United States District Court, D. South Carolina, Charleston Division
Bilal A. Al-Haqq, PLAINTIFF,
Marvin Bryant, in his individual and official capacity, DEFENDANT
REPORT & RECOMMENDATION
MARY GORDON BAKER, Magistrate Judge.
The Plaintiff brings this action under Title 42, United States Code, Section 1983. The Plaintiff is currently in the custody of the South Carolina Department of Corrections ("SCDC") and housed at Ridgeland Correctional Institution. In his Complaint, the Plaintiff brought claims against seven employees of Allendale Correctional Institute ("ACI") alleging violations under section 1983 of his Fifth, Eighth, and Fourteenth Amendment rights. (Dkt. No. 1.) The defendants filed a motion for summary judgment which was granted on January 30, 2015, as to all defendants except Marvin Bryant. (Dkt. No. 55.) With leave of the court, Defendant Bryant filed an Amended Answer on September 11, 2015. (Dkt. No. 11.) On January 25, 2016, Defendant Bryant filed Marvin Bryant's Motion for Summary Judgment. (Dkt. No. 103.) The Plaintiff responded the following day. (Dkt. No. 104.)
In his verified complaint, the Plaintiff claimed that on July 12, 2013, Defendant Bryant violated his Eighth Amendment rights by using excessive force against him and wrongfully charged him with "refusal to obey orders." (Dkt. No. 1.) The Plaintiff alleged he was charged because Defendant Bryant falsely maintained that the Plaintiff refused to take his food tray from Bryant and was kicking his cell door. Thereafter Bryant sprayed him with pepper spray directly in his face, causing him great pain. Bryant had the water to Al-Haqq's cell turned off so that he was not able to wash the spray from his face and body. Al-Haqq claimed that metal from the spray canister had to be removed from his eye. Al-Haqq also complained that another correctional officer opened his food flap to allow some fresh air into his cell after he was sprayed by Defendant Bryant, but Defendant Bryant closed the flap to prevent him from getting any air. Al-Haqq was not allowed to wash for several days and suffered greatly as a result.
Al-Haqq maintained that "at no time did [he] kick on [his] cell door." (Dkt. No. 1). According to the Plaintiff, he was never given any order to stop kicking the door. He alleged he was sprayed in the face with tear gas by Defendant Bryant out of retaliation for his having filed a grievance against Bryant and for reporting this Defendant's alleged illegal activities smuggling drugs and tobacco into the prison and allowing prisoners to fight each other. The Plaintiff was charged with refusing to obey a direct order for which he was found guilty and given 60 days of disciplinary detention.
In his affidavit, Defendant Bryant, averred that he observed Al-Haqq kicking his cell door on July 12, 2013, and behaving defiantly and aggressively towards correctional employees, including himself. (Dkt. No. 41-2.) He ordered Al-Haqq to cease kicking the door, but Al-Haqq refused. Bryant believed Al-Haqq's actions of kicking the door could cause injury to Al-Haqq, and furthermore, could have incited upheaval among the inmates. He believed Al-Haqq could have caused physical damage to the door and its hinges creating a security issue; therefore he considered Al-Haqq to be a risk, and took actions to subdue and restrain Al-Haqq. He "discharged a short burst of chemical munitions into Al-Haqq's cell." ( Id. ) Bryant averred that the actions taken were not excessive, but merely were employed to the extent necessary to obtain Al-Haqq's submission and compliance to correctional employees. Bryant stated that he did not act with the malicious intention to cause a deprivation of Al-Haqq's constitutional rights or other injury. Bryant asserted that he acted in accordance with prison policy to maintain discipline and to prevent Al-Haqq from destroying SCDC property.
STANDARD OF REVIEW
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Facts are material' when they might affect the outcome of the case, and a genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id . (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Defendant Bryant's Amended Answer raised the defense "that Plaintiff failed to exhaust administrative remedies prior to filing suit as mandated by 42 U.S.C. § 1997e(a)." (Dkt. No. 92.) In his motion before the court, Defendant Bryant argues he is entitled to judgment as a matter of law because the "Plaintiff failed to properly exhaust his administrative remedies." (Dkt. No. 103.) The Prison Litigation Reform Act ("PLRA") 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." 42 U.S.C. § 1997e(a). Through the enactment of this statute, "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516 (2002); Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001) (exhaustion required even though the plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 18 F.Appx. 243 (4th Cir. Sept. 18, 2001) (applying Booth v. Churner to affirm the district court's denial of relief to the plaintiff).
"[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). "[W]hen prison officials prevent inmates from using the administrative process..., the process that exists on paper becomes unavailable in reality." Zander v. Lappin, 415 F.Appx. 491, 492 (4th Cir. Mar. 10, 2011) (quoting Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)). The district court is "obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials." Id . (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).
This court takes judicial notice of SCDC's grievance policy, SCDC Policy GA-01.12. See Malik v. Ward, No. 8:08-cv-01886, 2010 WL 936777, at *2 n.4 (D.S.C. Mar. 16, 2010) (holding that "[t]he Court may take judicial notice of the SCDC grievance process, specifically, SCDC Policy GA-01.12"); see also Sec'y of State For Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007) (holding that a court may "take judicial notice of matters of public record"). Both parties rely on SCDC Policy GA-01.12 and acknowledge this court may take judicial notice of the policy. (Dkt. Nos. 103 & 104.) The policy has been summarized as follows:
After an unsuccessful attempt at informal resolution of the problem(s) by submission of a Request to Staff Member Form or by discussion of the complaint with the appropriate supervisor/staff, (1) an inmate must fill out a Form 10-5, Step 1, and give the form to an employee designated by the Warden (not the Inmate Grievance Coordinator) within fifteen days of the alleged incident; (2) the grievance must then be numbered and entered into SCDC's automated system within ten working days, and the Institutional Inmate Grievance Coordinator (IGC) notified; (3) the IGC must then, within ten working days, finalize the grievance in the system and attempt to informally resolve the issue; if the problem cannot be resolved informally, the IGC will conduct a complete investigation and make recommendations for disposition of the matter to the Warden; (4) the Warden must respond to the inmate, in writing, within forty days from the date the grievance was formally entered into the system by the IGC, then the IGC has five working days to serve the Step 1 response to the inmate; (5) the inmate may then appeal the Warden's response to the Division Director of Operations by completing a Form 10-5a, Step 2, and submitting it to the IGC within five "calendar days" of the inmate's receipt of the response; (6) the IGC then notifies the Inmate Grievance Branch of the Step 2 appeal within another five "calendar days" and the Branch must present the Step 2 appeal to the responsible SCDC official, i.e. the Division Director of Operations, for a response; (7) the Division Director of Operations then has sixty days from the date the appeal was received by the IGC at the institution to respond to the Step 2 grievance, and finally; (8) the IGC has five days to serve the inmate with the Step 2 response.
McFadden v. Reynolds, No. 3:13-cv-439-JMC-JRM, 2013 WL 1838656, at *3 n. 2 (D.S.C. April 11, 2013) (citing SCDC, Inmate Grievance System, GA-01.12, § 13.4 (Oct. 1, 2010)), ...