United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
action has been filed by the Plaintiff, pro se,
pursuant to 42 U.S.C. § 1983. At the time this action
was filed, Plaintiff was a pre-trial detainee facing charges
in Boone County, West Virginia for burglary and grand
larceny. See Exhibit (Court Docket No. 42-1, pp.
2-3). During the time period relevant to
Plaintiff's allegations, he was being held at CRCC for a
mental health evaluation pursuant to a transfer order issued
by the West Virginia Circuit Court. Plaintiff has, since the
filing of this case, been transferred back to West Virginia.
See Court Docket No. 54 (Change of Address Notice).
Plaintiff alleges that, while housed at CRCC, the Defendants
violated his constitutional rights by losing or misplacing
some of his personal property and by not providing him with a
pair of eyeglasses.
Defendants filed a motion for summary judgment pursuant to
Rule 56, Fed.R.Civ.P. on March 3, 2016. As the Plaintiff is
proceeding pro se, a Roseboro order was
entered by the Court on March 4, 2016, advising Plaintiff of
the importance of a dispositive motion and of the need for
him to file an adequate response. Plaintiff was specifically
advised that if he failed to respond adequately, the
Defendants' motion may be granted, thereby ending his
case. Plaintiff thereafter filed a memorandum in opposition
to the Defendants' motion on March 17, 2016. The
Defendants also submitted supplemental material to their
motion for summary judgment on March 17 and March 18, 2016,
after which Plaintiff filed another response in opposition on
March 21, 2016, and a third response in opposition on April
motion is now before the Court for disposition.
alleges in his Amended Verified Complaint that the named
natural Defendants are all employees of CRCC, which is a
correctional medical care facility located in Columbia, South
Carolina. Plaintiff alleges that when he was transported to
CRCC from West Virginia, the “3 officers” from
CRCC who came to pick him up told him that they would bring
his personal property. However, Plaintiff alleges that when
he arrived at CRCC, he was told by the officers that they had
“[left] it”. Plaintiff alleges that this personal
property included paperwork that was germane to another law
suit he had pending, as well as his eyeglasses. Plaintiff
alleges that he was told that he would get his eyeglasses
back, but that as of the date of the filing of this lawsuit
it had been five months and he still did not have his
eyeglasses. Plaintiff seeks monetary damages for the loss of
his personal property and for his “suffering” due
to not having his eyeglasses, as well as certain injunctive
relief (the return of his personal property and his
part of Plaintiff's Verified Amended Complaint where he
is asked whether there was a prisoner grievance procedure in
place at CRCC, Plaintiff answers “yes”, and when
asked if he had filed a grievance concerning the claims he
was raising in this lawsuit, Plaintiff again answered
“yes”. However, when Plaintiff was asked when he
filed a grievance, Plaintiff gives the dates of February 21,
2015 and June 20, 2015, but then writes “verbal”
next to this entry. Finally, when asked if he had received a
final grievance determination and when that determination was
received by him, Plaintiff gives the date of June 23,
2015. See generally, Plaintiff's
Verified Amended Complaint.
September 8, 2015, Plaintiff filed what appears to have been
intended as a supplement to his Complaint. Attached to this
filing is a Stage 1 Patient Formal Grievance Form for the
CRCC. In this grievance form, which is dated August 23, 2015,
Plaintiff complains that his “civil right to medical
care was violated on Sunday 8/23. I called the nurses desk
from 5:58 p.m. to 7:50 p.m. and was ignored. I believe I was
neglected because I am from West Virginia”.
See Plaintiff's Exhibit (Court Docket No. 19-1).
support of summary judgment in this case, the Defendants have
submitted, inter alia, an affidavit from Robert
Schiel, who attests that he is the Risk Manager and Patient
Advocate at CRCC. Schiel attests that he has reviewed all of
the grievances filed by the Plaintiff, and that Plaintiff had
only filed one grievance since arriving at CRCC in February
2015, which was the grievance already submitted as an exhibit
by the Plaintiff, and which was filed on August 23, 2015.
