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Butler v. Bessinger

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

January 14, 2019

Lavadre Butler, #337779, Plaintiff,
Trevor Bessinger, Lisa Young, Gregory Washington, Mr. Esterline, Mr. Suarez, Mr. Braddy, Mr. Shorter, Mr. Williams, Defendants.


          Richard Mark Gergel United States District Court Judge

         Before 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.

         I. Background

         Plaintiff 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.

         II. Legal Standard

         A. Review of R&R

         The 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." Id.

         B. Motion for Summary Judgment

         Summary 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)).

         III. Discussion

         After 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.

         Defendants 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).

         The 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).

         Here, 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 ...

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