Opinion
Civil Action No. 2:17-03031-RMG-MGB Civil Action No. 2:19-02245-RMG-MGB Civil Action No. 2:19-02246-RMG-MGB Civil Action No. 2:19-02247-RMG-MGB
08-14-2019
Brandon Bartlett, Plaintiff, v. South Carolina Department of Corrections; Warden Joseph McFadden, individually and/or in his official capacity as Warden of Lieber Correctional Institution; Correctional Officer Dennis, individually and/or in his official capacity as an employee of SCDC; Correctional Officer Kelly, individually and/or in his official capacity as an employee of SCDC; Correctional Officer McKie, individually and/or in his official capacity as an employee of SCDC ; Defendants. Keith Simpson, Plaintiff, v. South Carolina Department of Corrections; Warden Joseph McFadden, individually and/or in his official capacity as Warden of Lieber Correctional Institution; Correctional Officer Dennis, individually and/or in his official capacity as an employee of SCDC; Correctional Officer Kelly, individually and/or in his official capacity as an employee of SCDC; Correctional Officer McKie, individually and/or in his official capacity as an employee of SCDC ; Defendants. Chris Ford, Plaintiff, v. South Carolina Department of Corrections; Warden Joseph McFadden, individually and/or in his official capacity as Warden of Lieber Correctional Institution; Correctional Officer Dennis, individually and/or in his official capacity as an employee of SCDC; Correctional Officer Kelly, individually and/or in his official capacity as an employee of SCDC; Correctional Officer McKie, individually and/or in his official capacity as an employee of SCDC ; Defendants. Cedric Robinson, Plaintiff, v. South Carolina Department of Corrections; Warden Joseph McFadden, individually and/or in his official capacity as Warden of Lieber Correctional Institution; Correctional Officer Dennis, individually and/or in his official capacity as an employee of SCDC; Correctional Officer Kelly, individually and/or in his official capacity as an employee of SCDC; Correctional Officer McKie, individually and/or in his official capacity as an employee of SCDC ; Defendants.
REPORT AND RECOMMENDATION and ORDER
This action has been filed by Plaintiffs pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act ("SCTCA"), S.C. Code Ann. §§ 15-78-10 et seq. (Dkt. No. 1-1.) Currently before the Court is Defendants' Motion for Summary Judgment/Motion to Stay Discovery. (Dkt. No. 62.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., this matter has been assigned to the undersigned for all pretrial proceedings.
The parties have filed identical motions in each of the above cases. For ease of reference, the Court refers to the docket entries for these motions as filed in the original case, Bartlett et al v. South Carolina Department of Corrections et al., 2:17-cv-03031-RMG-MGB.
For the reasons set forth below, the undersigned recommends granting in part and denying in part the Motion for Summary Judgment (Dkt. No. 62). Specifically, the undersigned recommends that summary judgment be denied as to Plaintiffs Brandon Bartlett and Keith Simpson because genuine issues of material fact exist as to whether the administrative remedy process was unavailable as a "dead end" to these Plaintiffs. The undersigned recommends summary judgment be granted as to the federal claims of Plaintiffs Chris Ford and Cedric Robinson based on their failure to exhaust administrative remedies. It is recommended that the district court decline to exercise supplemental jurisdiction over any state law claims asserted by Ford and Robinson and remand such claims to state court. See 28 U.S.C. § 1367(c)(3). In addition, the undersigned denies Defendants' Motion Stay Discovery (Dkt. No. 62).
BACKGROUND
This civil action arises from alleged inmate stabbings or attacks occurring at Lieber Correctional Institution ("Lieber"). Plaintiffs were incarcerated in Lieber during the events alleged in the Complaint. (Dkt. No. 1-1.) Plaintiffs each allege that they were separately assaulted by other inmates in 2016 and 2017 while at Lieber. (Id. ¶¶ 23-99.) Plaintiffs allege that "Lieber Correctional Institution. . . has a long history of violence among inmates housed in the institution and many times the violence is encouraged and/or condoned by the Defendants as the perpetrators are not punished . . . ." (Id. ¶ 13.) Plaintiffs allege that Defendants failed "to keep weapons out of the hands of inmates housed at Ridgeland [sic] Correctional Institution." (Id. ¶ 14.) Plaintiffs allege that "Lieber Correctional Institution and other SCDC institutions are severely understaffed due to the failure to hire sufficient officers and due to a large number of turnovers." (Id. ¶ 18.) Plaintiffs further allege that Lieber allows "inmates from one wing into another wing," thereby permitting "inmates who are suppose[d] to be kept apart to be together, [which] facilitate[es] fights and stabbings." (Id. ¶ 19.) According to Plaintiffs, these practices by Lieber violate SCDC's policies and procedures. (Id. ¶¶ 13-22.)
Plaintiffs allege that Defendants "acted in a negligent, grossly negligent, reckless, willful, wanton, and with a deliberate indifferent manner in causing injury to the Plaintiffs" by, inter alia, "allowing uncontrolled violence in the correctional institution, . . . failing to provide protection and security for the Plaintiff, [and] . . . in failing to discipline its correctional officers for violations of SCDC policies and procedures." (Id. ¶ 104.) According to Plaintiffs, such conduct violated their constitutional rights as well as their rights under the South Carolina Tort Claims Act. Plaintiffs seek injunctive and declaratory relief as well as actual, consequential, special damages, and punitive damages. (Id. at 15, 22.)
