United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the court is the plaintiff's “Submittions
for Summary Judgment” [ECF No. 47], which the court
construes as a Motion for Summary Judgment. Also pending
before the court is a Motion for Summary Judgment [ECF No.
51] filed by Defendants Ballard, Rubenstein, Lt. Dempsey, and
McKinney, in which Defendants C.O. Dempsey and Mitchell have
joined [ECF No. 53].
matter was referred to United States Magistrate Judge Dwane
L. Tinsley for submission of proposed findings and a
recommendation for disposition, pursuant to 28 U.S.C. §
636(b)(1)(B). On December 19, 2018, Magistrate Judge Tinsley
submitted his Proposed Findings and Recommendation
(“PF&R”) [ECF No. 72], recommending the court
grant the defendants' Motion for Summary Judgment [ECF
No. 51], deny the plaintiff's Motion for Summary Judgment
[ECF No. 47], and dismiss this matter from the docket.
plaintiff's objections to the PF&R were filed on
January 8, 2019 [ECF No. 73]. The court has reviewed de novo
those portions of the PF&R to which the plaintiff objects
and finds the plaintiff's objections lack merit. For the
reasons stated herein, the court OVERRULES
the plaintiff's objections and ADOPTS
and INCORPORATES the findings and
recommendation of the Magistrate Judge. The court
GRANTS the defendants' Motion for
Summary Judgment [ECF No. 51], DENIES the
plaintiff's Motion for Summary Judgment [ECF No. 47], and
DISMISSES this matter from the docket.
factual background of this case is set forth in detail in the
PF&R and need not be repeated here. The court
ADOPTS the factual background and undisputed
facts as set forth in the Magistrate Judge's PF&R.
Standard of Review
district 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). This court is not, however,
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). The court notes that the
plaintiff's pro se filing detailing his objections to the
PF&R contains primarily general and conclusory
objections. Nevertheless, to the extent the court has been
able to discern specific assertions of error, the court has
endeavored to construe the plaintiff's arguments
Magistrate Judge found that the plaintiff has not properly
exhausted his administrative remedies concerning the claims
addressed in his Complaint and that the plaintiff has failed
to demonstrate that such remedies were unavailable to
him.The Magistrate Judge therefore proposed
that the court find that all defendants in this litigation
are entitled to judgment as a matter of law on all claims in
the Complaint and that the plaintiff is not entitled to
judgment as a matter of law.
stated in the PF&R, exhaustion of administrative remedies
is a threshold issue that the court must address before
considering the merits of the plaintiff's substantive
claims for relief. See Jones v. Bock, 549 U.S. 199,
216 (2007); Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008). If a plaintiff fails to exhaust his or her
administrative remedies, 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. Feb. 23,
Prison Litigation Reform Act (“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). Moreover,
“[n]ot 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).
“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)). 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. Sept. 12, 2017) (citing
Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir.
West Virginia Prison Litigation Reform Act
(“WVPLRA”) likewise “require[s] inmates to
exhaust their administrative remedies before they bring a
lawsuit.” Legg, 2017 WL 722604, at *2 (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