White v. Brokaw

Full title: Larry A. White, Plaintiff, v. Matthew Brokaw, Steven Fleshman, Bryan…

Court: United States District Court, D. South Carolina

Date published: Jan 31, 2024

C. A. 9:23-cv-00057-BHH-MHC (D.S.C. Jan. 31, 2024)

Opinion

C. A. 9:23-cv-00057-BHH-MHC

01-31-2024

Larry A. White, Plaintiff, v. Matthew Brokaw, Steven Fleshman, Bryan Stirling Agency Director, Joel Anderson Deputy Director, Dennis Patterson Assistant Deputy Director, Willie Davis Regional Director, Charles Williams Perry Correctional Institution Warden, Curtis Early Perry CI Associate Warden, Daniel Harouff Perry CI Captain, Clayton Holbrook Perry CI Classification Caseworker, J. Perks Perry CI Lieutenant, G. Salazar Perry CI Deputy Warden, John Palmer Perry CI Deputy Warden, Aaron Joyner Lee CI Associate Warden, Major Bennett Perry CI, R. Tisdale Lee CI, Associate Warden, Kenneth Nelson, Edward Settles, Captain Clark, Corporal Jones, Katurah Gause, and the South Carolina Department of Corrections, Defendants.

Molly H. Cherry United States Magistrate Judge

REPORT AND RECOMMENDATION

Molly H. Cherry United States Magistrate Judge

Plaintiff Larry A. White (“Plaintiff”), proceeding pro se, 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”). Plaintiff originally filed this action in the Court of Common Pleas for Greenville County on November 15, 2022. ECF No. 1-2 at 22. The above-named Defendants removed the action to this Court on January 6, 2023. ECF No. 1. Defendants have now filed a Motion for Summary Judgment. ECF No. 58.

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' Motion, Plaintiff filed a Response in Opposition. ECF No. 72. Defendants filed a Reply. ECF No. 73. Plaintiff filed a Sur-Reply. ECF No. 78.¹ The matter is, therefore, ripe for review.

1 The Local Rules make no provision for Sur-Replies, and Plaintiff did not seek leave of the Court to file a Sur-Reply. See Stanfield v. Charleston Cnty. Court, No. 2:15-CV-0756-PMD-MGB, 2015 WL 4929186, at *4 n.2 (D.S.C. Aug. 18, 2015) (explaining that “neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit the filing of a sur-reply without leave of the Court”). Nevertheless, the undersigned has considered the Sur-Reply in making this Report and Recommendation, as Plaintiff is pro se.

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 Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting the Motion.

I. BACKGROUND

Plaintiff brings his suit pursuant to 42 U.S.C. § 1983, alleging various violations of his Eighth and Fourteenth Amendment rights.² Specifically, Plaintiff's claims appear to fall under the Eighth Amendment for allegations involving conditions of confinement, failure to protect, sexual harassment, and excessive force, and under the Fourteenth Amendment for violations of procedural due process. Plaintiff's claims are numerous, span several years, and appear to have allegedly occurred at various SCDC facilities.

2 Plaintiff also initially brought state law claims for gross negligence and violations of the South Carolina Constitution. ECF No. 1-2 at 23, 32, 34. However, in his Response in Opposition, Plaintiff states that he does not wish to pursue any of his state law claims and does not provide any argument or evidence regarding them. ECF No. 72 at 4. Accordingly, the undersigned deems those claims to be waived or abandoned. See Jones v. Fam. Health Ctr., Inc., 323 F.Supp.2d 681, 690 (D.S.C. 2003) (finding that Plaintiff waived claims not addressed in an opposition memorandum, even though counsel advised the court that she had not intended to abandon those claims), aff'd sub nom. Jones v. Fam. Health Centers, Inc., 98 Fed.Appx. 959 (4th Cir. 2004).

Plaintiff first takes issue with his placement into the Restricted Housing Unit (“RHU”) while he was housed at Lee Correctional Institution (“Lee”). ECF No. 1-2 at 24. Specifically, Plaintiff maintains that in April 2018, he was placed in the RHU because he was under investigation for a riot that took place at Lee earlier that month. ECF No. 1-2 at 24. Plaintiff alleges that he was never served with a Pre-Hearing Detention (“PHD”) form,³ which he maintains is required for an inmate being placed in the RHU. ECF No. 1-2 at 24. He alleges the form is required according to SCDC policy and as a part of his procedural due process rights. ECF No. 1-2 at 24. Plaintiff also claims he was improperly placed on security detention (“SD”) status in August 2018, during the pendency of the investigation into his role in the Lee riot of April 2018, and asserts this violated his Fourteenth and Eighth Amendment rights. ECF No. 1-2 at 25.

3 This form is also referred to as a “SCDC 19-67 Form” throughout the Complaint. See, e.g., ECF No. 1-2 at 24, ¶¶ 1-2.

Plaintiff further appears to assert that, after being placed in the RHU at Lee, his personal property, including legal work, was not provided to him from his previous housing dorm. ECF No. 1-2 at 24. Plaintiff appears to allege he was unable to prepare for a pending criminal case and was forced to plead guilty to a criminal charge rather than go to trial and face a potential life sentence.⁴ECF No. 1-2 at 24.

4 Plaintiff also appears to state he had a Public Defender at the time who mailed him a copy of his legal work in June 2018. ECF No. 1-2 at 24. He vaguely asserts his Public Defender was ineffective in representing him.

On March 20, 2020, Plaintiff alleges Defendants Brokaw and Fleshman failed to protect him from an assault by another inmate who threw feces on Plaintiff when Plaintiff was being walked to the showers. ECF No. 1-2 at 25-26. Plaintiff asserts the officers should have called for more help in removing the inmate from the shower after the inmate refused to comply with verbal commands, and he appears to assert these Defendants did not adhere to SCDC policy. ECF No. 1 2 at 25-26. Plaintiff states that “[a]s a result of the Officers failure to protect the Plaintiff, the Plaintiff became irate and ended up stabbing an officer in an attempt to get to the other inmate.” ECF No. 1-2 at 26. Plaintiff maintains he was sprayed with chemical munitions until he dropped the knives he used to stab the correction officer, and alleges he was sprayed again after he had already dropped the knives. ECF No. 1-2 at 26. Plaintiff alleges he was subsequently taken to a room and was assaulted by Defendants Settles and Clark. ECF No. 1-2 at 26. That same day, Plaintiff maintains that he was transferred to Perry Correctional Institution (“Perry”). ECF No. 12 at 26.

Plaintiff states that, while at Perry, he was “being sexually harassed by two (2) Correctional Officers, CPL Kimbrell and [Defendant] John Palmer,” but it is unclear when this occurred.⁵ ECF No. 1-2 at 26. Plaintiff then generally alleges he was transferred to other facilities for his mental healthcare. ECF No. 1-2 at 26-27.

5 Plaintiff states he “wrote an emergency grievance on 03-26-2020 about the incident and asked to be removed from the institution and to have a permanent separation placed on the two (2) Officers.” ECF No. 1-2 at 26. Officer Kimbrell is not a Defendant in this action.

Plaintiff alleges he was transferred to Lieber Correctional Institution (“Lieber”) on April 16, 2020, and further alleges that in November 2020, the investigation into the April 2018 Lee riot closed. ECF No. 1-2 at 27. Following a round of charges against various inmates for the Lee riot, he alleges that in September 2021 he was released from S.D. status and voted to be placed in the “Step Down Program.” ECF No. 1-2 at 27. Plaintiff asserts that while at Lieber, he received no “outside recreational exercise from” April 16, 2020, until April 12, 2022. ECF No. 1-2 at 28.

In April 2022, he alleges he was transferred back to Perry, and he maintains that he was released from the RHU on April 18, 2022, into the Step Down Program. ECF No. 1-2 at 28. Plaintiff claims that after being in the Step Down Program for one week, he was taken back to the RHU “because of a phone conversation.”⁶ ECF No. 1-2 at 28. He alleges he was again not provided with a PHD form when he was placed back in the RHU. ECF No. 1-2 at 28. He alleges he thereafter tried twice to hang himself after being harassed by the correctional officers. ECF No. 1-2 at 28. Plaintiff maintains that he was sent to the Crisis Stabilization Unit for mental healthcare on June 6, 2022. ECF No. 1-2 at 28. Following Plaintiff's release from the Crisis Stabilization Unit, he alleges he went back to Perry on June 14, 2022, and was housed in a dorm which provided a concrete slab instead of a bed frame, windows with no view of the outside, and a television with no sound. ECF No. 1-2 at 28-29.

