United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
Plaintiff Monterio Lamarcus Hood is an inmate incarcerated at the Broad River Correctional Institution ("BRCI"), a facility of the South Carolina Department of Corrections ("SCDC"). He brings this civil rights action, pro se and in forma pauperis, pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights by the following defendants: SCDC Director William Byars; SCDC Director of Operations Robert E. Ward; SCDC Regional Director Dennis R. Patterson; Lee Correctional Institution ("LCI") Warden Michael McCall; SCDC Investigator Greer; BRCI Warden Robert M. Stevenson; BRCI Associate Warden Dennis Bush; BRCI Captain Gregory Pack; and BRCI Investigator Estes ("Defendants").
This matter is before the court on Defendants' motion for summary judgment. [Entry #38]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [Entry #39]. This motion having been fully briefed [Entry #49], it is ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because the motion is dispositive, this Report and Recommendation is entered for review by the district judge. For the following reasons, the undersigned recommends Defendants' motion for summary judgment [Entry #38] be granted.
I. Factual Background
Plaintiff was housed in the Special Management Unit ("SMU") at LCI, but was transferred to BRCI after LCI inmates rioted. [Entry #38-1 at 1-2]. He contends he was held in investigative detention in BRCI's SMU for three months beyond a prior sanctioned disciplinary detention without any disciplinary charges being filed or receiving any due process protections. [Entry #1 at 6]. Plaintiff further claims that a prison policy that allows an indefinite time frame for investigations, "SCDC Policy/Procedure OP-22.14, § 4.3.2, " is unconstitutional. Id. at 6. He alleges that though he was not under investigation, he remained in SMU investigative detention. Id. at 2, 4. He argues his SMU detention was highly restrictive and constitutes an atypical and significant hardship from the ordinary incidences of prison life. Id. Plaintiff seeks monetary damages and injunctive relief. Id. at 11-12.
A. Standard of Review
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 nonmoving 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).
Defendants contend they are entitled to summary judgment because Plaintiff did not exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). [Entry #38-1 at 14-16]. The PLRA provides that "[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." 42 U.S.C. § 1997e(a). The exhaustion 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). A plaintiff must avail himself of every level of available administrative review, see Booth v. Churner, 532 U.S. 731 (2001), and "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 a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005).
The court takes notice that SCDC's grievance process requires an inmate to file a Step 1 grievance with designated prison staff. See, e.g., Sweat v. Reynolds, C/A No. 9:11-1706-MGL, 2013 WL 593660, *4 (D.S.C. February 15, 2013). If the Step 1 grievance is denied, the inmate must appeal to the warden of his facility via a Step 2 grievance. Id. An inmate properly exhausts a claim under § 1983 only after completing both Steps 1 and 2 in the SCDC grievance process. Id.
Defendants offer affidavits from McCall and Stevenson who attest Plaintiff did not timely file a Step 2 grievance. [Entry #38-3 at 3, #38-4 at 3]. In his response, Plaintiff does not argue that he filed a Step 2 grievance, but instead references a SCDC handout about exhaustion of remedies and cites to an Administrative Law Court appeal that he filed on March 6, 2013, that was dismissed on March 21, 2013. [Entry #s 49 at 3, 49-7 at 1-5]. Plaintiff also cites to affidavits from other inmates who attest that they heard Plaintiff complain to BRCI officers about being improperly held in SMU. [Entry #49 at 3, #49-8 at 1-10.] Additionally, Plaintiff refers to an unanswered SCDC Request Form that he sent on April 2, 2013, to defendant Greer, and a response from defendant Stevenson, dated April 10, 2013, informing Plaintiff the investigation was ongoing. [Entry #49 at 4-5, #49-9 at 1-3]. Plaintiff has not cited to any evidence demonstrating he exhausted his administrative remedies by filing a Step 2 grievance. Defendants are therefore ...