USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-6649
MICHAEL E. TORY, SR.,
Plaintiff - Appellant,
v.
CLINT D. DAVIS, Warden at Keen Mountain Correctional Center; MARCUS ELAM, Regional Administrator for Western Region of the Virginia Department of Corrections; LIEUTENANT B. MITCHELL, Correctional Officer; MCGLOTHIN, Intel Officer at Keen Mountain Correctional Center; HAROLD W. CLARKE; A. DAVID ROBINSON; W. HOWARD, Intel Officer,
Defendants - Appellees,
and
COMMONWEALTH OF VIRGINIA,
Defendant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Thomas T. Cullen, District Judge. (7:18-cv-00393-TTC-RSB)
Submitted: December 1, 2022 Decided: December 15, 2022
Before KING, WYNN, and RICHARDSON, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 2 of 7
Michael Ellery Tory, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 3 of 7
PER CURIAM:
Michael E. Tory, Sr., a state prisoner, appeals the district court’s order granting
summary judgment in favor of Defendants on his claims under the First and Fourteenth
Amendments. The district court found that Tory had not exhausted his available
administrative remedies as to some claims, as required by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), and that Tory lacked standing to bring his remaining
claims. We vacate the district court’s order and remand for further proceedings.
We “review[] de novo the district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015); see Custis v.
Davis, 851 F.3d 358, 361 (4th Cir. 2017) (applying de novo review to “dismissal for failure
to exhaust available administrative remedies”). “A district court ‘shall 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.’” Jacobs, 780 F.3d at 568 (quoting
Fed. R. Civ. P. 56(a)). In determining whether a genuine issue of material fact exists, “we
view the facts and all justifiable inferences arising therefrom in the light most favorable
to . . . the nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Tory alleged, inter alia, that Defendants improperly rejected several electronic
images that had been sent to Tory while he was in prison, and that Defendants failed to
provide notice of the rejections. Specifically, Tory alleged that his sister sent him such
3 USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 4 of 7
images on March 8, 2018, and April 5, 2018, but that he did not discover that these images
had been sent to him until an April 7, 2018, phone conversation with his sister. Tory further
asserted that on July 12, 2018, an individual sent him an email, to which similar images
were attached, but that he likewise did not know the attached images had been rejected
until July 20, 2018, when he was able to access his email after his transfer to another
facility.
The PLRA requires that inmates exhaust all available administrative remedies
before filing an action challenging prison conditions in federal court. 42 U.S.C. § 1997e(a).
“[P]roper exhaustion of administrative remedies . . . 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. Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, because
“failure to exhaust is an affirmative defense under the PLRA,” defendants bear the burden
of establishing that a prisoner failed to exhaust his administrative remedies. Jones v. Bock,
549 U.S. 199, 216 (2007).
The district court rejected Tory’s claims relating to the removal of the March 8 and
July 12 images, finding that Tory failed to exhaust his administrative remedies pursuant to
Virginia Department of Corrections (“VDOC”) policy. Specifically, the district court
found that, although Tory filed informal complaints with respect to these claims, he failed
to file a regular grievance as to either, and that he did not allege that he was prevented from
doing so. However, Tory demonstrated that he filed grievances with respect to the March
8 and July 12 images and that Defendants received them. The record also suggests that
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Defendants rejected these two grievances at intake as untimely and that these
determinations were upheld, not that Tory failed to file the grievances at all.
Moreover, Tory asserted below, as he does on appeal, that Defendants improperly
rejected the two grievances at intake, rendering administrative remedies unavailable to him.
Ross v. Blake, 578 U.S. 632, 642-44 (2016) (describing circumstances in which
administrative remedies may be unavailable). Pursuant to VDOC policy at the time of
Tory’s grievances, a prisoner did not exhaust his administrative remedies until he filed a
grievance and appealed that grievance to the highest eligible level of appeal. Defendants’
rejection of Tory’s two grievances at intake rendered it impossible for Tory to exhaust his
administrative remedies as to the removal of the March 8 and July 12 images. Therefore,
if Defendants incorrectly rejected intake of these grievances, administrative remedies may
have been unavailable to Tory. Because the district court did not address Tory’s arguments
that Defendants thwarted his ability to exhaust his administrative remedies, we conclude
that vacatur is appropriate, so that the court may consider whether the administrative
process was available to Tory with respect to the removal of the March 8 and July 12
images.
We next turn to the district court’s dismissal of Tory’s claims regarding the rejection
of images allegedly sent to him on April 5, 2018. We review de novo a district court’s
dismissal for lack of standing. Episcopal Church in S.C. v. Church Ins. Co. of Vt., 997
F.3d 149, 154 (4th Cir. 2021). To demonstrate standing, “a plaintiff must have (1) suffered
an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and
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USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 1 of 7
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-6649
MICHAEL E. TORY, SR.,
Plaintiff - Appellant,
v.
CLINT D. DAVIS, Warden at Keen Mountain Correctional Center; MARCUS ELAM, Regional Administrator for Western Region of the Virginia Department of Corrections; LIEUTENANT B. MITCHELL, Correctional Officer; MCGLOTHIN, Intel Officer at Keen Mountain Correctional Center; HAROLD W. CLARKE; A. DAVID ROBINSON; W. HOWARD, Intel Officer,
Defendants - Appellees,
and
COMMONWEALTH OF VIRGINIA,
Defendant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Thomas T. Cullen, District Judge. (7:18-cv-00393-TTC-RSB)
Submitted: December 1, 2022 Decided: December 15, 2022
Before KING, WYNN, and RICHARDSON, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 2 of 7
Michael Ellery Tory, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 3 of 7
PER CURIAM:
Michael E. Tory, Sr., a state prisoner, appeals the district court’s order granting
summary judgment in favor of Defendants on his claims under the First and Fourteenth
Amendments. The district court found that Tory had not exhausted his available
administrative remedies as to some claims, as required by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), and that Tory lacked standing to bring his remaining
claims. We vacate the district court’s order and remand for further proceedings.