On June 4, 2019, Defendants filed a Motion for Summary Judgment/Motion to Stay Discovery (Dkt. No. 62). Plaintiff filed a response in opposition on June 18, 2019 (Dkt. No. 71), and Defendants filed a reply brief on July 25, 2019 (Dkt. No. 84). Defendants' motion has been fully briefed and is ripe for disposition.
STANDARD OF REVIEW
Defendants seek dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure on the basis that Plaintiffs have failed to exhaust their administrative remedies. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "To survive a motion for summary judgment asserting he failed to exhaust [his administrative remedies], an inmate is required to produce competent evidence to refute the contention that he failed to exhaust." Noe v. S.C. Dep't of Corr., No. 818-cv-00256-DCC-JDA, 2019 WL 2090564, at *3 (D.S.C. Mar. 6, 2019), adopted by, 2019 WL 2089275 (D.S.C. May 13, 2019) (citing Hill v. Haynes, 380 F. App'x 268, 270 (4th Cir. 2010) (holding that "to withstand a motion for summary judgment, the non-moving party must produce competent evidence sufficient to reveal the existence of a genuine issue of material fact for trial")).
In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). "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.
DISCUSSION
Defendants seek dismissal of this lawsuit on the basis that each Plaintiff failed to exhaust their administrative remedies. (Dkt. No. 62.) Defendants also ask that the Court stay discovery on the merits until the exhaustion issue has been resolved. (Id. at 11.)
A. Exhaustion of Administrative Remedies
1. Exhaustion of Administrative Remedy Process
Section 1997e(a) of the Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Through the enactment of this statute, "Congress has mandated exhaustion clearly enough, regardless of the relief offered through administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001); see also Porter v. Nussle, 534 U.S. 516 (2002).
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones v. Bock, 549 U.S. 199, 218 (2007). An inmate's failure to "properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983." Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002); see also White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (upholding dismissal of an inmate's complaint because the inmate failed to proceed beyond the first step in the administrative grievance process).
The SCDC grievance procedure is outlined in SCDC Policy GA-01.12 ("Inmate Grievance System"). (Dkt. No. 63.) Subject to certain exceptions, the Inmate Grievance System requires that inmates initially attempt to resolve grievances informally by "submitting a Request to Staff Member Form to the appropriate supervisor/staff within eight (8) working days of the incident." (Id. ¶ 13.2.) Informal resolution is not required, however, when "the matter involves allegations of criminal activity." (Id.) With respect to criminal activity complaints, the inmate must file Form 10-5 Step 1 within five working days of the alleged incident. (Id.) The Inmate Grievance System provides:
Any grievance which alleges criminal activity will be referred immediately to the Chief/designee, Inmate Grievance Branch. The IGC will note on the grievance tracking CRT screen that the grievance has been forwarded to the Inmate Grievance Branch for possible investigation by the Division of Investigations and the date on which the grievance was forwarded. The Chief/Designee, Inmate Grievance Branch, will consult with the Division of Investigations to determine if a criminal investigation would be appropriate. If deemed appropriate, the grievance will be forwarded to the Division of Investigations, to be handled in accordance with applicable SCDC policies/procedures. The grievance will be held in abeyance until the Division of Investigations completes their review/investigation.(Id. ¶ 15.) If it is determined that a criminal investigation is not required, the grievance will be processed in accordance with the procedures applicable to non-criminal activity grievances. (Id.)
If an inmate files a Step 1 grievance that does not involve criminal activity, the Warden is required to respond in writing within 45 days and advise the inmate of his right to appeal to the next level:
The Warden will respond to the grievant in writing (in the space provided on SCDC Form 10-5, Step 1), indicating in detail the rationale for the decision rendered and any recommended remedies. The grievant will also be informed of his/her rights to appeal to the next level. The Warden will respond to the grievant no later than 45 days from the date the grievance was formally entered into the OMS system by the IGC. The response will be served by the IGC to the grievant, within ten (10) calendar days, and the grievant will sign and date the response acknowledging receipt. The IGC will maintain the original grievance for the inmate's grievance file and a copy will be given to the inmate.(Id. ¶ 13.5)
The inmate may then appeal by filing a Form 10-5(a) Step 2 appeal to the Inmate Grievance Coordinator within five days of the receipt of the response. (Id. ¶ 13.7) The appeal is referred to the "responsible official" who is required to make a final decision within 90 days. (Id.)
Alternatively, upon receipt of a Step 1 grievance, the IGC may determine that the Step 1 grievance will not be processed, which would render the grievance "non-grievable." (Id. 13.3) Specifically,
[i]f the IGC determines that the grievance will not be processed, the IGC will note this on the SCDC Form 10-5, Step 1, under "Action Taken by the IGC," maintain the original for the inmate grievance file, enter "non-grievable" into the automated system, and mail a copy of the SCDC Form 10-5, Step 1, to the inmate in a sealed envelope.(Id.) The appropriate way to appeal such an "unprocessed grievance" is not through submission of a Step 2 grievance. Rather,
[u]nprocessed grievances may only be appealed by utilizing SCDC Form 19-11, " Inmate Request To Staff Member," (RTSM) to the Branch Chief within ten (10) days of the grievance being returned to the inmate. The inmate must provide a copy of the unprocessed grievance with the RTSM. The inmate can not file a grievance against the IGC for un-processing the grievance. If the inmate has failed to provide necessary information, or has not signed and dated the grievance, s/he will be given five (5) calendar days to re-file a properly filled out grievance; this will be noted on the Step 1 form with a due back date included. This information will also be entered into the CRT narrative when the grievance is closed as unprocessed. Unprocessed grievances that have been given five (5) days to re-file cannot be appealed to the Branch Chief.(Id.)
