Opinion
C.A. No. 2:18-cv-01491-RMG-MGB
10-18-2018
Robbie Collins, #290946, Plaintiff, v. Warden C. Williams, M.C.I.; Byron Stirling, SCDC Director; and S. Williams, Grievance Coordinator, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brought this action pursuant to Title 42, United States Code, Section 1983. This matter is before the Court on a Motion to Dismiss filed by Defendants Warden C. Williams, Byron Stirling, and S. Williams (collectively, "Defendants"). (Dkt. No. 22.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons stated herein, the undersigned recommends that Defendants' Motion to Dismiss be granted in part and denied in part.
BACKGROUND
On June 2, 2018, Plaintiff filed a Complaint for Violation of Civil Rights (Dkt. No 1), and attached a list of issues (Dkt. No. 1-1); inmate grievance forms from the South Carolina Department of Corrections ("SCDC") (Dkt. No. 1-2 at 1-10, 13-14, 16-17); emergency procedures under the SCDC Inmate Grievance System (Dkt. No. 1-2 at 15); and the Declaration of James Brawner (Dkt. No. 1-2 at 11-12). On June 6, 2018, the undersigned issued an Order giving Plaintiff a specified period of time to bring the instant case into proper form. (Dkt. No. 8.) Plaintiff complied with that Order and filed an Amended Complaint on June 25, 2018. (Dkt. No. 11.) Plaintiff attached only the Declaration of James Brawner and an SCDC Request to Staff Member ("RTSM") form to his Amended Complaint. (Dkt. No. 11-1.) Although this case is proceeding upon Plaintiff's Amended Complaint, the Court also incorporates by reference the exhibits attached to Plaintiff's original Complaint as if included fully herein.
Plaintiff names the following Defendants in his Amended Complaint: C. Williams, Warden at McCormick Correctional Institution ("MCI"); Byron Stirling, Director of SCDC; and S. Williams, Grievance Coordinator at MCI. (Dkt. No. 11 at 2-3.) More specifically, Plaintiff alleges: (1) Defendant Warden C. Williams denied Plaintiff his right to medical treatment and outdoor recreation; (2) Defendant Stirling denied Plaintiff his First Amendment right to freedom of religion; and (3) Defendant S. Williams denied Plaintiff access to the SCDC grievance process. (Dkt. No. 11 at 4.)
Liberally read, Plaintiff's Amended Complaint may also be attempting to assert claims for cruel and unusual punishment and deliberate indifference to a serious medical need. (Dkt. No. 11 at 4.)
A. Medical Treatment
Plaintiff alleges that he broke his ribs on April 4, 2018, after being attacked by a group of inmates. (Id. at 5.) According to Plaintiff, the correctional institution's doctor ordered Plaintiff an X-ray and told him that he would receive a "bind," but Plaintiff was transferred to MCI before he received any treatment. (Id.) On April 10, 2018, Plaintiff visited health services at MCI and notified the nurse of his broken ribs. (Id.) After reviewing Plaintiff's file, the nurse told Plaintiff that he would receive an X-ray, and instructed him to fill out a "sick-call request," which he did. (Id.; Dkt. No. 1-1 at 1.)
On April 11, 2018, Plaintiff was placed in the Restrictive Housing Unit ("RHU") for "protective concerns." (Dkt. No. 11 at 5.) While in the RHU, Plaintiff claims he suffered from excruciating pain and, despite asking to see MCI's medical staff, was not treated. (Id.) Plaintiff claims he then submitted an RTSM to Defendant Warden C. Williams seeking medical attention for his broken ribs. (Id.) On April 20, 2018, having received no response from the Warden, Plaintiff filed an emergency Step 1 Grievance ("Grievance No. 0301-18"), stating that Plaintiff had yet to receive medical attention for his ribs, was experiencing increasing stomach pains, and was defecating and urinating blood. (Id.; Dkt. 1-2 at 1.) Plaintiff also indicated in Grievance No. 0301-18 that he "wrote a staff request to Medical" in an attempt to resolve the issue informally, but had not received a response. (Dkt. 1-2 at 1.) Plaintiff requested that he be taken to the hospital as soon as possible. (Id.) Plaintiff claims that the Grievance Coordinator, Defendant S. Williams, "refused to process" Plaintiff's Grievance No. 0301-18. (Dkt. No. 11 at 5.)
