Opinion
C. A. 5:20-02553-JD-KDW
03-12-2021
Kimberly Rowland, Plaintiff, v. Steven Anderson, Steven Camp, Dustin Richie, Antonio Ortega, Virgil McFrye, Captain S. Wells, Sadrick Dunn, Lt. Peppi Nicholls, and Lt. Brite, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Plaintiff, an inmate with the Cherokee County Detention Center (“CCDC”), filed this 42 U.S.C. § 1983 action alleging Defendants violated her constitutional rights. This matter is before the court on Defendant Stephen Anderson, Dustin Richie, Sadrick Dunn, Antonio Ortega, and Sherille Wells' Motion to Dismiss. ECF No. 32. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) the court advised Plaintiff, on September 10, 2020, of the dismissal procedures and the possible consequences if she failed to respond adequately to Defendants' Motion. ECF No. 33. Plaintiff responded to the Defendants' Motion on September 22, 2020. ECF No. 47. This matter is also before the court on Defendant Crystal Nichols, Shannon Bright, Joseph Camp, and Virgil McFrye's Motion to Dismiss. ECF No. 55. After being again advised to respond to this motion pursuant to Roseboro, 528 F.2d 309, Plaintiff responded to this Motion to Dismiss on November 2, 2020, ECF No. 61, and Defendants filed a Reply on November 9, 2020, ECF No. 62. Defendants also filed Additional Attachments to the Main Document, see ECF Nos. 63, 64, and 66, and a Second Reply, see ECF No. 65, thereafter. This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d), D.S.C. Because the Motions to Dismiss are dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.
Incorrectly identified by Plaintiff as Peppi Nicolls, Lt. Brite, and Stephen Camp.
I. Background
Plaintiff is a pretrial detainee at the CCDC, and the allegations giving rise the causes of action in her Complaint occurred while Plaintiff was housed there. ECF No. 1. In her Complaint, Plaintiff alleges that male correctional officers watch her and other female inmates while they shower or use the bathroom. Id. at 1. She maintains CCDC does not provide privacy. Id. Further, she alleges that male officers demand sexual favors to simply do their jobs. Id. She further alleges that correctional officers make medical decisions and stop incoming and outgoing mail. Id. at 2.
Throughout her Complaint, Plaintiff makes allegations pertaining to other female detainees.
Plaintiff alleges that her medical rights and her Prison Rape Elimination Act (“PREA”) rights have been violated. Id. at 8. Further, she maintains she was denied medical treatment after having a seizure. Id. Additionally, she alleges she has “repeatedly been violated sexually.” Id. She alleges she was asked to show her breast to an officer before getting toilet paper or making a phone call. Id. at 10-11. Further, she alleges that while housed in “fmax” she was made to watch females have sex with each other. Id. at 10. Plaintiff represents that she has tried to use the PREA phone number, but the number she used is a restricted number. Id. Plaintiff alleges that one officer put her hand on his penis. Id. at 11. In her prayer for relief, Plaintiff asks that the officers be charged with medical and/or sexual misconduct for violating the PREA and $250,000 in damages. Id. at 19.
II. Standard of Review
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, Plaintiff must only plead “a short and plain statement of the claim showing that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). In order for Plaintiff's Complaint to survive Defendants' Motions to Dismiss, Plaintiff does not need to plead detailed factual allegations in her Complaint. See id. However, the United States Supreme Court has held that a plaintiff's grounds for relief require more than just stating legal conclusions and elements of a cause of action. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that, on a motion to dismiss, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.”). Plaintiff's complaint must contain sufficient factual allegations that make a claim for relief plausible, not just possible. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp., 550 U.S. at 570. This court must accept Plaintiff's factual allegations as true and draw all reasonable inferences in her favor. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011).
III. Analysis
Both sets of Defendants argue Plaintiff's § 1983 causes of action are barred because she failed to exhaust her administrative remedies. See ECF Nos. 32, 55. They argue that Plaintiff failed to grieve certain allegations raised in her Complaint at all. See id. On those grievances that are related to her causes of action, Defendants argue that Plaintiff failed to follow up and appeal those grievances, thus failing to complete the grievance process. Id.
