Opinion
C. A. 9:21-cv-00185-TMC-MHC
12-22-2021
Daniel Draper, Plaintiff, v. Ms. Barnes, Dr. Onaha, Mrs. Ramsey, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE
Plaintiff Daniel Draper (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action alleging violations of his constitutional rights while incarcerated at Federal Correctional Institution (“FCI”) Bennettsville. ECF No. 1. Defendants Ms. Barnes, Dr. Onaha, and Mrs. Ramsey (“Defendants”) are employees of FCI Bennettsville, which is a part of the Federal Bureau of Prisons (“BOP”). Plaintiff's constitutional claims are construed as brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).
Before the Court is Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment Motion (“Motion”). ECF No. 25. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition to the Motion. ECF Nos. 26, 30. 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 following reasons, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff alleges that Defendants violated his Eighth Amendment rights while incarcerated at FCI Bennettsville. ECF No. 1. Specifically, he contends that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by denying him medical care in the form of testing he requested for black mold exposure. ECF No. 1 at 4; ECF No. 1-1 at 5-6. Plaintiff submitted an affidavit in which he specifically maintains that Defendant Dr. Ohana refused to see him on sick call for complaints of mold poisoning on January 19, 2020, and that Defendant Ramsey (who is a nurse at FCI Bennettsville) demanded that he leave the medical building. ECF No. 1-1 at 5.
Plaintiff further alleges Defendants violated his Eighth Amendment rights by subjecting him to inhumane conditions of confinement because of the presence of black mold in the showers and on the ceiling of his housing unit. ECF No. 1 at 4-5; ECF No. 1-1 at 5-6. He contends that Defendant Barnes (the Warden at FCI Bennettsville) had over twelve months to fix the broken showers and the extreme amount of black mold, but failed to do so. ECF No. 1 at 4.
Plaintiff alleges that he has suffered mold poisoning symptoms, which includes fatigue, headaches, memory loss, joint pain, nausea, and muscle cramping. ECF No. 1-1 at 6. Plaintiff has also reported fever, sore throat, and rash in his requests to medical staff. ECF No. 1-1 at 1-4. Plaintiff seeks damages in the amount of $250,000.00 from the Defendants for pain and suffering, as well as removal of all of the black mold in his housing unit, including the black mold behind all of the lockers. ECF No. 1 at 6.
II. DISCUSSION
Defendants argue they are entitled to dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction; 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. Defendants contend 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. Legal Standard
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.
Plaintiff and Defendants rely upon several documents to support their positions regarding exhaustion of administrative remedies. Undoubtedly, the administrative grievances - which are referenced by Plaintiff in his Complaint-may be considered without converting a Rule 12(b)(6) motion to dismiss into one for summary judgment. See Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (holding “that when a defendant attaches a document to its motion to dismiss, a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity” (citation and internal quotation marks omitted)). However, Defendants also rely upon an affidavit-which details Plaintiff's administrative filing history and explains the various grievance documents-such that the undersigned has analyzed Defendants' Motion under the Rule 56 standard. See Bolden v. Blocker, No. CV 9:18-3473-DCC-BM, 2019 WL 7944415, at *2 (D.S.C. Oct. 15, 2019) (noting, “while some or all of Defendants' exhibits may be considered under a motion to dismiss, Defendants also submitted an affidavit, and it is unclear whether consideration of this affidavit[-]which details the grievance history set forth in the grievance documents[-]would be appropriate when considering the exhaustion issue strictly under Rule 12”), objections overruled, No. 9:18-CV-03473-DCC, 2020 WL 415899 (D.S.C. Jan. 27, 2020), aff'd, 824 Fed.Appx. 181 (4th Cir. 2020); Garcia-Calderon v. FCI Edgefield Warden, No. CV 9:18-2947-TMC-BM, 2019 WL 7759051, at *2 (D.S.C. Oct. 11, 2019) (noting same), report and recommendation adopted, No. 9:18-CV-02947-TMC, 2020 WL 437018 (D.S.C. Jan. 28, 2020), affd sub nom. Garcia-Calderon v. F.C.I. Edgefield Warden, 823 Fed.Appx. 188 (4th Cir. 2020).
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 plaintiffs 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.”).
B. Administrative exhaustion
Plaintiff alleges violations of the Eighth Amendment. Specifically, Plaintiff's claims are two-fold: (1) a conditions of confinement claim regarding the alleged black mold in the showers, on the ceiling, and behind the lockers in his housing unit at FCI Bennettsville, and (2) a failure to provide adequate medical care claim related to the alleged black mold problem.
Defendants assert they are entitled to summary judgment because Plaintiff did not exhaust his administrative remedies before filing this action as required by the PLRA. They argue that Plaintiff did not adequately raise his conditions of confinement claim or the medical care claim via the BOP's administrative process. The Court agrees with Defendants.
