United States District Court, D. South Carolina, Greenville Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
matter is before the court on Plaintiff’s pro
se complaint, filed in this court pursuant to 42 U.S.C.
§ 1983. ECF No. 1. On February 4, 2016, Defendants filed
a motion for summary judgment. ECF No. 35. A
Roseboro Order was mailed to Plaintiff on February
5, 2016, advising Plaintiff of the importance of a
dispositive motion and the need for Plaintiff to file an
adequate response. ECF No. 36. Plaintiff did not respond by
the deadline of March 10, 2016. On March 17, 2016, the
Magistrate Judge entered an order giving the Plaintiff
through April 6, 2016 to file his response to the motion for
summary judgment, and warning Plaintiff that if he failed to
respond, his claims would be subject to dismissal for failure
to prosecute. ECF No. 39. Again, Plaintiff filed no response.
accordance with 28 U.S.C. § 636(b) and Local Civil Rule
73.02 (B)(2)(d), DSC, this matter was referred to United
States Magistrate Judge Kevin F. McDonald for pre-trial
proceedings and a Report and Recommendation
(“Report”). On April 12, 2016, the Magistrate
Judge issued a Report recommending that this matter be
dismissed due to Plaintiff’s failure to prosecute this
action. ECF No. 42. The Report noted that Plaintiff had been
given multiple opportunities to respond to Defendants’
summary judgment motion, but failed to do so. Id.
The Magistrate Judge advised Plaintiff of the procedures and
requirements for filing objections to the Report and the
serious consequences if he failed to do so. Plaintiff has
filed no objections and the time for doing so has expired,
and Plaintiff’s copy of the Report has not been
returned to the court.
Magistrate Judge makes only a recommendation to this court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
court. See Matthews v. Weber, 423 U.S. 261 (1976).
The court is charged with making a de novo
determination of any portion of the Report of the Magistrate
Judge to which a specific objection is made. The court may
accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the
matter to the Magistrate Judge with instructions.
See 28 U.S.C. § 636(b). The court reviews the
Report only for clear error in the absence of an objection.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that
“in the absence of a timely filed objection, a district
court need not conduct a de novo review, but instead
must only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation.”) (citation omitted).
has responded neither to Defendants’ summary judgment
motion (given two opportunities) nor the Magistrate
Judge’s Report. After reviewing the record of this
matter, the applicable law, and the Report and Recommendation
of the Magistrate Judge, the court agrees with the conclusion
of the Report that Plaintiff has failed to prosecute his
action and dismissal is proper pursuant to Rule 41(b).
Accordingly, the court adopts and incorporates the Report and
Recommendation by reference in this Order.
alternative, this court finds that Defendants are entitled to
summary judgment on Plaintiff’s claims, as Plaintiff
has failed to exhaust administrative remedies. The exhaustion
requirement of the Prison Litigation Reform Act
(“PLRA”) has been held to be mandatory by the
Supreme Court: “PLRA’s exhaustion 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). Inmates must complete the exhaustion requirement
prior to filing suit in federal court. Woodford v.
Ngo, 548 U.S. 81, 94 (2006).
grievance procedure in the South Carolina Department of
Corrections is as follows:
In order to exhaust administrative remedies, an inmate must
fill out a Form 10-5 (Step 1 Grievance form) within fifteen
days of the alleged incident of which the inmate complains.
Plaintiff must also file a Form 10-5a (Step 2 Appeal) after
receiving a response to the Step 1 grievance.
Pilcher v. Cartledge, No. CIV.A. 2:13-2528-BHH, 2014
WL 4792067, at *4 (D.S.C. Sept. 24, 2014). The decision of
the “responsible official” who answers Step 2 is
the Department's final response in the matter. Sweat
v. Reynolds, No. CA 9:11-1706-MGL, 2013 WL 593660, at *4
(D.S.C. Feb. 15, 2013) (citing SCDC Policy/Procedure GA -
01.12, at §§11, 13.1-13.6).
case, there is no dispute that Plaintiff filed a Step 1
grievance, number 1149-13. ECF No. 1. In fact, Plaintiff
filed several Step 1 grievances regarding this incident.
See ECF No. 35, “Tindal Exhibit A-C, ”
grievances 1149-13, 1161-13, and 1175-13. Plaintiff’s
initial Step 1 grievance, number 1149-13 which was referenced
in his Complaint, was denied because Plaintiff’s
“allegations against Sgt. Gibbons and Officer Houston
could not be substantiated.” ECF No. 35, Tindal Exhibit
A. Plaintiff’s two other Step 1 grievances regarding
the same conduct were returned as unprocessed because 1161-13
was not in the inmate’s handwriting as required, and
1175-13 was duplicative of 1149-13. See ECF No. 35,
Tindal Exhibits B and C. No Step 2 grievance was filed. ECF
No. 35, ¶¶ 8, 11.
denied Step 1 grievance notes that the inmate may appeal the
denial of a Step 1 grievance, yet Plaintiff failed to do so.
See ECF No. 35, Tindal Exhibit A. Plaintiff’s
Complaint states that the steps taken were a “Grievance
Step One, ” and never mentions filing a Step 2
grievance. ECF No. 1. While Plaintiff avers that he received
“final institutional action” on his grievance
(see id.), Defendants demonstrate that he never
filed a Step 2 grievance as required to exhaust his
administrative remedies. Plaintiff has not responded or
provided any evidence that he did file a Step 2 grievance, or
a reason why none was filed.
Plaintiff has not exhausted his administrative remedies as
required prior to filing a federal lawsuit. Accordingly,
summary judgment for ...