Plaintiff has made many court filings to date. In a letter to the court, Plaintiff asks that her Complaint not be dismissed because she has filed appeals on many of her Complaints. ECF No. 45. In her first Response, Plaintiff argues that she filed initial grievances concerning sexual assaults on several occasions and also “reporting said assaults in person to” certain officers. ECF No. 47. Further, she represents that her entire grievance file will demonstrate that she has filed appeals within the facility and several of the appeals remain “open.” Id. at 7-9. Plaintiff appears to handwrite portions of the grievance procedure as an attachment to her Response. ECF No. 471. Further, Plaintiff attaches witness statements to her Response. ECF No. 47-2. Finally, Plaintiff attaches grievances to her Response and handwrites on them that she appealed certain grievances and reported them in person. ECF No. 47-3. Plaintiff filed another letter with the Court, reiterating previous arguments and assertions. ECF No. 48.
In other responses and letters, Plaintiff asks for the court's assistance in obtaining certain information and taking certain action against correctional officers and reiterates certain allegations. See ECF Nos. 52, 63, 64. Plaintiff is advised that the court cannot take action on any party's behalf and must remain neutral throughout these proceedings.
In her second Response, Plaintiff argues that the PREA phone number provided to inmates within CCDC is “restricted.” ECF No. 61 at 1-2. Further, she maintains she has faced retaliatory actions by CCDC officers for her actions taken to report violations. Id. at 2-4. Plaintiff then lists dates and grievances, in handwritten form, indicating that “[t]here are still open appeal grievances” at the top of her list. ECF No. 61-1. Thereafter, Plaintiff attaches printouts from her kiosk requests that concern: her medical file and medical requests; her request for bond; food allergies; her opinion that officers' positions near the bathroom are a PREA violation; plea negotiations; and cleanliness issues. ECF No. 61-3.
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). Further, pretrial detainees, which Plaintiff was at all times relevant to these claims, are required to exhaust administrative remedies. See 42 U.S.C.A. 1997e(h) (defining “prisoner” for PLRA purposes 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 or the terms and conditions of parole, probation, pretrial release, or diversionary program.”); see also Rutland v. Dewitt, No. 8:09-13-SB, 2010 WL 288217, at *5 & n.1 (D.S.C. Jan. 25, 2010) (applying PLRA to pretrial detainee).
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).
Exhaustion is an affirmative defense; an inmate is not required to plead exhaustion in his complaint. Jones v. Bock, 549 U.S. 199 (2007); see also Mattress v. Taylor, 487 F.Supp.2d 665, 668 (D.S.C. 2007) (“Instead, an inmate's failure to exhaust his administrative remedies must be viewed as an affirmative defense that should be pleaded or otherwise properly raised by the defendant.”). While “unlikely” that failure to exhaust administrative remedies will be apparent from the face of the complaint, sua sponte dismissal is appropriate if the complaint “clearly” reveals that an inmate has not exhausted his administrative remedies. Mattress, 487 F.Supp.2d at 668.
At this stage, the undersigned cannot recommend Plaintiff's Complaint be dismissed because it is not clear on the face of the Complaint that Plaintiff failed to exhaust her administrative remedies. See Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005) (“That exhaustion is an affirmative defense, however, does not preclude the district court from dismissing a complaint where the failure to exhaust is apparent from the face of the complaint, nor does it preclude the district court from inquiring on its own motion into whether the inmate exhausted all administrative remedies.”); Smith v. Meeks, No. 4:17-CV-0043-RBH-TER, 2017 WL 9288198, at *2 (D.S.C. June 16, 2017), report and recommendation adopted as modified, No. 4:17-CV-00043-RBH, 2017 WL 3262182 (D.S.C. Aug. 1, 2017). Defendants have filed many documents with the court, and in order to properly consider these Motions, the undersigned will have to consider many documents outside the four corners of the Complaint. Further, in her Complaint, Plaintiff represents that she filed grievances and “repeatedly appealed” them and completed the grievance process. See ECF No. 1. A motion to dismiss only tests the sufficiency of the allegations in the Complaint and does not generally reach the merits of an affirmative defense. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; ‘importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'”).
Accordingly, the undersigned recommends that both Motions filed by each set of Defendants, ECF Nos. 32 and 55, be denied at this time. The undersigned recommends allowing limited discovery on the subject of exhaustion only. Upon the District Court's ruling on this R&R, the undersigned will promptly provide the parties with an expedited discovery timeline. Upon completion of that limited discovery, Defendants may refile Motions pursuant to Rule 56 of the Federal Rules of Civil Procedure.
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendant Stephen Anderson, Dustin Richie, Sadrick Dunn, Antonio Ortega, and Sherille Wells' Motion to Dismiss, ECF No. 32, and Defendant Crystal Nichols, Shannon Bright, Joseph Camp, and Virgil McFrye's Motion to Dismiss, ECF No. 55, be denied.
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.”