United States District Court, D. South Carolina, Orangeburg Division
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Gerald Damone Hopper, an inmate currently incarcerated in the
Gaston County, N.C. Detention Center, filed this 42 U.S.C.
§ 1983 action alleging that Defendants violated his
constitutional rights. This matter is before the court on
Defendants' Mark S. Inch, Ian Connors, and J.A.
Keller's Motion to Dismiss under Fed.R.Civ.P. 12(b)(2)
for lack of personal jurisdiction. ECF No. 50. This matter is
also before the court on the Motion for Summary Judgment
filed by Defendants Regina D. Bradley, Ian Connors, D.
Garcia, Mark S. Inch, Hector Joyner, J. A. Keller, R.
Lepiane, Jade Lloyd, Richard Perkins, William P. Barr, FCI
Estill, Federal Bureau of Prisons (“BOP”), and SE
Regional Office (collectively “Defendants”) on
December 3, 2018. ECF No. 59.As Plaintiff is proceeding pro se,
the court entered Roseboro orders related to the
Motion to Dismiss and the Motion for Summary Judgment on
October 19, 2018 and December 19, 2018 respectively. ECF Nos.
52, 62. In the Roseboro Orders the court advised
Plaintiff of the importance of such motions and of the need
for him to file an adequate response. Id. Plaintiff
responded to Defendants' Motion for Summary Judgment on
December 19, 2018. ECF No. 66. Defendants did not file a
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 Defendants' motion
to dismiss and summary judgment motions are dispositive, a
Report and Recommendation is entered for the court's
filed his Complaint on April 26, 2018. ECF No. 1. Plaintiff
alleges that Defendants have violated the Eighth Amendment by
“implement[ing] a custom and policy that den[ies]
inmates treatment for the Hepatitis C Virus” that he
contends he contracted while incarcerated at FCI Estill in or
around 2010. ECF No. 1 at 4, 6.
Plaintiff alleges that he first reported that he was
experiencing “severe and excruciating stomach
pains” while he was incarcerated at FCI Estill in 2010.
ECF No. 1-1 at 2-3. Plaintiff alleges that in 2014, while
incarcerated at FCI Hazelton, he was informed that he had the
Hepatitis C Virus (“HCV”) and had had it since
2011. ECF No. 1-1 at 3.
alleges that since his HCV diagnosis, he frequently requested
treatment at both FCI Hazelton and when he returned to FCI
Estill. ECF No. 1-1 at 4. Plaintiff alleges that Defendants
denied his requests for treatment. ECF No. 1-1 at 4-7. In a
supplement to his Complaint, Plaintiff alleges the Defendants
“exposed, and infected Plaintiff with the HCV, thereby
showing deliberate indifference to a substantial risk of
serious harm to Plaintiff's health.” ECF No. 1-3 at
seeks declaratory relief, injunctive relief, compensatory
damages, and punitive damages. ECF No. 1 at 6; ECF No. 1-1 at
Pro Se Review
complaints are held to a less stringent standard than those
drafted by attorneys, Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978), and a federal district court is
charged with liberally construing a complaint filed by a pro
se litigant to allow the development of a potentially
meritorious case. Erickson v. Pardus, 551 U.S. 89,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). When a federal court
is evaluating a pro se complaint, the plaintiff's
allegations are assumed to be true. De'Lonta v.
Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). The
mandated liberal construction afforded to pro se pleadings
means that if the court can reasonably read the pleadings to
state a valid claim on which the plaintiff could prevail, it
should do so; however, a district court may not rewrite a
complaint to include claims that were never presented,
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999), construct the plaintiff's legal arguments for him,
Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir.
1993), or “conjure up questions never squarely
presented” to the court, Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Rule 12(b)(1) motion challenge is raised to the factual basis
for subject-matter jurisdiction, the burden of proving
subject matter jurisdiction is on the plaintiff. Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In
determining whether jurisdiction exists, the district court
is to regard the pleadings' allegations as mere evidence
on the issue and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment. Id.; Trentacosta v. Frontier Pacific
Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987).
The district court should apply the standard applicable to a
motion for summary judgment, under which the nonmoving party
must set forth specific facts beyond the pleadings to show
that a genuine issue of material fact exists.
