Brown v. Collier

CLERK'S OFFICE U.S. DIST. CC

AT ROANOKE, VA

FILED

IN THE UNITED STATES DISTRICT COURT cau □□ □□□□□□□

FOR THE WESTERN DISTRICT OF VIRGINIA _>=5y.

ROANOKE DIVISION st Beeson □□

TYRELL BROWN, )

)

Plaintiff, ) Case No. 7:23C V00567

)

V. ) OPINION AND ORDER

)

CORRECTIONS OFFICER ) JUDGE JAMES P. JONES

S. COLLIER, ET AL., )

)

Defendants. )

Tyrell Brown, Pro Se Plaintiff; Andrew R. Page, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, CRIMINAL JUSTICE & PUBLIC SAFETY DIVISION,

Richmond, Virginia, for Defendants.

The plaintiff, an inmate in the custody of the Virginia Department of

Corrections (VDOC) and proceeding pro se, filed this civil rights action under 42

U.S.C. § 1983. Brown alleges that defendant correctional officers at Wallens Ridge

State Prison (Wallens Ridge) used excessive force against him. The matter is before

me on a Motion for Summary Judgment by defendants S. Collier and S. Boggs.

After review of the record, I conclude that the defendants’ motion must be denied

without prejudice as to the merits of the claims and referred to the magistrate judge

for an evidentiary hearing as to the defense that the plaintiff has failed to exhaust his

administrative remedies as to these claims.

I. BACKGROUND.

In my prior opinion, I summarized the factual allegations of Brown’s § 1983

Complaint as follows:

Brown alleges that on September 7, 2021, between 3:00 and 4:00

p.m., Brown began experiencing chest pains. He asked Collier to allow

him to see a nurse. Collier told Brown to wait for the pill pass scheduled

to begin in five minutes. At the pill pass, the nurse gave Brown a form

he needed to fill out to receive medication. Brown sat down at a table

and began filling out the form. Collier rushed Brown, stating, “If you're

not getting medication, you need to step in your cell.” Compl. ¶ 8, ECF

No. 1.

Having completed the form, Brown walked to the nurse’s office

door and stood there, waiting to obtain medication. Collier walked over

to Brown, yanked his arm, pulled out a can of mace, and sprayed

Brown’s eyes and face. While doing so, Collier allegedly yelled “racial

and sexual slurs.” Id. at ¶ 10. Around the same time, Boggs, stationed

in the gun booth, shot “a green OC maceball projectile into [Brown’s]

back extremities causing [him] to forcefully fall to the floor.” Id. at 11.

As a result of the officers’ attack, Brown suffered back trauma requiring

him to wear a back brace, extreme pain due to the irretrievable

projectile fragments lodged in his back, and emotional distress

including nightmares.

Brown v. Collier, No. 7:23CV00567, 2024 WL 3184651, at *1 (W.D. Va. June 26,

2024). I granted a Motion to Dismiss as to all claims except those alleging use of

excessive force by Colliers and Boggs. These defendants have now filed for

summary judgment, arguing that Brown failed to exhaust his administrative

remedies and that his excessive force claim fails on the merits, based on available

surveillance camera footage of the incident at issue.1 Brown has filed responses to

this motion, making it ripe for disposition.

II. DISCUSSION.

A. Standards of Review.

The Federal Rules of Civil Procedure provides that a court should grant

summary judgment “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In considering a motion for summary judgment, the court must view the

facts and justifiable inferences in the light most favorable to the nonmoving party.

Libertarian Party of Va. v. Judd, 718 F.3d 308, 312–13 (4th Cir. 2013). To

withstand a summary judgment motion, the nonmoving party must produce

sufficient evidence from which a reasonable jury could return a verdict in his favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Under 42 U.S.C. § 1997e(a), a prisoner cannot bring a civil action concerning

prison conditions until he has first exhausted his available administrative remedies.

This exhaustion requirement is “mandatory,” Ross v. Blake, 578 U.S. 632, 638

(2016), and “applies to all inmate suits about prison life.” Porter v. Nussle, 534 U.S.

