Opinion
C. A. 9:21-cv-03820-RMG-MHC
06-23-2023
Sterling L. Singleton, Plaintiff, v. Bryan P. Stirling, Dennis Patterson, Willie Davis, Terry Wallace, Whittington, Willie Ocean, Michael Pressly, Edward Gadsden, Bostic, Brennen, Ms. Labradore, William Gill, Shannon Dean, Shawn Stover, Anthony Berry, Terry Marshal, Dr. Kinnard Debose, Tishiro Inabnit, and Sophia Paquette, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Sterling L. Singleton (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while he was incarcerated within the South Carolina Department of Corrections (“SCDC”). ECF No. 31. Defendant Anthony Berry filed a Motion for Summary Judgment, ECF No. 82, and the remaining Defendants filed a Motion for Summary Judgment, ECF No. 81. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motions, Plaintiff filed Responses in Opposition. ECF Nos. 93, 95. Defendant Berry filed a Reply. ECF No. 94. The matter is, therefore, 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)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e) (D.S.C.). Because the Motions are dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motions.
I. BACKGROUND
On November 22, 2021, Plaintiff filed his initial Complaint pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated while housed at Kirkland Correctional Institution (“KCI”), a facility run by SCDC. ECF No. 1. On January 7, 2022, Plaintiff filed an Amended Complaint. ECF No. 17. Thereafter, Plaintiff filed a motion to amend his complaint, which this Court granted. ECF Nos. 23, 26, 27. On February 18, 2022, Plaintiff filed his Second Amended Complaint. ECF No. 31.
In the operative Second Amended Complaint, Plaintiff alleges that on December 7, 2018, he was stabbed during an inmate-on-inmate assault while housed at KCI. ECF No. 31 at 8. Specifically, he alleges that a fellow inmate, who had threatened him previously, entered his cell and stabbed him twelve times with a homemade shank. ECF No. 31 at 8. Plaintiff maintains that Defendants violated his Eighth Amendment rights by failing to protect him from being attacked by other inmates. ECF No. 31 at 8-9. Plaintiff seeks declaratory and injunctive relief, as well as monetary damages. ECF No. 31 at 10.
II. LEGAL STANDARD
Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF Nos. 81, 82. Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
Defendants argue they are entitled to relief because, inter alia, Plaintiff did not exhaust his administrative remedies. The undersigned agrees Plaintiff did not exhaust his administrative remedies.
Defendants also argue that: (1) Plaintiff has not produced evidence sufficient to sustain a § 1983 action; (2) qualified immunity shields them from liability; and (3) they are entitled to Eleventh Amendment immunity. Because Plaintiffs failure to exhaust his administrative remedies is dispositive of the action, the undersigned has not addressed the remaining arguments.
A. Failure to exhaust under the PLRA
Defendants argue they are entitled to relief because Plaintiff did not exhaust his administrative remedies before filing this action as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's exhaustion requirement is mandatory.” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), abrogated on other grounds by Custis v. Davis, 851 F.3d 358, 363 (4th Cir. 2017); see also Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (“The exhaustion requirement is mandatory, and courts lack the authority to waive that requirement.”). Section 1997e mandates “proper” exhaustion; thus, a “procedurally defective administrative grievance or appeal” does not satisfy the mandatory exhaustion requirement. Woodfordv. Ngo, 548 U.S. 81, 83-84 (2006).
The PLRA “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). “Failure to exhaust is an affirmative defense, and defendants have the burden of raising and proving the absence of exhaustion.” Baxley v. Jividen, 508 F.Supp.3d 28, 46 (S.D. W.Va. 2020) (citation and internal quotation marks omitted). “However, if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff.” Id. (citation and internal quotation marks omitted).
1. Defendants have met their burden in showing failure to exhaust.
Defendants submitted the affidavit of Felecia McKie, who is the Chief of the Inmate Grievance Branch of SCDC, and SCDC's “Inmate Grievance System,” which contains the inmate grievance procedure. ECF No. 81-6; ECF No. 101-1. Defendant Berry, separately, submitted a summary of the grievances filed by Plaintiff between August 29, 2018, and February 12, 2022. ECF No. 82-3.
