Demetrius Hill v. Terry O'Brien, No. 09-6823 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6823 DEMETRIUS HILL, Plaintiff Appellant, v. TERRY O BRIEN, Warden; MR. STRICKLAND, Associate Warden; MR. WILSON, Captain; LIEUTENANT STIGER; NURSE MEADE; DOCTOR ALLRED; DOCTOR ROFF, Health Administrator, Defendants Appellees, and COUNSELOR PULIVAR; COUNSELOR MULLINS; Manager; CORRECTIONAL OFFICER TAYLOR, MS. HALL, Case Defendants. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:08-cv-00283-jct-mfu) Submitted: June 30, 2010 Before TRAXLER, Judges. Chief Judge, Decided: NIEMEYER, and July 12, 2010 GREGORY, Circuit Affirmed in part, vacated and remanded in part by unpublished per curiam opinion. Demetrius Hill, Appellant Pro Se. Thomas Linn Eckert, Assistant United States Attorney, Roanoke, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In April incarcerated 2008, during the Demetrius relevant Hill, a inmate at period federal United States Penitentiary Lee ( USP Lee ), filed a civil action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging various prison officials at USP Lee used excessive force against him, subjected him to cruel and unusual conditions of confinement, retaliated against him, obstructed his ability to file administrative grievances, and denied him adequate constitutional medical care, Upon conducting rights. in violation an initial of his screening under 28 U.S.C. § 1915A (2006), the district court dismissed for failure to state a claim all but one of Hill s excessive force claims and his medical indifference claims. By subsequent order, the district court granted summary judgment to Defendants on the remaining claims. Hill appeals both orders challenging the denial of relief on his claims. I. Allegations in a complaint are to be liberally construed, and a court should not dismiss an action for failure to state a claim unless after accepting all well-pleaded allegations in the plaintiff s complaint as true and drawing all reasonable factual inferences 3 from those facts in the plaintiff s favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief. 2003) De Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. (quoting 2002)). Veney Courts are v. Wyche, instructed 293 F.3d that 726, pro se 730 (4th filings unskillfully pleaded, must be liberally construed. Cir. however Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994) (citing Haines v. Kerner, 404 U.S. 519 (1972); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. sufficient speculative 1977)). facts level However, to raise and state complaint right a to claim must relief to contain above relief that the is Bell Atl. Corp. v. Twombly, 550 U.S. plausible on its face. 544, 555, 570 (2007). a the A claim having no arguable basis in law or fact may be dismissed as frivolous. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also 28 U.S.C. §§ 1915(e)(2)(B), 1915A (2006) (outlining screening process for indigent or prisoner district court s complaints). This court reviews de novo a dismissal for failure to state a claim pursuant to § 1915A. Slade v. Hampton Rds. Reg l Jail, 407 F.3d 243, 248 (4th Cir. 2005) (citation omitted). Pursuant to § 1915A, a district court shall dismiss a case at any time if it determines that the action is frivolous or malicious, fails to state a claim upon 4 which relief may be granted, or seeks monetary relief against a defendant who is immune from suit. 28 U.S.C. § 1915A(b)(1). Relying on our decision in Norman v. Taylor, 29 F.3d 1259, 1263 (4th Cir. 1994) (en banc), the district court noted that, absent the most extraordinary circumstances, an inmate cannot prevail on an excessive force claim unless he proves more than de minimis pain or injury. Finding Hill failed to show more than de minimis injury, the district court dismissed two of Hill s excessive force claims for failure to state a claim upon In Wilkins v. Gaddy, 130 S. Ct. which relief may be granted. 1175 (2010), the Supreme Court recently overruled Norman and clarified that the extent of any resulting injury, while material to the question of damages and informative as to the likely degree of force applied, is not in and of itself a threshold requirement for proving this type of Eighth Amendment claim. 130 S. Ct. at 1175. In doing so, the Court expressly rejected the theory that lower courts may dismiss such claims based solely on the de minimis nature of the resulting injury. Id. at 1177-78. The Court emphasized that, [t]he core judicial inquiry . . . is not whether a certain quantum of injury was sustained, but rather whether force was applied in a good-faith effort maliciously and to maintain sadistically to or restore cause harm. Hudson v. McMillian, 503 U.S. 1, 7 (1992)). 