United States District Court, D. South Carolina, Charleston Division
Bilal A. Al-Haqq, #126806, a/k/a Bilal Abdullah Al-Haqq, a/k/a Michael Dion McFadden, Plaintiff,
William R. Byars, Jr., Director; Warden John Pate; Major Walter Worrick; Lt. Jennings, SMU; Sgt. A. DeLoach; Corporal Bryant, SMU; Ofc. Ford; Ofc. Frasier; Dr. Thomas E. Byrne; Nurse Alecia Jones-Thompson, in their official and individual capacity, Defendants.
REPORT AND RECOMMENDATION
WALLACE W. DIXON, Magistrate Judge.
This civil rights action, brought pursuant to 42 U.S.C. § 1983, filed by a state prisoner proceeding pro se and in forma pauperis is before the undersigned United States Magistrate Judge for a report and recommendation on the Defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56. 28 U.S.C. § 636 (b) and Local Civil Rule 73.02, DSC.
The plaintiff, Bilal A. Al-Haqq ("Al-Haqq") filed his complaint on July 25, 2013, and named as Defendants William R. Byars, Jr., the Director of the South Carolina Department of Corrections (SCDC); Warden John Pate of the Allendale Correctional Institution (ACI) where Al-Haqq was housed at all times relevant to his complaint; and Lt. Jenkins, a correctional officer at ACI in the Special Management Unit (SMU) where Al-Haqq was housed. He also sued the following employees of SCDC at ACI: Major Walter Worrick; Sgt. A. DeLoach; Corporal Bryant; Off. Ford; Off. Frasier; Dr. Thomas E. Byrne, and Nurse Alicia Jones-Thompson. He sued all Defendants in their official and individual capacities. He seeks declaratory and injunctive relief, as well as compensatory and punitive damages.
In his complaint, he alleged the Defendants subjected him to excessive use of force and deliberate indifference to serious medical needs in violation of his protections under the Eighth Amendment, and in retaliation for his complaints.
Specifically, Al-Haqq complains of severe pain in his left shoulder and alleges he reported the issue to Defendant Byrne and another nurse in February and July, 2013. According to the Complaint, Plaintiff can not raise his arm above his head, and cannot hold objects in his left hand. Plaintiff alleges his existing injuries were exacerbated when Defendant Bryant pushed Plaintiff's face into a wall, punched him in the back and kicked him in his left thigh. He alleges that he continues to come into contact with Defendant Bryant.
Al-Haqq complains that the steroid treatment he had been receiving for his shoulder was not completed, and he alleges that the pain continues despite the medication he is receiving. Al-Haqq also claims he is asthmatic, and requires an inhaler. He states that he is not permitted to keep the inhaler with him, and that he has had several asthma attacks. The inhaler is locked in the control room per prison rules and Plaintiff has been instructed that he must call for it. However, when he is having an attack is unable to do so.
Next, Al-Haqq alleges that Defendant Bryant threw Plaintiff's incoming mail into the trash can. He states that Defendant Bryant served him a dirty food tray that had been sitting on the floor. When he said he did not feel safe being served by Defendant Bryant, he was denied his food tray. Although Al-Haqq is no longer supposed to receive his food tray from Defendant Bryant, he claims that he has been told that Defendant Bryant can continue to make "call checks" at his cell. Al-Haqq maintains that he faced daily threats from Defendant Bryant, and that Bryant tried to continue bringing his food to his cell. Al-Haqq claims that Defendant Bryant again refused to give him food.
Al-Haqq complained that Defendant Bryant returned to his cell and sprayed mace into the cell through the food flap. He states he and his cell mate were left in the cell all weekend without a shower. He also alleges he could not breathe during the incident and was initially denied his inhaler. While he finally received his inhaler, he alleged he was unable to use it. Furthermore, the air was turned off and they were not given anything to eat. He alleges his eyes are "closed and watery with orange matter coming out." He states he cannot see out of his right eye, the vision in his left eye is blurry, and he can not open his eyes without pain. According to Al-Haqq, his complaints concerning Defendant Bryant have now been sent to the Division of Investigations (DOI).
Al-Haqq also believes that he is being retaliated against for filing numerous grievances and lawsuits; he has not been allowed to call his attorneys, has had his legal mail returned to him, sometimes opened and damaged, and has been denied legal supplies. He alleged he has been denied access to the courts.
Importantly, he also avers that he attempted to grieve these matters a number of times without success.
On December 27, 2013, the Defendants filed their summary judgment motion (Dkt. 70) and asserted as their first ground Al-Haqq's failure to comply with the exhaustion requirement of the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e (a). Defendants filed their own affidavits as well as incident reports, medical records, and various Step 1 grievances submitted by the Plaintiff.
On December 27, 2013, Al-Haqq was provided a copy of the motion, affidavits, and exhibits and was given an explanation of dismissal and summary judgment procedures similar to that required by Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) advising him that a failure to properly respond might result in the entry of summary judgment against him.
On January 31, 2014, Plaintiff filed a response in opposition to the motion and a brief in support which ran fifty-seven (57) pages in length. Thereafter, on June 5, 2014, this case was reassigned to the undersigned. Since Al-Haqq's response to the summary judgment motion exceeded the page limits set out in this court's local civil rules, Local Civil Rule 7.05(B)(1), D.S.C. (limiting briefs to thirty-five (35) double-spaced pages)), the pleading was stricken on July 7, 2014. Plaintiff was given until July 18, 2014, to file an opposition which complied with the page limit of the court's local rules. No timely opposition was filed. On July 28, 2014, however, Plaintiff filed a "motion for an exception" asking the court to consider the first thirty-five (35) pages of his stricken opposition as his brief which complies with the page limits of the local rules. That motion was granted on July 29, 2014.
On July 17, 2014, the undersigned ordered the Defendants to supplement their motion for summary judgment on the ground of failure to comply with the exhaustion requirement of the PLRA with proper support by July 22, 2014. Defendants filed the affidavit of Ann Hallman, Branch Chief of the Inmate Grievance Branch of the SCDC, in which she swore that she reviewed Plaintiff's grievances for the relevant time period, and indicated none had been exhausted save one regarding his complaints about his medical care, which grievance was administratively exhausted on October 2, 2013, well after the July 25, 2013, filing date of the instant action. (Dkt. 104).
Plaintiff filed his Reply to Hallman's affidavit on August 4, 2014, and generally complained that he had "made every effort to exhaust his administrative remedies and had satisfied the prerequisites for filing a 1983 lawsuit" and that "prison officials have adopted an unconstitutional policy in the filing of Grievances In an effort To Thwart The amount of Lawsuits being filed by ...