United States District Court, D. South Carolina
Muhammad Al-Mujahidin, a/k/a or f/k/a John Hamilton, Plaintiff,
Michael McCall, Meagan Harris, Daniel Harouff, David Tartarsky, J. Scarborough, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, Muhammad Al-Mujahidin, also known as or formerly
known as John Hamilton, proceeding pro se and in forma
pauperis, brings this action pursuant to 42 U.S.C.
§ 1983. At the time he filed this action, Plaintiff was
an inmate at the Perry Correctional Institution (PCI), part
of the South Carolina Department of Corrections (SCDC). He is
currently an inmate at the Broad River Correctional
Institution (BRCI), also part of the SCDC.
established local procedure in this judicial district, a
careful review has been made of the pro se Complaint pursuant
to the procedural provisions of 28 U.S.C. § 1915 and
§ 1915A, the Prison Litigation Reform Act, Pub.L. No.
104-134, 110 Stat. 1321 (1996), and in light of the following
precedents: Denton v. Hernandez. 504 U.S. 25 (1992),
Neitzke v. Williams. 490 U.S. 319 (1989), Haines
v. Kerner. 404 U.S. 519 (1972), Nasim v. Warden.
Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995),
and Todd v. Baskerville. 712 F.2d 70 (4th Cir.
1983). Prose complaints are held to a less stringent standard
than those drafted by attorneys, Gordon v. Leeke.
574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district
court is charged with liberally construing a pro se
complaint to allow the development of a potentially
meritorious case. Ericksonv. Pardus. 5 51 U.S. 89,
93 (2007) (citing Bell Atlantic Corp. v. Twomblv.
550 U.S. 544, 555-56 (2007)); Hughes v. Rowe. 449
U.S. 5, 9 (1980).
even when considered pursuant to this liberal standard, for
the reasons set forth hereinbelow this case is subject to
summary dismissal. The requirement of liberal construction
does not mean that the court can ignore a clear failure in
the pleading to allege facts which set forth a claim
cognizable in a federal district court. See Wellerv.
Dep'tof Soc. Servs., 901 F.2d 387 (4th Cir. 1990);
see also Ashcroft v. Iqbal. 556 U.S. 662 (2009)
[outlining pleading requirements under the Federal Rules of
Plaintiff alleges that the Defendants have subjected him to
retaliation and cruel and unusual punishment. He states that
in January 2018 he was transferred from the McCormick
Correctional Institution (MCI) to PCI so that he could
participate in the "Lifers" program designed to
help inmates with life sentences and parole dates obtain
skills to help them to obtain release. Plaintiff claims that
"Plaintiffs" [he appears to mean Defendants]
acknowledged that the program will not benefit him because he
is serving a sentence of life without parole. Complaint, ECF
No. 1 at 3.
contends that Defendants McCall and Harouff conspired to
retaliate against him by placing him in harms way at PCI,
where McCall and Harouff allegedly were previously found (in
Civil Action Number 9:14-1266) to have physically and
mentally abused Plaintiff. He alleges he told Defendants
Harris (a mental health counselor at PCI) and Tartarsky
(General Counsel for SCDC) about his fears for his physical
and mental well being, but nothing was done to help him.
Plaintiff claims that he was threatened by staff members and
officers at PCI who have banged on his cell door late at
night for no reason. ECF No. 1 at 3-5. Plaintiff requests
$250, 000 from each Defendant and to be transferred from PCI
to MCI. Id. at 7.
action is subject to summary dismissal because it is clear
from the face of the Complaint that Plaintiff has not
exhausted his available administrative remedies. Before a
prisoner can proceed with a lawsuit in federal court, he must
first exhaust his administrative remedies as required by the
Prison Litigation Reform Act, which provides that "[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." 42 U.S.C. § l997e(a).
