United States District Court, D. South Carolina, Rock Hill Division
Steve L. W. Menius, Plaintiff,
Warden Stephane, at Broad River, Warden Joyner, at Lee; Mrs. Bush, Classification; Counselor Howie; Officer Locklear, F-5 Unit; Defendants.
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
the Court is the report and recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 79) recommending
that the Court dismiss Plaintiffs claims for failure to
exhaust his administrative remedies. For the reasons set
forth below, the Court adopts the R & R as the Order of
the Court and Plaintiffs claims are dismissed for failure to
exhaust his administrative remedies.
Steve L. W. Menius brought this suit pursuant to 42 U.S.C.
§ 1983, claiming that Defendants violated his
constitutional rights by deliberate indifference and failure
to protect him from inmate violence while Plaintiff was in
the custody of the South Carolina Department of Corrections
("SCDC"). Plaintiff alleges several specific
incidents where he was assaulted by fellow inmates. (Dkt. No.
10 at 5 - 6.) Defendant has since filed three grievances in
2018 related to these allegations: the first on January 18,
the second on January 30, and the last on February 5. (Dkt.
No. 50-1 at 15 - 17.) He did not file a step 2 grievance for
any of these grievances. (Id.)
moved for summary judgment (Dkt. No. 50), Plaintiff filed a
response in opposition (Dkt. Nos. 58, 59). The Magistrate
Judge issued the R & R on October 19, 2018, recommending
that the Plaintiffs claims be dismissed for failure to
exhaust his administrative remedies. (Dkt. No. 79.) Plaintiff
objected to the R & R. (Dkt. No. 81.)
district court shall grant summary judgment "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(a). The movant bears the
initial burden of demonstrating that summary judgment is
appropriate; if the movant carries its burden, then the
burden shifts to the non-movant to set forth specific facts
showing that there is a genuine issue for trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In considering a motion for summary judgment, the evidence of
the non-moving party is to be believed and all justifiable
inferences must be drawn in favor of the non-moving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). However, "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted." Id. at 248.
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The Court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1). This Court must make
a de novo determination of those portions of the R
& R Petitioner specifically objects to. Fed.R.Civ.P.
72(b)(2). Where Petitioner fails to file any specific
objections, "a district court need not conduct a de
novo review, but instead 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) (internal quotation omitted). "Moreover, in the
absence of specific objections to the R & R, the Court
need not give any explanation for adopting the
recommendation." Wilson v. S.C. Dept of Corr.,
No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1 (D.S.C. Mar. 12,
2015). See also Camby v. Davis, 718 F.2d 198, 200
(4th Cir. 1983)). Petitioner filed objections in this case,
and the R & R is therefore reviewed de novo.
Prison Litigation Reform Act ("PLRA") mandates that
an inmate exhaust "such administrative remedies as are
available" before bringing suit under § 1983. 42
U.S.C. § 1997e(a) ("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."). Exhaustion is required even where a
prisoner seeks remedies, such as monetary damages, that are
not available at an administrative proceeding. See Booth
v. Churner, 532 U.S. 731, 740 (2001). It is the
defendant's burden to establish that a plaintiff failed
to exhaust his administrative remedies. See Wilcox v.
Brown, 877 F.3d 161, 167 (4th Cir. 2017). The
administrative remedies are dictated by the prison. See
Jones v. Bock, 549 U.S. 199, 218 (2007). Pursuant to
SCDC policy, an inmate seeking to complain of prison
conditions must first attempt to informally resolve the
complaint. Next, an inmate may file a "Step 1
Grievance" with prison staff, and appeal the decision
via a "Step 2 Grievance" to the warden.
did not file a Step 2 Grievance or an appeal of any of his
grievances. Instead, each is marked as "accepted"
and resolved via informal measures. (Dkt. No. 50-1 at 15 -
17.) Plaintiff does not dispute this in his objections, and
instead focuses on the merits of his Complaint and actions
from January 6, 2018, prior to the filing of the Step 1
Grievances. Therefore, Plaintiff has presented no evidence
that he actually filed an appeal or a Step 2 Grievance and
exhausted his administrative remedies. Furthermore, to the
extent Plaintiff attempted to exhaust his administrative
remedies after filing this action, his claims nonetheless are
subject to dismissal because exhaustion is a prerequisite to
suit and must be completed prior to filing a complaint.
See Cabbagestalk v. Ozmint, No. CA 9:06-3005-MBS,
2007 WL 2822927, at *1 (D.S.C. Sept. 27, 2007) ("court
must look to the time of filing, not the time the district
court is rendering its decision, to determine if exhaustion
has occurred. If exhaustion was not completed at the time of
filing, dismissal is mandatory.") (colleting cases).
Therefore, it is clear that Plaintiff failed to exhaust his
claims before he filed this action.
Plaintiff objects to the Magistrate Judge's determination
that Defendant Howie was never properly served in this
action, arguing that he never noticed the remarks stating
that the marshals could not find Defendant Howie. (Dkt. No.
81 at 1.) Regardless, the claims against all defendants are