Opinion
Civil Action 6:23-cv-604-SAL-KFM
09-22-2023
Javontay Savon Rogers, Plaintiff, v. Corp. Michaelangelo Scott, Lt. Brittney Keefner, Randel Casselman, and Zachary Smith, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This matter is before the court on the defendants' motion to dismiss (doc. 23). The plaintiff, a pretrial detainee who is proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d)(D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.
The plaintiff filed his initial complaint (doc. 1) on February 13, 2023, and an amended complaint on March 31, 2023 (doc. 13). The plaintiff is now and was at all times relevant to the allegations raised in his complaint a pretrial detainee at the Georgetown County Detention Center (“the GCDC”) (id. at 2). The defendants are all alleged to be officers at the GCDC (id. at 2-3).
On May 16, 2023, the defendants filed a motion to dismiss in lieu of answer pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 23). By order issued May 17, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the motion for summary judgment and motion to dismiss procedures and the possible consequences if he failed to respond adequately to the defendants' motion (doc. 24). The plaintiff filed a response in opposition to the motion on June 20, 2023 (doc. 27), and the defendants filed a reply on June 27, 2023 (doc. 29). Accordingly, this matter is ripe for review.
FACTUAL ALLEGATIONS
In his amended complaint, the plaintiff asserts claims under Section 1983 related to an alleged use of force incident that occurred on September 16, 2022 (doc. 13 at 5-6, amend comp.). The plaintiff alleges that he and defendant Scott got into a fight (id. at 5); additional officers responded to the incident, and defendant Keefner deployed a pepperball gun against the plaintiff (id.); defendant Smith tased the plaintiff while defendant Casselman assisted (id. at 6); defendant Keefner tased the plaintiff twice after he was secured in shackles and handcuffs (id.); and defendant Scott dragged the plaintiff after he was secured (id.). The plaintiff claims that his left shoulder was injured and he suffered a broken pinky finger, and, as a result, he can no longer exercise (id.). He seeks $20,000 in damages and requests “criminal charges brought on [defendant] Keefner for unlawfully using excessive force” (id.).
The plaintiff admits in his amended complaint that the GCDC has a grievance procedure, the grievance procedure covers some or all of his claims, and he did not file a grievance concerning the facts alleged in the amended complaint (doc. 13 at 7). The plaintiff explains in the amended complaint that he had previously filed a grievance “on the kiosk located in H Block” regarding money being taken from his account illegally “because they said [he] interrupted the pill line,” his complaints about his money being taken “caused the confrontation,” and that after the altercation described in the amended complaint, his money was refunded (id. at 7-8). In response to questions in the “If you did not file a grievance” section of the amended complaint form, the plaintiff gives the following reason for not filing a grievance regarding the incident at issue: “It wasn't nothing to complain about, they used excessive force that was not supposed to be used while in shackles. They tazed me shackled me and tazed me more” (id. at 9).
In response to the question, “Did you file a grievance in the jail, prison, or other correctional facility where your claim(s) arose concerning the facts relating to this complaint?,” the plaintiff checked the “No” box (doc. 13 at 7).
APPLICABLE LAW AND ANALYSIS
Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Rule 8(a) sets forth a liberal pleading standard, which requires only a" ‘short and plain statement of the claim showing the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what . . . the claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)). “In assessing the sufficiency of a complaint, [the court] assume[s] as true all its well-pleaded facts and draw[s] all reasonable inferences in favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447, 452 (4th Cir. 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'" Robinson v. American Honda Motor Co., Inc., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court must liberally construe pro se complaints to allow the development of a potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980), and such pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978).
Exhaustion of Remedies
The defendants move to dismiss the plaintiff's amended complaint for failure to exhaust administrative remedies (doc. 23 at 3-5; doc. 29 at 2-4). The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things, that prisoners exhaust their administrative remedies prior to filing civil actions concerning prison conditions under Section 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court”). “[T]he PLRA's exhaustion requirement is mandatory,” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), and “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).