2. Unavailability of Administrative Remedy
It is undisputed that Plaintiffs did not exhaust their administrative remedies in accordance with the Inmate Grievance System. Plaintiffs briefly argue that their administrative remedies should be deemed exhausted through "the properly filed grievances by other inmates at Lieber Correctional Institution." (Dkt. No. 71 at 24.) Specifically, Plaintiffs assert that "[i]n 2015, 2016, and 2017 other inmates have filed grievances complaining that the wardens and the correctional officers at Lieber Correctional Institution have permitted inmates to have access to weapons, have failed to provide even minimum security to protect inmates from gang member inmates, and have been deliberately indifferent to the risk of harm inmates face from gang members." (Id.) However, Plaintiffs do not provide any examples of such grievances. Plaintiffs further assert that the Court can "take judicial notice" of past lawsuits against SCDC "for allowing uncontrolled gang violence" in its prisons. (Id. at 25.)
As authority for this novel exhaustion argument, Plaintiffs cite the Fourth Circuit Court of Appeals case, Wilcox v. Brown, 877 F.3d 161 (4th Cir. 2017). (Id. at 26.) In Wilcox, the court explained that a grievance "generally need only be sufficient to alert the prison to the nature of the wrong for which redress is sought." 877 F.3d at 167 n.4. The Wilcox court held that "once a prison has received notice of, and an opportunity to correct, a problem, the prisoner has satisfied the purpose of the exhaustion requirement." Id. (quoting Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013)). Notably, Wilcox addressed only the grievances filed by a single inmate—the court did consider whether grievances filed by one inmate could satisfy the exhaustion requirements for another inmate. There is no basis to find that Wilcox compels finding the exhaustion requirement satisfied on the rationale proffered by Plaintiffs here.
Thus, at issue is whether the administrative remedies were unavailable to Plaintiffs, such that their failures to exhaust do not preclude their claims in this action. "[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). In Ross v. Blake, the Supreme Court set forth three scenarios where the administrative process is considered "unavailable": (1) the administrative process "operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates;" (2) the administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) the "administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation." 136 S.Ct. 1850, 1853-54 (2016).
The examples provided in Ross with respect to the first scenario indicate that a deficiency of this type would be systemic or widespread, or at least not isolated. See Ross, 136 S. Ct. at 1859 (giving the following examples of when an administrative remedy is a dead end: when a prison handbook directs inmates to submit their grievances to a particular administrative office, but in practice that office disclaims authority to consider them; or when administrative officials have apparent authority but decline ever to exercise it). With respect to the third scenario, Ross seems to require that, to prevail on an assertion that prison officials thwarted his efforts to exhaust, an inmate must be able to demonstrate something more than isolated negligence on behalf of prison officials. Id. at 1860 n.3 (citing cases where correctional facilities staff misled the inmate about the existence of a process or its rules; used threats or intimidation; or misled him into thinking he had done everything necessary to use the process).
To prove unavailability, the inmate must "adduce facts showing that he was prevented, through no fault of his own, from availing himself of that procedure." Graham v. Gentry, 413 Fed. App'x 660, 663 (4th Cir. 2011). "The district court is 'obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials.'" Zander v. Lappin, 415 F. App'x 491, 492 (4th Cir. 2011) (quoting Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007)).
a. Analysis
In support of their motion for summary judgment based on Plaintiffs' failure to exhaust their administrative remedies, Defendants submitted affidavits from Sherman Anderson, the Chief of Inmate Grievance Branch for SCDC (Dkt. Nos. 62-2; 62-3, 62-4; 62-5) and the deposition testimony of Institutional Grievance Coordinator Betty Thomas (Dkt. No. 84-1.) Defendants also submitted, inter alia, the grievances and kiosk requests at issue (Dkt. Nos. 63-4; 63-6; 63-10; 63-14; 63-17; 63-18) and Plaintiffs' bed histories (Dkt. Nos. 63-5; 63-12).
In their response to Defendants' motion, Plaintiffs submitted, inter alia, their own affidavits (Dkt. Nos. 71-4; 71-8; 71-10; 71-12) as well as an affidavit from their expert, James Aiken (Dkt. No. 71-3.)
Having carefully reviewed the evidence submitted by the parties, the undersigned makes the following recommendations:
Plaintiff Brandon Bartlett
The Complaint alleges that Plaintiff Brandon Bartlett ("Bartlett") was assaulted by "a number of inmates" on April 17, 2017, at Lieber Correctional Institution. (Dkt. No. 1-1 at 9.) He was first assaulted in his room when "the correctional officer on duty . . . failed to relock all the doors after the inmates had left for breakfast"—Bartlett was hit in the nose and stabbed in his left arm. (Id.) Bartlett was again assaulted when he "went downstairs to the flood zone"—he was stabbed six more times. (Id.) Following the attack, Bartlett was taken "by EMS to Trident hospital." (Id.) He had a collapsed lung and stayed at the hospital for three days. (Id.)
