. Charles Lye refused to treat the problems.

Id.

Saunders initially asserted unspecified claims against Kummer,
Ewing, Baisden, and Lye, which he later clarified as claims
alleging cruel and unusual punishment under the Eighth and
Fourteenth Amendments to the United States Constitution.

Id.;

ECF No. 21, at 1.
The matter was referred to United States Magistrate
Judge Dwane L. Tinsley pursuant to 28 U.S.C. § 636(b)(1)(B).
After all four defendants moved to dismiss, the magistrate judge
issued a Proposed Findings & Recommendation (“PF&R”) on December
18, 2019, recommending that the claims against Kummer and
Baisden be allowed to proceed while the claims against Ewing and
Lye be dismissed.

ECF No. 31.

As relevant to the motion for

summary judgment, the magistrate judge considered whether the
claims alleged against the defendants should be dismissed for
failure to exhaust under the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a).

Id. at 5-13.

The magistrate

judge determined that although the grievances concerning the
specific allegations against Kummer and Baisden (Nos.

2

17-MOCC-Q2-64 (February 28, 2017) and 17-MOCC-Q2-81 (March 2,
2017)) did not document complete administrative appeals to the
Commissioner of the West Virginia Division of Corrections and
Rehabilitation (“Commissioner”), several other grievances,
including Nos. 17-MOCC-Q2-98 (March 10, 2017) and 17-MOCC-Q2-141
(March 29, 2017), complain that the plaintiff did not receive a
response from the warden on one of these prior grievances, No.
17-MOCC-Q2-64.

Id. at 10-11.

Further, the magistrate judge

noted that Saunders alleged in grievance No. 17-MOCC-Q2-141 that
prison staff had tampered with his grievance mail.

Id. at 11.

Inasmuch as it was not clear at the motion to dismiss stage
whether administrative remedies were “available” to Saunders,
the magistrate judge concluded that the case against Kummer and
Baisden should not be dismissed without further factual
development.

Id. at 11-12.

The magistrate judge also found

that the grievances at issue did not address the conduct of
Ewing or Lye and recommended that the claims against them be
dismissed.

Id. at 12-13.
The court adopted the PF&R on January 15, 2020,

dismissing the claims alleged against Ewing and Lye.
32.

ECF No.

Counsel entered an appearance for Saunders on March 26,

2020.

ECF No. 33.

3

Kummer and Baisden subsequently filed the pending
motion for summary judgment on December 8, 2020, citing a
failure to exhaust by Saunders as grounds for dismissal of the
claims alleged against them.

ECF No. 51.

The exhaustion issue

largely turns on administrative grievances filed by the
defendant, of which seventeen appear in the record.

Some are

entirely unrelated to this case, but several grievances warrant
specific discission.
First, grievance No. 17-MOCC-Q2-64 (February 28, 2017)
alleges as follows:
On 2-27-17 @ 5:30 pm I was maced by CO II Kummer for
no reason. He ignored the actual kickers and scouted
the pod for someone he wouldn’t have any backlash
from. I was a victim of the OC [pepper spray] due to
my asthma issues. I want someone reprimanded and this
whole issue reviewed pending a civil suit.
ECF No. 51-1 (emphasis in original).

The unit manager responded

to the grievance on March 1, 2017, stating that “[a]ccording to
3 officer witnesses, You kicked your door in front of Officer
Kummer which forced him to use force to ensure your safety and
to ensure st[ate] property was not destroyed.”
original).

Id. (emphasis in

The sections of the grievance form designated for

appeals to the warden and Commissioner are left blank on No.
17-MOCC-Q2-64.

Id.

4

Grievance No. 17-MOCC-Q2-81, dated March 2, 2017,
states as follows:
I got mased on February 27, 2016 [sic] around 5:30 pm
for no reason. I was left in my cell for 30-45
minute[s] with out air. I have several burn marks on
my visible [and] private area[s] because of this. I
keep burning an[d] my burns are getting worse because
I stil[l] haven’t been in the shower. It[’]s been
over 72 hours since I been mased. And I still haven’t
been able to wash this mase off me an[d] clean my burn
marks. Not once was I offered a shower an[d] I
ask[ed] several times. I want a thorough
investigation done on this use of force due to my
civil suit I plain [sic] to file.
ECF NO. 51-2.

