Opinion
Civil Action 2:21-01230-JFA-MGB
02-01-2022
Hazel Stoudemire, Jr., Plaintiff, v. Sgt. Thomas, Lieutenant Priester, and Captain Livingston, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
This action has been filed by Plaintiff, pro se and in forma pauperis, pursuant to 42 U.S.C. § 1983, alleging that Defendants failed to protect him and failed to provide him with adequate medical care while he was incarcerated at Broad River Correctional Institution (“Broad River”). (Dkt. Nos. 1, 14.) This matter is before the Court upon Defendants' Motion for Summary Judgment (Dkt. No. 59) and Plaintiff's Motion for Summary Judgment (Dkt. No. 86). Pursuant to 28 U.S.C. §636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge. For the reasons set forth below, the undersigned recommends that Defendants' Motion for Summary Judgment (Dkt. No. 59) be granted, and that Plaintiff's Motion for Summary Judgment (Dkt. No. 86) be denied.
The undersigned notes that Plaintiff's Motion for Summary Judgment was filed well after the deadline for dispositive motions. (See Dkt. No. 39.) In the interests of justice, the undersigned has nonetheless considered the arguments set forth in Plaintiff's motion. (Dkt. No. 86.)
BACKGROUND
Plaintiff alleges that on February 16, 2021, all prisoners at Broad River were “on cell restriction due to the ‘Blood' holiday” and “under a [100%] lockdown status due to a prior assault.” (Dkt. No. 14 at 1-2.) Plaintiff claims that the officer on duty in his unit, Defendant Thomas, nonetheless “had most of the [blood gang members] out” of their cells. (Id. at 1.) He claims that the prison has “cameras and they watch those cameras so the Captain and Lieutenant of Defendant Thomas's shift must [have] approved of his conduct.” (Id.)
Plaintiff alleges that Defendant Thomas unlocked his cell door at around 6:00pm on February 16, 2021 and allowed “several gang members” to assault him. (Id. at 2; Dkt. No. 16 at 6-8.) Plaintiff explains that he sustained broken bones and other injuries from the assault. (Dkt. No. 14 at 2; Dkt. No. 16 at 7.) Plaintiff claims that he requested medical attention immediately after the assault but was instructed to “get back into the cell.” (Dkt. No. 14 at 2; Dkt. No. 16 at 8.) Plaintiff states that he had surgery to repair his broken jaw “a little over (30) thirty days” later, but claims he never received any medical attention for his broken back. (Dkt. No. 14 at 3; Dkt. No. 16 at 7.)
Plaintiff claims that Defendants violated his Eighth Amendment right and “their duty of care owed to him under state law” by failing to protect him from this assault and by denying him access to medical care immediately following the assault. (Dkt. No. 14 at 3; Dkt. No. 16 at 4-5.) Accordingly, he filed this civil action on April 25, 2021. (Dkt. No. 1.) On July 8, 2021, Plaintiff filed an Amended Complaint clarifying the “factual matters” of his claim. (Dkt. Nos. 14, 16.)
On November 23, 2021, Defendants filed a Motion for Summary Judgment arguing that Plaintiff's claims should be dismissed in their entirety due to Plaintiff's failure to exhaust them before filing this civil action in federal court. (See generally Dkt. No. 59-1.) Plaintiff responded to Defendants' motion on December 17, 2021. (Dkt. No. 71.) He supplemented his response on December 21, 2021, and again on January 3, 2022. (Dkt. Nos. 74, 84.) After requesting and receiving an extension of time to reply, Defendants replied to Plaintiff's response on January 10, 2022. (Dkt. Nos. 78, 79, and 87.) On the same day Defendants filed their reply, Plaintiff filed his own Motion for Summary Judgment. (Dkt. No. 86.) Defendants responded to this motion on January 24, 2022. (Dkt. No. 92.) Plaintiff declined to reply to Defendants' response by the January 31, 2022 deadline. As such, the motions before the Court have been fully briefed and are ripe for disposition.
