United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
proceeding pro se, brought this civil rights action pursuant
to 42 U.S.C. Â§ 1983, alleging violations of his
constitutional rights. This matter is before the court on
Defendants' Motion for Summary Judgment filed on June 10,
2015. ECF No. 35. As Plaintiff is proceeding pro se, the
court entered a Roseboro  order on June 11, 2015,
advising Plaintiff of the importance of such motions and of
the need for him to file adequate responses. ECF No. 37.
Plaintiff responded to the Motion for Summary Judgment on
July 5, 2015. ECF No. 47. This case was referred to the
undersigned United States Magistrate Judge for all pretrial
proceedings pursuant to the provisions of 28 U.S.C. Â§
636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and
(e), D.S.C. Because this motion is dispositive, a Report and
Recommendation is entered for the court's review.
Factual and Procedural Background
Jawan Robinson was an inmate at Lieber Correctional
Institution ("LCI") during the time period relevant
to his Complaint. ECF No. 1. In his Complaint, Plaintiff
maintains causes of action against Defendants for excessive
force, gross negligence, and assault and battery in violation
of the Eighth and Fourteenth Amendments. Id. at 3.
Plaintiff maintains that on November 11, 2013, that he was
feeling very sick, had a sore throat, and was vomiting.
Id. at 4. Plaintiff alleges that he tried to get
Defendant Marquardt's attention so that he could see the
doctor, and in response, Defendant Marquardt administered
chemical munitions on him. Id. at 4-5.
asserts that he is suing defendants in their individual
capacity. Id. at 6. Further, he seeks $8, 200 in
compensatory damages for his pain and suffering from
Defendant Legwell. From Defendant Marquardt, Plaintiff seeks
"100, 000.00 or $1, 000.00 for each gram of gas."
Id. Additionally, Plaintiff seeks injunctive relief
and asks the court issue an order so that he can see a
"specialist doctor to treat scarring which the gas may
have caused on lungs since x-ray in December 2013."
Id. Additionally, Plaintiff requests a non-jury
trial and supplemental jurisdiction over his state law
Standard of Review
court shall grant summary judgment "if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(a). The movant bears the initial
burden of demonstrating that summary judgment is appropriate;
if the movant carries its burden, then the burden shifts to
the non-movant to set forth specific facts showing that there
is a genuine issue for trial. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant
asserts that a fact cannot be disputed, it must support that
assertion either by "citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials;" or "showing... that an adverse
party cannot produce admissible evidence to support the
fact." Fed.R.Civ.P. 56(c)(1).
considering a motion for summary judgment, the evidence of
the non-moving party is to be believed and all justifiable
inferences must be drawn in favor of the non-moving party.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). However, "[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted." Id. at 248. Further,
while the federal court is charged with liberally construing
a Complaint filed by a pro se litigant to allow the
development of a potentially meritorious case, see,
e.g., Cruz v. Beto, 405 U.S. 319, 322 (1972),
the requirement of liberal construction does not mean that
the court can ignore a clear failure in the pleadings to
allege facts that set forth a federal claim, nor can the
court assume the existence of a genuine issue of material
fact when none exists. Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Failure to Exhaust
contend that Plaintiff's Complaint should be dismissed
because Plaintiff has not exhausted his administrative
remedies as required by the Prison Litigation Reform Act
("PLRA"). ECF No. 35-1 at 8-10. Specifically,
Defendants argue that Plaintiff filed two Step One grievances
on January 14, 2014. Id. However, Defendants
represent that Plaintiff was instructed to re-file these Step
One grievances and "attach the Request to Staff Member
Form as required by policy GA.01.12 Inmate Grievance
Procedures policy." Id. Defendants represent
that Plaintiff did not comply with the instruction given in
response to his Step One grievances, and Plaintiff never
filed any Step Two grievances. Id. at 10. Therefore,
Defendants argue that Plaintiff did not exhaust his
administrative remedies, and this case should be dismissed.
Id. In Response, Plaintiff maintains that he
"exhausted all available remedies but was still denied
even [though] he followed correct procedure[s] of SCDC policy
and attached his request to staff member by Ann Hallman and
it was still returned unprocessed...." ECF No. 47 at 3.
Essentially, Plaintiff alleges that he was denied his
administrative remedies. Id. at 4. Plaintiff admits
that he filed a request to the director on March 17, 2014,
notifying her that he was awaiting a response. Id.
Plaintiff received a disposition on May 20, 2014, stating he
exceeded the time limit for an informal resolution. Id .;
see also ECF No. 1-1 at 6.
1997e(a) provides that "[n]o action shall be brought
with respect to prison conditions under section 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."
This requirement "applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong." Porter v. Nussle, 534
U.S. 516, 532 (2002). To satisfy this requirement, a
plaintiff must avail himself of all available administrative
remedies. See Booth v. Churner, 532 U.S.
731 (2001). Those remedies "need not meet federal
standards, nor must they be plain, speedy, and
effective.'" Porter, 534 U.S. at 524
(quoting Booth, 532 U.S. at 739).
purpose of the exhaustion requirement is twofold. First, it
gives an administrative agency "an opportunity to
correct its own mistakes with respect to the programs it
administers before it is haled into federal court[.]"
Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting
McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).
Second, "[c]laims generally can be resolved much more
quickly and economically in proceedings before an agency than
in litigation in federal court." Id. Any
consideration of administrative remedies pursued after the
commencement of the litigation would only serve to frustrate
both purposes of the PLRA's exhaustion requirement.
Satisfaction of the exhaustion requirement requires
"using all steps that the agency holds out, and doing so
properly. " Id. at 90 (quoting
Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002) (emphasis in original)). Thus, "it is the
prison's requirements, and not the PLRA, that define the
boundaries of proper exhaustion." Jones v.
Bock, 549 U.S. 199, 218 (2007). Defendants have the
burden of establishing that a plaintiff failed to exhaust his
administrative remedies. Anderson v. XYZ Corr. Health
Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005).
attached the SCDC Grievance Policy/Procedure ("Grievance
Policy") as an Exhibit to their Motion. ECF No. 35-10.
Pursuant to Section 13.2 of the Grievance Policy,
"[i]nmates must make an effort to informally resolve a
grievance by submitting a Request to Staff Member Form to the
appropriate supervisor/staff." Id. at 2. After
attempting to resolve ...