United States District Court, D. South Carolina, Charleston Division
Belay Reddick, Plaintiff, Pro se, Pelkin, IL.
For Pamela Justice, Mary M Mitchell, J Hollett, Joseph Neal, Oscar Acosta, Wanda Harris, Roy Lathrop, Warren C Holland, Lee Hamar, S Taylor, K Johnson, M Cruz, S Langford, B Kemp, R Celaya, D Colon, D Mercado, J Simmons, E RayBurn, R Kelso, S Lathrop, D Ayotte, M Walker, D Barbareno, E McLellan, J Stivers, M Strong, M Moore, D Franks, F Hill, F Brockington, Defendants: Barbara Murcier Bowens, LEAD ATTORNEY, U.S. Attorneys Office, Columbia, SC.
ORDER AND REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
WALLACE W. DIXON, UNITED STATES MAGISTRATE JUDGE.
The Plaintiff, proceeding pro se, brought this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Civil Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.
This mater is before the court on Defendants' motion to dismiss, or in the alternative, for summary judgment. Plaintiff has filed his response in opposition to the motion, Defendants have filed their reply, and in this posture, the matter is ripe for disposition. For the reasons which follow, it will be recommended that the motion to dismiss be granted on statute of limitations grounds as to Count One. In addition, it will be recommended that the motion for summary judgment be granted as to Counts Two and Three because Plaintiff has failed to exhaust his administrative remedies.
STANDARD OF REVIEW
I. Motion to Dismiss
On a 12(b)(6) motion, a " complaint must be dismissed if it does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are 'enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). " A plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
Twombly, 550 U.S. 555 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). For purposes of a motion to dismiss, the district court must " take all of the factual allegations in the complaint as true." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the court must draw all reasonable inferences in favor of the plaintiff, however, it need not accept the " legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d 298).
II. Motion for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " [A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, " [t]he opposing party must demonstrate that a triable issue of fact exists; [the opposing party] may not rest upon mere allegations or denials." Wilkins v. Montgomery, 751 F.3d 214, 220 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994)).
In making a determination on a summary judgment motion, " [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Judges are not required " to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party." Id. at 251 (quoting Improvement Co. v. Munson, 81 U.S. 442, 448, 20 L.Ed. 867 (1871)). Thus, the moving party can bear its burden " either by presenting affirmative evidence or by demonstrating that the nonmovant's evidence is insufficient to establish his claim." Miles v. Bollinger, 979 F.2d 848 (4th Cir. 1992) (unpublished table decision) (citing
Celotex, 477 U.S. at 331 (Brennan, J., dissenting)). " [A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323.
I. Preliminary Matters
Before addressing the substance of the dispositive motion and the analysis supporting the recommendation for granting the motion, the court must address preliminary matters. First, Plaintiff himself has moved to dismiss Counts Two and Three " of this action" without prejudice. Defendants oppose the motion to the extent that Plaintiff seeks a without-prejudice dismissal. Defendants point out that they have already filed their summary judgment motion, and that filing closes the door on Plaintiff's option under the rules to voluntarily dismiss his case or any part of his case without the consent of Defendants; and they refuse to consent. Of course, Defendants are correct. Moreover, Defendants oppose the motion on the ground that they have expended considerable resources in their motion to ...