Opinion
2:21-cv-02720-DCC-MGB
01-17-2023
Marion Benjamin Powell, Plaintiff, v. South Carolina Department of Corrections, Bryan Stirling, Dexter Lee, Willie Davis, Joe Anderson,[1] Dennis Patterson, Jona Hollis, Terrie Wallace, and Sherman L. Anderson, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a prisoner within the South Carolina Department of Corrections (“SCDC”) proceeding pro se, filed this civil action on August 23, 2021, pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he has been in solitary confinement for an excessive period of time with no window, no working heat, and no visitors. (Dkt. No. 9 at 1.) Plaintiff contends that Defendants are violating his Eighth Amendment right to be free from cruel and unusual punishment, his constitutional right to Due Process, and South Carolina tort law by subjecting him to these conditions. (Id. at 1, 6.) Currently before the Court is Defendants' Motion for Summary Judgment. (Dkt. No. 86.) Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. For the reasons stated below, the undersigned recommends the Court grant the Motion.
BACKGROUND
Plaintiff is a prisoner currently housed at Perry Correctional Institution (“Perry”). His complaint focuses on conditions of confinement during his time at Kirkland Correctional Institution (“Kirkland”). (Dkt. No. 9 at 2.) He alleges that he has been in solitary confinement since June 29, 2019. (Id. at 7.) Plaintiff alleges he was placed in solitary confinement “after stabbing a correctional officer in self-defense against an attempted lynch style assault by correctional staff at Broad River Correctional Institution.” (Dkt. No. 1 at 1.) In later briefings, Plaintiff alleges he remains in solitary confinement after being transferred to Perry on May 6, 2022. (Dkt. Nos. 89; 134 at 7.)
Plaintiff claims that while at Kirkland, his cell had no heat and no window, and he was not allowed to have any visitors. (Dkt. No. 9 at 7.) Plaintiff alleges that these conditions of confinement have negatively affected his physical and mental health. (Id. at 11.) Plaintiff contends that he submitted various complaints about his living conditions through Kirkland's grievance system, so Defendants “are well aware” of his conditions of confinement. (Id. at 10-17.) However, Plaintiff claims that the prison's grievance procedures are unfair and impossible. (Id. at 8.) As a result, Plaintiff filed the instant civil action seeking injunctive relief only. (Id. at 12.) In his Amended Complaint, filed October 25, 2021, Plaintiff states, “I am not requesting any money at all. Nor am I seeking punishments for the Defendants involved. All I want for the Court to do is to have me removed from solitary confinement. I have been confined to solitary for 28 months.” (Id.)
On May 2, 2022, Defendants filed a Motion for Summary Judgment. (Dkt. No. 86.) On May 3, 2022, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 87.) Plaintiff filed a response in opposition to Defendants' Motion on November 3, 2022. (Dkt. No. 134.) Defendants did not file a reply brief. Their Motion for Summary Judgment is ripe for review.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Pub'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a court considers the motion, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
Defendants argue they are entitled to summary judgment because: (1) Plaintiff failed to exhaust his administrative remedies; (2) Plaintiff fails to allege any personal involvement by Defendants Brian Stirling, Dexter Lee, Joe Anderson, Dennis Patterson, and Sherman L. Anderson; and (3) Plaintiff's § 1983 claims against Defendants in their official capacities are improper. (Dkt. No. 86-1.) The undersigned addresses these arguments below.
A. Exhaustion of Administrative Remedies
Defendants first argue that Plaintiff has failed to exhaust his administrative remedies and his claims should therefore be dismissed. (Dkt. No. 86-1 at 2-4.) Section 1997e(a) of the PLRA 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.” 42 U.S.C. § 1997e(a). Through the enactment of this statute, “Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516 (2002).
The purpose of the exhaustion requirement is twofold. First, it gives an administrative agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” Woodford v. Ngo, 548 U.S. 81, 89 (2006) (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Id.
