Opinion
C.A. 8:19-cv-02665-SAL-JDA
04-14-2021
Terron Gerhard Dizzley, Plaintiff, v. Sgt. Pate, Ms. Green, Officer John K. Brown, Off. Thorn, Ms. Brown, Off. Cleveland, Off. Martin, Ms. Jackson, Officer Nethertan, Officer Parish, Officer Smith, Warden Anabinet, Regional Director Davis, Reginald L. Weston, Miracle D. Davenport, Brittany M. Livingson, Defendants.[1]
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion for summary judgment filed by Defendants other than Officer Brown (?the Moving Defendants”). [Doc. 77.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
The summonses issued as to Officer Brown were returned unexecuted. [Docs. 232; 136.]
Plaintiff, proceeding pro se, filed this action on September 16, 2019, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. [Doc. 1.] On May 12, 2020, the Moving Defendants filed a motion for summary judgment. [Doc. 77.] By Order of this Court on the same day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately. [Doc. 78.] Plaintiff’s response in opposition was entered on the docket on October 13, 2020 [Doc. 151], and the Moving Defendants filed a reply on October 20, 2020 [Doc. 155]. Plaintiff has since filed a second response in opposition [Doc. 156], and the Moving Defendants have filed a second reply [Doc. 158]. The motion is ripe for review.
A prisoner’s pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on September 16, 2019. [Doc. 1-2 at 1 (envelope stamped as received by the prison mailroom on September 16, 2019).]
Plaintiff’s response memorandum is a 128-page, handwritten document that addresses many allegations beyond the scope of this litigation. [Doc. 151.] The Court notes that Local Civil Rule 7.05(B)(1), D.S.C., provides that, unless the Court grants an exception, a party’s initial brief may not exceed 35 double-spaced pages. Nevertheless, the Court has thoroughly reviewed Plaintiff’s memorandum and 87 pages of attachments to ensure Plaintiff’s legal and factual arguments have all been considered.
Plaintiff initiated this action by filing a handwritten document that he titled an “Order To Show Cause For A Temporary Restraining Order[] and A Preliminary Injunction.” [Doc. 1 at 1.] The Court directed Plaintiff to complete the Court’s standard complaint form [Docs. 7 at 3; 13 at 3], and Plaintiff subsequently submitted the standard complaint form along with additional pages and a filing that he titled an ?Amendment To Temporary Restrain[in]g Order,” which were added as attachments to his original filing [Docs. 1-3; 1-6]. The facts in this background section are compiled from Plaintiff’s original filing and the completed standard complaint form. [Docs. 1; 1-3.]
Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (?SCDC”) and is incarcerated at the Broad River Correctional Institution (?Broad River”). Plaintiff alleges that he was moved to Broad River from Lieber Correctional Institution on April 28, 2019. [Doc. 1 at 2.] Upon arrival, Plaintiff informed the administration at Broad River that in October 2017, he had been placed in a cell with an inmate who had “'extreme mental health’” problems at McCormick Correctional Institution, and that cell assignment resulted in Plaintiff getting stabbed in the head and other areas of the body. [Id.] Plaintiff requested that he be placed in the Marion or Moultrie dorm “because he feared for his life in dorms such as Wateree and Monicello, which [are] infested with gangs, drugs, killings, stabbings[,] and violence.” [Id.] Nevertheless, Plaintiff was placed in Wateree with inmate Rodrick Culp as his cellmate. [Id.]
Plaintiff states that Culp ?stayed up all night for days getting high, flipping out, [and] threatening” him. [Id.] Plaintiff wrote to classification and security and spoke with officers, explaining that his life was in danger and he needed to be moved immediately. [Id.] Plaintiff was subsequently moved to Monicello and then to Marion, the character dorm. [Id. at 3.] In July 2019, John Chamble was placed as Plaintiff’s cellmate. [Id.; Doc. 1-3 at 6.] Chamble had just returned from the hospital with blood poisoning and was in a wheelchair and on a breathing machine. [Docs. 1 at 3; 1-3 at 6.]
The Court notes that Defendants’ records refer to this cellmate as Johnathon Campbell. [Docs. 77-3 at 1 ¶ 4; 77-4 at 3.]
