United States District Court, D. South Carolina, Greenville Division
Timothy M. Cain United States District Judge.
a state prisoner proceeding pro se and in forma
pauperis, filed this action alleging claims of
violations of his constitutional rights pursuant to 42 U.S.C.
§ 1983. In accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02, D.S.C., this action was referred
to a magistrate judge for pretrial handling. Defendants
McCree, Jones, Hatfield, Burdette,  and Young (collectively the
“moving Defendants”) filed a motion to dismiss,
arguing that Plaintiff failed to exhaust his administrative
remedies before initiating this action. (ECF No. 23). The
court entered an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), notifying the
Plaintiff of the dismissal procedure and of the possible
consequences if he failed to respond to the motion. (ECF No.
24). Plaintiff responded to the motion (ECF No. 31), and the
moving Defendants replied (ECF No. 33). Before the court is
the magistrate judge's Report and Recommendation
(“Report”), recommending that the court grant
moving Defendants' motion to dismiss. (ECF No. 60).
Plaintiff was advised of his right to file objections to the
Report. Id. at 9. Plaintiff filed objections (ECF
No. 63), and moving Defendants filed a reply (ECF No. 67).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
magistrate judge provided a detailed account of the facts of
this case. Briefly, Plaintiff is an inmate within the South
Carolina Department of Corrections (“SCDC”). In
his Complaint, Plaintiff alleges that he was injured on the
side of his stomach while he was housed at SCDC's Broad
River Correctional Institution (“BRCI”). (ECF No.
1 at 5-6). He alleges that Lt. Brazzy, a former defendant in
this action, and Defendant Young knew about his injury and
advised him to shower and cover it up. Id. Later, he
states that he showed his wound to Nurse Cooper, another
former defendant in this action, and that she told him to
sign up for sick-call. Id. Plaintiff argues that he
could not get anyone to see him in sick-call. Id.
However, Plaintiff attached a sur-reply to his sick call
request to his Complaint, which includes a response from
medical staff stating that Plaintiff's issue had been
addressed. (ECF Nos. 1-1 at 1; 40-1 at 1). Nonetheless,
Plaintiff alleges that he was later transferred to SCDC's
McCormick Correctional Institution (“MCI”), where
he showed his wound to Nurse Trull, who told him to sign up
for sick-call. (ECF No. 1 at 6). He then saw Nurse Burdette,
who gave Plaintiff gauze and told him to keep the wound
clean. Id. On May 1, Plaintiff saw another nurse and
received a prescription for antibiotic medication and
ibuprofen. Id. However, Plaintiff states that
despite the medication, his wound worsened. Id. He
was seen by Dr. McCree and scheduled for a surgery
consultation. Id. His surgery consultation was
rescheduled once, and then Plaintiff had surgery.
Id. Plaintiff alleges that following his surgery,
the medical staff at MCI did not follow the doctor's
orders and that Defendants Jones and Hatfield refused to
change his dressings when asked. Id. at 7. Plaintiff
further alleges he was not given his proper pain medication
following surgery. Id.
claims he filed a grievance with MCI stating that he was
subjected to cruel and unusual punishment based on the facts
above. Id. at 11. Plaintiff states that his
grievance was denied because he “waited to[o] long to
file on this issue.” Id. Plaintiff attached
the grievance form to his Complaint. (ECF No. 1-1 at 6-7).
The grievance form indicates that it was received on August
22, 2018, and returned to Plaintiff on August 31, 2018.
Id. The Warden's decision indicates that
Plaintiff's grievance was returned because it was
untimely. Id. at 7. The decision indicates that the
Request to Staff Member (“RTSM”) form was
submitted on August 8, 2018, but that the incident Plaintiff
complained of had initiated on April 23, 2018, according to
LAW AND ANALYSIS
moving Defendants argue in their motion to dismiss that
Plaintiff failed to exhaust his administrative remedies as
required under the Prison Litigation Reform Act
(“PLRA”). (ECF No. 23-1 at 3). The magistrate
judge agreed, finding that Plaintiff failed to exhaust his
administrative remedies and that, therefore, Plaintiff's
case was subject to dismissal. (ECF No. 60 at 7). Plaintiff
filed objections to the Report, arguing that he was unable to
appeal the denial of his grievance because the response to
his grievance was mailed and not hand-delivered, and,
therefore, was “extremely slow” getting to him.
(ECF No. 63). In his objections, Plaintiff further contends
that the court should consider the merits of his claims.
