United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
J. MICHELLE CHILDS, District Judge.
Plaintiff Corey Jawan Robinson ("Plaintiff") filed this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff alleges excessive force, assault and battery, gross negligence, and denial of access to court by Defendant Sgt. Michael Marquardt (identified by Plaintiff as Sgt. (SMUA-Shift) Marquart) ("Defendant"). (ECF No. 1.) This matter is before the court on Plaintiff's Motion for Partial Summary Judgment (ECF No. 21) and Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (ECF No. 27).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Kaymani D. West for pre-trial handling. On February 28, 2014, the magistrate judge issued a Report and Recommendation ("Report") recommending the court grant Defendant's Motion for Summary Judgment and deny Plaintiff's Motion for Partial Summary Judgment. (ECF No. 33.) This review considers Plaintiff's Objection to Report and Recommendation ("Objections"), filed March 7, 2014. (ECF No. 35.) For the reasons set forth herein, the court ACCEPTS in part and REJECTS in part the magistrate judge's Report. The court thereby GRANTS Defendant's Motion for Summary Judgment (ECF No. 27) and DENIES Plaintiff's Motion for Partial Summary Judgment (ECF No. 21). For reasons outlined herein, the court rejects that portion of the magistrate judge's Report that grants summary judgment based on Plaintiff's failure to exhaust his administrative remedies.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and procedural summation in the magistrate judge's Report is accurate, and the court adopts this summary as its own. However, a recitation of the relevant facts and procedural history is warranted.
Plaintiff is incarcerated at Lieber Correctional Institution ("LCI") within the South Carolina Department of Corrections ("SCDC"). (ECF No. 1 at 3.) Plaintiff alleges excessive force by Defendant in violation of the Eighth Amendment prohibition of cruel and unusual punishment. ( Id. at 4.) In addition, Plaintiff alleges denial of access to courts in violation of the Fourteenth Amendment and state law claims of assault and battery and gross negligence. ( Id. ) Plaintiff seeks to sue Defendant in his individual capacity, to have the district court exercise supplemental jurisdiction over his state law claims, to be awarded compensatory and punitive damages totaling $7, 500, to be awarded attorney and court fees, to clear all fees and costs to state and federal courts, injunctive relief to seek outside treatment for medical conditions allegedly exacerbated by the use of chemical munition, and a non-jury trial. ( Id. at 6.)
Plaintiff alleges that on May 9, 2013, he did not receive his special diet lunch tray, and began knocking on his cell door to get the attention of a corrections officer to explain the situation. ( Id. at 4.) Plaintiff claims that when Defendant approached his cell, Plaintiff tried to explain he had not received lunch, but the officer "gassed [Plaintiff] with chemical munition and walked off without hearing what the problem was." ( Id. ) Defendant contends that Plaintiff continued to kick at his cell door after multiple requests from multiple corrections officers to stop and after assurances that his lunch was on its way. (ECF No. 24-1 at 2.) Defendant further contends that he discharged 18 grams of chemical munition "to restore order to the cell block as [Plaintiff] continued to disregard [Defendant's] directives." ( Id. )
Plaintiff also contends he is being denied access to courts, as the grievance process at LCI, as amended on May 28, 2013, had prevented him from exhausting his administrative remedies. (ECF No. 1 at 5.)
Plaintiff filed his Complaint on July 11, 2013. (ECF No. 1.) Defendant filed his Answer to Plaintiff's Complaint on August 21, 2013. (ECF No. 15) On September 9, 2013, Defendant filed a Motion for Partial Summary Judgment on the issue of excessive force. (ECF No. 21.) Defendant filed a Reply to Plaintiff's motion on September 26, 2013 (ECF No. 24), and Plaintiff filed a Reply Motion for Partial Summary Judgment on October 3, 2013. (ECF No. 25.) On November 27, 2013, Defendant filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. (ECF No. 27.) On December 2, 2013, the magistrate judge entered a Roseboro Order advising Plaintiff of the importance of the motion and his need to file an adequate response. (ECF No. 28.) Plaintiff filed his Response in Opposition to Defendant's motion on December 23, 2013. (ECF No. 31). The magistrate judge issued the Report on February 28, 2014, recommending Defendant's motion be granted due to Plaintiff's failure to exhaust administrative remedies. (ECF No. 33.)
With the evidence in the record at the time of the magistrate judge's Report, Plaintiff could not demonstrate he had fully exhausted his administrative remedies, providing only returned and unprocessed Step 1 Grievance forms that requested Plaintiff attach an answered Request to Staff Member form and resubmit his grievance. ( Id. at 6.) As Plaintiff could not offer any evidence he had attempted to resubmit a corrected grievance form, the magistrate judge reasoned, Plaintiff could not demonstrate he had properly exhausted his administrative remedies. ( Id. )
The magistrate judge recommended granting summary judgment based on Plaintiff's failure to exhaust his administrative remedies. ( Id. ) However, the Report neither addressed summary judgment on the merits of the excessive force or state law claims nor Defendant's qualified immunity defense. ( Id. at 4, n.3.)
Plaintiff timely filed his Objections on March 7, 2014. (ECF No. 35.) Included with his Objections, Plaintiff attached his Step 1 Grievance, including the warden's decision (ECF No. 35-1 at 1-2), and his Step 2 Grievance, which was denied on February 25, 2014. (ECF No. 25-1 at 3.) The Step 2 Grievance form states "The decision rendered by the responsible official exhausts the appeal process of the Inmate Grievance Procedure." ( Id. ) Plaintiff signed the form, acknowledging receipt of the response, on February 27, 2014. ( Id. )
STANDARD OF REVIEW
The magistrate judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The magistrate judge makes only a recommendation to this court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may accept, reject, or ...