Opinion
C/A 23-797-RMG-PJG
02-14-2024
David Antonio Little, Jr., Plaintiff, v. Marcia Marine, Correctional Officer; David Brown, Sheriff Officer; Cody Dixon, Sheriff Officer; Troy Ellerbee, Sheriff Officer; Officer Chisholms, Sheriff Officer; Officer John Doe, Sheriff Officer; Officer Leach, Correctional Officer; Shelia Buckman, Jail Administrator; Genie Chisholms, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
This self-represented plaintiff, David Antonio Little, Jr., who was a pretrial detainee at the time of the incidents described in the Complaint, filed this civil rights action seeking relief pursuant to 42 U.S.C. § 1983. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Defendant Genie Chisholms's motions to dismiss and for summary judgment (ECF Nos. 94 & 128), and the remaining defendants' motion for summary judgment (ECF No. 145). Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motions. (ECF Nos. 97, 131, 146.) Plaintiff filed responses in opposition (ECF Nos. 107 & 149), and the defendants replied (ECF Nos. 120, 150, & 151). Having reviewed the record presented and the applicable law, the court finds that the defendants' motions should be granted.
Defendant Genie Chisholms's motion for summary judgment specifically incorporates by reference the arguments made in her motion to dismiss. (ECF No. 128-1 at 3 n.4.)
Defendant Officer Chisholms has not made an appearance in this matter. Five months after filing his Complaint, Plaintiff moved to “correct” this defendant's name, stating that Officer Chisholms was actually “Larry Tucker.” (ECF No. 66.) Because of the discrepancy of the two names, the court denied Plaintiff's motion with instructions for him to file a motion to amend if he wanted to add a new defendant. (ECF No. 75.) Plaintiff did not avail himself of this option. Accordingly, because Defendant Officer Chisholms has not been served with process or made an appearance in this case, this defendant should be dismissed for lack of service pursuant to Federal Rule of Civil Procedure 4(m). Likewise, because Defendant Officer John Doe was never identified or served, he should also be dismissed pursuant to Rule 4(m).
Although Plaintiff did not timely respond to Defendant Genie Chisholms's motion for summary judgment, he appears to have included this defendant in his response filed in opposition to the remaining defendants' motion for summary judgment. (See ECF No. 149.) Consideration of Plaintiff's untimely response as to Defendant Genie Chisholms's does not change the court's recommendation.
Plaintiff also filed a sur-reply. (ECF No. 120.) The court observes that the Local Rules make no provision for sur-replies. Further, under Local Civil Rule 7.07 (D.S.C.), “[r]eplies to responses are discouraged.” However, even considering Plaintiff's sur-reply, it does not change the court's analysis of the legal issues and its recommendation.
BACKGROUND
Plaintiff alleges a plethora of claims against the defendants that occurred on various dates in 2021 while he was housed at the Chesterfield County Detention Center. Specifically, he alleges as follows:
• For three days in February 2021, Defendants Buckman and Marine retaliated against Plaintiff by holding him in a restraint smock, depriving him of basic needs such as food, water, and clothing, and forcing him to take antipsychotic medications.
• On March 9, 2021, Defendants Marine and Genie Chisholms denied Plaintiff medical treatment after an altercation with officers, complicating injuries to Plaintiff's leg.
• On an unspecified date, Defendants Brown, Dixon, and Ellerbe restrained and stripped Plaintiff in his cell, but Ellerbe was wearing a ski mask and Officer Chisholms's pants were cut open exposing his boxers, which Plaintiff believes was a “sick joke.”
• On an unspecified date, Defendant Marine maced Plaintiff because Plaintiff told her he was not eating. Marine did not give Plaintiff medical attention.
• On another date, Brown and Officer Chishloms entered Plaintiff's cell and hit him with a shield for no reason, causing injury. Following this incident, Plaintiff was placed in segregation in retaliation.
• During his six weeks in segregation, Plaintiff was denied toilet tissue and the ability to flush his toilet, was not allowed out of his cell, was denied the use of shower facilities and telephone access, and was not allowed the customary one hour of recreation.
• During those six weeks, Dixon entered Plaintiff's cell and pushed his face against the wall, causing a gash on his chin, and he was denied medical treatment for it.(See generally Compl., ECF No. 1.) Plaintiff seeks monetary damages and injunctive relief. (Id. at 7.)
The court construed Plaintiff's Complaint as asserting the following claims of Fourteenth Amendment violations pursuant to 42 U.S.C. § 1983:
• Deliberate indifference to serious medical needs against Genie Chisholms.
• Excessive force and retaliation against Dixon, Brown, Ellerbee, Officer Chisholms, and John Doe.
• Excessive force and deliberate indifference to conditions of confinement against Marine.
• Supervisory liability against Buckman.(ECF No. 44 at 2.) No party challenged the court's construction of these claims. (See Order, ECF No. 82.)
DISCUSSION
A. Applicable Standards
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
On the other hand, summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving 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.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322.
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., Erickson v. Pardus, 551 U.S. 89 (2007), 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, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Exhaustion of Administrative Remedies
The defendants argue that Plaintiff failed to exhaust his administrative remedies with regard to his claims. A prisoner must exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) 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.” 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). Generally, 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); but see Ross v. Blake, 578 U.S. 632 (2016) (describing limited exceptions to the exhaustion requirement). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739). 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)). Thus, “it is the prison's requirements, and not the [Prison Litigation Reform Act], that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). The defendant has the burden of establishing that a plaintiff failed to exhaust his administrative remedies. See Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017) (quoting Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)).
