United States District Court, D. South Carolina, Greenville Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
DISMISSING PLAINTIFF'S AMENDED COMPLAINT
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
Wendell Wilkins (Wilkins), proceeding pro se, filed this
action seeking damages against four officials at Lieber
Correctional Institute under 42 U.S.C. § 1983. The
matter is before the Court for review of the Report and
Recommendation (Report) of the United States Magistrate Judge
suggesting Wilkins's Complaint be dismissed without
prejudice and without issuance and service of process. The
Report was made in accordance with 28 U.S.C. § 636 and
Local Civil Rule 73.02 for the District of South Carolina.
Magistrate Judge makes only a recommendation to the Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo
determination of those portions of the Report to which a
specific objection is made, and the Court may accept, reject,
or modify, in whole or in part, the recommendation of the
Magistrate Judge or recommit the matter with instructions. 28
U.S.C. § 636(b)(1). The Court need not conduct a de novo
review, however, “when a party makes general and
conclusory objections that do not direct the court to a
specific error in the [Magistrate Judge's] proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see
Fed. R. Civ. P. 72(b).
Magistrate Judge filed the Report on April 30, 2019. Wilkins
filed his Objections to the Report (Objections) on May 13,
2019. The Court has reviewed the objections but holds them to
be without merit. It will therefore enter judgment
Report, the Magistrate Judge suggests it is evident from the
facts of Wilkins's complaint he failed to exhaust his
administrative remedies prior to filing his lawsuit. Report
at 5. The Magistrate Judge, thus, recommends the Court
dismiss this action. Id.
first two objections raise the same issue and therefore will
be addressed together. Wilkins claims the relevant prison
official was supposed to file a Step 1 complaint on his
behalf, but instead the official had Wilkins file the pending
suit. Although this might address why Wilkins failed to
exhaust the administrative review process, it does not excuse
requires prisoners to exhaust all “administrative
remedies as are available” before filing a § 1983
suit. 42 U.S.C. § 1997e(a). There is only one
non-applicable exception to this requirement. See Ross v.
Blake, 136 S.Ct. 1850, 1856-62, __ U.S. __ (2016)
(holding the only exception to the exhaustion requirement is
if the administrative remedy is unavailable to the inmate).
“A court may sua sponte dismiss a complaint when the
alleged facts in the complaint, taken as true, prove that the
inmate failed to exhaust his administrative remedies.”
Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017).
administrative remedy is considered unavailable when: 1)
“it operates as a simple dead end-with officers unable
or consistently unwilling to provide any relief to aggrieved
inmates, ” 2) the system is so “opaque that it
becomes, practically speaking, incapable of use, ” or
3) “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136
S.Ct. at 1859-60.
failure to file his Step 1 complaint, however reasonable the
reasons, is insufficient to yield the administrative
procedure unavailable. These two objections fail to meet any
of the three criteria for unavailability. Wilkins's
failure to exhaust all administrative remedies prior to his
§ 1983 action is, thus, determinative. The Magistrate
Judge was correct in suggesting the Court dismiss
Wilkins's claim. Accordingly, Wilkins's first two
objections will be overruled.
third and fourth objections likewise can be grouped together
and will be addressed accordingly. Wilkins states he
was-subsequent to his request to the relevant prison
official, but prior to filing this action-transferred to the
Charleston County Detention Center because of new federal
criminal charges, without access to electronic devices, and
therefore was unable to file a Step 1 complaint.
two objections suffer from the same fatal flaw as the first
two objections. It is unclear from Wilkins's objections
why his transfer in detention facilities inhibited his
ability to properly file a Step 1 complaint. Wilkins
transfer, alone, is insufficient to deem the administrative
fails to allege that he was not given an opportunity to file
a Step 1 complaint prior to his transfer. Nor has he provided
sufficient proof the administrative remedy system was
completely unobtainable for him from his new confines. As
established above, excuses-even if reasonable-are
insufficient to evade the exhaustion requirement.
Accordingly, neither objection three nor four are valid and
the Court will overrule them.
thorough review of the Report and the record in this case
pursuant to the standard set forth above, the Court overrules
Wilkins's objections, adopts the Report, and incorporates
it herein. Therefore, it is the judgment of the Court
Wilkins's amended complaint is DISMISSED WITHOUT
PREJUDICE and without issuance and service of
process. Because this dismisses the case in its entirety,
Wilkins motion to appoint counsel is DEEMED