                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.



                                            9
     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).



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