Opinion
C. A. 4:22-0552-SAL-TER
10-31-2022
KENNETH LEE MARTIN, JR., Plaintiff, v. STEPAHNIE LANHAM, HEALTH CARE ADMINISTRATOR; S.W. PHELPS; H. LOPEZ MD/SER MASTER PHYSICIAN; DR. WALTON P. BATTLE, HEALTH SERVICE ADMINISTRATOR, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed pro se by Kenneth Lee Martin, Jr., (“Martin/Plaintiff”). Martin is a federal inmate incarcerated at the Federal Correctional Institution in Edgefield, South Carolina. Plaintiff filed this action on February 22, 2022. Plaintiff filed an amended complaint on March 28, 2022, alleging a violation of his constitutional rights based on allegations of medical indifference. This matter is currently before the court on the Defendants' motion to dismiss or, in the alternative, for summary judgment filed August 16, 2022. (ECF No. 35). As the Plaintiff is proceeding pro se, the court issued an order on or about August 16, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss/motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Defendants filed a status notice with the court on September 6, 2022, asserting that the Plaintiff was in transit from FCI-Edgefield to FCI-Texarkana and had been in transit since on or before August 16, 2022, when Defendants filed their dispositive motion. Defendants stated that it was not known when Plaintiff would arrive at FCI-Texarkana. On September 15, 2022, Plaintiff filed a notice of change of address with the court stating that he had arrived at FCI-Texarkana. (ECF No. 44). Therefore, the court issued a second Roseboro order on September 15, 2022. On September 26, 2022, Plaintiff filed a motion for extension of time to respond which was granted on September 27, 2022. Plaintiff filed a response in opposition on October 18, 2022. (ECF No. 51).
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.
DISCUSSION
STANDARD FOR MOTION FOR SUMMARY JUDGMENT
As matters outside of the pleadings have been submitted by both parties, this motion will be treated as one for summary judgment.
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. 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, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
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.
ANALYSIS
ALLEGATIONS
In his amended complaint, Plaintiff alleges that his rights were violated due to medical indifference and ineffective treatment while housed at FCI-Edgefield . (ECF No. 9). Plaintiff asserts that as a result of medical indifference and ineffective treatment, he had to undergo an operation which resulted in the loss of hearing in his right ear and the inability to walk normally due to balance issues. Id. Plaintiff contends that the named Defendants hindered his right to proper medical care and deliberately kept him from receiving proper care in a timely fashion. Id. Plaintiff requests monetary relief.
EXHAUSTION
Defendants have pleaded the affirmative defense of failure to exhaust remedies under the Prison Litigation Reform Act which is a mandatory requirement, leaving this Court without jurisdiction to hear any such claims.
The BOP has a three-tiered formal administrative grievance process in addition to an informal resolution process. See id.; 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. See id.; 28 C.F.R. §542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. See id.; 28 C.F.R. §542.14. The matter will be investigated, and a written response provided to the inmate. Id. If dissatisfied with the response, the inmate may appeal to the Regional Director within 20 days of the date of the Warden's response. See id.; 28C.F.R. §542.15(a). If dissatisfied with the regional response, the inmate may appeal to the General Counsel within 30 days of the Regional Director's response. Id. Appeal to the General Counsel is the final level of agency review. See id.; 28C.F.R. §542.15(a). Thus, a claim has not been administratively exhausted until it has been properly filed with the General Counsel. If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames including extensions, the inmate may consider such response or appeal as denied and appeal to the next level. See id.; 28 C.F.R. § 542.18. Inmates may not appeal issues that were not raised in previous lower level filings or combine appeals of separate lower level responses (different remedy numbers) into a single appeal. See id.; 28 C.F.R. §542.15(b)(2). Thus, each administrative remedy appeal must address the same issues addressed at the lower level in this remedy. See Id.; 28 C.F.R. § 542.15(b)(2). Pursuant to 28 C.F.R. § 542.18. Id.; see 28 C.F.R. § 542.18 (“If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.”).
