Ferrell et al v. Miller et al

Filing 13

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 6 Proposed Findings and Recommendation by the Magistrate Judge; the Court ORDERS that the Plaintiff's 12 Objections be OVERRULED and that the Plaintiffs' 1 Complaint be DISMISSED WITH PREJUDICE; the Corut ORDERS that this matter be REMOVED from the Court's docket. Signed by Judge Irene C. Berger on 1/10/2014. (cc: Magistrate Judge VanDervort; attys; any unrepresented party) (slr)

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

WILLIAM ERNEST FERRELL, et al.,
Petitioners,
v.

CIVIL ACTION NO. 5:10-cv-01293

TERRY MILLER, et al.,
Respondents.

MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiffs’ Complaint (Document 1), the Magistrate Judge’s
Proposed Findings and Recommendation (PF&R) (Document 6), and Plaintiff Gary W.
Garretson’s Objection to Proposed Findings and Recommendation (Document 12). By Standing
Order (Document 2) entered on November 10, 2010, this action was referred to the Honorable R.
Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed
findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
On November 6, 2013, the Magistrate Judge submitted his PF&R, wherein he
recommended that this Court dismiss the Plaintiffs’ complaint. Following careful consideration,
the Court finds that the Magistrate Judge’s PF&R should be adopted and the Plaintiff’s objections
should be overruled.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The Magistrate Judge sets forth the factual allegations and procedural history in detail.
The Court now incorporates by reference those facts and procedural history. To provide context
for the ruling herein, the Court provides the following summary.
On November 10, 2010, the Plaintiffs, four men held in the protective custody unit at
Southern Regional Jail, filed a Complaint (Document1) alleging violations of 42 U.S.C. § 1983.
They name as defendants Terry Miller, Director of the West Virginia Regional Jail Authority, and
Vicki Greene, Administrator of the Southern Regional Jail. Plaintiff Ferrell appears to have
written the bulk of the complaint, and the three other plaintiffs wrote and signed additional
supportive pages recounting their own experiences. Plaintiff Ferrell alleges that he was assaulted
twice by fellow inmates, and prison officials first laughed it off, then, following his renewed
complaint, moved him to protective custody. He further alleges that his serious medical needs
have not been met by the defendants.
The Plaintiffs collectively allege a number of related problems at Southern Regional Jail.
As an overarching concern impacting each of the more specific allegations, they state that the jail
is overcrowded and operates near double capacity. In part due to the overcrowding, tensions are
high and there are frequent altercations between guards and inmates and between inmates. More
specifically, the Plaintiffs allege that protective custody inmates are housed in the same unit, and
under the same restrictions, as disciplinary lockdown and administrative segregation inmates.
The Plaintiffs, all protective custody inmates at the time the complaint was filed, allege that the
disciplinary lockdown and administrative segregation inmates throw feces and urine at protective
custody inmates, a situation compounded by the lack of access to cleaning supplies in the unit.

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Protective custody inmates are kept on lockdown twenty three (23) hours per day, while the
general population has extensive dayroom free time and an hour of daily outdoor recreation.
Finally, the Plaintiffs allege that the law library, which has one computer that is often inaccessible,
one typewriter, and space for only two inmates at a time, is insufficient to meet the needs of the
inmates. They request that a larger law library at Southern Regional Jail, which is currently not in
use, be opened.
The Plaintiffs attached grievance forms and responses, noting on the forms when no
response was received. These exhibits include: a copy of Plaintiff Ferrell’s September 12, 2010
“Inmate Grievance” requesting medical treatment (Compl. at 17); a copy of Plaintiff Ferrell’s
September 9, 2010 “Inmate Request” for law books (Id. at 18); a copy of Plaintiff Ferrell’s
September 12, 2010 “Inmate Grievance” seeking medical treatment (Id. at 19); a copy of Plaintiff
Ferrell’s September 10, 2010 Inmate Grievance and Appeal to the Chief of Operations concerning
the conditions in the protective custody unit (Id. at 20–21)(noting lack of response) and a copy of
Plaintiff Ferrell’s September 13, 2010 request for an answer to a medical question (Id. at 22.)
The Magistrate Judge recommends that the Complaint be dismissed for failure to exhaust
administrative remedies as required. (PF&R at 7.) Plaintiff Gary W. Garretson was the only
Plaintiff to submit objections to the PF&R. 1

In his objections, this Plaintiff asserts that

administrative exhaustion was not required because the complaint made allegations of physical
abuse, specifically the assault alleged by Plaintiff Ferrell.

