UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-8161
WILLIAM L. GRAHAM,
Plaintiff - Appellant,
v.
SHERIFF E.S. GENTRY; MAJOR DOSS; CAPTAIN PROCTOR; LT. HOGG;
SARGEANT (SGT) BURGESS; DEPUTY GAGNE,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:08-cv-00279-RBS-FBS)
Argued: December 8, 2010 Decided: February 18, 2011
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach,
Virginia, for Appellees. ON BRIEF: Samuel Leven, Third Year Law
School Student, David Rhinesmith, Third Year Law School Student,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Appellate Litigation
Clinic, Charlottesville, Virginia, for Appellant. Lisa Ehrich,
PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The facts forming the basis of this action occurred while
William L. Graham, a former correctional officer, was
incarcerated in the Gloucester County Jail in Virginia (the
jail). After being assaulted in the jail by other inmates,
Graham filed this complaint under 42 U.S.C. § 1983 against
Sheriff E.S. Gentry, the chief law enforcement officer for the
County of Gloucester, and several other local correctional
officials (collectively, the defendants). Graham claimed that
the defendants violated his constitutional rights because of the
conditions of his confinement, because he allegedly received
inadequate protection while incarcerated, and because he
purportedly received inadequate medical care following the
assault.
The defendants filed a motion for summary judgment,
contending that Graham’s action should be dismissed because he
had not first submitted his complaints through the jail’s
grievance procedure. Thus, the defendants argued, Graham
improperly failed to exhaust his administrative remedies before
filing this lawsuit. The district court agreed, and awarded
summary judgment in the defendants’ favor. Upon consideration
of Graham’s appeal, we affirm the district court’s judgment.
2
I.
The issues presented in this appeal involve the jail’s
formal grievance procedure and Graham’s knowledge of, and
compliance with, the required procedure. We review the facts in
the record in the light most favorable to Graham, the non-moving
party in the district court. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
Graham was incarcerated at the jail on June 8, 2006.
Because Graham was formerly a correctional officer employed at a
prison facility near the jail, he initially was placed in
protective custody pursuant to the jail’s policy.
Upon his arrival at the jail, Graham was provided with a
copy of the jail’s inmate handbook (the handbook). Graham
acknowledged in writing that he had received a copy of the
handbook, which refers to an inmate’s right “[t]o be advised of”
the jail’s grievance procedure. The handbook also states that
“[i]f you have any questions regarding the rules you may request
information from the correctional deputy on duty. If you need
any of the mentioned forms they will also be provided by the
correctional deputies.”
In August 2006, jail officials discussed the grievance
procedure during an orientation session that Graham attended
with other inmates. Although the parties dispute the details of
that orientation session, Graham admits that the orientation
3
provided a “verbal overview of the [grievance] procedure which
included an explanation of what constitutes a grievance and the
types of problems that may be grieved.” After attending this
orientation session, Graham signed a form stating that he had
been “advised that this facility has an official grievance
procedure[,] which is explained in the inmate handbook.” While
a separate written policy specified the details of the jail’s
grievance procedure, that written policy was not included in the
inmate handbook. Graham neither requested nor received a
written copy of the actual grievance procedure during his
incarceration at the jail.
Although Graham initially was placed in protective custody,
he was moved in early July 2006 into a holding cell with several
other inmates. On July 10, 2006, Graham was assaulted by
several unidentified inmates. Thereafter, the jail began an
investigation of the assault, and jail officials held a meeting
on July 12, 2006 with Graham and his mother to discuss the
incident. At that time, the jail officials told Graham that the
assault would be “looked into,” but the jail’s formal grievance
procedure was not discussed during this meeting.
Additionally, at that meeting, Graham signed a document
requesting that the Sheriff’s Office “stop all investigations
that are directed at what occurred on the night of July 10,
2006,” and stating that Graham would not hold Gloucester County
4
responsible for the assault. Graham also affirmed in this
document that he would not give any further statements about the
assault and would not testify against any of his attackers if
charges were brought.
It is undisputed that Graham never filed a written
grievance challenging the conditions of his confinement, the
defendants’ purported failure to protect him from any attacks,
or the medical treatment that he received after being injured.
It is also undisputed that Graham did not request any grievance
forms or ask any jail official how to pursue a grievance.
Further, Graham does not contend, nor is there any evidence in
the record, that any Gloucester County or jail official impeded
or discouraged any efforts that Graham made or could have made
to file a grievance.
Graham filed the present action against the defendants in
June 2008. The defendants thereafter moved for summary
judgment, contending that Graham’s action was barred because he
had failed to exhaust his administrative remedies. The district
court agreed with the defendants, holding that an administrative
remedy was “available” to Graham, and that he failed to pursue
this remedy despite the fact that he “was advised of and knew
about the existence of the system, and he could have asked for
any further information he required.” The district court also
concluded that the exhaustion requirement could not be “waived,”
5
rejecting Graham’s argument that because he raised some of these
issues during the meeting with jail officials, a formal
grievance would have been a useless formality.
II.
We review the district court’s award of summary judgment de
novo, applying the same standard as the district court. See
Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc).