SCDC's Grievance Policy requires that inmates first seek informal resolution of an issue before filing a Step 1 Grievance. Inmates may seek informal resolution by sending an RTSM form, or an automated RTSM form through an electronic kiosk, to the appropriate supervisor. (See infra pp. 9-10.) As indicated by the grievance forms attached to Plaintiff's Amended Complaint, inmates must explain "how and when informal resolution was attempted" when filing a Step 1 Grievance. (Dkt. No. 1-2 at 1, 3, 5, 7, 13, 16.)
According to the copy of Grievance No. 0301-18 attached to Plaintiff's Amended Complaint, Defendant S. Williams responded to the grievance on May 14, 2018, and provided the following decision: "You have failed to submit a Request to Staff. You must attach the responded to RTSM or provide the kiosk number." (Dkt. 1-2 at 2.)
On May 1, 2018, Plaintiff went to see the nurse about his ribs and the manner in which they were healing. (Dkt. No. 1-1 at 1.) According to Plaintiff, the nurse was "shocked" at the manner in which Plaintiff's ribs were "protruding out of [his] side," and instructed Plaintiff to file a grievance. (Id.) Plaintiff filed an emergency Step 1 Grievance that same day ("Grievance No. 0236-18"), reiterating that he "sent a Staff Request to Medical" regarding his broken ribs, but had not received any medical attention. (Dkt. No. 1-2 at 3.) Plaintiff then filed an additional emergency Step 1 Grievance on May 6, 2018 ("Grievance No. 0317-18"), stating that he was in excruciating pain and that his ribs were not healing properly. (Dkt. No. 1-2 at 5.) Plaintiff further noted in Grievance No. 0317-18 that he had submitted "a Staff Request to the Warden on April 17, 2018," about his broken ribs, but had not received a response. (Id.)
Plaintiff claims that Defendant S. Williams did not process Grievance No. 0236-18 or Grievance No. 0317-18, and that he was "once again denied access to the Grievance System in violation of SCDC policy." (Dkt. No. 1-1 at 1.) Specifically, Plaintiff claims that Defendant S. Williams told Plaintiff that he could not file a grievance until the staff responded to Plaintiff's RTSM. (Id.; Dkt. No. 11 at 5.) Plaintiff received a response to his RTSM on June 2, 2018, by which time Plaintiff was no longer an inmate at MCI. (Dkt. No. 11-1 at 3.)
According to the copies of Grievance Nos. 0236-18 and 0317-18 attached to Plaintiff's Amended Complaint, Defendant S. Williams responded to the grievances on May 4, 2018, and May 14, 2018, respectively. (Dkt. No. 1-2 at 4-5.) Under "ACTION TAKEN BY IGC," the forms are marked as "PROCESSED." (Id.) In the decision section of Grievance No. 0236-18, Defendant S. Williams provided the following decision: "You have failed to attempt informal resolution by not submitting a Request to Staff to the appropriate official/supervisor, stated no action requested, and specified no date of incident." (Id. at 4.) In the decision section of Grievance No. 0317-18, Defendant S. Williams provided the following decision: "You have failed to submit a Request to Staff. You must attach the responded to RTSM or provide the kiosk number." (Id. at 5.)
This is the only RTSM form Plaintiff attached to his Amended Complaint. It is not entirely clear whether Plaintiff filed more than one RTSM, as he references both an RTSM submitted to "Medical," and an RTSM submitted to Defendant Warden C. Williams. (Dkt. No. 1-2 at 1, 3, 5.) Further, Grievance No. 0317-18 states that Plaintiff submitted an RTSM to Defendant Warden C. Williams on April 17, 2018; however, it appears Plaintiff filed the attached RTSM on April 26, 2018. (Dkt. No. 11-1 at 3.)
