Virginia Lawyers Weekly//March 7, 2023
Virginia Lawyers Weekly//March 7, 2023//
Where defendants argued a detainee’s civil rights’ claims were barred because he failed to exhaust his available administrative remedies, but the record was unclear on whether the grievance procedure was actually “available” to him, the motion was denied.
Wayne Alphonso Thomas Jr., a Virginia detainee proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 to redress alleged violations of plaintiff’s rights during his incarceration at the State Farm Enterprise Unit, or SFEU, a unit of the Virginia Department of Corrections, or VDOC. Defendants have moved for summary judgment on the ground that plaintiff failed to exhaust his available administrative remedies. Plaintiff has filed a motion to strike.
Motion to strike
Plaintiff moves to strike defendants’ motion for summary judgment under Federal Rule of Civil Procedure 12(f). However, a motion for summary judgment is not a “pleading.” As a result, Rule 12(f) does not apply.
Further, while plaintiff contends that defendants’ motion for summary judgment should be stricken because defendants “ha[d] already submitted their defensive pleading,” i.e., their answer, this argument is frivolous. Nothing in the Federal Rules of Civil Procedure prohibits a defendant from filing an answer and later moving for summary judgment. Thus, plaintiff’s motion to strike will be denied.
Defendants argue that they are entitled to summary judgment because plaintiff failed to exhaust all available administrative remedies before filing suit, as the Prison Litigation Reform Act, or PLRA, requires. Pursuant to the grievance procedure, plaintiff was required to (i) file a regular grievance that was accepted for intake, and then (ii) appeal that regular grievance through all eligible levels of review without satisfactory resolution, before raising those claims in court.
The record leaves no doubt that plaintiff failed to meet these requirements. First, plaintiff’s emergency grievances are irrelevant to the issue of exhaustion, as the grievance procedure is explicit that the “[s]ubmission of an Emergency Grievance does not satisfy the exhaustion of remedies requirement.” Second, plaintiff tried to file only one regular grievance regarding his contraction of COVID-19, and that grievance was not accepted for intake. It follows that plaintiff did not fully exhaust the administrative remedies that the grievance procedure prescribes.
Plaintiff argues, however, that the grievance procedure was “unavailable” to him. The PLRA demands exhaustion only of remedies that “are available.” The court finds that, on the present record, a reasonable factfinder could conclude that the former grievance coordinator for SFEU rejected plaintiff’s grievance, at least in part, because it raised a matter beyond the VDOC’s control.
It is undisputed that inmates cannot use the grievance procedure to complain of issues that lie beyond the VDOC’s control. Thus, if plaintiff’s regular grievance was rejected for raising such an issue, the grievance procedure was not “available” to him. It would then follow that plaintiff’s failure to completely exhaust all steps in the grievance procedure should not bar this suit.
As a result, viewing the available evidence in the light most favorable to plaintiff, the court finds a genuine dispute of material fact as to whether plaintiff was required to exhaust the remedies set forth in the grievance procedure prior to filing suit. Accordingly, defendants’ motion for summary judgment will be denied.
Defendant’s motion for summary judgment denied without prejudice.
Thomas v. Meyer, Case No. 1:21-cv-1428, Feb. 17, 2023. EDVA at Alexandria (Trenga). VLW 023-3-075. 16 pp.