Opinion
C. A. 4:20-3136-TLW-TER
08-28-2023
SAMUEL GOSSETT, Plaintiff, v. CPL. DAVIS; Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III Judge.
The Plaintiff, proceeding pro se, filed this action pursuant to 42 U.S.C. 1983on September 1, 2021. At the time of the allegations in the complaint, Plaintiff was housed at Kirkland Correctional Institution. Plaintiff is currently housed at the Perry Correctional Institution. On March 27, 2023, Defendant Davis filed a motion for summary judgment along with a memorandum in support. (ECF No. 114). As the Plaintiff is proceeding pro se, the court issued an order on or about March 28, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response on May 4, 2023. Defendant filed a reply on May 9, 2023. (ECF No. 120).
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. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
Warden Terri Wallace was terminated from this action pursuant to the court's order of June 3, 2022. (ECF No. 73).
The undersigned issued a report and recommendation on March 23, 2021, recommending that Defendant Davis be dismissed without prejudice for failure to prosecute. (ECF No. 34). Plaintiff filed an objection. On June 3, 2022, the court entered an order rejecting that portion of the report and recommendation and ordered that the U.S. Marshal's Service attempt to serve Defendant Davis for a third time. (ECF No. 73). The court issued third and fourth orders authorizing service of process for Defendant Davis. The summons for service on Defendant Davis was executed on October 31, 2022. (ECF No. 94).
STANDARD FOR SUMMARY JUDGMENT
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. Celotex, 477 U.S. 317. 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 874-75 (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 (4th Cir. 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 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; 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.
ALLEGATIONS/ARGUMENTS
Plaintiff brings this action with regard to an inmate on inmate assault on February 19, 2020, and alleges that Defendant Corporal Davis failed to protect him from being robbed by other inmates and being “stabbed multiple times.”
Defendant Davis filed a motion for summary judgment asserting collateral estoppel based on the court's previous order finding Plaintiff failed to exhaust his administrative remedies against Defendant Wallace with regard to the issues raised in his complaint.
Claims against Defendant Wallace were dismissed by order dated June 3, 2022. (ECF No. 73).
ANALYSIS
As stated above, Defendant Wallace's motion for summary judgment previously was granted for failure to exhaust his administrative remedies. Defendant Davis “incorporates the previously filed Memorandum in Support of Motion for Summary Judgment and the grounds stated therein” and “relies upon the prior Report and Recommendation and District Court Order in which the Court determined as a matter of law that Plaintiff failed to exhaust his administrative remedy and dismissed Plaintiff's claims.” (ECF No. 14-1 at 2).
Defendant Davis argues that Plaintiff's claims are barred by collateral estoppel based on this Court's previous ruling that Plaintiff failed to exhaust his administrative remedies.
“Collateral estoppel precludes relitigation of an issue decided previously in judicial or administrative proceedings provided the party against whom the prior decision was asserted enjoyed a full and fair opportunity to litigate that issue in an earlier proceeding.” In re McNallen, 62 F.3d 619, 624 (4th Cir. 1995) (citing Allen v. McCurry, 449 U.S. 90, 96 (1980)). Thus, “[c]ollateral estoppel forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate.” Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998) (internal quotation marks omitted). To apply collateral estoppel or issue preclusion to an issue or fact, the proponent must demonstrate that (1) the issue or fact is identical to the one previously litigated; (2) the issue or fact was actually resolved in the prior proceeding; (3) the issue or fact was critical and necessary to the judgment in the prior proceeding; (4) the judgment in the prior proceeding is final and valid; and (5) the party to be foreclosed by the prior resolution of the issue or fact had a full and fair opportunity to litigate the issue or fact in the prior proceeding. See id.
Parties must “have a fair opportunity procedurally, substantively and evidentially to pursue [their] claim the first time.” Blonder-Tongue Labs., Inc. v. Univ. of III. Found., 402 U.S. 313, 333 (1971) (quotation omitted); see also Scott v. Metro. Health Corp., No. 5:12-CV-383-F, 2013 WL 4520264, at *11 (E.D. N.C. Aug. 23, 2013). The party must have had the opportunity to litigate; it does not matter if it chose not to so litigate. See Sartin v. Macik, 535 F.3d 284, 290 (4th Cir. 2008); see also Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 332-33 (1979); SEC v. Resnick, 604 F.Supp.2d 773, 780 (D. Md. 2009). As the Fourth Circuit has explained, “[i]t is well settled that the full-and-fair opportunity formulation generally requires that a litigant receive reasonable notice of the claim against him and opportunity to be heard in opposition to that claim.” Holland v. Kohn, 12 Fed.Appx. 160, 166 (4th Cir. 2001) (emphasis in original) (quotation omitted).