Pretrial detainees are specifically included in this requirement pursuant to § 1997e(h), which defines a “prisoner” as “any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law.”
According to state law, every detention center in the state of South Carolina is subject to an annual inspection by the Jail and Prison Inspection Division of the South Carolina Department of Corrections (“SCDC”). See S.C. Code Ann. §§ 24-9-10, -20. Pursuant to this statute, the South Carolina Association of Counties established standards found in a document entitled “Minimum Standards for Local Detention Facilities-Type II and/or IV Facility City, County, or Regional Jail and/or Combined Jail/Prison Camp” (the “Minimum Standards”), which was adopted by SCDC. The Minimum Standards provide that a written grievance procedure shall be made available to every inmate and outline the required provisions. (See Minimum Standards at 50.)
To access this document, see http://www.sccounties.org (choose “Resources,” then “Publications,” then choose “Jail Standards,” then follow the “Minimum Standards for Local Detention Facilities” hyperlink) (last visited Feb. 13, 2024).
The only recognized exception to the PLRA's requirement to exhaust administrative remedies stems from the statutory language itself: an inmate need not pursue administrative remedies if they are not “available.” Ross, 578 U.S. at 642; see also Moore, 517 F.3d at 725 (“[A]n 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.”). However, “a prisoner does not exhaust all available remedies simply by failing to follow the required steps so that remedies that once were available to him no longer are.” Moore, 517 F.3d at 725 (citing Woodford, 548 U.S. 81). Courts have recognized that generally the burden is on the defendant to show that there was an available administrative remedy that the prisoner did not use, and that the burden then “shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014); see also Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (“Once a defendant proves that a plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that remedies were unavailable to him as a result of intimidation by prison officials.”).
Here, the defendants argue that Plaintiff did not exhaust his administrative remedies in that he did not properly complete the grievance process at the Chesterfield County Detention Center. Troy Ellerbe, the detention center's current director, declares that the detention center's grievance process allows a detainee to initiate a grievance by filing a complaint through a kiosk. (Ellerbe Decl. ¶ 9, ECF No. 145-3 at 3.) As evidence, Ellerbe attaches to his declaration the grievances filed by Plaintiff during the time he was detained at the Chesterfield County Detention Center. (See Ellerbe Decl. Ex. B., ECF No. 145-5.)
Plaintiff summarily argues in his response in opposition to Defendant Genie Chisholms's motion to dismiss that he “had limited access to exhaust administrative remedies because of being refused access to jail kiosk machine.” (Pl.'s Resp. Opp'n, ECF No. 107.) Plaintiff provides more specificity in his sur-reply when he argues that “[f]rom 03/09/2021 through 03/22/2021”-the date that Plaintiff was transferred to the Florence County Detention Center-he “was not afforded the right to file administrative remedies due to the fact that he was not permitted to leave his cell to use the jail kiosk machine to file a grievance.” (ECF No. 120 at 1.) However, the evidence in this case belies Plaintiff's inadmissible unsworn statements in that the grievances attached as exhibits to Ellerbe's declaration show that Plaintiff, in fact, filed two grievances on March 18, 2021. (ECF No. 145-5 at 15-16.) Plaintiff also argues in response to the defendants' motions for summary judgment that he was placed in solitary confinement for five to six weeks following his return to the Chesterfield County Detention Center in May 2021 and was “not given any time out of his cell in order to file any grievances” during that time. (Pl.'s Resp. Opp'n, ECF No. 149 at 3-4.) And the record is devoid of any grievances filed during the time period Plaintiff alleges he was in segregation, despite many of Plaintiff's asserted claims having occurred during that time. However, the defendants provide a supplemental declaration from Shelia Gillespie-Buckman, the jail administrator for the Chesterfield County Detention Center during the relevant time period, who provides further relevant information regarding the grievance process at the detention center as it existed during Plaintiff's stay. (Gillespie-Buckman Decl., ECF No. 151-1.) Notably, she declares that, though grievances were typically entered through a kiosk, “from time to time and for a variety of reasons, an inmate may not be able to access a kiosk to enter their grievance.” (Id. ¶ 4.) In those instances, she declares, “the inmate would still have the opportunity to submit their grievance without utilizing a kiosk.” (Id.) She further declares that an inmate could request a paper grievance form or, alternatively, could even write their grievance on a piece of paper that could be submitted for them by jail staff. (Id. ¶ 5.) She states that, although Plaintiff alleges that he did not have access to a kiosk to enter his grievance, “[i]f the Plaintiff was unable to leave his cell for one reason or another, he had the option to submit his grievance through the alternative means” as described in her declaration. (Id. ¶ 6.)
Plaintiff, therefore, has not met his burden to show that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him. See Ross, 578 U.S. at 642; Albino, 747 F.3d at 1172. Accordingly, on this record, the court concludes that the defendants have met their burden to establish that Plaintiff failed to exhaust his administrative remedies with regard to his claims.
RECOMMENDATION
For the foregoing reasons, the defendants' motions should be granted. (ECF Nos. 94, 128, & 145.)
The parties' attention is directed to the important notice on the next page.
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).