Opinion
C. A. 1:22-2840-RMG-SVH
01-11-2024
B.J.P., Plaintiff, v. The South Carolina Dept. of Corrections (SCDC), by and through its Director, Bryan P. Stirling; SCDC Director Bryan P. Stirling; SCDC Dep. Dir. Dennis Patterson; SCDC Asst. Dir. Joel Anderson; Warden Levern Cohen, Ridgeland Correctional Institution; Assoc. Warden Consonya Washington, Ridgeland Correctional Institution; Assoc. Warden Aubray Bailey, Ridgeland Correctional Institution; and Major John Wiggins, Ridgeland Correctional Institution, Defendants.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Byron Pou or B.J.P. (“Plaintiff”) originally filed this action on August 25, 2022, bringing claims based on his allegations that at some point in April to June 202i he suffered six stab wounds inflicted by another inmate while incarcerated at Ridgeland Correctional Institution (“RCI”).
Plaintiff has informed the court that during the pendency of this case he has been transferred to Evans Correctional Institution. [See ECF No. 64]. According to his records, Plaintiff was transferred from RCI to Lieber Correctional Institution on March 22, 2022, transferred to Broad River Correctional Facility on September 16, 2022, and transferred to Evans Correctional Institution on November 6, 2023. See https://public.doc.state.sc.us/scdc-public/ (last visited January 10, 2024) (inmate search showing transfers). A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (finding that court may “properly take judicial notice of matters of public record”).
This matter is before the court on motions for summary judgment filed by South Carolina Department of Corrections (“SCDC”), Bryan P. Stirling, Dennis Patterson, Joel Anderson, Levern Cohen, Consonya Washington, and Aubray Bailey [ECF No. 58] and by John Wiggins [ECF No. 61] (collectively, “Defendants”). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment procedures and the possible consequences if he failed to respond adequately to Defendants' motions. [ECF No. 62]. Petitioner did not file a response labelled as such, but has filed a motion to reopen discovery; a motion to amend/correct his complaint with a proposed amended verified complaint; and a motion for extension of time for discovery and to defer summary judgment filed with a declaration, sworn under penalty of perjury. [ECF Nos. 74, 75, 75-1, 79, 79-1].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendants' motions for summary judgment based on Plaintiff's failure to exhaust his administrative remedies, rendering all other motions moot.
I. Factual and Procedural Background
Plaintiff filed the instant case on August 25, 2022. [ECF No. 1]. As to the issue of exhaustion of his administrative remedies, Plaintiff represented in his complaint that he had filed a grievance concerning the relevant event, but that “pursuant to the U.S. Supreme Court's decision in Ross v. Blake . . . the grievance process became unavailable due to an untimely response of my Step 1 grievance.” [ECF No. 1 at 13].
Plaintiff additionally filed a motion for leave to proceed in forma pauperis that the court granted, and a motion to appoint counsel, arguing that the court should appoint him counsel in that he “is an illiterate inmate with severe mental illness.” [ECF Nos. 2, 3, 14]. On December 19, 2022, the court granted Plaintiff's motion to appoint counsel, appointing Jonathan Edmond Bennet Lewis, Esq. [ECF No. 15]. On February 3, 2023, with the assistance of counsel, Plaintiff filed an amended complaint, the operative complaint in this case. [ECF No. 19]. In his complaint, Plaintiff seeks declaratory judgment and an injunction, primarily arguing that his Eighth and Fourteenth Amendment rights have been violated due to the inmate-on-inmate stabbing that occurred. See id. Plaintiff's amended complaint did not address the issue of exhaustion of administrative remedies. See id.
On June 7, 2023, Plaintiff's attorney filed a motion to withdraw as his attorney, representing to the court that “new facts have arisen which seem to show that the Plaintiff is able to read and write at a functional level, and that the grounds cited by the Plaintiff for appointment have been or are resolved.” [ECF No. 39]. The court granted the motion, informing Plaintiff that he is was to proceed pro se, but reminding him that he is free to retain counsel at any time. [ECF Nos. 42].
Although Plaintiff's counsel represented that the Plaintiff did not object to his motion [see ECF No. 39], after the court had granted the motion, Plaintiff filed an objection to the motion, representing that although he was promoted to the eleventh grade, he has only a third grade reading level, he has a low IQ, and he is provided mental health care by the SCDC. [ECF No. 50].
