Opinion
C. A. 5:19-00938-TLW-KDW
08-20-2021
Rodney Parker, Plaintiff, v. Sgt. Jennings; Sgt. Blakely; Cpl. Martin; Lt. Peay; Deputy Warden Jeanette Glenn; Capt. Daniel Cotter; Sgt. A N Joku; Lt D Smith; Sgt Meyers; Lt Alfred Grant; Ofc Warren Streedy; Ofc B Brown; Sgt Barr; Officer Alanis Williams; Sgt Schwarz; Lt Campbell; Lt Blakely; Lt Mitchell; Sgt Borem; Cpl Smith; Ofc Selman; Ofc Van Brown; Captain Daniel Hareriff; Cpl Kevin Smith, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Rodney Parker, “Plaintiff, ” is an inmate with the South Carolina Department of Corrections (“SCDC”), and filed this 42 U.S.C. § 1983 action alleging Defendants violated his constitutional rights. This matter is before the court on Defendants Sgt. Jennings; Sgt. Blakely; Lt. Peay; Deputy Warden Jeanette Glenn; Capt. Daniel Cotter; Sgt. A. N. Joku; Lt. D. Smith; Sgt. Meyers; Lt. Alfred Grant; Sgt. Barr; Officer Alanis Williams; Lt. Blakely; Lt. Mitchell; Sgt. Borem; Cpl. Smith; K. Smith, Ofc. Selman; Ofc. Van Brown; and Captain Daniel Hareriff's Motion for Summary Judgment filed on July 6, 2021. ECF No. 245. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) the court advised Plaintiff on July 7, 2021, of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' Motion. ECF No. 246. Plaintiff filed a Response on August 5, 2021, see ECF No. 253, and Defendants replied on August 12, 2021, ECF No. 254. This matter is now ripe for review.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because Defendants' Motions are dispositive, the undersigned enters this Report for the district judge's consideration.
I. Procedural Background
Plaintiff initially filed this action on March 29, 2019, and in his Complaint, he purports to assert allegations against a total of thirty-two (32) defendants. ECF No. 1. There, Plaintiff identified ten (10) of the defendants by name, and asserted causes of action against several “John Doe” or “Jane Doe” defendants. See id. Service was effected upon some of the defendants, and on July 17, 2019, Defendants Stirling, Dubose, Lewis, McFadden, Thompson, Dunlap, Stephan, Williams, and Thomas Robertson filed a Motion to Dismiss. See ECF No. 44. Plaintiff did not timely respond to the dispositive motion, and on November 15, 2019, the undersigned recommended that the case be dismissed with prejudice for failure to prosecute. ECF No. 54.
On November 25, 2019, Plaintiff filed what he captioned as a “Notice of Motion and Response to Motion to Dismiss.” ECF No. 71. Plaintiff also filed an Objection to the Report and Recommendation. ECF No. 58. Defendants filed a Response to Plaintiff's Objections. ECF No. 62. On February 11, 2020, the court issued an Order, ECF No. 69 ruling on the Report and Recommendation and finding that Plaintiff's Response to Defendant's Motion to Dismiss, see ECF No. 71, should be construed as an Amended Complaint and that the Defendant's Motion to Dismiss was moot as it was, now, not in response to the operative complaint. The matter was recommitted to the undersigned for further proceedings consistent with the Order. See ECF No. 69.
The clerk's office replaced Plaintiff's Motion, ECF No. 57, by re-docketing the filing as an Amended Complaint, ECF No. 71, with its original filing date, November 25, 2019, shown as the date of filing.
On February 12, 2020, the undersigned issued an Order requiring Plaintiff to bring the case into proper form. See ECF No. 76. The Order stated that upon review of Plaintiff's Amended Complaint, ECF No. 71, there was not sufficient information for a proper review. Plaintiff was ordered to refile the Amended Complaint using the “standard complaint form” which was provided and to name or “list every defendant named in this matter.” ECF No. 76 at 2. The court stated no responsive pleading was due until the Plaintiff filed a new Amended Complaint and it was properly served. Id. at 3. On February 27, 2020, Plaintiff filed his new Amended Complaint. ECF No. 81. Plaintiff's Amended Complaint does not name any of the original defendants named in the original complaint. On March 25, 2020, Plaintiff filed a motion to amend his Amended Complaint, wanting to add six new individuals as defendants and to amend the name of one, changing Sgt. Blakely to Lt. Blakely. See ECF No. 91. This Motion was added as a Supplement to Plaintiff's Amended Complaint, see ECF No. 81, which is now the operative pleading in this case.