Between July 2019 and September 2019, when Plaintiff initiated this action, Plaintiff was moved numerous times. First, he was moved to a cell with Willie Ray, who had also just returned from the hospital with blood poisoning. [Docs. 1 at 3; 1-3 at 6.] Ray is also a diabetic and has an amputated leg. [Docs. 1 at 3; 1-3 at 6-7.] Plaintiff contends that Ray, another inmate, and Defendant Sgt. Pate facilitated Plaintiff being moved in with Ray, which violates SCDC policy. [Doc. 1 at 3.] When Ray would remove his prosthetic leg, the entire cell would fill with an unbearable odor. [Docs. 1 at 3; 1-3 at 7.] Ray also cleaned his open wounds and changed his dressings in the cell. [Docs. 1 at 3-4; 1-3 at 8.] The odor made Plaintiff sick and interfered with his sleep, so he requested a room change, contending that Ray should be in a medical cell by himself. [Docs. 1 at 4; 1-3 at 8.] Pate told Plaintiff that he would have to speak with Defendant Ms. Green, who is director of the character-based program. [Docs. 1 at 4; 1-3 at 8.] The next day, Plaintiff appeared before Green, Pate, and other prison officials, and Green told him that if he wanted to change rooms, he would have to sign out of the character-based program and move to Wateree, which Plaintiff contends is ?the worst[,] most violent dorm.” [Docs. 1 at 4-5; 1-3 at 8-9.] Plaintiff filed a grievance, and his mother called Defendant Regional Director Davis. [Docs. 1 at 5; 1-3 at 11.]
Plaintiff further asserts that Wateree ?is where they place all the gang members, and is a ticking time bomb waiting to explode, r[u]n by one officer who is hardly ever on the wing and it’s terrifying just taking a shower.” [Doc. 1 at 9.]
Ultimately, Plaintiff was moved into a cell with John Brown. [Doc. 1-3 at 13.] Brown had a colostomy bag that he emptied and disposed of in the room [Docs. 1 at 5-6; 1-3 at 13-14]; therefore, Plaintiff was moved from one biohazardous situation to another [Docs. 1 at 5; 1-3 at 14]. The smell in his new cell was unbearable, and Plaintiff again began throwing up. [Docs. 1 at 5-6; 1-3 at 14.] Plaintiff explained the situation to Green and told her he felt like they were assigning him these cellmates on purpose to try to push him to harm himself and give up on life. [Docs. 1 at 6; 1-3 at 14.] Plaintiff was subsequently informed that he would be moved to Monicello where an inmate had recently been murdered. [Docs. 1 at 6; 1-3 at 15.] Further, Monicello was ?not a safe environment and the air [wa]s filled wi[th] tobacco and drug smoke.” [Doc. 1-3 at 17.] When he was moved to Monicello, he was assigned a cellmate who was in a gang and had ?extreme mental health problems.” [Docs. 1 at 6 (internal quotation marks omitted); 1-3 at 20.] Plaintiff contends this was in retaliation for his grievances. [Doc. 1-3 at 15.]
Around 2:30 a.m. on September 13, 2019, Plaintiff got up to urinate, and his cellmate came to him and told him to move out of the way so that the cellmate could urinate. [Docs. 1 at 6; 1-3 at 20.] The cellmate was very aggressive, yelling, cursing, and threatening Plaintiff. [Docs. 1 at 6; 1-3 at 20.] Defendant Off. Thorn heard the noise and came to the door. [Docs. 1 at 6; 1-3 at 20.] Plaintiff asked Thorn to call for assistance to remove him from the cell, but Thorn refused and instead, he stood at the door taunting Plaintiff and his cellmate to try to get them to fight. [Docs. 1 at 6-7; 1-3 at 20.] Plaintiff stood by the door all night because he feared his cellmate would kill him if he went to sleep. [Docs. 1 at 7; 1-3 at 20-21.] Thorn would not let Plaintiff out of his cell to go to work the next morning [Docs. 1 at 7; 1-3 at 21], and at shift change, Plaintiff explained the situation to Defendants Off. Martin and Reginald L. Weston [Docs. 1 at 7; 1-3 at 21]. Martin and Weston also refused to help. [Docs. 1 at 7; 1-3 at 21.] Around 9:30 or 10:00 a.m., Lieutenant Chandler and Defendant Officer Brown came to Plaintiff’s cell and stated that whoever moved out would move to Wateree. [Docs. 1 at 7; 1-3 at 22.] Plaintiff exited the cell and was left waiting for about four hours. [Docs. 1 at 7; 1-3 at 22.] Then he explained to Chandler that he feared for his life in Wateree and Monicello. [Docs. 1 at 7; 1-3 at 22.] He asked to be moved to Marion or Moultrie and stated that he would sign a protective custody form to be placed on lockup. [Docs. 1 at 7-8; 1-3 at 22.] He was then handcuffed by Defendant Off. Cleveland and others ?so tight that [his] wrist[s] were swollen,” dragged ?like an animal by [his] arms and legs almost dislocating [his] shoulder,” and slammed into the wall twice. [Docs. 1 at 8; 1-3 at 24.]
Although Plaintiff refers to this Defendant as ?Wesson” [Docs. 1 at 7; 1-3 at 21], counsel informed the Court that this Defendant’s name is Reginald L. Weston [Doc. 44].
Plaintiff asserts that Officer Brown ?harasses and threatens [him] everytime [he is] on the yard or at the mailroom” and that Officer Brown had threatened to have Plaintiff moved to Monicello and has also told Plaintiff that he could have Plaintiff killed. [Doc. 1 at 9-10; see also Doc. 1-3 at 31-32.]