In support of their motion, Defendants submitted a declaration from J. Carter stating that as the Legal Assistant for the South Carolina Consolidated Legal Center located at FCI-Edgefield, he has access to information regarding inmates in the BOP custody including, but not limited to, access to SENTRY, the BOP's computer database which tracks the status, activities, and administrative remedies. (ECF No. 351). Carter asserts that all formal administrative remedy requests are logged in SENTRY and given a unique identifying number. Id. An extension is added to the number which denotes the level at which the claim is filed. Id. Subsequent appeals of an issue will have the same identification number with a different extension identifying the level where filed. Id. For example, the extension “F1" indicates the filing was at the institution or filed level. The extension “R1" indicates the filing was at the regional level. Id. The extension “A1” indicates the filing was at the national level. Id. If an appeal is rejected and refiled at the same level, perhaps correcting the identified deficiencies, then the number will change but the letter will remain the same. Id. When administrative remedy requests are rejected, the materials are returned to the inmate and the agency does not keep copies of the rejected remedy request unless the request was filed as a “sensitive” remedy at the Regional Office level. Id. Rather, SENTRY records show that he administrative remedy was filed and rejected and the records also indicate codes which explain the reason(s) for the rejection, as well as the date of the filing. Id. Carter declares that the Plaintiff has filed six administrative remedies while in BOP custody but only Administrative Remedy No. 1104390-F1 pertains to the allegations in the complaint. Id. Plaintiff filed Administrative Remedy No. 1104390-F1 on December 17, 2021, concerning alleged delay in medical care.Id. This administrative remedy request was rejected due to the Plaintiff failing to provide evidence that he attempted to informally resolve the issue. Carter declares that Plaintiff has not filed a subsequent institutional level administrative remedy attempting to correct this issue, and has never appealed the institutional level response at the Regional or Central Office levels. Id. Plaintiff has only ever filed one administrative remedy at the Regional Office level, Administrative Remedy No. 1084548-R1. Id. This administrative remedy was in regard to an unrelated Unit Disciplinary Committee issue. Id. Plaintiff has never filed any administrative remedies at the Central Office level and has never fully exhausted the grievance process in regard to any issue. Id. Carter attached copies of the SENTRY Inmate History and the SENTRY Administrative Remedy Generalized Retrieval for Kenneth Martin, Reg. No. 26195-078. Id.
Defendants argue that Plaintiff filed six administrative remedies while in custody but five were unrelated to the allegations contained in the complaint. (ECF No. 35 at 22). Defendants contend that on December 17, 2021, Plaintiff filed the single relevant administrative remedy ID No. 1104390-F1, regarding delay in medical care. (ECF No. 35 at 22-23 and Defendants' attachment B). This remedy was rejected because Plaintiff did not attempt informal resolution prior to the submission of the administrative remedy or did not provide evidence of his attempt at informal resolution. Id. Defendants assert that Plaintiff never resubmitted an administrative remedy with the correct documentation to the institution and never filed an administrative remedy at the Regional or Central Office level appealing the response. Id. Defendants contend that Plaintiff makes no allegations of denial of access to the administrative remedy process during any operative time period relevant to this case. Id. Additionally, Defendants assert that while Plaintiff incorrectly alleges that he appealed to the Regional Level, he does not allege that he ever filed a proper administrative remedy at the Central Office level. Id.
In response to the motion for summary judgment, Plaintiff argues that on April 3, 2019, he submitted an Informal Resolution form to the Unit A dorm counselor and he was given a response but did not receive the help he requested. (ECF No. 51). Plaintiff asserts that on April 30, 2020, he submitted a request to staff to Warden Phelps and received a response one month later on June 3, 2020, but did not receive the help requested. Id. Plaintiff asserts that on March 15, 2019, he submitted an Administrative Remedy form “BP:9" but did not receive a response so he filed another Administrative Remedy on June 20, 2019, and September 23, 2019. Id. Plaintiff submitted a form entitled “Informal Resolution Form” dated April 3, 2019, and a form entitled “Inmate Request to Staff” dated April 30, 2020. (ECF No. 51-1 at 20 and 21). Further, Plaintiff submitted a Request for Administrative Remedy Form dated March 15, 2019, with a response stating “third copy: Return to Inmate.” (ECF No. 511 at 17). Plaintiff submitted a copy of a form entitled “Regional Administrative Remedy Appeal” and a form entitled “Central Office Administrative Remedy Appeal” both with a response that the “Original: Return to Inmate.” (ECF No. 51-1 at 18 and 19). However, Plaintiff has not presented evidence or asserted that he filed a proper appeal to the Regional Director and/or General Counsel with regard to the allegations raised in this action to exhaust his remedies.
As set forth above, Carter declares that when an administrative remedy request is rejected, the materials are returned to the inmate and the agency does not keep copies of the rejected remedy request.
Based on the foregoing, while Plaintiff may have filed numerous administrative remedies, he failed to follow the proper procedures to exhaust his administrative remedies with regard to the allegations raised here prior to filing this action by filing an appropriate appeal with the Office of General Counsel. See 28 C.F.R. § 542.15(a). Accordingly, it is recommended that Defendants' motion for summary judgment be granted for failure to exhaust.
Because it is recommended that this action be dismissed for failure to exhaust any available administrative remedies, Defendants' additional arguments are not addressed in this report and recommendation.
RECOMMENDATION
Based on the above reasoning, it is RECOMMENDED that Defendants' motion for summary judgment (ECF No. 35) be granted for failure to exhaust administrative remedies.
Plaintiff's attention is directed to the important notice on the next page.