We “review[] de novo the district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015); see Custis v.
Davis, 851 F.3d 358, 361 (4th Cir. 2017) (applying de novo review to “dismissal for failure
to exhaust available administrative remedies”). “A district court ‘shall 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.’” Jacobs, 780 F.3d at 568 (quoting
Fed. R. Civ. P. 56(a)). In determining whether a genuine issue of material fact exists, “we
view the facts and all justifiable inferences arising therefrom in the light most favorable
to . . . the nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted).
“Credibility determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Tory alleged, inter alia, that Defendants improperly rejected several electronic
images that had been sent to Tory while he was in prison, and that Defendants failed to
provide notice of the rejections. Specifically, Tory alleged that his sister sent him such
3 USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 4 of 7
images on March 8, 2018, and April 5, 2018, but that he did not discover that these images
had been sent to him until an April 7, 2018, phone conversation with his sister. Tory further
asserted that on July 12, 2018, an individual sent him an email, to which similar images
were attached, but that he likewise did not know the attached images had been rejected
until July 20, 2018, when he was able to access his email after his transfer to another
facility.
The PLRA requires that inmates exhaust all available administrative remedies
before filing an action challenging prison conditions in federal court. 42 U.S.C. § 1997e(a).
“[P]roper exhaustion of administrative remedies . . . 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. Woodford v. Ngo, 548 U.S. 81, 90 (2006). However, because
“failure to exhaust is an affirmative defense under the PLRA,” defendants bear the burden
of establishing that a prisoner failed to exhaust his administrative remedies. Jones v. Bock,
549 U.S. 199, 216 (2007).
The district court rejected Tory’s claims relating to the removal of the March 8 and
July 12 images, finding that Tory failed to exhaust his administrative remedies pursuant to
Virginia Department of Corrections (“VDOC”) policy. Specifically, the district court
found that, although Tory filed informal complaints with respect to these claims, he failed
to file a regular grievance as to either, and that he did not allege that he was prevented from
doing so. However, Tory demonstrated that he filed grievances with respect to the March
8 and July 12 images and that Defendants received them. The record also suggests that
4 USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 5 of 7
Defendants rejected these two grievances at intake as untimely and that these
determinations were upheld, not that Tory failed to file the grievances at all.
Moreover, Tory asserted below, as he does on appeal, that Defendants improperly
rejected the two grievances at intake, rendering administrative remedies unavailable to him.
Ross v. Blake, 578 U.S. 632, 642-44 (2016) (describing circumstances in which
administrative remedies may be unavailable). Pursuant to VDOC policy at the time of
Tory’s grievances, a prisoner did not exhaust his administrative remedies until he filed a
grievance and appealed that grievance to the highest eligible level of appeal. Defendants’
rejection of Tory’s two grievances at intake rendered it impossible for Tory to exhaust his
administrative remedies as to the removal of the March 8 and July 12 images. Therefore,
if Defendants incorrectly rejected intake of these grievances, administrative remedies may
have been unavailable to Tory. Because the district court did not address Tory’s arguments
that Defendants thwarted his ability to exhaust his administrative remedies, we conclude
that vacatur is appropriate, so that the court may consider whether the administrative
process was available to Tory with respect to the removal of the March 8 and July 12
images.
We next turn to the district court’s dismissal of Tory’s claims regarding the rejection
of images allegedly sent to him on April 5, 2018. We review de novo a district court’s
dismissal for lack of standing. Episcopal Church in S.C. v. Church Ins. Co. of Vt., 997
F.3d 149, 154 (4th Cir. 2021). To demonstrate standing, “a plaintiff must have (1) suffered
an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and
(3) that is likely to be redressed by a favorable judicial decision.” Id. at 155 (internal
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quotation marks omitted). “Critically, the procedural posture of the case dictates the
plaintiff’s burden as to standing.” Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017).
Because the district court dismissed these claims at the summary judgment stage, Tory
could not rely on “mere allegations, but [was required to] set forth by affidavit or other
evidence specific facts, which for purposes of the summary judgment motion [would] be
taken to be true.” Id. (internal quotation marks omitted).
The district court found that Tory failed to offer any evidence apart from his bare
assertion that he was sent an image on April 5 and that it was removed. The district court
noted that Defendants had denied that any images were removed on that date and that
Defendants’ denial was supported by Defendants’ own assertions. However, the district
court appears to have overlooked Tory’s sister’s notarized affidavit, in which she explicitly
stated that she had sent Tory an image on April 5, 2018. As we have made clear, at the
summary judgment stage, “[a] district court may not weigh the evidence or make credibility
determinations, and is not in a position to disregard stories that seem hard to believe.”
Harris v. Pittman, 927 F.3d 266, 272 (4th Cir. 2019) (cleaned up); see Raynor v. Pugh, 817
F.3d 123, 130 (4th Cir. 2016) (“[W]here affidavits present conflicting versions of the facts
which require credibility determinations, summary judgment cannot lie.” (internal
quotation marks omitted)).
Accordingly, we vacate the district court’s order and remand for further proceedings
consistent with this opinion. * We deny Tory’s motion to appoint counsel. We dispense
* We express no opinion as to the underlying merits of Tory’s constitutional claims.
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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.
VACATED AND REMANDED