B. Outdoor Recreation
Around the same time he was suffering from broken ribs, Plaintiff claims he developed sores in his nose as a result of not having outdoor recreation. (Dkt. No. 11 at 5.) Plaintiff claims that he wrote a separate RTSM to Defendant Warden C. Williams regarding the lack of outdoor recreation time, but that the Warden "came and told [him] personally outside recreation is a privilege not a right and that privilege was not offered at his intuition." (Id.) On May 7, 2018, Plaintiff filed a Step 1 Grievance regarding the outdoor recreation policy ("Grievance No. 0309-18"), stating that he had previous injuries that required exercise. (Id.; Dkt. No. 1-2 at 13.) Plaintiff also noted in Grievance No. 0309-18 that he "sent a Staff Request to Warden C. Williams on April 11, 2018," in an attempt to informally resolve the issue. (Dkt. No. 1-2 at 13.) Plaintiff claims that Defendant S. Williams also refused to process this grievance. (Dkt. No. 11 at 5-6.)
According to the copy of Grievance No. 0309-18 attached to Plaintiff's Amended Complaint, it appears Defendant S. Williams responded to the grievance on May 14, 2018. (Dkt. No. 1-2 at 13.) Under "ACTION TAKEN BY IGC," the form states, "You have failed to submit a Request to Staff. You must attach the responded to RTSM or provide the kiosk number." (Id.)
C. Religious Freedom
Plaintiff's Amended Complaint alleges that Defendant Stirling denied Plaintiff his First Amendment right to freedom of religion. (Dkt. No 11 at 8.) More specifically, Plaintiff appears to identify with the Nation of Gods and Earths, which, according to Plaintiff, is not recognized as a religion by SCDC policy because it is designated as a Security Threat Group ("STG"). (Id.) On November 3, 2015, while incarcerated at Lieber Correctional Institution ("Lieber"), Plaintiff filed a Step 1 Grievance regarding the Nation of Gods and Earths' designation as an STG. ("Step 1 Grievance No. 1102-15"). (Dkt. No. 1-2 at 7.) Plaintiff noted in his grievance that he "wrote the Chaplain asking that the Nation of Gods and Earths be recognized as a religion," but the Chaplain denied his request. (Id.) He further stated that he was being denied "Nations materials and literature," as well as the right to attend formal gatherings with other members of the group, "correspond with the school," and observe the "holy days of the Nation." (Id.) Plaintiff then requested that "the Nation of Gods and Earths be accepted as a religion." (Id.)
Plaintiff's Step 1 Grievance No. 1102-15 was denied on December 31, 2015. (Id. at 8.) According to the Warden's decision, the Nation of Gods and Earths is associated with the Five Percenters, which is identified by SCDC as an STG. (Id.) "An inmate may only possess materials/literature for this group if he/she is housed in the Restrictive Housing Unit (RHU) and formal gatherings will not be approved for this group regardless of where the inmate is housed." (Id.) The decision also indicated that Plaintiff had been transferred to Lee Correctional Institution ("Lee") since filing Step 1 Grievance No. 1102-15 and, thus, he needed to contact his new Chaplain with any additional concerns. (Id.)
On January 12, 2016, Plaintiff filed a Step 2 Grievance, arguing that the Nation of Gods and Earths is not an STG, but rather, a "god-centered" culture ("Step 2 Grievance No. 1102-15"). (Id. at 9.) Plaintiff further claimed that the designation placed an "undue burden" on his right to freedom of religion. (Id.) Plaintiff's Step 2 Grievance No. 1102-15 was denied on March 23, 2016, for the same reasons expressed above. (Id.) The decision reiterated that Plaintiff needed to contract the Chaplain at Lee if he had any further concerns. (Id.) In challenging this final response to Plaintiff's grievance, Plaintiff's Amended Complaint alleges that the Nation of Gods and Earths is not an STG, and that denying him access to religious texts and gatherings is a violation of his First Amendment rights. (Dkt. No. 11 at 6.)
D. Access to SCDC Grievance System
In connection with the grievances Plaintiff submitted while incarcerated at MCI, Plaintiff's Amended Complaint alleges that the "Grievance Coordinator denied [him] total access to the Grievance process." (Dkt. No. 11 at 10.) Specifically, Plaintiff seems to allege that Defendant S. Williams refused to process Plaintiff's grievances without an answered RTSM, which Plaintiff had yet to receive, and, thus, Defendant S. Williams "was maliciously using [the] Grievance process to deny any Grievance relief." (Dkt. No. 1-1 at 2.)