Trentacosta, 813 F.2d at 1559 (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
“The moving party should prevail only if the material
jurisdictional facts are not in dispute and the moving party
is entitled to prevail as a matter of law.”
Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991) (citing
Trentacosta, 813 F.2d at 1558).
court's personal jurisdiction is challenged, the burden
is on the plaintiff to establish that a ground for
jurisdiction exists. Combs v. Bakker, 886 F.2d 673,
676 (4th Cir. 1989). When the court resolves the motion on
written submissions (as opposed to an evidentiary hearing),
the plaintiff need only make a “prima facie showing of
a sufficient jurisdictional basis.” Id.
However, the plaintiff's showing “must be based on
specific facts set forth in the record . . . .”
Magic Toyota, Inc. v. Se. Toyota Distribs., Inc.,
784 F.Supp. 306, 310 (D.S.C. 1992). The court may consider
the parties' pleadings, affidavits, and other supporting
documents but must construe them “in the light most
favorable to plaintiff, drawing all inferences and resolving
all factual disputes in his favor, and assuming
plaintiff's credibility.” Sonoco Prods. Co. v.
ACE INA Ins., 877 F.Supp.2d 398, 404-05 (D.S.C. 2012)
(internal quotation and alteration marks omitted); see
also Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs.,
Inc., 334 F.3d 390, 396 (4th Cir. 2003) (“In
deciding whether the plaintiff has made the requisite
showing, the court must take all disputed facts and
reasonable inferences in favor of the plaintiff”).
However, a court considering the issue of personal
jurisdiction “need not credit conclusory allegations or
draw farfetched inferences.” Sonoco, 877
F.Supp.2d at 205 (internal quotation marks omitted).
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief
that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In construing a
motion to dismiss, the facts, though not the legal
conclusions, alleged in a plaintiff's complaint must be
taken as true. Iqbal, 556 U.S. at 678. A complaint
should survive a motion to dismiss under Rule 12(b)(6) for
failure to state a claim only when a plaintiff has set forth
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level” and beyond
the level that is merely conceivable. Id. at 555.
However, a court is not required “to accept as true a
legal conclusion couched as a factual allegation, ”
Papasan v. Allain, 478 U.S. 265, 286 (1986), or a
legal conclusion unsupported by factual allegations.
Iqbal, 556 U.S. at 679. Dismissal is appropriate
when a complaint contains a description of underlying facts
that fails to state a viable claim. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Twombly, 550
U.S. at 558.
Fed.R.Civ.P. 56: Summary Judgment
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.
party seeking summary judgment shoulders the initial burden
of demonstrating to the court that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the movant has made this threshold
demonstration, the non-moving party, to survive the motion
for summary judgment, may not rest on the allegations averred
in his pleadings. Id. at 324. Rather, the non-moving
party must demonstrate specific, material facts exist that
give rise to a genuine issue. Id. Under this
standard, the existence of a mere scintilla of evidence in
support of the non-movant's position is insufficient to
withstand the summary judgment motion. Anderson, 477
U.S. at 251. Likewise, conclusory allegations or denials,
without more, are insufficient to preclude granting the
summary judgment motion. Ross v. Commc'ns Satellite
Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled
on other grounds, 490 U.S. 228 (1989).
Exhaustion of Administrative Remedies
their Motion for Summary Judgment, which cites to Federal
Rules of Civil Procedure 12(b)(1), (2), and (6), the
Defendants address the issue of exhaustion of administrative
remedies related to claims arising from Plaintiff's
incarceration at FCI Estill, FCI McDowell, and FCI Hazelton.
ECF No. 59 at 6-11. Defendants state that Plaintiff has
exhausted his Administrative remedies arising out of his
request to be treated for his HCV condition. ECF No. 59 at 6.
But they argue that Plaintiff has neither filed grievances
nor exhausted his remedies arising out of the manner in which
he contracted HCV while in BOP custody. Id. They
also assert that he has not filed an Administrative Remedy
Request related to alleged discrimination against him because
of his HCV nor did he file a separate claim under the
Rehabilitation Act (“RA”). Id. at 6-7.
