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Miller v. Ballard

United States District Court, S.D. West Virginia, Charleston Division

December 12, 2017

ANDREW MILLER, Plaintiff,
v.
DAVID BALLARD, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JOSEPR R. GOODWIN UNITED STATES DISTRICT JUDGE.

         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].

         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 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 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). ...


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