6 As previously detailed by this Court when considering Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order (ECF Nos. 10, 32), the Deputy Warden at Perry averred that Plaintiff was initially transferred to Perry for a “program on the yard,” in which Plaintiff participated for a brief time. ECF No. 12-1 at 2, ¶ 3. In April and May of 2022, Plaintiff was charged with and convicted of several institution violations, including conspiracy to smuggle contraband; possession of a financial instrument; and trafficking, use and/or possession of narcotics, marijuana or unauthorized drugs. ECF No. 12-1 at 2, ¶¶ 4-8. It was because of these disciplinary infractions that Plaintiff was placed back into the RHU. ECF No. 12-1 at 2, ¶ 3.

While at Perry, Plaintiff contends that he was denied a meal on July 6, 2022; July 20, 2022; and July 29, 2022. ECF No. 1-2 at 29-30. He alleges that on July 6, 2022, he was in his cell “watching a movie on his tablet with headphones in his ears while” Defendants Salazar and Perks were feeding, and they failed to provide him with a meal. ECF No. 1-2 at 29. Plaintiff maintains he was unaware that the officers were feeding until he heard them close his neighbor's food flap, after which he got up, put his jumpsuit on, and went to the door to notify Defendant Perks that they had forgotten to feed him. ECF No. 1-2 at 29. Plaintiff alleges that Defendant Perks asked Plaintiff whether he was dressed, and Plaintiff replied that he was in the bed with headphones on and he did not know they were feeding the inmates. ECF No. 1-2 at 29. Defendant Perks allegedly stated Plaintiff would not be fed. ECF No. 1-2 at 29.

Plaintiff alleges he then requested to speak to a Mental Health Officer, and when she arrived Plaintiff notified her that Defendants Salazar and Perks were refusing to feed him. ECF No. 1-2 at 29. Plaintiff alleges that he called his girlfriend on the phone and told her to call “Headquarters and [Defendant] Charles Williams and notify them of what is going on.” ECF No. 1-2 at 29. Plaintiff states that about ten minutes later Defendant Daniel Harouff came to speak to Plaintiff to hear his side of the incident. ECF No. 1-2 at 29. Once Defendant Harouff heard what happened, he allegedly stated he would talk to the officers; however, five minutes later Defendant Perks allegedly came back to Plaintiff and stated he would not be getting fed and that he would be missing that meal. ECF No. 1-2 at 29. Plaintiff alleges that Defendant “Harouff or [Defendant] Williams did nothing to change the outcome.” ECF No. 1-2 at 29.

Plaintiff maintains similar incidents occurred on July 20, 2022, and July 29, 2022. Plaintiff claims he was not fed by Defendant Perks on July 20, 2022, and was not fed by Defendant Salazar on July 29, 2022. ECF No. 1-2 at 30. He further claims Defendant Salazar thereafter wrote a false incident report charging Plaintiff with “Threatening to Inflict [Harm],” and improperly moved Plaintiff to the Delta dorm. ECF No. 1-2 at 30. Plaintiff claims that on August 8, 2022, he was called a racial slur by Defendant Salazar. ECF No. 1-2 at 30.

Defendants dispute Plaintiff's account of the feeding incidents.⁷ Defendants previously provided this Court with affidavits, incident reports, and SCDC's various policies related to Plaintiff allegedly missing meals.⁸ According to Defendant Harouff's affidavit, RHU policy requires inmates in the RHU to comply with the inmate grooming policy. ECF No. 23-1 at 2, ¶ 9. Specifically, RHU policy OP-22.38 requires RHU inmates to comply with policy OP-22.13, which addresses inmate grooming standards. ECF No. 23-1 at 2, ¶ 9. This grooming standard requires RHU inmates to wear clean clothes, to dress as neatly as possible, and to be fully clothed during routine working hours. ECF No. 23-1 at 2, ¶ 9. The grooming standard policy, as well as the food service operations policy, provide that “[a]ctivity deemed to threaten or disrupt security operations as related to the feeding process in the general population may result in the voluntary forfeiture of the current meal. This activity includes, but is not limited to, failure to comply with grooming standards . . . [and] inappropriate behavior going to/while in the cafeteria, etc.” ECF No. 23-1 at 3, ¶ 10. In addition, general population inmates are required to be dressed in their uniform in the cafeteria, and RHU inmates are required to be properly groomed and dressed in their cell to receive their meal. ECF No. 23-1 at 3, ¶ 11.

7 Though the Court is acknowledging Defendants' dispute, at the summary judgment stage, the evidence of Plaintiff, as the non-moving party, is to be believed and all justifiable inferences must be drawn in favor of Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

8 This evidence was provided in response to Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order. See ECF Nos. 10, 12, 23. However, Defendants did not attach this evidence to their Motion for Summary Judgment. See Local Civil Rules 7.04 and 7.05(C) (D.S.C.).

Prior to every meal, an announcement is made over the intercom to all cells that feeding will commence and the inmates need to be dressed and ready to physically receive the food tray. ECF No. 23-1 at 3, ¶ 14. After this announcement, officers will roll the food onto the wing and make a second verbal announcement that feeding has started. ECF No. 23-1 at 3, ¶ 15. Any inmate who does not receive a meal has chosen not to be dressed, refuses to come to the food flap, or has engaged in behavior that violates policy. ECF No. 23-1 at 3, ¶ 16.

Activity logs record all types of activities by inmates at Perry, as well as the correctional officer recording those activities. ECF No. 23-1 at 2, ¶ 4. The activity log for July 6, 2022, indicates that Plaintiff received breakfast, dinner, and lunch meals on that date. ECF No. 23-1 at 2, ¶ 5; ECF No. 23-2 at 4. The activity log for July 20, 2022, indicates Plaintiff received breakfast and dinner that day but did not receive lunch because he refused the lunch meal.⁹ ECF No. 23-1 at 2, ¶ 6; ECF No. 23-2 at 6.

9 “Refused” on the activity log sheet indicates that the inmate physically refused to accept the tray, either verbally or procedurally, or chose not to comply with procedure, policy, or rules, such as refusing to wear his uniform or not being physically present at the food portal to receive the tray. ECF No. 23-1 at 3, ¶ 12.

The July 29, 2022, activity log shows that Plaintiff received a breakfast and dinner meal that day. ECF No. 23-1 at 2, ¶ 7; ECF No. 23-2 at 7. The July 29 log also shows that at 10:01 a.m., Plaintiff refused the lunch meal but was still provided the lunch meal at 11:13 a.m.¹⁰ ECF No. 231 at 2, ¶ 7; ECF No. 23-2 at 7.

10 An incident report from July 29, 2022, indicates that at approximately 9:45 a.m. meals were being served in Plaintiff's dorm. ECF No. 23-1 at 2, ¶ 7; ECF No. 23-3. The report indicates that Plaintiff stated he was not going to put on his jumpsuit but demanded to be fed anyway. ECF No. 23-1 at 2, ¶ 7; ECF No. 23-3. When the officer walked off the wing, Plaintiff began banging on the food flap and caused other inmates to “rile up.” ECF No. 23-1 at 2, ¶ 7; ECF No. 23-3.

Finally, Plaintiff alleges that in August 2022 he was placed “back under investigation for the Lee” riot. ECF No. 1-2 at 30. He asserts that because he was on S.D. status for four years for investigation purposes previously, being placed back on S.D. status during a second investigation violated his Fourteenth and Eighth Amendment rights because, per SCDC policy, S.D. status is not for investigation purposes. ECF No. 1-2 at 31. Plaintiff alleges that on August 12, 2022, he spoke to Defendant Williams about “being under investigation for the same thing twice.”¹¹ ECF No. 1-2 at 30. Plaintiff further alleges that Defendants Curtis Early, Clayton Holbrook, and Daniel Harouff voted for Plaintiff to remain on S.D. status. ECF No. 1-2 at 31. Plaintiff alleges that being placed in the RHU/on S.D. status for four years has detrimentally affected his mental health. See ECF No. 12 at 31-32.

11 On a form attached to the Complaint titled “Statement of the Claim,” Plaintiff alleges “double jeopardy.” ECF No. 1-2 at 37-38. Presumably, Plaintiff is referring to being under investigation for the Lee riot again (i.e., “for the same thing twice”) as evidence of this. Plaintiff may also be attempting to raise an Equal Protection claim. See ECF No. 1-2 at 34, 38.

Each individual Defendant is sued in his or her individual and official capacities. ECF No. 1-2 at 22. Plaintiff seeks compensatory damages of $400,000, along with punitive damages of $10,000 per Defendant. ECF No. 1-2 at 35. Plaintiff prays for a variety of other relief, including having six years deducted from his prison sentence. ECF No. 1-2 at 35.

II. LEGAL STANDARD

Defendants move for summary judgment on Plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 58. 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 summary judgment for a myriad of reasons. These reasons for summary judgment generally fall into two buckets: procedural-based and merits-based. The Court addresses the procedural-based arguments first before addressing the merits-based arguments for any remaining claims. For the reasons that follow, Defendants are entitled to summary judgment because Plaintiff has not established any viable claims against Defendants.

