Opinion
Case No. 7:05cv00643.
August 17, 2006
REPORT AND RECOMMENDATION
Plaintiff John Junior Blount ("Blount"), a Virginia inmate proceeding pro se and currently being held in custody at Red Onion State Prison ("Red Onion"), filed this action under 42 U.S.C. § 1983 alleging that certain correctional officers ("C/Os") violated his constitutional rights by brutally beating him on April 24, 2004. Defendants filed a motion to dismiss on March 20, 2006, contending that Blount failed to exhaust his available administrative remedies. By Order dated April 21, 2006, this matter was referred to the undersigned for report and recommendation.
An evidentiary hearing was held on June 26, 2006 to determine whether Blount administratively exhausted his claim. For the reasons outlined below, the undersigned finds defendants have met their burden of proving Blount failed to exhaust his administrative remedies. Red Onion's grievance system contains no record of any regular grievance form filed by Blount relating to the alleged assault. Furthermore, Blount produced no evidence establishing he properly grieved the April, 2004 incident within the requisite thirty-day time frame. Therefore, it is recommended that defendants' motion to dismiss be granted.
I
Blount alleges in his complaint that he was beaten by C/Os Boyd, McConnell, Phipps, Austin, McCowan, and Kilbourne on April 24, 2004. According to Blount, the beating was racially motivated, as his attackers hurled racial epithets at him during the assault. Defendants claim Blount's § 1983 action must fail because he did not follow proper administrative exhaustion procedures to grieve the incident about which he now complains.Blount asserts he filed the proper informal complaint form after the alleged assault, but prison officials never responded. Blount argues this lack of response prevented him from continuing to pursue the grievance process. After he failed to receive a response to his informal complaint, Blount testified he filed several grievances in which he complained about never receiving a response. Plaintiff claims that prison officials failed to respond to those grievances as well. Blount testified that he also sent letters to the Attorney General and the Regional Director regarding his inability to obtain a response from prison officials. Blount filed additional complaints in 2006, all dealing with the failure of prison officials to respond to his complaints. Blount argues that prison officials thwarted his attempt to grieve by not responding to the initial informal complaint he filed.
II
The Prison Litigation Reform Act ("PLRA") requires inmates to exhaust all available administrative remedies prior to filing suit under § 1983. The PLRA provides that "[n]o action shall be brought with respect to prison conditions under § 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 have been exhausted." 42 U.S.C. § 1997(e)(a). Under the PLRA, an inmate is not only required to initiate a grievance, but must also appeal any and all denials of relief through every available level of administrative review prior to initiating suit; the inmate must properly exhaust all available administrative remedies. Woodford v. Ngo, 126 S.Ct. 2378, 2386-87 (2006). Failure to exhaust all levels of administrative review is not proper exhaustion and will bar suits by inmates brought under any federal law, including § 1983. Id. at 2383. As the Court noted in Ngo, exhaustion serves several important functions. It prevents the federal courts from overly intruding on a state's prison system, it improves the quality and reduces the quantity of suits by inmates, it provides a record that helps a reviewing court make decisions, and it allows the prison an opportunity to correct its own mistakes. Id. at 2385-88. The exhaustion requirement is mandatory and applies to all inmates.Porter v. Nussle, 534 U.S. 516, 524 (2002).
However, failure to exhaust may be excused in certain circumstances. For example, 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. See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001); Arnold v. Goetz, 245 F. Supp. 2d 527, 538-39 (S.D.N.Y. 2003); Amaro v. Taylor, 170 F. Supp. 2d 460, 464 (D. Del. 2000).
Failure to exhaust is an affirmative defense that must be proven and pleaded by the defendant. Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 683 (4th Cir. 2005). If the defendant provides sufficient evidence demonstrating that an inmate failed to exhaust available administrative remedies, a motion to dismiss should be granted. See Akins v. United States, No. 3:04-23200-MBS-JRM, 2006 WL 752845, at *2 (D.S.C. Mar. 22, 2006) (granting the motion to dismiss when undisputed evidence, including testimony from plaintiff, revealed plaintiff did not follow grievance procedures). If the record provided is unclear as to exhaustion, a court should deny a motion to dismiss. See Kahle v. Leonard, No. Civ. 04-5024-KES, 2006 WL 1519418, at *3 (D.S.D. May 26, 2006) (denying defendants' motion to dismiss on failure to exhaust grounds because the record provided was not clear, leading the court to conclude that the defendants did not meet their burden). When evidence of exhaustion is disputed, the matter should proceed to trial. See Blount v. Johnson, No. 7:04CV00429, 2005 WL 2246558, at *2 (W.D. Va. Sept. 15, 2005).
