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Chisolm v. South Carolina Department of Corrections

United States District Court, D. South Carolina, Greenville Division

January 7, 2019

Donsurvi Chisolm, Alvin Davis, Craig E. Ellerbe, Jr., Johnell Richardson, Delronzey Washington, Jason Storms, and Jamarcus Murray, Plaintiffs,
South Carolina Department of Corrections, Warden Leroy Cartledge, and Warden Michael Stephan, Defendants.


          Kevin F. McDonald United States Magistrate Judge

         This matter is before the court on the defendants' motion to sever (doc. 5) and motion for summary judgment for failure to exhaust administrative remedies (doc. 22). The plaintiffs filed this action in state court, raising claims for violations of their constitutional rights pursuant to Title 42, United States Code, Section 1983. The defendants removed the case to this court. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.


         The plaintiffs, at relevant times in 2016-2018 as set forth in the complaint, were inmates at McCormick Correctional Institution (“MCI”), a state prison within the South Carolina Department of Corrections (“SCDC”). Defendants Leroy Cartledge and Michael Stephan served as wardens respectively at MCI during the period at issue. The plaintiffs filed suit in state court, alleging claims under the South Carolina Tort Claims Act and federal claims under Section 1983 (doc. 1-1). The plaintiffs allege that the defendants have failed “to provide them a safe and secure housing arrangement with the appropriate policies and procedures and supervision in place and enforced to insure that they are secure and/or free from the threats of harm or death by attacks for other inmates with and/or without the complicity of the administration, staff and/or correctional officers” at MCI (doc. 1-1, pp. 3-4). The complaint alleges that between April 2016 and January 2018, each inmate was attacked by other inmates in separate incidents while incarcerated at MCI (id., pp. 8-23).

         The defendants removed the case to this court on April 26, 2018, and thereafter filed an answer denying the allegations. The defendants also filed a motion to sever the plaintiffs' case into seven individual cases (doc. 5), to which the plaintiffs filed a response in opposition (doc. 9). On June 21, 2018, a hearing was held on the motion. At the hearing, counsel for the parties agreed that exhaustion was a dispositive issue on the federal claims for all of the plaintiffs, and the undersigned entered a limited scheduling order to allow discovery and motions on the exhaustion issue (doc. 21). As directed by the court, the parties engaged in limited discovery to address whether each plaintiff had exhausted his administrative remedies. At the close of this discovery period, the defendants filed their motion for summary judgment on the basis that each plaintiff had failed to exhaust (doc. 22). With their motion, the defendants provide the affidavits of Sherman L. Anderson, the Chief of Inmate Grievance Branch, Office of General Counsel for SCDC, along with certain SCDC grievance records, in support of their position that each plaintiff has failed to exhaust his administrative remedies (docs. 22-2 through 22-11). The plaintiffs filed their response in opposition (doc. 25), providing their own affidavits (docs. 25-3, -6, -8, -10, -12, -14, and -16), in support of their position that the SCDC grievance process was in effect unavailable, and thus exhaustion was not possible. The defendants then addressed each plaintiff's case in their reply (doc. 32).


         A. Motion for Summary Judgment for Failure to Exhaust Administrative Remedies

         1. Standard of Review

         Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The 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 judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only 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.

         2. Exhaustion of Administrative Remedies

          The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things, that prisoners exhaust their administrative remedies prior to filing civil actions concerning prison conditions under Section 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court”). “[T]he PLRA's exhaustion requirement is mandatory, ” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), and “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). Although PLRA exhaustion is not jurisdictional, failure to exhaust is an affirmative defense that can be pleaded by the defendants. Jones, 549 U.S. at 216; Anderson, 407 F.3d at 681. “[U]nexhausted claims cannot be brought in court.” Jones, 549 U.S. at 211. “Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Id. at 204. It also has the “potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id.

         The PLRA requires “proper exhaustion” of available administrative remedies prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court noted, “[a]ggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons, ” whether it be concerns about efficiency or “bad faith.” Id. at 89-90. This is especially true in a prison context. Id. at 90 n.1. Nevertheless, “[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91. However, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered unavailable when: (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016).

         The SCDC grievance procedure is outlined in SCDC Policy GA-01.12 (“Inmate Grievance System”) (doc. 25-1). Subject to certain exceptions, the Inmate Grievance System requires that inmates initially attempt to resolve grievances informally by “submitting a Request to Staff Member Form to the appropriate supervisor/staff within eight (8) working days of the incident” (id. ¶ 13.2). Informal resolution is not required, however, when “the matter involves allegations of criminal activity” (id.). With respect to criminal activity complaints, the inmate must file Form 10-5, Step 1 grievance within five working days of the alleged incident (id.) The Inmate Grievance System provides:

Any grievance which alleges criminal activity will be referred immediately to the Chief/designee, Inmate Grievance Branch. The IGC will note on the grievance tracking CRT screen that the grievance has been forwarded to the Inmate Grievance Branch for possible investigation by the Division of Investigations and the date on which the grievance was forwarded. The Chief/Designee, Inmate Grievance Branch, will consult with the Division of Investigations to determine if a criminal investigation would be appropriate. If deemed appropriate, the grievance will be forwarded to the Division of Investigations, to be handled in accordance with applicable SCDC policies/procedures. The grievance will be held in abeyance until the Division of Investigations completes their review/investigation.

(id. ¶ 15). If it is determined that a criminal investigation is not required, the grievance will be processed in accordance with the procedures applicable to non-criminal activity grievances (id.).

         If an inmate files a Step 1 grievance that does not involve criminal activity, the Warden is required to respond in writing within 45 days and advise the inmate of his right to appeal to the next level:

The Warden will respond to the grievant in writing (in the space provided on SCDC Form 10-5, Step 1), indicating in detail the rationale for the decision rendered and any recommended remedies. The grievant will also be informed of his/her rights to appeal to the next level. The Warden will respond to the grievant no later than 45 days from the date the grievance was formally entered into the OMS system by the IGC. The response will be served by the IGC to the grievant, within ten (10) calendar days, and the grievant will sign and date the response acknowledging receipt. The IGC will maintain the original grievance for the inmate's grievance file and a copy will be given to the inmate.

(Id. ¶ 13.5).

         The inmate may then appeal by filing a Form 10.5(a), Step 2 appeal to the Inmate Grievance Coordinator within five days of the receipt of the response (id. ¬∂ 13.7). The appeal is referred to the ‚Äúresponsible ...

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