A. Procedural hurdles

Defendants argue that Plaintiff has failed to overcome three procedural hurdles to his action. Specifically, they argue that (1) Plaintiff has failed to properly serve this action on certain individual Defendants, either earlier in state court or here in federal court; (2) some of Plaintiff's claims are barred by the applicable statute of limitations; and (3) Plaintiff has failed to exhaust his administrative remedies as to all but three of his claims. See ECF No. 58-1 at 5-19.

1. Failure to serve

Defendants Brokaw, Joyner, Clark, Jones, and Settles argue they were never served pursuant to the state court rules prior to the removal of the action to this Court, and further argue that Plaintiff failed to accomplish service in compliance with Rule 4(m) once the action was removed. ECF No. 58-1 at 5-6. Specifically, Defendants argue that SCDC's Office of General Counsel recorded service of state court process by regular mail, but that was only accepted on behalf of Defendant SCDC and sixteen individual Defendants (of which Defendants Brokaw, Joyner, Clark, Jones, and Settles were not included). ECF No. 58-1 at 5-6; ECF No. 58-5. They argue there is no evidence that Plaintiff ever delivered a copy of the summons and complaint to Defendants Brokaw, Joyner, Clark, Jones, or Settles, or that Plaintiff ever sent a copy of the summons and complaint by registered or certified mail to the Attorney General. ECF No. 58-1 at 5.

Plaintiff generally maintains that he served Defendants by mailing copies of the summons and complaint to SCDC's Office of General Counsel and to the Attorney General's office. Because Defendants' arguments elevate form over substance and Defendants have failed to show how they were prejudiced by this alleged failure, the undersigned recommends denying summary judgment on this basis.

A defendant can move to dismiss a complaint where service of process failed to comply with the requirements of Federal Rule of Civil Procedure 4. See Fed.R.Civ.P. 12(b)(5). Rule 4(e) governs the service of process upon individuals in the United States and provides that service may be accomplished by either (1) delivering a copy of the summons and complaint to the defendant personally, (2) leaving a copy of the summons and complaint with a person of suitable age and discretion then residing at the defendant's home or usual place of abode, or (3) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(2). Rule 4(e) also provides that service of process may be accomplished pursuant to the law of the state in which the district court sits, Fed.R.Civ.P. 4(e)(1); under South Carolina law, service may be accomplished as outlined above for Federal Rule 4(e)(2) or by certified mail, SC R. Civ. P. 4 (d).

Noncompliance with Rule 4 of the Federal Rules of Civil Procedure does not mandate dismissal where the necessary parties have received actual notice of a suit and where they have not been prejudiced by the technical defect in service. See Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963) (upholding service upon the defendant's wife at a home to which the defendant never intended to return); see also Scott v. Maryland State Dep't of Lab., 673 Fed.Appx. 299, 304 (4th Cir. 2016) (noting “the real purpose of service of process is to give notice to the defendant,” such that “‘mere technicalities' should not stand in the way of consideration of a case on its merits” (citations omitted)).

Here, there is no doubt Defendants Brokaw, Joyner, Clark, Jones, and Settles have actual notice of this lawsuit. The record shows that SCDC's Office of General Counsel recorded service of state court process by regular mail, but it was only accepted on behalf of Defendant SCDC and sixteen individual Defendants. ECF No. 58-1 at 5-6; ECF No. 58-5. It is unclear why SCDC's Office of General Counsel did not accept service on behalf Defendants Brokaw, Joyner, Clark, Jones, and Settles, and Defendants offer no explanation.

In any event, Defendant SCDC is the agency defendant in this case and the individual officers are SCDC employees. Moreover, all Defendants are represented by the same defense counsel, and they have made numerous filings in defense of this matter. Indeed, the Notice of Removal filed by defense counsel expressed that “the Defendants” sought removal to this Court, which would include Defendants Brokaw, Joyner, Clark, Jones, and Settles. See ECF No. 1 at 12. Thus-setting aside any apparent technical failure of service of process-Defendants have had actual notice of this action and have not been prejudiced by Plaintiff's unsuccessful attempts at service. See, e.g., Heaton v. Stirling, No. CV 2:19-0540-RMG, 2020 WL 728604, at *3 (D.S.C. Feb. 13, 2020) (“The fact that [Defendant] is represented by counsel and moving to dismiss is common sense evidence that she has notice of the claims.”).

Accordingly, the undersigned recommends that summary judgment be denied on this basis. See Anderson v. Dorchester Cnty., No. 2:20-CV-2084-DCN-MGB, 2021 WL 1186637, at *4 (D.S.C. Mar. 30, 2021) (“[T]he Fourth Circuit has consistently held that a plaintiff's failure to strictly comply with Rule 4 does not warrant dismissal of the case where the defendant has actual notice of the lawsuit against it. As discussed above, the District is abundantly aware of the lawsuit plaintiffs have filed against it. It has been active in the litigation every step of the way. At this point, the District's complaint of being improperly served is little more than an exercise in semantics.” (internal citations omitted)); Goss v. Larry, No. 2:20-CV-02978-JFA-MGB, 2021 WL 11442559, at *1 (D.S.C. Mar. 12, 2021) (“Here, the fact that defense counsel has filed a Notice of Appearance on behalf of every Defendant in this action is common sense evidence that the Defendants at issue in SCDC's Motion have notice of the claims. Thus, dismissal is not appropriate.”); Alexander v. Stirling, No. CV 6:19-215-HMH-KFM, 2019 WL 7605892, at *3 (D.S.C. Dec. 6, 2019) (“However, it is equally clear that SCDC was aware of the plaintiff's intended lawsuit . . . SCDC is the agency defendant in this case, and the individual officers are SCDC employees. They are represented by the same attorney here, and they have made numerous filings in defense of this matter. Plainly they have actual notice of this case, and they have not shown that they will be prejudiced by the plaintiff's defective service attempts. Accordingly, the undersigned recommends that summary judgment be denied on this basis.”), report and recommendation adopted, No. 6:19-00215-HMH-KFM, 2020 WL 296803 (D.S.C. Jan. 21, 2020), aff'd, 813 Fed.Appx. 910 (4th Cir. 2020).¹²

12 To the extent that the service of process remains technically deficient, the Court encourages defense counsel to accept any delayed service of process that may be procedurally necessary, with the understanding that “arguments devoid of substantive meaning win no favor with any court.” Anderson, No. 2:20-CV-2084-DCN-MGB, 2021 WL 1186637, at *4 n.5.

2. Statute of Limitations

Defendants argue that Plaintiff's action is untimely with regard to some of Plaintiff's claims. Specifically, they argue that the applicable statute of limitations for § 1983 claims bars Plaintiff's claims which occurred prior to November 15, 2019. ECF No. 58-1 at 6-7. The Court agrees.

There is no federal statute of limitations for § 1983 actions; rather, the Supreme Court has held that the analogous state statute for personal injury actions governs instead. See Wilson v. Garcia, 471 U.S. 261, 276 (1985). In South Carolina, the statute of limitations for a personal injury claim is three years. See S.C. Code Ann. § 15-3-530(5). Thus, federal courts in this District have held the time limit for bringing § 1983 claims in South Carolina is three years. See Hamilton v. Middleton, No. C.A.#4:02-1952-23, 2003 WL 23851098, at *4 (D.S.C. June 20, 2003) (collecting cases), aff'd, 81 Fed.Appx. 770 (4th Cir. 2003); see also King v. McPherson, No. 0:15-CV-2358-RBH, 2016 WL 4523465, at *3 (D.S.C. Aug. 29, 2016).

Here, Plaintiff filed this action on November 15, 2022. See ECF No. 1-2 at 22. Thus, as Defendants argue, any claims which occurred prior to November 15, 2019, are time barred. Several of Plaintiff's § 1983 claims involve events that occurred prior to that date; specifically, Plaintiff's claims that he was not provided with a PHD form within 72 hours of being placed in the RHU in April 2018, (ECF No. 1-2 at 24); that he was deprived of personal property, including legal work, such that he pled guilty to a fifteen-year sentence rather than risk life in prison, (ECF No. 1-2 at 24); and that in August 2018 he was improperly placed on S.D. status during the pendency of the investigation into his role in the Lee riot of April 2018 (ECF No. 1-2 at 25). Because Plaintiff's initiation of this action is outside the allowable three-year window with regard to these claims, Plaintiff's claims are untimely. See Hamilton, No. C.A.#4:02-1952-23, 2003 WL 23851098, at *5 (“[I]t appears without doubt that plaintiff's complaint was filed outside the applicable statute of limitations[.]”). Accordingly, the undersigned recommends summary judgment as to these aforementioned claims.