PLRA mandates that an inmate exhaust “such
administrative remedies as are available” before
bringing suit under § 1983. 42 U.S.C. § 1997e(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.”). 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). Moreover, exhaustion is required even
when a prisoner seeks remedies, such as money damages, that
are not available in the administrative proceedings. See
Booth v. Churner, 532 U.S. 731, 740-41 (2001). To
satisfy this requirement, a plaintiff must avail himself of
every level of available administrative review, which means
“using all steps that the agency holds out, and doing
so properly.” Woodford v. Ngo, 548 U.S. 81, 91
(2006) (internal quotation marks and citation omitted).
“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
proceedings.” Id. “An inmate's
failure to exhaust administrative remedies is an affirmative
defense to be pleaded and proven by the defendant.”
Anderson v. XYZ Corr. Health Servs., 407 F.3d 674,
683 (4th Cir. 2005).
administrative remedies are dictated by the prison. See
Jones v. Bock, 549 U.S. 199, 218 (2007). In SCDC, an
inmate seeking to complain of prison conditions must first
attempt to informally resolve the complaint within eight
working days of the incident by filing a Request to Staff
Member (“RTSM”) form. SCDC Policy/Procedure,
Inmate Grievance System, GA-01.12 § 13.2 (May 12, 2014),
Inmate Grievance System Policy]. If the inmate's
complaint is not resolved by filing a RTSM form, the inmate
must file a Step 1 grievance within eight working days of
receiving a response. Id. The inmate must attach a
copy of the RTSM form to his Step 1 grievance. Id.
If an inmate's Step 1 grievance is dismissed and returned
unprocessed, he may appeal the decision by filing another
RTSM form with the Branch Chief within ten days of his
receipt of the unprocessed Step 1 grievance. Id. at
§ 13.3. Further, SCD policy provides that “[a]n
inmate will submit a grievance within the time frames
established in the policy.” Id. at §
Plaintiff acknowledges that his injury occurred on April 17,
2018, while he was housed with BRCI. (ECF No. 1 at 5).
Plaintiff arrived at MCI on April 23, 2018. Id. at
6. It appears Plaintiff filed RTSM forms regarding his
medical care on April 30, 2018; May 3, 2018; June 17, 2018;
and August 8, 2018. (ECF No. 1-1 at 2-5). Each of these forms
was returned to Plaintiff, and each indicated that
Plaintiff's complaints had been addressed. Id.
Plaintiff then filed his sole Step 1 grievance with MCI on
August 22, 2018. Id. at 6. Plaintiff's grievance
specifically indicated that he relied on his RTSM form that
was filed on August 8, 2018. Id. at 5-6. That RTSM
was signed by a supervisor on August 8, 2018, and returned to
Plaintiff. Id. at 5. According to SCDC policy,
Plaintiff had eight working days from the date the supervisor
signed the RTSM form to file a grievance. Id. at 7.
Because Plaintiff filed his grievance more than eight working
days after his RTSM form had been signed, his grievance was
returned as untimely. Id.
admits in his objections that he never filed an appeal of the
Warden's decision. (ECF No. 63); see also (ECF
No. 23-2 at 2) (indicating that SCDC has no record of
Plaintiff ever filing an SCDC Form 19-11 or a Step 2
grievance form in response to the return of his grievance).
Plaintiff states that he was not able to properly file an
appeal because the dismissal of his grievance was sent by
mail, and it was “extremely slow” in getting to
him. (ECF No. 63). However, as the magistrate judge indicated
in his Report, (ECF No. 60 at 7), Plaintiff undoubtedly
eventually received the dismissal of his grievance, as he
filed it along with his Complaint (ECF No. 1-1 at 6-7). Per
SCDC policy, in order to exhaust his administrative remedies,
Plaintiff was required to file an appeal of that dismissal
within ten days of receiving that dismissal. Inmate Grievance
System Policy § 13.3. Accordingly, because the time for
Plaintiff to file an appeal did not begin to run until
Plaintiff actually received the dismissal of his grievance,
the speed of the mail is irrelevant to Plaintiff's
ability to file such appeal. Therefore, the “extremely
slow” nature of the mail delivery does not excuse
Plaintiff's failure to file his appeal within five days
following receipt of the Warden's dismissal of his Step 1
grievance. Because Plaintiff admittedly did not file an
appeal of his Step 1 grievance, he failed to exhaust his
administrative remedies as required by the PLRA. Accordingly,
Plaintiff's case is subject to dismissal, and the court
will not address the merits of Plaintiff's claims.
careful and thorough review of the record under the
appropriate standards, as set forth above, the court adopts
the magistrate judge's Report (ECF No. 60), which is
incorporated herein by reference. The court GRANTS the moving
Defendants' motion to dismiss (ECF No. 23). Accordingly,