United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
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”). 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 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.
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.
Factual and Procedural Background
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.
Standard of Review
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).
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).
Failure to Exhaust
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).
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)).
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.
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 ...