United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
E. ROGERS, UNITED STATES MAGISTRATE JUDGE.
a civil action filed by a pro se state prisoner
proceeding in forma pauperis. Pursuant to 28 U.S.C.
636(b)(1) and District of South Carolina Local Civil Rule
73.02(B)(2)(e), the undersigned is authorized to review all
pretrial matters in such pro se cases and to submit
findings and recommendations to the District Court.
See 28 U.S.C. §§ 1915(e); 1915A (as soon
as possible after docketing, district courts should review
prisoner cases to determine whether they are subject to
established local procedure in this judicial district, a
careful review has been made of Plaintiff's pro
se complaint filed in this case. This review has been
conducted pursuant to the procedural provisions of 28 U.S.C.
§ 1915 and in light of the following precedents:
Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke
v. Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden,
Md. House of Corr., 64 F.3d 951 (4th Cir. 1995);
Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).
complaint has been filed pursuant to 28 U.S.C. § 1915,
which permits an indigent litigant to commence an action in
federal court without prepaying the administrative costs of
proceeding with the lawsuit. To protect against possible
abuses of this privilege, the statute allows a district court
to dismiss the case upon a finding that the action
“fails to state a claim on which relief may be granted,
” “is frivolous or malicious, ” or
“seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). A finding of frivolity can be made where the
complaint “lacks an arguable basis either in law or in
fact.” Denton v. Hernandez, 504 U.S. at 31.
Under § 1915(e)(2)(B), a claim based on a meritless
legal theory may be dismissed sua sponte.
Neitzke v. Williams, 490 U.S. 319 (1989).
court is required to liberally construe pro se
complaints. Erickson v. Pardus, 551 U.S. 89, 94
(2007). Such pro se complaints are held to a less
stringent standard than those drafted by attorneys.
Id.; Gordon v. Leeke, 574 F.2d 1147, 1151
(4th Cir. 1978). Even under this less stringent standard,
however, the pro se complaint is subject to summary
dismissal. The mandated liberal construction afforded to
pro se pleadings means that if the court can
reasonably read the pleadings to state a valid claim on which
plaintiff could prevail, it should do so, but a district
court may not rewrite a complaint to include claims that were
never presented, construct the plaintiff's legal
arguments for him, or conjure up questions never squarely
presented to the court. Beaudett v. City of Hampton,
775 F.2d 1274, 1278 (4th Cir. 1985); Small v.
Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v.
Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district
court. Weller v. Dep't of Soc. Servs., 901 F.2d
387, 390-91 (4th Cir.1990) (The “special judicial
solicitude” with which a [court] should view such pro
se complaints does not transform the court into an
brings this action pursuant to 42 U.S.C. § 1983. Section
1983 “ is not itself a source of substantive rights,
but merely provides a method for vindicating federal rights
elsewhere conferred.” Albright v. Oliver, 510
U.S. 266, 271 (1994) (internal quotation and citation
omitted) A legal action under § 1983 allows “a
party who has been deprived of a federal right under the
color of state law to seek relief.” City of
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 707 (1999). Under § 1983, a plaintiff must
establish two essential elements: (1) that a right secured by
the Constitution or laws of the United States was violated,
and (2) that the alleged violation “was committed by a
person acting under the color of state law.” West
v. Atkins, 487 U.S. 42, 48 (1988).
initial matter, Plaintiff filed this case before exhausting
the South Carolina Department of Corrections'
administrative remedy process. ECF No. 1-2 at 7. The Prison
Litigation Reform Act, 42 U.S.C. 1997e(a) provides: “No
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.” The United States Supreme
Court has held that “the PLRA's exhaustion
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). A plaintiff's failure to exhaust
administrative remedies is considered an affirmative defense,
and not a jurisdictional infirmity. Jones v. Bock,
549 U.S. 199, 214-16 (2007). However, if the lack of
exhaustion is apparent from the face of the prisoner's
complaint, sua sponte dismissal prior to service of
the complaint is appropriate. See Anderson v. XYZ
Correctional Health Servs., Inc., 407 F.3d 674, 683 (4th
Cir. 2005); Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008); see also Eriline Co. S.A. v.
Johnson, 440 F.3d 648, 655-56 (4th Cir. 2006).
attaches a Step 1 grievance received by SCDC on August 2,
2018 and responded to by SCDC on August 3, 2018. SCDC's
Policy on Inmate Grievances is publicly available.
See No. GA1-12,
http://www.doc.sc.gov/policy/policy.html (last visited Aug.
23, 2018). Within five days of receipt of response to a Step
1, an inmate may appeal by filing a Step 2. Id. SCDC
staff have 90 days to render a decision. Id.
“A prisoner must, however, refrain from filing suit in
federal court until all time periods for both steps to be
completed runs, even if SCDC fails to respond to an
inmate's grievance at either the Step 1 or Step 2
levels.” Wagner v. United States, 486
F.Supp.2d 549, 558 (D.S.C. 2007).
signed his complaint on August 20, 2018. Time has not yet run
for SCDC staff to respond to any Step 2 filed. Plaintiff has
not exhausted the South Carolina Department of
Corrections' administrative remedy process before filing
this complaint as required by the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(a).
it is recommended that the district court summarily dismiss
the complaint in this case without prejudice, and without
issuance and service of process. See Brown v.
Briscoe, 998 F.2d 201, 202-04 (4th Cir. 1993); see also
28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as
soon as possible after docketing, district courts should
review prisoner cases to determine whether they are subject
to summary dismissal).
attention is directed to the important ...