United States District Court, D. South Carolina
OPINION AND ORDER
Richard Mark Gergel United States District Court Judge.
this Court is the Report and Recommendation ("R &
R") of the Magistrate Judge (Dkt. No. 50) recommending
that Defendant's motion for summary judgment (Dkt. No.
32) be granted and that Plaintiffs motion for a snack with
his medication (Dkt. No. 35) be denied. For the reasons set
forth below, the Court adopts in part and rejects in part the
R & R and grants the Defendant's motion for summary
judgment and denies Plaintiffs motion.
Antrell Jermaine Fordham is currently incarcerated at Lieber
Correctional Institution in Ridgeville, South Carolina. (Dkt.
No. 1 at 2.) While incarcerated, Plaintiff was prescribed the
medication Geodon, with the recommendation that he take the
medicine with food. (Dkt. No. 35-1.) Plaintiff alleges that
sometime in 2016, the Defendants stopped providing the
Plaintiff with a snack to take with his medication. (Dkt. No.
1 at 5 - 6.) Plaintiff states that the Defendants are aware
that he needs a snack when taking Geodon. (Id.)
Plaintiff alleges that he has lost weight as a result of not
receiving a snack when he takes his medicine. (Id.)
January 8, 2018, Plaintiff filed a grievance regarding the
snack at Lieber. (Dkt. No. 32-2 at 29.) Plaintiff further
attached two Request to Staff Members forms dated January 14,
2018, and January 25, 2018, regarding a snack. (Dkt. No.
1-1.) While Defendant claims his grievance was never
returned, the warden marked the grievance as resolved on
February 6, 2018, and the Plaintiff signed the grievance on
February 14, 2018, checking that he "accept[s] the
Warden's decision and consider[s] the matter
closed." (Dkt. No. 32-2 at 30.)
filed this action on February 6, 2018, and is seeking $9, 000
in damages. (Id.) Defendants filed a motion for
summary judgment on August 9, 2018, and Plaintiff responded.
(Dkt. Nos. 32, 47.) Plaintiff further filed a motion for a
snack, which Defendants oppose. (Dkt. No. 35, 39.) The
Magistrate Judge issued an R & R on October 22, 2018, and
Plaintiff has not filed any objections. (Dkt. No. 50.)
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) citing Camby v. Davis, 718 F.2d 198,
200 (4th Cir.1983). Plaintiff has not filed objections and
the R & R is reviewed for clear error.
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. § l997e(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, as demonstrated on the form provided to
Plaintiff, 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." (Dkt. No. 32-2 at 29 - 30.)
has not exhausted his administrative remedies with respect to
his claims here. Plaintiff filed his Complaint on February 6,
2018. His step one grievance was reviewed by the warden the
same day, and his grievance was returned to him on February
14, 2018, after the Complaint was filed. (Dkt. No. 32-2 at
30.) Therefore, Plaintiff cannot show that he exhausted his
administrative remedies at the time he filed his 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).
Furthermore, after the Complaint was filed, Petitioner
accepted the warden's decision and checked that he
"considered] the matter closed." (Dkt. No. 32-2 at
30.) Finally, while the ...