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Cunningham v. Kane

United States District Court, D. South Carolina, Beaufort Division

September 5, 2017

Eugene Jerome Cunningham, #02433-135, Petitioner,
v.
Thomas R. Kane, Helen J. Marberry, Travis Bragg, M. Furman, and K. Parra, Respondents.

          ORDER AND OPINION

          Richard Mark Gergel United States District Court Judge.

         This matter is before the Court on the Report and Recommendation of the Magistrate Judge, recommending denial of Respondents' motion to dismiss. For the reasons set forth below, the Court adopts the Report and Recommendation.

         I. Background

         Petitioner seeks a writ of mandamus under 28 U.S.C. § 1361 to compel Respondents to provide a main law library, legal aid program, funding to hire legal aides, and to remove Respondent Parra from supervision of the law library. Petitioner also seeks appointment of a special master to supervise Respondents. Respondents have moved to dismiss the petition, asserting Petitioner has failed to exhaust his administrative remedies before filing this lawsuit.[1]On July 19, 2017, the Magistrate Judge recommended that Respondents motion to dismiss be denied. Respondents filed objections to the Report and Recommendation and the Court recommitted this matter to the Magistrate Judge for consideration of Respondents' objections. On August 18, 2017, the Magistrate Judge again recommended that Respondents' motion to dismiss be denied. Respondents have not objected to the second Report and Recommendation.

         II. Legal Standard

         A. Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate judge with instructions." Id. Where the plaintiff fails to file any specific objections, "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, " see Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted), and this Court is not required to give any explanation for adopting the recommendation of the Magistrate Judge, Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).

         B. Motion to Dismiss

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the allegations constitute 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Republican Party o/ N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

         To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

         C. Exhaustion

         Under 42 U.S.C. § 1997e(a), "[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." "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001). Before a prisoner may prosecute a claim before a district court, he must first have exhausted the administrative remedies available at the prison. Failure to exhaust administrative remedies is an affirmative defense and the Government has the burden of showing that a prisoner has failed to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 212 (2007).

         III. Discussion

         The Bureau of Prisons has a tiered administrative grievance process which consists of the inmate first attempting information resolution of his complaint, then filing an administrative remedy with the warden of his institution, then filing an appeal of any adverse decision to the regional director, and finally by appealing the regional director's decision to the Central Office. Se ...


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