United States District Court, D. South Carolina, Orangeburg Division
C. NORTON, UNITED STATES DISTRICT JUDGE.
matter is before the court on United States Magistrate Judge
Kaymani D. West's report and recommendation
(“R&R”) recommending that the court grant
defendants Dennis Bush, Alvin Graber,  Lisa Young, and
Fuller's (collectively, “defendants”) motion
for summary judgment, ECF No. 97. For the reasons set forth
below, the court adopts the R&R and grants
Shawn William Sharpe (“Sharpe”) is a prisoner in
the South Carolina Department of Corrections
(“SCDC”) prison system. Sharpe alleges that his
property was lost when he was moved from the Moultrie Unit to
“SMU lock up” at Broad River Correctional
Institution (“BRCI”). ECF No. 30 at 5. Included
in that property was legal paperwork that Sharpe planned to
use to file an application for post-conviction relief
(“PCR”). Sharpe contends that because his
paperwork was lost, he was unable to file his PCR application
in time, and as a result, his PCR claim was dismissed as
untimely. See ECF No. 86-6 at 3-5 (state court order
finding Sharpe's PCR application to be untimely and
equitable tolling to be inapplicable). Sharpe alleges that
each defendant was personally involved in the loss of his
possessions. According to Sharpe, defendant Fuller and
defendant Alvin Graber (“Graber”) were to pack up
Sharpe's possessions. Then Fuller was to give the
possessions to Graber, who was to give the possessions to
defendant Lisa Young (“Young”), who worked in SMU
lock up's property room. Defendant Dennis Bush
(“Bush”) was the Warden at BRCI at the time, and
Sharpe contends that Bush's involvement included
responding to Sharpe's grievances and verbally assuring
Sharpe that Sharpe would receive trial transcripts from his
filed several grievances based on the loss of his property.
The SCDC procedure for filing a grievance is as follows. An
inmate must first “make an effort to informally resolve
a grievance by submitting a Request to a Staff Member
form” within eight working days of the incident. ECF
No. 86-4 at 13. If the issue cannot be informally resolved,
then the inmate must complete a “Form 10-5, Step
1” (“Step 1 form”) and place it in the
designated grievance box. The Warden responds to the
grievance in writing, and the inmate will then sign and date
the response to acknowledge receipt. If the inmate disagrees
with the Warden's decision, the inmate can appeal the
decision by completing a “Form 10-5a, Step 2”
(“Step 2 form”) and placing it in the designated
grievance box. The “responsible official”
eventually renders a decision on the appeal, marking
SCDC's final response on the matter.
filed three different Step 1 forms related to the loss of his
property. His first Step 1 form was received on October 14,
2016. ECF No. 93-1 at 2. In response, the Warden issued a
decision that recommended various items be reissued to Sharpe
through the commissary. ECF No. 93-1 at 3. The Warden noted
that “[p]ersonal items such as pictures and mail cannot
be replaced or compensated.” Id. The Warden
concluded by stating that “[b]ased on this information,
your action requested has been resolved. If not satisfied
with my response, see Step 5 below.” Id.
“Step 5” contains instructions on how to appeal
the Warden's decision, which includes completing a
“Step 2 appeal form” and placing it in the
grievance box. Id. After the Warden's decision,
the document contains two options with empty check boxes next
to them. The first says “I accept the Warden's
decision and consider the matter closed.” Id.
The second says “I do not accept the Warden's
decision and wish to appeal.” Id. Sharpe
placed a check next to and circled the option that states
“I accept the Warden's decision and consider the
matter closed.” He then signed the form.
filed another Step 1 form that was received on October 13,
2017. Id. at 8. In that grievance, Sharpe explains
that he was transferred from one prison to another and that
he never received his property after the transfer. In
relation to his legal documents, Sharpe explains that his
legal work was included in the property and that he needed it
as soon as possible because he was in the middle of his PCR.
The grievance was returned to Sharpe because Sharpe
“failed to attach the required RTSM/KIOSK number
regarding [his] attempt at an informal resolution on this
issue as required in GA-01.12 Inmate Grievance
Procedures.” Id. at 9. Sharpe was told that he
could refile a new grievance after receiving a response to
his informal resolution attempt and that failure to refile
would result in an abandonment of the grievance. According to
SCDC records, Sharpe did not take any further action with
respect to this grievance. ECF No. 86-4 at 4.
filed a third Step 1 form, which was received on July 20,
2018. ECF No. Id. at 29. The form was again returned
to Sharpe because he “failed to attempt an informal
resolution in accordance with Agency Policy GA-01.12.”
Id. The form further stated that “[y]ou may
re-file a new grievance form within eight (8) working days of
receiving a response to the Request to Staff Form or
ARTSM.” Id. According to SCDC records, Sharpe
did not take any further action with respect to this
grievance. Id. at 5.
second amended complaint, the now operative complaint, Sharpe
brought claims under 42 U.S.C. § 1983 based on a
violation of Sharpe's First Amendment right to access to
courts and on a violation of Sharpe's Fourth Amendment
right to “feel secure in life liberty and
property.” ECF No. 30 at 4. The magistrate judge then
recommended that Sharpe's Fourth Amendment/due process
claim be dismissed but that his First Amendment
access-to-courts claim survive. ECF No. 43. No. objections to
that R&R were filed, so the court dismissed Sharpe's
Fourth Amendment/due process claim. ECF No. 49. As such,
Sharpe's remaining claim is his First Amendment
access-to-courts claim. Defendants filed a motion for summary
judgment on March 4, 2019. ECF No. 86-1. Sharpe responded on
March 27, 2019, ECF No. 93, and defendants replied on April
3, 2019, ECF No. 96. The magistrate judge issued an R&R
on August 19, 2019 that recommended that the court grant
defendants' motion for summary judgment. ECF No. 97.
Sharpe filed objections to the R&R on September 6, 2019.
ECF No. 99. Defendants did not reply to Sharpe's
Pro Se Standard
district courts are charged with liberally construing
petitions filed by pro se litigants to allow the
development of a potentially meritorious case. See Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se
petitions are therefore held to a less stringent standard
than those drafted by attorneys. See Gordon v.
Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal
construction, however, does not mean that a court may ignore
a clear failure in the pleading to allege facts that set
forth a cognizable claim. See Weller v. Dep't of Soc.
Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).
magistrate judge makes only a recommendation to the court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The
recommendation carries no presumptive weight, and the
responsibility to make a final determination remains with the
court. Id. at 270-71. The court may “accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge . . . or
recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1). The court is
charged with making a de novo determination of any portion of
the R&R to which a specific objection is made.
Id. However, in the absence of a timely filed,
specific objection, the court reviews the R&R only for
clear error. Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (citation
omitted). Furthermore, “[a] party's general
objections are not sufficient to challenge a magistrate
judge's findings.” Greene v. Quest Diagnostics
Clinical Labs., Inc., 455 F.Supp.2d 483, 488 (D.S.C.
2006) (citation omitted). ...