Filed: Jul. 12, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6823 DEMETRIUS HILL, Plaintiff – Appellant, v. TERRY O’BRIEN, Warden; MR.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; MS. HALL, Case Manager; CORRECTIONAL OFFICER TAYLOR, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Roa
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-6823 DEMETRIUS HILL, Plaintiff – Appellant, v. TERRY O’BRIEN, Warden; MR.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; MS. HALL, Case Manager; CORRECTIONAL OFFICER TAYLOR, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Roan..
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UNPUBLISHED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; MS. HALL, Case
Manager; CORRECTIONAL OFFICER TAYLOR,
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 Decided: July 12, 2010
Before TRAXLER, Chief Judge, NIEMEYER, and GREGORY, Circuit
Judges.
Affirmed in part, vacated and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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 2008, Demetrius Hill, a federal inmate
incarcerated during the relevant period at 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 medical care, in violation of his
constitutional rights. Upon conducting an initial 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 from those facts in the
3
plaintiff’s favor, it appears certain that the plaintiff cannot
prove any set of facts in support of his claim entitling him to
relief.’” De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.
2003) (quoting Veney v. Wyche,
293 F.3d 726, 730 (4th Cir.
2002)). Courts are instructed that pro se filings “however
unskillfully pleaded, must be liberally construed.” 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. 1977)). However, the complaint must contain
sufficient facts “to raise a right to relief above the
speculative level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S.
544, 555, 570 (2007). 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
complaints).
This court reviews de novo a district court’s
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
which relief may be granted. In Wilkins v. Gaddy,
130 S. Ct.
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 to maintain or restore discipline, or
maliciously and sadistically to cause harm.”
Id. (quoting
Hudson v. McMillian,
503 U.S. 1, 7 (1992)). In other words,
5
because “not . . . every malevolent touch by a prison guard
gives rise to a federal cause of action,” a de minimis
application of force will not result in a constitutional
violation. 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 force claim.”) (internal quotation marks
omitted). Where the force applied is excessive, 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 for consideration of
Hill’s claims in light of Wilkins. 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., that he received inadequate medical care on
November 1, 2007, and that USP Lee provided insufficient
6
treatment of his asthma condition on a day-to-day basis. The
Prison Litigation Reform Act (“PLRA”) requires a prisoner to
properly exhaust available administrative remedies prior to
filing an action challenging his conditions of confinement. 42
U.S.C. § 1997e(a) (2006); Woodford v. Ngo, 548 U.S. 81, 84
(2006) (requiring “proper” exhaustion of administrative
remedies); Moore v. Bennette,
517 F.3d 717, 725 (4th Cir. 2008)
(discussing “availability” of remedies). “[T]he PLRA’s
exhaustion requirement is mandatory,” Anderson v. 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 circumstances or particular episodes, and
whether they allege excessive force or some other wrong.”
Porter v. Nussle,
534 U.S. 516, 532 (2002). 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.” Fed. R. Civ. P. 56(c)(2). Because the prison
employees bear the burden on exhaustion 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 existence of a
genuine issue of material fact for trial. 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 remedies with respect to the incidents giving
rise to his medical indifference claims. Rather, he 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 has been obstructed is
belied by the record.
9
In response to Defendants’ motion for summary
judgment, Hill responded that his assigned counselor often
failed to do his rounds and failed to give him the 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. As he noted in his complaint, Hill maintained he was
only 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.” Moore, 517 F.3d at 725.
Thus, “when prison officials prevent 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 lacked available
10
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. Hill’s main allegations are that
he requested BP-8 forms 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 and Kaba’s other grievances and filings showed a
factual dispute, requiring the factfinder to evaluate 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 high-
volume 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 “either-
or” proposition. See Kaba, 458 F.3d at 685 (“Sometimes
grievances are clearly available; sometimes they are not; and
sometimes there is a middle ground where, for example, a
prisoner may only be able to file grievances on 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 he could administratively
exhaust his medical claims.
12
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. In assessing
Hill’s claim, the district court, relying 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 benefit of Wilkins at the time it rendered its
decision, we vacate the district court’s judgment on 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 and remand to allow the district court an
opportunity to consider the claims in light of the Supreme
Court’s decision in Wilkins. We further vacate the district
court’s judgment dismissing without prejudice Hill’s medical
indifference claims for failure to exhaust administrative
remedies and remand for further proceedings consistent with this
opinion. We affirm the district court’s dismissal of Hill’s
13
remaining claims. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART; VACATED AND
REMANDED IN PART
14