Plaintiff did, however, file a sur reply to Defendants' reply to his response on Defendants' Motion for Summary Judgment on January 28, 2022. (Dkt. No. 93.)
LEGAL STANDARDS
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Pub'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a court considers the motion, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Because Plaintiff is representing himself, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
DISCUSSION
Defendants seek dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure solely on the basis that Plaintiff has failed to exhaust his administrative remedies. (See generally Dkt. No. 59-1.) Plaintiff argues that summary judgment should be granted in his favor because a genuine issue of material fact exists with respect to exhaustion. (See generally Dkt. No. 86.) For the reasons set forth below, the undersigned finds that Plaintiff has failed to exhaust his administrative remedies. The undersigned therefore recommends that Defendants' Motion for Summary Judgment (Dkt. No. 59) be granted, and that Plaintiff's Motion for Summary Judgment (Dkt. No. 86) be denied.
I. Exhaustion of Administrative Remedy Process
Section 1997e(a) of the Prison Litigation Reform Act (“PLRA”) 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.” 42 U.S.C. § 1997e(a). 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 also Porter v. Nussle, 534 U.S. 516 (2002).
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). An inmate's failure to “properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983.” Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see also White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (upholding dismissal of an inmate's complaint because the inmate failed to proceed beyond the first step in the administrative grievance process). The Defendants bear the burden of proving the affirmative defense that Plaintiff failed to exhaust available administrative remedies regarding his claims. Jones, 549 U.S. at 212. Once they have done so, the burden of proof shifts to Plaintiff to show, by a preponderance of the evidence, that the administrative remedies were unavailable to him through no fault of his own. Graham v. Gentry, 413 Fed.Appx. 660, 663 (4th Cir. 2011) (citing Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)).
The SCDC grievance procedure is outlined in SCDC Policy GA-01.12 (“Inmate Grievance System”). Subject to certain exceptions, the Inmate Grievance System requires that inmates initially attempt to resolve grievances informally by “submitting a Request to Staff Member Form to the appropriate supervisor/staff within eight (8) working days of the incident.” (Dkt. No. 59-3 ¶ 13.2.) Informal resolution is not required, however, when “the matter involves allegations of criminal activity.” (Id.) With respect to criminal activity complaints, the inmate must file Form 10-5 Step 1 within five working days of the alleged incident. (Id.) The Inmate Grievance System provides:
A copy of SCDC Policy GA-01.12 has been provided by Defendants as Exhibit A to the Affidavit of Felecia McKie. (Dkt. No. 59-3 at 2-16.)
Any grievance which alleges criminal activity will be referred immediately to the Chief/designee, Inmate Grievance Branch. The IGC will note on the grievance tracking CRT screen that the grievance has been forwarded to the Inmate Grievance Branch for possible investigation by the Division of Investigations and the date on which the grievance was forwarded. The Chief/Designee, Inmate Grievance Branch, will consult with the Division of Investigations to determine if a criminal investigation would be appropriate. If deemed appropriate, the grievance will be forwarded to the Division of Investigations, to be handled in accordance with applicable SCDC policies/procedures. The grievance will be held in abeyance until the Division of Investigations completes their review/investigation.(Id. ¶ 15.) If it is determined that a criminal investigation is not required, the grievance will be processed in accordance with the procedures applicable to non-criminal activity grievances. (Id.)