The PLRA requires “proper exhaustion” of available administrative remedies prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court of the United States has noted, “Aggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons,” whether it be concerns about efficiency or “bad faith.” Id. at 89-90. This is especially true in a prison context. Id. at 90 n.1. Nevertheless, “[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Id. at 90-91.
“[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.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered unavailable when: (1) “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 643-44 (2016).
As set out above, in the facts as alleged by the plaintiff in the amended complaint, the plaintiff clearly admits that the GCDC has a grievance procedure, that the grievance procedure covered his excessive force claims alleged here, and he did not file a grievance concerning the incident at issue in this case (doc. 13 at 7-8). Further, the plaintiff's only explanation for why he did not file a grievance is that “[i]t wasn[']t nothing to complain about, they used excessive force that was not supposed to be used while in shackles” (id. at 9). As also noted above, the plaintiff was plainly aware of the GCDC's grievance procedure, as he alleges that he previously filed a grievance regarding money that he claimed was illegally taken by the GCDC (id. at 8). Because he failed to utilize the GCDC's grievance process to address his claims for alleged excessive force, the plaintiff's amended complaint is barred by the PLRA. See McElrath v. Anderson Cnty. Det. Ctr., C. A. No. 5:23-cv-133-BHH-KDW, 2023 WL 2898939, at *2 (D.S.C. Mar. 17, 2023) (recommending dismissal of pretrial detainee's complaint where plaintiff did not exhaust administrative remedies prior to filing suit), R&R adopted by 2023 WL 2898620 (D.S.C. Apr. 11,2023); Blevins v. Loranth, C. A. No. 09-cv-788-TLW-BM, 2010 WL 670099, at *3 (D.S.C. Feb. 22, 2010) (“Plaintiff needed to file and exhaust his administrative claim . . . prior to proceeding with this lawsuit.” (citation omitted)).
In his response in opposition to the motion to dismiss, the plaintiff for the first time asserts that he did file a grievance about the alleged use of force incident upon which his claims are based (doc. 27 at 1). He claims he never received a direct response and was told that he needed an attorney (id.). The plaintiff claims that the GCDC lacked a “proper chain of command at the time” (id.). He contends that there was no director or captain at the GCDC, and defendant Keefner was the person who was in charge of grievances filed by inmates (id. at 2).
As set out above, “[t]he purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams, 17 F.Supp.3d at 531. To that end, even a pro se “[p]laintiff may not raise or assert allegations in his response brief that are not otherwise properly before the Court in the actual pleadings under consideration.” Nix v. McCabe Trotter & Beverly P.C., C. A. No. 18-cv-1360-DCN-BM, 2018 WL 6112991, at *4 n.8 (D.S.C. Sept. 10, 2018) (citations omitted), R&R adopted by 2018 WL 5263276 (D.S.C. Oct. 23, 2018). See also Deas v. Prudential Ins. of Am., C. A. No. 2:17-cv-3016-DCN, 2018 WL 1993869, at *3 (D.S.C. Apr. 26, 2018) (“The court cannot consider these arguments on a motion to dismiss if . . . the facts upon which they are based were not raised in the complaint[.]”); Chewning v. Ford Motor Co., 35 F.Supp.2d 487, 488 (D.S.C. 1998) (“It is also well-settled that a complaint cannot be amended by plaintiff's briefs in opposition to a motion to dismiss.”) (citing Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053, 1068 (D. Md. 1991)). Here, the plaintiff does not simply assert additional factual allegations that are not included in his amended complaint, he attempts to make an argument based on facts that are completely contrary to the facts alleged in his amended complaint. Based upon the foregoing, the plaintiff's amended complaint should be dismissed for failure to exhaust administrative remedies.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the defendants' motion to dismiss (doc. 23) should be granted, and this action should be dismissed without prejudice.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following 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
250 East North Street, Suite 2300
Greenville, South Carolina 29601
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).