Under that standard, summary judgment is appropriate when “there
is no genuine issue as to any material fact.” Id.; Fed. R. Civ.
P. 56(a).
The defendants argue on appeal, as they did in the district
court, that Graham’s claims are barred because he failed to
exhaust his administrative remedies. Under the Prison
Litigation Reform Act (the Act), 42 U.S.C. § 1997e(a), an inmate
is required to exhaust any “available” administrative remedies
before pursuing a § 1983 action in federal court. 1 The Act’s
exhaustion requirement “applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The
1
The statute provides, in relevant part, that “No action
shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a).
6
exhaustion requirement is mandatory, and courts lack the
authority to waive that requirement. See id. at 524.
Although the Act does not define the term “available,” we
have held that “an administrative remedy is not considered to
have been available if a prisoner, through no fault of his own,
was prevented from availing himself of [the administrative
remedy].” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
Thus, the key issue presented in this appeal is whether the
jail’s formal grievance procedure was “available” to Graham, or
whether Graham was prevented from obtaining access to the jail’s
grievance process.
Graham first argues that because he was not instructed
explicitly regarding how to file a grievance, a genuine issue of
material fact exists whether he “knew of the existence of the
grievance procedure and knew he could ask questions about it.”
This argument fails, however, in light of the undisputed facts
concerning the references to the jail’s grievance policy in the
inmate handbook and the information that Graham received during
the orientation session. These facts demonstrate that Graham
knew of the existence of the grievance procedure, and knew that
he could ask jail officials questions about the procedure.
Graham maintains, nevertheless, that while he knew about
the existence of a grievance procedure and that he could ask
questions about it, the procedure was not “available” to him
7
because he knew nothing more about it. 2 We find no merit in this
argument, because it completely fails to apply the meaning of
the term “available” articulated in our Moore decision. There,
we held that in order to show that a grievance procedure was not
“available,” a prisoner must adduce facts showing that he was
prevented, through no fault of his own, from availing himself of
that procedure. See id.
We conclude that Graham failed to make this showing. We
again note that Graham knew about the existence of the grievance
procedure, but he never inquired about how to file a grievance
under that procedure. Further, we find it significant that
there is no evidence in the record that any jail official
impeded or discouraged any efforts that Graham made or could
have made to file a grievance. Thus, although Graham knew about
the existence of the jail’s formal grievance procedure, he took
no steps to comply with the process then in place, and his
failure to do so cannot be attributed to anyone but himself.
Graham therefore cannot demonstrate that he was “prevented” from
availing himself of the jail’s administrative remedy. 3
2
We observe that the premise for this argument contradicts
Graham’s prior argument that he did not know of the existence of
the grievance procedure or that he could ask questions about it.
3
In order to avoid the meaning of the term “available,” as
set forth in Moore, Graham proposes that we adopt the Second
Circuit’s “objective” test for determining whether an
(Continued)
8
We also reject Graham’s argument that he exhausted his
administrative remedies by informing jail officials of some of
his complaints during the July 12, 2006 meeting. As an initial
matter, Graham does not contend that his participation in this
meeting was a required step in the jail’s grievance process.
Also, Graham requested during this meeting that the defendants
halt any investigation into the assault, and Graham represented
that he would not make any statements about the events that
transpired during the assault. Thus, we agree with the
defendants that the jail officials were not given the
opportunity to assess thoroughly Graham’s claims during the time
period in which an effective administrative review could have
been conducted. Cf. Camp v. Brennan, 219 F.3d 279, 280-81 (3d
Cir. 2000) (holding that plaintiff exhausted administrative
remedies even though he did not fully comply with grievance
procedures, because prison guards refused to process grievance
forms and reviewing state prison agency conducted a “full[]
examin[ation] on the merits” of plaintiff’s claims).
administrative remedy was available. Under this analysis, a
reviewing court considers whether “a similarly situated
individual of ordinary firmness [would] have deemed [the
grievance procedures] available.” See Hemphill v. New York, 380
F.3d 680, 688 (2d Cir. 2004). We reject Graham’s invitation to
adopt this additional layer of analysis, because we conclude
that the standard articulated in Moore is more than adequate to
resolve cases of this nature.
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For these reasons, we conclude that the district court did
not err in awarding summary judgment in the defendants’ favor,
because Graham failed to exhaust the jail’s available
administrative remedies before filing this action. Accordingly,
we affirm the district court’s judgment. 4
AFFIRMED
4
We do not address Graham’s contention that the district
court should have dismissed his lawsuit without prejudice,
rather than with prejudice, because the jail’s grievance policy
does not specify a time period in which an inmate must file a
claim. Graham did not make this argument in his appellate
brief, and only raised it during his rebuttal at oral argument.
It also does not appear that Graham asked for this relief in the
district court. Therefore, we conclude that Graham waived any
argument concerning whether his lawsuit should have been
dismissed without prejudice. See Equal Rights Ctr. v. Niles
Bolton Assocs., 602 F.3d 597, 604 n.4 (4th Cir. 2010) (holding
that argument not raised in opening appellate brief is waived);
United States v. Williams, 378 F.2d 665, 666 (4th Cir. 1967)
(per curiam) (holding issues argued orally but not addressed in
brief are waived).
10