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). An inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983.” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see also Johnson v. Ozmint, 567 F.Supp.2d 806, 815-16 (D.S.C. 2008) (granting summary judgment on the plaintiff's § 1983 claims for failure to exhaust his administrative remedies with respect to those claims).
Relevant here, SCDC Policy OP-22.38, “Restrictive Housing Unit,” issued November 5, 2015, states
The SCDC grievance mechanism (except for placement in SSR [substantiated security risk] and/or denial of release from SSR) will be available to all RHU [Restricted Housing Unit] inmates in accordance with SCDC Policy GA-01.12, “Inmate Grievance System.” . . . Inmates may appeal SSR placement or denial of release from SSR directly to the Agency Director. The written appeal must be initiated no later than 10 (ten) working days (Monday through Friday) after the inmate's admission to SSR. Specific reasons for the appeal must be given by the inmate. The Agency Director will respond to this appeal within 30 working days from the date of the appeal.(Dkt. No. 141-1 at 24-25.) Per this Policy, the Substantiated Security Risk (“SSR”) Unit is a
specialized housing unit for inmates who have demonstrated an unwillingness to conform to the rules and regulations of a Restricted Housing Unit, who have been charged with violent criminal behavior committed while in the general population, and/or for whom emergency placement has been ordered by the Agency Director or the Deputy Director of Operations. In order to maintain the safety and security of the general population, staff and the Agency, the SCDC will house those inmates requiring the most intense levels of supervision and monitoring in a separate housing unit in [SSR] status apart from the general population.(Dkt. No. 141-1 at 13.)
The updated version of this SCDC Policy, issued August 12, 2022, states “Inmates in RH will have access to the inmate grievance system in accordance with SCDC Policy GA-01.12, “Inmate Grievance System.” (Dkt. No. 141-2 at 29.) It is unclear if this updated version of SCDC Policy OP-22.38 is currently in effect-the Policy states that the updated provisions “shall be phased in over time and all aspects shall not be effective immediately.” (Id. at 1.)
In their Motion for Summary Judgment, Defendants state that Plaintiff has filed at least 18 individual grievances, and they have submitted these grievances with their Motion. (Dkt. Nos. 86 1 at 3; 86-2.) Without any further explanation, Defendants reference these grievances to argue that they are entitled to summary judgment because “Plaintiff failed to exhaust his administrative remedies.” (Dkt. No. 86-1 at 3-4.)
In his Amended Complaint, Plaintiff contends that he has submitted various complaints about his living conditions through the prison's grievance system, so Defendants “are well aware” of his conditions of confinement. (Dkt. No. 9 at 10-17.) Plaintiff claims that the prison's grievance procedures are unfair and impossible and that “most of [his] serious complaints are never returned to [him] at all.” (Id. at 8.) Plaintiff asserts that he has either received no response or a “non-grievable” response with respect to any grievances he submitted about the lack of heat, the excessive solitary confinement, and the lack of a cell window. (Id. at 16.) In his response to Defendants' Motion, Plaintiff asserts that the 2015 version of SCDC Policy OP-22.38 renders the grievance policy unavailable to him with respect to any requests to be removed from the SSR unit. (Dkt. No. 134 at 2.) Plaintiff has also submitted with his response brief declarations from two other inmates, averring to the difficulties with accessing the grievance process while housed in the Restrictive Housing Unit at Kirkland. (Dkt. No. 134-1 at 2-3, 4-5.)
Notably, Defendants do not address the exception to the grievance procedure pertaining to release from placement in SSR, and the record indicates Plaintiff may have been in SSR while at Kirkland. (Dkt. No. 134-1 at 7.) Without any explanation or argument on this issue from Defendants, the undersigned cannot find they are entitled to summary judgment based on Plaintiff's failure to exhaust any grievances pertaining to excessive solitary confinement. Relevant SCDC Policy indicates a separate appeals process governs such complaints, and Defendants offer no specific argument that Plaintiff has failed to comply with this appeals process.
Indeed, Defendants offer no analysis of the SCDC Policies pertaining to the Restricted Housing Unit anywhere in their briefings.
