Opinion
C/A 9:21-cv-01424-SAL-MHC
06-21-2022
Robert M. Fulmer, Plaintiff, v. Brian Kendell, Timothy Clark, Carol Holmes, Albert Mack, Travis Guess, Shonta Robinson, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Before the Court is a Motion to Dismiss, or in the alternative for Summary Judgment, filed by Defendants Brian Kendell, Timothy Clark, Carol Holmes, Albert Mack, Travis Guess, and Shonta Robinson (collectively “Defendants”). ECF No. 38. Plaintiff Robert M. Fulmer (“Plaintiff”) filed a Response in Opposition. ECF No. 50. The matter is therefore ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because Defendants' Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff is an inmate at Lieber Correctional Institution, which is run by the South Carolina Department of Corrections (“SCDC”). Plaintiff claims that his constitutional rights have been violated because he has not been allowed “adequate and meaningful opportunities to participate in indoor and outdoor recreation, exercise, fresh air, and direct sunlight exposure” since approximately January 2019. ECF No. 1 at 7. He claims that he has suffered from “extreme back pain, hip pain, knee pain, joint pain, muscle pain, loss of exercise, Vitamin D deficiency, stress, depression, anxiety, mood swings, and anger” as a result of the lack of exercise. ECF No. 1 at 8. Plaintiff requests monetary and injunctive relief. ECF No. 1 at 9.
II. LEGAL STANDARD
Defendants argue that dismissal is appropriate under Rule 12(b)(6) for failure to state a claim; and alternatively, that summary judgment is appropriate pursuant to Rule 56 of the Federal Rules of Civil Procedure because, among other things, Plaintiff failed to exhaust his administrative remedies. ECF No. 38. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendants argue they are entitled to relief because, inter alia, Plaintiff did not exhaust his administrative remedies before filing this action as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The undersigned agrees Plaintiff did not exhaust his administrative remedies, which is dispositive of the action.
A. Failure to exhaust under the PLRA
The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's exhaustion requirement is mandatory.” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); see also Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement.”). Section 1997e mandates “proper” exhaustion; thus, a “procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).
The PLRA “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). “Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Id. (citation and internal quotation marks omitted).
Defendants submitted the affidavit of Felecia McKie, who is the Chief of the Inmate Grievance Branch of SCDC, and SCDC's “Inmate Grievance System,” which contains the inmate grievance procedure. ECF No. 38-4. Defendants also submitted the grievances Plaintiff filed related to the incident. ECF No. 38-4 at 57-61.
As Chief of the Inmate Grievance Branch, McKie's duties include overseeing and monitoring the inmate grievance process at all SCDC facilities. ECF No. 38-4 at 1. In her affidavit, McKie detailed the grievance system and noted the steps an inmate must take to properly exhaust the administrative process. ECF No. 38-4 at 1-3. To summarize the process, generally, an inmate must first submit a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”) in an effort to resolve the grievance informally. ECF No. 38-4 at 2, 12-14. Thereafter, the inmate must file a Step 1 Grievance Form (10-5), setting forth the issue grieved. ECF No. 38-4 at 2, 12-14. Inmates may then appeal an SCDC decision as to the Step 1 Grievance by filing a Step 2 Grievance Form (10-5A). ECF No. 38-4 at 3, 12-14. SCDC's response to a Step 2 Grievance is considered the final agency decision on the issue. ECF No. 38 at 6; ECF No. 38-4 at 4, 13.
McKie reviewed Plaintiff's grievance history and attested that Plaintiff did file one RTSM and two Grievances related to the facts alleged in the Complaint. ECF No. 38-4 at 4. McKie averred that these grievances were received and returned to the Plaintiff with the explanation that he had failed to provide the required RTSM form/reference number, and that SCDC further gave Plaintiff five calendar days to resubmit the form with the RTSM form so that his grievance could be properly investigated. ECF No. 38-4 at 4. McKie gave a timeline of events for Plaintiff's Grievances:
a. On June 12, 2020, [] Plaintiff submitted a RTSM stating he was not being allowed to have indoor or outdoor exercise, as well as no sunlight exposure.
b. SCDC then responded to the RTSM on August 8, 2020.
c. After receiving that response, [] Plaintiff appropriately filed a Step l Grievance From [sic] on August 13, 2020, however, the form did not include the requisite RTSM form or reference number to ensure SCDC could properly investigate the matter.