3. Exhaustion of administrative remedies

Defendants argue they are entitled to relief on a vast majority of Plaintiff's claims because Plaintiff did not exhaust his administrative remedies on those claims before filing this action, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The Court generally agrees and finds Plaintiff has exhausted his administrative remedies on only three of his claims.

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. Woodford v. 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).

i. Defendants have met their burden of showing failure to exhaust on all but three claims.

Here, Defendants have met their initial burden in showing Plaintiff's failure to exhaust. Defendants submitted the affidavit of Felecia McKie, who is the Agency Inmate Grievance Coordinator/Branch Chief of the Office of General Counsel of SCDC. ECF No. 58-12. As Agency Inmate Grievance Coordinator, McKie has access to inmate grievance records at SCDC, including Plaintiff's. ECF No. 58-12 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. 58-12 at 1-3. SCDC has a three-step grievance process.¹³ 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. 58-12 at 2. This Request must be submitted to the appropriate supervisor or staff person within eight (8) working days of the incident. ECF No. 58-12 at 2. This attempt at informal resolution is a prerequisite for the next step in the grievance process. ECF No. 58-12 at 2. Staff members are allowed forty-five (45) days to respond to RTSMs or ARTSMs. ECF No. 58-12 at 2.

13 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).

Second, if no response to the informal Request is provided within the forty-five days or if the inmate is unsatisfied with the response, the inmate must file a Step 1 Grievance Form (10-5) to proceed to the second step.¹⁴ ECF No. 58-12 at 2-3. The Step 1 Grievance must be completed and placed in the Grievance Box at the institution within eight (8) working days of the RTSM response (if there is one). ECF No. 58-12 at 3. The Step 1 Grievance is then processed and returned to the inmate with a decision.¹⁵ ECF No. 58-12 at 3.

14 Inmates are allowed to immediately file a Step 1 Grievance, bypassing an informal resolution attempt, when the issue grieved involves an emergency-related situation, disciplinary conviction, or custody reduction. ECF No. 58-12 at 2.

15 If the grievance cannot be processed because of missing information, documentation, or other issues, this will be noted in the grievance form and returned to the inmate along with reasons as to why it cannot be processed. ECF No. 58-12 at 3.

Third, if unsatisfied with the SCDC decision as to the Step 1 Grievance, inmates may then appeal that decision by filing a Step 2 Grievance Form. ECF No. 58-12 at 3. A Step 2 Grievance Form must be submitted within five working days of receipt of the response to the Step 1 Grievance. ECF No. 58-12 at 3. SCDC's response to a Step 2 Grievance is considered the final agency decision on the issue, at which point the inmate's administrative remedies have been exhausted. ECF No. 58-12 at 3.

McKie reviewed Plaintiff's grievance history and attested that from 2018 through November 15, 2022, the date this action was filed, Plaintiff filed fifty Step 1 Grievances. ECF No. 58-12 at 4, ¶ 19. Of those fifty, Plaintiff only exhausted five through the Step 2 process. ECF No. 58-12 at 4, ¶ 19. McKie detailed the various grievances Plaintiff filed by year, many of which dealt with issues not raised in this action.¹⁶ For the 2020 year, McKie detailed Plaintiff's grievance filing as follows:

16 None of Plaintiff's grievances from 2018 or 2019 appear to pertain to this lawsuit, and, even if they did, they are barred by the applicable statute of limitations as noted above. See ECF No. 5812 at 4, ¶¶ 20-21.

In 2020, [Plaintiff] filed five Step 1 grievances, none of which were appealed through the use of a Step 2 grievance. The first, PCI-0215-20, claimed excessive force was used against him after [Plaintiff] stabbed CO Fleshman on March 20, 2020. It was returned due to [Plaintiff's] failure to attempt informal resolution. The second, PCI-0222-20, alleged the officers from the March 20, 2020, incident put [Plaintiff] in harm's way. It was also returned due to [Plaintiff's] failure to attempt informal resolution. The third, PCI0223-20, accused Cpl. Kimbrell and Assoc. Warden Palmer of violations under the Prison Rape Elimination Act. This grievance was forwarded to the PREA Compliance Manager for investigation. [Plaintiff's] claims were found to be unsubstantiated, and his grievance was denied. The fourth, PCI-0227-20, claimed he was denied permission to use a hotline phone

and requested separation from five officers. This grievance was denied. The fifth, PCI-0770-20, complained that after a search of [Plaintiff's] cell during which a knife and cell phone were located, the officers texted others from his phone in an attempt to locate other inmates with cell phones. [Plaintiff] claimed this endangered his life. This grievance was returned to [Plaintiff] because he failed to attempt informal resolution prior to filing the grievance. Each grievance described above is attached[.]

ECF No. 58-12 at 4, ¶ 22. Plaintiff only filed one grievance in 2021, the subject matter of which is not relevant to this action. ECF No. 58-12 at 5, ¶ 23.

However, in 2022, Plaintiff filed twenty-three Step 1 Grievances and three Step 2 Grievances. ECF No. 58-12 at 5, ¶ 24. Relevant to this action, McKie noted:

The first Step 1, PCI-0215-22, was filed May 2, 2022, and came when he was removed from the Step Down Program and placed in RHU. [Plaintiff] claimed his 14th Amendment rights were violated when he was not provided with a form which he asserted SCDC policy dictated he be given. This grievance was returned because [Plaintiff] failed to attempt informal resolution prior to filing the grievance, and no Step 2 appeal was filed. It is attached hereto and incorporated herein as Exhibit E.

[Plaintiff] filed another Step 1 grievance the same day, PCI-0216-22. It claimed essentially the same things as in the prior grievance, but a Warden's Decision was rendered which noted the allegedly missing Pre-Hearing Detention (PHD) form was completed on the date complained of by [Plaintiff], and the form contained a notation [Plaintiff] was unable to sign at the time it was completed. The Warden's Decision also showed that the day before [Plaintiff] was placed back in the RHU on April 25, 2022, he was charged with “Smuggling, Unauthorized Inmate Activity, and Threatening to Inflict [Harm].” He was charged on April 25th with “Possession of a Purchasing Agent.” Accordingly, the grievance was denied, and no Step 2 appeal was filed. This grievance is attached[.]

[Plaintiff] filed a Step 1 grievance, PCI-0232-22, on May 8, 2022, which again claimed SCDC violated its policy by not providing him with a PHD form. This grievance was denied, and no Step 2 appeal was filed. This grievance is attached[.]

On July 14, 2022, [Plaintiff] filed a Step 1 grievance, PCI-0379-22, regarding missing a meal because he was laying in bed undressed and listening to a tablet during feeding time on July 6, 2022. In the “Action Requested” portion, he asked that the incident be placed on record for the Division of Operations and the officers involved be disciplined. A Warden's Decision was rendered which noted inmates in the RHU were required to be fully clothed between 8:00 am and 4:00 pm, and his grievance was denied. A Step 2 appeal was timely filed, and also denied. Both are attached[.]

ECF No. 58-12 at 5, ¶¶ 24-27. On the same subject matter as the above grievances, McKie noted that Plaintiff continued to file grievances related to not receiving a PHD form when he was placed in the RHU in 2018. See ECF No. 58-12 at 5-8, ¶¶ 29, 31, 32, 35, 41. McKie also noted that Plaintiff filed another Step 1 Grievance regarding missing meals, wherein he asserted that he was not fed meals on July 6, July 20, July 30, and July 31. ECF No. 58-12 at 6, ¶ 30. However, this grievance was processed and returned for failing to attempt informal resolution, and no Step 2 appeal was filed. ECF No. 58-12 at 6, ¶ 30.

McKie further detailed Plaintiff's exhaustion of his grievance regarding his custody status:

On August 19, 2022, [Plaintiff] filed a Step 1 grievance, PCI-0472-22, which complained about receiving security detention (SD) custody from the RHU Classification Committee. He asserted S.D. status was not, according to SCDC policy, appropriate for someone under an active investigation. The grievance was denied under the rationale that under SCDC policy, an inmate has no right to a particular custody level. This grievance is attached[.]

[Plaintiff] filed a timely Step 2 appeal of the above. He claimed he had “done three years already on security detention” and after being released to the Step Down Program was back again on S.D. status due to an investigation. The response noted details regarding his pending investigation were confidential, and his appeal was denied. The Step 2 grievance is attached[.]

ECF No. 58-12 at 6, ¶¶ 33-34.

With regard to Plaintiff's outdoor recreation, McKie noted:

[Plaintiff] filed a Step 1 grievance, PCI-0520-22, on September 9, 2022, which claimed he did not receive any outdoor recreation while at Lieber Correctional Institution from April 16, 2020, through April 12, 2022. This grievance was processed and returned as untimely given that more than eight days had elapsed since the incident of which he complained. No Step 2 appeal was filed. This grievance is attached[.]

