United States District Court, D. South Carolina, Florence Division
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. 162) recommending
that the Court grant Defendants' motion for summary
judgment. For the reasons set forth below, the Court declines
to adopt the R & R as the Order of the Court and denies
Defendants' motion for summary judgment.
is a pro se incarcerated person alleging pursuant to
42 U.S.C. § 1983 that Defendants violated his
constitutional rights by using excessive force and being
indifferent to his medical needs while he was confined at the
Broad River Correctional Institution. (Dkt. No. 99.) The
Court previously dismissed without prejudice Plaintiffs
claims against J.C. Wilson pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure. (Dkt. No. 152.) The
remaining Defendants now move for summary judgment. (Dkt. No.
144.) The Court issued a Roseboro Order advising
Plaintiff of summary judgment procedure and the possible
consequences of failing to respond to Defendants' motion.
(Dkt. No. 146.) Plaintiff was granted two extensions to
respond to Defendants' motion and has not filed a
response. Plaintiff filed objections to the R & R.
Review of R&R
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight and the
responsibility to make a final determination remains with the
Court. See, e.g., 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)(C).
Where there are specific objections to the R&R, the Court
"makes a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made."
Motion for Summary Judgment
judgment is appropriate if a party "shows that there is
no genuine dispute as to any material fact" and that the
movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment has the initial burden of demonstrating to
the Court that there is no genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party 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. Id. at 324. Rather, the non-moving
party must demonstrate that specific, material facts exist
that give rise to a genuine issue. Id. Under this
standard, "[c]onclusory or speculative allegations do
not suffice, nor does a 'mere scintilla of
evidence'" in support of the non-moving party's
case. Thompson v. Potomac Elec. Power Co., 312 F.3d
645, 649 (4th Cir. 2002) (quoting Phillips v. CSX
Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
review of the record, including Plaintiffs objections to the
R & R, the Court finds that a reasonable fact finder
could conclude that Plaintiff exhausted his administrative
remedies and, therefore, that Defendants' motion for
summary judgment should be denied.
move for summary judgment on the basis that Plaintiff failed
to satisfy the exhaustion requirement of the Prison
Litigation Reform Act ("PLRA") before bringing
suit. The PLRA mandates that an inmate exhaust "such
administrative remedies as are available" before
bringing suit under § 1983. 42 U.S.C. § l997(e)(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."); see also
Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 677
(4th Cir. 2005). The administrative remedies are dictated by
the prison. See Jones v. Bock, 549 U.S. 199, 218
(2007). A prison grievance procedure is "available"
if it is "capable of use to obtain some relief for the
action complained of." Ross v. Blake, 136 S.Ct.
1850, 1855 (2016).
PLRA, therefore, has a "built-in exception to the
exhaustion requirement: A prisoner need not exhaust remedies
if they are not 'available.'" Ross, 136
S.Ct. at 1855. The prisoner bears the burden of demonstrating
that an administrative remedy is unavailable. See Graham
v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011)
("[I]n order to show that a grievance procedure was not
'available,' a prisoner must adduce facts showing
that he was prevented, through no fault of his own, from
availing himself of that procedure.") (internal citation
omitted). Specifically, an administrative remedy is not
"available"-meaning, the remedy, "although
officially on the books, is not capable of use to obtain
relief-in at least three circumstances. Ross, 136
S.Ct. at 1859. First, "an administrative procedure is
unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end-with
officers unable or consistently unwilling to provide any
relief to aggrieved inmates." Id. Meaning, the
"administrative officials have apparent authority, but
decline ever to exercise it." Id. Second, a
remedy is unavailable where the "administrative scheme
might be so opaque that it becomes, practically speaking,
incapable of use." Id. In other words,
"some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it."
Id. Last, an administrative remedy is not available
"when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation." Id. at
1860. In this situation, "officials might devise
procedural systems (including the blind alleys and quagmires
just discussed) in order to trip up all but the most skillful
prisoners" or threaten the inmate. Id.
(internal quotation marks and citation omitted). Absent such
evidence that the administrative remedy was unavailable,
failure to exhaust the administrative remedies will bar
actions filed under federal law. See Woodford v.
Ngo, 548 U.S. 81 (2006).
Defendants submit the affidavit of Sherman Anderson, the
Chief of Inmate Grievance Branch in the Office of General
Counsel for the South Carolina Department of Corrections
("SCDC"). (Dkt. No. 144-2.) The SCDC employs a
three-step inmate grievance process that culminates in the
inmate appealing a Step 2 Grievance Form response to the
South Carolina Administrative Law Court. Mr. Anderson
reviewed the inmates' grievance records for any
grievances filed related to the November 14, 2014 incident
that Plaintiff alleges resulted in his injury and determined
that: (i) Plaintiff filed a Step 1 Grievance Form on or about
November 19, 2014 alleging he was attacked by an unnamed
prison officer; (ii) the grievance was responded to and
Plaintiff was advised that it was being forwarded to the
Division of Investigations; (iii) on January 14, 2015, the
Step 1 Grievance Form was returned to Plaintiff unprocessed
because it was determined to be a duplicate to issues raised
in his previously filed grievance; and (iv) Plaintiff did not
file a Step 2 Grievance Form regarding the returned form, nor
did he "file any other type of ...