On August 29, 2018, Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim. (Dkt. No. 22.) On September 20, 2018, Plaintiff filed a Response in Opposition to Defendants' Motion to Dismiss (Dkt. No. 25), as well as a Motion Requesting a Medical Examination of Plaintiff. (Dkt. No. 26.) On October 4, 2018, Defendants filed a Response in Opposition to Plaintiff's request for a medical examination. (Dkt. No. 27.)
The Court will address Plaintiff's Motion for a Medical Examination in a separate order.
STANDARD OF REVIEW
On a motion to dismiss pursuant to Rule 12(b)(6), a "complaint must be dismissed if it does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are 'enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir. 2009) (quoting 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." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
For purposes of a motion to dismiss, the district court must "take all of the factual allegations in the complaint as true." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party." Stansbury v. McDonald's Corp., 36 F. App'x 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)). However, while the court must draw all reasonable inferences in favor of the Plaintiff, it need not accept the "legal conclusions drawn from the facts, . . . unwarranted inferences, unreasonable conclusions or arguments." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); Giarratano, 521 F.3d at 298).
"Pro se pleadings are held to a less stringent standard than those drafted by an attorney, and a federal district court is charged with liberally construing a complaint or petition filed by a pro se litigant. . . ." Pinckney v. Ozmint, 490 F. Supp. 2d 670, 675 (D.S.C. 2007). However, even construing a pro se pleading liberally, a pro se complaint nonetheless may be subject to dismissal. See Breyan v. Mental Health, No. 2:17-CV-665-BHH-MGB, 2017 WL 1380647, at *3 (D.S.C. Mar. 24, 2017), adopted, No. CV 2:17-665-BHH, 2017 WL 1374511 (D.S.C. Apr. 17, 2017) (referencing Twombly, 550 U.S. at 555). Indeed, "[t]he requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court." Pinckney, 490 F. Supp. 2d at 675.
DISCUSSION
I. Failure to Exhaust Administrative Remedies
Defendants first argue that the Court should dismiss Plaintiff's claims regarding denial of medical treatment and outdoor recreation because Plaintiff failed to exhaust his administrative remedies with respect to those causes of action prior to commencing this lawsuit. (Dkt. No. 22-1 at 3.) 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." See Fields v. Houser, No. 2:16-CV-3251-TMC-MGB, 2017 WL 1363905, at *2 (D.S.C. Feb. 9, 2017), adopted, No. CV 2:16-3251-TMC, 2017 WL 1329374 (D.S.C. Apr. 11, 2017) (referencing Booth v. Churner, 532 U.S. 731, 741 (2001)). Accordingly, "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002).
Exhaustion is defined by each prison's grievance procedure. Jones v. Bock, 549 U.S. 199, 218, 127 S. Ct. 910, 922-23 (2007). In order to exhaust his administrative remedies, an inmate must avail himself of every level of available administrative review in the prison grievance system, which means "using all steps that the agency holds out, and doing so properly." Woodford v. Ngo, 548 U.S. 81, 90, 126 S. Ct. 2378, 2385 (2006). Thus, "the exhaustion requirement under the PLRA has been interpreted to require prisoners to pursue administrative grievances until they receive a final denial of their claim, appealing through all available stages in the administrative process." Howard v. Pettiford, No. CIV.A. 9:07-0887-RBH, 2007 WL 3119441, at *9 (D.S.C. Oct. 22, 2007), aff'd, 269 F. App'x 269 (4th Cir. 2008). An 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).
The Court takes judicial notice of SCDC's Grievance Policy, GA-01.12. ("GA-01.12" or "Grievance Policy"). Pursuant to GA-01.12, inmates must first attempt to informally resolve a grievance by submitting an RTSM form, or automated RSTM form via electronic kiosk, to the appropriate supervisor/staff. SCDC, Inmate Grievance System, GA-01.12, § 13.2 (May 12, 2014); see also McFadden v. Reynolds, No. 3:13-cv-439-JMC-JRM, 2013 WL 1838656, at *3 n.2 (D.S.C. April 11, 2013). If informal resolution is unsuccessful, the inmate may then submit a Step 1 Grievance form to explain his complaint. GA-01.12, § 13.2; see also McFadden, 2013 WL 1838656, at *3 n.2. An inmate must submit evidence of his attempt to first resolve the grievance informally by attaching an answered RTSM to his Step 1 Grievance, or by noting the kiosk number for the electronic system in his Step 1 Grievance. Al-Haqq v. Dean, No. 217CV00535DCCMGB, 2018 WL 922137, at *5 (D.S.C. Jan. 24, 2018), adopted, No. 2:17-CV-535-DCC, 2018 WL 902288 (D.S.C. Feb. 15, 2018) (referencing SCDC Grievance Policy).