[Plaintiff] filed a second Step 1 grievance on September 9, 2022, PCI-0530-22, which asserted he had received outdoor recreation only twice since April 25, 2022. The Warden's Decision noted records indicated he had previously refused outdoor recreation, and there were occurrences of inclement weather or other extenuating circumstances which impeded outdoor recreation time. It is attached[.]

A timely Step 2 appeal was filed regarding PCI-0530-22, wherein [Plaintiff] claimed he never refused outdoor recreation, and that an officer had pulled other inmates for recreation a few days beforehand but skipped his door. The response to the Step 2 appeal noted outdoor recreation was not guaranteed to any inmate, and for those inmates who had to stay in their cells most of the time, such as RHU inmates, an in-cell exercise program was available. Accordingly, the grievance was denied. The Step 2 appeal is attached[.]

ECF No. 58-12 at 7, ¶¶ 37-39.

As to other, miscellaneous claims, McKie noted Plaintiff failed to exhaust his administrative remedies. Relevant here, she noted:

On September 18, 2022, [Plaintiff] filed a Step 1 grievance, PCI-0544-22, regarding the concrete slab in his room instead of a bed frame, back pain from sitting in a “V” position, his inability to see the natural environment outside his window, and the lights being off in his room only from 11:30 pm to 4:00 am. The grievance was processed and returned as violating the single issue per grievance rule. No Step 2 appeal was filed. It is attached[.]

[Plaintiff] filed six grievances in October, 2022. The first, PCI-0602-22, asserted his right against double jeopardy under the South Carolina Constitution was being violated by being back in the RHU on S.D. status. It was processed and returned for failing to complete informal resolution. The second, PCI-0617-22, claimed his federal and state rights to equal protection were being violated since other RHU dorms had bed frames instead of concrete slabs. This grievance was also processed and returned for failing to complete informal resolution. The third, PCI-0624-22, claimed he was being held on S.D. status for the same offense twice. It was returned as being a duplicate of a prior grievance. The fourth, PCI-0629-22, also claimed double jeopardy was being violated because he was again on S.D. status, and was returned as a duplicate of a prior grievance. The fifth, PCI-0630-22, claimed his 5th Amendment rights were being violated by being “held on lock up for the same thing twice.” This was also returned as being a duplicate grievance. Finally, PCI-063122, claimed he was in the RHU for four years without a PHD form being completed, and this violated his 14th Amendment rights and constituted cruel and unusual punishment. This grievance was processed and returned due to [Plaintiff] exceeding the maximum number of grievances allowed per month. No Step 2 appeals were filed as to any of these Step 1 grievances. Collectively, they are attached[.]

ECF No. 58-12 at 7-8, ¶¶ 40-41. Relevant to the claims brought in this action, McKie concluded that Plaintiff had exhausted his administrative remedies only as to (1) his missing a meal on July 6, 2022, while lying in bed undressed with headphones on; (2) his being on S.D. status during the pendency of an active investigation following his removal from the Step Down Program; and (3) his claim to have received outdoor recreation only twice between April 25, 2022, and September 9, 2022. ECF No. 58-12 at 8, ¶ 43.

Upon review of the documents detailed above, Defendants have shown that Plaintiff failed to exhaust his administrative remedies as to his other miscellaneous claims raised in the Complaint prior to initiating this action. See ECF No. 58-12; ECF No. 58-13, ECF No. 58-14; see also 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”').

ii. Plaintiff has not shown that the administrative process became unavailable to him.

In his Response and Sur-Reply, Plaintiff argues that the administrative process became unavailable to him. ECF No. 72 at 1; ECF No. 78 at 1-2. Specifically, he argues that SCDC's grievance process is a “sham process” and offers affidavits from fellow inmates who echo his sentiments. ECF No. 72 at 1. Plaintiff's arguments appear to be twofold. First, he argues that if one takes a look “at all the grievances that Plaintiff has filed, you would notice he never received any relief from the grievance system,” and therefore the issues he raises should be considered exhausted. ECF No. 71 at 1.

Second, Plaintiff appears to take aim at the RTSM forms, arguing that when he was in the RHU, corrections officers “would not give him [RTSM] forms until May 2018, which made the procedure unavailable to him,” and he notes that the affidavits attached to his Complaint from his fellow inmates reflect the same difficulties. ECF No. 78 at 1; see also ECF No. 72 at 1. Plaintiff argues that the first step in the grievance process is to complete a RTSM form, but if the “addressed official does not respond to that [RTSM] then there is no way an inmate can proceed to file a step one grievance.” ECF No. 78 at 1. Plaintiff maintains that he has made many attempts to file grievances, but they were turned down because they did not have an answered RTSM. ECF No. 78 at 1. Plaintiff points to grievance PCI-0520-22-submitted on September 7, 2022, while Plaintiff was housed at Perry-wherein Plaintiff noted that he had not received a response to his previous RTSM, submitted at Lieber.¹⁷ ECF No. 78 at 1; ECF No. 78-5 at 43. Plaintiff also points to the affidavits of from his fellow inmates. See, e.g., ECF No. 1-2 at 96 (noting that RTSMs aren't being answered in forty-five days and “when you file a grievance without the [RTSM] first it would be unprocess[ed]” because “you [did] not attempt[] an informal resolution” even though “you did, but [got] no response”). Plaintiff argues this shows a history of staff not answering RTSMs. ECF No. 78 at 1-2.

17 Notably, there is no indication when Plaintiff may have submitted any RTSM at Lieber, nor is there a copy of any RTSM that may have been submitted while Plaintiff was housed there.

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.

Here, Plaintiff has not shown that the administrative grievance process became “unavailable” to him as that term is contemplated in Ross. Regarding Plaintiff's first argument- that because he never received any relief from the numerous grievances he filed, the issues he raised should be considered exhausted-misapprehends what “unavailable” means, and, in any event, ignores why he never received relief. See ECF No. 71 at 1. Indeed, as McKie's voluminous affidavit and the attached grievances reflect, a main reason why Plaintiff's grievances were denied was because Plaintiff did not comply with the process the grievance procedure required. In other words, the administrative grievance process was not unavailable to Plaintiff; rather, Plaintiff was not using it properly.¹⁸ See Woodford, 548 U.S. at 90 (“Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which ‘means using all steps that the agency holds out, and doing so properly[.]'” (citation omitted) (emphasis in original)). Plaintiff's argument does not show the grievance process was unavailable. See Graham, 413 Fed.Appx. at 663 (“Thus, although Graham knew about the existence of the jail's formal grievance procedure, he took no steps to comply with the process then in place, and his failure to do so cannot be attributed to anyone but himself.”).

18 Indeed, sometimes, it appeared Plaintiff was willfully disregarding the grievance procedure. See ECF No. 58-14 at 21 (noting, after grieving alleged equal protection issues, that “I do not need to attach an [RTSM form]”).

Plaintiff's second argument-that the failure of SCDC staff to respond to RTSMs effectively makes the grievance process unavailable to him because answered RTSMs are required for a properly filed Step 1 Grievance-is also unavailing, though it merits some additional discussion. As an initial matter, Plaintiff's argument appears to be squarely at odds with McKie's affidavit, wherein she specifically states:

If no response to the Request [to Staff] is provided within the allotted time frame, or if the inmate is unsatisfied with the response, the inmate can proceed to the second step by filing a Step 1 grievance, which involves completing Inmate Grievance Form 10-5. The Step 1 form requires the inmate to include “supporting documentation and attach [the] answered RTSM or Kiosk reference number.” . . . The rule which requires attaching an answered RTSM or ARTSM to a filed Step 1 grievance ensures compliance with the informal resolution mandate.

ECF No. 58-12 at 2-3, ¶ 10 (emphasis added). McKie's affidavit seems to indicate that, in the event there is no response to the RTSM within the allotted time frame (i.e., forty-five days), an inmate can move forward with the filing of a Step 1 Grievance. Thus, if this is true, Plaintiff's argument fails as a practical matter. However, in the very next sentence, McKie seems to imply that a Step 1 Grievance requires an answered RTSM. See ECF No. 58-12 at 2-3, ¶ 10. This is consistent with several of the responses to Plaintiff's filed Step 1 Grievances. See, e.g., ECF No. 58-14 at 21 (“You must have an answered RTSM or kiosk reference number from the responsible authority attached to the grievance to proceed with the grievance process” (emphasis in original)); ECF No. 58-14 at 31 (same).