If an inmate files a Step 1 grievance that does not involve criminal activity, the Warden is required to respond in writing within 45 days and advise the inmate of his right to appeal to the next level:
The Warden will respond to the grievant in writing (in the space provided on SCDC Form 10-5, Step 1), indicating in detail the rationale for the decision rendered and any recommended remedies. The grievant will also be informed of his/her rights to
appeal to the next level. The Warden will respond to the grievant no later than 45 days from the date the grievance was formally entered into the OMS system by the IGC. The response will be served by the IGC to the grievant, within ten (10) calendar days, and the grievant will sign and date the response acknowledging receipt. The IGC will maintain the original grievance for the inmate's grievance file and a copy will be given to the inmate.(Id. ¶ 13.5)
The inmate may then appeal by filing a Form 10-5(a) Step 2 appeal to the Inmate Grievance Coordinator within five days of the receipt of the response. (Id. ¶ 13.7) The appeal is referred to the “responsible official” who is required to make a final decision within 90 days. (Id.) The Inmate Grievance System provides,
As part of the Department's final answer to a grievance, the inmate will be notified that any further appeal must be initiated within 30 days after receipt of the Department's final answer. This appeal must be contained on the South Carolina Administrative Law Court “Notice of Appeal” that will be attached to the Department's final answer and must be sent to the Administrative Law Court. Instructions regarding completion of the form, and information indicating where the form must be sent, will also be provided to the inmate.(Id. ¶ 13.9)
II. Unavailability of Administrative Remedy and Notice
As discussed below, it is undisputed that Plaintiff did not exhaust his administrative remedies in accordance with the Inmate Grievance System. Accordingly, Plaintiff must show, by a preponderance of the evidence, that the administrative remedies were unavailable to him. Graham, 413 Fed.Appx. at 663. “[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, 517 F.3d at 725. To prove unavailability, the inmate must “adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure.” Graham, 413 Fed. App'x at 663. “The district court is ‘obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.'” Zander v. Lappin, 415 F. App'x 491, 492 (4th Cir. 2011) (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).
In Ross v. Blake, the Supreme Court set forth three scenarios where the administrative process is considered “unavailable”: (1) the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) the “administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation.” 136 S.Ct. 1850, 1853- 54 (2016).
The examples provided in Ross with respect to the first scenario indicate that a deficiency of this type must be systemic or widespread, or at least not isolated. See Ross, 136 S.Ct. at 1859 (giving the following examples of when an administrative remedy is a dead end: when a prison handbook directs inmates to submit their grievances to a particular administrative office, but in practice that office disclaims authority to consider them; or when administrative officials have apparent authority but decline ever to exercise it). With respect to the third scenario, Ross seems to require that, to prevail on an assertion that prison officials thwarted his efforts to exhaust, an inmate must be able to demonstrate something more than isolated negligence on behalf of prison officials. Id. at 1860 n.3 (citing cases where correctional facilities staff misled the inmate about the existence of a process or its rules; used threats or intimidation; or misled him into thinking he had done everything necessary to use the process).
Also, the Fourth Circuit Court of Appeals has held that “to satisfy the exhaustion requirement, grievances generally need only be sufficient to alert the prison to the nature of the wrong for which redress is sought.” Wilcox v. Brown, 877 F.3d 161, 167 n.4 (4th Cir. 2017). In Wilcox, the plaintiff prisoner had submitted to the district court “a copy of the Step-Three decision of the Inmate Grievance Resolution Board disposing of his grievance” objecting to the cancellation of certain religious services. 877 F.3d at 166. The Fourth Circuit held that the plaintiff was not required to submit an additional grievance when the prison, after resolution of the initial grievance, agreed to restart the services, then made a second decision to cancel the services. Id. at 167 n.4. The court reasoned that the initial grievance provided the prison with “notice of, and an opportunity to correct, a problem, ” which “satisfied the purpose of the exhaustion requirement.” Id. (quoting Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013)).
III. Analysis
Here, Plaintiff filed a Step 1 grievance on March 29, 2021. (Dkt. No. 59-2 at 3.) In his grievance, Plaintiff stated:
On 2/16/21, Sgt. Thomas unlocked my dell door in Wateree Unit Cell #191 [at] approx[imately] 6pm and a gang of inmates entered my cell and assaulted me. I sustained a broken jaw in three (3) places and my back was broken. After the assault I was forced back in the cell #191 by that shift without medical attention that night. I [am] challenging the poor negligent medical assistance I have suffered. I went to the hospital [on] 2/17/21 and was sent back [to] the institution 2/17/21 without surgery. I went without surgery or pain medication for many days prior to 3/15/21. After surgery I was provided pain medication for about (10) days and that stop[ped] about a week ago.(Dkt. No. 59-4 at 2.) In the “ACTION REQUESTED” section, Plaintiff wrote: “Better medical attention and provide better pain medication for my jaw and back. And fix all my teeth.” (Id.)