It is well-established that the Court may take judicial notice of SCDC's Grievance Policy, SCDC Policy GA-01.12. See Malik v. Ward, No. 8:08-cv-01886-RBH, 2010 WL 936777, at *2 n.4 (D.S.C. Mar. 16, 2010) (holding that "[t]he Court may take judicial notice of the SCDC grievance process, specifically, SCDC Policy GA-01.12").
The Grievance Coordinator may resolve the Step 1 Grievance informally (e.g., if there are deficiencies), or investigate and make a recommendation for disposition to the Warden. GA-01.12, § 13.3; see also McFadden, 2013 WL 1838656, at *3 n.2. The Warden must respond to the inmate no later than forty-five (45) days from the date the grievance was entered into the system. GA-01.12, § 13.5.
If the inmate is not satisfied with the decision of the Warden, he may appeal the decision by completing a Step 2 Grievance, which is reviewed by the appropriate office director or deputy director. GA-01.12, § 13.6-7; see also McFadden, 2013 WL 1838656, at *3 n.2. The responsible official will render the final decision within ninety (90) days from the date the Grievance Coordinator received the appeal. GA-01.12, § 13.7. The decision of the "responsible official" who answers the Step 2 appeal is SCDC's final response in the matter, after which exhaustion is complete. Jones, 2007 WL 4292416, at *5.
Failure to exhaust is an affirmative defense that must be raised by the defendant and, thus, a district court generally may not dismiss a claim at the pleadings stage solely based on the plaintiff's failure to affirmatively show exhaustion. See Custis v. Davis, 851 F.3d 358, 361-62 (4th Cir. 2017) (noting that an inmate does not need to demonstrate exhaustion of administrative remedies in his complaint). Although failure to exhaust is an affirmative defense, "a prisoner's complaint may be dismissed for non-exhaustion 'in the rare case where failure to exhaust is apparent from the face of the complaint.'" See Wilcox v. Brown, 877 F.3d 161, 167 (4th Cir. 2017) (citing Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005)) (emphasis added).
Here, Defendants allege that Plaintiff's failure to exhaust is apparent on the face of his Amended Complaint because Plaintiff filed this action only fifty-one (51) days after transferring to MCI, which is "an insufficient length of time" to allow for complete exhaustion of Plaintiff's administrative remedies. (Dkt. No. 22-1 at 6.) Defendants' argument relies on Section 13.16 of the SCDC Grievance Policy, which notes that an inmate's Step 1 Grievance will automatically proceed to the next level of appeal if he does not receive a response within the established time limits. GA-01.12, § 13.6. In keeping with this policy, our district court has held:
[W]hen the Warden fails to respond to an inmate's Step 1 grievance, the inmate must refrain from filing suit in federal court until all time periods for both steps to be completed have expired (approximately 114 days). Presumably this is because within the SCDC the Step 1 grievance automatically proceeds to the next level of appeal where the Inmate Grievance Coordinator may respond to the inmate and resolve his complaint.Jones, 2007 WL 4292416, at *5; see also Malik v. Ward, No. 8:08-cv-01886-RBH, 2010 WL 936777, at *3 (D.S.C. Mar. 16, 2010). Accordingly, "in order to give the grievance process an opportunity to work," an inmate who does not receive a response to his Step 1 Grievance must wait until the time to respond to both his Step 1 and Step 2 Grievances expires before filing an action in federal court. Cutner v. Wright, No. 6:12-2545-GRA-KFM, 2013 WL 1729419, at *3 (D.S.C. Mar. 19, 2013).