Plaintiff was placed in a cell in Wateree with Bobby Thompson, an ?<extremely mentally ill’ inmate” who cut himself and had killed another inmate. [Docs. 1 at 8; 1-3 at 24-25.] Being in the cell with Thompson ?was like being in the cell with 2 different people.” [Doc. 1-3 at 25.] Thompson would misplace something and threaten Plaintiff, accusing him of stealing it, and would wake up around 2:00 or 3:00 a.m., turn the light on, pace, talk to himself, threaten Plaintiff, and lie back down. [Id.]
On September 20, 2019, Princeton Thrower was placed as Plaintiff’s cellmate in Wateree. [Doc. 1-3 at 27.] The next day, ?Thrower began throwing up violently until he started throwing up blood.” [Id.] Thrower, Plaintiff, and other inmates began screaming and banging on the door, but it took 45 minutes for Defendant Officer Nethertan to come to the door, and then he refused to call medical or provide any cleaning supplies. [Id.] Plaintiff filed a grievance about the situation. [Id. at 28.] However, this continued for days, and every day when Plaintiff returned from work, the officers locked him in the cell and refused to give him cleaning supplies or allow him to take a shower. [Id.]
After complaining to multiple prison officials about the situation, Plaintiff was finally called to operations to sign a protective custody form on September 27, 2019, because classification refused to move him to a safe environment. [Id. at 29.] After about two hours, Plaintiff was ?taken to lock Administrative Protective Custody.” [Id.] Plaintiff requested his property for two weeks, and when he was finally taken to his property, his television, trial transcripts, legal books, family pictures, legal supplies, and $80 worth of food were missing. [Id.] Additionally, Plaintiff remained on lockup with no disciplinary charge, and he contends he remained on lockup in retaliation for filing grievances. [Id.; Doc. 1-6.]
Based on these allegations, Plaintiff contends that his Eighth Amendment rights were violated because he was placed in unsanitary living conditions and that his First Amendment rights were violated because he was placed in these living conditions in retaliation for filing grievances. [Docs. 1 at 12; 1-3 at 17-18, 27, 29-30.] Plaintiff asserts that Thorn, Martin, and Weston failed to protect him and that Cleveland used excessive force in violation of Plaintiff’s Eighth Amendment rights. [Doc. 1-3 at 20, 24.] Plaintiff further contends that Officer Brown violated his Eighth Amendment rights by threatening and harassing Plaintiff. [Id. at 31.] Plaintiff alleges that his constitutional rights were violated by the conditions in Monicello and Wateree; specifically, the smell of marijuana, tobacco, crack, and “meth ice” smoke; gangs running the dorms; lack of officer supervision; and lack of access to showers. [Id. at 34-36.] Plaintiff also asserts that the practices of the classification workers are unconstitutional [id. at 39-41]; that he was held in lockup in retaliation for filing grievances [id. at 41-42]; and that inmates have no adequate and fair grievance system [id. at 42]. For his injuries, Plaintiff contends he suffered emotional distress, vomiting sickness, and an injured shoulder and wrist. [Id. at 45.] He seeks $1,000,000 in compensatory damages, $250,000 in punitive damages, a jury trial, costs, and injunctive relief. [Id. at 44.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff’s legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself.’” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party’s allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying ‘the specific conduct of which the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant’s position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. At 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “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. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Defendants argue they are entitled to summary judgment on Plaintiff’s claims that he was subjected to excessive force and denied medical care and that SCDC policies promote unsafe environments because he has failed to exhaust administrative remedies regarding these claims. [Doc. 77-1 at 10-11.] With respect to Plaintiff’s claims that his cell assignments and transfers violated his constitutional rights, Defendants argue they are entitled to summary judgment because there is no constitutional right for Plaintiff to be housed in a particular institution, Plaintiff resided with the allegedly unsuitable cellmates for short periods of time and was moved based on his own requests, there is no evidence that Plaintiff sustained a serious or significant injury, and Defendants are entitled to qualified immunity. [Id. at 3-10.] The Court addresses these arguments in turn.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, 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). A defendant has the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017). The PLRA’s exhaustion requirement is mandatory and “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, 524, 532 (2002). The exhaustion requirement applies even if the relief sought in the civil action is not available in the administrative proceedings. See Booth v. Churner, 532 U.S. 731, 741 (2001).
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). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules ....” Woodford v. Ngo, 548 U.S. 81, 90 (2006). 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). But see Jones, 549 U.S. at 219-24 (rejecting “total exhaustion rule” and holding that when presented with a complaint containing exhausted and unexhausted claims, courts should “proceed[ ] with the good and leave[ ] the bad”). Courts within the District of South Carolina have found an inmate exhausts his administrative remedies when he completes all steps out of a prison’s grievance procedure, and that § 1997e(a) does not require inmates to further appeal to South Carolina’s Administrative Law Court. See, e.g., Ayre v. Currie, No. 05-3410, 2007 WL 3232177, at *7 n.5 (D.S.C. Oct. 31, 2007); Charles v. Ozmint, No. 052187, 2006 WL 1341267, at *4 n.3 (D.S.C. May 15, 2006).
