Opinion
C. A. 9:22-cv-04393-SAL-MHC
01-19-2024
Quatavious Bernard Bivens, Plaintiff, v. Lt. Borum, Sgt. Freeman, Bryan Sterling, Nurse K. Burgess, Nurse A. Enloe, Nurse Green, Nurse Courtney Oles, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE.
Plaintiff Quatavious Bernard Bivens (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while he was incarcerated within the South Carolina Department of Corrections (“SCDC”). ECF Nos. 1, 25. Defendants Lt. Borem, Sgt. Freeman, Bryan Stirling, Nurse K. Burgess, Nurse A. Enloe, Nurse Green, and Nurse Courtney Olds (collectively, “Defendants”) filed a Motion for Summary Judgment. ECF No. 47. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition. ECF No 69. Defendants filed a Reply. ECF No. 70. The matter is, therefore, ripe for review.
Defendants note that the proper spelling of Defendant Borem, Stirling, and Olds are not reflected in the case caption. ECF No. 47-1 at 1 nn.1-3. The undersigned will refer to these Defendants according to the proper spelling; however, as Defendants have not moved to correct the parties' names, the case caption on CM/ECF will remain unchanged.
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 Civil Rule 73.02(B)(2)(d) and (e) (D.S.C.). Because the Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.
I. BACKGROUND
Plaintiff's suit arises from an incident that occurred on April 18, 2022, while Plaintiff was incarcerated at Perry Correctional Institution (“PCI”). Plaintiff brings his claims pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth and Fourteenth Amendment rights for excessive use of force, deliberate indifference to medical needs, and due process violations. ECF No. 25 at 1, 3.
Specifically, Plaintiff alleges that on April 18, 2022, he was transported from the Restrictive Housing Unit (“RHU”) at PCI to the Crisis Stabilization Unit (“CSU”) at Broad River Correctional Institution. ECF No. 25 at 2. Plaintiff maintains that he was handcuffed uncomfortably by Defendant Borem. ECF No. 25 at 2. He alleges that when Defendant Borem and Defendant Freeman placed him and two other inmates in the transport van, Plaintiff and the other inmates started complaining that the handcuffs were too tight. ECF No. 25 at 2. Plaintiff alleges that he specifically asked Defendant Borem to loosen the cuffs, but Defendant Borem ignored him. ECF No. 25 at 2.
Plaintiff alleges that his hands were numb by the time he arrived at the CSU. ECF No. 25 at 2. Plaintiff claims his hands had changed colors, he had no feeling in his hands, and one wrist bore the mark of a handcuff in the form of a ring. ECF No. 25 at 2. Plaintiff alleges he was seen by Defendant Olds upon arriving at the CSU, and he was informed he might have a pinched nerve and that sensation would return. ECF No. 25 at 2.
Plaintiff claims that days later, he still had no feeling in his right index finger and thumb. ECF No. 25 at 2. Plaintiff alleges that he was supposed to be scheduled for a nerve conduction study in May or June, but it appears the nerve conduction study did not happen until December. See ECF No. 25 at 2.
Plaintiff alleges that he filed several complaints concerning the pain in his hand and bases his deliberate indifference to a serious medical need claim on the subsequent medical treatment for his thumb. Plaintiff seeks compensatory and punitive damages, along with other forms of relief.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 47. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendants argue they are entitled to summary judgment because Plaintiff did not exhaust his administrative remedies. ECF No. 47-1 at 2-8. Alternatively, they argue that Plaintiff has not produced evidence sufficient to sustain a § 1983 action for various reasons. See ECF No. 47-1 at 8-27. The undersigned agrees Plaintiff did not exhaust his administrative remedies, which is dispositive of the action.
Defendants argue they are entitled to relief because Plaintiff did not exhaust his administrative remedies before filing this action as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's exhaustion requirement is mandatory.” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); see also Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement.”). Section 1997e mandates “proper” exhaustion; thus, a “procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006).
The PLRA “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). “Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff” Id. (citation and internal quotation marks omitted).
