United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
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
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.
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].
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.
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].
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
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].
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).
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).
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). ...