1 Mr. Garretson is now housed at the St. Mary’s Correctional Center. Mail sent to each Plaintiff at Southern
Regional Jail was returned as undeliverable, and resent if another address was available. However, no current address
was available for any other Plaintiff. It appears that none of the Plaintiffs is currently housed at Southern Regional
Jail. If this case were not subject to dismissal for failure to exhaust administrative remedies, it would likely be
dismissed as moot, as the Plaintiffs seek declaratory and injunctive relief to ameliorate the conditions they complained
of at Southern Regional Jail.

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II.

STANDARD OF REVIEW

28 U.S.C. § 1915A provides for screening of any complaint “in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. §
1915A(a).

Before permitting the case to move forward or requiring a response from the

defendants, “the court shall identify cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief
may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.”
§ 1915A(b). The Magistrate Judge recommends, based on his screening of the case, that the
Plaintiffs’ complaint be dismissed for failure to state a claim upon which relief may be granted due
to failure to exhaust administrative remedies.
This Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
However, the Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review when a party “makes general and conclusory objections
that do not direct the Court to a specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). When reviewing
portions of the PF&R de novo, the Court will consider the fact that Plaintiffs are acting pro se, and
their pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir.1978).

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III.

DISCUSSION

The Magistrate Judge clearly and thoroughly explained the grievance procedure at the
West Virginia Regional Jail Authority, as well as the steps taken—and not taken—by the
Plaintiffs. (PF&R at 6–7.) The Court hereby adopts his explanation and incorporates it by
reference. In summary, the Plaintiffs initiated the grievance process with respect to certain of
their claims, but did not properly exhaust by making timely appeals up to and including appeals to
the Office of the Executive Director. (Id. at 7; Compl. Ex. at 17–22.) Mr. Garretson does not
dispute the fact that administrative remedies were not exhausted, though he does note that the
Plaintiffs filed grievances without receiving responses. (Obj. at 2.) Instead, he asserts, based on
West Virginia Code § 25-1A-2, that “[b]ecause Plaintiff has brought a civil action alleging past,
current and/or imminent physical abuse, the requirement to exhaust administrative remedies does
not apply, and Plaintiff should be excused from that requirement.” (Id.)
The Prison Litigation Reform Act (PLRA) requires that inmates filing civil actions
regarding prison conditions first exhaust available administrative remedies.

42 U.S.C. §

1997e(a). It provides in relevant part:
No 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.A. § 1997e(a). The Supreme Court has repeatedly affirmed the broad nature of the
exhaustion requirement in the PLRA, including its application to cases involving assault and
excessive force allegations. Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[W]e hold that the
PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve
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general circumstances or particular episodes, and whether they allege excessive force or some
other wrong.”); Booth v. Churner, 532 U.S. 731, 741 (2001).

Though failure to exhaust

administrative remedies is an affirmative defense and not a pleading requirement, “even if it is not
apparent from the pleadings that there are available administrative remedies that the prisoner failed
to exhaust, a complaint may be dismissed on exhaustion grounds so long as the inmate is first
given an opportunity to address the issue.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008);
see also Anderson v. XYZ Correctional Health Services, 407 F.3d 674, 683 (4th Cir. 2005). Here,
the Plaintiffs discussed their administrative grievances in their complaint and attached as exhibits
the grievances they filed.

