Opinion
C/A No. 0:18-3347-TMC-PJG
06-27-2019
Tequan L. Brown, Plaintiff, v. Jim May; Jeffery Long; Jeffery Scott; Bryan P. Stirling; Charles Williams, Defendants.
REPORT AND RECOMMENDATION
The plaintiff, Tequan L. Brown, a self-represented state prisoner, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915 and § 1915A. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Plaintiff's motion for a preliminary injunction (ECF No. 3) and Defendant Bryan P. Stirling's motion to dismiss (ECF No. 62). Stirling filed a response to Plaintiff's motion for a preliminary injunction (ECF No. 19) and Plaintiff filed a reply. (ECF No. 45). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendant's motion. (ECF No. 63.) Plaintiff filed a response in opposition to the motion (ECF No. 72), and Stirling filed a reply (ECF No. 79). Having reviewed the record presented and the applicable law, the court finds Stirling's motion to dismiss should be granted and Plaintiff's motion for a preliminary injunction should be terminated in light of that recommendation.
BACKGROUND
The following allegations are taken as true for purposes of resolving Stirling's motion to dismiss. Plaintiff is an inmate currently confined at the McCormick Correctional Institution of the South Carolina Department of Corrections ("SCDC"). Plaintiff is housed in Statewide Protective Custody ("SWPC"), a housing unit for inmates with special security concerns. Plaintiff was placed in SWPC on August 26, 2016 because other inmates threatened Plaintiff. (Am. Compl. ¶¶ 13-14, 22, 32, ECF No. 55 at 5, 7, 9.)
Plaintiff raises two claims against Defendant Stirling. First, Plaintiff claims Stirling has been deliberately indifferent to threats on Plaintiff's life by other SWPC inmates. Plaintiff has received specific threats on his life because Plaintiff provided information to federal and state law enforcement officials in a high-profile murder investigation. (Id. ¶¶ 16, 19, 21, 35-36, 46, ECF No. 55 at 5-7, 10). Specifically, three other inmates in SWPC have told Plaintiff that a gang has a bounty on his head, and one of those inmates, Timothy R. Rainey, told Plaintiff that Rainey received $5,000 to stab Plaintiff. (Id. ¶¶ 35-36. ECF No. 55 at 10.) Rainey tried to hit Plaintiff in the face with a lock in a sock, and another inmate twice came into Plaintiff's cell with knives. (Id. ¶ 38, ECF No. 55 at 11.) Separately, Plaintiff also informed SCDC's Jeffery Scott, the Assistant Chief of Police Services, of these encounters. (Id. ¶¶ 8, 39, ECF No. 55 at 3, 11.) Plaintiff informed Scott and Defendant Stirling, the Director of SCDC, that Rainey was threatening Plaintiff. (Id. ¶ 43, ECF No. 55 at 12.) Plaintiff believes Rainey is still currently a threat to Plaintiff. (Id. ¶¶ 52, 70, 79, ECF No. 55 at 15, 21, 25.)
Rainey was summarily dismissed as a defendant in this matter. (ECF No. 59.)
Second, Plaintiff claims Stirling has been deliberately indifferent to the conditions of the SWPC facility. Plaintiff alleges that inmates in SWPC are on lock-down for twenty-three to twenty-four hours per day, sometimes go five to six days without a shower, are not allowed to have religious services, are not given legal research tools, and are limited to one phone call per day. (Id. ¶ 50, ECF No. 55 at 14.) He further alleges that SWPC inmates are also denied access to rehabilitation programs, GED programs, drug treatment, and social services, and are not allowed to earn work credits or good conduct credits. (Id. ¶ 51, ECF No. 55 at 14-15.) Plaintiff seeks an injunction requiring SCDC to provide these programs, services, and benefits to inmates in SWPC. (Id. ¶ 79, ECF No. 55 at 25.)
Plaintiff filed this action on December 12, 2018. As to Defendant Stirling, Plaintiff raises claims pursuant to 42 U.S.C. § 1983 of failure to protect and deliberate indifference to conditions of confinement in violation of the Eighth Amendment. Plaintiff also seeks a temporary restraining order and preliminary injunction requiring SCDC to remove Rainey from SWPC. (ECF No. 3.)
Plaintiff raises other claims for relief against different defendants that are not relevant here.
DISCUSSION
A. Rule 12(b)(6) Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court "may also consider documents attached to the complaint, see Fed. R. Civ. P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic." Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Defendant Stirling's Motion to Dismiss
Stirling argues Plaintiff's claims should be dismissed because Plaintiff has failed to exhaust his administrative remedies. The court agrees.
The two claims Plaintiff raises against Stirling are also raised against the other SCDC Defendants—Jeffery Scott and Charles Williams. Plaintiff indicates that Stirling is sued in his official and individual capacities, and that Scott and Williams are sued in their official capacities. (Am. Compl., ECF No. 55 at 4.) However, Plaintiff seeks only injunctive relief against these defendants that can be granted in their capacities as SCDC officials. Therefore, Plaintiff has only raised official capacity claims. And, claims against state officers in their official capacities are really claims against the State itself. See Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) ("Official-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.' ") (citing Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 690, n.22 (1978)). Consequently, although three defendants are named, Plaintiff's claims against Stirling, Scott, and Williams are claims against the State. Therefore, the court's finding that Plaintiff has failed to exhaust his administrative remedies is applicable to Stirling, Scott, and Williams.