On April 25, 2017, Bartlett submitted an "Inmate Request" to the "Investigations Department" stating that he was attacked and stabbed by several inmates on April 17, 2017, after "Officer Butler" unlocked the doors and left them unlocked for hours. (Dkt. No. 63-4 at 1.) The request states that following the second stabbing incident, Bartlett was transported to Trident Hospital for his "wounds and lungs." (Id.) The request states that "the failure to secure the cell doors is a direct violation to security procedures especially with the lack of staff . . . ." (Id.) The "Request Response" dated April 25, 2017 states, "This is currently being investigated by Police Services. The case is still an open/active case." (Id.)
On April 26, 2017, Bartlett filed an "Inmate Request" under the "Request Type, Grievance," stating he is filing a "grievance in regards" to the April 17, 2017 incident, again noting he was attacked when an officer left the doors unlocked. (Dkt. No. 63-4 at 2.) The request also states Bartlett was "attacked in [his] room this morning and the altercation ended when [he] was attacked again and transferred to Trident Memorial Hospital with 6 stab wounds." (Id.) The "Request Response" dated April 26, 2017, states "You can't file a grievance through a kiosk system. You must complete a 10-5 and place it in the grievance box." (Id.)
On May 12, 2017, Plaintiff submitted a Step 1 grievance stating he was attacked in his cell on April 17, 2017, "after officers came and unlocked all cell doors at approx. 5:30-7:30 AM and continued to leave them unlocked." (Dkt. No. 63-6 at 2.) After recounting the assaults, the grievance states, "I don't understand why I'm here and not at Kirkland Correctional or back on my level 2 I'm ME-02 I came from Tyger River Corrections . . . before Lee County." (Id.) Under "Action Requested," Bartlett asks "To be transferred to a level 2 and either Tyger River or Allendale Corrections; handle in courts or civil restitutional agreement, through the attny's; see mental health get back to schooling and a non-violent institution; need victim Rule 5 in this matter." (Id.)
Under "Action Taken By IGC," the form lists three boxes: "processed," "unprocessed," and "other." The box marked "other" is checked, with the following response from Inmate 12 Grievance Coordinator Betty Thomas, dated May 30, 2017: This grievance is being returned per GA-01.12 Inmate Grievance System NON-GRIEVABLE
Please review the above policy, it is important that you follow instructions given within policy. Your grievance file requesting a transfer, when this is a non-grievable issue, unless you can prove criminal activity. In your grievance your issues are not clear or specific. Any further concern discuss with Classification Caseworker.(Id.)
On June 1, 2017, Bartlett filed another Step 1 grievance again stating he was assaulted on April 17, 2017, and asking that "mental health inmates" be protected from "gang affiliates" who are "not actually mental health" inmates. (Dkt. No. 63-6 at 1.) Under "Action Requested," Bartlett states he is "requesting the classification and mental health try to resolve this problem . . . ." Under "Action Taken By IGC," the box marked "other" is again checked, with a response from Inmate Grievance Coordinator Betty Thomas, dated June 1, 2017, stating Bartlett "failed to attach the answered Request to Staff Form/Automated Request to Staff regarding your informal resolution attempt on this issue through the appropriate staff prior to filing this grievance." The response further states, "You may re-file the answered RTSM/ARTSM through the appropriate staff within (5) days of receiving a response. However, if you have already submitted (5) grievances for the month, the grievance will not be accepted or processed." (Id.)
Defendants assert that Bartlett did not exhaust his administrative remedies because he "did not properly file/complete any grievance . . . following the alleged assault of April 17, 2017." (Dkt. No. 62-1 at 4.) They argue his grievances were untimely filed. In his affidavit, Sherman Anderson avers that if Bartlett disagreed with the responses given to his Step 1 grievances, he should have appealed the IGC's decision as directed in section 13.3 of the "Grievance Policy." (Dkt. No. 62-2 at 11.) Anderson avers that Bartlett "was not offered a Step 2 grievance form" in these instances "because he had not successfully completed Step 1 grievance as per policy." (Id. at 12.)
As discussed above, section 13.3 provides instructions on how to appeal "unprocessed grievances." (Dkt. No. 63 at 8.) Importantly, this section states that "If the IGC determines that the grievance will not be processed, the IGC will note this on the SCDC Form 10-5, Step 1, under "Action Taken by the IGC," . . . (Id.) Here, the responses to Bartlett's Step 1 grievances did not indicate they were being returned as "unprocessed." Rather, they were both marked as "other" under "Action Taken by the IGC," rather than "unprocessed." The May 30, 2017 response directed Bartlett to address "any further concern . . . with Classification Caseworker." The June 1, 2017 response indicated Plaintiff needed to re-file the Step 1 grievance with proof of an informal resolution attempt on the issue raised in the grievance.
Construing the evidence in the light most favorable to Bartlett, neither of the above responses indicated that Bartlett should follow the appeal process for an "unprocessed grievance" in order to attempt to exhaust his grievance. Further, Anderson expressly avers that Bartlett was "not offered" a Step 2 grievance form in these instances. (Dkt. No. 62-2 at 12.) Likewise, Thomas testified in her deposition that "Step 2 grievances are only distributed upon the serving of the Step 1 grievance from the grievance coordinator to the inmate." (Dkt. No. 84-1 at 60.) Thus, it is difficult to fathom how Bartlett was expected to exhaust his administrative remedies with respect to these Step 1 grievances—there was no express indication that the grievances were being returned "unprocessed" and Bartlett was "not offered" any Step 2 grievance forms. In his affidavit, Bartlett states "SCDC has intentionally prohibited me from filing my Step 2 grievance in this matter and made the grievance process unavailable by refusing to give me a Step 2 grievance form." (Dkt. No. 71-5 at 3.)