516, 532 (2002). To comply with § 1997e(a), an inmate must follow each step of

1 In support of the defendants’ exhaustion defense, they submit an affidavit by C.

Vilbrandt, Wallens Ridge Grievance Coordinator, who provided details about Brown’s

grievance records. Mem. Supp. Mot. Summ. J. at Ex. 1, C. Vilbrandt Aff., ECF No. 22.

the established grievance procedure that the prison facility provides to its inmates

and meet all deadlines within that procedure. Woodford v. Ngo, 548 U.S. 81, 90–94

(2006). Even if the form of relief the inmate seeks in his lawsuit is not available

through the prison’s grievance proceedings, he must, nevertheless, properly exhaust

all available remedies under that procedure before bringing a civil action in this

court. Booth v. Churner, 532 U.S. 731, 741 (2001).

B. VDOC Grievance Procedures.

Operating Procedure (OP) 866.1 is the written administrative remedies

procedure that VDOC inmates must follow to comply with § 1997e(a). Vilbrandt

Aff. & Encl. A, ECF No. 22. All issues are grievable except disciplinary proceedings

and matters outside the control of the VDOC. Under OP 866.1, an inmate with a

grievance about some event or issue must first make a good faith effort to resolve

his concerns informally, which he may do by completing an Informal/Written

Complaint form2 and submitting it to prison staff. He should receive a written

response on the bottom of the form within fifteen days, to allow him to initiate the

formal grievance procedure by filing a Regular Grievance, with the Informal/Written

Complaint form or any other relevant documentation attached. The filing of an

2 This stage of the OP 866.1 procedure is referred to as the Informal Complaint,

although the form used at this stage is titled Written Complaint. Therefore, I will refer to

the filing as an Informal/Written Complaint. This informal portion of the grievance process

also includes making a verbal complaint that is not at issue in this case.

Informal/Written Complaint does not satisfy the exhaustion requirement under

§ 1997e(a). If the inmate is dissatisfied with the staff response to the

Informal/Written Complaint, or fifteen days have passed without a staff response,

the inmate may submit a Regular Grievance. A Regular Grievance must be filed

within thirty days of the occurrence about which it complains.

Once the Regular Grievance is accepted at intake, the warden or his designee

will investigate the complaint it contains and send the inmate a Level I response. If

the responding official determines the grievance to be unfounded, the inmate has

five days to submit the Regular Grievance and attachments on appeal to Level II, to

an appropriate VDOC official such as the Regional Administrator or other

administrator, depending on subject matter. In most cases, this Level II review is

the final available level of appeal. For full exhaustion, the inmate must submit the

claim via an Informal/Written Complaint, then in a Regular Grievance, and then

through all levels of appeal available in OP 866.1.

C. Brown’s Administrative Remedy Records.

As Grievance Coordinator, Vilbrandt maintains inmate grievance files at

Wallens Ridge. In review of Brown’s file, Vilbrandt found that Brown filed only

one administrative remedy related to the September 7, 2021, incident at issue in this

case. Specifically, Brown submitted one Informal/Written Complaint form, Log No.

WRSP-21-INF-02016, complaining that Officer Collier lied during Brown’s

disciplinary hearing on October 4, 2021, and that Brown was found guilty of a

charged infraction. In this filing, Brown asked for review of the audio recording of

that hearing. In a response dated October 21, 2021, an officer advised Brown that

he should address these issues in his disciplinary appeal proceedings. Brown does

not dispute the accuracy of the defendants’ evidence about the contents of his

grievance file at Wallens Ridge.

Thus, it is undisputed that Brown did not file any Informal/Written Complaint

or any Regular Grievance directly addressing his current claim that Officers Collier

and Boggs used excessive force against him on September 7, 2021. As he has failed

to pursue the Informal/Written Complaint or Regular Grievance phases of the

procedure or any appeals that procedure provides, Brown has failed to exhaust

administrative remedies as to his excessive force claims against Collier and Boggs

and has failed to comply with the exhaustion requirement mandated in 42 U.S.C.

§ 1997e(a).

The defendants bear the burden of proving the affirmative defense that Brown

failed to exhaust administrative remedies regarding his claims before filing suit.

Jones v. Bock, 549 U.S. 199, 216 (2007). They have done so. Brown can escape

summary judgment under § 1997e(a) by showing that the remedies under the

established grievance procedures were not “available” to him as to one or more of

his claims. Ross, 578 U.S. at 643 (noting that circumstances making prison

grievance procedures unavailable “will not often arise”). An administrative remedy

is not available “if a prisoner, through no fault of his own, was prevented from

availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).