To bring a claim pursuant to 42 U.S.C. § 1983, a prisoner must exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides that "[n]o 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). Generally, to satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001); but see Ross v. Blake, 136 S. Ct. 1850 (2016) (describing limited circumstances where exhaustion may be excused). The exhaustion requirement will not be excused even where the plaintiff alleges he is in imminent danger. See McAlphin v. Toney, 375 F.3d 753, 755 (8th Cir. 2004); Arbuckle v. Bouchard, 92 F. App'x 289, 291 (6th Cir. 2004). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739). Satisfaction of the exhaustion requirement requires "using all steps that the agency holds out, and doing so properly." Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original). Thus, "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). The defendant has the burden of establishing that a plaintiff failed to exhaust his administrative remedies. See Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017) (quoting Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)).
Pursuant to South Carolina Department of Corrections policy, an inmate seeking to complain of prison conditions must first attempt to informally resolve his complaint. Next, an inmate may file a "Step 1 Grievance" with designated prison staff. If the Step 1 Grievance is denied, the inmate must appeal to the warden of his facility via a "Step 2 Grievance." Moreover, review from the South Carolina Administrative Law Court ("ALC") is generally part of the available administrative remedies an inmate must exhaust. S.C. Code Ann. § 1-23-500 ("There is created the South Carolina Administrative Law Court, which is an agency and court of record within the executive branch of the government of this State.") (emphasis added); see Furtick v. S.C. Dep't of Corr., 649 S.E.2d 35, 38 (S.C. 2007) (reaffirming that "the ALC has jurisdiction over all inmate grievance appeals that have been properly filed") (citing Slezak v. S.C. Dep't of Corr., 605 S.E.2d 506 (S.C. 2004)); see also SCDC Policy GA-01.12, http://www.doc.sc.gov/policy/policy.html.
South Carolina case law has established certain exceptions not applicable here. See Howard v. S.C. Dep't of Corr., 733 S.E.2d 211, 215-18 (S.C. 2012) (interpreting a postFurtick statutory amendment to S.C. Code Ann. § 1-23-600(D) and holding that the ALC lacked jurisdiction over an inmate's appeal involving the loss of the opportunity to earn sentence-related credits and no state-created property or liberty interest); Travelscape, LLC v. S.C. Dep't of Rev., 705 S.E.2d 28, 38-39 & n.10 (S.C. 2011) (stating that the ALC is without jurisdiction to hear facial challenges to the constitutionality of a regulation or statute but may rule on as-applied challenges); Howard, 399 733 S.E.2d at 218 (applying the holding in Travelscape, LLC to challenges to prison policies).
In response to Stirling's motion, Plaintiff argues he exhausted his administrative remedies with respect to the conditions of SWPC, and provides several request to staff member forms and Step 1 Grievances he filed in 2016. (ECF No. 72-1 at 7-14.) In those forms and grievances, Plaintiff complains that he is deprived of adequate personal hygiene. (Id.) None of the forms or grievances mentions the other issues Plaintiff complains of in the Amended Complaint—protection from Rainey or other threatening inmates, denial of religious services, legal research tools, phone calls, rehabilitation programs, GED programs, drug treatment, social services, work credits, or good conduct credits. Thus, Plaintiff has failed to take even the most basic steps to exhaust his administrative remedies as to those claims. As to Plaintiff's complaints that he was deprived of adequate personal hygiene, the record shows that Plaintiff did not file a Step 2 Grievance about that claim, which is necessary to exhaust his state remedies.
Plaintiff provided a Step 2 Grievance form in which he complained of a lack of recreation time, but that is not a claim he raises in the Amended Complaint. (ECF No. 72-1 at 8.)
As to Plaintiff's claim that Stirling is failing to protect Plaintiff from other inmates, Plaintiff argues "the matter is beyond the control of SCDC." (ECF No. 72 at 16.) Plaintiff also submitted a letter he wrote SCDC's Office of General Counsel in which he explains that Rainey has threatened to kill Plaintiff, and asks that SCDC "do something" about it. (ECF No. 72-1 at 15-16.) However, this correspondence to SCDC General Counsel does not satisfy the exhaustion requirement because general correspondence will not substitute for SCDC's formal grievance process. See Johnson v. Ozmint, 567 F. Supp. 2d 806, 814-15 (D.S.C. 2008) (collecting cases). Moreover, even if "the matter is beyond the control of SCDC," which is debatable, Plaintiff must use the formal grievance process to exhaust his administrative remedies, even where the grievance process cannot provide Plaintiff the specific relief he seeks. See Mejia v. Sessions, 866 F.3d 573, 596 (4th Cir. 2017) (citing Booth, 532 U.S.at 741 n.6). Accordingly, the court finds Plaintiff has failed to exhaust his administrative remedies as to any of his claims against Stirling.
In light of Plaintiff's failure to satisfy the exhaustion requirements of the PLRA, the court finds Plaintiff's motion for a temporary restraining order and preliminary injunction should be terminated.
RECOMMENDATION
Accordingly, the court recommends that Stirling's motion to dismiss (ECF No. 62) be granted.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE June 27, 2019
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).