Opinion
C. A. 1:20-476-BHH-SVH
01-03-2024
Marco Owens, Plaintiff, v. Warden Washington; Officer Cokly; Major Ocean; and John/Jane Doe, Shift Captain, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
Marco Owens (“Plaintiff”), proceeding pro se, is an inmate incarcerated in the South Carolina Department of Corrections (“SCDC”) and has filed this suit alleging he was a victim of an inmate-on-inmate assault occurring on January 30, 20i8 or January 3i, 20i8, in the Monticello Unit at Broad River Correctional Institution (“BRCI”). Plaintiff has sued Associate Warden Gregory Washington (“Washington”) and Major Willie Ocean (“Ocean”), who were both supervisory officials at BRCI in January 20i8, as well as Officer Cokly (“Cokly”) (collectively “Defendants”), arguing that the Monticello Unit should have been on lockdown prior to the incident and that Defendants failed to follow security protocols on the day in question. Defendants seek dismissal of Plaintiff's complaint, arguing in part that he failed to exhaust his administrative remedies.
This matter is before the court on Defendants' motion for summary judgment. [ECF 69]. As Plaintiff is proceeding pro se, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of the importance of the motion and of the need for him to file an adequate response. [ECF No. 71, see also ECF No. 74 (Plaintiff's response)]. Also before the court is Plaintiff's motion to appoint counsel. [ECF No. 75].
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned denies Plaintiff's motion to appoint counsel and recommends the district judge grant Defendants' motion for summary judgment.
I. Factual and Procedural Background
In his unverified and operative amended complaint,Plaintiff alleges that at the end of January 2018, while in his room, he was attacked by five masked inmates. [See ECF No. 47 at 3, see also ECF No. 1 at 17]. The parties agree that on February 5, 2018, Plaintiff submitted a step 1 inmate grievance form stating:
In this Circuit, verified complaints by pro se litigants are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). Plaintiff's operative and amended complaint is not verified. [See ECF No. 47]. However, Plaintiff original complaint was verified [see ECF No. 1] and, in an abundance of caution, the court considers the allegations made in Plaintiff's original complaint as an affidavit submitted in opposition to Defendants' motion for summary judgment.
On January 30, 2018 at time 4:00 pm at Broad River Correctional Institution, in unit Monticello right side cell #274 I Marco Owens # 297589 was on a level 3 facility actually classified as a level 2 at the time and has been classified as a level 2 for at least a year before, on the above date and time I Marco Owen was brutally beaten and stabbed by at least five masked people in cell # 274 and all my belongings were taken by the five masked people ....[ECF No. 69-2 at 6 (spelling and capitalization slightly altered), see also ECF No. 1 at 18 (“After his release[] from the hospital he filed a grievance against his assault and all this property that was stolen ....”)]. In the grievance form, Plaintiff further stated that there was insufficient security because SCDC was short-staffed and indicated he was not seen promptly by medical staff when he was hospitalized following the incident. [ECF No. 69-2 at 6].
Defendants have submitted evidence that Plaintiff's step 1 grievance was initially assigned Grievance Number RCI-0065-18 because he had been transferred to Ridgeland Correctional Institution by February 5, 2018. [ECF No. 69-2 ¶ 12]. Because the subject of the grievance occurred at BRCI, the grievance was reassigned Grievance Number BRCI-0130-18. Id. The step 1 grievance was answered by the warden on April 9, 2018. [ECF No. 69-2 ¶ 12, id. at 7]. Defendants have submitted evidence that the step 1 grievance response was served on Plaintiff on April 19, 2018, and he refused to sign on that date. [ECF No. 69-2 ¶ 12, id. at 7].
Defendants have also submitted evidence that Plaintiff filed an additional step 1 inmate grievance on September 7, 2018, grieving of the January 30, 2018 incident again and noting that he had previously filed a step 1 grievance concerning the same incident, but stating he “never received an answer nor copy of that step 1 grievance filed in February or March this year,” therefore he filed “another step 1 so I can proceed with my legal claim.” [ECF No. 69-2 at 9].