Pursuant to the SCDC Inmate Grievance System, an inmate seeking to complain of prison conditions generally is required to attempt to resolve the grievance informally by submitting a request to staff member (?RTSM”) to the appropriate supervisor or staff member within eight working days of the incident. See SCDC Policy GA-01.12 ¶ 13.2.If the issue remains unresolved after informal resolution is attempted, the inmate then may file a Step 1 grievance within five working days of receiving a response to the RTSM. Id. “If the inmate has failed to provide necessary information . . . he will be given five (5) calendar days to re-file a properly filled out grievance ....” Id. ¶ 13.3. “The Warden will respond to the grievant in writing . . . no later than 45 days from the date the grievance was formally entered into the . . . system.” Id. ¶ 13.5. If the inmate is dissatisfied with the response he receives to the Step 1 grievance, he may then appeal with a Step 2 grievance within five calendar days of receiving the response. Id. ¶ 13.7.
The policy can be found online by visiting the following web address: http://www.doc.sc.gov/policy/policy.html, and selecting the link for GA-01.12. The policy is also attached as an exhibit to an affidavit Defendants have filed. [Doc. 77-5 at 4-18.]
In their motion for summary judgment, Defendants assert that ?Plaintiff failed to exhaust his administrative remedies in regard to any [excessive-force] incident or denial of medical treatment” and failed to exhaust administrative remedies in regard to ?conclusory allegations that unidentified practices of SCDC <promote violence, oppression, unsafe living conditions, and unhealthy living environments.’” [Doc. 77-1 at 11.] In support of their argument, Defendants have provided the Court with an affidavit of Sherman L. Anderson, Inmate Grievance Coordinator for SCDC, a copy of the Inmate Grievance System policy, and a Step 1 grievance submitted by Plaintiff. [Doc. 77-5.] In the affidavit, Anderson states that in Grievance Number 960-19, Plaintiff “alleged that he was denied medical <care for shoulder that was injured by excessive force used by two correctional officers on September 13, 2019,’” but that “[p]ursuant to SCDC policy, this grievance was processed and returned to [Plaintiff] based on his attempt to grieve multiple issues in one grievance.” [Id. at 2-3 ¶ 9.] Anderson also avers that Plaintiff "did not appeal this decision or subsequently file any corrected grievance(s) related to an alleged denial of medical treatment or excessive force.” [Id. at 3 ¶ 9.] With respect to Plaintiff’s allegations regarding SCDC practices, Sherman states that Plaintiff "failed to file any grievance related to any of the generic and conclusory allegations.” [Id. at 3 ¶ 10.]
Plaintiff objects to Anderson’s affidavit, arguing that it is irrelevant and does not assist the tribunal or jury because it ?in no way explains why Plaintiff’s grievances, request[s], etc. were not being responded to, or dismissed for arbitrary reasons, or why Plaintiff was being retaliated against for filing grievances.” [Doc. 156 at 3.] Plaintiff further contends that Sherman’s ?affidavit only supports Plaintiff’s case in how [the] administration fails to follow their own grievance policy which could have resolved matters such as these matters and prevented this Civil Action and save[d] the courts and tax payers money and time, by simply following their own policy and rules.” [Id. at 4.] The Court does not agree that Anderson’s affidavit is irrelevant as it tends to show the substance of the inmate grievance system and how it was utilized here. Accordingly, the Court considers Anderson’s affidavit. Further, the Court notes that failure to follow prison policies and/or procedures does not by itself rise to the level of a constitutional violation. See Jackson v. Sampson, 536 F. App’x 356, 357 (4th Cir. 2013) (“[P]rison officials’ failure to follow internal prison policies are not actionable under § 1983 unless the alleged breach of policy rises to the level of a constitutional violation.”). Additionally, it is well settled that an inmate’s access to and participation in a prison’s grievance process is not constitutionally protected. See Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Taylor v. Lang, 483 F. App’x 855, 858 (4th Cir. 2012).
In response, Plaintiff asserts that the grievance coordinator "repeatedly failed to process his grievances, fabricating technical reasons to reject Plaintiff’s grievances without performing any investigations into serious matters pursuant to Plaintiff’s health and safety” and that "Plaintiff has exhausted all remedies made available to him.” [Doc. 151 at 122; see id. at 120-22.] Plaintiff also contends that the administrative remedies were unavailable to him because of the retaliation he faced for filing grievances. [Id. at 123-25.] Additionally, Plaintiff has provided the Court with copies of various RTSMs and grievances he submitted. [Doc. 151-1 at 6-20.]