Further, administrative remedies are considered unavailable, inter alia, where the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross v. Blake, 136 S.Ct. 1850, 1853-54 (2016). Here, the undersigned cannot find Defendants are entitled to summary judgment based on Plaintiff's failure to exhaust his administrative remedies where Plaintiff alleges that grievances about “most of [his] serious complaints are never returned to [him] at all” and has submitted declarations in support of this allegation. (Dkt. Nos. 9 at 8; 134-1 at 2-3, 4-5.) Defendants offer no response to Plaintiff's allegations on this issue, and the evidence simply does not establish that Defendants are entitled to summary judgment based on exhaustion.
B. Eleventh Amendment Immunity
Defendants next assert that Plaintiff's § 1983 claims are brought against them only in their official capacities and are therefore barred by the Eleventh Amendment. (Dkt. No. 86-1 at 5.) Relevant here, the Amended Complaint specifies that Defendants are sued in their “official capacity,” and seeks only injunctive relief in the form of Plaintiff's release from solitary confinement.(Dkt. No. 9.)
While in some cases, pro se complaints are liberally construed to find that defendants are sued in both their official and individual capacities, the factors that would warrant such an interpretation are missing here. See Harris v. Copeland, No. 2:11-cv-02209-GRA, 2013 WL 4504764, at *5 (D.S.C. Aug. 22, 2013) (factors that weigh in favor of finding that the official has been sued in his individual capacity include the plaintiff's failure to plead that the defendant acted according to official policy or custom, or the lack of indicia of such a policy or custom on the face of the complaint, and whether the plaintiff requested compensatory or punitive damages, which would be unavailable in an official capacity suit) (citing Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995)). Plaintiff does not dispute Defendants' assertion that he brings claims against them in their official capacities only.
The Eleventh Amendment prohibits federal courts from entertaining an action against a state. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 10-11 (1890). Further, Eleventh Amendment immunity “extends to ‘arm[s] of the State,' including state agencies and state officers acting in their official capacity,” Cromer v. Brown, 88 F.3d 1315, 1332 (4th Cir. 1996) (alteration in original) (internal citations omitted), because “a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office . . . [and] is no different from a suit against the State itself,” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (internal citation omitted). Accordingly, “[s]tate officials may only be sued in their individual capacities.” Rhoden v. S.C. Dep't of Corr., No. 4:17-cv-2537-HMH-TER, 2017 WL 9288217, at *3 (D.S.C. Oct. 4, 2017) (finding claims against prison warden in his official capacity should be dismissed because warden is entitled to Eleventh Amendment immunity), adopted by, 2017 WL 5494126 (D.S.C. Nov. 16, 2017), amended, 2017 WL 6032341 (D.S.C. Dec. 6, 2017); Edwards v. Patell, No. 4:06-cv-0748-HFF-TER, 2007 WL 2428548, at *8 (D.S.C. Aug. 21, 2007) (dismissing claims brought against defendant “employee of SCDC” in his official capacity). “As a state agency, SCDC is an arm of the State of South Carolina.” Abebe v. S.C. Dep't of Corr., No. 0:09-cv-3111-MBS-PJ, 2010 WL 2991595, at *2 (D.S.C. July 2, 2010), adopted in part, 2010 WL 3258595 (D.S.C. Aug. 16, 2010). The South Carolina Tort Claims Act preserves Eleventh Amendment immunity. See S.C. Code Ann. § 15-78-20(e). Based on the foregoing, the undersigned recommends that the Eleventh Amendment bars Plaintiff's claims against SCDC and that SCDC should be dismissed as a Defendant on this basis.
