United States District Court, D. South Carolina, Orangeburg Division
Bobby C. Jenkins, Plaintiff,
Eric S. Hooper, Defendant.
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. 67) recommending
the Court grant Defendant Eric S. Hooper's motion for
summary judgment (Dkt. No. 48). For the reasons set forth
below, the Court adopts the R & R as the order of the
Court, and the Court grants the Defendant's motion for
Court adopts the relevant facts as outlined in the R & R.
(Dkt. No. 67 at 2 - 5.) In brief, Plaintiff argues that on
March 1, 2016, while waiting to be taken to a meal, Officer
McCall and Defendant Hooper, an officer and counselor
respectively at Evans Correctional Institution
("ECI") where Plaintiff was incarcerated at the
time,  ordered a shakedown of his cell. Plaintiff
was ordered to place his hands on the wall to be frisked and
Defendants decided to handcuff Plaintiff. Plaintiff then took
his hands off the wall and refused to be handcuffed, arguing
he feared for his safety if he was handcuffed and he could be
attacked for being a Muslim, as had allegedly happened to
other inmates. Plaintiff tried to leave the cell and
Defendant Hooper grabbed Plaintiff to handcuff him and, as
Plaintiff was attempting to leave his cell, Defendant sprayed
mace in Plaintiffs face. Defendant Hooper and Plaintiff then
allegedly got into a fight, where Defendant Hooper sprayed
Plaintiff and hit Plaintiff. During the fight, Defendant
Hooper slipped on the mace, pulled Plaintiff down as he was
falling, and Defendant Hooper sustained serious injuries.
Plaintiff also alleges that a Captain who ultimately took him
to lock-up refused to let Plaintiff wash his eyes.
Hooper filed a motion for summary judgment. (Dkt. No. 48.)
Plaintiff opposed the motion. (Dkt. No. 65.) On February 7,
2019, the Magistrate Judge issued an R & R which
recommended granting Defendant's motion. (Dkt. No. 67.)
Plaintiff has not filed objections.
Report and Recommendation
Magistrate Judge makes only a recommendation to this Court
that has no presumptive weight. The responsibility to make a
final determination remains with the Court. See 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). This Court must make
a de novo determination of those portions of the R
& R Plaintiff specifically objects. Fed.R.Civ.P.
72(b)(2). Where Plaintiff fails to file any specific
objections, "a district court need not conduct a de
novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation." Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (internal quotation omitted). "Moreover, in the
absence of specific objections to the R & R, the Court
need not give any explanation for adopting the
recommendation." Wilson v. S.C. Deptof Corr.,
'No. 9:14-CV-4365-RMG, 2015 WL 1124701, at *1
(D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718
F.2d 198, 200 (4th Cir. 1983). Plaintiff has not filed
prevail on a motion for summary judgment, the movant must
demonstrate that there is no genuine issue of any material
fact and that the movant is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). The party seeking summary
judgment has the burden of identifying the portions of the
"pleadings, depositions, answers to interrogatories, any
admissions on file, together with the affidavits, if any,
which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The Court will construe all inferences and
ambiguities against the movant and in favor of the non-moving
party. US. v. Diebold, Inc., 369 U.S. 654, 655
(1962). The existence of a mere scintilla of evidence in
support of the non-moving party's position is
insufficient to withstand a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). However, an issue of material fact is genuine if the
evidence is such that a reasonable jury could return a
verdict in favor of the non-movant. Id. at 257.
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with "specific
facts showing that there is a genuine issue for trial."
Id. at 587. "Where the record taken as a whole
could not lead a rational trier of fact to find for the
non-moving party, there is no 'genuine issue for
trial.'" Id. quoting First Nat 7 Bank
of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
begin with, as the Magistrate Judge correctly noted,
Plaintiff has not exhausted his claim against Defendant
Hooper, and therefore Defendant Hooper is entitled to summary
judgment. The Prison Litigation Reform Act ("PLRA")
mandates that an inmate exhaust "such administrative
remedies as are available" before bringing suit under
§ 1983. 42 U.S.C. § 1997e(a). It is the
defendant's burden to establish that a plaintiff failed
to exhaust his administrative remedies. See Wilcox v.
Brown, 877 F.3d 161, 167 (4th Cir. 2017). The
administrative remedies are dictated by the prison. See
Jones v. Bock, 549 U.S. 199, 218 (2007). Defendant
Hooper presented uncontroverted evidence that, pursuant to
South Carolina Department of Corrections policy, an inmate
has only exhausted his administrative remedies when he filed
a Form 10-5 Step 1 grievance, and then a Form 10-5a Step 2
grievance. Before filing a Step 1 grievance, an inmate must
first attempt an informal resolution of the issue by
submitting a Request to Staff Member Form ("RTSM")
within eight working days of the incident. Once a Step 1
grievance is filed, the Warden must respond in writing and,
if the inmate is not satisfied, the inmate may appeal the
decision in a Step 2 grievance. (Dkt. No. 48-6 at
¶¶ 5 - 11, South Carolina Dept. of Corrections,
Inmate Grievance System, GA-01.12, May 12, 2014,
available at http://www.doc.sc.gov/policy/GA-01
-12.html553119234319.pdf (last accessed, March 21, 2019).)
the uncontroverted record shows that Plaintiff failed to
exhaust his administrative remedies. As the Magistrate Judge
ably found, out of the eighteen grievances Plaintiff filed
between March 1, 2016 and July 1, 2016, Plaintiff filed no
grievance regarding Defendant Hooper using excessive force.
Further, even if one grievance, number ECI-229-16, could be
construed to allege excessive force, Plaintiff never filed a
Step 2 grievance appealing the warden's decision and
instead marked and signed that he "accept[s]" the
Warden's decision and "consider[s] the matter
closed." (Dkt. No. ...