UN PUBLISHED
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 un published per curiam opinion

. USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 1 of 72 Michael Ellery Tory , Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 2 of 73 PER CURIAM: Michael E

. Tory , Sr. , a state prisoner , appeals the district court ’ s order granting summary judgment in favor of Defendants on hi s claims under the First and Fourteenth Amendment s
. The district court found that Tory had not exhausted his available admini strative 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 C ts. , 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 thos e 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 pri son , and that Defendants failed to provide notice of the rejections. Specifically, Tory alleged that his sister sent him such USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 3 of 74 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 , wh en he was able to access his email after his transfer to another facility

. T he 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]rop er 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 fi led 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, T ory demonstrated that he filed grievance s with respect to the March
8 and July 12 image s and that Defendants received them

. T he record also suggests that USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 4 of 75 Defendants rejected these two grievances at intake as untimely and that these determination s w ere upheld , not that Tory failed to file the gri evances 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 circumsta nces 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 leve l 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 thes e grievances, administrative remedies may have been unavailable to Tory

. B ecause 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 t hat 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 inj ury 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 USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 5 of 76 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 “me re 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. Howev er, the district
court appears to have overlooked To ry’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) (c leaned 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 consis tent 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. USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 6 of 77 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.
VAC ATED AND REMANDED USCA4 Appeal: 21-6649 Doc: 20 Filed: 12/15/2022 Pg: 7 of 7