In this case, even viewing the facts in the light most favorable to Plaintiff, the Court concludes Plaintiff has failed to establish that he exhausted his administrative remedies regarding his allegations that Thorn, Martin, and Weston failed to protect him and that Cleveland used excessive force in violation of Plaintiff’s Eighth Amendment rights. Importantly, exhaustion must occur prior to filing a lawsuit; it cannot happen during the pendency of the litigation. See Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir. 2016) (concluding that exhaustion has not occurred if an institution’s appeal process would have to continue after the filing of the complaint); Cabbagestalk v. Ozmint, No. 9:06-3005-MBS, 2007 WL 2822927, at *1 (D.S.C. Sept. 27, 2007) (holding that administrative remedies must be exhausted on the date of filing and that “[i]f exhaustion was not completed at the time of filing, dismissal is mandatory”) (collecting cases). Plaintiff alleges that Thorn, Martin, and Weston failed to protect him and that Cleveland dragged him and slammed his head into the wall on September 13, 2019. [Docs. 1 at 6-8; 1-3 at 20-24.] Plaintiff then filed this action on September 16, 2019, well before he could possibly have exhausted his administrative remedies with respect to these allegations. Indeed, the Step 1 grievances Plaintiff submitted that were related to his failure-to-protect and excessive-force allegations were marked as received by the Inmate Grievance Coordinator on September 24, 2019, and October 29, 2019 [Doc. 151-1 at 10-11, 14-15], after Plaintiff filed this action.Moreover, none of the grievances submitted by Plaintiff establish that he exhausted his administrative remedies with respect to any allegations regarding SCDC practices. Finally, Plaintiff’s assertion that the grievance process was unavailable to him because he feared retaliation for filing grievances does not excuse his failure to exhaust because ?a plaintiff’s failure to exhaust is not excused by his allegation that he is under threat of imminent danger.” Duckett v. Fuller, No. 6:13-1079-JMC, 2013 WL 6181417, at *3 (D.S.C. Nov. 22, 2013). Accordingly, Defendants’ motion for summary judgment should be granted with respect to Plaintiff’s allegations that Thorn, Martin, and Weston failed to protect him; that Cleveland used excessive force; and that SCDC practices violated his constitutional rights, because Plaintiff failed to exhaust his administrative remedies regarding these allegations before filing this action.
Even if the Court were to use October 18, 2019-the date Plaintiff submitted the Court’s standard complaint form to prison authorities [Doc. 1-7 at 1]-as the applicable filing date, Plaintiff could not have exhausted his administrative remedies with respect to his failure-to-protect and excessive-force allegations before filing this action.
The Court notes that Defendants did not specifically argue that Plaintiff failed to exhaust his administrative remedies regarding his failure-to-protect claim. Indeed, Defendants have noted that ?Plaintiff’s Complaint is handwritten, fifty-one (51) pages long, and at times difficult to comprehend”; therefore, they requested the Court allow them an opportunity to address any issues ?the Court deems relevant for summary judgment purposes.” [Doc. 77-1 at 2 n.2.] However, ?district courts may enter summary judgment sua sponte <so long as the losing party was on notice that []he had to come forward with all of h[is] evidence.’” Penley v. McDowell Cty. Bd. of Educ., 876 F.3d 646, 661 (4th Cir. 2017) (quoting Celotex Corp., 477 U.S. at 326). As the Fourth Circuit Court of Appeals has explained,
The notice must be sufficient to provide the losing party with an adequate opportunity to demonstrate a genuine issue of material fact . . . [a]nd it must, in view of the procedural, legal, and factual complexities of the case, allow the party a reasonable opportunity to present all material pertinent to the claims under consideration.Velasquez v. Salsas & Beer Rest., Inc., 735 F. App’x 807, 809 (4th Cir. 2018) (alterations in original) (internal quotation marks omitted); see also Gibson v. Mayor of Wilmington, 355 F.3d 215, 223-24 (3d Cir. 2004) (holding that adequate notice “mean[s] that the targeted party had reason to believe the court might reach the issue and received a fair opportunity to put its best foot forward.” (internal quotation marks omitted)).Here, the undersigned concludes that Plaintiff had sufficient notice that he needed to come forward with all of his evidence because Defendants raised failure to exhaust in their Answer [Doc. 37 at 5 ¶ 26]; Defendants moved for summary judgment on all claims [Doc. 77] but addressed the merits only with respect to Plaintiff’s claims about cell assignment and dorm transfers [id. at 3-10] and then argued Plaintiff failed to exhaust other claims [id. at 10-11]; and Plaintiff specifically addressed exhaustion with respect to the failure-to-protect claim [Doc. 151 at 120-21] and provided a copy of a grievance related to that claim [Doc. 151-1 at 10-11]. See Velasquez, 735 F. App’x at 809-10 (concluding that sua sponte summary judgment was proper and a plaintiff had sufficient notice that he needed to put forth all evidence in favor of his claim where defendants had asserted in their response to plaintiff’s motion that they were entitled to judgment as the nonmoving party, defendants denied in their answer the existence of an element of the claim, and the plaintiff had moved for summary judgment). The copy of the grievance Plaintiff provided makes clear that, like his grievances related to his excessive-force claim, Plaintiff did not file a grievance related to his failure-to-protect claim until after he filed this case. Additionally, Plaintiff’s general arguments that the grievance system was unavailable to him apply to all of his unexhausted claims. Finally, although the undersigned cannot imagine Plaintiff has any evidence to support an argument that he exhausted his failure-to-protect claim before filing this case, he will have an opportunity to present any such evidence with his objections to this Report and Recommendation. Therefore, the undersigned recommends that summary judgment be granted to Defendants on Plaintiff’s failure-to-protect claim because he failed to exhaust administrative remedies with respect to this claim.