The unit manager responded on March 2, 2017, by

stating that “[a]ll uses of force are looked into and reviewed
for any wrongdoing.”

Id.

Saunders initialed the form’s space

for “Appealed to Warden/Administrator.”

Id.

The warden

responded on March 9, 2017, “You were decontaminated and
evaluated by medical staff afterward.

If you have a medical

issue, submit an Inmate Health Services Request form.”

Id.

The

space for initialing an appeal to the Commissioner is left
blank, and no response to an appeal from the Commissioner is
indicated on grievance No. 17-MOCC-Q2-81.

Id.

In grievance No. 17-MOCC-Q2-98, dated March 10, 2017,
Saunders wrote that:
I sent two grievance appealed to the warden on the
same day. I receive [sic] one back and not the
important one that I need to send to my lawyer. I
have a copy of it. But I want another copy because I
5

don’t think it was sent to the warden because it has
something to do with my civil suit. I want my
grievance sent to the warden or receive [sic] it back
so I can send it to the Commissioner so I can get it
to my lawyer.
ECF No. 51-3.

The unit manager responded on March 13, 2017,

“The Warden has 30 days to answer your appeal.”

Id.

Saunders

initialed the space designated for an appeal to the warden and
dated the appeal March 15, 2017.

Id.

The warden responded on

March 27, 2017, stating, “The only grievance we received from
you was 17-MOCC-Q2-81.

We received it on 3-6-17 and a response

was given and the grievance was mailed to you on 3-9-17.”

Id.

Saunders did not initial the space designated for an appeal to
the Commissioner, and grievance No. 17-MOCC-Q2-98 contains no
response from the Commissioner to any appeal.
On March 29, 2017, Saunders filed grievance No.
17-MOCC-Q2-141.

ECF No. 51-4.

This grievance complains:

The Warden said that he never got my 17-MOCC-Q2-64 but
he did received [sic] my 17-MOCC-Q2-[81] . . . they
were sent out my door at the same time . . . . I think
someone [is] tampering with the mail an[d] grievance.
[T]his [is] not the first time this has happen[ed]. I
still have my copy but I’m scar [illegible, presumed
to be “scared”] to give it up to any one because that
might come up missing . . . . I want to know why my
grievance wasn’t sent to the Warden. I want the
unlawful action of the Correctional Officers took care
of and I want my grievance to be sent and answer[ed]
by the Warden so I can follow up with my civil suit .
. . .

6

Id.

The unit manager responded: “I do not have anything to do

with the mail.
gotten it.
it.”

Id.

If you sent it to the Warden he should have

Check your paperwork and make sure you for sure sent
Saunders did not initial the spaces for appeals to

the warden or Commissioner, and no responses from those
officials appear on grievance No. 17-MOCC-Q2-141.

Id.

Most of the remaining relevant grievances similarly
complain of mail tampering, Saunders’ assertion that the warden
and Commissioner did not receive the earlier grievances, or
Saunders’ belief that certain grievances had gone missing.

Of

these grievances, grievance Nos. 18-MOCC-Q2-299 (April 4, 2018),
18-MOCC-Q2-302 (April 8, 2018), 18-MOCC-315 (April 10, 2018),
18-MOCC-Q2-320 (April 10, 2018), 18-MOCC-Q2-385 (April 25,
2018), and 18-MOCC-Q2-387 (April 25, 2018) all include appeal
responses from the warden and the Commissioner.

ECF No. 21-1.

Grievance Nos. 18-MOCC-Q2-270 (March 28, 2018) and
18-MOCC-Q2-286 (March 30, 2018) include responses from the
Commissioner but not the warden.

Id.