As it happens, this is not the first time that this Court has dealt with such allegations. See Mann v. Scott, No. CIV.A. 0:14-3474-RMG, 2015 WL 5165198, at *5 (D.S.C. Sept. 1, 2015) (finding “the prison's failure to respond to Plaintiff's RTS[M]'s made an administrative remedy unavailable in this case, excusing his resulting failure to exhaust prior to filing suit”). As Judge Gergel recognized in Mann:

The problem here is twofold: First, SCDC's administrative process bars prisoners from filing Step One grievances without an attached, responded-to RTS. Second, it bars prisoners from filing a grievance on the basis that a Step One grievance was left unprocessed. The policy, in other words, predicates a prisoner's ability to appropriately grieve and appeal an issue upon the prison's own action, which does not offer him a meaningful opportunity to exhaust. An inmate who has not received

a response to an RTS may abide by the GA-01.12 requirements and wait patiently for the response that may never come, thereby losing the opportunity to fully exhaust the final steps of his administrative remedies as the PLRA requires. Or, he may ignore repeated directives from the prison that he may not proceed to filing a Step One and Step Two grievance, file them despite having received no response on his RTS, and fall afoul of the Supreme Court's more specific requirement that he “follow the required steps” of the administrative procedure.

Id. at *4 (emphasis in original) (internal citations omitted).

It is not clear if SCDC's policies are the same as they were in Mann, and Defendants do not offer much by way of clarification or argument as to Plaintiff's position.¹⁹ In any event, Mann is distinguishable because the inmate in that case filed numerous RTSMs that went unanswered, and he submitted copies of those RTSMs to the Court. See id. at *3 (noting Plaintiff submitted copies of six RTSMs and “Plaintiff asserts, and Defendants do not dispute, that he filed many RTS's and never received a response that he could have attached to his grievance in order for the prison to process it” (emphasis in original)). Thus, the undisputed record in Mann reflected that the inmate was prevented, through no fault of his own, from availing himself to the administrative process. See id. at *4 (noting the inmate's “vigorous and voluminous attempts to elicit a proper response from the prison so that he could complete the administrative process” such that it was “unclear what more Plaintiff could have done to pursue his claims, or whether additional paperwork would have been of any benefit to the prisoner or the prison administration”).

19 The undersigned recognizes Defendants' lack of response may be because Plaintiff expanded/elaborated on his “unavailability” argument in his Sur-Reply. Compare ECF No. 72 at 1 with ECF No. 78 at 1-2.

Here, however, Plaintiff has not demonstrated he was prevented from using the administrative process. First, as a practical matter, Plaintiff alleges generally that the RTSM requirement is flawed, such that it makes the entire grievance process unavailable. But, the evidence before the Court shows, and Defendants concede, that Plaintiff has exhausted some of his claims. Thus-setting aside the dispute of fact as to how the RTSM requirement operates-it is apparent that, as to Plaintiff, his RTSMs are being answered in some capacity. Plaintiff would not have been able to exhaust his claims otherwise.

Second, and as a result, Plaintiff's argument does not unlock the floodgates to all of his grievances. Rather, like in Mann, Plaintiff must show the prison's failure to respond to his RTSMs-specifically as to the unexhausted claims in this lawsuit-made the administrative remedy procedure unavailable to him. Plaintiff has not made that showing. Specifically, Plaintiff has not submitted or otherwise pointed to any copies of any unanswered RTSMs at all, let alone any dealing with the specific issues raised in this action, nor has he produced evidence of any steps he believes he took to follow-up on the status of any requests to staff or verbal complaints prior to the filing of this action. Plaintiff has not argued or pointed the Court to evidence that specific unexhausted claims were stymied by the failure of prison officials to answer his RTSMs.²⁰ Rather, as noted above, Plaintiff argues generally that the RTSM requirement is flawed and that the entire administrative process is a sham.

20 The closest Plaintiff comes is his reference to grievance PCI-0520-22, which Plaintiff submitted while housed at Perry, and wherein Plaintiff noted that he had not received a response to a previous RTSM at a different facility (Lieber). ECF No. 78 at 1; ECF No. 78-5 at 43. This grievance, filed at Perry, specifically dealt with allegations of not receiving adequate outdoor recreation while Plaintiff was at Lieber from April 16, 2020, to April 12, 2022. ECF No. 78-5 at 43. Notwithstanding that there is no unanswered RTSM from Lieber on this specific issue before the Court, even if the Court were to excuse Plaintiff's failure to exhaust this particular claim, it ultimately fails on the merits because-as discussed in the merits section below-Plaintiff has not shown any of the Defendants ran afoul of the Eighth Amendment with regard to outdoor recreation.

In other words, despite Plaintiff's suggestion, Plaintiff has not shown the alleged flaw with RTSM response process actually infected all the unexhausted grievances in his case. 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))); see also generally 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.²¹ See Ross, 578 U.S. at 643-44.

21 Indeed, as noted by McKie, Plaintiff filed numerous grievances, some of which he properly exhausted through the Step 2 process. ECF No. 58-12 at 4, ¶ 19. Undoubtedly, SCDC has a grievance procedure that was available to Plaintiff, as he was using it to grieve other matters. On this record, Plaintiff has not shown prison officials prevented him from using the grievance process. See Moss v. Harwood, 19 F.4th 614, 623 (4th Cir. 2021) (“But where, as here, an inmate in fact is able to participate in a grievance process, notwithstanding alleged obstacles, then that process remains ‘available' for purposes of the PLRA”).

As a result, Plaintiff is unable to overcome the undisputed evidence that he failed to exhaust his available administrative remedies with respect to much of the miscellaneous claims raised in the Complaint.²²

22 This would include, inter alia, Plaintiff's Eighth Amendment claims for failure to protect against Defendants Brokaw and Fleshman; excessive force against Defendants Settles and Clark; and the claims regarding the various conditions of confinement, alleged sexual harassment, and Plaintiff's “double jeopardy” and/or Equal Protection claims, to the extent they were raised.

More specifically, the Court agrees with Defendants that Plaintiff has exhausted his administrative remedies only as to (1) his missing a meal on July 6, 2022, while lying in bed undressed with headphones on; (2) his being on S.D. status during the pendency of an active investigation following his removal from the Step Down Program; and (3) his claim to have received outdoor recreation only twice between April 25, 2022, and September 9, 2022. ECF No. 58-12 at 7-8, ¶¶ 40-41. The merits of these claims are addressed below.

B. Merits

Defendants maintain they are entitled to summary judgment because Plaintiff has not shown essential elements of a § 1983 action for a myriad of reasons. See ECF No. 58-1 at 19-45. Specifically, Defendants argue they are entitled to summary judgment because, inter alia, (1) Eleventh Amendment immunity bars claims against Defendant SCDC and the individual Defendants in their official capacities; (2) Plaintiff has not shown personal involvement as to several Defendants, such that he has failed to adequately state a claim; (3) Plaintiff has not shown any constitutional violations; and (4) they are entitled to qualified immunity. For the following reasons, the Court agrees Plaintiff has failed to establish a viable § 1983 claim against Defendants.

1. Eleventh Amendment Immunity: SCDC and Official Capacity Claims

Plaintiff brings this action against Defendants “individually and in their official capacities.” See ECF No. 1-2 at 22. Defendant SCDC and the individual Defendants, in their official capacities, are immune from suit under the Eleventh Amendment and, thus, entitled to summary judgment.

Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state (and its agencies) may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Congress has not abrogated the states' sovereign immunity under § 1983, Quern v. Jordan, 440 U.S. 332, 343 (1979), and South Carolina has not consented to suit in federal district court. S.C. Code Ann. § 15-78-20(e).

Here, Defendant SCDC is an agency and an alter ego of the state of South Carolina. See S.C. Code § 24-1-30. As a result, the Eleventh Amendment bars the action against Defendant SCDC. See Will, 491 U.S. at 66.

Additionally, at all times relevant to Plaintiff's Complaint, it is undisputed that the individual Defendants were employed by SCDC. Thus, the individual Defendants are likewise immune from suit under the Eleventh Amendment in their official capacities. See Simpson v. S.C. Dep't of Corr., No. 2:19-CV-2245-RMG, 2020 WL 582321, at *2 n.1 (D.S.C. Feb. 6, 2020) (noting SCDC employees are entitled to Eleventh Amendment immunity in suits brought against them in their official capacities).

Finally, for purposes of § 1983, Defendants are not considered “persons” amenable to suit. See Will, 491 U.S. at 71 (“Neither a State nor its officials acting in their official capacities are ‘persons' under § 1983.”); see also Hafer v. Melo, 502 U.S. 21, 26-27 (1991). Accordingly, the undersigned recommends granting summary judgment to Defendant SCDC and to the individual Defendants in their official capacities.

2. Personal involvement and Supervisory Liability

Defendants generally argue that Plaintiff has not stated a § 1983 claim against several of the individual Defendants. The Court agrees.