Plaintiff's grievance was received and processed on March 31, 2021. (Id. at 2-3.) In the “Warden's Decision” on the reverse side of Plaintiff's grievance, the warden wrote:
I have reviewed your concern. . . . The matter has been addressed with Health Services staff at Broad River Correctional Facility. According to Head Nurse Frierson, you have been referred to Otolaryngology as of today 3/30/21 by NPC Hamilton. You have not shown that SCDC Staff has failed to perform their job duties properly. Therefore, your grievance is resolved.(Id. at 3.) The Warden's Decision further explained:
If you disagree with this Warden's Decision (Decision), you may file an appeal by completing SCDC Step 2 Inmate Grievance Form 10-5A, provided to you while serving you this Decision, and placing it in the Grievance Box at your local correctional institution within five (5) days of your receipt of this Decision.(Id.) Plaintiff signed the Warden's Decision on April 5, 2021 and checked a box indicating that he wished to appeal it. (Id.) However, the record reflects (and Plaintiff admits) that he never filed a Step 2 grievance appealing the decision. (Dkt. No. 59-2 at 3-4; Dkt. No. 68 at 3.) As such, he did not exhaust his administrative remedies and his federal claims can only survive summary judgment if there is at least a genuine issue of material fact as to whether the grievance process was unavailable to him.
Plaintiff asserts that the grievance process was unavailable to him for various reasons. (See generally Dkt. Nos. 67, 68, 71, 86, 93.) First, Plaintiff asserts that the period of time during which he could properly appeal the Warden's Decision expired before he ever received the decision. (Dkt. No. 67 at 2.) However, this reflects a misunderstanding of the Inmate Grievance System. The Inmate Grievance System clearly outlines that inmates must appeal Step 1 decisions within five days of receipt, not within five days of the decision being rendered. (Dkt. No. 59-3 ¶ 13.7.) The record reflects that Plaintiff received the Warden's Decision on April 5, 2021, and that he did not file a Step 2 grievance appealing the decision on or before April 10, 2021. (Dkt. No. 59-2 at 3-4; Dkt. No. 59-4 at 2-3.) Accordingly, Plaintiff's first argument lacks merit.
Plaintiff next contends that the Inmate Grievance System was unavailable to him because it operated as a simple dead end and/or because the “(IGC) thwart[ed] Plaintiff's ability to take advantage of the grievance process through machination, misrepresentation or intimidation.” (Dkt. No. 68 at 2-3.) In support of his contention that the Inmate Grievance System was unavailable to him, Plaintiff alleges that Defendants violated SCDC's internal policies by failing to draft incident reports relating to his February 16, 2021 assault. (Dkt. No. 67 at 1; Dkt. No. 68 at 3; Dk. No. 71 at 2.) Plaintiff further contends that the Inmate Grievance Committee improperly handled his Step 1 grievance because the grievance should have been referred to “the inmate grievance branch for possible investigation by the division of investigation” since it alleged criminal activity. (Dkt. No. 68 at 1, 4; Dkt. No. 71 at 2-3.) Plaintiff contends that the Inmate Grievance Committee's failure to refer his grievance for investigation amounted to “machination, misrepresentation, or intimidation and unwillingness” and “covered up Defendants Thomas, Priester and Livingston misconduct.” (Dkt. No. 68 at 2; Dkt. No. 71 at 4; Dkt. No. 74 at 3.) He claims that “such interference . . . with Plaintiff's pursuit of relief rendered the administrative process unavailable” to him. (Dkt. No. 68 at 3-4; Dkt. No. 71 at 4; Dkt. No. 74 at 3.)