On May 14, 2021, then-Defendant Bryan Stirling filed a Motion to Dismiss for failure to state a claim, see ECF No. 126, and Defendants Jennings, Blakeley, Glenn, Joku, D Smith, Meyers, Grant, Williams, K Smith, and Cotter, also filed a Motion to Dismiss the same day, ECF No. 127. Defendants Lt. Blakely, Lt. Mitchell, Sgt. Borem, and Captain Daniel Hareriff filed a Motion to Dismiss, ECF No. 136, on June 24, 2020; and Defendants Ofc. Selman and Ofc. Van Brown filed a Motion to Dismiss, ECF No. 165, on September 1, 2020. After reviewing those Motions and Responses, see ECF Nos. 134, 169, on December 2, 2020, the undersigned recommended granting then-Defendant Stirling's Motion, ECF No. 126, dismissing him as a party to this action, and denying the other Motions to Dismiss, ECF Nos. 127, 136, and 165. ECF No. 189. The District Court accepted the undersigned's recommendation in an Order filed February 12, 2021. ECF No. 198.
II. Factual Background
Plaintiff's claims stem from several different instances of alleged excessive force taking place from 2016 into 2019. See ECF No. 81. Plaintiff maintains he was maced and assaulted in incidents that occurred on September 1, 2016; September 15, 2016; October 3, 2016; July 6, 2017; December 26, 2017; September 26-27, 2018; and January 25, 2019. See id. Plaintiff claims to have sustained the following injuries: physical, mental, and emotional pain; distress and discomfort; bruises, cuts, swelling, eye pain, skin pain, head pain, stress, depression; and anxiety. Id. at 20. Plaintiff seeks a jury trial; compensatory and punitive damages, a preliminary and permanent injunction; costs; and any further relief the court deems just and proper. Id.
III. Standard of Review
Under Rule 56, 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).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.
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).
IV. Analysis
a. Dismissal based on Failure to Exhaust
Defendants argue that Plaintiff's action should be dismissed because Plaintiff has failed to exhaust his administrative remedies. See ECF No. 245-4 at 5. After describing the grievance procedure, Defendants maintain Plaintiff did not properly complete the grievance process for any of the incidents alleged in his Amended Complaint. Id. at 8. In Response, Plaintiff fails to discuss Defendants' exhaustion argument, ignoring it completely. ECF No. 253. Defendants note that Plaintiff “completely ignore[d] and fail[ed] to address....legitimate and significant arguments contained in their motion” in their Reply. ECF No. 254 at 2. Defendants argue that facts set forth in their motion for summary judgment “should be taken as uncontroverted, where plaintiff has failed to address, let alone rebut, any of those facts in his responsive motion.” Id. at 2-3. Based on the representations from both parties, the undersigned recommends dismissing this action for failure to exhaust administrative remedies as discussed below.
42 U.S.C. § 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). To satisfy this requirement, a plaintiff must avail himself of all available administrative remedies. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739).
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. Any consideration of administrative remedies pursued after the commencement of the litigation would only serve to frustrate both purposes of the PLRA's exhaustion requirement. Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Id. at 90 (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 a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005).
Defendants assert that Plaintiff failed to timely utilize the grievance process or did not fully appeal grievances he filed related to the incidents described in his Amended Complaint. ECF No. 254-4 at 5-11. Further, they outline the steps required to exhaust a grievance within the SCDC grievance processing system, and they have submitted the affidavit of Sherman Anderson, General Counsel and Chief of the Inmate Grievance Branch of SCDC, as an attachment. See id. at 6-7; ECF No. 245-1. Mr. Anderson represents that inmates are required to attempt an informal resolution of an issue by using the Kiosk system or a Request to Staff Member Form (“RTSM”) prior to filing a formal grievance. Id. ¶ 5. Thereafter, the inmate may file a Step-One Grievance “within eight (8) working days of receiving a response to the inmate's RTSM.” Id. ¶ 7. After filing the Step-One Grievance, the inmate is then required to file a Step-Two Grievance within five (5) calendar days of the Step-One Grievance being returned. Id. at ¶ 11. Mr. Anderson explains that the “response to the Step 2 Grievance is considered the SCDC's final agency decision on the issue.” Id.
Concerning Plaintiff's claims, the undersigned finds that the undisputed facts demonstrate, and Mr. Anderson attests, that Plaintiff did not timely or fully exhaust his administrative remedies. Concerning the September 1, 2016 incident, Mr. Anderson attests that Plaintiff failed to file an RTSM but filed a Step One form that was returned as inadequate because he did not attach an RTSM or staff reply. ECF No. 245-1 at ¶ 15 (citing pp. 13-18).
