Opinion
CIVIL ACTION NO. 9:19-0194-MGL-BM
02-12-2020
Mark Allan Snyder, # 322955, Plaintiff, v. Warden Dunlap, Lieutenant Miller, and Sergeant Rommanello, Defendants.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate with the South Carolina Department of Corrections (SCDC), alleges violations of his constitutional rights by the named Defendants.
42 U.S.C. § 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
The Defendants filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on October 14, 2019. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on October 16, 2019, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised that if he failed to adequately respond, the Defendants' motion may be granted, thereby ending his case. Plaintiff thereafter filed a response in opposition to the Defendants' motion on November 21, 2019, following which the Defendants filed a reply (after having been granted an extension) on December 31, 2019.
The Defendants' motion is now before the Court for disposition.
This case was automatically 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 Rule 73.02(B)(2)(d), D.S.C. The Defendants have filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
Plaintiff alleges in his verified Complaint that on or about January 30, 2017, while he was housed at the Kershaw Correctional Institution (KCI), inmate Samuel White was moved in to his cell (Magnolia Unit, Cell 17). Plaintiff alleges that White had previously been housed in the Oak Unit, a "high-risk unit for incorrigible inmates". Plaintiff alleges that on or about February 3, 2017, he informed both the Defendant Miller and the Defendant Rommanello (both correctional officers) that he "felt threatened by his new cell mate's threatening demeanor towards him for no apparent reason". Plaintiff alleges that Miller and Rommanello advised him to make a request to the "inmate coordinators" and "allow them to handle it". Plaintiff alleges that thereafter, on the night of February 7, 2017, White (during a "threatened tirade") informed Plaintiff that he [White] was going to make the officers move him to another cell. Plaintiff then alleges that, while he was asleep, White "commenced to violently, physically assault Plaintiff into a state of unconsciousness". Plaintiff alleges that he thereafter remained unconscious for five days before regaining consciousness, at which time he was informed that he had been admitted to Palmetto Richland Hospital. Plaintiff alleges that as a result of this attack, he has suffered from PTSD and nightmares.
In this Circuit, verified complaints by pro se litigants are to be considered as affidavits and may, standing alone, defeat a motion for summary judgment when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Plaintiff is currently housed at the MacDougall Correctional Institution (MCI).
Plaintiff alleges that the Defendants Miller and Rommanello are responsible for what happened to him because they failed to "rectify the situation" even though Plaintiff had told them prior to the attack occurring about inmate White's conduct, and that their failure to take any action resulted in Plaintiff suffering pain, physical injury and emotional distress, in violation of his Constitutional rights. Plaintiff has included Dunlap (the Warden at KCI), as a party Defendant because (Plaintiff alleges) he is "legally responsible for the operation of [KCI] and for the welfare of all the inmates of that prison". Plaintiff concedes that he did not file a grievance with respect to this incident, but alleges that he was "unable to use the grievance procedure available at [KCI] . . . as a result of . . . being incapacitated for a total of five (5) days immediately after the attack." Plaintiff seeks monetary damages. See generally, Plaintiff's Verified Complaint.
Defendants assert in their motion for summary judgment, inter alia, that this case is subject to dismissal for failure of the Plaintiff to exhaust his administrative remedies prior to filing this lawsuit, as required by the Prison Litigation Reform Act (PLRA). In support of this argument, the Defendants have submitted an affidavit from Sherman Anderson, Branch Chief of the Inmate Grievance Branch of the SCDC, who attests that after having reviewed the Plaintiff's entire grievance history, he has located no grievance that Plaintiff filed raising any issues relating to the alleged incident of February 7, 2017, or any actions or inactions by SCDC officials or employees related to that incident. See generally, Anderson Affidavit, with attached Exhibits. In his response, Plaintiff asserts that following the attack he was unconscious for five days, and was thereafter "in and out of consciousness" about another five days, and that during this time he had no access to a kiosk or paper in the infirmary to file a grievance. However, Plaintiff does contend that his talk with Miller and Rommanello "was my informal resolution per steps of grievance process". Defendants argue in their reply that Plaintiff's failure to submit a Step 1 grievance after his release from the infirmary defeats his claim based on a failure to exhaust.
Discussion
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, in order to avoid summary judgment the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). Further, while Federal Courts are charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case, see Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972), 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 Social Services, 901 F.2d 387 (4th Cir. 1990). Here, after careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with the Defendants that this case is subject to dismissal for failure of the Plaintiff to exhaust his administrative remedies prior to filing this lawsuit.
Pursuant to 42 U.S.C. § 1997e(a), "[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." Through the enactment of this statute, "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001); see Porter v. Nussle, 534 U.S. 516 (2002); Larkin v. Galloway, 266 F.3d 718 (7th Cir. 2001) [exhaustion required even though plaintiff claimed he was afraid]; see also Claybrooks v. Newsome, No. 00-7079, 2001 WL 1089548 (4th Cir. Sept. 18, 2001) (unpublished opinion) [applying Booth v. Churner to affirm district court's denial of relief to plaintiff]. Accordingly, the Defendants are is correct that before Plaintiff may proceed with his federal claim against them in this Court, he must first have exhausted the administrative remedies that were available to him at the prison with respect to this claim.
