United States District Court, D. South Carolina, Florence Division
L.C. BROWN, Plaintiff,
SGT. C. WEST, Defendant.
THOMAS E. ROGERS, III, Magistrate Judge.
The Plaintiff originally filed this action in the Court of Common Pleas for Lee County, State of South Carolina. On December 15, 2014, Defendant filed his Answer and Notice of Removal to the United States District Court, District of South Carolina, pursuant to 28 U.S.C. §1441 and §1443. Plaintiff is currently incarcerated at Lee Correctional Institution ("LCI"). Defendant filed a motion to dismiss or, in the alternative, a motion for summary judgment along with a memorandum, affidavit, and exhibits in support of said motion. (Document #15). Because Plaintiff is proceeding pro se, he was advised on or about May 14, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to the Defendant's motion for summary judgment could result in the dismissal of his complaint. Plaintiff filed a response on May 21, 2015. (Doc. #20). Plaintiff filed a motion for default judgment on May 15, 2015. (Doc. #18).
Plaintiff's Motion for Default Judgment
Plaintiff filed a motion for default judgment on May 15, 2015, asserting that Defendant received an extension until May 9, 2015, to file a dispositive motion and failed to do so by that date.
It is recommended that Plaintiff's motion for default judgment by denied. On March 25, 2015, Defendant filed a motion for extension of time to file dispositive motions requesting an additional forty-five days making the dispositive motion due on May 9, 2015. (Doc. #11). This motion was granted. However, May 9, 2015, was on a Saturday. Defendant filed the motion for summary judgment on Monday, May 11, 2015. Therefore, it is recommended that this motion for default judgment (Doc. #18) be denied.
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through "depositions, answers to interrogatories, and admissions on file, together with... affidavits, if any." Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Defendant has pleaded the affirmative defense of failure to comply with the PLRA's exhaustion requirement and has moved for summary judgment on that basis. Defendant submitted the affidavit of David Martinez who attests that he is the Inmate Grievance Administrator for the South Carolina Department of Corrections (SCDC) and has access to SCDC's Automated (CRT) System which records inmate grievances. (Doc. #15-7). Martinez reviews inmate's compliance with the policies and procedures of the SCDC. Id. Martinez attached a copy of a Request to Staff Member and Step 1 Grievance (LEECI 0516-14) that was completed by Plaintiff as well as records of Plaintiff's Grievance History for part of 2014, as Exhibit A and Bates labeled as West 0008-0015. Id. Plaintiff's Step 1 Grievance LEECI 0516-14 relating to the incident alleged in the complaint was returned unprocessed. Id. Based on the agency records, Plaintiff did not file any additional Step 1 grievances relating to the incident or a Step 2 Appeal related to this incident. Id. Therefore, Martinez attests that Plaintiff failed to properly exhaust his administrative remedies and failed to comply with agency guidelines for grieving the issues he references in his Complaint regarding excessive use of force, cruel and unusual punishment, and confiscation of personal items. Id.
In his response in opposition to summary judgment, Plaintiff asserts that in order to file a Step One grievance, he is required to make an "informal resolution" to the appropriate supervisor. At the time of the incident, Plaintiff alleges he made more than one attempt to make an informal resolution with Davis, the appropriate supervisor, but was denied a response. Plaintiff contends that the supervisor's failure to respond to the informal resolution deprived him of the right to appropriately exhaust his administrative remedies. Plaintiff argues that he did not file this action until October 7, 2014, six months after he made several attempts to receive a response to his informal resolutions. Plaintiff attached a copy of a document entitled "Inmate Request" dated April 2014, in which he stated that he had made several attempts to make an informal resolution upon Davis, "the overseer of SMU'" but that he failed to answer the requests. In this ...