United States District Court, D. South Carolina, Greenville Division
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.
ORDER AND REPORT OF MAGISTRATE JUDGE
F. McDonald United States Magistrate Judge
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.
ALLEGATIONS AND PROCEDURAL HISTORY
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).
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).
APPLICABLE LAW AND ANALYSIS
Motion for Summary Judgment for Failure to Exhaust
Standard of Review
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,
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.
Exhaustion of Administrative Remedies
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.
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).
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.).
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).
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 “responsible