Defendants seem to interpret the 114-day standard as a blanket, brightline rule that all inmates must wait 114 days after submitting a Step 1 Grievance to file a lawsuit in federal court. (Dkt. No. 22-1 at 6.) Defendants' expansive application is incorrect. As evidenced by the cases cited in Defendant's brief, the 114-day standard applies only when an inmate does not receive a response to his Step 1 Grievance and his complaint automatically transfers to the next level of appeal. See, e.g., Malik, 2010 WL 936777, at *3 (D.S.C. Mar. 16, 2010) (applying the 114-day exhaustion standard where inmate filed an unprocessed Step 2 Grievance to the Administrative Law Judge prior to receiving a response to his Step 1 Grievance); Edmond v. Ozmint, No. 1:08-CV-3288-GRA, 2010 WL 3399154, at *5 (D.S.C. Aug. 26, 2010) (holding that a plaintiff who receives no response must wait 114 days from the filing of his Step 1 Grievance to file a civil action).
Indeed, the purpose of the 114-day standard is to provide corrections officials with the total amount of response time permitted by the SCDC Grievance Policy such that they have an adequate "opportunity to address complaints internally." Cutner, 2013 WL 1729419, at *3. Thus, to the extent SCDC officials have the opportunity to respond to an inmate's grievance(s) ahead of the deadlines set forth in GA-01.12, there is no need for the inmate to wait the remainder of 114 to days to file an action if he has exhausted all available administrative remedies. See Howard, 2007 WL 3119441, at *9 (noting that the PLRA's exhaustion requirement is satisfied once an inmate receive a final denial of his claim, "appealing through all available stages in the administrative process").
Here, Plaintiff received a response to each of his Step 1 Grievances in early May 2018 and, thus, the 114-standard is not dispositive in this case. Moreover, Plaintiff claims he filed "emergency" grievances, which, pursuant to the SCDC Grievance Policy, encompass "situations, actions, or conditions in which any person's health, safety, or welfare is threatened or in serious danger." (Dkt. No. 1-2 at 15.) See also GA-01.12, § 14.1. Once it is determined that a grievance is an emergency pursuant to GA-01.12, § 14.1, it is forwarded immediately to the Warden, which triggers an expedited response time of seven (7) days. GA-01.12, § 14.2. Thus, viewing the facts in the light most favorable to Plaintiff, and assuming the complaints about his broken ribs constituted—or should have constituted—emergency grievances, the 114-day standard does not apply because an expedited response deadline was in effect.
Further, to the extent Defendants suggest that Plaintiff failed to exhaust each level of administrative review, the undersigned finds that Plaintiff exhausted all levels of review available to him. Defendant S. William denied Plaintiff's Grievance Nos. 0301-18, 0236-18, 0317-18, and 0309-18 on the grounds that Plaintiff failed to attach an answered RTSM form to his Step 1 Grievances. (Dkt. No. 1-2 at 2, 4, 5, and 13.) As alleged in Plaintiff's Amended Complaint, however, no one would respond to Plaintiff's RTSM(s), despite his request for immediate medical attention. (Dkt. No. 11 at 11.) Thus, due to the serious nature of Plaintiff's alleged medical condition, Plaintiff was forced to file emergency Step 1 Grievances without attaching an answered RTSM, a frustration he noted in each of his grievance forms. (Dkt. No. 11 at 5-6.)
Given that Plaintiff could not get a response to his RTSM, which, in turn, prevented him from pursuing a proper Step 1 Grievance, Plaintiff's Amended Complaint sufficiently alleges that Plaintiff exhausted all levels of administrative review available to him. See Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) ("[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."); Zander v. Lappin, 415 F. App'x 491, 492 (4th Cir. Mar. 10, 2011) ("[W]hen prison officials prevent inmates from using the administrative process . . . , the process that exists on paper becomes unavailable in reality."); see also Hinojos v. Bowers, No. 2:14-CV-01800-DCN, 2015 WL 4878812, at *9 (D.S.C. Aug. 14, 2015) (finding that plaintiff made sufficient attempts to exhaust the administrative remedies available to him where he was unable to file a proper grievance because he could not get a response to his RTSM form); Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017) (holding that it was not apparent from the face of plaintiff's complaint that he had failed to exhaust his administrative remedies because plaintiff's complaint implied that he attempted to, but possibly could not, exhaust his administrative remedies and, thus, exhausted all remedies that were available to him). Accordingly, the undersigned finds that it is not apparent from the face of Plaintiff's Amended Complaint that Plaintiff failed to exhaust his administrative remedies, and dismissal of Plaintiff's first two claims against Defendant Warden C. Williams would be improper at this stage of the litigation.