One other grievance, No. 18-MOCC-Q2-321 (April 10,
2018), states as follows:
I was sprayed on Feb. 27th 2017 by CO II Kummer. I was
left in my cell for 45 m[illegible, presumed to be
“minutes.”] Then wasn’t able to take a shower for 3
days[. D]ue to all of that my skin breaks out if I use

7

certain soap like CCB & Irish Spring/I also have dry
skin because of that.
ECF No. 21-1, at 6.

The unit manager responded, “You may order

whatever is approved at the commissary for your level.”

Id.

Saunders initialed an appeal to the warden on April 18, 2018,
who responded on April 25, 2018, “Untimely.
occurred in February 2017.”

Id.

Issue allegedly

Saunders initialed an undated

appeal to the Commissioner, who affirmed the warden’s denial of
the grievance.

Id.

In support of their position for summary judgment, the
defendants offer the following requests for admission and
accompanying responses by the plaintiff:
6. Please admit that you have no evidence that your
mail was tampered with:
RESPONSE: No, I don’t have any evidence.
7. Please admit that you have no evidence that your
mail was tampered with by correctional staff.
RESPONSE: No, I don’t have any evidence.
ECF No. 51-5, at 2.

In response to the motion for summary

judgment, Saunders has provided an affidavit, stating, in
relevant part:
2.
The defendants have filed a motion for
summary judgment based on the grounds that I did not
exhaust my administrative remedies regarding my claims
against Baisden and Kummer;

8

3.
I state under oath that I did. I appealed
multiple grievances to the Commissioner in Charleston,
West Virginia in regard to the excessive
force/unlawful conduct carried out by Defendant Kummer
and Baisden;
4.
I complained both verbally and in writing
through subsequent grievances that correctional
officers or other staff were interfering with my mail;
5.
I did everything within my ability to
exhaust my administrative remedies. I even filed new
grievances stating that my mail and grievances were
being interfered with . . . .
ECF No. 55-1.
II.

Legal Standard

Summary judgment is appropriate only “if 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).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010).

A “genuine” dispute of material fact

exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party.

Anderson, 477 U.S. at 248.

9

The parties disagree as to the court’s precise role in
resolving the exhaustion issue.

The defendants claim that

exhaustion of administrative remedies under the PLRA is a matter
of law to be decided by the court.

ECF No. 52, at 8 (citing

Creel v. Hudson, No. 2:14-cv-10648, 2017 WL 4004579, at *3 (S.D.
W. Va. Sept. 12, 2017)).

Saunders contends that notwithstanding

his substantive arguments concerning exhaustion, the evidence on
exhaustion presents triable issues of fact to be decided by a
jury.

ECF No. 55, at 6-7 (collecting cases).
As the defendants note, this court has found that

exhaustion under the PLRA is a question of law to be determined
by the court.

Creel, 2017 WL 4004579, at *3 (citing Lee v

Willey, 789 F.3d 673, 678 (6th Cir. 2015); Drippe v. Tobelinski,
604 F.3d 778, 782 (3d Cir. 2010)); see also Russell v. Butcher,
No. 2:19-cv-00918, 2020 WL 4043080, at *5 (S.D. W. Va. July 17,
2020); Murray v. Matheney, No. 2:13-cv-15798, 2017 WL 4684746,
at *2 (S.D. W. Va. Oct. 18, 2017).

Relatedly, the Fourth

Circuit has commented that “[j]udges may resolve factual
disputes relevant to the exhaustion issue without the
participation of a jury.”

Woodhouse v. Duncan, 741 F. App’x

177, 178 (4th Cir. 2018) (quoting Small v. Camden Cnty., 728
F.3d 265, 271 (3d Cir. 2013)).

Thus, the court will resolve all

factual and legal issues concerning exhaustion.

10

III. Analysis
The defendants argue that the plaintiff did not
exhaust the two grievances that substantively describe the
allegations against Kummer and Baisden, grievance Nos.
17-MOCC-Q2-64 (February 28, 2017) and 17-MOCC-Q2-81 (March 2,
2017), inasmuch as they were not appealed to the Commissioner as
required by West Virginia law.

ECF No. 52, at 9.

