United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
Plaintiff Christopher Ford, proceeding pro se and in forma pauperis, is incarcerated at Lieber Correctional Institution ("LCI") in the custody of the South Carolina Department of Corrections ("SCDC"). He filed his complaint pursuant to 42 U.S.C. § 1983, alleging that Director Jon Ozmint, Warden Wayne McCabe, and Nurse Practitioner E. Holcomb ("Defendants") were deliberately indifferent to his serious medical needs.
This matter comes before the court on Defendants' motion for summary judgment [Entry #29]. 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 #30]. The motion having been fully briefed [Entry #36], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Because this motion is dispositive, the undersigned submits this report and recommendation for the district judge's consideration. For the following reasons, the undersigned recommends Defendants' motion [Entry #29] be granted.
I. Factual and Procedural Background
Plaintiff alleges he injured his spine on August 15, 2011, and was subsequently diagnosed with Brown-Sequard syndrome. [Entry #1 at 3]. Plaintiff contends he did not receive therapy or room accommodations for his condition because he was housed in the segregation unit, and despite his repeated requests for medical treatment, he has not received proper care. Id. Plaintiff alleges that his May 9, 2012, examination by a neurologist at Richland Memorial Hospital was untimely and incomplete because his hand and leg restraints were not removed. [Entry #36 at 3-4, #1 at 4]. Plaintiff contends that his condition should be treated with high dose steroids. [Entry #1 at 4]. Plaintiff argues that when he informed defendant Holcomb that his examination was incomplete and requested steroids, she told him it was too late for steroid treatment, without explaining why he did not receive steroids earlier. Id. at 4-5. Plaintiff alleges he suffers from back pain, spasms in his left leg, and temperature sensation in his right leg that cause him extreme agony. Id. at 5. He seeks monetary and injunctive relief. Id. at 7.
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 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).
1. Exhaustion of Administrative Remedies
Defendants move for summary judgment arguing Plaintiff failed to exhaust his administrative remedies because he did not appeal the denial of his Step 2 grievance to the South Carolina Administrative Law Court ("ALC"). [Entry #29-1 at 7-8]. However, Plaintiff is not required to appeal a decision on a Step 2 grievance to exhaust a medical indifference claim. See Johnson v. Ozmint, 567 F.Supp.2d 806, 820, n. 5 (D.S.C. 2008); Duncan v. Langestein, No. 07-268, 2008 WL 153975 at *5 (D.S.C. Jan. 14, 2008) (citing Charles v. Ozmint, No. 05-2187, 2006 WL 1341267 at *4 n. 4 (D.S.C. May 15, 2006) (recognizing that completion of Step 2 grievance exhausts administrative remedies and § ...