III
Red Onion's grievance procedure is outlined in Division Operating Procedure ("DOP") 866. See F. Taylor Aff. Encl. A. According to DOP 866-7.14, an inmate must file a regular grievance form within thirty days of the alleged incident. Prior to filing a formal grievance, an inmate must demonstrate he made a good faith attempt to resolve the issue informally. DOP 866-7.13. Prison officials must respond to an informal complaint within fifteen days to ensure responses are provided prior to the expiration of the thirty day period within which an inmate must file a formal grievance. DOP 866-7.13. If an inmate does not receive a response to an informal complaint, he is not precluded from filing a formal grievance. He may proceed with grievance procedures by filing a regular grievance form stating that he submitted an informal complaint to which officials did not respond. In such a case, prison officials will proceed with the grievance process as if the inmate had filed an informal complaint.
Fonnie Taylor, formerly Red Onion's Grievance Coordinator and currently Red Onion's Human Rights Advocate, testified at the evidentiary hearing that this is Red Onion policy.
Regular grievance forms must contain only one issue per form. DOP 866-7.14. If the grievance form is properly completed, the grievance is logged into the system and a receipt is sent to the inmate within two working days. DOP 866-7.14. If the grievance form does not meet the criteria for acceptance, it is returned to the inmate with an explanation as to why the form was not accepted. DOP 866-7.14. Copies of all returned grievances are maintained and documented in an inmate's file. DOP 866-7.14. The inmate may review any grievance intake decision by sending the grievance form to the Regional Ombudsman within five days of its receipt. DOP 866-7.14. If dissatisfied with the determination of an accepted grievance at the first level of review, the inmate may appeal the determination to Level II. DOP 866-7.15. Certain issues may be appealed to Level III review. DOP 866-7.15.
At the evidentiary hearing, Blount, Fonnie Taylor and Yvonne Taylor testified regarding Blount's compliance with these DOP grievance procedures. Fonnie Taylor, former Red Onion Grievance Coordinator, testified that Blount regularly filed grievances, that he was familiar with grievance procedures, and that he filed no formal grievance relating to the alleged April, 2004 assault.See also F. Taylor Aff. ¶ 8. After Blount testified that he sent Yvonne Taylor, a Red Onion Treatment Program Supervisor, documents relating to the alleged assault, Yvonne Taylor was called unexpectedly to testify at the hearing. Yvonne Taylor asked the court for additional time to search her files for any paperwork relating to the alleged assault.
Blount testified that he filed an informal complaint form regarding the alleged assault and never received a response from prison officials. He testified that he then grieved the lack of response by filing several informal complaints and grievances. Fonnie Taylor denied any record of the grievances and informal complaints Blount claims to have filed. Blount opined that this was likely due to the fact that C/Os destroyed his mail or otherwise prevented its delivery. Blount also stated that he filed an additional grievance in 2006, complaining about the lack of response he received from prison officials.
At the close of the hearing, the court permitted the parties to submit additional evidence regarding Blount's attempts to grieve the alleged assault. Blount submitted eight documents he filed within thirty days of the alleged incident which mentioned the assault. Other documents submitted related to the alleged assault were filed by Blount long after the thirty day time grievance period expired. Though it is clear Blount filed a great deal of paperwork in the thirty days following the alleged April, 2004 assault, none of the documents he filed conformed to DOP 866 procedures.
Evidence reveals Blount first filed a document relating to the alleged assault on April 26, 2004. In that emergency grievance ("EG"), he requested that the Institutional Investigator take pictures to document his injuries. Docket No. 43. Later that same day, he filed another EG stating that he was "in need of medical attention" and asking for x-rays and relief from his pain. Id. The next day, he filed an EG complaining about the lack of response he received to his requests for medical attention. Id. Blount's fourth EG regarding the alleged assault was filed on April 30, 2004, in which plaintiff listed names of officers who assaulted him. Id. While Blount did reference the assault at issue in this case, the fourth EG again focused on asking the Warden for medical care. Id. In this EG, Blount referenced two people who agreed he needed more medical treatment, and asserted his belief that he was denied medical attention in retaliation for speaking with the Warden on March 8, 2004. Docket No. 43. Blount filed another EG on May 3, 2004, complaining again about the lack of medical treatment he had received. Id. In this EG addressed to "Medical Staff," Blount stated that he was assaulted and never received medical care for his injuries, and he noted the lack of response to previous EGs. Id. Eight days later, Blount filed an additional EG complaining about the lack of medical care, the fact that no pictures had been taken of his injuries, and finally, the assault itself. Id. He filed a final EG on May 19, 2004, restating the same complaints voiced in his previous EGs.Id.