As the court noted in Cardenas v. Spinnaker Resorts, Inc., 2019 WL 7761751, at *3-4 (D.S.C. Mar. 5, 2019), clarified on denial of reconsideration, No. CV 9:18-761-BHH, 2019 WL 7761707 (D.S.C. July 3, 2019):
The doctrine of res judicata embodies two distinct preclusion concepts: (1) claim preclusion; and (2) issue preclusion (or collateral estoppel). Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 376 n. 1 (1985); Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1 (1984). While claim preclusion refers to the preclusive effect of a judgment in foreclosing litigation of matters that should have been raised in an earlier suit, issue preclusion refers to the effect of a judgment in precluding the relitigation of particular matters that were actually litigated and decided. Briggs v. Newberry County School District, 838 F.Supp. 232 (D.S.C. 1992). “Issue preclusion is more narrowly drawn and ... operates to bar subsequent litigation of those legal and factual issues common to both actions that were ‘actually and necessarily determined by a court of competent jurisdiction in the first litigation.' ” Orca Yachts, L.L.C. v. Mollicam, Inc., 287 F.3d 316, 318 (4th Cir. 2002). The Fourth Circuit has stated the following with respect to collateral estoppel:
Collateral estoppel, or issue preclusion, bars subsequent litigation of legal and factual issues common to an earlier action that were “actually and necessarily determined” in
the first litigation. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); Combs v. Richardson, 838 F.2d 112, 114 (4th Cir. 1988). Thus, “[c]ollateral estoppel forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate.” Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998) (internal quotation marks omitted). To apply collateral estoppel or issue preclusion to an issue or fact, the proponent must demonstrate that (1) the issue or fact is identical to the one previously litigated; (2) the issue or fact was actually resolved in the prior proceeding; (3) the issue or fact was critical and necessary to the judgment in the prior proceeding; (4) the judgment in the prior proceeding is final and valid; and (5) the party to be foreclosed by the prior resolution of the issue or fact had a full and fair opportunity to litigate the issue or fact in the prior proceeding.Id. at *5 quoting Malm v. Gonzales, 151 Fed.Appx. 252, 256 (4th Cir. 2005).
Thus, collateral estoppel prevents the relitigation of an issue of fact or law that was previously settled. See Virginia Hosp. Ass'n v. Baliles, 830 F.2d 1308, 1311 (4th Cir.1987). It is related to the doctrine of res judicata, but it “can be applied to narrower portions of an action than is the case for res judicata.” United States v. Tatum, 943 F.2d 370, 382 (4th Cir.1991). As set forth above, “Issue preclusion is more narrowly drawn and ... operates to bar subsequent litigation of those legal and factual issues common to both actions that were ‘actually and necessarily determined by a court of competent jurisdiction in the first litigation.” Orca Yachts, L.L.C., 287 F.3d at 318. Collateral estoppel may be used defensively as a bar if the plaintiff had a full and fair opportunity to litigate the issues in the previous suit; mutuality of the parties is not required. Blonder-Tongue Labs., Inc. v. University of Illinois Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Thurston v. United States, 810 F.2d 438 (4th Cir.1987).
In this case, the court previously granted summary judgment and dismissed the action against Defendant Wallace for Plaintiff's failure to exhaust administrative remedies. (ECF Nos. 63 and 73). The Plaintiff's claims against Defendants Wallace and Davis arise out of the same underlying incident dated February 19, 2020.Therefore, the issue of exhaustion as to the alleged incident of February 2020, has been ruled on by the court and Plaintiff is precluded from relitigating the same issue and claim against Defendant Davis. Accordingly, it is recommended that summary judgment be granted and these claims against Defendant Davis be dismissed pursuant to collateral estoppel.