At the outset, the undersigned notes that Defendants' responsibility to file incident reports is entirely unrelated to Plaintiff's obligation to exhaust his administrative remedies. Thus, Defendants' purported failure to submit incident reports relating to Plaintiff's assault cannot support Plaintiff's claim that there is a genuine issue of fact as to whether administrative remedies were available to him. Graham, 413 Fed.Appx. at 662 (“[I]n 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.”). As for Plaintiff's contention that his administrative remedies were unavailable to him because his Step 1 grievance was resolved rather than referred for investigation, the undersigned finds this argument unconvincing. Plaintiff seems to suggest that his Step 1 grievance plainly indicated the need for an investigation of his assault. (Dkt. No. 68 at 1, 4; Dkt. No. 71 at 2-3.) However, the crux of his grievance was a request for improved medical care. (Dkt. No. 59-4 at 2, stating requested action as: “Better medical attention and provide better pain medication for my jaw and back. And fix all my teeth.”) Thus, the warden's interpretation of Plaintiff's grievance as one that did not require investigation was reasonable. (Id.) Regardless, this alleged error does not show that Plaintiff was prevented from filing a Step 2 grievance “through no fault of his own.” Graham, 413 Fed.Appx. at 662. The Warden's Decision clearly outlined that Plaintiff could appeal the decision if he did not agree. (Id. at 3.) Plaintiff does not contend that he did not receive or could not obtain a Step 2 grievance form, nor does he argue that his Step 2 grievance was intercepted or ignored. (See generally Dkt. No. 67, 68, 71, 74, 76, 81, 84, 86, 90, 93.) Rather, the record reflects that Plaintiff simply failed to file a Step 2 grievance. (Dkt. No. 59-2 at 3-4; Dkt. No. 68 at 3.)
Plaintiff also argues that “the [Inmate Grievance System] process [] is not meant to give relief to prisoners” and that “most administrative remedies unusually stop [at Step 1] without any relief or for whatever reason[], ” seemingly in support of his contention that the administrative process operates as a dead end. (Dkt. No. 74 at 4; Dkt. No. 86-1 at 6.) To bolster these allegations, Plaintiff submits several Step 1 grievances that were processed and returned, but not resolved. (See generally Dkt. No. 74-1.) Upon review, these grievances were returned because Plaintiff did not attach evidence of an attempt at informal resolution and, in one instance, because the grievance was illegible. (Id.) The Supreme Court has described a “dead end” administrative process scenario as one “with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S.Ct. 1850, 1853-54. The arguments and evidence provided by Plaintiff does not raise a genuine issue of fact as to whether SCDC's administrative process meets this “dead end” standard. Id. at 1859 (considering an administrative remedy a dead end where: (1) a prison handbook directs inmates to submit their grievances to a particular administrative office, but in practice that office disclaims authority to consider them; or (2) administrative officials have apparent authority but decline ever to exercise it).
Plaintiff also takes issue with the Inmate Grievance Policy's requirement that an inmate attempt informal resolution before filing a Step 1 grievance. (See generally Dkt. No. 74; Dkt. No. 74-1.) However, the Step 1 grievance at issue here was not denied based upon Plaintiff's failure to attempt informal resolution. (See generally Dkt. No. 59-4.) As such, the undersigned need not address this argument.
Next, Plaintiff asserts that Defendants and SCDC “took advantage of Plaintiff's mental and physical predicament in preventing Plaintiff in availing himself of the grievance process.” (Dkt. No. 81 at 3; Dkt. No. 84 at 1; Dkt. No. 86 at 4-5.) More specifically, he states that he was under “mental and physical restraints” from “injuries, pain, and narcotics” following the assault, which rendered the grievance process unavailable to him. (Dkt. No. 81 at 4; Dkt. No. 84 at 1; Dkt. No. 86 at 4-5.) He further asserts that “SCDC's grievance procedure was unavailable to him . . . because he still ha[s] not received any medical care for his back and he has continued to have surgery on his jaw and the medical care at Broad River Correctional Institution [has] been negligent to all his injuries.” (Dkt. No. 84 at 3.) In support of these contentions, Plaintiff has submitted medical records detailing his visits to the medical unit after his attack. (See generally Dkt. No. 84-1.) However, nothing in these records indicates that Plaintiff's condition worsened after he submitted his Step 1 grievance. (Id.) Plaintiff provides no explanation as to why “injuries, pain and narcotics” affected his ability to file a Step 2 grievance, but not a Step 1 grievance. (See generally Dkt. Nos. 81, 84, 86.) As such, the undersigned finds Plaintiff's argument unpersuasive, particularly in light of the fact that his condition improved after he filed the Step 1 grievance at issue. (See generally Dkt. No. 84-1.) Moreover, Plaintiff does not explain how Defendants used Plaintiff's “injuries, pain and narcotics” against him to make the grievance process unavailable, and nothing in the record supports this assertion. (Dkt. No. 81 at 4; Dkt. No. 84 at 1; Dkt. No. 86 at 4-5.)
