Opinion
Civil Action 4:19-cv-2171-TMC-TER
06-30-2022
BILLY D. MORRISON, #296920, a/k/a BILLY DEVAR MORRISON, #256128, Plaintiff, v. SCDC, LEE INFIRMARY, DR. J. MCREE, DR. J. PATE, NURSE D. CAPADONIA, NURSE S. BLACKWELL, and JULIE POWELL, Nursing Supervisor, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs. Presently before the Court is Defendant Nurse Cappadonia's Motion for Summary Judgment (ECF No. 155). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant's motion could result in dismissal ofhis Complaint. Plaintiff filed two Responses (ECF Nos. 160, 168). 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 Rule 73.02(B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
All other Defendants have been dismissed from this action. See Orders (ECF Nos. 72, 135, 149).
II. PROCEDURAL HISTORY
Defendants originally filed Motions for Summary Judgment (ECF Nos. 108, 111) in January of 2021. The undersigned entered a Report and Recommendation (ECF No. 130) recommending that Plaintiff's claims be dismissed for failure to exhaust his administrative remedies as required under the Prison Litigation Reform Act (PLRA). 42 U.S.C.1997e(a). The District Judge entered an Order (ECF No. 135) adopting the recommendation in part as to Defendant Pate, who specifically raised exhaustion in his motion, but declining to adopt the recommendation as to the remaining Defendants who did not specifically raise the exhaustion issue in their motion. The undersigned then entered a Report and Recommendation (ECF No. 139), recommending that summary judgment be granted as to all claims other than Plaintiff's claim that Defendant Nurse Cappadonia was deliberately indifferent to his serious medical needs by denying him a wheelchair. The District Judge entered an Order (ECF No. 149) adopting the recommendation and granting summary judgment as to all claims other than Plaintiff's medical indifference claim against Nurse Cappadonia regarding the alleged denial of a wheelchair.
The District Judge also entered a separate Order (ECF No. 152) noting that issues of factual dispute existed because little to no discovery had occurred in the case, allowing further discovery and an opportunity to more fully develop the factual record to address the issues relating to the remaining claim, and file any supplemental dispositive motions as may be appropriate.
Nurse Cappadonia filed a supplemental Motion for Summary Judgment (ECF No. 155) on January 24, 2022, and Plaintiff's response was due February 25, 2022. See Roseboro Order (ECF No. 156). Plaintiff filed a Motion for Extension of Time (ECF No. 159), but subsequently filed a timely Response (ECF No. 160) on February 18, 2022. The undersigned mistakenly entered an Order (ECF No. 165) granting Plaintiff's Motion for Extension of Time as well as a Report and Recommendation (ECF No. 166) recommending that Nurse Cappadonia's Motion for Summary Judgment be granted.
The motion should have been marked as moot since Plaintiff timely filed a Response.
Upon receipt of the undersigned's Order granting the motion for extension of time, Plaintiff filed a second response to the Motion for Summary Judgment. As such, the District Judge entered an Order (ECF No. 170) declining to adopt the Report and Recommendation and returned the matter to the undersigned for consideration of Plaintiff's supplemental response and a new Report and Recommendation.
III. FACTS
The only claim remaining in this case is Plaintiff's claim that Nurse Cappadonia was deliberately indifferent to his serious medical needs by failing to obtain a wheelchair for him though he repeatedly asked her to do so. Am. Compl. p. 10 (ECF No. 44). According to his SCDC medical records, on December 29, 2017, while he was incarcerated at the Greenville County Detention Center, Plaintiff fell from a bunk bed and fractured his cervical spine, which resulted in paraplegia. Pate Aff. ¶ 5 (ECF No. 108-1). He was admitted to Greenville Memorial Hospital and remained there until January 19, 2018, when he was transferred to Kirkland Correctional Institution in Columbia, South Carolina. Pate Aff. ¶ 5. On November 29, 2018, Plaintiff was transferred from Kirkland to Lee Correctional Institution in Bishopville, SC. Pate Aff. ¶ 5. Nurse Cappadonia was a nurse at Lee. Am. Compl. p. 2.