The

defendants acknowledge that Saunders maintained in later
grievances that prison personnel had tampered with his mail but
point out that he actually conceded in grievance Nos.
17-MOCC-Q2-98 and 17-MOCC-Q2-141 that the warden had received an
appeal of grievance No. 17-MOCC-Q2-81, which suggests that
personnel did not tamper with the mail.

Id.

Further, they

contend that Saunders has admitted in his response to the
requests for admission that he has no evidence of mail
tampering.

Id.
Saunders responds that he was not required to exhaust

administrative remedies under the PLRA inasmuch as such remedies
were not “available” to him.

ECF No. 55, at 3-5.

He argues

that the subsequent grievances, his affidavit, and his pro se
pleadings establish that prison officials failed to provide him
with an available administrative remedy.

Id. at 5.

He also

contends that grievance Nos. 18-MOCC-Q2-302 (April 8, 2018) and

11

18-MOCC-Q2-320 (April 10, 2018) addressed the earlier filed
grievances and were accepted by the Commissioner, which
“[a]rguably . . . demonstrate[s] that plaintiff did exhaust his
administrative remedies or at the very least constructively
exhausted his remedies when plaintiff’s grievances finally
completed their journey through the system.”

Id.

The PLRA provides 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 language of the statute imposes a

mandatory exhaustion requirement on prisoners with “one
significant qualifier: the remedies must indeed be ‘available’
to the prisoner.”

Ross v. Blake, 136 S. Ct. 1850, 1856 (2016).

The Ross Court explained that such remedies may be unavailable
where “an administrative procedure . . . operates as a simple
dead end,” “an administrative scheme [is] so opaque that it
becomes, practically speaking, incapable of use,” or “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.”

Id. at 1859-61.

12

Generally, failure to exhaust under the PLRA is an
affirmative defense that must be proved by a defendant.

See

Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citing
Jones v. Bock, 549 U.S. 199 (2007); Anderson v. XYZ Correctional
Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005)).
However, “in order to show that a grievance procedure [is] not
‘available,’ a prisoner must adduce facts showing that he was
prevented, through no fault of his own, from availing himself of
that procedure.”

Graham v. Gentry, 431 F. App’x 660, 663 (4th

Cir. 2011) (citing Moore, 517 F.3d at 725); accord Creel, 2017
WL 4004579, at *4 (“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.”)
Under the West Virginia Prison Litigation Reform Act,
the state’s equivalent of the PLRA, “[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).

Further,

[a]n 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

13

designee, or the Executive Director of the Regional
Jail Authority, or the Director’s designee.
W. Va. Code § 25-1A-2(d).
The procedures for filing and exhausting inmate
grievances are provided for by the Commissioner’s Policy
Directive 335.00 (August 1, 2013). 1

The Policy Directive holds

that:
[a]n 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.” Only one issue or complaint may be
grieved per form, and the inmate must submit the form
to his or her unit manager. Upon receipt of the
grievance form, the unit manager logs the grievance
and assigns it a number. The unit manager is required
to return an answer to the grievance back to the
inmate within five days. 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.”
“The Warden/Administrator shall respond to the appeal
... within five (5) days.” 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. The
1

The court notes that counsel for the defendants suggest
that W. Va. C.S.R. § 90-9-3, et seq., provides the applicable
grievance procedures. ECF No. 52, at 8. The court further
notes, as United States District Judge Joseph R. Goodwin did in
a case with the same counsel, Russell v. Butcher,
No. 2:19-cv-00918, 2020 WL 4043080, at *6 n. 3 (S.D. W. Va. July
17, 2020), that Section 90 of the West Virginia Code of State
Rules was repealed in 2016.
14

Commissioner is allotted ten days to respond to the
appeal.
Miller v. Rubenstein, No. 2:16-cv-05637, 2018 WL 736044, at *5-6
(S.D. W. Va. Feb. 6, 2018) (quoting Policy Directive 335.00, at
5-9).
The court first turns to the plaintiff’s assertion
that the Commissioner’s acceptance of grievance Nos.
18-MOCC-Q2-302 (April 8, 2018) and 18-MOCC-Q2-320 (April 10,
2018) arguably constitutes exhaustion or constructive exhaustion
of administrative remedies.

