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Sharpe v. Bush

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

December 10, 2019

SHAWN WILLIAM SHARPE, Plaintiff,
v.
DENNIS BUSH, ALVIN GRABBER, LISA YOUNG, and FULLER, Defendants.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE.

         This 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, [1] 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 defendants' motion.

         I. BACKGROUND

         Plaintiff 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 trial.

         Sharpe 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.

         Sharpe 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.

         Sharpe 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.

         Sharpe 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.

         In his 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.[2] 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 objections.

         II. STANDARD

         A. Pro Se Standard

         Federal 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).

         B. R&R Review

         The 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). ...


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