Mr. Anderson attests that Plaintiff did not refile or attempt an appeal this grievance and did not file a Step Two grievance. Id.
Regarding the September 15, 2016 incident described in his Amended Complaint, Mr. Anderson attests that Plaintiff filed two RTSM forms-one related to medical treatment and requesting medical attention and one concerning the excessive force incident. Id. at ¶ 16 (citing pp. 19-27). He avers that Plaintiff later submitted a Step-One grievance form, but it was returned as inadequate because Plaintiff did not attach an RTSM or staff reply. Id. Mr. Anderson represents that Plaintiff did not refile as required and did not attempt an appeal-he did not file a Step Two grievance. Id.
Mr. Anderson attests that Plaintiff failed to file an RTSM form concerning the incident of October 3, 2016. Id. at ¶ 17. According to Mr. Anderson, Plaintiff filed a Step One form concerning the incident (PCI 1023-16), but it was returned as inadequate because he did not attach an RTSM or staff reply. Id. (citing pp. 28-34). Mr. Anderson attests that Plaintiff did not attempt an appeal of this grievance. Id.
Mr. Anderson attests that Plaintiff filed a Step-One grievance concerning the incident of July 6, 2017, approximately 18 months after the incident occurred. Id. at ¶ 18. Mr. Anderson avers that Plaintiff failed to first file an RTSM prior to his Step-One grievance submission. Id. (citing pp. 35-42). This grievance was denied as untimely, as it was submitted “over one year beyond his grievance deadline.” Id. Mr. Anderson represents that Plaintiff filed a Step-Two appeal, but the appeal was denied with an explanation that Plaintiff's submissions were untimely. Id.
According to Mr. Anderson, there are no grievance records at all concerning the incident of December 26, 2017. Id. at ¶ 19. He avers that Plaintiff failed to file an RTSM; did not file a Step One; and did not file a Step Two form regarding this incident. Id. Mr. Anderson explains that Plaintiff appealed the disciplinary convictions received from the incident on January 31, 2018. Id. (citing pp. 43-46). However, Mr. Anderson attests that Plaintiff did not take any action to grieve the treatment or alleged force used against him on December 26, 2017. Id.
Mr. Anderson attests that Plaintiff filed a Step-One grievance concerning the incident of September 26, 2018, on January 6, 2019, over three months after the incident occurred. Id. at ¶ 20 (citing pp. 47-55). Mr. Anderson avers that Plaintiff failed to first file an RTSM prior to his Step-One grievance submission. Id. This grievance was denied as untimely and for failing to file and attach an RTSM. Id. Mr. Anderson represents that Plaintiff failed to file a Step-Two appeal. Id.
Finally, concerning the incident of September 27, 2018, Mr. Anderson attests that Plaintiff failed to file an RTSM related to the treatment or alleged use of force he received during the incident. Id. at ¶ 21. He avers that on January 6, 2019, over three months after the incident, Plaintiff filed a Step One grievance form. Id. (citing pp. 56-64). Mr. Anderson avers that the Step One was filed untimely and was denied. Id. He also represents that Plaintiff filed a Step Two grievance which was also denied. Id.
Mr. Anderson indicates that Plaintiff filed only an RTSM related to his medical treatment, seeking medical attention. See ECF No. 145-1 at ¶ 21(citing p. 58)
The undersigned finds that Plaintiff failed to properly exhaust his administrative remedies by either timely submitting required forms related to incidents or failing to appeal grievances by filing a proper Step-Two grievance form. The purpose of the grievance process is to allow SCDC to resolve issues on its own accord and without the court's involvement. See Woodford v. Ngo, 548 U.S. at 89. Here, Plaintiff failed to follow the grievance system in place.
Moreover, Plaintiff fails to contest any facts presented by Defendants in making their argument concerning Plaintiff's failure to exhaust. See ECF No. 253. Plaintiff's failure to address or contest this argument is fatal to his case. See Crosby v. City of Gastonia, 635 F.3d 634, 638 n.3 (4th Cir. 2011) (recognizing that allegations neither argued nor briefed at the summary judgment stage are deemed abandoned); Duffey v. Wal-Mart Stores E. LP, No. 8:19-CV-665-TMC, 2021 WL 62163, at *2 (D.S.C. Jan. 7, 2021) (holding Plaintiff abandoned certain claims by failing to address them in his response in opposition to Wal-Mart's motion for summary judgment); Eady v. Veolia Transp. Servs., Inc., 609 F.Supp.2d 540, 560-61 (D.S.C. 2009) (“The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.”). Rule 56(e)(2) of the Federal Rules of Civil Procedure allows the Court to consider a fact undisputed for purposes of a motion when a party fails to properly address another party's assertion of fact as required by Rule 56(c). Further, Rule 56(e)(3) allows the Court to grant summary judgment if the motion and supporting materials-including facts considered undisputed-show that the movant is entitled to it.