Further, it is not clear that an informal resolution attempt was required with respect to Bartlett's June 1, 2017 grievance. This grievance mentions Bartlett's assault, specifically references "gang affiliates," and notes the danger of assault to mental health inmates by these affiliates. The mention of gang affiliates and inmate on inmate assault would likely put the conduct at issue under the category of "criminal activity" as contemplated by the Inmate Grievance System. Accordingly, the fact that Bartlett failed to informally attempt to resolve this grievance does not mean that he failed to meet the exhaustion requirement as a matter of law.
Thomas offers confusing testimony on this issue. At certain parts of her deposition she indicates that a grievance about inmate on inmate assault would allege criminal activity. (Dkt. No. 84-1 at 47, 49.) She later indicates that such allegations would need to "clearly state in the grievance who assaulted him, when they assaulted him, where they assaulted him . . . [to] be categorized as inmate-on-inmate assault." (Id. at 54.) The Inmate Grievance System does not clarify this issue.
Finally, with respect to the timeliness of Bartlett's grievances, his kiosk requests and May 12, 2017 grievance reference his hospitalization due to injuries from the assaults. Thus, an exception could have been made for the untimely filing under the Inmate Grievance System section 13.10, which allows exceptions to the 8-day time limit "provided that the inmate can show reasonable cause, i.e., inmate physically unable to initiate grievance due to hospitalization . . . ." (Dkt. No. 63 at 10.)
Given these findings and the SCDC's alleged failure to provide Bartlett the opportunity to properly appeal the responses to his Step 1 grievances, the undersigned finds an issue of material fact as to whether the Inmate Grievance System operated as a "dead end" in this instance, rendering the administrative remedy process unavailable to Bartlett with respect to the April 17, 2017 assaults. See Wilson v. Eagleton, No. 1:18-cv-0050-RMG, 2018 WL 4908277, at *3 (D.S.C. Oct. 10, 2018) (finding administrative remedies were unavailable to the plaintiff where "the record supports finding that Defendants were 'consistently unwilling' to engage with Plaintiff's grievances, which Defendants were empowered to consider, but nonetheless 'declined [ ] to exercise' their authority to review"); Mann v. Scott, No. 0:14-cv-3474-RMG, 2015 WL 5165198, at *5 (D.S.C. Sept. 1, 2015) ("The Court finds that the prison's failure to respond to Plaintiff's RTS's made an administrative remedy unavailable in this case, excusing his resulting failure to exhaust prior to filing suit. The Motion for Summary Judgment is denied as to its administrative exhaustion grounds."); Widener v. City of Bristol, No. 1:13-cv-00053, 2014 WL 3058560, at *3-4 (W.D. Va. July 2, 2014) (denying defendants' summary judgment motion based on non-exhaustion in light of evidence "that the plaintiff attempted to fully exhaust the administrative remedies available to him before filing this suit" and the defendants' failure to meet their burden of proving that the plaintiff's efforts did not constitute exhaustion). Indeed, the confusion over what constitutes an "unprocessed grievance" that would trigger the appeal process contemplated in section 13.3 of the Inmate Grievance System appears be a systemic deficiency as contemplated by Ross. See Ross, 136 S.Ct. at 1859-60 (explaining that administrative remedies may be deemed "unavailable" when the administrative process "operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates").
Accordingly, summary judgment should be denied to Defendants as to Bartlett's federal claims on the issue of exhaustion.
Plaintiff Chris Ford
The Complaint alleges that "on or about May 26, 2016," Plaintiff Chris Ford ("Ford") was assaulted while incarcerated at Lieber Correctional Institution. (Dkt. No. 1-1 at 13.) Specifically, Ford alleges that he was "lying on his bed when his room was snatched open and several inmates came in and began stabbing him." (Id.) Ford alleges he looked for a correctional officer "when his attackers left," but could not locate anyone—there was no correctional officer on the wing and the doors were not locked. (Id.) Ford alleges he was attacked again when he returned to his room—"he was struck in the head with a homemade ax and stabbed another 8 or 9 times." (Id.) According to Ford, he was then taken "to Trident Hospital where he stayed for 3 or 4 days." (Id.) Ford alleges that after leaving the hospital, he was "taken to Kirkland Infirmary where he remained until he was transferred to Perry Correctional Institution on or about June 7, 2016." (Id.)
It is undisputed that Ford did not submit any grievances or informal requests related to this alleged assault. In his affidavit, Ford avers that "Kirkland Infirmary SCDC didn't have any grievance forms." (Dkt. No. 71-10 at 2.) He further avers that "When I returned from the hospital[,] I requested grievance forms on several occasions from SCDC officials. However, they refused to provide me the forms. Kirkland CI didn't have the grievance forms and no kiosk." (Id. at 3.)
Defendants have submitted Ford's bed history, which indicates that he was transferred to Kirkland Infirmary on May 29, 2016, and then to Perry Correctional Institution ("Perry") on June 7, 2016. (Dkt. No. 84-1 at 65.) Defendants note that Ford does not make any assertions about requesting grievance forms upon his arrival at Perry Correctional Institution. They have provided kiosk requests Ford submitted at Perry in June and July of 2016, including two submitted on June 10, 2016. (Dkt. No. 84-1 at 67-76.) According to Defendants, the evidence indicates Ford could have engaged in the grievance process when he arrived at Perry Correctional Institution, only eight days after he transferred from Lieber. (Id. at 65.)