See also, Plaintiff's Exhibit (Court
Docket No. 19-1). Schiel attests that this grievance, which
was filed well after this lawsuit was commenced, has nothing
to do with any of Plaintiff's allegations relating to
missing eyeglasses or legal paperwork, and that he [Schiel]
is unaware of any grievances having been filed by the
Plaintiff regarding missing or misplaced eyeglasses or legal
documents. See generally, Schiel Affidavit.
has not submitted any additional documents or sworn
statements relating to the grievance issue. However, in his
original response to summary judgment filed March 17, 2016,
Plaintiff talks about not having received his personal
property, including his eyeglasses, and states that “so
you see why I filed a lawsuit and filed a grievance in August
23, 2015". Plaintiff further states that he “did
not think I need[ed] to file[ ] a grievance when I had been
[talking]” to . . . them . . . .”. See
Plaintiff's Response (Court Docket No. 42, ¶
7). In his response filed March 21, 2016, Plaintiff states
that he had spoken to Mr. Schiel on March 4, 2015 and to
another individual and a doctor on April 2, 2015, but
acknowledges that he “did not file a grievance [ ]
[until] Aug. 23, 2015". See Plaintiff's
Response (Court Docket No. 47, p. 2). Finally, in
Plaintiff's third response filed April 4, 2016, Plaintiff
again states that he spoke to Schiel and someone else about
getting him some eyeglasses, but acknowledges that he
“did not file [ ] no grievance”. See
Plaintiff's Response (Court Docket No. 52, p. 2).
judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. Rule
56, Fed.R.Civ.P. The moving party has the burden of proving
that judgment on the pleadings is appropriate. Temkin v.
Frederick County Comm'rs, 945 F.2d 716, 718 (4th
Cir. 1991). Once the moving party makes this showing,
however, the opposing party must respond to the motion with
specific facts showing there is a genuine issue for trial.
Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75
(4th Cir. 1992). 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 Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972), the
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a Federal claim, nor can the Court
assume the existence of a genuine issue of material fact
where none exists. Weller v. Dep't of Social
Services, 901 F.2d 387 (4th Cir. 1990).
Defendants argue that this case is subject to dismissal
because, inter alia, Plaintiff failed to exhaust his
administrative remedies prior to filing this lawsuit. Section
42 U.S.C. § 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.” Through the enactment of this statute,
Congress has mandated exhaustion regardless of the relief
offered through administrative procedures. Booth v.
Churner, 532 U.S. 731, 741 (2001); see Porter v.
Nussle, 534 U.S. 516 (2002); Larkin v.
Galloway, 266 F.3d 718 (7th Cir. 2001)
[exhaustion required even though plaintiff claimed he was
afraid]; see also Claybrooks v. Newsome, No.
00-7079, 2001 WL 1089548 (4th Cir. Sept. 18, 2001)
(unpublished opinion) [applying Booth v. Churner to
affirm district court's denial of relief to plaintiff].
Accordingly, before Plaintiff may proceed on his claims in
this Court, he must first have exhausted the administrative
remedies that were available to him at CRCC.
Defendants have the burden of showing that Plaintiff failed
to exhaust his administrative remedies. See Anderson v.
XYZ Correctional Health Services, Inc., 407 F.3d 674,
683 (4th Cir. 2005) [inmate's failure to exhaust
administrative remedies is an affirmative defense to be both
pled and proven by the Defendant]; Jones v. Bock,
127 S.Ct. 910 (2007). To meet this burden, the Defendants
have provided an affidavit from an official at CRCC attesting
that Plaintiff only filed one grievance while at CRCC, which
was filed after this lawsuit had already commenced and which
also did not pertain to the issues raised in this lawsuit. A
copy of that grievance has also been submitted by the
Plaintiff himself, which confirms this fact. Indeed,
Plaintiff confirms in his own filings that he only verbally
discussed his complaints about his purported lost property