United States District Court, D. South Carolina
Johnnie L. Malloy, # 306119, Plaintiff,
A. W. Dean, Major Chavilise, Capt. Pat, Capt. Coleman, Lt. Reddin, Capt. Camanda, Ofc. Gramm, Sgt. Cantee, Lt. Greenlee, Lt. Larry, Counselor Jackson, Capt. Watherspoon and Lt. Ruth, Defendants.
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.Plaintiff, an inmate with the
South Carolina Department of Corrections (SCDC), alleges
violations of his constitutional rights by the named
Defendants, all employees of the SCDC.
Defendants filed a motion for summary judgment pursuant to
Rule 56, Fed.R.Civ.P. on January 2, 2018. As the Plaintiff is
proceeding pro se, a Roseboro order was
entered by the Court on January 9, 2018, 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 file an adequate response, the
Defendants' motion may be granted, thereby ending his
case. However, notwithstanding the specific warning and
instructions as set forth in the Court's
Roseboro Order, Plaintiff failed to file any
response to the Defendants' motion for summary judgment,
which is now before the Court for disposition.
it is noted that Plaintiff's failure to respond to the
motion for summary judgment by itself may be considered by
the Court as a basis on which to grant the Defendants'
motion. See Coker v. International Paper Co., No.
08-1865, 2010 WL 1072643, at * 2[“[A] plaintiff can
abandon claims by failing to address them in response to a
summary judgment motion.”]; Jones v. Danek Medical,
Inc., No. 96-3323, 1999 WL 1133272 at * 3 (D.S.C. Oct.
12, 1999)[“The failure of a party to address an issue
raised in summary judgment may be considered a waiver or
abandonment of the relevant cause of action.”].
Plaintiff's failure to respond to the motion for summary
judgment, notwithstanding the specific warning and
instructions as set forth in the Court's
Roseboro Order, further subjects this case to
dismissal under the criteria for dismissal established by the
Fourth Circuit in Chandler Leasing Corp. . Lopez,
669 F.2d 919 (4th Cir. 1982). Accordingly, the
Court could also choose to dismiss this case for lack of
prosecution. See Davis v. Williams, 588 F.2d 69, 70
(4th Cir. 1978); Rule 41(b), Fed.R.Civ.P.
event the Court chooses not to dismiss this case based on
Plaintiffs failure to respond to the motion for summary
judgment, the Defendants have moved for summary judgment on
the ground that Plaintiff failed to exhaust his
administrative remedies prior to filing this lawsuit.
Pursuant to 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.” Through the enactment of this statute,
“Congress has mandated exhaustion clearly enough,
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 federal claims in this Court, he must
first have exhausted the administrative remedies that were
available to him at the prison.
verified Complaint Plaintiff alleges a failure to
protect claim against the Defendants because (Plaintiff
alleges) he was subjected to threats from other inmates, but
that no corrective action to protect him was taken. Plaintiff
further alleges that, subsequently, on February 8, 2017, he
awoke to find his roommate fighting with another inmate.
Plaintiff alleges that he slipped in liquid that the other
inmate had dashed in his cellmate's face, thereby causing
his knee to pop out of place, and that he had to help his
cellmate fight with the other inmate to get the other inmate
out of the cell. Plaintiff also alleges a claim of medical
deliberate indifference based on his allegation that the
Defendants refused to take him to medical to have his leg
injury treated.However, with respect to exhaustion
of grievances, Plaintiff acknowledges in his Complaint that
there is a grievance procedure in place at his institution
and that he filed a grievance concerning the claims he is
raising in this lawsuit, but when asked whether he had
received a final agency/departmental/institutional answer or
determination on his grievance, Plaintiff answered
“no”. See Complaint, ¶ II(D).
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,
549 U.S. 199 (2007). To meet this burden, the Defendants have
submitted a sworn affidavit from Sherman Anderson, Chief of
the Inmate Grievance Branch for the Department of
Corrections, who attests that under the SCDC grievance
procedure, in order to exhaust a conditions of confinement
claim within the SCDC, the inmate must first make an effort
to informally resolve his grievance by submitting a Request
to Staff Member form to the appropriate supervisor/staff
within eight (8) working days of the incident. Then, if
informal resolution is not possible, the inmate must submit a
Step 1 grievance form setting out his complaint to the
Warden. See Anderson Affidavit. If the inmate is
unsuccessful at the Step 1 level, he must then appeal by
filing a Step 2 appeal. Only after an inmate has received a
response to his Step 2 appeal is his claim deemed exhausted.