As for the individual Defendants, the Supreme Court has found that a suit for injunctive relief against a state officer to prevent ongoing violations of federal law is not a suit against the state for purposes of the Eleventh Amendment. More specifically, in the landmark Supreme Court decision, Ex parte Young, the Court held that, although prohibited from giving orders directly to a State, federal courts could enjoin state officials in their official capacities. 209 U.S. 123, 155-56 (1908). “The Ex Parte Young exception is directed at ‘officers of the state [who] are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings'” to enforce an unconstitutional act against affected parties. McBurney v. Cuccinelli, II, 616 F.3d 393, 399 (4th Cir. 2010) (citing Ex Parte Young, 209 U.S. at 155-56). “Thus, to correctly plead such a claim, the proper State official must be included as a defendant by name and identified in the body of the complaint with a specific unconstitutional policy, custom, or practice.” Smith v. City of Huntington, No. 3:17-cv-03806, 2017 WL 5180456, at *3 (S.D. W.Va. Sept. 28, 2017), adopted sub nom. Smith v. City of Huntignton, 2017 WL 5180437 (S.D. W.Va. Nov. 8, 2017); see also Woods v. S.C. Dep't of Health & Human Servs., No. 3:18-cv-00834-MGL-KDW, 2019 WL 1995136, at *6 (D.S.C. Apr. 18, 2019) (finding that a “claim for prospective injunctive relief permitted by Ex Parte Young . . . would be brought against state officers or agency employees in their official capacities”), adopted by, 2019 WL 1995511 (D.S.C. May 6, 2019).
As discussed above, Plaintiff seeks his removal from solitary confinement. Plaintiff's pleadings do not specify which of the named Defendants, if any, has the power to enforce this sought relief. The undersigned could recommend dismissal of the action on this basis alone. See Smith v. Demory, No. 9:19-cv-1771-HMH-BM, 2020 WL 2814330, at *3 (D.S.C. Feb. 21, 2020) (“Although state officials may be sued in their official capacities for prospective injunctive relief, in order to proceed with his claim Plaintiff's allegations must nonetheless show that the state official or employee being sued has both the responsibility for the alleged ongoing violations of federal law as well as the authority to provide prospective redress for those alleged ongoing violations.”), adopted by, 2020 WL 1181310 (D.S.C. Mar. 12, 2020).
However, the SCDC policies in the record indicate that Defendant Joel Anderson, as the Deputy Director of the Office of Operations at SCDC, may have the authority to release inmates from solitary confinement. See SCDC Policy OP-22.38, “Restrictive Housing Unit” (August 12, 2022 version) (¶ 10.9“Inmates may appeal MX placement or denial of release from MX directly to the Deputy Director of Operations”); (Nov. 5, 2015 version) (¶ 11.5.4 “The Deputy Director of Operations will approve or disapprove the recommendation from the SSR Review Board [to release an inmate from SSR].”). Thus, in an abundance of caution, the undersigned considers the merits of Plaintiff's claim for injunctive relief against Defendant Anderson. The undersigned recommends, however, that the Eleventh Amendment bars Plaintiff's claim for injunctive relief against the remaining individual defendants, because there is no evidence or argument that they have the authority to remove Plaintiff from solitary confinement. Accordingly, Defendants Bryan Stirling, Dexter Lee, Willie Davis, Dennis Patterson, Jona Hollis, Terrie Wallace, and Sherman L. Anderson should be dismissed from this action.
Even with these provisions, it is still unclear if Anderson can release an inmate from solitary confinement without the involvement of the Institutional Classification Committee.
C. Injunctive Relief
As noted above, Plaintiff's only claim in this action is one for injunctive relief. The Fourth Circuit has recognized that “federal injunctive relief is an extreme remedy.” Simmons v. Poe, 47 F.3d 1370, 1382 (4th Cir. 1995). To obtain such an injunction, Plaintiff must show (1) irreparable injury, (2) that remedies at law “are inadequate to compensate for that injury,” (3) “the balance of hardships between the plaintiff and defendant” warrants a remedy, and (4) an injunction would not disserve the public interest. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010). Where a § 1983 plaintiff seeks injunctive relief, such relief cannot be granted absent the plaintiff's showing that there is a “real or immediate threat that [he] will be wronged again . . . in a similar way.” Simmons, 47 F.3d at 1382 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).
