United States District Court, D. South Carolina, Greenville Division
Jerry T. Moorehead, a/k/a Jerry Moorehead, Plaintiff,
Amy Story, Defendant.
REPORT OF MAGISTRATE JUDGE
F. McDonald, United States Magistrate Judge
plaintiff, proceeding pro se, seeks relief pursuant
to 42 U.S.C. § 1983. The plaintiff is an inmate at
Kirkland Correctional Institution (“Kirkland”),
part of the South Carolina Department of Corrections
(“SCDC”). Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d)
(D.S.C.), this magistrate judge is authorized to review all
pretrial matters in cases filed under 42 U.S.C. § 1983,
and submit findings and recommendations to the District
plaintiff alleges that the defendant is a lieutenant at
Kirkland. He states that on September 20, 2016, at
approximately 8:30 a.m., the defendant pulled him out of the
line to watch a video, called him a “cripple, ”
and told him he should have “kept [his] black cripple
ass at home” (id. at 5). The plaintiff
contends that the defendant stated that he was spreading
H.I.V. and told another inmate that the plaintiff was trouble
(id. at 5-6). The plaintiff alleges that his
progress was set back because he was not allowed to watch the
video (id. at 5). He states that the defendant
discriminated against him on the basis of his disability, in
violation of the Americans with Disabilities Act
(“ADA”). The plaintiff further states that the
defendant discriminated against him on the basis of race and
that he was subjected to intentional infliction of emotional
distress, resulting in anxiety and hopelessness (id.
plaintiff requests that the defendant be suspended for six
months and demoted (id. at 6). He seeks $2, 000 for
emotional damage (id.).
plaintiff filed this action pursuant to 28 U.S.C. §
1915, the in forma pauperis statute. This statute
authorizes the District Court to dismiss a case if it is
satisfied that the action “fails to state a claim on
which relief may be granted, ” is “frivolous or
malicious, ” or “seeks monetary relief against a
defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B). A careful review has been made of the
pro se complaint pursuant to the procedural
provisions of 28 U.S.C. § 1915 and § 1915A, the
Prison Litigation Reform Act (“PLRA”), Pub.L. No.
104-134, 110 Slat. 1321 (1996), and in light of the following
precedents: Denton v. Hernandez, 504 U.S. 25 (1992);
Neitzke v. Williams, 490 U.S. 319 (1989); Haines
v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995);
and Todd v. Baskerville, 712 F.2d 70 (4th Cir.
1983). Pro se complaints are held to a less
stringent standard than those drafted by attorneys,
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978), and a federal district court is charged with liberally
construing a pro se complaint to allow the
development of a potentially meritorious case. Hughes v.
Bowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405
U.S. 319 (1972); Erickson v. Pardus, 551 U.S. 89, 93
(2007) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-56 (2007)).
even when considered pursuant to this liberal standard, for
the reasons set forth herein below this case is subject to
summary dismissal. The requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts which set forth a claim
cognizable in a federal district court. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990);
see also Ashcroft v. Iqbal, 556 U.S. 662, 679-679
(2009) (outlining pleading requirements under the Federal
Rules of Civil Procedure).
complaint is subject to summary dismissal because the
plaintiff failed to exhaust his administrative remedies prior
to filing this lawsuit. Section 1997e(a) of the PLRA provides
that “no 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.” 42 U.S.C.
§ 1997e(a). The PLRA's exhaustion requirement is
mandatory and “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, 524, 532 (2002). The exhaustion requirements of the
PLRA also apply to a prisoner's claims under the ADA.
See Toscani v. Litton, C/A No. 8:11-3171-RBH-JDA,
2012 WL 7060753, at *6 (D.S.C. June 29, 2012) (PLRA
exhaustion required for ADA claims), adopted by 2013
WL 523097 (D.S.C. Feb.12, 2013). The exhaustion requirement
applies even if the relief sought in the civil action is not
available in the administrative proceedings. See Booth v.
