United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
James Rose, a self-represented state prisoner, filed this
civil rights action against the named defendants pursuant to
42 U.S.C. § 1983. This matter is before the court
pursuant to 28 U.S.C. § 636(b) and Local Civil Rule
73.02(B)(2) (D.S.C.) for a Report and Recommendation on the
parties' cross motions for motion for summary judgment.
(ECF Nos. 113 & 116.) Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
advised Rose of the summary judgment and dismissal procedures
and the possible consequences if he failed to respond
adequately to the defendants' motion. (ECF No. 118.) Both
parties filed a response in opposition. (ECF Nos. 122 &
129.) Having reviewed the parties' submissions and the
applicable law, the court concludes that Rose's claims
should be dismissed for failure to exhaust his administrative
action arises out of two incidents: (1) a November 4, 2016
incident where several of the defendant corrections officers
allegedly used chemical munitions on Rose and his cellmate,
resulting in Rose being removed from the cell via a forced
cell movement team; and (2) a May 19, 2017 incident during
which Defendant Clark allegedly used chemical munitions on
Rose and gave the directive for Rose to be forcibly removed
from his cell. Rose seeks monetary damages.
Summary Judgment Standard
judgment is appropriate only if the moving party “shows
that there is no genuine dispute as to any material fact and
the [moving party] is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A party may support or refute
that a material fact is not disputed by “citing to
particular parts of materials in the record” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of
summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
deciding whether there is a genuine issue of material fact,
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.
moving party has the burden of proving that summary judgment
is appropriate. Once the moving party makes this showing,
however, the opposing party may not rest upon mere
allegations or denials, but rather must, by affidavits or
other means permitted by the Rule, set forth specific facts
showing that there is a genuine issue for trial. See
Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477
U.S. at 322. Further, while the federal court is charged with
liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially
meritorious case, see, e.g., Cruz v.
Beto, 405 U.S. 319 (1972), the requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleadings to allege facts which set forth a
federal claim, nor can the court assume the existence of a
genuine issue of material fact where none exists. Weller
v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir.
Defendants' Motion-Exhaustion of Administrative
defendants argue that Rose failed to exhaust his
administrative remedies with regard to his claims. A prisoner
must exhaust his administrative remedies as required by the
Prison Litigation Reform Act (“PLRA”),
specifically 42 U.S.C. § 1997e(a). Section 1997e(a)
provides that “[n]o 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.” This requirement “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). Moreover, exhaustion
is required even when a prisoner seeks remedies, such as
money damages, that are not available in the administrative
proceedings. See Booth v. Churner, 532 U.S. 731,
740-41 (2001). Generally, to satisfy this requirement, a
plaintiff must avail himself of every level of available
administrative review. See generally id.; but
see Ross v. Blake, 136 S.Ct. 1850 (2016) (describing
limited circumstances where exhaustion may be excused). Those
remedies neither need to meet federal standards, nor are they
required to be plain, speedy, and effective. Porter,
534 U.S. at 524 (quoting Booth, 532 U.S. at 739).
Satisfaction of the exhaustion requirement requires
“using all steps that the agency holds out, and doing
so properly.” Woodford v. Ngo, 548
U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286
F.3d 1022, 1024 (7th Cir. 2002)). Thus, “it is the
prison's requirements, and not the [Prison Litigation
Reform Act], that define the boundaries of proper
exhaustion.” Jones v. Bock, 549 U.S. 199, 218
(2007). The defendants have the burden of establishing that a
plaintiff failed to exhaust his administrative remedies.
See Custis v. Davis, 851 F.3d 358, 361 (4th Cir.
2017) (quoting Moore v. Bennette, 517 F.3d 717, 725
(4th Cir. 2008)).
to South Carolina Department of Corrections
(“SCDC”) policy, an inmate seeking to complain of
prison conditions generally must first attempt to informally
resolve his complaint. Next, an inmate may file a “Step
1 Grievance” with designated prison staff. If the Step
1 Grievance is denied, the inmate may appeal to the warden of
his facility via a “Step 2 Grievance.” Moreover,
subject to certain exceptions not applicable here, review
from the South Carolina Administrative Law Court
(“ALC”), a state executive-branch tribunal, is
generally part of the available administrative remedies an
inmate must exhaust. S.C. Code Ann. § 1-23-500
(“There is created the South Carolina Administrative
Law Court, which is an agency and court of record within the
executive branch of the government of this
State.”) (emphasis added); see Furtick v. S.C.
Dep't of Corr., 649 S.E.2d 35, 38 (S.C. 2007)
(reaffirming that “the ALC has jurisdiction over all
inmate grievance appeals that have been properly
filed”) (citing Slezak v. S.C. Dep't of
Corr., 605 S.E.2d 506 (S.C. 2004)).
defendants, through affidavit testimony provided by Sherman
Anderson, Chief Inmate Grievance Branch Coordinator, assert
that with regard to the November 4, 2016 incident Rose timely
filed a Step 1 grievance form. (Anderson Aff. ¶ 2, ECF No.
116-25 at 1-2; see also Step 1 Grievance, ECF No.
116-7 at 2.) This grievance was returned on November 30, 2016
because Rose had attempted to grieve multiple issues.
(See Step 1 Grievance Response, ECF No. 116-8 at 2.)
Rose was instructed and given the opportunity to refile each
of his issues on a separate grievance form by December 5,
2016. (Id.) It is clear from the record presented
that Rose did not timely comply with this directive, although
he did submit a Step 1 grievance on December 9, 2016 in which
he complains about the alleged assault on November 4, 2016.
(See Step 1 Grievance, ECF No. 116-10 at 2.) Rather
than dismissing Rose's grievance as untimely, the inmate
grievance coordinator forwarded Rose's grievance to the
Inmate Grievance Branch for review by the Office of Inspector
General Division of Police Services (“OIGPS”) due
to the allegations made in the grievance. (Id.)
According to SCDC's records, this investigation remains
pending with the Division of Police Services. (ECF No. 116-9
regard to the May 19, 2017 incident, the defendants argue
that Rose failed to timely file any Step 1 grievance.
Attached to his Complaint, Rose submits a copy of a Step 1
grievance dated June 30, 2017 in which he grieves the May 19,
2017 incident and states that he is not satisfied with the
kiosk response he received nine days prior. (Step 1
Grievance, ECF No. 1-1 at 22.) This grievance was not
dismissed or returned as untimely; rather, the inmate
grievance coordinator again forwarded it to the Inmate
Grievance Branch on June 30, 2017 for review by the OIGPS due
to the allegations ...