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Jenkins v. Shirley

United States District Court, D. South Carolina

October 24, 2014

Bobby C. Jenkins, Plaintiff,
Brian Shirley, Director of SCDC; Larry Cartledge, Warden; Officer Merck; Officer Lee, Defendants.


RICHARD M. GERGEL, District Judge.

This matter is before the Court on the Report and Recommendation (R & R) of the Magistrate Judge, recommending that Plaintiff's Complaint be dismissed without prejudice and without service of process. (Dkt. No. 16). For the reasons stated below, the Court adopts the R & R and dismisses this action without prejudice.


This is a civil action filed pro se by a state prison inmate. In his Complaint, Plaintiff alleges that he and other inmates have been having problems with their efforts to receive copies and legal materials from Defendant Merck - who he identifies as a "law library designee" at "Perry Prison" - for several months and that their complaints to Merck's supervisors have gone unheeded. (Dkt. No. 1 at 3, 5-9). Plaintiff alleges that, on June 19, 2014, Merck refused to make copies of medical records for him or to provide legal material or assistance to him so that Plaintiff could institute a medical malpractice action in state court. ( Id. at 10).

Under the initial order issued in this case, Plaintiff was directed to provide answers to special interrogatories from the court regarding his efforts to administratively exhaust the claims raised in his Complaint. (Dkt. No. 7). In Plaintiff's Answers and the attachments submitted along with them, Plaintiff acknowledges that he filed a Step 1 "Emergency" grievance on June 19, 2014, and received a negative response from the prison grievance coordinator on June 23, 2014. The response indicates that Plaintiff's request was rejected because Plaintiff did not complete the required informal resolution process before he submitted the Step 1 grievance form. (Dkt. No. 10-2). Plaintiff was informed that he needed to obtain a "response to the Request to Staff form" and attach that to another Step 1 grievance before it would be accepted for processing. ( Id. ).

On September 9, 2014, the Magistrate Judge issued an R & R, recommending that the district court summarily dismiss the Complaint in this case without prejudice because it was filed prematurely, before Plaintiff fully exhausted his SCDC administrative remedies as required by 42 U.S.C. § 1997e. (Dkt. No. 16). Plaintiff filed timely Objections to the R & R. (Dkt. No. 20).


The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those portions of the R & R or specified proposed findings or recommendations to which objection is made. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed.R.Civ.P. 72(b).

Pro se complaints are construed liberally to allow the development of meritorious claims. However, the requirement of a liberal construction does not mean that the Court can ignore a plaintiff's clear failure to allege facts that set forth a cognizable claim. See Well v. Dep't of Soc. Servs. for City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) ("The special judicial solicitude with which a district court should view pro se complaints does not transform the court into an advocate."). Furthermore, the Court must dismiss an in forma pauperis action sua sponte if the claim is "frivolous or malicious, " "fails to state a claim on which relief may be granted, " or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).


The Court agrees that the Plaintiff's Complaint was filed prematurely, as the SCDC administrative remedies were not fully exhausted. In enacting the Prison Litigation Reform Act of 1996 ("the PLRA"), Congress created an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended § 1997e so that it now provides, "No action shall be brought with respect to prison conditions under § 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 United States Supreme Court held that "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 732, 741 (2001); see Woodford v. Ngo, 548 U.S. 81, 90-01 (2006) (prisoners must "properly exhaust" their administrative remedies before coming into court by using all steps available and doing it the way the agency's policy requires); Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion applies to all kinds of "inmate suits about prison life....").

In this Circuit, if the lack of exhaustion is apparent from the face of the prisoner's Complaint or from additional facts requested by the court (such as answers to special interrogatories), sua sponte dismissal prior to service of the Complaint is appropriate. See Anderson v. XYZ Corr. Health Serv., 407 F.3d 674, 683 (4th Cir. 2005). The current SCDC policy requires prisoners to undertake attempts at informal resolution of the problems before filing a Step 1 Grievance form and attaching a copy of the prisoner's informal Request to Staff Member ("RTSM"). See SCDC Policy/Procedure GA-01.12, at § 13.2 (Oct. 1, 2010, as amended by "Change 2, dated March 9, 2013").

Plaintiff failed to fully exhaust the SCDC grievance process (RTSM, Step 1, and Step 2) with regard to the problems he alleges regarding his effort to obtain photocopies and legal assistance in filing a state malpractice case before filing his lawsuit and Complaint. Plaintiff's own answers to the court's special interrogatories about his use of the SCDC administrative process show he has not yet filed a properly completed Step 1 grievance and appears to still be in the RTSM stage of the process. (Dkt. No. 10). Plaintiff argues in his Objections to the R & R that as a result of his "emergency situation" he "does not have time to use the prison grievance system." (Dkt. No. 20 at 10). However, Plaintiff's argument is without merit; he has not alleged any imminent harm. He has not fully attempted to use the SCDC remedies or given the process a chance to work before submitting his Complaint.

Plaintiff also argues that the individual who reviewed his Step 1 "emergency" grievance acted in bad faith as she "violated policy" by refusing to accept the request. (Dkt. No. 20 at 8). However, Plaintiff's answers to the special interrogatories show he had not properly exhausted his RTSM, as the Step 1 response states, and Plaintiff has failed to provide any additional facts relating to ...

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