Additionally, although the issue is not specifically addressed by Defendants, Plaintiff failed to exhaust his administrative remedies with respect to any allegations that occurred after Plaintiff was moved to Wateree on September 13, 2019, e.g. being placed in cells with Bobby Thompson and Princeton Thrower [Doc. 1-3 at 24-28] and being placed in lockup after signing a protective custody form [id. at 29].
Cell Assignments
Plaintiff contends that his cell assignments violated his First Amendment rights because he was placed in unsanitary and violent living conditions in retaliation for filing grievances and violated his Eighth Amendment rights because of their unsanitary conditions. [Docs. 1 at 12; 1-3 at 17-18, 27, 29-30.] Defendants have analyzed Plaintiff’s claim under the Eighth Amendment ?[b]ased on Plaintiff’s conclusory and unsupported claims regarding a violation of his First and Fourteenth Amendment rights.” [Doc.77-1 at 3 n.3.]
Although Plaintiff references the Fourteenth Amendment [Doc. 1-3 at 4], the Court construes this case as asserting a conditions-of-confinement claim under the Eighth Amendment and a retaliation claim under the First Amendment because he fails to allege factual allegations to support a due process claim under the Fourteenth Amendment.
Eighth Amendment Claim
The Eighth Amendment’s prohibition on “cruel and unusual punishments” imposes certain basic duties on prison officials. Farmer v. Brennan, 511 U.S. 825, 832 (1994). These include maintaining humane conditions of confinement, including, relevant to this case, taking “reasonable measures to guarantee the safety of the inmates.” Id. (internal quotation marks omitted). The Eighth Amendment “does not mandate comfortable prisons, and only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).
For liability to attach, a plaintiff must satisfy a two-part test consisting of both an objective and a subjective inquiry. The objective prong requires the inmate to show that “the deprivation of a basic human need was objectively sufficiently serious.” Rish v. Johnson, 131 F.3d 1092, 1096 (4th Cir. 1997) (internal quotation marks omitted). Proof of this element requires the prisoner to “produce evidence of a serious or significant physical or emotional injury resulting from the challenged conditions” or “demonstrate a substantial risk of such serious harm resulting from the prisoner’s unwilling exposure to the challenged conditions.” Id. (internal quotation marks omitted). Under the subjective prong, the inmate must show that the prison official had a “sufficiently culpable state of mind,” which, in this context, consists of “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks omitted); see Odom v. SCDC, 349 F.3d 765, 770 (4th Cir. 2003). This subjective inquiry requires “evidence suggesting that the prison official had actual knowledge of an excessive risk to the plaintiff’s safety.” Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir. 2014). The defendant must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. This standard is “very high . . . and a showing of mere negligence will not meet it.” Campbell v. Florian, 972 F.3d 385, 395 (4th Cir. 2020) (internal quotation marks omitted).