On December 20, 2023, Defendants filed their motions for summary judgment, submitting evidence that the stabbing incident occurred on August 31, 2021 [ECF No. 58-11 ¶ 7, ECF No. 61-3], and arguing in part that Plaintiff failed to exhaust his administrative remedies, thus his claims must be dismissed. [ECF No. 58-1 at 4-7, ECF No. 61-1 at 5-8]. In support of their motions, Defendants have submitted Plaintiff's grievance history, which includes a Step 1 grievance form dated June 13, 2022, filed while Plaintiff was incarcerated at Lieber Correctional Institution, stating as follows:
This grievance is about correctional officers failing to protect from inmate-on-inmate assault. At Ridgeland Correctional Institution I was stabbed six (6) times by another and/or other
inmates. I was hospitalized for about a week. I am still feeling the hurt and pain from my stab wounds .... I am requesting immediate medical attention and treatment for my lasting injuries. Process as a medical emergency grievance.[ECF No. 58-5, see also id. (indicating the grievance was processed and returned and transferred to RCI, where the incident occurred), ECF No. 616].
Defendants have also submitted the following Step 1 grievance form dated August 21, 2022, filed while Plaintiff was incarcerated at Lieber Correctional Institution:
This is an “emergency grievance” about my health and well being since being stabbed six (6) times in my head and chest area, at Ridgeland prison. I've been having internal bleeding. I have been [defecating] out blood and clogs of blood. I've been complaining to medical about this problem, but have not receive[d] the proper treatment I am requesting medical screening and treatment for internal bleeding.[ECF No. 58-6, see also id. (denying grievance and stating as follows: “A review of your concern has been conducted. You were treated for a punctured lung after this incident and have since been to sick call. Medical is currently waiting for you to return hemoccult cards to check your stool. Please follow medicals instructions, and they cannot move forward without your compliance.”), ECF No. 61-7].
As to these two grievances, Defendants have also submitted the following evidence from Felecia McKie (“McKie”), SCDC's inmate grievance coordinator/branch chief of the inmate grievance branch office:
My review of the grievances that the Plaintiff filed relating to this lawsuit, conclude he filed a Step 1 Grievance, received by SCDC on June 23, 2022. Plaintiff states in his grievance that correctional officers failed to protect him from inmate-on-inmate assault and that he is requesting immediate medical attention for his lasting injuries. The agency returned Plaintiff's Step I Grievance, which outlines denial as exceeding the time frame. Plaintiff did not appeal the determination.
Plaintiff filed another Step 1 Grievance, received by SCDC on August 29, 2022. Plaintiff states in his grievance that, since being stabbed six times, he has been defecating blood. The agency returned Plaintiffs Step I Grievance, and Plaintiff acknowledged receipt on September 13, 2022. The Grievance outlines denial because medical was waiting for Plaintiff to return hemoccult cards to check his stool. The denial of the Step I Grievance included notification that Plaintiff could appeal the Warden's decision within five days by placing his Step 2 appeal form in the Grievance Box at his institution. Plaintiff did not appeal the determination.[ECF No. 58-7 ¶¶ 2, 16-22 (exhibit citations omitted), see also ECF No. 61- 12].
Plaintiff has not filed an opposition to Defendants' motions for summary judgment, but has filed a motion to reopen discovery, motion to amend/correct his complaint, and a motion for extension of time for discovery and motion to defer summary judgment. [ECF No. 74, 75, 79]. In these motions, he requests the court to reopen discovery, as “he seeks information and the full names of the three (3) new defendants whom he seeks to add to this suit” [ECF No. 74 at 1, see also ECF No. 75], and represents in his proposed, verified, amended complaint that, although he filed an untimely grievance at Lieber Correctional Institution, “[t]he grievance process became unavailable to me pursuant to Ross v. Blake . . . because I was in the hospital in critical condition and then in the infirmary unit.” [ECF No. 75-1 at 12-13]. He has also submitted a declaration stating he seeks discovery, in part as to “his medical records to show the Court that he was hospitalized and held in SCDC's infirmary unit due to his stabbing injuries, and therefore, he . . . could not have filed his grievance in a timely manner in accordance with SCDC's policy.” [ECF No. 79-1 at 2].
II. Discussion
A. Standard on Summary Judgment
The 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either 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;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, 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, “[o]nly 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.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
Defendants argue Plaintiff failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides “[n]o 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. This requirement “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). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original)). Thus, “it is the prison's requirements, and not the [PLRA], that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, “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 it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross v. Blake, 136 S.Ct. 1850 (2018).
