Derrick Toomer v. BCDC , 537 F. App'x 204 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6394
DERRICK TOOMER,
Plaintiff - Appellant,
v.
BCDC; WARDEN OLIVER; WENDELL FRANCE, Commissioner; M.
FERNANDEZ, Security Chief; OFFICER WILLIS; BOLA AYENI,
Correctional Officer II; OLIVER, Warden,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:12-cv-00083-DKC)
Submitted: July 18, 2013 Decided: August 6, 2013
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Derrick Toomer, Appellant Pro Se. Douglas F. Gansler, Attorney
General, Beverly F. Hughes, Assistant Attorney General,
Pikesville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Toomer appeals the district court’s order
granting Defendants’ motions for summary judgment and dismissing
his 42 U.S.C. § 1983 (2006) action for failure to exhaust
administrative remedies. For the reasons that follow, we affirm
in part, vacate in part, and remand for further proceedings.
We review a district court’s grant of summary judgment
de novo, viewing the facts and drawing reasonable inferences in
the light most favorable to the nonmoving party. Robinson v.
Clipse, 602 F.3d 605, 607 (4th Cir. 2010). Summary judgment is
appropriate when “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). Summary judgment will be granted unless
“a reasonable jury could return a verdict for the nonmoving
party” on the evidence presented. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “Conclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the nonmoving party’s] case.”
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002) (internal quotation marks omitted).
The Prison Litigation Reform Act requires that inmates
exhaust all available administrative remedies before filing an
action challenging prison conditions. 42 U.S.C. § 1997e(a)
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(2006). This exhaustion requirement “applies to all inmate
suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532
(2002), and without regard to whether the form of relief the
inmate seeks is available through exhaustion of administrative
remedies. Booth v. Churner, 532 U.S. 731, 741 (2001). However,
“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 it.” Moore v. Bennette, 517
F.3d 717, 725 (4th Cir. 2008). 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).
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).
Although it is clear from the record that Toomer did
not exhaust his administrative remedies regarding the May and
September 2009 attacks and his claim that prison officials
failed to comply with the hospital’s discharge instructions, we
conclude that the district court erred by granting Defendants’
motions for summary judgment based on Toomer’s failure to
exhaust his administrative remedies regarding the April 2010
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attack. After receiving a favorable outcome on the merits of
his grievance at a lower step in the process, Toomer was not
obligated to pursue an administrative appeal to Step III in
order to exhaust his administrative remedies. See Abney v.
McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (holding that
prisoner had exhausted administrative remedies where he had
“received a favorable ruling . . . [and] no further
administrative proceedings were available”); Dixon v. Goord, 224
F. Supp. 2d 739, 749 (S.D.N.Y. 2002) (holding that “[t]he
exhaustion requirement is satisfied by resolution of the matter,
i.e., an inmate is not required to continue to complain after
his grievances have been addressed”); see also Woodford v. Ngo,
548 U.S. 81, 90 (2006) (holding that exhaustion “means using all
steps that the agency holds out, and doing so properly,” to
allow the agency a full and fair opportunity to address the
issues on the merits); Booth, 532 U.S. at 736 (recognizing that
“exhaustion is [not] required where the relevant administrative
procedure lacks authority to provide any relief or to take any
action whatsoever in response to a complaint”).
Moreover, the instructions given in response to
Toomer’s July 26 grievance only directed Toomer to file a Step
III grievance if he was dissatisfied with the decision.
Defendants provide no indication that Toomer was dissatisfied
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with the decision, and Toomer maintains that he was satisfied.
The instructions also suggested that action already had been
taken on Toomer’s grievance and that any further complaints
should be addressed in a new grievance, not in an appeal of the
current grievance. Because the instructions essentially
diverted Toomer from filing a Step III grievance, we conclude
that, even if Toomer had been obligated to file a Step III
grievance, Defendants are estopped from arguing that Toomer
failed to exhaust his administrative remedies. See Dole v.
Chandler, 438 F.3d 804, 811 (7th Cir. 2006) (concluding that
district court erred by finding that prisoner had not exhausted
administrative remedies “[b]ecause [prisoner] took all steps
necessary to exhaust one line of administrative review, and did
not receive instructions on how to proceed once his attempts at
review were foiled” and remanding “for further proceedings on
the merits of [prisoner’s] claim”); Brown v. Croak, 312 F.3d
109, 112-13 (3d Cir. 2002) (holding that incorrect advice from
prison officials essentially made grievance procedure
unavailable to prisoner).
Accordingly, we vacate the district court’s grant of
summary judgment on the ground that Toomer failed to exhaust his
administrative remedies regarding the April 2010 attack, remand
to allow the district court to consider Defendants’ alternative
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grounds for summary judgment and for any further proceedings
that may be appropriate, and affirm the district court’s grant
of summary judgment regarding Toomer’s other allegations against
Defendants. We also deny Toomer’s request for appointment of
counsel on appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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