This argument is based on the SCDC Grievance Policy which guides that an inmate must refrain from filing suit in federal court until all time periods for both Step One and Step Two Grievances to be completed have expired. Jones v. Kay, No. 07-3480-SB, 2007 WL 4292416 (D.S.C. Dec. 5, 2007); Finch v. McCormick Corr. Inst., No. 4:07-0759-MBS-TER, 2008 WL 2076673, at *4 (D.S.C. May 8, 2008). A brief review of SCDC's Inmate Grievance Procedure GA-01.12 follows:
See SCDC Inmate Grievance System Procedures, GA-01.12 (May12, 2014), Nos. 13.1 through 13.10 [Found at www.doc.sc.gov/pubweb/policy/GA-01-12.htm1471298422889.pdf.]. See Hall v. Virginia, 385 F.3d 421, 423 at n. 3 (4th Cir. Sept. 22, 2004) [Taking judicial notice of information publicly available on official government website]; see also Branton v. Ozmint, No 08-2306, 2009 WL 1457144, at * 2 (D.S.C. May 22, 2009); Jones v. Kay, No. 07-3480, 2007 WL 4292416, at * 5 (D.S.C. Dec. 5, 2007); Jenkins v. South Carolina Dept. of Corrections, No. 05-2800, 2006 WL 1083563, at * 5 (D.S.C. Apr. 18, 2006). Since the delivery date to the prison mail room is not evident on the envelope, the undersigned has used the date of the Complaint so as to give Petitioner the benefit of the doubt of the earliest possible filing date.
Indeed, SCDC's grievance procedure is frequently implicated in § 1983 litigation. See, e.g., Byrd v. Stirling, 144 F. Supp. 3d 803, 808 (D.S.C. 2015); Branton v. Ozmint, No. 8:08-cv-2306-GRA-BHH, 2009 WL 1457144, at *2 (D.S.C. May 22, 2009); Jones v. Kay, No. 4:07-cv-3480-SB, 2007 WL 4294216, at *5 (D.S.C. Dec. 5, 2007); Jenkins v. S.C. Dep't of Corrs., No. 0:05-cv-2800-HFF, 2006 WL 1083563, at *5 (D.S.C. Apr. 18, 2006). Accordingly, Magistrate Judge Marchant's decision to take judicial notice of the grievance procedure was appropriate, and Plaintiff's objections to that decision are overruled.
Indeed, SCDC's grievance procedure is frequently implicated in § 1983 litigation. See, e.g., Byrd v. Stirling, 144 F. Supp. 3d 803, 808 (D.S.C. 2015); Branton v. Ozmint, No. 8:08-cv-2306-GRA-BHH, 2009 WL 1457144, at *2 (D.S.C. May 22, 2009); Jones v. Kay, No. 4:07-cv-3480-SB, 2007 WL 4294216, at *5 (D.S.C. Dec. 5, 2007); Jenkins v. S.C. Dep't of Corrs., No. 0:05-cv-2800-HFF, 2006 WL 1083563, at *5 (D.S.C. Apr. 18, 2006). Accordingly, Magistrate Judge Marchant's decision to take judicial notice of the grievance procedure was appropriate, and Plaintiff's objections to that decision are overruled.
See SCDC Inmate Grievance System Procedures, GA-01.12 (May 12, 2014), Nos. 13.7 through 13.10; Hall v. Virginia, 385 F.3d 421, 423, n. 3 (4th Cir. 2004) [Court may take judicial notice of information publically available on official government website]; see also Branton v. Ozmint, No. 08-2306, 2009 WL 1457144, at * 2 (D.S.C. May 22, 2009); Jones v. Kay, No. 07-3480, 2007 WL 4292416, at * 5 (D.S.C. Dec. 5, 2007); Jenkins v. South Carolina Dept. of Corrections, No. 05-2800, 2006 WL 1083563, at * 5 (D.S.C. Apr. 18, 2006).
The Court notes that it is well settled that SCDC inmates must refrain from filing suit in federal court until the time periods for both Step 1 and Step 2 grievances to be completed have expired. See, e.g., McKenny v. Reynolds, No. 4:11-cv-00366-RBH, 2011 WL 1225685, at * 2 (D.S.C. March 31, 2011) (referencing SCDC Policy/Procedure GA-01.12); see also Kelly v. White, No. 4:10-cv-982-JFA-TER, 2011 WL 939015, at *2 (D.S.C. March 16, 2011); Jones v. Kay, No. 4:07-cv-3480-SB, 2007 WL 4292416, at *5 (D.S.C. Dec. 5, 2007) (finding that "when the Warden fails to respond to an inmate's Step 1 grievance, the inmate must refrain from filing suit in federal court until all time periods for both steps to be completed have expired"). Plaintiff filed the instant action well inside this time period.
It is well settled that SCDC inmates must refrain from filing suit in federal court until the time periods for both Step 1 and Step 2 grievances to be completed have expired. See, e.g., McKenny v. Reynolds, No. 4:11-cv-00366-RBH, 2011 WL 1225685, at * 2 (D.S.C. March 31, 2011) (referencing SCDC Policy/Procedure GA-01.12); see also Kelly v. White, No. 4:10-cv-982-JFA-TER, 2011 WL 939015, at *2 (D.S.C. March 16, 2011); Jones v. Kay, No. 4:07-cv-3480-SB, 2007 WL 4292416, at *5 (D.S.C. Dec. 5, 2007) (finding that "when the Warden fails to respond to an inmate's Step 1 grievance, the inmate must refrain from filing suit in federal court until all time periods for both steps to be completed have expired"). Plaintiff filed the instant action well before this time period expired.
According to Defendants, a three-year statute of limitations applies to Plaintiff's causes of action. Furthermore, Defendants maintain that based on the holding in Jones v. Kay, No. 4:07-3480-SB, 2007 WL 4292416 (D.S.C. Dec. 5, 2007), "Plaintiff needed only to wait 114 days from that date [June 22, 2012] before he could proceed with this action." ECF No. 20-1 at 5.
This grievance was also filed less than 114 days prior to Plaintiff filing this action. See Jones v. Kay, No. 07-3480, 2007 WL 4292416, at * 5 (D.S.C. Dec.5, 2007) ["An SCDC inmate must wait approximately 114 days from presenting his Step 1 written grievance to the prison to file a complaint in federal court"]. Exhaustion is a prerequisite to suit that must be completed prior to filing an action.
Therefore, it is readily apparent that Plaintiff failed to wait the requisite period of time with respect to any grievance in order to exhaust his administrative remedies before filing this lawsuit. See Graham v. Perez, 121 F.Supp.2d 317, 322 (S.D.N.Y. 2000) [Where a prisoner files a grievance but fails to afford prison officials adequate time to respond before filing his complaint, the prisoner has failed to exhaust his available administrative remedies]; see also Jones v. Kay, No. 07-3480, 2007 WL 4292416, at * 5 (D.S.C. Dec.5, 2007) [Even if no response is received, a "SCDC inmate must wait approximately 114 days from presenting his Step 1 written grievance to the prison to file a complaint in federal court"].