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Miller v. Manning

United States District Court, D. South Carolina, Greenville Division

July 3, 2019

Clarence Scott Miller, Plaintiff,
v.
Officer Manning, Defendant.

          REPORT OF MAGISTRATE JUDGE

          Kevin F. McDonald Greenville, United States Magistrate Judge.

         This matter is before the court on the defendant's motion for summary judgment for failure to exhaust administrative remedies (doc. 66). The plaintiff filed this action pursuant to Title 42, United States Code, Section 1983, alleging that the defendant violated his constitutional rights. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.

         ALLEGATIONS AND PROCEDURAL HISTORY

         The plaintiff is a state prisoner, formerly housed in Evans Correctional Institution (“Evans”), part of the South Carolina Department of Corrections (“SCDC”). He alleges that on July 16, 2015, he attempted to pass through an “electrical sliding door” in the prison. Officer Manning was operating the door and closed it too quickly, causing the plaintiff's body to be “shut in the entrance of the door” (doc. 1, p. 4). As the plaintiff tried to exit the door, Officer Manning continued to close it, causing the plaintiff injuries to his gallbladder and back and pain that continues to affect him (id., pp. 4-5). In his complaint, drafted and filed prior to the plaintiff securing counsel, [1] the plaintiff sets forth a section entitled “Exhaustion of Legal Remedies” (id., pp. 5-6). Here he alleges that he used the prisoner grievance procedure available at Evans to “solve the problem.” Attached to the complaint is a Step 1 grievance form dated August 28, 2015 (received August 31, 2015), in which the plaintiff describes the incident, states he was injured, and requests medical attention and monetary damages. He also states that he “wrote Warden Sellers on Kiosk Machine” (doc. 1-4). The form contains an undated response from the Inmate Grievance Coordinator (“IGC”): “The proper procedure to see medical is to sign up for sick call. If you wish to see an outside doctor, write HCA Smith to get the outside medical care forms” (id.). The plaintiff alleges that the response did not include a Step 2 appeal form and that the IGC did not give him a chance to appeal (doc. 1 at 6).

         The defendant answered, denying the plaintiff's the allegations, including and specifically those in the “Exhaustion of Legal Remedies” section of the complaint (doc. 42, ¶ 1, ¶ 4d). The answer does not raise a stand-alone affirmative defense of exhaustion of administrative remedies.

         On November 15, 2018, the plaintiff was deposed by defense counsel. The plaintiff provided sworn testimony that he began the grievance process by using the prison kiosk machine within 15 days of the incident to “do an inmate resolution” (doc. 68-1, p. 34). He states that he wrote “the warden, the head of security...and I let her know what went on” (id., p. 34). He further testified that he waited until filing his Step 1 grievance form “because you have to...give the supervisor, the warden, when you file this on the kiosk machine..., you have to give him a chance to respond” (id., p. 36). When asked about filing a Step 2 grievance, the plaintiff testified repeatedly that he was not provided with the form despite requesting it “several times” (id., pp. 29, 31-33), stating finally that the responding officer “wouldn't give me the Step 2 grievance form to file it” (id., p. 37).

         On January 11, 2019, at their joint request, counsel participated in an informal telephone conference with the undersigned. As a result, the following text order was entered:

At the request of counsel an informal telephone conference was held today with the undersigned. With the consent of counsel, the amended scheduling order is hereby stayed. Counsel requests that the issue of exhaustion be considered by the Court prior to proceeding with this case. Accordingly, the defendant is ordered to submit a dispositive motion on the issue of exhaustion on or before January 25, 2019, and the plaintiff shall file any response on or before February 8, 2019. IT IS SO ORDERED.

(Doc. 64). In compliance with the text order, the defendant timely filed a motion for summary judgment on the sole issue of exhaustion (doc. 66), to which the plaintiff filed a response in opposition (doc. 68). The defendant thereafter filed a reply (doc. 70).

         With his motion for summary judgment, the defendant provides relevant SCDC records and the affidavit of Sherman L. Anderson, Chief of the Inmate Grievance Branch of SCDC's Office of General Counsel (doc. 66-2). Mr. Anderson testified that the records show that the plaintiff failed to complete the grievance process, as the plaintiff (1) untimely filed an Automated Request to Staff Member Form (“ARTSM”) from the kiosk on July 28, 2015, which was beyond the eight working days deadline to report the July 16th incident, and (2) failed to file a Step 2 grievance form after his Step 1 grievance forms[2] were returned (id., ¶¶ 15-18).

         In his response in opposition to summary judgment (doc. 68), the plaintiff argues that the defendant failed to raise exhaustion as an affirmative defense in his answer, and is therefore barred from raising it now. He also argues that his efforts to exhaust were frustrated by SCDC officials, so his failure to exhaust should be excused and his case here allowed to go forward (doc. 68).

         The defendant filed a reply (doc. 70) countering that his failure to raise exhaustion as a stand-alone affirmative defense in his answer should not act as a waiver to prevent him from raising it now, and that the SCDC officials at Evans did not frustrate the plaintiff's efforts to exhaust his administrative remedies.

         APPLICABLE LAW AND ANALYSIS

         Summary Judgment Standard

         Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “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 judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue ...


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