Davis incorporates into his motion the affidavit of Felecia McKie submitted with Defendant Wallace's motion for summary judgment. Felecia McKie is the Inmate Grievance Administrator for the South Carolina Department of Corrections (SCDC). (ECF No. 57-6). McKie attests that Plaintiff is familiar with the grievance process and has filed numerous grievances unrelated to the allegations of assault in this case. (Id.). Plaintiff filed a Step 1 Grievance which mentions his assault on February 19, 2020, KCI-318-20. (Exhibit B). In the grievance, Plaintiff requested mental health treatment and a transfer out of protective custody or lock-up because he “feels like the walls are closing in” and states that “it was staff fault that this was able to happen” but does not grieve the assault itself or any alleged failure to protect by Defendant Wallace. (Id.). In response to this grievance, Defendant Wallace upheld Plaintiff's request for mental health treatment and noted that Plaintiff had already seen counselors. (Id.). Defendant Wallace denied the request to be transferred from lock-up due to his disciplinary conviction. (Id.). Plaintiff was advised that if he disagreed with the decision, he could file a Step 2 Inmate Grievance Form. Plaintiff checked the box on the grievance form stating that he did not accept the Warden's decision and wanted to appeal. (Id.). However, McKie attests that Plaintiff did not file a Step 2 Grievance Form or appeal the Warden's decision. (Id.). Therefore, McKie attests that Plaintiff failed to exhaust his administrative remedies for the matters alleged in the complaint. (Id.).
In the alternative, if collateral estoppel did not apply, the case should be dismissed for failure to exhaust administrative remedies.
EXHAUSTION
Plaintiff filed a response to the motion for summary judgment asserting that he started exhausting his remedies and then on March 13, 2020, the Governor of South Carolina declared a state of emergency and, subsequently, issued several executive orders which closed businesses and activities throughout the State. (ECF No. 119). Therefore, Plaintiff asserts that he failed to exhaust his administrative remedies because “[s]ince Grievance wasn't essential personel(sic) they was at home for Covid-19 by the mandate” and that “[o]nce Covid mandates lifted, Grievance staff was allowed to resume work. That was around May 3, 2020....” (ECF No. 119). Therefore, Plaintiff attempts to argue for the first time that his failure to exhaust administrative remedies should be excused because of the COVID-19 mandate from the governor. (Id.). Plaintiff requests that the court deny the motion for summary judgment even though he filed his “suit out of order because of the Covid-19 out break.” (Id.).
Defendant Davis filed a reply asserting that Plaintiff did not raise this argument when Defendants filed a motion for summary judgment for Defendant Wallace based on the failure to exhaust. (ECF No. 120). He asserts that Plaintiff did not file any response to Defendant Wallace's prior motion for summary judgment, did not object to the Report and Recommendation, and did not appeal the order finding that Plaintiff's lawsuit was barred due to his failure to exhaust administrative remedies. Accordingly, Defendant argues that this holding became the law of the case and Plaintiff is precluded from relitigating this identical issue now. Additionally, Defendant argues that Plaintiff fails to provide any evidence that COVID-19 prevented him from filing a Step Two grievance which was the basis of the Court's prior decision, and that COVID-19 did not affect SCDC personnel and is irrelevant to Plaintiff's failure to take action himself to exhaust. Defendant asserts that the grievance process at SCDC did not become inoperative or pause during COVID-19 and Plaintiff offers no evidence to the contrary. Defendant argues that Plaintiff did not file or attempt to file a Step Two grievance on, before or after May 3, 2020, the date he erroneously asserts SCDC personnel resumed work and offers no explanation why he never completed the administrative process.
As discussed in the previous Report and Recommendation in this case, 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). Exhaustion is required even though Plaintiff claimed futility. See Wolfe v. Shepard, No. 4:21-CV-0939-JD-TER, 2023 WL 2168732, at *3 (D.S.C. Jan. 27, 2023), report and recommendation adopted, No. 4:21-CV-0939-JD-TER, 2023 WL 2166959 (D.S.C. Feb. 22, 2023); Jones v. Smith, 266 F.3d 399 (6th Cir. 2001); 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).
If Plaintiff's argument in his response to the current motion for summary judgment is considered, it fails. Here, Plaintiff admits that he did not file a Step Two grievance; however, he argues the administrative process was not available when the Governor issued a state of emergency on March 13, 2020, furloughing the grievance staff as non-essential personnel. Therefore, Plaintiff asserts that he filed the complaint instead of the Step Two grievance.
However, while Plaintiff attempts to excuse his exhaustion arguing that a State of Emergency was issued on March 13, 2020, the decision on the Step One grievance was entered on March 30, 2020, and Plaintiff signed for the decision on the Step One grievance on March 31, 2020. This is in contradiction to Plaintiff's argument. Additionally, Plaintiff does not state that he attempted to file a Step Two grievance. Plaintiff has provided no evidence that the grievances were not being accepted or handled during this time period or that he attempted to exhaust at any point. Plaintiff has not offered evidence that administrative remedies were not available to him during the time in question.
CONCLUSION
Based on the above reasoning, it is recommended that the motion for summary judgment by Defendant Davis (ECF No. 114) be granted.