Due to his spinal injury, Plaintiff is paraplegic and cannot walk; he needs a wheelchair. Pate Aff. ¶ 18. This is noted on his initial assessment upon admission to the infirmary at Kirkland on September 20, 2018. Pate Aff. ¶ 18; Pl. Med. Records (ECF No. 114, p. 145). On November 6, 2018, while Plaintiff was still at Kirkland, a notation was made that Plaintiff was a “parapalegic with good upper body strength. Able to propel self in w/c.” Pl. Med. Records (ECF No. 113, p. 39). Dr. Pate avers that to his knowledge while Plaintiff was at Lee, a wheelchair was available to him and he used it. Pate Aff. ¶ 18. In his progress note of January 31, 2019, Dr. Pate noted that Plaintiff had an “abrasion on right side of [his] right thigh from wheelchair - chair has been fixed - dressing to wound.” Pate Aff. ¶ 18. However, Plaintiff asserts that he does not have a wheelchair, and a fellow inmate at Lee, Samuel Huguenin, Jr., avers that Plaintiff “has no wheelchair or one to use in the infirmary due to size and [height].” Huguenin Decl. ¶ 8 (ECF No. 123-1). Plaintiff asserts that he repeatedly requested a wheelchair from Nurse Cappadonia but she did not obtain one for him. Am. Compl. p. 10. Nurse Cappadonia avers that at no time did she deny a request from Plaintiff for a wheelchair. Cappadonia Aff. ¶ 4. She avers that she did not have the authority to acquire a wheelchair for any patient, and that a physician must sign off on the request. Cappadonia Aff. ¶ 3. She avers that if Plaintiff had requested a wheelchair from her she would have documented his request in the medical records and noted with whom she spoke about it. Cappadonia Aff. ¶ 4. Nurse Cappadonia also avers that Plaintiff could have made a request for a wheelchair to numerous other individuals, including other nurses, hospice workers, or physicians, or through a written request to staff but there is no evidence that Plaintiff did any of those things. Cappadonia Aff. ¶ 8. Wanda Sermons, the Director of Nursing for SCDC, avers that Plaintiff submitted no medical requests to staff requesting a wheelchair or complaining that he did not have a wheelchair. Sermons Aff. ¶¶ 1, 4 (ECF No. 155-4); Pl. Medical Request to Staff Forms (ECF No. 155-5). Dr. Pate averred that because Plaintiff is a paraplegic and cannot walk he needs a wheelchair. Pate Aff. ¶ 18. Dr. Pate averred that if he had known that Plaintiff did not have a wheelchair he would have taken appropriate action to ensure that a wheelchair was provided to him. Pate Aff. ¶ 18.
While the medical records reflect that this abrasion was caused by a wheelchair, Nurse Cappadonia's Affidavit appears to suggest that it was caused by a “too small reclining chair.” Cappadonia Aff. ¶ 9 (ECF No. 155-3).
In his first response (ECF No. 160) to Nurse Cappadonia's motion, Plaintiff appears to argue that she should not be allowed to seek summary judgment a second time, and Plaintiff should be granted “default against these Defendants.”
To the extent Plaintiff seeks a default judgment against Nurse Cappadonia, his fails to present a basis for this request. Federal Rule of Civil Procedure 55(a) provides that “when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Nurse Cappadonia timely filed an Answer on August 19, 2020. Answer (ECF No. 62). In addition, though an answer can be stricken and default judgment entered as a sanction under certain circumstances, Plaintiff has presented no such circumstances. See, e.g., Fed.R.Civ.P. 37(b).
In his supplemental response (ECF No. 168), Plaintiff disputes Nurse Cappadonia's affidavit in which she states that Plaintiff never asked her for a wheelchair. He asserts that he was placed in a wheelchair by “Hospice Workers and CNA Hickman Joe,” but there was not a chair large enough to accommodate his size. He further asserts, without citation to any record evidence, that Nurse Cappadonia said that SCDC headquarters had just purchased wheelchairs for two other inmates and it was not going to approve the purchase of another wheelchair due to the price. Instead, she ordered two recliner chairs for use by Plaintiff and one other inmate. He asserts that he still does not have a wheelchair, though he was measured for one in the summer of 2021, because the paperwork for the chair was lost. He also cites to nine electric kiosk numbers regarding “assistance with getting these staff to comply,” but fails to attach these kiosk records or disclose the nature of these records. Plaintiff also asserts that Defendants have not provided the court with the correct medical records. However, Plaintiff has failed to present the court with any additional records despite being allowed additional time to conduct discovery by the District Judge.
IV. STANDARD OF REVIEW
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
V. DISCUSSION
Defendant argues that summary judgment is appropriate in part because Plaintiff failed to exhaust his administrative remedies. Mem. p. 5 (ECF No. 155-1). She also raised failure to exhaust as an affirmative defense in her Answer. Answer ¶ 44 (ECF No. 62). The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C.1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “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.” Id. § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir.2001) (exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3 d 718 (7th Cir.2001) (exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001) (unpublished opinion) (applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including § 1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006).