Defendants have submitted evidence that Plaintiff's second step 1 grievance was initially assigned Grievance Number RCl-0326-18, but was reassigned Grievance Number BRCI-0775-18. [ECF No. 69-2 ¶ 13]. This grievance was processed by the Inmate Grievance Coordinator (“IGC”) and returned to him for failing to provide proof that an informal resolution had been attempted. Id. The IGC further stated: “Additionally, I reviewed your financial account summary from 2014, and I do not see any record of you purchasing the items you state are missing. You can refile, with a property receipt as proof of purchased items.” [ECF No. 69-2 ¶ 13, id. at 9].
Defendants have submitted additional evidence from Ocean, who attests he has “no direct knowledge of [the] alleged incident” [ECF No. 69-3 ¶ 2]and evidence that “Cokley was not working at Broad River Correctional Institution on January 30, 2018 or January 31, 2018.” [ECF No. 69-4 ¶ 3, but see ECF No. 1 at 18 (Plaintiff alleging he was assaulted on the same day Cokly was working in the unit)].
Ocean further attests that he had no knowledge of any issues that Plaintiff had with other inmates prior to the incident in late January 2018 and that “[a]t the time, the security staff, including myself and Associate Warden Washington, were not aware nor made aware of any threat to Inmate Owens or others in the Monticello Unit that would have justified a lockdown of the unit prior to the alleged assault occurring on January 30, 2018” or “justified any changes in the staffing ....” [ECF No. 69-3 ¶¶ 3-4]. Plaintiff does not appear to argue otherwise, but alleges he requested to an unknown person prior to the incident to be transferred to a level 2 instead of a level 3 facility. [ECF No. 1 at 19].
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either 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;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. 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., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Defendants' Motion for Summary Judgment
Defendants argue Plaintiff failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides “[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.” Id. 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). 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). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
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). Defendants have the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross v. Blake, 136 S.Ct. 1850 (2018).
Here, there appears no dispute that Plaintiff failed to pursue his administrative remedies when he filed two step 1 grievances, but nothing else. [See, e.g., ECF No. 69-2 ¶¶ 12-13 (“Based on my review, Inmate Owens never filed a Step 2 grievance with respect to Grievance Number BRCI-0130-18. As a result, he did not exhaust all steps available to him as to Grievance Number BRCI-0130-18 .... Inmate Owens did not refile the grievance as permitted. Inmate Owens also did not appeal the returned Grievance Number BRCI-0775-18 to the Branch Chief. As a result, he did not exhaust all steps available to him as to Grievance Number BRCI-0775-18.”)]. Thus, Defendants have met their burden of establishing that Plaintiff failed to exhaust his administrative remedies.
In Ross, the Supreme Court set forth three scenarios where the administrative process is considered “unavailable”: (1) the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) the “administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation.” 136 S.Ct. at 1859-60.
Plaintiff has offered no evidence-nor even argument-that any of these scenarios apply. [See ECF No. 74].Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment for failure to exhaust administrative remedies.
Plaintiff's response to summary judgment states only that he was unable to “do summary judgment of my own account” due to his “own hospitalization,” that he objects to Defendants' motion as untimely, and that he is moving for appointment of counsel. [ECF No. 74].
Given the recommendation above, it is unnecessary to address Defendants' additional arguments in support of dismissal, including that Plaintiff (1) failed to establish a claim under the Eighth Amendment against Defendants for failure to protect him from an assault by his cellmate, (2) has not sufficiently pled nor supported his generalized security-related allegations against Washington and Ocean, and (3) has not pled nor demonstrated any personal involvement by Cokley in any of his allegations.
2. Plaintiff's Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel, stating: “I believe that I am unable to proceed with the assertion of my claims in this case without the assistance of counsel” and that “I believe I qualify for the appointment of counsel.” [ECF No. 75 at 1].
No right to counsel exists in civil cases absent “exceptional circumstances.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated in part on other grounds by Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989). The existence of exceptional circumstances “hinges on [the] characteristics of the claim and the litigant.” Whisenant, 739 F.2d at 163. Plaintiff's filings indicate that he possesses the ability to proceed pro se, and he has failed to demonstrate that exceptional circumstances justify appointment of counsel. Accordingly, the court denies the motion to appoint counsel.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Plaintiff's motion to appoint counsel [ECF No. 75] and recommends the district judge grant Defendants' motion for summary judgment [ECF No. 69], dismissing Plaintiff's claims without prejudice.
IT IS SO ORDERED AND RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).