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Al-Mujahidin v. McCall

United States District Court, D. South Carolina

August 7, 2018

Muhammad Al-Mujahidin, a/k/a or f/k/a John Hamilton, Plaintiff,
v.
Michael McCall, Meagan Harris, Daniel Harouff, David Tartarsky, J. Scarborough, Defendants.

          REPORT AND RECOMMENDATION

         The 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.

         Under 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).

         However, 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 Civil Procedure].

         Discussion

          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.

         Plaintiff 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.

         This 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 (2007).

         This 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 claims.

         While a 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]. [1]

         Moreover, 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).

         Additionally, 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. 1989).

         Therefore, 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].

         Recommendation

         Based on the foregoing, it is recommended that the Court dismiss Plaintiffs Complaint without prejudice and without issuance and service of mpcepy Plaintiff s attention ...


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