United States District Court, D. South Carolina, Beaufort Division
PATRICK MICHAEL DUFFY United States District
matter is before the Court on Plaintiff's objections to
Magistrate Judge Bristow Marchant's Report and
Recommendation (“R & R”) (ECF Nos. 39 &
36). In his R & R, Magistrate Judge Marchant recommends
granting Defendants' motion for summary judgment. For the
reasons stated herein, the Court overrules Plaintiff's
objections, adopts the R & R, and grants Defendants'
motion for summary judgment.
U.S.C. § 1983 action arises out of a November 2012
incident that occurred at the Broad River Correctional
Institute, in which Defendant Ledwell allegedly sprayed
Plaintiff with chemical munitions. Plaintiff alleges that,
after that incident, he was given nutraloaf for three days,
his cell's water was cut off, and he was therefore unable
to relieve the burning of the chemical munitions. Defendants
contend that the chemical munitions were necessary because
Plaintiff was holding on to the food flap of his cell and
thereby endangering the corrections officers' safety. In
contrast, Plaintiff alleges that he was assaulted for no
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
se filings are held to a less stringent standard than
those drafted by attorneys, Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1978), and federal district courts
must construe such pleadings liberally to allow the
development of potentially meritorious claims, see Hughes
v. Rowe, 449 U.S. 5, 9 (1980) (per curiam). The liberal
construction requirement, however, does not mean courts can
ignore a clear failure to allege facts that set forth claims
cognizable in federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
makes a number of objections to the R & R, but they boil
down to five primary objections. First, he contends that it
was improper for Magistrate Judge Marchant to take judicial
notice of the South Carolina Department of Corrections'
(“SCDC”) grievance procedure. Second, he argues
that either there is no Step 2 grievance appeal procedure or
that an administratively closed grievance is not appealable.
Third, he claims that the Defendants' failure to respond
to his grievance within 114 days should preclude them from
asserting that he failed to exhaust his administrative
remedies. Fourth, he objects to Michael Tindal's
affidavit as hearsay because Tindal was not the person listed
as closing Plaintiff's grievance. Finally, Plaintiff
generally objects to the dismissal of his state-law claims.
The Court will address each objection seriatim.
Judge Marchant took judicial notice of SCDC's grievance
procedure in the process of making his recommendation that
the Court grant Defendants' motion for summary judgment.
Plaintiff objects, stating that the cases Judge Marchant
relied on to inform him of SCDC's grievance procedures
were not decided in 2012 or 2013. Although it is not clear
from Plaintiff's objections why he believed the cases
cited in the R & R needed to be from 2012 or 2013, the
Court interprets this objection as Plaintiff's concern
that the Magistrate Judge took judicial notice of an
out-of-date SCDC grievance policy. The Court does not share
that concern. If the Magistrate Judge had taken judicial
notice of a policy that was not in place when this incident
occurred, Plaintiff's objection might have some merit.
However, there is nothing in the record to show that the
Magistrate Judge applied an out-of-date policy. This Court
has previously held that it is appropriate to take judicial
notice of SCDC's grievance procedures, and the Court sees
no error in the Magistrate Judge's decision to do so
here. See Jones v. Hartwig, No. 8:13-cv-334-DCN,
2014 WL 101983, at *5 (D.S.C. Jan. 8, 2014). Indeed,
SCDC's grievance procedure is frequently implicated in
§ 1983 litigation. See, e.g., Byrd v. Stirling,
144 F.Supp.3d 803, 808 (D.S.C. 2015); Branton v.
Ozmint, No. 8:08-cv-2306-GRA-BHH, 2009 WL 1457144, at *2
(D.S.C. May 22, 2009); Jones v. Kay, No.
4:07-cv-3480-SB, 2007 WL 4294216, at *5 (D.S.C. Dec. 5,
2007); Jenkins v. S.C. Dep't of Corrs., No.
0:05-cv-2800-HFF, 2006 WL 1083563, at *5 (D.S.C. Apr. 18,
2006). Accordingly, Magistrate Judge Marchant's decision
to take judicial notice of the grievance procedure was
appropriate, and Plaintiff's objections to that decision
Exhaustion of SCDC's Grievance Procedure
next contends that Defendants have produced no evidence of
his failure to exhaust by not filing a Step 2 grievance.
Alternatively, he claims that his failure to file a Step 2
grievance does not mean that he failed to exhaust his
administrative remedies. The Court addresses each contention
Plaintiff's relevant grievance record is attached to
Defendants' motion for summary judgment as Exhibit A. On
Plaintiff's handwritten Step 1 grievance, as well as on
the computer generated Inmate Grievance Application inquiry,
Defendants or their agents state that Plaintiff's
grievance was administratively closed due to Plaintiff's
failure to participate in the grievance process.
Additionally, the computer-generated date on which an appeal
was filed reads “00/00/00, ” clearly indicating
that no appeal was filed. (Defs.' Mot. Summ. J., Exh. A.,
ECF No. 26-2, at 4.) ...