United States District Court, D. South Carolina, Anderson/Greenwood Division
ORDER AND OPINION
MICHELLE CHILDS, District Judge.
Jerald Denton Gaskins, Jr. ("Plaintiff"), filed
this pro se action n forma pauperisi pursuant to 42
U.S.C. Â§ 1983. This matter is before the court for review of
the Magistrate Judge's Report and Recommendation
("Report") (ECF No. 23), filed on January 8, 2016,
recommending Plaintiff's action (ECF No. 1) be dismissed
without prejudice and without issuance and service of
process. For the reasons below, the court ADOPTS the findings
of the Magistrate Judge's Report (ECF No. 23) and
DISMISSES Plaintiff's Complaint (ECF No. 1) without
FACTUAL AND PROCEDURAL BACKGROUND
November 2, 2015, Plaintiff filed a Complaint claiming that a
sheet of metal on the premises of Perry Correctional
Institution ("PCI") created a dangerous condition
when wet, which caused Plaintiff's injuries after a slip
and fall. (ECF No. 23 at 1-2.) Plaintiff sought damages for
pain and suffering and asked the court to order PCI to fix
the metal. ( Id. at 2.) After the Magistrate Judge
filed the Report recommending this court dismiss the action
without prejudice and without issuance and service of process
(ECF No. 23), Plaintiff timely filed Objections on January
25, 2016. (ECF No. 25.)
Magistrate Judge's Report is made in accordance with 28
U.S.C. Â§ 636(b)(1) and Local Civil Rule 73.02 for the
District of South Carolina. The Magistrate Judge makes only a
recommendation to this court, and the recommendation has no
presumptive weight-the responsibility to make a final
determination remains with this court. See
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The
court is charged with making a de novo determination of those
portions of the Report and Recommendation to which specific
objections are made, and the court may accept, reject, or
modify, in whole or in part, the Magistrate Judge's
recommendation or recommit the matter with instructions.
See 28 U.S.C. Â§ 636(b)(1).
Exhaustion of Administrative Remedies
Magistrate Judge recommends the Complaint be dismissed
because Plaintiff has not exhausted the required
administrative remedies prior to filing a lawsuit. (ECF No.
23 at 5 (citing 42 U.S.C. Â§ 1997(e)(a)).)
first Objection, Plaintiff asserts that a request to staff
("Request") was filed in lieu of a Step 1 grievance
or Step 2 appeal because the proper paperwork was not
supplied to him. (ECF No. 25.) As a result, Plaintiff claims
every available action was exhausted. ( Id. )
exhaust the administrative remedies requires "using all
steps that the agency holds out, and doing so properly."
Woodford v. Ngo, 548 U.S. 81, 93-94 (2006) (quoting
Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir.
2002)). Additionally, the Supreme Court held that "the
[Prison Litigation Rights Act] 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, 516 (2002);
Booth v. Churner, 532 U.S. 731, 731-32(2001).
court agrees with the Magistrate Judge's assessment that
prison administrators were denied an opportunity to resolve
the matter when Plaintiff filed the Complaint before
receiving an answer to the Request. (ECF No. 23 at 7.)
Therefore, Plaintiff's claims are subject to summary
dismissal because he failed to exhaust the administrative
remedies available at PCI. See e.g., Anderson v.
XYZ Corr. Health Serv., 407 F.3d 674, 683 (4th Cir.
Cruel and Unusual Punishment
Magistrate Judge also recommends the Complaint be dismissed
because the Eleventh Amendment grants the State of South
Carolina immunity from a state law tort claim in federal
court unless a State expressly consents. (ECF No. 23 at 7
(citing S.C. Code Ann. Â§ 15-78-20(e) (1976); Pennhurst
State Sch. & Hosp. v. Halderman,465 U.S. 89 (1984)).)
In this regard, the Magistrate Judge observes that the State
of South Carolina has not consented to the suit. (ECF No. 23