This requirement "applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong." Porter v. Nussle. 534
U.S. 516, 532(2002). Moreover, exhaustion is required even
when a prisoner seeks remedies, such as money damages, that
are not available in the administrative proceedings. See
Booth v. Churner. 532 U.S. 731, 740-41 (2001). To
satisfy this requirement, a plaintiff must avail himself of
every level of available administrative review, which means
'"using all steps that the agency holds out, and
doing so properly.'" Woodford v. Ngo. 548
U.S. 81 (2006) (quoting Pozo v. McCaughtrv. 286 F.3d
1022, 1024 (7th Cir. 2002)). Thus, "it is the
prison's requirements, and not the [Prison Litigation
Reform Act], that define the boundaries of proper
exhaustion." Jones v. Bock. 549 U.S. 199, 218
Court can take judicial notice from numerous other previous
cases filed and decided in this District that in order to
exhaust the SCDC prison grievance procedure, an inmate must
submit a Step 1 Grievance form. If the inmate is then not
satisfied with the result of his Step1 grievance, he can
appeal by submitting a Step 2 grievance form to the
Institutional Grievance Coordinator. The response to the
inmate's Step 2 grievance is generally the final agency
decision on the issue for exhaustion purposes, although in
some cases a further appeal to the South Carolina
Administrative Law Court is required before exhaustion is
complete. See Aloe Creme Laboratories, Inc. v. Francine
Co.. 425 F.2d 1295, 1296 (5th Cir. l970)[a federal court
may take judicial notice of the contents of its own records];
see also Johnson v. Ozmint. 567 F.Supp.2d 806, 820,
n.5 (D.S.C. 2008); Duncan v. Langestein. No. 07-268,
2008 WL 153975 at * 5 (D.S.C. Jan. 14, 2008) (citing
Charles v. Ozmint. No. 05-2187, 2006 WL 1341267, at
* 4 n. 4 (D.S.C. May 15, 2006)(recognizing that completion of
Step II grievance exhausts administrative remedies and §
1997(a) does not require inmates to further appeal to
Administrative Law Court.)); Ayre v. Currie. No.
05-3410, 2007 WL 3232177, at * 7 n.5 (D.S.C. Oct. 31, 2007).
Here, even though Plaintiff admits that the SCDC has a
grievance procedure, he specifically checked "No"
in response to the question asking if he had filed a
grievance concerning the claims raised in this matter, and
"No" to the question asking if he received a final
institutional answer or determination concerning his alleged
plaintiffs failure to exhaust administrative remedies is
considered an affirmative defense, and not a jurisdictional
infirmity; Jones v. Bock, 549 U.S. at 216; if the
lack of exhaustion is apparent on the face of the
prisoner's complaint, sua sponte dismissal prior
to service of the complaint is appropriate. Anderson v.
XYZ Corr. Health Servs, Inc., 407 F.3d 674, 683 (4th
Cir. 2005). The Fourth Circuit recently stated that
exceptions to the rule (that an inmate need not demonstrate
exhaustion of administrative remedies in his complaint and
that failure-to-exhaust is an affirmative defense that the
defendant must raise) which allow a court to sua
sponte dismiss a complaint for failure to exhaust
administrative remedies are rare. Custis v. Davis,
851 F.3d 358, 361-362 (4th Cir. 2017). Here, however, as
noted, Plaintiff himself admits in his verified
Complaint that, although the SCDC has a grievance procedure,
he did not file a grievance concerning the claims raised in
this matter and did not receive a final
agency/departmental/institutional answer or determination
concerning his claims before filing this lawsuit. ECF No. 1
at 2. Instead, Plaintiff only states that he complained to
each Defendant, but that his complaints were
"ignored;" ECF No. 1 at 2; while in the body of the
Complaint, Plaintiff also states that sought relief through
the SCDC state classification system with no results.
Id. at 4. These actions, however, do not satisfy the
exhaustion requirement of the PLRA, as to exhaust his
administrative remedies with respect to these claims,
Plaintiff would have had to have pursued grievances
concerning these claims if he did not receive the response(s)
he desired to his Request to Staff forms, letters, or oral
complaints. See Davis v. Minthorn, No. 05-326, 2006
WL 2222700 (E.D.Tenn. Aug. 2, 2006) [Submission of inmate
request form not sufficient to exhaust grievance remedy];
Boddie v. Bradley, 228 Fed.Appx. 5, **2 (2d Cir.
Feb. 16, 2006) [Letters sent by prisoner to state Department
of Correction officials were not, on their own, sufficient to
meet PLRA requirement that prisoner exhaust administrative
remedies by submission of complains on an inmate grievance
form]; see also McNair v. Sgt. Jones, No. 01-3253,
2002 WL 31082948 at **7-8 (S.D.N.Y. Sept. 18, 2002)
["Making a verbal complaint. . . does not satisfy the
exhaustion requirement because the administrative process
permits only written grievances. Conwell v. Bureau of
Prisons. No. 93-2684, 1994 WL 684766 at *2
(5th Cir. Nov. 22, 1994) [Finding that multiple
letters and memos only satisfied informal tier of BOP's
Administrative Remedy Procedure]. 
and notwithstanding Plaintiffs exhaustion defect, the
undersigned is further constrained to note that Plaintiffs
request that he be moved out of PCI is now moot, as Plaintiff
is currently at BRCI. See Williams v. Griffin. 952
F.2d at 823 ["[T]he transfer of a prisoner render[s]
moot his claim for injunctive and declaratory relief"];
Taylor v. Rogers, 781 F.2d 1047, 1048 n. 1 (4th Cir.
