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Pronin v. Wright

United States District Court, D. South Carolina

April 2, 2019

Dmitry Pronin, Plaintiff,
v.
Charles Wright; Neal Urch; and L. Blackwell, Defendants.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Dmitry Pronin (“Plaintiff”), proceeding pro se, filed this amended complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights while housed at the Spartanburg County Detention Center (“SCDC”).[1] This matter is before the court on Defendants' Motion for Summary Judgment filed on September 28, 2018. ECF No. 174. As Plaintiff is proceeding pro se, the court entered a Roseboro[2] order on September 28, 2018, advising Plaintiff of the importance of such motions and of the need for him to file an adequate response. ECF No. 175. After being granted an extension, Plaintiff filed a Response to the Motion on November 1, 2018. ECF No. 183. This motion having been fully briefed ECF Nos. 184, 185, it is ripe for disposition.

         This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d) and (e), D.S.C. Because this motion is dispositive, a Report and Recommendation is entered for the court's review. For the reasons that follow, the undersigned recommends Defendants' Motion for Summary Judgment be granted.

         I. Factual and Procedural Background

         Plaintiff claims he experienced severe undernourishment while he was housed at SCDC from June 27 to August 22, 2016. ECF No. 92 at 2; ECF No. 174-2 at 7-8. Plaintiff states he was served three food trays daily but claims the trays' total calories were less than 2000 calories, which is the bare minimum and national standard. ECF No. 92 at 2. Plaintiff contends he normally weighs 165 pounds, but he weighed approximately 138 pounds while at SCDC. Id.

         II. Standard of Review

         The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         In considering a motion for summary judgment, 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. 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 that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         III. Analysis

         A. Failure to Exhaust

         Defendants argue Plaintiff's amended complaint should be dismissed because he failed to exhaust his administrative remedies before filing this action. ECF No. 174-1 at 10-11. 42 U.S.C. Section 1997e 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). To satisfy this requirement, a plaintiff must avail himself of all available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies “need not meet federal standards, nor must they 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 PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, ‘[d]efendants may . . . be estopped from raising non-exhaustion as an affirmative defense when prison officials inhibit an inmate's ability to utilize grievance procedures.'” Stenhouse v. Hughes, C/A No. 9:04-23150-HMH-BHH, 2006 WL 752876, at *2 (D.S.C. Mar. 21, 2006) (quoting Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004)).

         Defendants argue Plaintiff filed one grievance regarding the food at SCDC, and multiple grievances demanding Ensure, but he did not appeal any of the findings of the Director/Major/Designee or medical department as required by SCDC's grievance system. ECF No. 174-1 at 11. Accordingly, Defendants contend Plaintiff's Complaint should be dismissed. Id.

         In response, Plaintiff argues SCDC does not have appeal forms or provide instructions on how to file an appeal. ECF Nos. 183 at 3. Plaintiff attests he asked several SCDC employees about the appeal process and no one could describe the process or tell him how to obtain appeal forms. ECF No. 183-3 at 3-7. In reply, Defendants state SCDC's grievance ...


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