While Blount filed an impressive number of emergency grievances related to the alleged assault, he did not utilize proper grievance procedures. An EG "does not satisfy the exhaustion requirement." DOP 866-4.0. None of the many EGs Blount filed in the days following the alleged assault satisfies the administrative exhaustion requirement. Although Blount references the April, 2004 assault in some EGs, he does not appear to grieve the assault itself, but instead complains about the lack of response he received to requests for medical care and for photographs of his injuries. Blount never filed a regular grievance form that would have been accepted at Level I of the grievance process. He addressed four EGs to various medical personnel and requested medical attention. Docket No. 43. Though he addressed one EG to the Warden, in it he requested help with uncooperative medical staff members. Id. The remaining two EGs were addressed to the Institutional Investigator and requested photographs of Blount's injuries. Id. Blount never filed a proper formal grievance form in which he complained of the one relevant issue — the alleged April, 2004 assault. See F. Taylor Aff. ¶ 4.
Blount produced one other document relating to the alleged assault that he filed within the thirty-day time frame. On April 28, 2004, Blount sent a request for services/complaint form to Yvonne Taylor. Docket No. 43. In the form, Blount complained that he was assaulted by Red Onion staff and that the medical department was not responding to his requests for medical attention. Id. Blount asked that a copy of the form be sent to the Warden and to the Institutional Investigator. Id. This document appears to be yet another attempt to obtain medical treatment, and does not qualify as a proper grievance for the alleged assault.
Blount contends the lack of response he received from all of his filings effectively thwarted his efforts to comply with the administrative grievance process. Yet this argument is inconsistent with Blount's own history of grievance filing. Evidence demonstrates not only that Blount frequently filed grievances, but also that Red Onion officials consistently have responded to those grievances. Prison staff responded to all seven EGs filed by Blount. Docket No. 43. Blount also received responses to grievances filed in 2006, in which he complained about the lack of response he received to his filings in 2004. Docket No. 42. Additionally, Blount filed grievances relating to alleged assaults in 2001 and in 2003, which were accepted, and which he ultimately appealed the determination of through appropriate levels of review. Docket No. 41. Blount has a long history of filing grievances to which prison officials have responded. These consistent responses undercut his argument that prison officials failed to respond to the informal complaint he claims to have filed regarding the April, 2004 assault. Furthermore, even if prison officials did fail to respond to his informal complaint, Blount would not have been prevented from grieving the incident altogether. Blount could have continued to pursue the grievance process by filing a regular grievance form. This he did not do.
Evidence establishes that Blount filed forty acceptable regular grievance forms between June, 2001 and February 21, 2006. F. Taylor Aff. ¶ 7. By his own admission, he has filed a number of grievances while incarcerated at Red Onion and has followed through with the appeals process. Blount is so aware of proper grievance procedures that he was able to point out at the evidentiary hearing mistakes Red Onion officials made in accepting two grievances. Clearly, Blount understands the grievance process and has filed numerous acceptable grievances in the past. In this case, he simply failed to follow proper grievance procedures following the alleged April, 2004 incident. Emergency grievance forms and informal requests for medical treatment do not satisfy the exhaustion requirement. As such, he is barred from bringing suit.
IV
Because defendants have met their burden by providing a clear record showing that Blount failed to properly exhaust, the undersigned RECOMMENDS that their motion to dismiss be GRANTED. Allowing Blount to bring suit without exhausting available administrative remedies would run counter to the policy directives behind proper exhaustion, such as improving the quality of prisoner suits, promoting efficiency, allowing an agency to correct its internal mistakes, and bringing order to an administrative system. Ngo, 126 S.Ct. at 2385-88.
The Clerk is directed to immediately transmit the record in this case to the Honorable Glen E. Conrad, United States District Judge. Both sides are reminded that pursuant to Fed.R.Civ.P. 72(b), they are entitled to note objections, if any, to this Report and Recommendation within ten days hereof. Any adjudication of fact or conclusion of law rendered herein by the undersigned not specifically objected to within the period prescribed by law may become conclusive upon the parties. Failure to file specific objections pursuant to 28 U.S.C. § 636(b)(1) as to factual recitations or findings as well as to the conclusions reached by the undersigned may be construed by the reviewing court as a waiver of such objections.
Further, the Clerk is directed to send a certified copy of this Report and Recommendation to all counsel of record.