5 discipline, Id. or (quoting In other words, because not . . . every malevolent touch by a prison guard gives rise to a application of force violation. federal will cause not of action, result in a a de minimis constitutional Hudson, 503 U.S. at 9; see also Wilkins, 130 S. Ct. at 1177-78 ( An inmate who complains of a push or a shove that causes no discernible injury almost certainly fails to state a valid excessive omitted). Where force the claim. ) force (internal applied is quotation excessive, marks however, a constitutional claim may survive summary dismissal even if the resulting injury is de minimis. Wilkins, 130 S. Ct. at 1180. Because the district court did not have the benefit of the Wilkins decision, we vacate the district court s judgment dismissing Hill s excessive force claims for failure to state a claim and remand to the district court Hill s claims in light of Wilkins. for consideration of We affirm, however, the district court s dismissal under § 1915A of Hill s other claims for the reasons stated by the district court. II. In ruling on Defendants motion for summary judgment, the district court concluded that Hill failed to exhaust his administrative remedies with respect to his medical indifference claims, i.e., November 1, that 2007, he and received that USP 6 inadequate Lee medical provided care on insufficient treatment of his asthma condition on a day-to-day basis. The Prison Litigation Reform Act ( PLRA ) requires a prisoner to properly prior to filing an action challenging his conditions of confinement. 42 U.S.C. 84 (2006) exhaust § available 1997e(a) (2006); (requiring administrative Woodford proper v. remedies Ngo, exhaustion 548 of U.S. 81, administrative remedies); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (discussing exhaustion availability requirement is of remedies). mandatory, [T]he Anderson v. PLRA s XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), and applies to all inmate suits about prison life, whether they involve general whether they Porter v. circumstances allege Nussle, or excessive 534 U.S. particular force 516, 532 or some (2002). episodes, other and wrong. Pursuant to § 1997e(a), the exhaustion requirement is applicable to Bivens claims. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). This court reviews a district court s order granting summary judgment de novo. * Jennings v. Univ. of N.C., 482 F.3d * Defendants motion was styled Motion to Dismiss or in the Alternative Motion for Summary Judgment. However, Hill received notice pursuant to Roseboro v. Garrison, 528 F.2d 309, (Continued) 7 686, 694 (4th Cir. 2007). At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)). Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. employees bear Fed. R. Civ. P. 56(c)(2). the burden on exhaustion Because the prison in this case, see Bennette, 517 F.3d at 725, they must show that the evidence is so one-sided that no reasonable factfinder could find that Hill was prevented from exhausting his administrative remedies. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). An otherwise properly supported motion for summary judgment will not be defeated by the existence of some factual dispute; rather, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. at 248. Indeed, to withstand a 310 (4th Cir. 1975), of his right to file material responsive to the Defendants dispositive motion. Hill availed himself of this opportunity, and because the district court considered materials other than the complaint, the district court s order is best deemed a grant of summary judgment. See Fed. R. Civ. P. 56(c). 8 motion for summary judgment, the non-moving party must produce competent evidence sufficient to reveal the genuine issue of material fact for trial. existence of a Fed. R. Civ. P. 56(e)(2); see Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) ( Conclusory or speculative allegations do not suffice, nor does a mere scintilla of evidence in support of [the non-moving party s] case. ) (citation omitted). Hill does not contest that he failed to exhaust his administrative rise to his remedies medical with respect indifference to the claims. incidents Rather, he giving argues Defendants hindered his ability to exhaust his administrative remedies. In support of their motion for summary judgment based on Hill s failure to exhaust administrative remedies, Defendants submitted an affidavit from Sharon Wahl, a paralegal with the Bureau of Prisons, who noted that Hill has filed 229 administrative remedies since his incarceration and fourteen of those related to his confinement at USP Lee. Defendants further argued that Hill s assertions that he was denied forms or that the forms were destroyed were nothing more than self-serving statements. In fact, they pointed to Hill s administrative remedy history as proof that Hill s assertions that his access to the administrative remedy process belied by the record. 9 has been obstructed is In response judgment, Hill failed do to to responded his rounds Defendants that and his motion assigned failed to for summary counselor give him the often proper grievance forms in some cases and that, in other cases, Hill was informed that he could only file one remedy form at a time and was then required to wait for a response before another could be filed. only As he noted in his complaint, Hill maintained he was able to exhaust some remedies because his assigned counselor was on vacation and another counselor acting in his capacity provided some forms. [A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it. Thus, when prison officials prevent Moore, 517 F.3d at 725. inmates from using the administrative process . . ., the process that exists on paper becomes unavailable in reality. Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); see also Dole v. Chandler, 438 F.3d 804, 811 (7th Cir. 2006) (holding that, because Dole properly followed procedure and prison officials were responsible for the mishandling of his grievance, it cannot be said that Dole failed to exhaust his administrative remedies); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (holding that district court erred in failing to consider prisoner s claim that he was unable to submit a grievance, and therefore 10 lacked available administrative remedies, because prison employees refused to provide him with the necessary forms); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (stating administrative remedy rendered unavailable when prison officials prevent prisoner from using it). Accordingly, the district court is obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials. Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). We find there are genuine issues of material fact as to the issue of exhaustion of administrative remedies, thereby precluding summary judgment. he requested BP-8 forms Hill s main allegations are that from his counselor and that the counselor refused to provide them, destroyed them, or failed to respond to them after requiring Hill to wait until he received a response to a claim before filing a new one. There is no affidavit from Hill s counselor or the other named Defendants who allegedly obstructed Hill s administrative remedy process. See Kaba, 458 F.3d at 686 (finding affidavits of the prison officials factual and Kaba s dispute, other requiring grievances the and factfinder filings to showed evaluate a the credibility of the witnesses and other evidence in the record); see also Lewis v. Washington, 300 F.3d 829, 831-32 (7th Cir. 2002) (deemed administrative remedies exhausted when prison officials failed to respond to inmate grievances because those 11 remedies had become unavailable ); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (same). We further find Defendants reliance on Hill s highvolume filings specious. First, the fact that Hill filed a large number of complaints in other prisons is irrelevant to whether his efforts to file grievances were obstructed upon his arrival at USP Lee. Second, the fact that Hill successfully filed many grievances in the past suggests that Hill is familiar with the requirements of the administrative process and is not purposefully attempting to evade them. Third, the ability to take advantage of administrative grievances is not an eitheror proposition. Kaba, See 458 F.3d at 685 ( Sometimes grievances are clearly available; sometimes they are not; and sometimes there prisoner may is only a middle be able ground to file where, for grievances example, on a certain topics. ). We conclude Hill has sufficiently shown genuine issues of material fact as to whether Defendants hindered his ability to exhaust administrative remedies and therefore the district court erred in granting summary judgment. Accordingly, we vacate the court s judgment and remand for a determination of whether the grievance procedure was available to Hill within the meaning of § 1997e(a) so that exhaust his medical claims. 12 he could administratively III. The district court also granted summary judgment to Defendants on Hill s excessive force claim based on events on November 1, 2007, in which restraints were used. Hill s claim, the district court, relying In assessing again on then- controlling Fourth Circuit law, found that Hill s injuries were de minimis and did not amount to a constitutional violation. Although the district court also found that Hill could not show that Defendants use of force was applied maliciously and sadistically to cause harm, because the district court did not have the decision, benefit we of vacate Wilkins the at the district time court s it rendered judgment on its this excessive force claim and afford the court an opportunity to consider the claim in light of Wilkins. Accordingly, we grant Hill s motion to remand, vacate the district court s judgments as to all of Hill s excessive force claims opportunity and to remand consider to the Court s decision in Wilkins. court s judgment indifference dismissing claims for allow claims the in district light of court the an Supreme We further vacate the district without failure prejudice to exhaust Hill s medical administrative remedies and remand for further proceedings consistent with this opinion. We affirm the district court s dismissal of Hill s 13 remaining claims. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED IN PART; VACATED AND REMANDED IN PART 14

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