Opinion
C. A. 5:21-CV-2122-RBH-KDW
05-06-2022
Maurice Vereen #232125, Plaintiff, v. R. Fife, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Maurice Vereen, “Plaintiff, ” is an inmate with the South Carolina Department of Corrections (“SCDC”) and filed this 42 U.S.C. § 1983 action alleging Defendant violated his constitutional rights. This matter is before the court on a Motion to Dismiss Plaintiff's Complaint filed by Defendant on December 6, 2021. ECF No. 38. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) the court advised Plaintiff on December 7, 2021, of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendant's Motion. ECF No. 40. Plaintiff filed a Response to the Motion on December 27, 2021, ECF No. 43. Plaintiff also filed what was docketed as additional attachment to Plaintiff's Response and titled “Response to Defendant Motion for Summary Judgment” on January 3, 2022. ECF No. 48. However, in substance, it appears to be Plaintiff's own motion for partial summary judgment. ECF No. 48. Defendant Fife replied on January 4, 2022. ECF No. 50. Plaintiff filed a Sur-Reply on January 24, 2022. ECF No. 56. This matter is now ripe for review.
This Motion was filed by Defendants Yvonne Wilkins-Smith and Fife; however, Defendant Wilkins-Smith was dismissed as a party to this action on August 19, 2021. ECF No. 20.
This document was filed outside the time for filing dispositive motions pursuant to the Scheduling Order in this case. ECF No. 26.
Under Local Rule 7.07, a reply to a Motion is allowed, although discouraged. The Local Rules do not provide for Sur-Replies. A party may seek permission from the court to file an additional response or “sur-reply.” Perez v. S.C. Dep't of Labor, Licensing and Regulation, No. 3:17-CV-3187-JFA, 2018 WL 2455093, at *4 n.10 (D.S.C. June 1, 2018). Plaintiff did not seek permission to file a sur-reply in this case; however, the undersigned, in her discretion, may consider any additional arguments made that address any novel arguments made in Defendant's Reply.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C, which provides for all pretrial proceedings in certain types of matters be referred to a United States Magistrate Judge. Because Defendant's Motion is dispositive, the undersigned enters this Report for the district judge's consideration.
I. Factual Background
Plaintiff initially filed this action on July 15, 2021, alleging his First Amendment rights were violated by being denied access to the courts when the correctional facility where he was housed failed to provide him a legal package in a timely manner. ECF No. 1, at 4. On August 11, 2021, prior to any party being served, Plaintiff filed a Motion to Amend Complaint, seeking to include supplemental information to his Complaint, and to dismiss Defendant Wilkins-Smith as a defendant. ECF Nos. 16. The court granted this Motion on August 19, 2021. ECF No. 20. Thereafter, this supplemental information, including a list of administrative measures that Plaintiff undertook to resolve the issues that now comprise the allegations in his Complaint, were therefore attached and made a part of the Complaint.
In his Complaint, Plaintiff alleges that on May 7, 2021, the mailroom at Allendale Correctional Institution (“ACI”) received a piece of mail addressed to him from the Clerk of Court of the U.S. District Court. ECF No. 1, at 5. Plaintiff alleges that he did not receive this legal package until June 9, 2021. Id. Plaintiff alleges that as a result of belatedly receiving this mail, he failed to respond to a May 21, 2021 deadline in a previously-filed case. Id. Plaintiff alleges the mailroom personnel withheld his legal mail for a period of time, exceeding 30 days, which was longer than the amount of time per SCDC policy for deliverance of legal mail. Id. Plaintiff alleges that as a result of the failure to provide him the legal package, Plaintiff was unable to meet the deadline, and his case was ultimately dismissed. Id. Plaintiff further alleges that ACI has a grievance procedure, and he filed a grievance concerning the complained of incident. Id. at 8. Plaintiff also alleges that on June 10, 2021, he wrote to the Programs Department via the kiosk about his receipt of the legal package on June 9, 2021, and that he wrote the mailroom via the kiosk on June 11, 2011 concerning the same issue. Id. at 11.