To state a § 1983 claim, Plaintiff must demonstrate Defendants, acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983; Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001). At the summary judgment stage, Plaintiff must show Defendants' personal involvement in order for liability to attach under § 1983. Williamson v. Stirling, 912 F.3d 154, 171-72 (4th Cir. 2018) (noting a plaintiff must affirmatively show that the official acted personally in violating the plaintiff's constitutional rights and finding certain defendants were entitled to summary judgment because “they lacked sufficient personal involvement in the alleged constitutional deprivations”).

Here, Plaintiff has failed to allege any personal involvement on the part of Defendants Willie Davis, Corporal Jones, Aaron Joyner, Major Bennett, Kenneth Nelson, Katurah Gause, or Clayton Holbrook. As to Defendants Davis and Jones, these Defendants are not mentioned anywhere in the Complaint outside of the case caption. See ECF No. 1-2 at 22-36. As to Defendant Joyner, Plaintiff only mentions that he was the Warden at Lee.²³ ECF No. 1-2 at 23.

23 Plaintiff also alleges that Defendant Joyner placed Plaintiff in administrative segregation “without due process of law” on a form apparently attached to the Complaint titled “Statement of the Claim.” ECF No. 1-2 at 37. As noted below, such a conclusory allegation fails to fail to state a claim under the pleading requirements of Rule 8. See Fed.R.Civ.P. 8; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” (citation omitted)); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (“Bare legal conclusions ‘are not entitled to the assumption of truth' and are insufficient to state a claim.” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009))).

As to Defendant Bennett, the only mention of him involves his apparent answering of some of Plaintiff's grievances and/or questions regarding grooming standards and Plaintiff's S.D. classification. See ECF No. 1-2 at 30, 32. Similarly, Defendant Gause is only mentioned in passing as having signed some paperwork regarding Plaintiff's SD's status. ECF No. 1-2 at 25. These tangential interactions fall short of the affirmative showing needed that could lead a reasonable jury to conclude that these Defendants acted personally with regard to the alleged constitutional violations. See Anderson, 477 U.S. at 252.

Finally, Plaintiff alleges that Defendant Holbrook merely “confirmed” that there was no PHD form while Plaintiff was at Perry, and he levels the conclusory accusation that Defendant Holbrook “voted for Plaintiff to remain on SD.” ECF No. 1-2 at 31.

Outside of the conclusory allegations in the pleadings, there is no evidence before the Court to support Plaintiff's general allegations that these Defendants violated his rights. No reasonable jury could conclude that Defendants Davis, Jones, Joyner, Bennett, Nelson, Gause, or Holbrook violated Plaintiff's constitutional rights with regard to the miscellaneous accusations in the Complaint. See Scinto, 841 F.3d at 227 (“To survive summary judgment, there must be evidence on which the jury could reasonably find for the [nonmovant].” (citation and internal quotation marks omitted)). Indeed, even construing the Complaint liberally, as this Court must, Plaintiff does not allege-or cite to any evidence in the record that could lead a reasonable jury to believe-that these Defendants had any personal involvement in the alleged constitutional violations, which is fatal to Plaintiff's § 1983 claim. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (citation omitted)). Accordingly, because Plaintiff fails to point to evidence in the record that supports a threshold essential element of a § 1983 claim, summary judgment is appropriate.²⁴ 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).

24 Indeed, Plaintiff's claims, as pled, do not even meet the pleading requirements of Rule 8. See ECF No. 1-2; Fed.R.Civ.P. 8. The Supreme Court has made clear that a plaintiff “must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Plaintiff has failed to plead sufficient facts to support a reasonable inference that these Defendants are liable for any misconduct. See id. at 678. The Complaint contains conclusory allegations that do not provide factual detail beyond averring generally that these Defendants violated his constitutional rights. See id. (noting that a court is not bound to accept as true a complaint's threadbare, conclusory legal statements that are couched as factual allegations). Indeed, there are no facts from which to infer that these Defendants engaged in conduct that ran afoul of the Constitution. See id. at 679 (noting “[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief”” (quoting Fed.R.Civ.P. 8(a)(2))). Furthermore, the Complaint provides no specific examples of occurrences in which these Defendants violated his rights, nor does it include allegations, with any specificity, of any personal involvement on the part of these Defendants individually.

Additionally, Plaintiff has failed to show a viable § 1983 claim against Defendants Bryan Stirling, Joel Anderson, Dennis Patterson, R. Tisdale, or John Palmer.²⁵ These Defendants appear to be named generally because of their supervisory roles within SCDC.²⁶ To the extent Plaintiff alleges these Defendants-or any Defendants-are vicariously liable by virtue of the actions of their subordinates, those claims fail. Pure supervisory liability will not lie in § 1983 actions. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (“The doctrine of respondeat superior has no application under this section.” (quoting Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977))). Rather, to hold a supervisor liable for a constitutional injury inflicted by a subordinate under § 1983, Plaintiff must show facts establishing the following elements: (1) the supervisor had actual or constructive knowledge that a subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to people like the plaintiff; (2) the supervisor's response was so inadequate as to constitute deliberate indifference or tacit authorization of the subordinate's conduct; and (3) there is an “affirmative causal link” between the supervisor's inaction and the plaintiff's constitutional injury. Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). Plaintiff has failed to produce evidence showing any of these required elements. Thus, to the extent Plaintiff's claims rest on holding any Defendants liable in their supervisory capacities, such claims fail.

25 Plaintiff does allege that Defendant Palmer sexually harassed him, that Defendant Palmer ordered Plaintiff back into the RHU “because of a phone conversation,” and that Plaintiff wrote a Request to Staff to Defendant Palmer. ECF No. 1-2 at 28, 30. However, in addition to failing to exhaust his administrative remedies with regard to any accusations against Defendant Palmer, Plaintiff fails to elaborate on these conclusory allegations and provides no factual basis for these claims; thus, such allegations fail to state a claim under the pleading requirements of Rule 8. See Fed. R. Civ. P. 8; see also Twombly, 550 U.S. at 555 (“[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]” (citation omitted)); King, 825 F.3d at 214 (“Bare legal conclusions ‘are not entitled to the assumption of truth' and are insufficient to state a claim.” (quoting Iqbal, 556 U.S. at 679)).

26 Plaintiff also makes the conclusory allegation that Defendants Stirling, Anderson, and Patterson ordered Plaintiff to be put on S.D. custody status. See ECF No. 1-2 at 30, 32. Plaintiff also alleges that Defendant Tisdale recommended and/or signed off on Plaintiff's S.D. status. ECF No. 1-2 at 25, 33. Such a conclusory allegation fails to state a claim under the pleading requirements of Rule 8. In any event, as discussed below, Plaintiff has failed to show a violation of his Fourteenth Amendment rights with regard to his custody status.

Accordingly, for all of the above reasons, these Defendants are entitled to summary judgment. See Anderson, 477 U.S. at 248 (noting “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial” (citation and internal quotation marks omitted)).

3. Eighth Amendment

Plaintiff's exhausted claims under the Eighth Amendment deal with his allegations of missing meals and inadequate outdoor recreation. Neither claim is viable.

i. Missing Meals

Plaintiff alleges that he was denied a meal on July 6, 2022; July 20, 2022; and July 29, 2022.²⁷ ECF No. 1-2 at 29-30. Specifically, Plaintiff alleges the Defendants Salazar and Perks failed or otherwise refused to feed him, and he further maintains that Defendants Harouff and Williams did nothing in response. See ECF No. 1-2 at 29.

27 As noted above, Plaintiff exhausted his claim with respect to the July 6 date, while the remaining dates were not exhausted. Nevertheless, the Court has addressed the merits of all three dates, as the core claim-failure to provide adequate food-was raised and administratively exhausted.

Plaintiff's claim is an allegation that his Eighth Amendment rights were violated. See Scinto v. Stansberry, 841 F.3d 219, 233 (4th Cir. 2016) (noting the Supreme Court has “stated that the Eighth Amendment imposes a duty on prison officials to provide inmates with ‘adequate food'”). To demonstrate a violation of the Eighth Amendment against Defendants in their individual capacities, Plaintiff must establish (1) a serious deprivation of a basic human need and (2) deliberate indifference to prison conditions on the part of Defendants. Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1991).

Here, as noted above, activity logs record all types of activities by inmates at Perry, as well as the correctional officer recording those activities. ECF No. 23-1 at 2, ¶ 4. The activity log for July 6, 2022, indicated that Plaintiff received breakfast, dinner, and lunch meals on that date. ECF No. 23-1 at 2, ¶ 5; ECF No. 23-2 at 4. The activity log for July 20, 2022, indicated Plaintiff received breakfast and dinner that day but did not receive lunch because he refused the lunch meal. ECF No. 23-1 at 2, ¶¶ 6, 12; ECF No. 23-2 at 6. The July 29, 2022, activity log showed that Plaintiff received a breakfast and dinner meal that day. ECF No. 23-1 at 2, ¶ 7; ECF No. 23-2 at 7. The July 29 log also showed that at 10:01 a.m., Plaintiff refused the lunch meal but was still provided the lunch meal at 11:13 a.m. ECF No. 23-1 at 2, ¶ 7; ECF No. 23-2 at 7.