II. Freedom of Religion
Defendants next argue that the Court should dismiss Plaintiff's freedom of religion claim against Defendant Stirling because Plaintiff's Amended Complaint does not contain sufficient factual matter to state a claim for relief that is plausible on its face. (Dkt. No 22-1 at 7.) Specifically, Defendants argue:
In his Amended Complaint, the Plaintiff makes no specific factual allegations supporting his First Amendment claim. The Court issued a Proper Form Order raising the fact that the Plaintiff's Complaint "contains little or no facts regarding any such claim." (Dkt. #8, p. 1). The Plaintiff, however, failed to correct this deficiency in his Amended Complaint. In short, as the Court initially recognized in the Proper Form Order, the Plaintiff's First Amendment claim lacks any factual support. It is therefore, the type of conclusory, threadbare claim that is rejected in Iqbal.(Id. at 7-8.)
To state a claim under the Free Exercise clause of the First Amendment, Plaintiff must state facts sufficient to show that he "holds a sincere belief that is religious in nature and that prison regulations impose a substantial burden on his right to free exercise of that religious belief." Ackbar v. Byers, No. CV 4:17-1019-RMG, 2018 WL 1181642, at *2 (D.S.C. Mar. 5, 2018), aff'd, 728 F. App'x 244 (4th Cir. 2018) (referencing O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)). A regulation imposes a "substantial burden" if it "puts substantial pressure on an adherent to modify his behavior and to violate his beliefs." Id. (referencing Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006)). "No substantial burden occurs if the government action merely makes the religious exercise more expensive or difficult or inconvenient, but does not pressure the adherent to violate his or her religious beliefs or abandon one of the precepts of his or her religion." Marron v. Miller, No. 7:13-cv-0338, 2014 WL 2879745, at *2 (W.D. Va. June 24, 2014), aff'd 587 F. App'x. 69 (4th Cir. Dec. 10, 2014) (internal quotation marks and citations omitted).
In his Amended Complaint, Plaintiff makes the conclusory allegation that he was denied his First Amendment right to freedom of religion in relation to his affiliation with the Nation of Gods and Earths. (Dkt. No. 11 at 4, 6-10; Dkt. No. 1-1 at 2-3; Dkt. No. 25 at 1.) Although Plaintiff does not expressly allege that prison regulations impose a "substantial burden" on his right to exercise his religious beliefs, Plaintiff's Amended Complaint claims that he has been denied central text, literature and newspapers, and the right to attend formal gatherings and observe holy days. (Dkt. No. 11 at 5, 8-9; Dkt. No. 1-1 at 2-3; Dkt. No. 25 at 1.) Plaintiff further alleges that the denial of his religious freedom is based on SCDC's improper designation of the Nation of Gods and Earths as an STG. (Dkt. No. 11 at 6; Dkt. No. 1-1 at 2-3; Dkt. No. 25 at 1.)
The undersigned agrees with Defendants that Plaintiff's freedom of religion claim is conclusory and lacking in factual support. Assuming Plaintiff holds a sincere belief that is religious in nature, his Amended Complaint does not describe the importance of the materials and texts to which he was allegedly denied access, nor does the Amended Complaint allege facts suggesting how the denial of these materials has affected Plaintiff's ability to practice his beliefs under the Nation of Gods and Earths. See, e.g., Ackbar, 2018 WL 1181642, at *2 (dismissing inmate's First Amendment claim where he failed to allege facts "suggesting that he is unable to practice his religion without the confiscated materials"); Marron, 2014 WL 2879745, at *3 (dismissing inmate's First Amendment claim where he failed to allege the importance of the confiscated books to his ability to practice his religious beliefs). Moreover, Plaintiff does not identify any specific "holy days" for which he has been denied observance, nor does he explain how the prison denied Plaintiff's ability to observe such holy days. Finally, Plaintiff does not explain how the ban on group gatherings among the members of the Nation of Gods and Earths forces him to modify his behavior or violates his beliefs.
