United States District Court, D. South Carolina, Aiken Division
PATRICK MICHAEL DUFFY UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' objection to
United States Magistrate Judge Shiva V. Hodges' report
and recommendation (“R & R”) (ECF Nos. 32
& 30). The Magistrate Judge recommends that the
Defendants' motion to dismiss be granted in part and
denied in part. For the reasons stated herein, the Court
overrules Defendants' objection and adopts the R & R,
subject to the changes noted below.
Magistrate Judge issued her R & R on February 8, 2018,
and Defendants filed their objection on February 22.
Plaintiff did not file a reply. Accordingly, this matter is
now ripe for review.
Magistrate Judge makes only a recommendation to this Court.
The R & R has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976).
Parties may make written objections to the Magistrate
Judge's recommendations and proposed findings within
fourteen days after being served with a copy of the R &
R. 28 U.S.C. § 636(b)(1). This Court must conduct a de
novo review of any portion of the R & R to which a
specific objection is made, and the Court may accept, reject,
or modify the Magistrate Judge's findings and
recommendations in whole or in part. Id.
Additionally, the Court may recommit the matter to the
Magistrate Judge with instructions. Id. A
party's failure to object is taken as the party's
agreement with the Magistrate Judge's conclusions. See
Thomas v. Arn, 474 U.S. 140, 151-52 (1985). Absent a timely,
specific objection-or as to those portions of the R & R
to which no specific objection is made-this Court “must
‘only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.'” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting
Fed.R.Civ.P. 72 advisory committee's note).
filings are held to a less stringent standard than those
drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978), and federal district courts must construe
such pleadings liberally to allow the development of
potentially meritorious claims, see Hughes v. Rowe, 449 U.S.
5, 9 (1980) (per curiam). The liberal construction
requirement, however, does not mean courts can ignore a clear
failure to allege facts that set forth claims cognizable in
federal district court. See Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990).
object to the R & R on the basis that the Magistrate
Judge improperly applied this Court's precedent regarding
failure to exhaust administrative remedies. According to
Defendants, the Magistrate Judge's reliance on the Fourth
Circuit's decision in Hill v. O'Brien, 387 Fed.Appx.
396 (4th Cir. 2010), is misplaced because Plaintiff has
failed to provide any “evidence that he attempted to
use the administrative remedy at the informal resolution or
institutional level, other than his conclusory allegation
that the Warden did not take his complaint serious.”
(Defs.' Objs. R & R, ECF No. 32, at 5.) The Court
disagrees and concludes that Defendants take too narrow a
view of Plaintiff's allegations.
addition to Plaintiff's pro se status, which requires
that the Court liberally construe his complaint, the Court
must also accept all of Plaintiff's well-pleaded
allegations as true and draw all reasonable inferences from
those facts in Plaintiff's favor at the motion to dismiss
stage. Hill, 387 Fed.Appx. at 398. Here, Plaintiff has
alleged that he filed a grievance on August 8, 2014, and that
he submitted that grievance to the warden of his institution.
He further alleges that the warden, through an associate
warden, returned his ripped up grievance to him and stated
“this is what we think about your complaint.”
(Compl., ECF No. 1, at 6.) Plaintiff then filed a request for
an administrative remedy with the regional director of the
Bureau of Prisons for his claims of inadequate medical care
on August 29, 2014. The regional director rejected
Plaintiff's claims because he had failed to first file a
BP-9-a grievance submitted to the warden-prior to filing his
appeal to the regional director.
administrative remedy is not considered to have been
available if a prisoner, through no fault of his own, was
prevented from availing himself of it.” Hill, 387
Fed.Appx. at 400 (quoting Moore v. Bennette, 517 F.3d 717,
725 (4th Cir. 2008)). Here, Plaintiff has alleged that the
warden prevented him from using the Bureau of Prison's
administrative remedy system by returning his torn up
grievance to him and stating “this is what we think
about your complaint.” The Court agrees with the
Magistrate Judge that, as in Hill, Plaintiff has sufficiently
alleged facts demonstrating the unavailability of an
administrative remedy such that his suit should be permitted
to proceed. As a result, the Court overrules Defendants'
objection and adopts that portion of the R & R.
Magistrate Judge also recommended that Defendants' motion
to dismiss be granted as to Plaintiff s FTC A claim.
Plaintiff did not file any objection to that recommendation.
As a result, the Court only reviews that portion of the R
& R for clear error. Finding none, the Court also adopts
that portion of the R & R, but replaces “her”
in the first sentence of the second paragraph on page eight
with “his, ” and replaces “she” and
“her in the final paragraph of page eight with
“he” and “his, ” respectively.
reasons stated herein, it is ORDERED that Defendants'
objection is OVERRULED, that the R & R is ADOPTED subject
to the changes set forth above, and that Defendants'