d. SCDC then responded to that Step 1 Grievance on September 14, 2020, instructing [] Plaintiff to provide the required RTSM form or reference number. SCDC then gave [] Plaintiff five (5) days to resubmit a new form with that designated information so that SCDC could properly investigate the matter.
e. On September 18, 2020, [] Plaintiff then resubmitted another Step 1 Grievance Form. It appears that Plaintiff provided a number, however when looking at the appropriate RTSM form, the number [] Plaintiff provided, “c020389,” is the identification number of the author of the RTSM
response, and not the requested reference number of the RTSM.
f. On October 20, 2020, SCDC responded with a similar response to the previous Step 1 Grievance and added the not[e] to “Please use ref# not responding#.” The response then again provided [] Plaintiff the opportunity to resubmit another Step 1 Grievance Form within five (5) days with the requested RTSM reference number.
g. After my review of [] Plaintiff's RTSM and Grievance History, [] Plaintiff submitted no subsequent RTSMs or Grievances that relate to the allegations contained in [] Plaintiff's Complaint from the alleged dates of January 1, 2019, until the date of filing, May 13, 2021.ECF No. 38-4 at 4-5 (internal citations omitted).
Upon review of Plaintiff's Grievance history, McKie concluded that Plaintiff failed to properly file a Step 1 Grievance Form with all required information, subsequently failed to resubmit the Step 1 Grievance Form with the required information after given the opportunity to do so, and never filed the required Step 2 Grievance Form nor properly appealed SCDC's decisions. ECF No. 38-4 at 6. Consequently, Defendants have shown that Plaintiff failed to exhaust his administrative remedies prior to initiating this action. See Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff').
In his Response, Plaintiff argues that the administrative process became unavailable to him when prison officials thwarted him from taking advantage of the grievance process. ECF No. 50 at 2-4. Specifically, he argues that he filed a third Step 1 Grievance within the time frame allotted when he handed the grievance to a correctional officer to be placed in the grievance box. ECF No. 50 at 3. Plaintiff attaches a signed declaration, wherein he avers that he handed this corrected grievance with the appropriate reference number to correctional officer “Ms. Chi, and asked her to put it in the grievance box for [him] because [he] was locked in [his] cell.” ECF No. 50-1 at 1. He avers that he saw Officer Chi put his grievance in her pocket, but that he did not see her place it in the grievance box. ECF No. 50-1 at 1. He argues that Officer Chi thwarted him from taking advantage of the grievance process by not placing his third Step 1 Grievance into the grievance box as she was required to do. ECF No. 50-1 at 2.
The Supreme Court has recognized that the PLRA contains its own textual exception to the mandatory exhaustion requirement, noting the requirement hinges on the “availability” of administrative remedies-that is, an inmate “must exhaust available remedies, but need not exhaust unavailable ones.” Ross, 578 U.S. at 642. The Supreme Court set forth three scenarios where the administrative process, although officially on the books, might be considered “unavailable” for purposes of exhausting under the PLRA. Id. at 643-44. The Court held an administrative procedure is unavailable (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) when it is “so opaque that it becomes, practically speaking, incapable of use;” and (3), “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. Facts supporting the existence of any of these scenarios could remove an inmate's obligation to exhaust his administrative remedies. Id.
