United States District Court, D. South Carolina, Beaufort Division
PATRICK MICHAEL DUFFY United States District Judge
This matter is before the Court on Plaintiff Glen Strickland, Jr.’s objections to United States Magistrate Judge Bristow Marchant’s Report and Recommendation (“R & R”) (ECF Nos. 54 & 51). Strickland has also filed a motion to compel discovery (ECF No. 57). For the reasons stated herein, the Court denies Strickland’s motion, rejects the R & R, and remands to the Magistrate Judge for further consideration.
Strickland, proceeding pro se and in forma pauperis, has filed suit under 42 U.S.C. § 1983 for purported violations of his constitutional rights while he was a pre-trial detainee at the Greenville County Detention Center (“GCDC”). He alleges in his verified complaint that GCDC officers sexually assaulted and harassed him and used excessive physical force upon him. He also alleges that he was sexually harassed by other inmates and that GCDC officers failed to stop the abuse after he reported it. Strickland seeks monetary damages and the termination of the officers who allegedly either abused him or allowed others to abuse him.
Defendants Troy Turner and Mark Keaney are two of the GCDC officials who Strickland has sued. On October 25, 2015, they filed a motion seeking dismissal under Federal Rule of Civil Procedure 12(b)(6). They contended the complaint fails to allege facially plausible claims-particularly against Turner-and therefore should be dismissed. They also argued that the case should be dismissed because Strickland did not exhaust all of the GCDC’s available administrative remedies before he filed suit. They support their exhaustion argument with several exhibits outside the pleadings related to the GCDC’s grievance system and Strickland’s use thereof. Strickland filed a response to their motion on November 12.
On February 10, 2016, the Magistrate Judge issued his R & R. Addressing only the exhaustion issue, the Magistrate Judge determined that Turner and Keaney’s evidence shows Strickland failed to exhaust all of the GCDC’s grievance procedures and that Strickland has failed to rebut their evidence. Accordingly, the Magistrate Judge recommended that the Court dismiss the case. Strickland filed timely objections the R & R. On March 17, Turner and Keaney filed a reply to the objections.
Thereafter, on March 24, Strickland filed a motion to compel discovery from Steve Loftis and Scotty Bodiford, who are not parties to this case. Turner and Keaney filed a response in opposition on April 4. The motion was not referred to the Magistrate Judge.
I. R & R
The Magistrate Judge makes only a recommendation to this Court. The R & R has no presumptive weight, and the responsibility for making a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). Parties may make written objections to the R & R within fourteen days after being served with a copy of it. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo review of any portion of the R & R to which a specific objection is made, and it may accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or in part. Id. Additionally, the Court may receive more evidence or recommit the matter to the Magistrate Judge with instructions. Id. A party’s failure to object is taken as the party’s agreement with the Magistrate Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140 (1985). Absent a timely, specific objection-or as to those portions of the R & R to which no specific objection is made-this Court “must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee’s note).
The R & R in this case purports to analyze the exhaustion defense as a pleading problem under Rule 12(b)(6). In substance, however, it actually analyzes the issue using the summary judgment standard. It cites and quotes court opinions that involved exhaustion-based summary judgment motions, it relies heavily on defense exhibits that are outside the pleadings,  and it faults Strickland for not providing satisfactory evidence that he exhausted all available administrative remedies before filing suit. That is classic summary judgment analysis.
However, this inconsistency between the standard cited and the standard did not prejudice Strickland. Turner and Keaney’s exhibits indicate that the GCDC’s multi-level grievance review system begins with an inmate submitting a GCDC Form 502 with a description of the grievance. In his verified complaint, Strickland alleges he submitted two such forms-one in February 2014 alleging that other inmates were “harass[ing] and sexually harass[ing]” him, and another in May 2014 alleging that officers were sexually harassing and assaulting him. (Verified Compl., ECF No. 1, at 3). He further alleges that he never received a response to either of those grievances. As the Court will explain, these allegations are sufficient for Strickland to withstand summary judgment at this time.
Before an inmate files a lawsuit regarding jail conditions, he must first exhaust all administrative remedies available to him. 42 U.S.C. § 1997e(a). However, “an 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); see also Stenhouse v. Hughes, No. 9:04-cv-23150-HMH, 2006 WL 752876, at *2 (D.S.C. Mar. 21, 2006) (“[E]xhaustion may be achieved in situations where prison officials fail to timely advance the inmate’s grievance or otherwise prevent him from seeking his administrative remedies.” (citation and quotation marks omitted)). Accordingly, district courts are “obligated to ensure that any defects in ...