United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
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.
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.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.
Report and Recommendation
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).
Motion to Dismiss
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.
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.
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).
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 ...