McKie attests that SCDC's grievance procedure generally requires inmates to first seek an informal resolution within eight days of the incident. [ECF No. 58-7 ¶ 6, ECF No. 58-3 at GA-01.12, § 13.2, see also ECF Nos. 61-8, 61-12]. After receiving a response to the informal resolution, the inmate must file a Step 1 grievance form. [ECF No. 58-7 ¶ 8]. The Step 1 form, “must contain a brief statement of the circumstances of the grievance, to include date and time, why the grievant believes s/he is entitled to relief, and a brief statement of the action(s) requested for which relief may be available through the grievance procedure.” [ECF No. 58-3 at GA-01.12, § 13.2]. If a Step 1 grievance is processed and the inmate is not satisfied with the response, the inmate can appeal by submitting a Step 2 form within five days. [ECF No. 587 ¶ 11, ECF No. 58-3 at GA-01.12, § 13.7].
If the institution's grievance coordinator determines a grievance will not be processed, it is noted on the Step 1 form and returned to the inmate. [ECF No. 58-7 ¶ 9, ECF No. 58-3 at GA-01.12, § 13.3]. The inmate can either refile the returned grievance correcting any deficiencies or appeal to the Branch Chief of the Inmate Grievance Branch within ten days. [ECF No. 58-7 ¶ 10, ECF No. 58-3 at GA-01.12, § 13.3].
Every inmate entering any SCDC institution is instructed, orally and in writing, on using the mandatory Inmate Grievance System. [ECF 58-7 ¶ 5, ECF No. 58-3 at GA-0 1.12, § 2]. The grievance system is available to all inmates, day or night, regardless of custody level, classification, disciplinary status, disability, non-English speaking status, or illiteracy. Id. Inmates are also advised of the mandatory grievance process anytime they are transferred between facilities within SCDC. Id.
Defendants argue that Plaintiff knew how to use the grievance process before the August 31, 2021, stabbing incident, as he submitted a grievance on January 21, 2020. [See ECF No. 58-8].
The parties do not dispute that Plaintiff did not file a grievance concerning the stabbing until nearly a year after the stabbing occurred and that the grievances filed primarily concern medical care he sought. Plaintiff argues, however, “[t]he grievance process became unavailable to me pursuant to Ross v. Blake . . . because I was in the hospital in critical condition and then in the infirmary unit.” [See ECF No. 75-1 at 12-13 (proposed verified amended complaint)].
The parties also do not appear to dispute that Plaintiff did not first seek an informal resolution regarding the stabbing incident at any point. [See, e.g., ECF No. 58-7 ¶ 15].
“[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, 517 F.3d at 725. As explained by the Supreme Court, an administrative remedy is considered unavailable when: (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60.
None of the exceptions is applicable here. Although the record is undisputed that a stabbing incident occurred on August 31, 2022, and Plaintiff received medical attention thereafter, the record also is undisputed that Plaintiff was transferred to Lieber Correctional Institution on March 2022, and did not file any grievance concerning the stabbing until June 2022-almost a year after the stabbing incident. There is no indication that Plaintiff did not timely file his grievance as to the stabbing incident because he was prevented by Defendants from doing so or that the grievance process was otherwise unavailable to him for almost a year thereafter. Accordingly, the undersigned recommends the district judge grant Defendants' motions for summary judgment for failure to exhaust administrative remedies.
To the extent that Plaintiff attempts to assert claims based on state law [see ECF No. 75-1], the undersigned recommends the district judge decline to exercise supplemental jurisdiction over them. See 28 U.S.C. § 1367(c).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motions for summary judgment [ECF Nos. 58, 61], dismissing Plaintiff's claims without prejudice. To the extent the district judge accepts this recommendation, the undersigned further recommends all other pending motions be denied as moot.
As to Plaintiff's motion to amend, the undersigned notes leave to amend should be freely granted under Fed.R.Civ.P. 15(a), and amendments are generally accepted absent futility, undue prejudice, or bad faith. See Foman v. Davis, 371 U.S. 178, 182 (1962); Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). When a party wishes to amend after the deadline set in the scheduling order, the party must, under Fed.R.Civ.P. 16, show good cause to modify the scheduling order deadlines before also satisfying the Rule 15(a) standard for amendment. Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008). Here, however, Plaintiff has failed to show good cause to modify the scheduling order to allow amendments to his complaint to assert his claims against three new defendants and assert new state-law claims as well as request monetary damages roughly five months after the deadline. [See ECF No. 30 (setting July 20, 2023 as deadline to amend the pleadings)].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and 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
901 Richland Street
Columbia, South Carolina 29201
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).