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Rose v. Rockefeller

United States District Court, D. South Carolina

January 28, 2019

James Rose, Plaintiff,
v.
Andrew Rockefeller; William Cline; Wellington Williams; Albert Mack; Timmothy Clark; and Von Mutius, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 remedies.

         BACKGROUND

         This 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.

         DISCUSSION

         A. Summary Judgment Standard

         Summary 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).

         In 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.

         The 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. 1990).

         B. Defendants' Motion-Exhaustion of Administrative Remedies

         The 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)).

         Pursuant 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)).

         The 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.[1] (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.[2] (Id.) According to SCDC's records, this investigation remains pending with the Division of Police Services. (ECF No. 116-9 at 4.)

         With 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 ...


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