When construed in the light most favorable to Ford, the evidence does not present a genuine issue of material fact as to whether the grievance process was unavailable to him. Ford's affidavit only expressly references his attempts to obtain grievance forms at Kirkland Infirmary and Kirkland Correctional Institution, where he stayed for approximately eight days. To survive a motion for summary judgment asserting he failed to exhaust his administrative remedies, an inmate is required to produce evidence in response to the motion that refutes the claim that he failed to exhaust. Here, Ford has not produced any evidence pertaining to his attempts to file a grievance when he arrived at Perry Correctional Institution. The evidence submitted by Defendants indicates the kiosk system was readily available at Perry and used by Ford on many occasions in June of 2016. Given Ford's time spent recovering from his injuries at Kirkland Infirmary, it is likely the timeliness requirement would be waived for grievances filed relating to his alleged assault. In short, Ford has failed to exhaust his administrative remedies and failed to establish material issues of fact as to whether the grievance process operated as a "dead end" in this instance.
The evidence indicates Ford stayed only at Kirkland Infirmary rather than both Kirkland Infirmary and Kirkland Correctional Institution.
Accordingly, summary judgment should be granted to Defendants as to Plaintiff Chris Ford's federal claims based on his failure to exhaust administrative remedies. Further, it is recommended that the district court decline to exercise supplemental jurisdiction over any state law claims asserted by Ford and remand such claims to state court. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if- . . . (3) the district court has dismissed all claims over which it has original jurisdiction.").
Plaintiff Cedric Robinson
The Complaint alleges that "on or about May 2016," Plaintiff Cedric Robinson ("Robinson") was assaulted while incarcerated at Lieber Correctional Institution. (Dkt. No. 1-1 at 14.) Specifically, Robinson alleges that after returning from his shower, he was waiting for a correctional officer to unlock his door. (Id.) Robinson alleges that he then "heard someone coming up behind him" and was stabbed several times. (Id.) He was eventually taken to the hospital for treatment and later returned to Lieber "and [was] placed in another dorm but not in protective custody." (Id.) According to Robinson, he "told classification at Kirkland Retention and Evaluation that he would not be safe if he were housed at Lieber Correctional Institution because the person who he was convicted of killing (for voluntary manslaughter) had family members who were incarcerated at Lieber." (Id.)
Defendants have provided a "MIN Narrative" for Robinson dated April 21, 2016. (Dkt. No. 63-11.) This narrative states that Robinson told Sargent Deborah Cole on April 21, 2016, that "he was stabbed earlier and he was in pain." (Id.) Robinson was then escorted to medical. (Id.) He "stated that several inmates attacked him near his assigned cell Edisto A-43. . . . The inmate was transported to Trident Hospital for further treatment." (Id.)
On April 30, 2016, Robinson submitted a kiosk request asking to be kept "in S-B." (Dkt. No. 63-14.) He explains that he "was moved from E-A because I was assaulted and injured." He states that on April 16, 2016, he "was charged with an 854. Warden the information Sgt. Carter gave is incorrect, that was my roommate . . . . please advise me how to handle this situation." (Id.) The "request response" dated May 2, 2016, states "There is nothing that can be done except advise you to get ready for your hearing. Once you are charged nothing can be done until after the hearing." (Id.)
Robinson filed another kiosk request on May 1, 2016 stating,
Warden McFadden, my incident that happened in E-A were [sic] I was stabbed only involved the guy in room 6, I was approached and someone said that two other people were charged, one out of room 33 and one out of room 15. Sir that is not correct it was only the guy in room 6, who ever charged the other people are making things worse for me because they are not true. Could you please look into it and see what you can do, this is only causing more conflict for me. Thank you Sir.(Dkt. No. 63-14 at 2.) The "request response" dated May 2, 2016 states, "You need to contact Ms. Bachman DHO. Send her a paper request." (Id.)
In his affidavit, Robinson avers that Defendants incorrectly assert that he "failed to make any attempt to file a grievance." (Dkt. No. 71-12 at 2.) Robinson avers that "on April 30, 2016 I submitted a grievance to Warden McFadden stating that I was assaulted and that I didn't feel safe." (Dkt. No. 71-12 at 2.) Robinson avers he "filed another request" on May 2, 2016 "stating that I was stabbed . . . ." (Id. at 3.) Robinson also avers
I requested grievance forms on several occasions from SCDC officials. They refused to provide me the forms. Additionally, SCDC informed me they were not going to address my concerns in their May 2, 2016 response. SCDC has intentionally prohibited me and made the grievance process unavailable by refusing to give me forms and telling me there is nothing they can do for my concerns.(Id.)
He states that SCDC refuses
to provide you with the necessary forms but then will say the forms are available in the library or from some other location. If an inmate cannot get to the library, the inmate cannot get the form. If the dorm is on lock down or an inmate is on lock up, the inmate has to request forms from a correctional officer.(Id.)
As an initial matter, Robinson's affidavit is confusing because he avers that he was "refused" grievance forms "on several occasions" but he also states that he "submitted a grievance" on April 30, 2016. There is no evidence in the record that Robinson filed a Step 1 grievance. While Robinson filed two kiosk requests referencing his assault, these requests do not mention the involvement of any correctional officers or imply that the assault was related to the negligence of any officers. Robinson's assertion that "SCDC informed me they were not going to address my concerns in their May 2, 2016 response" is misleading. As discussed above, the kiosk request to which the response at issue was directed concerns "an 854" charge, which he believes "is incorrect" and was meant for his "roommate." (Dkt. No. 63-14 at 1.) The response here is not evidence that SCDC refused to address any failure to protect claims—such concerns were not raised in Robinson's kiosk requests.