The Defendants have the burden of showing that Plaintiff failed to exhaust his administrative remedies. See Anderson v. XYZ Correctional Health Services, Inc., 407 F.3d 674, 683 (4th Cir. 2005) [inmate's failure to exhaust administrative remedies is an affirmative defense to be both pled and proven by the Defendant]; Jones v. Bock, 549 U.S. 199 (2007). To meet this burden, the Defendants first note that Plaintiff himself concedes in his verified Complaint that he did not file a grievance with the SCDC with respect to this claim. The Defendants then further reference the affidavit from Anderson, who attests that the SCDC has an established inmate grievance procedure that allows inmates to grieve issues related to their confinement, a copy of which is attached to his affidavit as Exhibit A. Pursuant to the SCDC Inmate Grievance Procedure, an inmate must first attempt to resolve his/her issue through an Informal Resolution by submitting a Request to Staff Member form (RTSM), or an Automated Request to Staff Member (ARTSM) using a kiosk, to the appropriate supervisor/staff within eight working days of the incident. Anderson attests that this attempt at an Informal Resolution is a prerequisite for filing most Step 1 grievances. If an inmate is dissatisfied with the response he receives to the RTSM or ARTSM, the inmate may then file a Step 1 grievance by filling out Inmate Grievance form 10-5. The Step 1 grievance form requires the inmate to include a copy of the RTSM that was submitted, or a kiosk reference number if they filed an ARTSM. Then, if the inmate is not satisfied with the response to his/her Step 1 grievance, the inmate must appeal that response by submitting a Step 2 grievance form 10-5A within five calendar days of their receipt of the response to the Step 1 grievance. The response to the Step 2 grievance is considered to be the final agency decision on the issue.
An Informal Resolution is not necessary when appealing a disciplinary conviction or a custody reduction, which are not at issue in this case.
However, as noted, Anderson attests that there is no record of Plaintiff ever having filed a grievance with the SCDC regarding the incident at issue in this lawsuit, and indeed Plaintiff concedes in his filings that he never filed any grievance. Rather, Plaintiff argues that he should not be required to have exhausted the grievance process in this case because he was unable to file a grievance due to his being unconscious for five days after the attack. However, Plaintiff has offered no plausible argument for why he did not simply pursue a grievance with respect to this incident after he was released from the infirmary. Plaintiff may have had a valid argument for not having exhausted his administrative remedies if the SCDC had rejected an attempt by him to pursue a grievance after he was released from the infirmary on the grounds that it was untimely filed. Cf. Days v. Johnson, 322 F.3d 863, 868 (5th Cir. 2003) [Holding that administrative remedies are deemed unavailable where an inmate's untimely filing of a grievance is because of a physical injury and the grievance system rejects the grievance due to its untimeliness], overruled on other grounds by Woodford v. Ngo, 548 U.S. 81 (2006). However, Plaintiff readily admits that he never even attempted to file a grievance, untimely or otherwise. See Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000)["It is beyond the power of this court - or any other to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis."](quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp. 2d 884, 894-895 (S.D.N.Y. 1998)); cf. Poe v. Bryant, No. 12-3142, 2013 WL 6158023, at * 2 (D.S.C. Nov. 21, 2013)[Holding that defendants satisfied their burden of showing a failure to exhaust administrative remedies with exhibits detailing the grievance process and showing that Plaintiff failed to exhaust this remedy, and that Plaintiff's contradictory statements in response, including that the Defendant would not provide him a grievance, were not sufficient to avoid summary judgment in light of the contrary evidence]; see also King v. Flinn & Dreffein Eng'g Co., No. 09-410, 2012 WL 3133677, at * 10 (W.D.Va. July 30, 2012)[Finding no genuine issue of material fact where only evidence was "uncorroborated and self-serving testimony"], citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
In sum, the evidence and arguments presented establish that the Defendants have met their burden of establishing their affirmative defense that Plaintiff failed to exhaust his administrative remedies before filing this lawsuit. Anderson, 407 F.3d at 683 [inmate's failure to exhaust administrative remedies is an affirmative defense to be both pled and proven by the Defendant] ; see also Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005) [Prisoner may not file a lawsuit before exhausting his administrative remedies]; Malik v. Sligh, No. 11-1064, 2012 WL 3834850, at * 4 (D.S.C. Sept. 4, 2012) ["A court may not consider, and must dismiss, unexhausted claims"]. Therefore, the Defendants are entitled to summary judgment in this case. Hyde v. South Carolina Dep't of Mental Health, 442 S.E.2d 582, 583 (S.C. 1994) ["Where an adequate administrative remedy is available to determine a question of fact, one must pursue the administrative remedy or be precluded from seeking relief in the courts"]; Porter, 534 U.S. at 516 [exhaustion required for all actions brought with respect to prison conditions]; Spruill v Gillis, 372 F.3d 218, 227-232 (3d Cir. 2004) [Discussing necessity of pursuing all administrative remedies to the end]; see also Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010) ["Exhaustion of administrative remedies under the PLRA is a question of law to be determined by the judge"].
As the Defendants are entitled to dismissal of this case for failure to exhaust remedies by the Plaintiff, the undersigned has not analyzed or discussed the other grounds for summary judgment presented by the Defendants in their motion.
Conclusion
Based on the foregoing, it is recommended that the Defendants' motion for summary judgment be granted, and that this case be dismissed. As the recommendation is for summary judgment for failure to exhaust, the dismissal of this case should be without prejudice. See Lee v. South Carolina Dep't. of Corrections, No. 15-4415, 2016 WL 3176582 at * * 1-2 (D.S.C. June 2, 2016) [dismissing case without prejudice due to prisoner's failure to exhaust administrative remedies].
The parties are referred to the Notice Page attached hereto. February 12, 2020
Charleston, South Carolina
/s/_________
Bristow Marchant
United States Magistrate Judge
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).