See SCDC Inmate Grievance System Procedures,
GA-01.12 (May12, 2014), Nos. 13.1 through 13.10; see also
Branton v. Ozmint, No 08-2306, 2009 WL 1457144, at * 2
(D.S.C. May 22, 2009); Jones v. Kay, No. 07-3480,
2007 WL 4292416, at * 5 (D.S.C. Dec. 5, 2007); Jenkins v.
South Carolina Dept. of Corrections, No. 05-2800, 2006
WL 1083563, at * 5 (D.S.C. Apr. 18, 2006). Anderson further
attests that Plaintiff filed several Step 1 grievances
asserting claims that could deemed as relating to the
allegations in this lawsuit, but that Plaintiff failed to
ever properly exhaust the Department's administrative
grievances process with respect to any of these
grievances. See Anderson Affidavit,
¶ ¶ 9-12, with attached Exhibits [SCDC Grievance
Policy and copies of various Step 1 grievances filed by the
noted, Plaintiff has not only failed to respond to the
Defendants' evidence showing that he failed to exhaust
his administrative grievances with respect to any of his
claims, but he actually affirms in his verified Complaint
that he failed to do so. Moreover, Plaintiff has attached
copies of his Step 1 grievance forms to his Complaint, none
of which reflect a proper exhaustion by the Plaintiff of the
prison's grievance procedure, nor has Plaintiff provided
copies of any Step 2 grievance appeals from the
denial/returns of his Step 1 grievance forms (or even alleged
that he ever filed any such appeals). See generally,
Jordan v. Miami-Dade County, 439 F.Supp.2d 1237,
1241-1242 (S.D.Fla. 2006)[Remedies not exhausted where inmate
did not appeal denial]; cf. Blakely v.
Tatarsky, No. 08-3609, 2009 WL 2922987 at * 5 (D.S.C.
Sept. 1, 2009)[“It appears, however, that the plaintiff
did nothing after the grievance(s) were returned as either
unprocessed or denied. . . . Whether or not the plaintiff now
has some legitimate argument as to why his grievances should
have been processed is immaterial. He did not proffer that
same argument to the defendants, as far as the Court has been
informed. It cannot be said, in this case, that
administrative remedies were simply unavailable to
him.”]; see also Sullivan v. Coleman, No.
06-1588, 2006 WL 3759757, * 6 (D.S.C. Dec. 18, 2006)[Finding
that inmate abandoned grievance where he failed to properly
complete and return Step 2 Inmate Grievance Appeal Form];
Williams v. Reynolds, No. 12-138, 2013 WL 4522574 at
* 4 (D.S.C. Aug. 27, 2013) [Noting that “even if
Plaintiff did file a Step 1 grievance there is no evidence
that Plaintiff filed a Step 2 grievance or otherwise appealed
the decision not to process the Step 1 grievance.”].
Plaintiff has failed to establish a genuine issue of fact
through evidence presented to this Court that he exhausted
his grievance remedies in this case. Drippe v.
Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)
[“Exhaustion of administrative remedies under the PLRA
is a questions of law to be determined by the judge”].
Allowing a prisoner to bring an inmate lawsuit without fully
exhausting his administrative remedies prevents prison
officials from having the opportunity to address the
prisoner's complaints through the administrative process,
thereby undermining Congress' directive that prisoners
are required to do so prior to filing a complaint in federal
court. Jones, 549 U.S. at 204 [“Requiring
exhaustion allows prison officials an opportunity to resolve
disputes concerning the exercise of their responsibilities
before being haled into court”]; see also Jamison
v. Wright, No. 11-2578, 2012 WL 3764031 at * 3 (D.S.C.
June 29, 2012).
such, Plaintiff's claims are subject to dismissal for
failure of the Plaintiff to exhaust his administrative
remedies. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.
2000)[“It is beyond the power of this court - or any
other to excuse compliance with the exhaustion requirement,
whether on the ground of futility, inadequacy or any other
basis.”](quoting Beeson v. Fishkill Corr.
Facility, 28 F.Supp.2d 884, 894-895 (S.D.N.Y. 1998));
Malik v. Sligh, No. 11-1064, 2012 WL 3834850, at * 4
(D.S.C. Sept. 4, 2012) [“A court may not consider, and
must dismiss, unexhausted claims”]; Porter,
534 U.S. at 516 [exhaustion required for all actions brought
with respect to prison conditions]; Spruill v
Gillis, 372 F.3d 218, 227-232 (3d Cir. 2004) [Discussing
necessity of pursuing all administrative remedies to the
end]; Cannon v. Washington, 418 F.3d 714, 719
(7th Cir. 2005) [Prisoner may not file a lawsuit
before exhausting his administrative remedies]; see also
Hyde v. South Carolina Dep't of Mental Health, 442
S.E.2d 582, 583 (1994) [“Where an adequate
administrative remedy is available to determine a question of
fact, one must pursue the administrative remedy or be
precluded from seeking relief in the courts”];
Babar v. Hosp. Corp. of Am, 977 F.2d 872, 874-875
(4th Cir. 1992) [Once a moving party makes a
showing that they are entitled to summary judgment, in order
to avoid summary judgment the opposing party must respond to
the motion with specific facts showing there is a genuine
issue for trial].
on the foregoing, it is recommended that the Defendants'
motion for summary judgment be granted, ...