They had the opportunity, through objections to the PF&R, to

demonstrate that they had, in fact, exhausted administrative remedies. Thus, the Court may
properly dismiss for failure to exhaust administrative remedies pursuant to 28 U.S.C. § 1915A
screening.
Mr. Garretson cites the West Virginia Prison Litigation Reform Act, which has its own
exhaustion requirement, but provides an exception for cases alleging past, current, or imminent
physical abuse. The federal PLRA governs this case as a federal action filed in federal court.
However, the federal PLRA was designed to incorporate the state administrative procedures that it
requires inmates to exhaust before filing their lawsuits. Jones v. Bock, 549 U.S. 199, 218 (2007)
(noting that “it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”) Nonetheless, inmates filing suits governed by the PLRA are required to exhaust
“such administrative remedies as are available.” 42 U.S.C. § 1997e(a). The Supreme Court has
held that inmates must complete all available administrative processes, even if the administrative
system does not offer the relief sought in the court filing. Booth v. Churner, 532 U.S. at 741.

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Other courts, considering the precise question of whether an inmate in a West Virginia prison
bringing a claim involving assault in a federal court must exhaust the state administrative
procedures, despite the state law exception, have found that the PLRA requires such exhaustion.
See, e.g. Short v. Walls, CIV.A. 2:07-0531, 2010 WL 839430 (S.D.W. Va. Mar. 5, 2010) aff'd, 412
F. App'x 565 (4th Cir. 2011) (“although plaintiff may not have been required to exhaust
administrative remedies pursuant to state procedure, the exhaustion of available remedies may
have resulted in some responsive action and is required under the PLRA.”); Short v. Greene, 577
F. Supp. 2d 790, 793 (S.D.W. Va. 2008) (thoroughly analyzing the intersection of the PLRA
exhaustion requirement with the W.Va. Code § 25-1A-2(c) exception for physical abuse, and
finding that the PLRA requires exhaustion of all administrative remedies). This Court, likewise,
finds that the PLRA mandates exhaustion of all available administrative remedies, even in cases
involving assault for which West Virginia law provides an exception for claims brought in state
courts. Accordingly, the Plaintiff’s objections must be overruled, and his claim dismissed.
Even assuming that the failure to exhaust administrative remedies did not bar this suit, Mr.
Garretson’s objections would be overruled. Pro-se plaintiffs may represent only themselves and
cannot bring claims on behalf of others. Only Mr. Ferrell’s claims of assault could be excepted
from the West Virginia administrative exhaustion requirement, and Mr. Ferrell did not file
objections to the PF&R or sign those filed by Mr. Garretson. The remaining claims clearly
involve prison conditions for which no exception to the exhaustion requirement exists, and Mr.
Garretson makes no argument that those claims either were administratively exhausted or that they
are exempt from the requirement. Though the Supreme Court has held that an unexhausted claim
does not taint exhausted claims brought within a single complaint to require dismissal of the

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whole, a claim for which exhau
w
ustion can be shown, or is not requ
e
uired, certain does not save
nly
t
unexhaus claims, as Mr. Garre
sted
etson seems to suggest. See Jones v Bock, 549 at 219–222
v.
9
2.

CO
ONCLUSIO
ON
For the reaso stated he
ons
erein, follow
wing thoroug review an careful c
gh
nd
consideration the
n,
Court he
ereby ADO
OPTS the Magistrate Judge’s Pro
M
J
oposed Find
dings and R
Recommend
dation
(Docume 6) and incorporates th herein. The Court ORDERS t the Plain
ent
hem
that
ntiff’s Objec
ctions
(Docume 12) be OVERRULED and that the Pl
ent
laintiffs’ Co
omplaint (D
Document 1 be
1)
DISMISSED WITH PREJUD
H
DICE.

Th Court fu
he
further ORD
DERS that this matte be
er

REMOV
VED from th Court’s do
he
ocket.
The Court DI
T
IRECTS the Clerk to se a certifie copy of th Order to Magistrate J
e
end
ed
his
Judge
VanDerv
vort, to counsel of record and to any unrepresent party.
d,
y
ted

ENTER:

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January 10, 2014