Defendants also argue the Court lacks subject matter jurisdiction over the Complaint because of Plaintiff's failure to exhaust, pursuant to Rule 12(b)(1), ECF No. 25 at 1, 5; however, failure to exhaust under the PLRA does not implicate the Court's subject matter jurisdiction. See Woodford v. Ngo, 548 U.S. 81, 101 (2006) (“[T]he PLRA exhaustion requirement is not jurisdictional[.]”); Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 678 (4th Cir. 2005) (“We therefore conclude that the PLRA's exhaustion-of-remedies requirement does not operate as a bar to the district court's exercise of its subject-matter jurisdiction.”), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); Washington v. Fed. Bureau of Prisons, No. 5:16-CV-03913-BHH-KDW, 2019 WL 2125246, at *5 (D.S.C. Jan. 3, 2019) (“As a result, it is appears that a claim of lack of administrative exhaustion is not properly raised under Rule 12(b)(1), which permits reference to outside documentation.”), report and recommendation adopted, No. 5:16-CV-3913-BHH, 2019 WL 1349516 (D.S.C. Mar. 26, 2019).
The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing a suit challenging 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).
1. BOP's Administrative Remedy Process
The BOP has a three-tier formal administrative remedy process through which an inmate may seek formal review of any issue which relates to any aspect of his confinement. See 28 C.F.R. §§ 542.10-542.19. The grievance process consists of three levels of review: institutional, regional, and national. See Id. First, an inmate must seek to informally resolve any complaint relating to his confinement at the institution level. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request (on a BP-9 form) with the Warden, which must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the Warden's response, he may appeal to the Regional Director (on a BP-10 form); appeals to the Regional Director must be submitted within twenty days of the date the Warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel (on a BP-11 form); appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id. An appeal to the General Counsel is the final level of agency review. Id.
If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. 28 C.F.R. § 542.18.
2. Plaintiff's administrative appeals
Defendants provided the affidavit of J. Carter (“Carter”), the Legal Assistant for the South Carolina Consolidated Legal Center (CLC), located at FCI Edgefield. ECF No. 25-3 at 1-3. As a Legal Assistant, Carter has access to SENTRY, the BOP's computerized record system which logs all formal administrative remedy requests of inmates within the BOP. ECF No. 25-3 at 1, ¶ 3. Copies of the SENTRY records and some of Plaintiff's administrative remedy requests were attached to Carter's affidavit. ECF No. 25-3 at 4-12. Plaintiff also submitted some of his administrative remedy requests and other materials to the Court. ECF No. 30-1. As noted above, Plaintiff's Eighth Amendment claim is properly bifurcated into a conditions of confinement claim and a failure to provide adequate medical care claim.
The CLC handles legal matters arising from the four Federal BOP institutions in South Carolina, which includes FCI Bennettsville. ECF No. 25-3 at 1, ¶ 2.
Defendants explained that when administrative remedy requests are rejected, the materials are returned to the inmate and the BOP does not keep copies of the rejected remedy request. ECF No. 25 at 12 n.3.
With regard to Plaintiff's conditions of confinement claim, a review of the submitted materials reveals Plaintiff did not file any administrative remedies regarding the housing conditions and mold at FCI Bennettsville. See ECF No. 25-3 at 2, ¶ 8, at 4-12; ECF No. 30-1 at 1-8, 18. Plaintiff does not contest this in his Response; rather, he focuses on the denial of medical care claim regarding testing for black mold poisoning. See ECF No. 30 at 4-5. Accordingly, Defendants are entitled to summary judgment on Plaintiff's Eighth Amendment conditions of confinement claim, as it is undisputed that Plaintiff failed to exhaust his administrative remedies on this claim.
With regard to Plaintiff's medical care claim, a review of the evidence shows that while Plaintiff did file an administrative remedy request with regard to a failure to provide adequate medical care related to mold, Plaintiff failed to exhaust his administrative remedies on this claim. Specifically, Carter attested that Plaintiff filed Remedy ID No. 1005271-F1 at FCI Bennettsville requesting medical testing for mold poisoning. ECF No. 25-3 at 2, ¶ 10, at 11. This remedy was received on February 3, 2020, and was subsequently closed on February 21, 2020. ECF No. 25-3 at 7, 10. The Warden's response detailed Plaintiff's previous medical visits, noted what Plaintiff could do if he was experiencing medical issues, and advised Plaintiff that he could appeal to the Regional Office within twenty days if he was not satisfied with the Warden's response. ECF No. 25-3 at 10.
Carter attests that all formal administrative remedy requests are given a unique identifying number. ECF No. 25-3 at 1, ¶ 5. An extension is added to the number which denotes the level at which the claim is filed. ECF No. 25-3 at 1, ¶ 6. Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. Id. The extension “-F1” indicates the filing was at the institution or field level. Id. The extension “-R1” indicates the filing was at the regional level. Id. The extension “-A1” indicates the filing was at the national level. Id. If an appeal is rejected and refiled at the same level, perhaps correcting the identified deficiencies, then the number will change but the letter will remain the same. Id. For example, the extension “-R2" indicates the appeal was rejected at the regional level once and the inmate has re-filed, presumably after correction of the noted deficiencies. Id.