Plaintiff has failed to provide any evidence to establish that he has been subjected to the type of extreme deprivations that satisfy the components of an Eighth Amendment claim because Plaintiff has failed to provide anything to the Court beyond his own conclusory allegations that his cellmates had health conditions that posed any substantial risk to him. Indeed, although Plaintiff submitted 87 pages of supporting documents with his initial response in opposition [Doc. 151-1] and 10 pages of supporting documents with his second response in opposition [Doc. 156-1], many of these documents relate to Plaintiff’s unexhausted failure-to-protect and excessive-force allegations or to claims that are not raised in this case [e.g., Doc. 151-1 at 2-3 (Plaintiff’s affidavit regarding being moved from lockup to the character dorm in October 2019), 25 (another inmate’s affidavit stating he observed Cleveland dragging Plaintiff), 26-30 (other inmates’ affidavits stating they were assaulted by various officers), 31 (another inmate’s affidavit regarding Thorn, Weston, and Martin’s failure to protect Plaintiff), 34-36 (Plaintiff’s affidavit regarding being assigned to a cell with Kevan Parker in November 2019), 40-41 (Parker’s affidavit about cell assignments), 46-58 (emails between Plaintiff’s mother and prison officials about Plaintiff’s property and Officer Millhouse); Doc. 156-1 at 5-10 (emails between Plaintiff’s mother and prison officials about Plaintiff’s property and Officer Millhouse)]. And Plaintiff’s conclusory allegations that odors in his cells-from Ray changing the dressings on his amputated leg and Brown changing his colostomy bag-interfered with his sleep and made him vomit, without more, do not establish an Eighth Amendment violation. See Salmons v. W. Reg’l Jail Auth., No. 3:18-1447, 2019 WL 5616916, at *6 (S.D.W. Va. Oct. 30, 2019) (“[T]he mere smell or presence of human waste is not sufficiently serious to constitute a violation of the Eighth Amendment.”); Harris v. FNU Connolly, No. 5:14-cv-128-FDW, 2016 WL 676468, at *5 (W.D.N.C. Feb. 18, 2016) (granting summary judgment to defendants where the plaintiff alleged his holding cell was unsanitary because of a “massive amount of urine, feces, and vomit on both the floor and walls in which the plaintiff was forced to live in for 30 plus days”). Defendants, on the other hand, have provided evidence that, based on Plaintiff’s complaints, they inspected his cell and found it to be ?clean, free and clear of any infectious material or bodily fluids.” [Doc. 77-3 at 2 ¶ 7, 6.] And even though this inspection report was clean, Plaintiff’s cell was changed based on his continued complaints. [Id. at 2 ¶ 7.] Indeed, Plaintiff was moved each time he complained about his cellmate, even when the complaints were found to be without merit. [Id. at 1-3 ¶¶ 4, 5, 7, 11-12.] Based on this record, no reasonable fact-finder could conclude that Plaintiff was exposed to conditions that were a serious deprivation of a basic human need or that Plaintiff suffered or is likely to suffer a significant physical or emotional injury. Accordingly, Defendants’ motion for summary judgment should be granted with respect to Plaintiff’s Eighth Amendment claim.
Plaintiff moved to amend his complaint to add claims related to the conditions of his confinement when he was released from lockup in October 2019; the refusal to provide him with new socks, clothes, towels, mattress, pillow, blanket, and other items; and Officer Millhouse’s refusal to help him after he complained to her about his living conditions and fear for his life and refusal to allow him to return to his law library job or allow him enough time in the law library, but the Court denied Plaintiff’s motions to amend the Complaint. [Doc. 73.]
Plaintiff objects to the affidavit of Associate Warden Lashawn Peeples, asserting that it is hearsay, false, and misleading; omits relevant facts; is mere conjecture; and is made in bad faith. [Doc. 151 at 90-101.] However, as stated in the affidavit, Peeples ?reviewed the relevant records at the [SCDC] and at Broad River . . . regarding [Plaintiff’s] allegations in this lawsuit” and bases his affidavit on those records. [Doc. 77-3 at 1 ¶ 2.] Accordingly, the Court considers Peeples’ affidavit.
Additionally, to the extent Plaintiff asserts generally that the conditions in the Monicello and Wateree dorms violated his constitutional rights, he has failed to submit any evidence to support these allegations.
As stated, Defendants have not specifically analyzed Plaintiff’s First Amendment claim beyond pointing out that it is” conclusory and unsupported.” [Doc. 77-1 at 3 n.3.] As discussed below, the Court agrees that Plaintiff has provided no evidence to support his retaliation claim, even though he continues to maintain in his response to the motion for summary judgment that he was retaliated against for filing grievances. [Doc. 151 at 46-49.]
To prove a First Amendment retaliation claim under § 1983, a plaintiff must establish three elements: (1) that his speech was protected; (2) that ?the alleged retaliatory action adversely affected his protected speech”; and (3) that a but-for causal relationship existed between the protected speech and the retaliatory action. Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015) (internal quotation marks omitted). Thus, a plaintiff may prove a cause of action for retaliation if he establishes he was subjected to an adverse action because he filed grievances. See Sturkey v. Ozmint, No. 8:10-1281-MBS, 2010 WL 4923111, at *3 (D.S.C. Nov. 29, 2010); see also Booker v. SCDC, 855 F.3d 533, 545 (4th Cir. 2017) (holding that a prisoner has a clearly established ?right to file a prison grievance free from retaliation”).
Transferring an inmate to a less favorable housing assignment may qualify as an adverse action to support a retaliation claim. See Hendrick v. Bishop, No. TDC-14- 2544, 2016 WL 1060212, at *7-8 (D. Md. Mar. 15, 2016). However, here, as with his Eighth Amendment claim, Plaintiff has offered no evidence to substantiate, or create a genuine issue of fact regarding, his allegations about Defendants’ motivation for his cell assignments. Additionally, Defendants have submitted the affidavit of Associate Warden Lashawn Peeples, who avers that Plaintiff was moved each time he complained about his cellmate, even when the complaints were found to be without merit. [Doc. 77-3 at 1-3 ¶¶ 4, 5, 7, 11-12.] Accordingly, because Plaintiff has not submitted evidence to create a genuine issue of material fact regarding whether a causal connection exists between his filing grievances and being assigned to certain cells, Defendants’ motion for summary judgment should be granted with respect to Plaintiff’s First Amendment retaliation claim.