In Plaintiff's prior case, Vereen v. Hyde, et al., 4:19-CV-2172-RBH, a Report and Recommendation was filed on May 4, 2021, recommending that summary judgment be entered in favor of Defendants and against Plaintiff. 4:19-CV-2172-RBH, ECF No. 95. Plaintiff's objections were due by May 18, 2021, plus 3 additional days if served by mail, as was the case here. On June 8, 2021, the day prior to Plaintiff allegedly receiving the mail, an Order was entered, noting that Plaintiff did not file objections to the R & R, therefore the court reviewed the R & R under the clear error standard. 4:19-CV-2172-RBH, ECF No. 98. This order was mailed to Plaintiff on June 8, 2021. 4:19-CV-2172-RBH, ECF No. 100.
Within the supplemental information attached to the Complaint, Plaintiff alleges that Defendant Fife “knowingly and willfully” withheld his legal mail, thereby preventing him from filing objections in his previous case. ECF No. 1-2, at 5. Plaintiff alleges that while he filed a grievance on June 10, 2021, he was unable to complete all steps of the grievance process because he did not a receive a response to the original grievance. ECF No. 1-2, at 10. Plaintiff alleges that on June 11, 2021, he wrote the mailroom via the kiosk and asked them about the same incident. Id. at 11. Plaintiff alleges that on June 23, 2021, he met with Assistant Warden Wilkins-Smith, Captain T. Colten, and Defendant Fife. ECF No. 1-2, at 11. Plaintiff alleges he was called to the mailroom but refused to sign a receipt of a Legal Correspondence Verification Form, which noted he was sent two Orders to Report, which he denies. ECF No. 1-2, at 11.
Among other documents, Plaintiff attached the following documents to his Complaint: (1) a Step 1 Grievance Form, dated June 10, 2021, ECF No. 1-2, at 13; (2) a document titled Order to Report, which appears to be addressed to and signed by Plaintiff, as well as another individual on June 3, 2021, and stamped “received” on June 9, 2021, ECF No. 1-2, at 40; and (3) a document titled Receipt of Correspondence Verification, which appears to note that legal correspondence addressed to Plaintiff was received and logged at ACI in the mailroom on May 7, 2021, and on June 9, 2021, it was delivered to Plaintiff, ECF No. 1-2, at 42.
In her Answer, filed August 26, 2021, Defendant denies that Plaintiff was unable to receive his legal mail for over 30 days. ECF No. 24, at 3. Further, Defendant denies that Plaintiff filed a “valid grievance” or that he exhausted administrative remedies. ECF No. 24, at 4. Likewise, in the Motion to Dismiss, Defendant argues that Plaintiff did not sue the proper party, and he failed to exhaust his administrative remedies, thereby warranting dismissal of his lawsuit. ECF No. 38.
II. Standard of Review
Defendant has moved to dismiss this action based on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant attached the affidavits of two individuals to her Motion to Dismiss, as well as a copy of SCDC policy. When matters outside the pleadings are submitted with a Motion to Dismiss for failure to state a claim under 12(b)(6), the motion is instead treated as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and all parties should be afforded a reasonable opportunity to present material pertinent to a motion made pursuant to Rule 56. Wilson-Cook Med., Inc. v. Wilson, 942 F.2d. 247, 251 (4th Cir. 1991) (citing Fed.R.Civ.P. Rule 56); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985); see Fed. R. Civ. Pro. 12(d). When a party is aware that materials outside the pleadings are before the court, the party is on notice that the motion may be treated as one for summary judgment. Gay, 761 F.2d at 177. Once on notice, a party must be afforded a “reasonable opportunity for discovery” before a Rule 12(b)(6) motion may be converted to one for summary judgment and have summary judgment granted. Id.
Here, Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) approximately three months after the filing of an Answer, and after the close of the discovery deadline. In fact, Defendant filed this motion on the last day for filing dispositive motions. Further, the parties have engaged in discovery, and the discovery deadline ended on October 26, 2021. ECF No. 26. Accordingly, the undersigned finds that all parties have had notice that the motion may be treated as one for summary judgment, and all parties have had a reasonable opportunity to engage in, and have engaged in, the discovery process. Accordingly, the undersigned recommends that the Motion be converted to a Rule 56 motion for summary judgment.
Plaintiff styles his response to the Motion as a “Declaration in Opposition to Motion for Summary Judgment, ” and references the standard for Rule 56 indicating there are “genuine issues of material fact to be resolved.” ECF No. 43.