Even if this Court gives Plaintiff the benefit of the doubt and concludes that his Amended Complaint successfully pleads a violation of his First Amendment right to freedom of religion, Plaintiff's claim must be dismissed as moot. As a general rule, the transfer of an inmate to a new facility renders moot a previous claim for injunctive and declaratory relief. See, e.g., Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (holding that the transfer of a prisoner renders moot his claim for injunctive and declaratory relief); Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986) (same). Here, Plaintiff filed his Step 1 Grievance No. 1102-15 while incarcerated at Lieber Correctional Institution. (Dkt. No. 1-2 at 7.) Following the filing of Step 1 Grievance No. 1102-15, however, Plaintiff transferred to Lee Correctional Institution, and then to MCI. (Id. at 8; Dkt. No. 11 at 5.)
Given that Plaintiff's Amended Complaint seeks only injunctive and declaratory relief in relation to his First Amendment claim, Plaintiff's subsequent transfer to Lee and MCI render his complaints about the actions taken at Lieber moot. See Al-Mujahidin v. McCall, No. CV 9:18-1163-BHH-BM, 2018 WL 4938720, at *3 (D.S.C. Aug. 8, 2018) (concluding that inmate's request for injunctive relief was moot after inmate transferred to new facility). Indeed, the Warden at Lieber informed Plaintiff in his response to Step 1 Grievance No. 1102-15 that Plaintiff should raise any further concerns regarding the practice of his religion with the Chaplain at his current institution. (Dkt. No. 1-2 at 8.) Thus, the undersigned finds that Plaintiff's freedom of religion claim against Defendant Stirling must be dismissed with prejudice.
It appears Plaintiff is seeking removal of the STG designation from the Nation of Gods and Earths, as well as access to religious materials and formal gatherings. (Dkt. No. 11 at 8.)
To the extent Plaintiff feels his First Amendment right to freedom of religion is violated while incarcerated at any future institutions, Plaintiff may avail himself of the grievance policies in practice therein.
III. Access to SCDC Grievance System
Defendants argue that the Court should dismiss Plaintiff's claim regarding his access to the SCDC grievance system because the Constitution does not create an entitlement to grievance procedures or access to any such procedure voluntarily adopted by a state. (Dkt. No. 22-1 at 8.) The Fourth Circuit has made clear that an inmate's "access to and participation in the prison's grievance process are not constitutionally protected" in themselves. See Blakely v. Byars, No. 5:11-CV-00871-RMG, 2013 WL 212627, at *3 (D.S.C. Jan. 18, 2013) (referencing Taylor v. Lang, 483 F. App'x 855, 858 (4th Cir. June 21, 2012)). Thus, malfeasance associated with the inmate grievance process only amounts to a constitutional violation where that conduct compromises an individual's right of access to the courts. Wilder v. McCabe, No. 3:12-CV-364-RMG, 2013 WL 300825, at *4 (D.S.C. Jan. 25, 2013). Such a claim requires that the plaintiff "demonstrate with some specificity that this right was interfered with" and that "this interference with his rights resulted in some sort of actual injury." Id. (internal citations omitted).
Here, Plaintiff claims that Defendant S. Williams denied him access to SCDC's grievance process by refusing to process his grievances without an attached RTSM. (Dkt. No. 11 at 5-6; Dkt. No. 1-1 at 2.) By denying Plaintiff's emergency grievances, Plaintiff claims Defendant S. Williams forced Plaintiff to "continue to suffer in pain" and failed "to protect [Plaintiff] from serious harm." (Dkt. No. 1-1 at 2.) Plaintiff's allegations, however, do not state a claim based on being denied access to the courts. At most, Plaintiff alleges that Defendant S. Williams misused the SCDC grievance process by refusing to process his grievances, which is insufficient to show the denial of a constitutional violation. See, e.g., Hinojos, 2015 WL 4878812, at *16 (holding that even if defendants' actions violate the policies of the SCDC, "the fact that a defendant has not followed SCDC's policies or procedures, standing alone, does not amount to a constitutional violation"). Accordingly, even viewing Plaintiff's allegations in the light most favorable to him, there is no infringement of any constitutional or statutory right and, thus, Plaintiff's claim against Defendant S. Williams must be dismissed.
CONCLUSION
Based on the foregoing, this Court recommends that Defendants' Motion to Dismiss Plaintiff's Amended Complaint be DENIED as to Plaintiff's claims against Defendant Warden C. Williams for denial of medical attention and outdoor recreation; and GRANTED as to Plaintiff's First Amendment claim against Defendant Stirling, and Plaintiff's grievance-access claim against Defendant S. Williams.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE October 18, 2018
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).