Plaintiff, on the other hand, alleges that he exhausted his
administrative remedies related to his treatment for HCV. ECF
No. 1-1 at 4-7; see generally ECF No. 59-12. In his
Response to Defendants' 12(b)(6) Motion to Dismiss,
Plaintiff contends that he exhausted all of his remedies. ECF
No. 56 at 4. At the same time, Plaintiff does not respond to
Defendants' arguments about exhaustion in their Motion
for Summary Judgment. See ECF No. 66.
PLRA Exhaustion of Bivens Claims
the Prison Litigation Reform Act of 1995
(“PLRA”), prisoners must exhaust “such
administrative remedies as are available” before filing
suit in federal court challenging prison conditions.
Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)
(quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's
exhaustion requirement is mandatory, ” Anderson v.
XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th
Cir. 2005), and “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 (2002). Furthermore, pursuant to § 1997e(a),
the exhaustion requirement is applicable to Bivens
claims. See Steele v. Fed. Bureau of Prisons, 355
F.3d 1204, 1214 (10th Cir. 2003), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199 (2007).
to exhaust administrative remedies is an affirmative defense
the defendant must plead and prove; it is not a pleading
requirement for the prisoner-plaintiff. Jones v.
Bock, 549 U.S. 199, 212, 216-17 (2007); see Anderson
v. XYZ Corr. Health Serv., 407 F.3d at 681 (holding that
failure to exhaust is an affirmative defense which a
defendant must plead and prove). Furthermore, the defendant
must prove that the prisoner-plaintiff failed to exhaust each
of his claims. There is no “total exhaustion”
rule permitting dismissal of an entire action because of one
unexhausted claim. Jones, 549 U.S. at 220-24.
Exhaustion is a non-jurisdictional prerequisite. See
Woodford v. Ngo, 548 U.S. 81, 101 (2006). That is not to
say, however, that the nature of a jurisdictional assessment,
as a threshold inquiry, cannot provide guidance in an
exhaustion inquiry. See Dillon v. Rogers, 596 F.3d
260, 272 (5th Cir. 2010) (“Exhaustion resembles
personal jurisdiction and venue in that it is an affirmative
defense that allows defendants to assert that plaintiffs have
not invoked the proper forum for resolving a
dispute.”); Bryant v. Rich, 530 F.3d 1368,
1374 (11th Cir. 2008) (“Even though a
failure-to-exhaust defense is non-jurisdictional, it is like
a defense for lack of jurisdiction in one important sense:
Exhaustion of administrative remedies is a ‘matter[ ]
in abatement, and ordinarily [does] not deal with the
merits.'” (quoting 5C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 1360 at 78 n. 15 (3d ed. 2004) (alterations in
original))); see also 18 James Wm. Moore,
Moore's Federal Practice § 131.30(3)(b) at
104 (3rd ed. 2008) (noting that a determination “that
[a court] has no subject matter jurisdiction, that personal
jurisdiction of defendants or of indispensable parties is
lacking, that venue is improper, or that plaintiff has failed
to comply with some prerequisite to filing suit, such as
exhaustion of administrative remedies . . . is not a
determination of the claim, but rather a refusal to hear
it.”). Exhaustion is a precondition to filing suit in
federal court. See Moore, 517 F.3d at 725
(“prisoners must exhaust . . . prior to filing suit in
federal court”). Accordingly, courts have held that
“prisoner[s], therefore, may not exhaust administrative
remedies during the pendency of the federal suit.”
Green v. Rubenstein, 644 F.Supp.2d 723, 743 (S.D.
W.Va. 2009) (quoting Freeman v. Francis,
196 F.3d 641, 645 (6th Cir. 1999)); see also Johnson v.
Ozmint, 567 F.Supp.2d 806, 815 (D.S.C. 2008) (similar
on an examination of the record in this case, the undersigned
recommends a finding that Plaintiff has exhausted his
administrative remedies related to his requests for treatment
for his HCV. ECF No. 59-12. However, the undersigned
recommends a finding that to the extent Plaintiff is
asserting a claim related to his contacting HCV while
incarcerated in the BOP, Plaintiff has not exhausted his
administrative remedies for such a claim.