Therefore, based on the undisputed evidence presented to the court, the undersigned recommends granting Defendants' Motion for Summary Judgment and dismissing Plaintiff's causes of action for his failure to exhaust administrative remedies prior to filing this action. See Pozo, 286 F.3d at 1024 (holding that an inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983”); see also Blevins v. Loranth, No. 09-788-TLW-BM, 2010 WL 670099, at *3 (D.S.C. Feb. 22, 2010), (“Plaintiff needed to file and exhaust his administrative claim [] at FCI Williamsburg prior to proceeding with this lawsuit.”); Johnson v. Ozmint, 567 F.Supp.2d 806, 814 (D.S.C. 2008) (“There is no evidence that Plaintiff appealed the initial denial of his grievance relating to his cell door being locked. . .”).
This failure-to-exhaust recommendation is made specifically for all incidents other than the January 25, 2019 incident which will be addressed in the following section.
b. January 25, 2019 Incident
Defendants do not argue that Plaintiff failed to exhaust his administrative remedies concerning the January 25, 2019 incident described in his Amended Complaint. See ECF No. 245. However, they maintain claims related to this cause of action must be dismissed because the officers allegedly involved in the incident were never made parties to this action, and Plaintiff has failed to state a valid claim against the moving Defendants. Id. at 24-25. Based on a thorough review of the pleadings, the undersigned finds that Plaintiff has failed to allege plausible claims against the moving Defendants for the alleged actions taken in the January 25, 2019 incident mentioned in the Amended Complaint.
In his Amended Complaint, Plaintiff alleges:
On or about January 25, 2019, while at McCormick Correctional Institution (“McCormick”), Defendants Lt. Campbell, and Sgt. Schwartz violated Plaintiff Parker's Eighth Amendment U.S. Constitutional right to be free from the infliction of cruel and unusual punishment, while acting under color of state law as prison officials, by using excessive force against him in spraying him with an excessive amount of chemical munition; and in slamming his hands and fingers in the door-flap five (5) times, which such force was applied maliciously and sadistically for the very purpose of causing harm, and by being deliberately indifferent to the substantial risk of serious harm to Parker's health in failing to take corrective action once they were aware or should have been aware of such substantial risk of harm.ECF No. 81 at 18-19. The two individuals identified here were not served in this action, see ECF No. 104, 105, and therefore, are not proper parties to this action.
Rule 8 of the Federal Rules of Civil Procedure requires that complaints shall contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose behind Rule 8 is to give the defendant fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. at 555. Further, the plaintiff is obligated to provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Id. The factual allegations must be enough to raise a right to relief above the speculative level. Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. The Twombly Court noted that defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies.” Twombly, 550 U.S. at 565 n.10. However, Twombly did not expressly hold that a plaintiff must assert specific time, place, and persons involved in order to comply with Rule 8. See Ashcroft, 556 U.S. at 678 (internal Twombly citation omitted) (“As the Court held in Twombly, [] the pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”); Starr v. Sony BMG Music Entm't, 592 F.3d 314, 325 (2d Cir. 2010) (finding the Twombly court noted, in dicta, that the pleadings there mentioned no specific time, place, or person involved in the alleged conspiracies and rejected defendants' argument that Twombly requires a plaintiff identify the specific time, place, or person related to each conspiracy allegation); Milliken & Co. v. CNA Holdings, Inc., 3:08-CV-578-RV, 2011 WL 3444013, at *5 (W.D. N.C. Aug. 8, 2011) (finding other courts have held a plaintiff can survive a motion to dismiss even though he fails to answer who, what, when and where).
The undersigned finds that Plaintiff's Amended Complaint fails to meet the requirements of Rule 8, Federal Rules of Civil Procedure concerning the moving Defendants.
There is no mention of the moving Defendants' taking any action in the January 25, 2019 incident. Thus, Plaintiff has failed to allege these Defendants were personally involved in violating his constitutional rights during that incident. Accordingly, the undersigned recommends granting the Defendants' Motion for Summary Judgment concerning Plaintiff's claims related to the January 25, 2019 incident at KCI. Based on this recommendation and the undersigned's recommendation concerning Plaintiff's undisputed failure to exhaust, it is unnecessary to address the remaining arguments in Defendants' Motion.
V. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendants' Motion for Summary Judgment, ECF No. 245, be granted, and this action be dismissed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”