Plaintiff filed what he titled as a Response to Defendant's Motion for Summary Judgment, but in substance seeks summary judgment in favor of his claims. ECF No. 48. This “Motion” was filed on January 3, 2022 as additional information to Plaintiff's Response to Defendant's Motion. Plaintiff's filing, to the extent he moves for summary judgment, is untimely by almost a month under the scheduling order, which ordered all dispositive motions to be filed by December 6, 2021, and Plaintiff provides no justification for an untimely filing. Jordan v. E.I. du Pont de Nemours, 867 F.Supp. 1238, 1250 (D.S.C. 1994) (“A scheduling order is not a frivolous piece of paper.”). Moreover, for the same reasons the undersigned recommends denying summary judgment in favor of Defendant, the undersigned relies upon the same analysis to find that there are genuine issues of material fact that prevent summary judgment in favor of either party.
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non- movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, 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, “[o]nly 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.” Id. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own argument, affidavit, or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact).
III. Analysis
a. Improperly Named Party
Defendant first argues that Plaintiff has failed to name the proper party pursuant to the South Carolina Tort Claims Act. Def.'s Br. at 3, ECF No. 38-1. The South Carolina Tort Claims Act (the “SCTCA”) confers immunity upon a governmental employee “who commits a tort while acting within the scope of his official duty.” S.C. Code Ann. § 15-78-70(a). The SCTCA further provides, “[n]othing in this chapter may be construed to give an employee of a governmental entity immunity from suit and liability if it is proved that the employee's conduct was not within the scope of his official duties or that it constituted actual fraud, actual malice, intent to harm, or a crime involving moral turpitude.” S.C. Code Ann. § 15-78-70(b). Defendant argues that while there are certain exceptions to immunity, none of those were alleged in this case, nor does Plaintiff allege any actions occurred outside of Defendant's official duties. Def.'s Br. at 3. Defendant further argues that pursuant to this Act, the proper defendant in this case should be the South Carolina Department of Corrections. Id.
First, the undersigned notes that suits brought under the SCTCA against the South Carolina Department of Corrections are to be brought in state court. See S.C. Code Ann. § 15-78-20(e) (explaining that the State of South Carolina does not waive Eleventh Amendment immunity, consents to suits only in a court of the State of South Carolina, and does not consent to suit in a federal court or in a court of another State); see also Laudman v. Padula, No. 3:12-2382-SB; 2013 WL 5469977, at *7 (D.S.C. Sept. 30, 2013) (explaining that under the SCTCA, the State of South Carolina consents only to suit in the State of South Carolina). Second, Plaintiff did not bring suit pursuant to the SCTCA; he brought suit under 42 U.S.C. § 1983 alleging a deprivation of his First Amendment Constitutional rights. Under 42 U.S.C. § 1983, relief may be sought when a plaintiff alleges the violation of a right secured by the Constitution by a person acting under color of state law. West v. Askins, 487 U.S. 42, 48 (1988). Therefore, an analysis of whether Plaintiff has alleged facts sufficient to establish liability under the SCTCA is misplaced. Accordingly, the undersigned recommends denying Defendant's summary judgment based on an argument that Defendant is an improperly named party under the SCTCA.
Plaintiff does allege that Defendant Fife engaged in “negligent misconduct” and that the mail was “intentionally delayed.” ECF No. 1-2, at 4, 6. Plaintiff further alleges Defendant “knowingly” and “willfully” withheld mail. ECF No. 1-2, at 5. Plaintiff further infers that Defendant Fife lied and tried to “not accept responsibility” for her actions. ECF No. 1-2, at 11. Even were the SCTCA to apply, viewing the facts in a light most favorable to Plaintiff, there is a genuine issue of material fact as to whether one of the exceptions to immunity applies.
b. Failure to Exhaust
Defendant next argues that Plaintiff's claims should be dismissed because Plaintiff has failed to exhaust his administrative remedies. Def.'s Br. at 4. The Prison Litigation Reform Act (the “PRLA”), 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).
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. 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).
