Opinion
Civil Action 4:22-cv-0553-DCC-TER
07-11-2023
JASON D. COMPTON, # 331364, Plaintiff, v. OFFICER MR. PERKINS, OFFICER MR. FRESHMAN, and OFFICER MR. HINGLETON, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights as an inmate within the South Carolina Department of Corrections (SCDC). Presently before the Court is Defendants Perkins and Hingleton's Motion for Summary Judgment (ECF No. 46). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendants' motion could result in the motion being granted and his claims dismissed. Plaintiff did not file a response but filed numerous motions seeking appointment of counsel. The undersigned entered an Order (ECF No. 71) denying Plaintiff's motion and allowing Plaintiff twenty additional days to file a response to the motion for summary judgment. The undersigned again warned Plaintiff that a failure to file a response to Defendants' motion could result in a recommendation that his claims be dismissed. Plaintiff again failed to do so but filed a Letter (ECF No. 75) saying he does not know what he's supposed to do. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(d), DSC. This report and recommendation is entered for review by the district judge.
Defendant Freshman has been dismissed. See Order (ECF No. 33).
II. RULE 41(B) DISMISSAL
“The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders. Fed.R.Civ.P. 41(b).” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.1989).
The Fourth Circuit, in Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing that dismissal with prejudice is a harsh sanction which should not be invoked lightly, set forth four considerations in determining whether Rule 41(b) dismissal is appropriate: (1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Id. at 70.
Subsequently, however, the Fourth Circuit noted that “the four factors ... are not a rigid four-pronged test.” Ballard, 882 F.2d at 95. “Here, we think the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant.... In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.
In the present case, Plaintiff is proceeding pro se and, thus, is entirely responsible for his actions. He was warned on two occasions that a failure to respond to Defendants' motion could result in dismissal of his case. Nevertheless, Plaintiff failed to respond to the motion. It is solely through Plaintiff's choice, and not that of an attorney, that Plaintiff has failed to prosecute this case. Defendants cannot come to a resolution of this matter if Plaintiff fails to prosecute it. Accordingly, the undersigned concludes that Plaintiff has abandoned his claims against Defendants. For that reason, dismissal of this case is appropriate under Rule 41(b).
III. MERITS
A. Facts
Plaintiff alleges that on December 13, 2021, while in the lock-up unit at Broad River Correctional Institution (BRCI) he was taken out of his cell to be taken to mental health by Defendants Perkins, Hingleton, and Freshman. Plaintiff alleges that Perkins put the handcuffs too tight and it cut his blood flow. He alleges he was put in the x-ray chair room with the door closed and he was slammed into the chair and “they cut my head and face by Sgt. Perkins” and they asked him why he put feces on a correctional officer two days prior. He alleges that he was hit with a “broch” in the mouth and told to stand up. He alleges he was told to take all his clothes off and to put his hand on his head and he was hit in the head. They then gave him a really small jumpsuit and Perkins pushed him and told him to put it on. He was then made to walk without shoes on to see a nurse and she examined him and put some cream on the cut on his head. Perkins slammed him into the wall several times and into a door while walking down a long hallway. Once they placed him a cell, they slammed him into a wall again while he was still in handcuffs. Perkins took Plaintiff's arm and “bent it up trying to pop my arm out of place.” The Captain told Plaintiff he would make him eat feces if he threw feces on another correctional officer. Perkins slammed Plaintiff's head into the wall two more times, removed his handcuffs, made him remove all his clothes, stuffed his boxers in his mouth and told him to stand against the wall with his hands up all day. Then Perkins hit Plaintiff one more time. Perkins made him stand in that position all day and told him if he did not he would have to perform oral sex on him and Perkins would send people to kill his family. Plaintiff alleges he received bruises and cuts and he still suffers from a nerve problem in his hand and pain when working out. Compl. pp. 5, 14-16.
Defendants assert that on December 11, 2021, the Plaintiff assaulted a correctional officer by throwing what is believed to be human waste through the flap on his cell door. Hingleton Aff. ¶ 5 (ECF No. 46-1). The next day, December 12, 2021, Plaintiff began yelling at prison staff that he planned to hang himself during evening pill line. Hingleton Aff. ¶ 6. When prison staff attempted to assess the Plaintiff at his door, he again assaulted prison staff by throwing what appeared to be urine and feces, stating that he would continue to throw urine and feces at any staff that came near his door. Hingleton Aff. ¶¶ 7-8. Thereafter, on Monday, December 13, 2021, when weekday staff was available, Defendants attempted to remove Plaintiff from his cell. Hingleton Aff. ¶ 9. Plaintiff, however, had lodged his cell door shut using pieces of clothing. Hingleton Aff. ¶ 11. Defendants then brought in Qualified Mental Health Professional Shenelle Hanley so that she could use “de-escalation techniques” in an effort to get Plaintiff to un-block his door and leave his cell. Hanley Aff ¶ 3-4 (ECF No. 55); Massey Aff. Ex. A, p. 33 (ECF No. 46-8). This proved successful and the Plaintiff was removed from his cell. Hanley Aff. ¶ 4; Massey Aff. Ex. A, p. 33. Hanley did not witness Hingleton, Perkins, or Fleshman assault Plaintiff. Hanley Aff. ¶ 5. However, as set forth above, Plaintiff alleges he was assaulted and he was taken to see medical personnel as a result of this allegation. Massey Aff. ¶ 4. He was assessed by registered nurse Tracy Massey. Massey Aff. ¶¶ 4 - 9. Massey did not observe any bruising, swelling, injury, or any indication that the Plaintiff had been assaulted. Massey Aff. ¶ 5. Though Massey observed an “eraser-sized abrasion,” she avers that Plaintiff attributed the injury to an incident that occurred weeks prior. Massey Aff. ¶ 6.