Here, Defendants have met their initial burden in showing Plaintiff's failure to exhaust. Defendants submitted the affidavit of Felecia McKie, who is the Agency Inmate Grievance Coordinator/Branch Chief of the Office of General Counsel of SCDC. ECF No. 47-4. As Agency Inmate Grievance Coordinator, McKie has access to inmate grievance records at SCDC, including Plaintiff's. ECF No. 47-4 at 1.
In her affidavit, McKie detailed the grievance system and noted the steps an inmate must take to properly exhaust the administrative process. ECF No. 47-4 at 1-3. SCDC has a three-step grievance process. First, an inmate must submit a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”) in an effort to resolve the grievance informally. ECF No. 47-4 at 2. This Request must be submitted to the appropriate supervisor or staff person within eight (8) working days of the incident. ECF No. 47-4 at 2. This attempt at informal resolution is a prerequisite for the next step in the grievance process. ECF No. 47-4 at 2. Staff members are allowed forty-five (45) days to respond to RTSMs or ARTSMs. ECF No. 47-4 at 2.
In addition to the materials Defendants attached to their Motion, the undersigned takes judicial notice of other cases that have detailed the grievance procedure. See Smyth v. Stirling, No. 0:21-CV-00649-RBH, 2022 WL 3367759, at *3 n.6 (D.S.C. Aug. 16, 2022) (collecting cases).
Second, if no response to the informal Request is provided within the forty-five days or if the inmate is unsatisfied with the response, the inmate must file a Step 1 Grievance Form (10-5) to proceed to the second step. ECF No. 47-4 at 2. The Step 1 Grievance must be completed and placed in the Grievance Box at the institution within eight (8) working days of the RTSM response. ECF No. 47-4 at 2. The Step 1 Grievance is then processed and returned to the inmate with a decision. ECF No. 47-4 at 2-3.
Inmates are allowed to immediately file a Step 1 Grievance, bypassing an informal resolution attempt, when the issue grieved involves an emergency-related situation, disciplinary conviction, or custody reduction. ECF No. 47-4 at 2.
Third, if unsatisfied with the SCDC decision as to the Step 1 Grievance, inmates may then appeal that decision by filing a Step 2 Grievance Form. ECF No. 47-4 at 2-3. A Step 2 Grievance Form must be submitted within five working days of receipt of the response to the Step 1 Grievance. ECF No. 47-4 at 3. SCDC's response to a Step 2 Grievance is considered the final agency decision on the issue, at which point the inmate's administrative remedies have been exhausted. ECF No. 47-4 at 3.
McKie reviewed Plaintiff's grievance history and attested that Plaintiff did not follow and/or use all the options available to him through SCDC's Inmate Grievance System to address the matters raised in the action before this Court. See ECF No. 47-4. Specifically, she averred Plaintiff filed a Step 1 Grievance on May 5, 2022, which claimed Defendants Borem and Freeman restrained Plaintiff in a manner that pinched a nerve in his right thumb during a transport from PCI to the CSU in Columbia. ECF No. 47-4 at 3, ¶ 20; ECF No. 47-5 at 1. This grievance was returned to Plaintiff because he failed to attempt informal resolution as required by SCDC policy. ECF No. 47-4 at 3, ¶ 21; ECF No. 47-5 at 1. Plaintiff was advised that an attempt at informal resolution was mandatory, and he was further provided instructions on how to proceed if he was not satisfied with the response to his attempt at informal resolution. ECF No. 47-4 at 3-4, ¶ 21; ECF No. 47-5 at 1. No Step 2 appeal was filed. ECF No. 47-4 at 4, ¶ 21; ECF No. 47-5 at 1.
Instead, Plaintiff filed another Step 1 Grievance on May 16, 2022, which he labeled as an “Emergency Grievance.” ECF No. 47-4 at 4, ¶ 22; ECF No. 47-5 at 2. Because it was labeled as an “Emergency Grievance,” it was forwarded to McKie's office. ECF No. 47-4 at 4, ¶ 22. However, this grievance was not considered an emergency, as it raised the same issues presented in the May 5 grievance. ECF No. 47-4 at 4, ¶ 22. Consequently, as before, this grievance was returned to Plaintiff because he failed to attempt informal resolution. ECF No. 47-4 at 4, ¶ 23. Detailed instructions were again provided to Plaintiff on how to proceed. ECF No. 47-4 at 4, ¶ 23; ECF No. 47-5 at 2. No Step 2 appeal was filed. ECF No. 47-4 at 4, ¶ 23.