Exhaustion of RA Claims
of Defendants' assertions regarding Plaintiff's
exhaustion of administrative remedies for his RA claim is
distinguishable from consideration of PLRA exhaustion because
it has been held that exhaustion of RA claims is
jurisdictional. See Spinelli v. Goss, 446 F.3d 159,
162 (D.D.C. 2006); see also Williams v. Brennan, 320
F.Supp.2d 122, 129 (D.D.C. 2018) (limiting
Spinelli's jurisdictional analysis to cases
where the claimant did not begin the RA exhaustion process at
all); Howland v. United States Postal Serv., 209
F.Supp.2d 586, 590 (W.D. N.C. 2002); Roach v. Gates,
Nos. 2:07-00136-DCN, 2:07-01574-DCN, 2012 WL 1952680, at *4
(D.S.C. May 30, 2012). As a result, the issue should be
considered under Federal Rule of Civil Procedure 12(b)(1),
which permits the court to rely on outside affidavits and
other documents submitted by the parties. See Evans v. B.
F. Perkins Co., a Div. of Standex Int'l Corp., 166
F.3d 642, 647 (4th Cir. 1999).
undersigned has reviewed the affidavit of D. Martin Hill, a
Supervisory Attorney in the Equal Employment Office
(“EEO”) of the BOP. ECF No. 59-13. Mr. Hill cites
to 28 C.F.R. § 39.170 as the relevant regulation
governing exhaustion of remedies for RA claims within the
Department of Justice; to 49 Fed. Reg. § 35724, at 23
(Sept. 11, 1984) for the proposition that the legislative
history of 28 C.F.R. § 39.170 includes recognition that
the regulation allows “handicapped prisoners . . . the
right to have their complaints investigated by an office that
specializes in discrimination complaints”; and to BOP
Program Statement 3713.24, ch. 12 that establishes the
procedure for federal prisoners to use to exhaust their RA
remedies. ECF No. 59-12 at 1-3. Under Program Statement
3713.24, federal prisoners who believe that they have been
subjected to discrimination covered by the RA must first
complete the BOP administrative process. Then, the prisoner
or his/her representative must file a complaint with the EEO
within 180 days of the “final administrative decision
under the administrative remedy procedure.” Following
submission of a timely complaint, the prisoner must await an
investigation and attempt to informally resolve the claim by
the EEO before remedies will be deemed exhausted. Mr. Hill
states that he reviewed the EEO's database and found no
discrimination complaints from Plaintiff and, therefore, he
opines that Plaintiff “has not exhausted the BOP's
administrative complaint process with the EEO . . . .”
ECF No. 59-13 at 3.
alleges that he exhausted his remedies related to his request
for treatment for his HCV. ECF No. 1-1 at 4. Plaintiff makes
no allegation in his Complaint that he exhausted his RA
Claim. Again, in his Response to Defendants' 12(b)(6)
Motion, Plaintiff argues that he exhausted all of his
administrative remedies. ECF No. 56 at 4. In his Response to
Defendants' Motion for Summary Judgment, Plaintiff does
not address Defendants' argument that he failed to
exhaust his RA claims.
courts within the Fourth Circuit have specifically held that
a federal prisoner seeking to assert an RA claim must first
exhaust the BOP process and then exhaust the DOJ EEO process
before his administrative remedies will be deemed exhausted.
See Collins v. LeMaster, No. 5:15-05576, 2016 WL
675675, at *10 (S.D. West Va. Jan. 25, 2016) (PLRA requires
exhaustion of DOJ EEO process; collecting cases holding that
prisoners asserting RA or ADA claims must fully exhaust PLRA
remedies), report and recommendation adopted, 2016
WL 661590 (S.D. W.Va. Feb. 18, 2016); Zoukis v.
Wilson, No. 1:14cv1041 (LMB/IDD), 2015 WL 4064682, at
*10-11 (E.D. Va. July 2, 2015); see also Elliot v.
Wilson, No. 0:15-cv-01908-JNE-KMM, 2017 WL 1185213, at
*14 (Jan. 17, 2017) ...