B. Standard of Review
Under Fed.R.Civ.P. 56, the moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Id. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 87475 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4thCir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324. Rather, the party must present evidence supporting his or her position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
C. Discussion
Defendants argue that summary judgment is proper on Plaintiff's claims because he failed to fully exhaust his administrative remedies prior to filing suit. The Prison Litigation Reform Act (PLRA) requires that a prisoner exhaust the available administrative remedies before filing a 1983 action concerning conditions of his confinement. 42 U.S.C.1997e(a). In enacting the PLRA, Congress carved out an exception to the general rule that exhaustion of state remedies is not a prerequisite to filing a civil rights suit. The PLRA amended section 1997e so that it now provides, “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.” Id. § 1997e(a). Accordingly, before Plaintiff may proceed with his claims in this Court, he must first exhaust his administrative remedies. The United States Supreme Court has held that “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001); see Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Jones v. Smith, 266 F.3d 399 (6th Cir.2001) (exhaustion required even though Plaintiff claimed futility); Larkin v. Galloway, 266 F.3 d 718 (7th Cir.2001) (exhaustion required even though Plaintiff claimed he was afraid); see also Claybrooks v. Newsome, 2001 WL 1089548 (4th Cir., September 18, 2001) (unpublished opinion) (applying Booth v. Churner to affirm district court's denial of relief to Plaintiff). A failure to exhaust all levels of administrative review is not “proper exhaustion” and will bar actions filed by inmates under any federal law, including § 1983. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2386, 165 L.Ed.2d 368 (2006).
The grievance procedure provided by SCDC contains two steps. McKie Aff. ¶ 4 (ECF No. 46-11). First, the inmate files a Step-One Grievance and later receives a response from SCDC. Id. Then, if the inmate is displeased with the result of his Step-One grievance, he may file a Step-Two Grievance to appeal the result of his Step-One grievance. Id. SCDC has 90 days to investigate and respond to this grievance. Id. Therefore, since a Plaintiff must exhaust “all” of his administrative remedies before bringing suit, the Plaintiff would need to have completed the Step-One and Step-Two grievance procedure. Id.
Plaintiff in this case filed a Step-One grievance on January 10, 2022. McKie Aff. ¶ 5. Plaintiff then filed his Complaint on February 22, 2022. At that point in time, there had been no conclusion to the investigation of Plaintiff's Step-One Grievance. McKie Aff. ¶ 6. That investigation was completed August 31, 2022. McKie Aff. ¶ 6. Plaintiff then filed his Step-Two Grievance on September 26, 2022. McKie Aff. ¶ 7. At the time Defendants filed the present motion, that grievance was still pending at the Step-Two level. McKie Aff. ¶ 7.
It is well-settled that exhaustion is a prerequisite to suit and must be completed prior to filing an action. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 676-77 (4th Cir. 2005); see, e.g., Page v. Paduly, No. 9:09-cv-0952-RMG-BM, 2010 WL 4365644, at *1 (D.S.C. Oct. 28, 2010) (finding that a plaintiff failed to exhaust his administrative remedies where he either did not properly pursue a grievance concerning the issues raised in the case prior to filing the lawsuit, or did not even file grievances until after the lawsuit had already commenced); Cabbagestalk v. Ozmint, C/A No. 9:06-3005-MBS, 2007 WL 2822927, at *1 (D.S.C. Sept. 27, 2007) (noting that the court must look to the time of filing-not the time the district court is rendering its decision-to determine if exhaustion has occurred); see also Jackson v. Dist. of Columbia, 254 F.3d 262, 269 (D.C. Cir. 2001) (rejecting the argument that § 1997e(a) “permits suit to be filed so long as administrative remedies are exhausted before trial”); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) (holding a prisoner “may not exhaust administrative remedies during the pendency of the federal suit”); Blevins v. Loranth, No. 09-788-TLW-BM, 2010 WL 670099, at *3 (D.S.C. Feb. 22, 2010), (“Plaintiff needed to file and exhaust his administrative claim [ ] at FCI Williamsburg prior to proceeding with this lawsuit.”); Kirk v. Kirkland, No. 0:06-1036 MBS-BM, 2006 WL 3759801 at *2 (D.S.C. Dec. 18, 2006) (finding that “before Plaintiff may proceed with his claim in this Court, he must first have exhausted any administrative remedies that were available at the Detention Center.”). It is undisputed that Plaintiff failed to complete SCDC's grievance process prior to filing suit in this court. Therefore, dismissal of this action is proper. See, e.g., Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (holding that an inmate's failure to “properly take each step within the administrative process ... bars, and does not just postpone, suit under § 1983.”).
IV. CONCLUSION
For the reasons discussed above, it is recommended that this case be dismissed pursuant to Fed.R.Civ.P. 41(b) for Plaintiff's failure to prosecute. In the alternative, it is recommended that Defendants' Motion for Summary Judgment (ECF No. 46) be granted and this case be dismissed in its entirety.
The parties are directed to the important information on the following page.