In their reply, the defendants

assert that constructive exhaustion is inconsistent with the
Supreme Court’s mandatory exhaustion rule and note, correctly,
that the plaintiff cites no law in support of his arguments on
this issue.

ECF No. 56, at 9-11.

Notwithstanding these cogent points, the court
observes that grievance Nos. 18-MOCC-Q2-302 and 18-MOCC-Q2-320
concern vague allegations about missing grievances and mail
tampering.

-Q2-64 and

17-MOCC-Q2-81, however, they do not discuss the underlying facts
surrounding the allegations made against Kummer and Baisden in
this case, i.e., the unjustified use of pepper spray and the
officers’ action to prevent Saunders from showering.

Nor could

they under the Policy Directive inasmuch as it requires that
each grievance complain of only one issue.
15

Further, even if these grievances dated April 8, 2018,
and April 10, 2018, respectively, did discuss the allegations
against Kummer and Baisden, they were submitted more than one
year after the alleged incidents that gave rise to this
litigation.

Their filing would contravene the Policy

Directive’s requirement that grievances be submitted “within
fifteen (15) days of any occurrence that would cause [an inmate]
to file a grievance.”

Policy Directive 335.00, at 5-6.

Additionally, while grievance No. 18-MOCC-Q2-321 touches on the
actions attributed to Kummer and Baisden and was appealed to the
Commissioner, 2 it is dated April 10, 2018, which is also more
than one year after the alleged incidents occurred in late
February and early March 2017.

The court accordingly concludes

that grievance Nos. 18-MOCC-Q2-302, 18-MOCC-Q2-320, and
18-MOCC-Q2-321 do not satisfy the PLRA exhaustion requirement as
effected by W. Va. Code § 25-1A-2 and Policy Directive 335.00.
Moreover, Saunders has produced no evidence to suggest
that administrative remedies were unavailable.

He has admitted

that he has no evidence that prison personnel tampered with his
mail.

His affidavit avers that he complained through multiple

grievances about mail interference, and while it is apparent

2

It is noted that Saunders does not argue that grievance No.
18-MOCC-Q2-321 satisfies the exhaustion requirement.
16

that he made such complaints, neither they, nor the affidavit,
establish that any interference actually occurred.

And while

his affidavit establishes that he appealed multiple grievances
to the Commissioner, another ostensibly true point, he appears
to have gotten responses on every appeal to the Commissioner
that he initialed on the respective grievance forms.
This stands in stark contrast to the two timely
grievances that substantively pertain to Saunders’ allegations
in this case, Nos. 17-MOCC-Q2-64 and 17-MOCC-Q2-81, which lack
the plaintiff’s initials in the spaces designated for appeals to
the Commissioner.

Absent any evidence to the contrary, the

clear implication is that Saunders did not initial the spaces
for appeals to the Commissioner inasmuch as he did not attempt
to appeal them.

This conclusion is significantly more plausible

than his unsubstantiated theory that personnel were tampering
with his mail to hinder a forthcoming civil action against them,
particularly in light of the fact that he appealed one of these
grievances, No. 17-MOCC-Q2-81, to the warden (but not the
Commissioner) and received a response without incident or any
indication of mail interference.
Inasmuch as Saunders failed to appeal grievance Nos.
Nos. 17-MOCC-Q2-64 and 17-MOCC-Q2-81 to the Commissioner and
there is no evidence of mail interference, the court finds that

17

the plaintiff has failed to exhaust available administrative
remedies as required by the PLRA.

Summary judgment will be

entered in favor of the defendants.
IV.
Accordingly, it is ORDERED that the defendants’ motion
for summary judgment (ECF No. 51) be, and it hereby is, GRANTED.
All claims asserted against defendants CO II John Kummer and Lt.
Jimmie Baisden are dismissed without prejudice.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record and any
unrepresented parties.
ENTER:

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April 26, 2021