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Malloy v. Dean

United States District Court, D. South Carolina

February 14, 2018

Johnnie L. Malloy, # 306119, Plaintiff,
v.
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

         This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983.[1]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.

         The 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.[2]

         I.

         Initially, 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).[3] 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.[4]

         II.

         In the 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.

         In his verified Complaint[5] 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.[6] 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.[7]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).

         The 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.[8] See Anderson Affidavit, ¶ ¶ 9-12, with attached Exhibits [SCDC Grievance Policy and copies of various Step 1 grievances filed by the Plaintiff].

         As 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.”].

         Therefore, 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).

         As 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].

         Conclusion

         Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be granted, ...


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