SCDC's Grievance System involves a three-step process. First, except in cases of disciplinary convictions or custody reductions, an inmate must attempt to resolve the issue through informal resolution by submitting a Request to Staff Member (RTSM) form within eight working days of the incident. SCDC Inmate Grievance System Procedures, GA-01.12 (May 12, 2014) (Grievance Policy) § 13.2 (ECF No. 108-5). After a response to the RTSM is received, the inmate may file a Step 1 grievance, which also requires the submission of supporting documentation. Grievance Policy § 13.2. If the Step 1 grievance is returned unprocessed, the inmate must submit a new grievance which corrects any deficiencies noted in the first grievance, or appeal to the Chief of the Inmate Grievance Branch within ten working days of the unprocessed grievance being returned. Grievance Policy § 13.3. On the other hand, if the Step 1 grievance is processed and the inmate is unsatisfied with the response thereto, the inmate must appeal such action by filing a Step 2 grievance within five calendar days of the response. Grievance Policy §§ 13.6-13.7. The response to the Step 2 grievance is considered the agency's final decision on the issue. Grievance Policy § 13.7.
Also available at www.doc.sc.gov/policy/policy.html. See Hall v. Virginia, 385 F.3d 421, 423 at n.3 (4th Cir. 2004) (taking judicial notice of factual information located in postings on government websites).
As set forth above, Plaintiff submitted no RTSM form requesting a wheelchair or complaining that he did not have a wheelchair. There is no mention of a wheelchair in any of the RTSM forms submitted to the court. Sermons Aff. ¶¶ 1, 4 (ECF No. 155-4); Pl. Medical Request to Staff Forms (ECF No. 155-5); see also Inmate Grievance History (ECF No. 108-7). Further, Nurse Cappadonia avers that she has found no grievances filed against her by Plaintiff regarding the allegations contained in this action. Cappadonia Aff. ¶ 12 (ECF No. 155-3); see also Cappadonia First Aff. ¶ 7 (ECF No. 111-6). Pursuant to SCDC's Grievance Policy, the first requirement for exhausting administrative remedies is to submit an RTSM form. Grievance Policy § 13.2. Thus, Plaintiff failed to exhaust his administrative remedies with respect to the wheelchair issue.
Plaintiff does not dispute Nurse Cappadonia's argument that he failed to exhaust his administrative remedies with respect to the wheelchair. Rather, he argues in his supplemental response that the District Judge has already ruled that Dr. Pate was the only Defendant to raise exhaustion as a defense to liability in his motion and thus, the court cannot raise it for the remaining Defendants. While Plaintiff is correct regarding the court's prior ruling, it is not a bar to Nurse Cappadonia's present exhaustion argument. The District Judge did not rule that Plaintiff had exhausted his administrative remedies, only that the court could not raise the exhaustion argument on behalf of Defendants who had not raised it in their original motion. See Order pp. 7-8 (ECF No. 135). However, as stated above, Nurse Cappadonia has now raised Plaintiff's failure to exhaust in her second Motion for Summary Judgment. Mem. p. 5 (ECF No. 155-1). Following his ruling on Nurse Cappadonia's first summary judgment motion, the District Judge allowed the parties time to conduct additional discovery “as to the sole remaining claim” and “file any dispositive motions as may be appropriate.” Order (ECF No. 152). The District Judge's Order did not limit the parties as to what arguments could be raised in a subsequent dispositive motion on the sole remaining claim in this case, and thus Nurse Cappadonia is not prohibited from raising exhaustion in the present motion.
She also previously raised it as an affirmative defense in her answer. See Answer ¶ 44 (ECF No. 62). See, e.g., Murray v. Matheney, No. 2:13-CV-15798, 2017 WL 5894545, at *2 (S.D. W.Va. Nov. 29, 2017) (holding that a party who raised the affirmative defense of failure to exhaust under the PLRA in a motion in limine had not waived the defense by failing to raise it earlier in a motion to dismiss or for summary judgment where the party had pleaded it as an affirmative defense in his answer).
Even though the failure to exhaust administrative remedies is an affirmative defense, Jones v. Bock, 549 U.S. 199, 215-216 (2007); Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017), once the issue has been raised by the defendant, a claim that has not been exhausted may not be considered by this court, Bock, 549 U.S. at 220. In other words, exhaustion is mandatory. Ross v. Blake, 578 U.S. 632, 639 (2016). Therefore, a court ordinarily may not excuse a failure to exhaust. Id. (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining “[t]he mandatory ‘shall' ... normally creates an obligation impervious to judicial discretion”)). Nurse Cappadonia has presented evidence that Plaintiff failed to exhaust his administrative remedies and Plaintiff has failed to present evidence to show otherwise. Therefore, because there is no evidence in the record that Plaintiff exhausted his administrative remedies with respect to his need for a wheelchair, summary judgment is appropriate.
“A prisoner need not exhaust remedies if they are not ‘available.' ” Ross, 578 U.S. at 636. “[A]n 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). Plaintiff presents no evidence of any such circumstances.
VI. CONCLUSION
For the reasons discussed above, it is recommended that Nurse Cappadonia's Motion for Summary Judgment (ECF No. 155) be granted and this case be dismissed in its entirety.