On November 29, 2022, Plaintiff filed a Step 1 Grievance regarding his medical care. ECF No. 47-5 at 3. Plaintiff claimed that the feeling in his right thumb had not come back since the incident with Defendants Borem and Freeman, that he raised this issue to medical, and that a nerve conduction study was scheduled but had not yet taken place. ECF No. 47-4 at 4, ¶ 24; ECF No. No. 47-5 at 3. Plaintiff referenced an RTSM on August 16, 2022, wherein Defendant Burgess advised Plaintiff the procedure had been approved. ECF No. 47-4 at 4, ¶ 24; ECF No. No. 47-5 at 3. Plaintiff stated Defendant Green had written him on November 29, informing him that there were “many appointment[s]” and he had to be patient. ECF No. 47-4 at 4, ¶ 24; ECF No. No. 475 at 3. This grievance was returned as untimely because the August 16 RTSM referenced within was answered on August 18, 2022, and Plaintiff had eight days from that date to file a grievance in response. ECF No. 47-4 at 4, ¶ 25; ECF No. No. 47-5 at 3. Because Plaintiff waited until November 29, 2022, to file his grievance, his grievance was closed. ECF No. No. 47-5 at 3. As before, no Step 2 appeal was filed. ECF No. 47-4 at 4, ¶ 25.
Plaintiff filed another Step 1 Grievance on December 13, 2022, wherein he asserted he had no feeling in his thumb, but also claimed to have severe pain at night. ECF No. 47-4 at 4, ¶ 26; ECF No. No. 47-5 at 4. In the “Action Requested” section, Plaintiff wrote: “To have proper treatment.” ECF No. No. 47-5 at 4. This grievance was returned to Plaintiff as being a duplicate of the November 29 grievance, which resulted in the grievance being closed. ECF No. No. 47-5 at 4. No Step 2 appeal was filed. ECF No. 47-4 at 4, ¶ 26.
Notably, this Step 1 Grievance was filed eight days after this current federal action was filed. See ECF No. 1.
Upon review of the documents detailed above, Defendants have shown that Plaintiff failed to exhaust his administrative remedies prior to initiating this action. See ECF No. 47-4 at 4, ¶ 27; see also Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff').
In his Response, Plaintiff appears to argue that the administrative process became unavailable to him. He cites to Woodfordv. Ngo, 548 U.S. 81 (2006), and argues he “made [two] attempts to write [a] Grievance regarding the incident and was denied.” ECF No. 69 at 5. Other than this single sentence, Plaintiff does not elaborate or present any other argument as to how the administrative process became unavailable. See ECF No. 69 at 4-5.
Plaintiff also argues: “Although it is mandatory that an inmate exhaust administrative remedies before filing an action in Federal Court regarding conditions of his confinement, an inmate does not have to allege facts in his Complaint demonstrating exhaustion.' ECF No. 69 at 4. While this is a true statement, see Jones v. Bock, 549 U.S. 199, 212 (2007), it is irrelevant because the discovery period for this case has ended, and Defendants have moved for summary judgment. See generally Celotex Corp., 477 U.S. at 322; see also Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff').
The Supreme Court has recognized that the PLRA contains its own textual exception to the mandatory exhaustion requirement, noting the requirement hinges on the “availability' of administrative remedies-that is, an inmate “must exhaust available remedies, but need not exhaust unavailable ones.' Ross, 578 U.S. at 642. The Supreme Court set forth three scenarios where the administrative process, although officially on the books, might be considered “unavailable' for purposes of exhausting under the PLRA. Id. at 643-44. The Court held an administrative procedure is unavailable (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) when it is “so opaque that it becomes, practically speaking, incapable of use;” and (3), “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. Facts supporting the existence of any of these scenarios could remove an inmate's obligation to exhaust his administrative remedies. Id.
Here, it is unclear which Ross exception Plaintiff is arguing. In any event, Plaintiff has not shown the grievance procedure became “unavailable” to him under any exception, and the Court finds that Defendants are entitled to summary judgment for two reasons.