As Chief of the Inmate Grievance Branch, McKie's duties include overseeing and monitoring the inmate grievance process at all SCDC facilities. ECF No. 101 at 1, ¶ 2. In her affidavit, McKie detailed the grievance system and noted the steps an inmate must take to properly exhaust the administrative process. ECF No. 101 at 2-8. SCDC has a three-step grievance process.First, an inmate must submit a Request to Staff Member Form (“RTSM”) or Automated Request to Staff Member (“ARTSM”) in an effort to resolve the grievance informally. ECF No. 101 at 23. Second, if informal resolution fails, the inmate must file a Step 1 Grievance Form (10-5), setting forth the issue grieved. ECF No. 101 at 3-4. Third, inmates may then appeal an SCDC decision as to the Step 1 Grievance by filing a Step 2 Grievance Form (10-5A). ECF No. 101 at 4. SCDC's response to a Step 2 Grievance is considered the final agency decision on the issue. ECF No. 101 at 6-7; ECF No. 81-6 at 10-11.
In addition to the materials Defendants attached to their Motion, the undersigned takes judicial notice of other cases that have detailed the grievance procedure. See Smyth v. Stirling, No. 0:21-CV-00649-RBH, 2022 WL 3367759, at *3 n.6 (D.S.C. Aug. 16, 2022) (collecting cases).
McKie reviewed Plaintiff's grievance history and attested that Plaintiff did not follow and/or use all of the options available to him through SCDC's Inmate Grievance System to address matters raised in the action before this Court. ECF No. 101 at 8-9. Specifically, McKie averred that no grievances relating to the issues raised in this case were filed by Plaintiff on or around the date of the incident. ECF No. 101 at 8-9. Consequently, Defendants have shown that Plaintiff failed to exhaust his administrative remedies with regard to the above subject matters prior to initiating this action. See Baxley, 508 F.Supp.3d at 46 (noting “if a defendant makes a threshold showing of failure to exhaust, the burden of showing that administrative remedies were unavailable falls to the plaintiff').
2. Plaintiff has not shown his administrative remedies were unavailable.
Plaintiff argues that he filed an emergency grievance regarding the stabbing incident on or about December 11, 2018. ECF No. 95 at 8. He maintains that he waited two years and never received a response, which rendered the “grievance process unavailable” to him. ECF No. 95 at 8. He cites to Ross v. Blake, 578 U.S. 632 (2016) as supporting his argument, and he appears to allege that prison administrators thwarted him from taking advantage of the grievance process. See ECF No. 95 at 7-8; ECF No. 93 at 4, 7.
The Supreme Court has recognized that the PLRA contains its own textual exception to the mandatory exhaustion requirement, noting the requirement hinges on the “availability” of administrative remedies-that is, an inmate “must exhaust available remedies, but need not exhaust unavailable ones.” Ross, 578 U.S. at 642. The Supreme Court set forth three scenarios where the administrative process, although officially on the books, might be considered “unavailable” for purposes of exhausting under the PLRA. Id. at 643-44. The Court held an administrative procedure is unavailable (1) when “it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) when it is “so opaque that it becomes, practically speaking, incapable of use;” and (3), “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. Facts supporting the existence of any of these scenarios could remove an inmate's obligation to exhaust his administrative remedies. Id.
As an initial matter, the Court notes that Plaintiff did not attach any evidence concerning his exhaustion of administrative remedies in his Responses to Defendants' Motions. However, Plaintiff averred in his verified Amended Complaint that he filed an emergency grievance on December 11, 2018, wherein he raised the matters at issue here. ECF No. 17-1 at 7. He further averred that he never received a response and that he filed several requests regarding the emergency grievance. ECF No. 17-1 at 7. Other than this testimony, Plaintiff has produced no other evidence pertaining to his exhaustion of administrative remedies. He has not submitted a copy of this grievance, nor has he produced evidence of any steps he took to follow-up on the status of this grievance.
Plaintiff's Amended Complaint was verified, but his Second Amended Complaint was not. Compare ECF No. 17 with ECF No. 31. Although Plaintiff's Second Amended Complaint superseded the Complaint and first Amended Complaint for pleading purposes, the first Amended Complaint still holds evidentiary value for purposes of summary judgment. See Goodman v. Diggs, 986 F.3d 493, 499 (4th Cir. 2021) (holding that “an amended complaint does not divest an earlier verified complaint of its evidentiary value as an affidavit at the summary judgment stage”). Thus, Plaintiff's sworn testimony contained in his Amended Complaint is evidence which this Court must consider against Defendants' evidence. See id. at 498 (noting a verified complaint is “the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge”).