In addition to this framework, the undersigned is mindful that the injunctive relief here is only permitted through the Ex parte Young exception, which “is not implicated where there is not any ongoing violation of federal law and a plaintiff is simply trying to rectify the harm done in the past.” Doe v. Virginia Polytechnic Inst. & State Univ., 400 F.Supp.3d 479, 4889 (W.D. Va. 2019). Further, because Plaintiff's claim for injunctive relief stems from his conditions of confinement within Kirkland (Dkt. No. 9), his claim must be considered in accordance with the PLRA. 18 U.S.C. § 3626(a)(1). “The PLRA provides that ‘in any civil action with respect to prison conditions . . . [t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.'” Porter v. Clarke, 923 F.3d 348, 366 (4th Cir. 2019), as amended (May 6, 2019) (quoting 18 U.S.C. § 3626(a)(1)).
Upon careful review, the undersigned recommends that Plaintiff's transfer to Perry on or about May 6, 2022 rendered his claim for injunctive relief moot. (Dkt. No. 89.) “Mootness questions often arise in cases involving inmate challenges to prison policies or conditions, and courts, including [the Fourth Circuit Court of Appeals], have held that the transfer of an inmate from a unit or location where he is subject to the challenged policy, practice, or condition, to a different unit or location where he is no longer subject to the challenged policy, practice, or condition moots his claims for injunctive and declaratory relief, even if a claim for money damages survives.” Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007) (collecting cases). As discussed above, Plaintiff's Amended Complaint focuses entirely on his conditions of confinement while in Kirkland; namely, being held in solitary confinement for almost three years in a cell without windows or heat and without any visitation rights. Other than Plaintiff remaining in solitary confinement at Perry pending his placement in the Step Down Program (Dkt. No. 145-1), there is no evidence that Plaintiff is subject to any of the conditions alleged in the Amended Complaint.
Here, the undersigned acknowledges Plaintiff's allegations in later briefings that his cell window at Perry is “blocked/covered not allowing sight of outside and sunlight” and that he has “not received a family visit as of October 2022.” (Dkt. Nos. 89 at 2; 134 at 4.) However, Plaintiff's allegations are not verified, and he has not presented any evidence to otherwise support these allegations. See Goodman v. Diggs, 986 F.3d 493, 495 (4th Cir. 2021) (“A complaint is ‘verified' if it is ‘signed, sworn, and submitted under penalty of perjury.'” (quoting James v. Hale, 959 F.3d 307, 314 (7th Cir. 2020). Without any actual evidence to support Plaintiff's allegations of his conditions of confinement at Perry, the undersigned cannot find he is subject to the same conditions at Perry as he was at Kirkland. In other words, the mere evidence of Plaintiff's current housing in solitary confinement at Perry, without more, does not indicate Plaintiff is subject to the same “policy or practice [at Kirkland] that provoked his lawsuit in the first place.” Incumaa, 507 F.3d at 287.
To the extent Plaintiff now believes his conditions of confinement at Perry constitute a constitutional violation, that would be the subject of a separate lawsuit.
Recent Fourth Circuit case law indicates conditions beyond mere solitary confinement are required to support finding an Eighth Amendment violation. See Porter v. Clarke, 923 F.3d 348, 359-60 (4th Cir. 2019), as amended (May 6, 2019) (finding conditions of confinement on Virginia's death row segregation units, specifically spending between 23 and 24 hours a day “alone, in a small . . . cell” with “no access to congregate religious, educational, or social programming,” “pose a ‘substantial risk' of serious psychological and emotional harm” sufficient to establish the objective prong of an Eighth Amendment violation).
In sum, the undersigned recommends that even if Plaintiff's claim for injunctive relief survives against Defendant Joel Anderson, Plaintiff's transfer to Perry rendered his claim moot. Defendants' Motion for Summary Judgment should therefore be granted, and this action should be dismissed.
CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment (Dkt. No. 86) should be GRANTED.
IT IS SO RECOMMENDED.
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 Post Office Box 835 Charleston, South Carolina 29402
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).