Here, Plaintiff's argument that he was thwarted by prison officials from taking advantage of the grievance process falls within the third exception contemplated by Ross. However, even accepting Plaintiff's allegations as true, Plaintiff has not shown the grievance procedure became “unavailable” to him by Officer Chi's failure to file his grievance for him. Plaintiff does not aver that Officer Chi-or any other prison official-used trickery, lies, or threats to prevent him from filing. Indeed, Plaintiff does not aver, or give any facts that would suggest, that Officer Chi intentionally failed to file or intentionally withheld his grievance to thwart his efforts to pursue his administrative remedies; rather, he states that she failed to put the grievance in the grievance box. See ECF No. 50-1. That is, Plaintiff details an isolated incident of a corrections officer failing to file a grievance form on his behalf, which hardly rises to the level of “machination, misrepresentation, or intimidation” contemplated in Ross. See Ross, 578 U.S. at 644 n.3 (collecting cases where courts have found that correction facility staff prevented an inmate from exhausting administrative remedies); see also Bartlett v. S.C. Dep't of Corr., No. CV21703031RMGMGB, 2019 WL 5874218, at *5 (D.S.C. Aug. 14, 2019) (“With respect to the third scenario, Ross seems to require that, to prevail on an assertion that prison officials thwarted his efforts to exhaust, an inmate must be able to demonstrate something more than isolated negligence on behalf of prison officials.”), report and recommendation adopted sub nom. Simpson v. S.C. Dep't of Corr., No. CV 2:17-3031-RMG, 2019 WL 4254228 (D.S.C. Sept. 9, 2019). Accordingly, even accepting Plaintiff's declaration as true, the undersigned finds that Plaintiff has not shown that his administrative remedies became “unavailable” to him for purposes of excusing his failure to exhaust. See State v. S.C. Dep't of Corr., No. CV 0:17-3326-MGL-PJG, 2019 WL 3773867, at *11 (D.S.C. Aug. 9, 2019) (holding that “mere negligence on the part of a correctional officer does not rise to the level of ‘machination, misrepresentation, or intimidation'” sufficient to meet the standard in Ross), report and recommendation adopted, No. CV 0:17-3326-MGL-PJG, 2019 WL 3780141 (D.S.C. Aug. 9, 2019).
As a result, Plaintiff is unable to overcome the undisputed evidence that he failed to exhaust his available administrative remedies. Accordingly, the undersigned recommends granting Defendants' Motion. See Brown v. Ramos, No. CV 5:20-00052-RMG-KDW, 2020 WL 7000846, at *4 (D.S.C. Sept. 29, 2020) (“[T]he undersigned recommends that Defendants' Motion for Summary Judgment be granted because Plaintiff failed to exhaust his available administrative remedies before filing this action.”), report and recommendation adopted, No. CV 5:20-0052-RMG, 2020 WL 6305397 (D.S.C. Oct. 28, 2020); Jones v. Clawson, No. CA 5:11-1533-RBH-KDW, 2012 WL 3096048, at *4 (D.S.C. July 17, 2012) (recommending granting summary judgment in favor of Defendants where Plaintiff failed to show he had exhausted his administrative remedies), report and recommendation adopted, No. 5:11-CV-01533-RBH, 2012 WL 3079160 (D.S.C. July 30, 2012), aff'd, 486 Fed.Appx. 342 (4th Cir. 2012); see also Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (holding that an inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983”); Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999) (determining that an inmate incarcerated in a state prison must first comply with the grievance procedures established by the state department of corrections before filing a federal lawsuit under § 1983).
B. Failure to State a Claim
Even if the undersigned were to find that Plaintiff had shown his administrative remedies became unavailable under Ross, Plaintiff's claims, as pled, do not meet the pleading requirements of Rule 8. See ECF No. 1; Fed.R.Civ.P. 8. Accordingly, the undersigned agrees with Defendants' alternate argument that Plaintiff has failed to state a claim pursuant to Rule 12(b)(6).
The Supreme Court has made clear that a plaintiff “must plead that each Government official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff has failed to plead sufficient facts to support a reasonable inference that Defendants are liable for any misconduct. See id. at 678. The Complaint contains conclusory allegations that do not provide factual detail beyond averring generally that Defendants violated his constitutional rights by failing to provide him with outside recreation time. See id. (noting that a court is not bound to accept as true a complaint's threadbare, conclusory legal statements that are couched as factual allegations). Indeed, there are no facts from which to infer that Defendants engaged in conduct that ran afoul of the constitution. See id. at 679 (noting
“[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief'” (quoting Fed.R.Civ.P. 8(a)(2))). Furthermore, the Complaint provides no specific examples of occurrences in which Defendants violated his rights, nor does it include allegations, with any specificity, of any personal involvement on the part of the Defendants individually. Accordingly, for this additional reason, Plaintiff's claims should be dismissed pursuant to Rule 12(b)(6) for failure to state a claim.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion No. 38, be GRANTED, and that this case be DISMISSED without prejudice for failure to e administrative remedies. Should the District Judge adopt this Report and Recommen Plaintiff's Motion to Dismiss (ECF No. 49) would become moot. Should the District Jud adopt this Report and Recommendation, the undersigned recommends granting Plaintiff's and dismissing Defendant Clark from the suit.
The parties are directed to the attached Notice for their rights to file objections to t recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).