Notwithstanding the activity logs, Plaintiff averred that he was not fed a meal on those days in his verified Complaint, which conflicts with Defendants' evidence. See Goodman v. Diggs, 986 F.3d 493, 498 (4th Cir. 2021) (“[A] verified complaint is the equivalent of an opposing affidavit for summary judgment purposes, when the allegations contained therein are based on personal knowledge.”).

Nevertheless, taking Plaintiff's version of events as true, as this Court must, Plaintiff still has not shown a sufficiently serious deprivation of “adequate food” to establish an Eighth Amendment violation. See Scinto, 841 F.3d at 233. Indeed, setting aside the dispute over whether Plaintiff was fed a single meal-and notwithstanding the parties' dispute over why Plaintiff was not served one meal on these three occasions-the record reflects that Plaintiff received at least two meals on those days. There is no evidence before the Court otherwise. Thus, at best, Plaintiff has shown he missed a meal on a few occasions. This does not rise to a sufficiently serious deprivation violative of the Eighth Amendment. See, e.g., McFadden v. Lowicki, No. CV ELH-18-469, 2018 WL 5242264, at *9 (D. Md. Oct. 22, 2018) (collecting cases) (“Missing a meal on a few isolated occasions does not constitute an Eighth Amendment violation where the meals the prisoner is provided are sufficient to maintain normal health.”); see also Scinto, 841 F.3d at 234 (“Only an ‘extreme deprivation' is actionable under the Eighth Amendment.”). Accordingly, these Defendants are entitled to summary judgment.

ii. Outdoor recreation

Plaintiff asserts that he was not given adequate outside recreation between April 25, 2022, and September 9, 2022, which Plaintiff raised and exhausted through SCDC's administrative process.²⁸ ECF No. 58-12 at 7-8, ¶¶ 40-41.

28 Defendants argue that Plaintiff did not raise these specific dates in his Complaint. See ECF No. 58-1 at 19 n.4. Rather, they argue Plaintiff raised the outside recreation issue only as to his time in Lieber from April 16, 2020, to April 12, 2022, and that this claim was not exhausted. See ECF No. 58-1 at 19 n.4, 31-33. The Court agrees that Plaintiff only specifically raised the outside recreation issue at Lieber from April 2020-2022 in his Complaint, and that Plaintiff failed to exhaust this claim. However, construing the Complaint liberally, Plaintiff continuously complains of his lack of recreation time throughout his stint in the RHU and in the various SCDC facilities, such that the Court addresses Plaintiff's outside recreation arguments for the time between April 25, 2022, and September 9, 2022.

Plaintiff has not shown a violation of the Eighth Amendment with regard to any of his outdoor recreation claims. Other than the general allegation that he did not receive adequate outside recreation time, the Complaint is devoid of any specificity that would allow any reasonable jury to conclude any of the Defendants ran afoul of the Eighth Amendment. Perhaps more importantly, Plaintiff does not allege-or cite to any evidence in the record that could lead a reasonable jury to believe-that any particular, individual Defendant actively failed or otherwise decided not to provide Plaintiff with outdoor recreation, which is fatal to his § 1983 claim. See Williamson, 912 F.3d at 171 (noting a plaintiff must show that the official acted personally in violating the plaintiff's constitutional rights); Wilcox, 877 F.3d at 170 (noting liability will only lie in § 1983 actions where it is “affirmatively shown that the official charged acted personally in the deprivation of the plaintiffs' rights” (internal quotation marks and citation omitted)). Accordingly, because Plaintiff fails to point to evidence in the record that supports a threshold essential element of a § 1983 claim, summary judgment is appropriate.²⁹ 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).

29 This includes Plaintiff's unexhausted claims raising outside recreation issues at Lieber from April 2020-2022. Thus, as noted above, even if the Court were to excuse Plaintiff's failure to exhaust that claim, it still fails on the merits. Indeed, Plaintiff's claims, as pled, do not meet the pleading requirements of Rule 8. See ECF No. 1-2; Fed.R.Civ.P. 8. The Complaint contains conclusory allegations that do not provide factual detail beyond averring generally that Defendants violated his constitutional rights by failing to provide him with outside recreation time. Iqbal, 556 U.S. at 679 (noting “[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief”” (quoting Fed.R.Civ.P. 8(a)(2))).

4. Fourteenth Amendment

Plaintiff argues his due process rights were violated when he was placed on S.D. status during the pendency of an active investigation following his removal from the Step Down Program at Perry in April 2022. Specifically, he asserts that because he was on S.D. status for four years for investigation purposes previously, being placed back on S.D. status during a second investigation violated his Fourteenth Amendment rights because, per SCDC policy, S.D. status is not for investigation purposes. ECF No. 1-2 at 31. Plaintiff appears to allege that Defendants Stirling, Anderson, and Patterson ordered Plaintiff to be put on S.D. custody status, and that Defendant Tisdale recommended and/or signed off on Plaintiff's S.D. status. See ECF No. 1-2 at 25, 30, 32, 33. Plaintiff further alleges that Defendants Curtis Early, Clayton Holbrook, and Daniel Harouff voted for Plaintiff to remain on S.D. status. ECF No. 1-2 at 31. He also alleges he was not provided with a PHD form when he was placed back in the RHU, which he maintains is part of his procedural due process rights. ECF No. 1-2 at 28; ECF No. 72 at 2.

The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. To establish a procedural due process violation, a plaintiff must (1) identify a protected liberty interest and (2) show deprivation of that interest without due process of law. Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015); see also Slezak v. Evatt, 21 F.3d 590, 593 (4th Cir. 1994) (“To prevail on a § 1983 claim that actions by state officials respecting a state prison inmate's security and custody classification have violated the inmate's procedural due process rights, the claimant must prove that (1) he had a protected liberty interest in receiving a new or retaining a current classification, (2) which interest was adversely affected by the actions, (3) without the protections of due process guaranteed by the Fourteenth Amendment.”).

The Supreme Court has long recognized that a prisoner may have a state-created liberty interest in certain prison confinement conditions, which would entitle him to procedural due process protections. See, e.g., Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Wolff v. McDonnell, 418 U.S. 539, 556-57 (1974). However, the Supreme Court has been equally clear that if no state statute, regulation, or policy creates such a liberty interest, a prisoner cannot “invoke the procedural protections of the Due Process Clause.” Meachum, 427 U.S. at 224.

Here, Plaintiff cannot establish a protected liberty interest, such that the Court's inquiry ends without the need to consider the sufficiency-of-process requirement. Indeed, prisoners generally have no liberty interest in a particular security classification or in being housed in a particular facility, see generally id. at 224-25, and courts have previously found that no South Carolina law or regulation creates a liberty interest in a particular security or custody classification. See Brown v. Evatt, 470 S.E.2d 848, 851 (S.C. 1996) (“Neither the state statutes which create and define the powers of the SCDC nor SCDC's operational classification regulations create the required liberty interest. Though they provide procedural safeguards and substantive criteria for making base-line classification decisions, these are made only as recommendations that are subject to discretionary review and rejection by higher-level prison officials.”); see also Slezak, 21 F.3d at 595-97 (finding no state created liberty interest in particular classification decisions within SCDC from state statutes, a federal consent decree, or in the operational regulations within SCDC).

Consequently, Plaintiff's claims involving his security or custody classification fail, and these Defendants are entitled to summary judgment.

5. Qualified Immunity

Defendants also argue they are entitled to qualified immunity from Plaintiff's § 1983 claims. The doctrine of qualified immunity offers some protection to a government employee being sued in his or her individual capacity, as is the case with Defendants here. The Supreme Court has held that “[g]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Renn by and Through Renn v. Garrison, 100 F.3d 344, 349 (4th Cir. 1996).

“The threshold inquiry a court must undertake in a qualified immunity analysis is whether a plaintiff's allegations, if true, establish a clear constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002). If a violation of a constitutional right in fact exists, qualified immunity nonetheless shields a prison official from liability, unless the violation was of a “clearly established right of which a reasonable person would have known.” Wilson v. Kittoe, 337 F.3d 392, 397 (4th Cir. 2003) (citation and internal quotation marks omitted).

As set forth above, Plaintiff has failed to establish a genuine issue of material fact on any of his alleged constitutional violations. Because Defendants did not violate Plaintiff's constitutional rights, they are also shielded from liability by qualified immunity.

IV. RECOMMENDATION

For the reasons set forth above, it is RECOMMENDED that Defendants' Motion, ECF No. 58, 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).