1986) [holding that prisoner's transfer mooted a request
for declaratory and injunctive relief]. Further, as to
Plaintiffs request that he be transferred to MCI, this court
cannot order the SCDC to transfer Plaintiff to another
prison, as he has no protected constitutional interest in
being housed in a particular institution, at a particular
custody level, or in a particular portion or unit of a
correctional institution. See 01 im v. Wakinekona,
461 U.S. 238, 250-51 (1983) [inmates have no due process
right to choose their specific place of confinement];
Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (same).
while Plaintiff alleges that he was threatened by
"various staff members and late night awakenings by
officers who bang on his cell door for no reason[;]" ECF
No. 1 at 5; as noted above, Plaintiff has now been
transferred from PCI. Further, although Plaintiffs damages
claims survive his transfer to another institution;
Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir.
1976); verbal abuse, without more, fails to state a claim
under § 1983. See Siglar v. Hightower, 112
'(...continued) Brockineton v. South Carolina
Dep't of Soc. Servs., No. 17-1028, 2017 WL 1531633
(4th Cir. 2Ol7)[Noting that prose Plaintiff should be
provided an opportunity to amend his complaint to cure
defects prior to a dismissal]: Evans v. Richardson.
No. 17-1144, 2017 WL 2294447 (4th Cir. May 25, 20l7)[same];
Brevan v. All Medical Staff. No. 17-6186, 2017 WL
2365232 (4th Cir. May 31, 2017)[same]. But he cannot do so
here in this filing, even if he subsequently pursues and
exhausts his grievance remedies with respect to these claims.
See Cannon v. Washington, 418 F.3d 714, 719
(7th Cir. 2005) [Prisoner may not file a lawsuit
before exhausting his administrative remedies, even if he
exhausts those remedies while the litigation is pending.];
Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999) [Prisoner "may not exhaust
administrative remedies during the pendency of the federal
suit."]. F.3d191, 193(5thCir. 1997):
Morvav. Johnson. No. 09-515. 2011 WL 3420650, at * 7
(W.D.Va. Aug. 4, 2011)[Plaintiff failed "to establish
that a defendant violated a constitutional right by
harassing, threatening, or ridiculing him...."]:
DePaola v. Tavlor, No. 10-398, 2011 WL2445859, at *
9 (W.D.Va. June 15, 201 l)["[A]n institutional
employee's verbal harassment of an inmate or idle threats
made to an inmate, even if they cause an inmate fear, anxiety
or discomfort, do not present a claim of constitutional
magnitude."], adopted by, 2011 WL 3105336
(W.D.Va. July 25, 2011), affd.. 470 Fed.Appx. 186
(4th Cir. Mar. 27, 2012); Aiai v. United States. 479
F.Supp.2d 501, 538 n. 16 (D.S.C. 2007); Malsh v.
Austin, 901 F.Supp. 757 (S.D.N.Y. l995)["Verbal
assault, standing alone, is not a . . . cognizable injury in
a 1983 civil rights action"]; Sluys v. Gribetz.
842 F.Supp. 764, 765n.l (S.D.N.Y. l994).aff
d..Sluvs v. Gribetz, 4l F.3d 1503 (2d Cir.
1994). Finally, to the extent Plaintiff requests monetary
damages for mental anguish; ECF No. 1 at 6; there is no
federal constitutional right to be free from emotional
distress, psychological stress, or mental anguish; hence,
there is no liability for compensatory or punitive damages
under § 1983 regarding such claims. See Grandstaff
v. City of Borger, 767 F.2d 161 (5th Cir. 1985);
Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir.
in the event Plaintiff does exhaust his administrative
remedies with respect to his claims, he is advised that he
will still need to address these other defects in his claims
in any new Complaint, or his case will be subject to
dismissal. Brockington, 2017 WL 1531633 [Noting that
pro se Plaintiff should be provided an opportunity to amend
his complaint to cure defects prior to a dismissal].
on the foregoing, it is recommended that the Court dismiss
Plaintiffs Complaint without prejudice and without issuance
and service of mpcepy Plaintiff s attention ...