First, it is undisputed that Plaintiff failed to exhaust his administrative remedies. See ECF No. 47-4 at 4, ¶ 27. Plaintiff has not produced any evidence that he appealed the decisions he received from his Step 1 Grievances, as required by SCDC procedure. He has not submitted a copy of any appeals to written grievance forms, nor has he produced evidence of any steps he believes he took to follow-up on the status of any requests to staff or verbal complaints prior to the filing of this action.
Plaintiff notes in the Statement of Facts section that he “even tried to do an ‘Emergency' Grievance and was turned down.” ECF No. 69 at 3. As noted in McKie's affidavit, inmates are allowed to immediately file a Step 1 Grievance, bypassing an informal resolution attempt, when the issue grieved involves an emergency-related situation, disciplinary conviction, or custody reduction. ECF No. 47-4 at 2. However, as already detailed above, it was determined that Plaintiff's “emergency” grievance filed on May 16 was, in fact, not an emergency because it raised the same issues presented in the May 5 grievance; thus, it was returned to Plaintiff with instructions on how to attempt the required informal resolution. ECF No. 47-4 at 4, ¶¶ 22-23. Plaintiff does not challenge the determination that his May 16 grievance was not an emergency. In any event, as McKie noted, no Step 2 appeal was filed. ECF No. 47-4 at 4, ¶¶ 23, 27.
Second, other than a single sentence in his Response, Plaintiff has not meaningfully challenged Defendants' assertions regarding his failure to exhaust the grievances detailed in McKie's affidavit. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). Plaintiff has not argued or put forth any evidence that he was unable to avail himself to the grievance procedure or otherwise demonstrated that he was prevented from exhausting his administrative remedies. See Graham, 413 Fed.Appx. at 663 (noting Fourth Circuit precedent holds that “in order to show that a grievance procedure was not ‘available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure” (citing Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008))). Consequently, Plaintiff has failed to demonstrate that SCDC's administrative remedies were “unavailable” to him-that is, that the procedures “operate[d] as a dead end,” were so opaque that they were “incapable of use,” or SCDC officials actively “thwart[ed] inmates from taking advantage” of the process. See Ross, 578 U.S. at 643-44.
Indeed, as noted by McKie, Plaintiff filed thirteen grievances on a “variety of topics” for the 2022 year. ECF No. 47-4 at 3, ¶ 19. Undoubtedly, SCDC has a grievance procedure that was available to Plaintiff, as he was using it to grieve other matters. On this record, Plaintiff has not shown prison officials prevented him from using the grievance process. See Moss v. Harwood, 19 F.4th 614, 623 (4th Cir. 2021) (“But where, as here, an inmate in fact is able to participate in a grievance process, notwithstanding alleged obstacles, then that process remains ‘available' for purposes of the PLRA”).
As a result, Plaintiff is unable to overcome the undisputed evidence that he failed to exhaust his available administrative remedies. Accordingly, the undersigned recommends granting Defendants' Motion for Summary Judgment. See Brown v. Ramos, No. CV 5:20-00052-RMG-KDW, 2020 WL 7000846, at *4 (D.S.C. Sept. 29, 2020) (“[T]he undersigned recommends that Defendants' Motion for Summary Judgment be granted because Plaintiff failed to exhaust his available administrative remedies before filing this action.”), report and recommendation adopted, No. CV 5:20-0052-RMG, 2020 WL 6305397 (D.S.C. Oct. 28, 2020); Jones v. Clawson, No. CA 5:11-1533-RBH-KDW, 2012 WL 3096048, at *4 (D.S.C. July 17, 2012) (recommending granting summary judgment in favor of Defendants where Plaintiff failed to show he had exhausted his administrative remedies), report and recommendation adopted, No. 5:11-CV-01533-RBH, 2012 WL 3079160 (D.S.C. July 30, 2012), aff'd, 486 Fed.Appx. 342 (4th Cir. 2012); see also 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.”); Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999) (determining that an inmate incarcerated in a state prison must first comply with the grievance procedures established by the state department of corrections before filing a federal lawsuit under § 1983).
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 47, be GRANTED.
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).