Also, Robinson's affidavit indicates that grievance forms are available "in the library or some other location" unless "an inmate cannot get to the library" or "if the dorm is on lock down or an inmate is on lock up, the inmate has to request forms from a correctional officer." Robinson does not aver that he personally was prevented from obtaining a grievance form from the prison library or another designated location—his ability to submit kiosk requests indicates these avenues were available to him. Further, his affidavit is vague as to which "SCDC officials" allegedly refused to provide him grievance forms.
Based on the foregoing, the evidence does not present a genuine issue of material fact as to whether the grievance process was unavailable to Robinson. To survive a motion for summary judgment asserting he failed to exhaust his administrative remedies, an inmate is required to produce evidence in response to the motion that refutes the claim that he failed to exhaust. While Robinson avers that "SCDC officials" refused to provide him grievance forms, he indicates there are other avenues to obtain grievance forms. Here, there is no evidence those other avenues were not available to Robinson. In short, Robinson has failed to exhaust his administrative remedies and failed to establish material issues of fact as to whether the grievance process operated as a "dead end" in this instance.
Accordingly, summary judgment should be granted to Defendants as to Plaintiff Cedric Robinson's federal claims based on his failure to exhaust administrative remedies. Further, it is recommended that the district court decline to exercise supplemental jurisdiction over any state law claims asserted by Robinson and remand such claims to state court. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if- . . . (3) the district court has dismissed all claims over which it has original jurisdiction.").
Plaintiff Keith Simpson
The Complaint alleges that Plaintiff Keith Simpson ("Simpson"), a diabetic, was assaulted on May 7, 2016, at Lieber Correctional Institution, after he returned to his dorm from medical for an insulin shot. (Dkt. No. 1-1 at 12.) Simpson alleges that Defendant Correctional Officer Dennis walked by Simpson's room "and did not lock his door." (Id.) Shortly thereafter, "several inmates with towels wrapped around their heads entered into his room and began beating him with sticks and stabbing him with shanks; the attack lasted approximately 15 to 20 minutes." (Id.) Simpson alleges that he stayed in his room "all night even through count and no correctional officer helped him even though there was blood all over the room." (Id.) According to Simpson, he was eventually taken to the Medical University of South Carolina after "medical came to his room to give him the insulin and found him all bloody." (Id.) Simpson suffered a nasal bone fracture and laceration from the assault. (Id.)
On May 18, 2016, Simpson submitted a Step 1 grievance stating he was "assaulted by unknown persons" on May 7, 2016. (Dkt. No. 63-18 at 3.) The grievance further states, "My grievance is why the state won't hire more personnel. If more personnel had been available, this issue possibly might not have happened. Without proper personnel in place, the state is not providing proper security for the wards of the state." (Id.) Under "Action Taken by IGC, dated May 19, 2016, it states "returned," and "no informal." Under "Warden's Decision and Reason," it states, "Your grievance has been processed," and explains the grievance is being returned because Simpson failed to provide an answered Request to Staff Form or responses to Automated Request to Staff. (Id. at 4.) It directs Simpson to resubmit his grievance "on a new 10-5 Step 1 Grievance Form with the above mentioned requirements so your grievance may be properly investigated. If resubmitted, it must be received by MAY 24, 2016 with this returned grievance attached for date verification. If not received by this date this issue will be closed." (Id.)
On May 21, 2016, Simpson submitted a kiosk request stating he was "assaulted by unknown persons in Cooper B Side" on May 7, 2016. (Dkt. No. 63-17.) The request further states, "Why the state won't hire more personnel. If more personnel had been available, this issue possibly might not have happened. Without proper personnel in place, the state is not providing proper security for the wards of the state." (Id.) The "request response" dated June 2, 2016, states "We are always looking for people to hire. It's not easy trying to find the right people to work in a prison." (Id.)
On June 4, 2016, Simpson submitted another Step 1 grievance stating he was "assaulted by unknown persons in Cooper B Side" on May 7, 2016. (Dkt. No. 63-18 at 1.) The request further states, "Why the state won't hire more personnel? If more personnel had been available, this issue possibly might not have happened. Without the proper personnel in place, the state is not providing proper security for the wards of the state." (Id.) Under "Specify how and when informal resolution was attempted by grievant," Simpson writes, "I wrote security and got a reply on June 2, 2016 . . ." (Id.) Thomas responded to this Step 1 grievance on July 5, 2016, stating in part, "Your allegations of being assaulted by an unknown person cannot be substantiated. SCDC will continue to monitor security in particular and in general the issue that you have raised. Predicated on the information available, your grievance is denied. If you are not satisfied with my response, you may exercise the option that is set forth below in paragraph 5." (Id. at 2.)
Defendants assert that Simpson did not exhaust his administrative remedies because while he "did successfully complete Step 1 of the Grievance process, he did not complete Step 2 of the Grievance process and therefore did not properly exhaust his administrative remedies following the assault of May 7, 2016. (Dkt. No. 62-1 at 4-5.) They further assert that "Thomas provided a Step 2 grievance form to Simpson to assist him in completing the grievance process. SCDC did not prevent Simpson from filing a Step 2 grievance." (Dkt. No. 84 at 5.) They provide no evidence to support this assertion, however. Thomas does not expressly aver that she provided Simpson with a Step 2 grievance form, and Simpson's affidavit testimony belies Defendants' assertion. Specifically, in his affidavit, Simpson avers that "SCDC refused to provide me with this [Step 2 grievance] form because they stated my previously filed grievances were unprocessed. SCDC has intentionally prohibited me from filing my Step 2 grievance in this matter and made the grievance process unavailable by refusing to give me a Step 2 grievance form." (Dkt. No. 71-8 at 3.)