After considering Plaintiff's arguments, the Court finds Defendants are entitled to summary judgment for two reasons. First, even if the Court assumes Plaintiff did file an emergency grievance, it is nevertheless undisputed that Plaintiff failed to exhaust his administrative remedies. Although Plaintiff avers that he filed an emergency grievance concerning the issues raised in this action, ECF No. 17-1 at 7, Plaintiff has not shown, much less argued, that an inmate fully exhausts his administrative remedies by merely filing an emergency grievance. To the contrary, SCDC's Inmate Grievance System still has an appeals process, which Plaintiff never completed. See ECF No. 81-6 at 11-12. Rather, Plaintiff “waited two years” for a response, never received one, and then filed this suit. ECF No. 95 at 8. Thus, even taking Plaintiff's sworn statement in the Amended Complaint as true, Plaintiff concedes he did not fully exhaust his administrative remedies.
Plaintiff argues that because the subject matter was related to criminal activity he did not need to adhere to the informal procedures for regular grievances. ECF No. 17-1 at 7; see ECF No. 95 at 8. This appears to be true. See ECF No. 81-6 at 8; see also Henderson v. Officer Cleveland, No. 4:20-CV-2726-SAL-TER, 2023 WL 2534872, at *8 (D.S.C. Mar. 16, 2023) (“Both of Henderson's 2020 Grievances allege criminal activity, which exempts them from the informal resolution requirement.”). However, filing an emergency grievance appears to only fast-track the consideration of those grievances. See ECF No. 81-6 at 11-12. While this expedites the process by removing some steps (like the attempt at informal resolution), there is nothing in SCDC's Inmate Grievance System to suggest that all an inmate needs to do to fully exhaust his administrative remedies is file an emergency grievance. See ECF No. 81-6 at 8-12.
Second, Plaintiff has failed to show the grievance process became “unavailable” to him. Plaintiff's argument-that he was thwarted by prison officials from taking advantage of the grievance process-falls within the third exception contemplated by Ross. However, other than his general allegations that he was thwarted by unnamed prison officials, Plaintiff does not offer any factual allegations that would show or even suggest any prison official used trickery, lies, or threats to prevent him from availing himself to the grievance process. See Graham, 413 Fed.Appx. at 663 (noting Fourth Circuit precedent holds that “in order to show that a grievance procedure was not ‘available,' a prisoner must adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure” (citing Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008))). Nor has Plaintiff provided factual allegations that would support any of the other exceptions outlined in Ross. Quite simply, Plaintiff has not put forth any evidence that he was unable to avail himself to the grievance procedure at SCDC. See Celotex Corp., 477 U.S. at 322 (noting the non-movant must provide evidence of every element essential to his action to survive summary judgment); Thompson, 312 F.3d at 649 (noting conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion). Consequently, Plaintiff has failed to demonstrate that SCDC's administrative remedies were “unavailable” to him-that is, that the procedures “operate[d] as a dead end,” were so opaque that they were “incapable of use,” or SCDC officials actively “thwart[ed] inmates from taking advantage” of the process. See Ross, 578 U.S. at 643-44.
To the contrary, Plaintiff appears to be well-versed and well-acquainted with the grievance process. As Plaintiff's grievance history reflects, he has filed numerous other grievances in the years between this alleged incident and the filing of this action. See ECF No. 82-3.
As a result, Plaintiff is unable to overcome the undisputed evidence that he failed to exhaust his available administrative remedies. Accordingly, the undersigned recommends granting Defendants' Motion. See Brown v. Ramos, No. CV 5:20-00052-RMG-KDW, 2020 WL 7000846, at *4 (D.S.C. Sept. 29, 2020) (“[T]he undersigned recommends that Defendants' Motion for Summary Judgment be granted because Plaintiff failed to exhaust his available administrative remedies before filing this action.”), report and recommendation adopted, No. CV 5:20-0052-RMG, 2020 WL 6305397 (D.S.C. Oct. 28, 2020); Jones v. Clawson, No. CA 5:11-1533-RBH-KDW, 2012 WL 3096048, at *4 (D.S.C. July 17, 2012) (recommending granting summary judgment in favor of Defendants where Plaintiff failed to show he had exhausted his administrative remedies), report and recommendation adopted, No. 5:11-CV-01533-RBH, 2012 WL 3079160 (D.S.C. July 30, 2012), aff'd, 486 Fed.Appx. 342 (4th Cir. 2012); see also Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (holding that an inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983”); Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999) (determining that an inmate incarcerated in a state prison must first comply with the grievance procedures established by the state department of corrections before filing a federal lawsuit under § 1983).
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendants' Motions, ECF Nos. 81 and 82, be GRANTED.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
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
Post Office Box 835
Charleston, South Carolina 29402
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).