Churner, 532 U.S. 731, 741 (2001).
is defined by each prison's grievance procedure, not the
PLRA; a prisoner must comply with his prison's grievance
procedure to exhaust his administrative remedies. Jones
v. Bock, 549 U.S. 199, 218 (2007). “Proper
exhaustion demands compliance with an agency's deadlines
and other critical procedural rules . . . .”
Woodford v. Ngo, 548 U.S. 81, 90 (2006). An
inmate's failure to “properly take each step within
the administrative process . . . bars, and does not just
postpone, suit under § 1983.” Pozo v.
McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see
also White v. McGinnis, 131 F.3d 593, 595 (6th Cir.
1997) (upholding dismissal of an inmate's complaint
because the inmate failed to proceed beyond the first step in
the administrative grievance process); but see,
Jones, 549 U.S. at 219-24 (rejecting “total
exhaustion rule” and holding that when presented with a
complaint containing exhausted and unexhausted claims, courts
should “proceed[ ] with the good and leave[ ] the
bad”). Exhaustion is a prerequisite to suit that must
be completed prior to filing an action. Anderson v. XYZ
Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir.
2005). While a plaintiff's failure to exhaust
administrative remedies is considered an affirmative defense,
and not a jurisdictional infirmity, Jones, 549 U.S.
at 216, if the lack of exhaustion is apparent on the face of
the prisoner's complaint, sua sponte dismissal prior to
service of the complaint is appropriate, Anderson,
407 F.3d at 683.
plain reading of the complaint shows that the plaintiff did
not properly exhaust his available administrative remedies
prior to filing this action. The plaintiff alleges that the
events giving rise to this action occurred on September 20,
2016 (doc. 1 at 5). The plaintiff filed a grievance
pertaining to the issues raised in the complaint; however,
before he received a response to his grievance, the plaintiff
signed this complaint on October 10, 2016, and filed it in
this court on October 11, 2016 (id. at 8,
The plaintiff indicates that he did not receive a final
answer to his grievance prior to filing the complaint (doc. 1
at 8). He states that he did not complete the grievance
procedure because he did not receive a response
(id.); however, the fact that the plaintiff did not
receive a response within 20 of the incident does not relieve
him of his responsibility to exhaust his administrative
remedies. See Malik v. Ward, No.
8:08-cv-1886-RBH-BHH, 2010 WL 1010023, at *6 (D.S.C. Feb. 4,
2010) (“Failure to exhaust all levels of administrative
review is not ‘proper exhaustion' and will bar
actions filed by inmates under any federal law, including
§ 1983.”); Nally v. King, 2013 WL 594709,
at * 3 (N.D.W.Va. Jan. 3, 2013) (“Failure to receive a
response is not an excuse for not moving to the next level of
the grievance procedure”), adopted by 2013 WL
593448 (N.D.W.Va. Feb. 15, 2013); Jordan v. Miami-Dade
Cty., 439 F.Supp.2d 1237, 1241-42 (S.D. Fla. July 13,
2006) (holding that remedies are not exhausted where an
inmate did not appeal a denial); Jones v. Smith, 266
F.3d 399, 400 (6th Cir. 2001) (finding that exhaustion is
required even though plaintiff claimed futility).
it is clear from the face of the complaint that the plaintiff
filed this action prematurely, before he exhausted his
administrative remedies, and the plaintiff's claims are
subject to summary dismissal. See Cabbagestalk v.
Terry, C/A No. 3:11-508-TMC-JRM, 2012 WL 465003, at *6
(D.S.C. Jan. 17, 2012) (collecting cases) (“A prisoner
does not comply with the mandatory exhaustion requirements by
exhausting his remedies during the course of
litigation.”), adopted by 2012 WL 464915
(D.S.C. Feb. 13, 2012).
recommended that the District Court dismiss this action
without prejudice. The plaintiff's attention is