In support of her argument that Plaintiff failed to exhaust his administrative remedies, Defendant first points to SCDC Policy 1.12, a copy of which Defendant attached to the Motion, defining a grievance as a “formal complaint” limited to matters affecting the complaining inmate. Def.'s Br. at 4; see also ECF No. 38-3, at 11. Defendant further describes the grievance procedure, indicating that if informal resolution is not possible, the grievant will complete Form 10-5, Step 1. Def.'s Br. at 4; see also ECF No. 38-3, at 6. Defendant states that Plaintiff did not file a formal grievance. Def.'s Br. at 4. To support this allegation, Defendant submitted her own affidavit, as well as the affidavit of Yvonne Wilkins-Smith, Warden of Programs, which are substantially similar in content. In Defendant's Affidavit, she states that Inmate Requests are not formal grievances, that grievances are picked up on a daily basis and numbered and entered into an automated system, that Plaintiff failed to submit a formal grievance, and that a search of the SCDC Offender management system found no grievances whatsoever on file for Plaintiff. ECF No. 38-5, ¶¶ 10, 13, 19, 20. In Ms. Wilkins-Smith's Affidavit, she testifies to the same facts. ECF No. 38-4 ¶¶ 9, 12, 18, 19. In short, Defendant argues that while Plaintiff did submit several kiosk requests regarding the alleged withholding of his legal mail, kiosk requests do not represent formal grievances pursuant to SCDC policy. Def.'s Br. at 4. Moreover, a search of the automated system did not return any formal grievances filed by Plaintiff. Def.'s Br. at 4. Therefore, Defendant argues that because Plaintiff did not file a formal grievance and otherwise exhaust his administrative remedies, he is barred from bringing any claims.
Plaintiff refutes Defendant's claim that he failed to exhaust his administrative remedies. In his Response, Plaintiff states that “Plaintiff grieves the situation, but no record was ever found.” Pl.'s Br. at 1. Additionally, prior to Defendant filing this Motion, Plaintiff sought to amend his Complaint, and provided supplemental information in which he alleged he “filed a grievance on June 10, 2021” but that he “could not complete all steps of the grievance process” because he did not receive a response to his Step 1 grievance. ECF No. 1-2, at 10. Plaintiff further asserts that in addition to filing this grievance, he submitted several kiosk requests related to the issue of receipt of his legal package. ECF No. 1-2, at 10-11. Plaintiff produced a document, titled “Inmate Grievance Form Step 1, ” which is dated June 10, 2021, signed by Plaintiff, and outlines the fact that he missed a court deadline because he did not timely receive a legal package. ECF No. 1-2, at 13.
In Reply, Defendant submits that “both Defendants in this case deny that Mr. Vereen filed a formal grievance for this matter.” ECF No. 50, at 1. Defendant did not specifically address the veracity of the Step 1 Inmate Grievance Form.
Viewing the facts in a light most favorable to Plaintiff, the undersigned recommends denying summary judgment based on the argument that Plaintiff failed to exhaust. In viewing the record currently before the court, the undersigned finds that there is a genuine issue of material fact as to whether Plaintiff exhausted his administrative remedies. Plaintiff essentially argues he was inhibited from using the grievance system because he did not receive a response to his Step 1 Inmate Grievance Form. “[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); see also Stenhouse v. Hughes, No. 9:04-23150, HMH-BHH, 2006 WL 752876, at *2 (D.S.C. Mar. 21, 2006) (“[E]xhaustion may be achieved in situations where prison officials fail to timely advance the inmate's grievance or otherwise prevent him from seeking administrative remedies.”) (quoting Abney v. McGinnis, 380 F.3d 663, 667 (2nd Cir. 2004)). Here, both parties acknowledge that Plaintiff attempted to informally resolve the complained of issue regarding the failure to receive legal mail by submitting kiosk requests. Plaintiff states that he filed a Step 1 Inmate Grievance Form on June 10, 2021, which he attached to his Complaint, and further stated that he never received a response to the grievance, thereby preventing him from further participating in the grievance process. While Defendant refutes this claim and states there is no record of any formal grievance in ACI's system, the undersigned finds there to be a genuine dispute regarding this fact. The undersigned therefore recommends finding that Defendant has not met her burden of showing “there is no genuine issue as to any material fact” regarding Plaintiff's failure to exhaust his administrative remedies.
IV. Conclusion and Recommendation
Based on the foregoing, it is recommended that Defendant's Motion, styled as a Motion to Dismiss, but converted to a Motion for Summary Judgment, ECF No. 38, be denied. Further, the undersigned recommends finding that, to the extent Plaintiff seeks summary judgment in his favor, that relief should also be denied for the reasons articulated herein, as well as because any such motion was untimely under the scheduling order, and Plaintiff provided no explanation for the untimely filing. ECF No. 48.
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.”
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 2317 Florence, South Carolina 29503
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).