United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
the Court is the Magistrate Judge's report and
recommendation ("R & R") (Dkt. No. 46) that
Defendant's motion for summary judgment for failure to
exhaust administrative remedies (Dkt. No. 36) be granted. For
the reasons set forth below, the Court adopts the R & R
as the Order of the Court and grants Defendant's motion
for summary judgment.
John Ervin Wilson, Jr. is an incarcerated person proceeding
pro se to allege pursuant to 42 U.S.C. § 1983
that Sgt. Johnson violated his First Amendment right by
placing him in the Restricted Housing Unit of Broad River
Correctional Institution in retaliation for filing an
informal resolution of a grievance. (Dkt. No. 1 at 4-5.)
Review of the R & R
Magistrate Judge makes only a recommendation to the Court
that has no presumptive weight and, therefore, 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)(C). In the
absence of objections, the Court reviews the R & R to
"only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation." Fed.R.Civ.P. 72 advisory
committee's note; see also Camby v. Davis,
718F.2d 198, 199(4thCir. 1983) ("In the absence of
objection ... we do not believe that it requires any
explanation."). Where there are specific objections to
the R & R, the Court "makes a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." 28 U.S.C. § 636(b)(1)(C).
Motion for Summary Judgment
judgment is appropriate if the movant "shows that there
is no genuine dispute as to any material fact" and it is
therefore entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). In other words, summary judgment should
be granted "only when it is clear that there is no
dispute concerning either the facts of the controversy or the
inferences to be drawn from those facts." Pulliam
Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). "In determining whether a genuine issue has been
raised, the court must construe all inferences and
ambiguities in favor of the nonmoving party."
HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking
summary judgment has the initial burden of demonstrating that
there is no genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving
party has made this threshold demonstration, the non-moving
party must demonstrate that specific, material facts exist
that give rise to a genuine issue. Id. at 324. Under
this standard, "[c]onclusory or speculative allegations
do not suffice, nor does a 'mere scintilla of
evidence'" in support of the non-moving party's
case. Thompson v. Potomac Elec. Power Co. , 312 F.3d
645, 649 (4th Cir. 2002) (quoting Phillips v. CSX
Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
moves for summary judgment on the basis that Plaintiff failed
to satisfy the exhaustion requirement of the Prison
Litigation Reform Act ("PLRA") before bringing
suit. The PLRA mandates that an inmate exhaust "such
administrative remedies as are available" before
bringing suit under § 1983. 42 U.S.C. § 1997(e)(a)
("No 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."); see also
Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 677
(4th Cir. 2005). The administrative remedies are dictated by
the prison. See Jones v. Bock, 549 U.S. 199, 218
(2007). A prison grievance procedure is "available"
if it is "capable of use to obtain some relief for the
action complained of." Ross v. Blake, 136 S.Ct.
1850, 1855 (2016).
PLRA, therefore, has a "built-in exception to the
exhaustion requirement: A prisoner need not exhaust remedies
if they are not 'available.'" Id. at
1855. The prisoner bears the burden of demonstrating that an
administrative remedy is unavailable. See Graham v.
Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011)
("[I]n order to show that a grievance procedure was not
'available,' a prisoner must adduce facts showing
that he was prevented, through no fault of his own, from
availing himself of that procedure.") (internal citation
omitted). Specifically, an administrative remedy is not
"available"-meaning, the remedy, "although
officially on the books, is not capable of use to obtain
relief-in at least three circumstances. Ross, 136
S.Ct. at 1859. First, "an administrative procedure is
unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end-with
officers unable or consistently unwilling to provide any
relief to aggrieved inmates." Id. Meaning, the
"administrative officials have apparent authority, but
decline ever to exercise it." Id. Second, a
remedy is unavailable where the "administrative scheme
might be so opaque that it becomes, practically speaking,
incapable of use." Id. In other words,
"some mechanism exists to provide relief, but no
ordinary prisoner can discern or navigate it."
Id. Last, an administrative remedy is not available
"when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation." Id. at
1860. In this situation, "officials might devise
procedural systems (including the blind alleys and quagmires
just discussed) in order to trip up all but the most skillful
prisoners" or threaten the inmate. Id.
(internal quotation marks and citation omitted). Absent such
evidence that the administrative remedy was unavailable,
failure to exhaust the administrative remedies will bar
actions filed under federal law. See Woodford v.
Ngo, 548 U.S. 81 (2006).
South Carolina Department of Corrections ("SCDC"),
which encompasses Broad River Correctional Institution,
employs an inmate grievance process that, with limited
exceptions, consists of three steps. First, the inmate must
attempt an informal resolution by submitting a Request to
Staff Form ("RTS Form") within eight working days
of the incident. If the incident involves allegations of
criminal activity, an RTS Form is not required, but the
inmate must file a Form 10-5 Step 1 Grievance within five day
of the alleged criminal activity. Otherwise, within eight
days of receiving a response to the RTS Form, the inmate must
submit a Step 1 Grievance Form that attaches the answered RTS
Form. If the RTS Form is not attached, the Step 1 Grievance
Form will be returned to the inmate, who has five days to
resubmit with the required attachment. Next, if the inmate is
not satisfied with the response to his Step 1 Grievance Form,
he has five days from receiving the response to appeal by
submitting a checked-box on the Step 1 Grievance Form and a
Step 2 Grievance Form. The SCDC's response to the Step 2
Grievance Form is considered the agency's final
determination, which the inmate may appeal to the South
Carolina Administrative Law Court.
review of the record-including the affidavit submitted by Mr.
Sherman Anderson, Chief of Inmate Grievance Branch at SCDC,
and supporting documents submitted by Mr. Anderson and
Plaintiff-the Court finds that the Magistrate Judge correctly
concluded that Defendant is entitled to summary judgment.
Construing the record in a light most favorable to Plaintiff,
a reasonable fact finder could nonetheless find that
Plaintiff failed to exhaust his available administrative
remedies. As the Magistrate Judge detailed, assuming under
the Rule 56 standard that Plaintiff first attempted a
required and timely informal resolution, there remain no
material facts in dispute that Plaintiff did not appeal the
denial of his Step 1 Grievance. Similarly, the record does
not support Plaintiffs contention in opposition to
Defendant's motion that filing a Step 2 Grievance was
unavailable or futile. The Court carefully reviewed
Plaintiffs twenty-page objections to the R & R (Dkt. ...