In addition, Anderson provides confusing testimony on the steps Simpson should have taken to exhaust his administrative remedies. Specifically, Anderson avers that Simpson should have "continue[d] the process by filing a Step 2 grievance form, as required by policy." (Dkt. No. 62-5 at 9.) He also avers that Simpson's grievances "briefly mention[] his alleged assault," and that "the real issue he is addressing in his grievances is staffing levels. Simpson does not address failure to protect or inadequate medical care." (Id.) Anderson appears to assert Simpson failed to exhaust his administrative remedies both by failing to give notice of his failure to protect claim in the grievances and by failing to submit a Step 2 grievance.
Construing the evidence in the light most favorable to Simpson, there is a genuine issue of material fact as to whether Simpson was refused a Step 2 grievance form and thereby prevented from properly appealing his grievance. In her deposition, Thomas testified that "Step 2 grievances are only distributed upon the serving of the Step 1 grievance from the grievance coordinator to the inmate." (Dkt. No. 84-1 at 60.) Simpson has averred that he was refused a Step 2 grievance form. (Dkt. No. 71-8 at 3.) Thus, it is difficult to fathom how Simpson was expected to exhaust his administrative remedies with respect to the above Step 1 grievances if he was was "not offered" any Step 2 grievance forms.
To the extent Defendants assert Simpson should have followed the appeal process for an "unprocessed grievance," this argument is without merit. When the May 18, 2016 grievance was returned to Simpson, the response expressly stated, "Your grievance has been processed." (Dkt. No. 63-18 at 4.) In addition, the June 4, 2016 grievance was expressly "denied." (Id. at 2.) Given the responses to his Step 1 grievances, there was no indication to Simpson that he needed to follow the appeal process for "unprocessed grievances."
Further, it is not clear that an informal resolution attempt was required with respect to Simpson's May 18, 2016 grievance. (Dkt. No. 63-18 at 3.) This grievance mentions Simpson's assault "right before lock-down . . . by unknown persons." The mention of assault would likely put the conduct at issue under the category of "criminal activity" as contemplated by the Inmate Grievance System. Accordingly, the fact that Simpson failed to informally attempt to resolve this grievance does not mean that he failed to meet the exhaustion requirement as a matter of law. In addition, this mention of the assault in the grievance is sufficient to satisfy the notice requirement under Wilcox. See Wilcox, 877 F.3d at 167 n.4 (stating a grievance "generally need only be sufficient to alert the prison to the nature of the wrong for which redress is sought").
Thomas offers confusing testimony on this issue. At certain parts of her deposition she indicates that a grievance about inmate on inmate assault would allege criminal activity. (Dkt. No. 84-1 at 47, 49.) She later indicates that such allegations would need to "clearly state in the grievance who assaulted him, when they assaulted him, where they assaulted him . . . [to] be categorized as inmate-on-inmate assault." (Id. at 54.) The Inmate Grievance System does not clarify this issue.
Given these findings and the SCDC's alleged failure to provide Simpson the opportunity to properly appeal the responses to his Step 1 grievances, the undersigned finds an issue of material fact as to whether the Inmate Grievance System operated as a "dead end" in this instance, rendering the administrative remedy process unavailable to Simpson with respect to the May 7, 2016 assault. See Ross, 136 S.Ct. at 1859-60; see also Wilson, 2018 WL 4908277, at *3; Mann, 2015 WL 5165198, at *5; Widener, 2014 WL 3058560, at *3-4.
Accordingly, summary judgment should be denied to Defendants as to Simpson's federal claims on the issue of exhaustion.
B. Request to Stay Discovery
Defendants also briefly ask that the Court stay discovery on the merits until exhaustion is determined. (Dkt. No. 62-1 at 11.) However, it appears the discovery deadline has already passed and the dispositive motions deadline on the merits of Plaintiffs' claims is October 7, 2019. (Dkt. Nos. 76; 83.) Indeed, at this point in litigation, it is unclear what need for discovery remains. Accordingly, the undersigned denies Defendants' request to stay "discovery on the underlying merits until such time as the issue of exhaustion has been determined." (Dkt. No. 62-1 at 12.) If this action survives summary judgment on the merits, the undersigned recommends the Court decide the exhaustion issue as to Plaintiffs Bartlett and Simpson prior to any jury trial.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Defendants' Motion for Summary Judgment for failure to exhaust administrative remedies (Dkt. No. 62) be GRANTED IN PART AND DENIED IN PART. Specifically, the undersigned recommends that summary judgment be granted as to Plaintiffs Chris Ford and Cedric Robinson and be denied as to Plaintiffs Brandon Bartlett and Keith Simpson. Should the District Court adopt this recommendation, the state law claims of Plaintiffs Ford and Robinson should be remanded to state court.
In addition, the undersigned DENIES Defendants' request to stay discovery on the merits (Dkt. No. 62). If this action survives summary judgment on the merits, the undersigned recommends the Court decide the exhaustion issue as to Plaintiffs Bartlett and Simpson prior to any jury trial.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE August 14, 2019
Charleston, South Carolina
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).