Brown submits a sworn and notarized affidavit with his Complaint asserting

that he repeatedly asked officers for Informal/Written Complaint forms and Regular

Grievance forms, “only to be told [he] must ask and get them from the building

Supervisors.” Compl. Attach., Brown Aff. 2, ECF No. 1-1. When he asked building

supervisors for these forms, they allegedly said he must “tell them why [he]

need[ed]” the forms. Id. at 3. If Brown refused to tell them a reason, or he told them

he intended to use the form to raise a complaint they did not like, they allegedly

refused to provide him the requested form(s).3 Brown also states that he feared

retaliation from supervisory officials “due to many threats” from such officials,

based on his “trying to exhaust the administrative remedies after being brutally

attacked” by Colliers and Boggs. Id. In response to the defendants’ summary

judgment motion, Brown claims that the decision to change the VDOC grievance

3 I note that Brown’s Complaint itself, also sworn and notarized, asserts a somewhat

contradictory set of facts related to exhaustion:

[Brown] placed informal complaints, grievances, wrote Warden, Assistant

Warden, Mental Health and Emergency grievances and was not able to

process complaints and grievances due to [WRSP] staff and administration

was on alert to target [Brown] due to him trying to file a lawsuit. Instead was

released from Seg early to stop [him] from filing lawsuit.

Compl. 5, ECF No. 1.

procedure in July 2024 proves that the prior grievance procedure as applicable in

2021 was broken and thus unavailable for purposes of the § 1997e(a) exhaustion

requirement. For example, the new procedure allows inmates to use a kiosk or a

hotline to request grievance forms.

As an initial matter, I reject Brown’s argument that changes to the VDOC

grievance procedure prove that the procedures were previously unavailable. Such a

leap in logic is not warranted by the facts in this case and is contrary to this court’s

experience with many past prisoner cases where the prior version of the grievance

procedure was available and was fully utilized by Wallens Ridge inmates before they

filed § 1983 claims.

However, I cannot find that no material fact is in dispute as to the availability

of remedies under the circumstances that Brown faced related to this case. In reply

to Brown’s arguments about exhaustion, the defendants provide no evidence

concerning inmates’ access to Informal/Written Complaint and Regular Grievance

forms under the former grievance procedure in effect at Wallens Ridge in 2021. Nor

do they present evidence indicating that inmates could comply with the VDOC

grievance procedure steps if officers refused their requests to obtain or submit such

forms. I conclude that Brown’s submissions, some of which are verified, are

sufficient to present a material factual dispute as to whether he had access to the

forms necessary to comply with the grievance procedure as required by § 1997e(a).

Accordingly, I will deny the defendants’ summary judgment motion on the ground

of failure to exhaust administrative remedies. I will refer this issue to the magistrate

judge for an evidentiary hearing.

The defendants have also moved for summary judgment on the merits of

Brown’s excessive force claims, based on their contention that the surveillance video

proves that the force the defendants used was proportional under the circumstances.

However, at the summary judgment stage, unchallenged “video evidence can only

discredit a nonmovant’s factual assertions if the video ‘blatantly’ contradicts the

nonmovant’s position.” Simmons v. Whitaker, 106 F.4th 379, 385 (4th Cir. 2024)

(quoting Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008)). The defendants have

provided a copy of the applicable video footage to the court, but do not provide any

affidavits from the defendants about what risk they perceived when they decided to

utilize mace and a mace projectile against Brown as he walked toward or stood near

the nurse’s station. Moreover, Brown states that he has not been afforded an

opportunity to view the footage so that he could respond regarding the accuracy of

its depiction of events. Thus, I cannot find the video footage to be unchallenged at

this time. Under such circumstances, I will deny without prejudice the defendants’

summary judgment motion as to the merits of Brown’s claims. Any renewal of the

motion for summary judgment as to the merits of the plaintiff’s claims will be

considered, if necessary, only after resolution of the administrative exhaustion

defense.

III. CONCLUSION.

For the stated reasons, it is ORDERED as follows:

1. All claims against VDOC, referred to as Department of Corrections

on the docket, are DISMISSED for the reasons stated in the earlier

opinion of the court, and the Clerk shall terminate it as a party;

2. The Motion for Summary Judgment, ECF No. 20, is DENIED

WITHOUT PREJUDICE; and

3. The case is hereby REFERRED to United States Magistrate Judge

Pamela Meade Sargent, pursuant to 28 U.S.C. § 636(b)(1), for an

evidentiary hearing and preparation of a Report and

Recommendation on the availability of administrative remedies and

a recommended disposition of the exhaustion defense.

ENTER: January 8, 2025

/s/ JAMES P. JONES

Senior United States District Judge