United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
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
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 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).
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).
Prison Litigation Reform Act
defendant argues that summary judgment is proper because the
plaintiff failed to exhaust his administrative remedies as
required by the Prison Litigation 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].
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,
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)).
the PLRA, the WVPLRA “require[s] inmates to exhaust
their administrative remedies before they bring a
lawsuit.” Legg v. Adkins, No. 2:16-cv-01371,
2017 WL 722604, at *2 (S.D. W.Va. 2017) (citing 42 U.S.C.
§ 1997e(a); W.Va. 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
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
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 ...