Plaintiff appealed to the Regional Office by filing Remedy ID No. 1005271-R1 (“Regional Appeal”) on February 26, 2020. ECF No. 25-3 at 2, ¶ 13, at 8; ECF No. 30-1 at 7. Plaintiff did not wait for a response to his Regional Appeal, and instead filed another appeal to the Central Office by filing Remedy ID No. 1005271-A1 (“National Appeal”) on March 19, 2020. ECF No. 25-3 at 2, ¶ 14, at 8; see also ECF No. 30-1 at 18. On March 26, 2020, Plaintiff's National Appeal was rejected because it was filed at the wrong level. ECF No. 25-3 at 2, ¶ 15, at 8. On July 7, 2020, Plaintiff's Regional Appeal was rejected for not being legible and for failure to provide a copy of his BP-9 form. ECF No. 25-3 at 2, ¶ 16, at 8. Plaintiff was advised that he could resubmit his Regional Appeal within ten days. ECF No. 25-3 at 2, ¶ 16.
Plaintiff resubmitted his Regional Appeal on October 20, 2020 (Remedy ID No. 1005271-R2). ECF No. 25-3 at 2, ¶ 17, at 9. Before receiving a response to his Regional Appeal, Plaintiff resubmitted his National Appeal (Remedy ID No. 1005271-A2) to the Central Office on November 9, 2020. ECF No. 25-3 at 2, ¶ 18, at 9. On December 3, 2020, Plaintiff received rejections for both his Regional Appeal and his National Appeal. ECF No. 25-3 at 2, ¶¶ 17-19, at 9. Plaintiff's Regional Appeal was rejected because Plaintiff failed to sign the appeal and it was missing administrative data. ECF No. 25-3 at 2, ¶ 17, at 9. Plaintiff was advised he could resubmit his Regional Appeal within ten days. ECF No. 25-3 at 2, ¶ 17, at 9. Plaintiff's National Appeal was rejected for being submitted at the wrong level again. ECF No. 25-3 at 2, ¶ 19, at 9. Plaintiff was advised to get help from Unit Team. ECF No. 25-3 at 2, ¶ 19, at 9. According to Carter's affidavit and the SENTRY records, Plaintiff did not submit any further administrative remedy requests. ECF No. 25-3 at 3, ¶ 20.
Because Plaintiff did not pursue all of the steps and/or remedies available to him through the BOP administrative remedy process, Plaintiff did not exhaust his available remedies as required by the PLRA. See Woodford, 548 U.S. at 90 (noting satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly” (emphasis in original) (citation omitted)). The Court therefore finds Defendants have met their burden in establishing this affirmative defense. See Custis, 851 F.3d at 361 (noting failure to exhaust is an affirmative defense).
In his Response, Plaintiff does not meaningfully contest the filing timeline reflected by the SENTRY records of Plaintiff s administrative remedy requests or the explanations for the remedy rejections outlined by Carter's affidavit. See ECF No. 30 at 4-5. To the extent Plaintiff argues the BOP's responses to his remedy requests were unhelpful or inadequate, Plaintiff has not argued or put forth any other evidence that he was unable to avail himself of the administrative remedy procedure or otherwise demonstrated that he was prevented from exhausting his administrative remedies. See Graham, 413 Fed.Appx. at 663 (noting Fourth Circuit precedent holds 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” (citing Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008))). 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 Garcia-Calderon, No. CV 9:18-2947-TMC-BM, 2019 WL 7759051, at *2 (recommending dismissal without prejudice for failure to exhaust); Bolden, No. CV 9:18-3473-DCC-BM, 2019 WL 7944415, at *2 (same); see also Arthur v. Hawks, No. 8:20-CV-01063-HMH-JDA, 2021 WL 1147046, at *4 (D.S.C. Mar. 2, 2021) (recommending summary judgment for failure to exhaust in a Bivens action and declining to address alternative arguments raised by the defendants), report and recommendation adopted, No. CV 8:20-1063-HMH-JDA, 2021 WL 1140244 (D.S.C. Mar. 24, 2021); Grier v. Mitchell No. CA 9:11-0042-TMC, 2011 WL 5517242, at *2 (D.S.C. Nov. 1, 2011) (noting exhaustion is a precondition to filing suit in federal court and dismissing the plaintiff's Bivens action for failure to exhaust).
III. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion, ECF No. 25, be GRANTED, and that this case be dismissed without prejudice for failure to exhaust administrative remedies.
The parties are directed to the attached Notice for their rights to file objections to this 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).