In other words, there is no evidence that SCDC officials were “unable to or consistently unwilling to provide any relief” to Plaintiff with respect to the grievance process. Because Plaintiff has not met his burden to produce evidence that his administrative remedies were unavailable for any of the reasons recognized in Ross or controlling Fourth Circuit precedent, Plaintiff's federal claims should be dismissed for failure to exhaust. See, e.g., State v. S.C. Dep't of Corr., No. 0:17-cv-3326-MGL-PJG, 2019 WL 3773867, at *8 (D.S.C. Aug. 9, 2019) (finding lack of exhaustion where even assuming the plaintiff timely filed a Step 1 grievance, the plaintiff “did not avail himself of the next step in the grievance procedure and file a Step 2 grievance”), adopted, 2019 WL 3780141 (D.S.C. Aug. 9, 2019); Williams v. Reynolds, No. 4:12-cv-138-RMG, 2013 WL 4522574 at * 4 (D.S.C. Aug. 27, 2013) (noting that “even if Plaintiff did file a Step 1 grievance that was returned unprocessed, there is no evidence that Plaintiff filed a Step 2 grievance or otherwise appealed the decision not to process the Step 1 grievance”).
The undersigned recognizes that the administrative grievance procedure may have been futile to Plaintiff in this instance, where he seeks protection from future harm and monetary damages for past harm. However, exhaustion of administrative remedies is a mandatory process that is required “even though the relief sought is not attainable through resort to the administrative remedy procedure.” Stokes v. Davis, No. CV JKB-16-3239, 2018 WL 656445, at *6 (D. Md. Feb. 1, 2018). Indeed, the Supreme Court has held that “an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.” Booth, 532 U.S. at 741 n.6. Thus, the undersigned is constrained to recommend summary judgment be granted to Defendants as to Plaintiff's federal claims based on Plaintiff's failure to exhaust administrative remedies.
Should the district court agree with this recommendation, the undersigned further recommends that the district court decline to exercise supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367(c)(3). See § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if- . . . (3) the district court has dismissed all claims over which it has original jurisdiction.”). Indeed, courts overwhelmingly remand state law claims when the federal claims have been dismissed for failure to exhaust administrative remedies. See Simpson v. S.C. Dep't of Corr., No. 2:17-cv-3031-RMG, 2019 WL 4254228, at *5 (D.S.C. Sept. 9, 2019) (granting summary judgment on federal claims for failure to exhaust, declining to exercise supplemental jurisdiction over the remaining state law claims and remanding the state law claims to state court noting, “there is no indication that remanding the state law claims would inconvenience or unfairly prejudice the parties, nor does the Court find any underlying issues of federal policy involved in these state law claims”); Johnson v. Ozmint, No. 9:08-cv-0431-PMD-BM, 2009 WL 252152, at *6 (D.S.C. Feb. 2, 2009) (dismissing federal claims for failure to exhaust administrative remedies and noting, “With respect to these remaining state law causes of action, when federal claims presented in a case which has been removed to federal court from state court are dismissed, the case should be remanded to state court for resolution of any remaining state law claims . . . .”). Accordingly, the undersigned recommends that the Plaintiffs state law claims be remanded.
CONCLUSION
For the foregoing reasons, the undersigned recommends that Defendants' Motion for Summary Judgment (Dkt. No. 59) be GRANTED, and that Plaintiffs Motion for Summary Judgment (Dkt. No. 86) be DENIED.
IT IS SO RECOMMENDED.
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).