Generally, there is no constitutional right for a prisoner to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See McKune v. Lile, 536 U.S. 24, 26 (2002) (noting that the ?decision where to house inmates is at the core of prison administrators’ expertise”); Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding that the Constitution’s Due Process Clause does not ?protect a duly convicted prisoner against transfer from one institution to another within the state prison system”). That is so because the placement and assignment of inmates into particular institutions or units by corrections departments are discretionary functions, and those decisions are not subject to review unless state or federal law places limitations on official discretion. Cf. Hayes v. Thompson, 726 F.2d 1015, 1017 (4th Cir. 1984) (remanding the case for a determination of whether Virginia prison regulations limit prison officials’ discretion to transfer inmates). South Carolina law confers no protected liberty interest upon SCDC inmates from being placed in a particular prison, in a particular section of the prison, or being placed in administrative segregation. See Phillips v. SCDC, No. 8:10-1331-HFF-BHH, 2010 WL 2756910, at *2 (D.S.C. June 17, 2010), Report and Recommendation adopted by 2010 WL 2754223 (D.S.C. July 12, 2010). Thus, because Plaintiff has been committed to the custody of SCDC, the choices related to Plaintiff’s housing are typically to be determined by SCDC prison officials without interference by the federal courts. See Cooper v. Riddle, 540 F.2d 731, 732 (4th Cir. 1976) (noting that the district court properly found that a prison committee’s decisions regarding institutional placement, security classifications, and job assignments were not subject to constitutional scrutiny). However, that Plaintiff does not have a constitutional right to a particular housing placement does not foreclose a retaliation claim.
Defendant Officer Brown
With respect to Officer Brown, as stated, the summonses have been returned unexecuted. [Docs. 23-2; 136.] Plaintiff filed this action on September 16, 2019. The undersigned authorized service on all Defendants on November 1, 2019. [Doc. 18.] In that Order, the undersigned advised Plaintiff that he was responsible for providing information sufficient to identify each defendant such that the United States Marshal Service (“USMS”) could timely serve the summons and Complaint within the 90-day limit established by Federal Rule of Civil Procedure 4(m) and that any unserved defendant may be dismissed as a party if not served within that time limit. [Id. at 2-3.] The Order further noted that the 90-day period would begin on the date on which the summons was issued. [Id. at 2.] A summons for Officer Brown was issued on November 1, 2019. [Doc. 21.] However, on December 26, 2019, that summons for Officer Brown was returned unexecuted with the notation ?SCDC OGC cannot accept-more than one defendant.” [Doc. 23-2.]
The Court provided Plaintiff with a blank summons and Form USM-285 and Ordered him ?to provide additional identifying information and/or a new updated address” for Officer Brown. [Doc. 26.] The Court further instructed Plaintiff that, if he could not provide additional identifying information or an updated address, he had to notify the Court as to whether he agreed to dismiss Officer Brown or whether he sought additional time for service of process. [Id.] Plaintiff subsequently sought and was granted an extension of time to provide this information [Docs. 32; 34], and then submitted a letter asking for additional time and explaining that he had sent a letter to the General Counsel for SCDC requesting additional information regarding Officer Brown [Doc. 40].
The Court then Ordered counsel for Defendants who had appeared ?to confer with the General Counsel of SCDC and/or prison officials to determine whether [Officer Brown could] be identified as [an] employee[] or former employee[] of SCDC” and ?to notify th[e] Court in writing as to: (1) whether he [would] accept service . . . on behalf of [Officer Brown], or (2) notify the Court in writing filed under seal of the current or last known address[]” for Officer Brown. [Doc. 42 at 2.] Counsel filed a response indicating that he could not accept service on behalf of Officer Brown, a former employee, but he provided the Court with Officer Brown’s last-known address. [Docs. 44; 45.] Accordingly, the undersigned authorized service on Officer Brown at his last-known address on February 26, 2020. [Doc. 48.]
The undersigned again advised Plaintiff that he was responsible for providing information sufficient to allow the USMS to serve the summons and Complaint within Rule 4(m)’s 90-day limit, that any unserved defendant might be dismissed as a party if not served within that time limit, and that the 90-day period would begin on the date on which the summons was issued. [Id. at 2-3.] A sealed, updated summons for Officer Brown was issued on March 1, 2020. [Doc. 51.] However, on September 11, 2020, the updated summons was returned unexecuted with the notation that the address provided was no longer good but a new address had been provided. [Doc. 136.] The returned summons and accompanying documentation also noted that the USMS had attempted to serve the summons and Complaint twice by certified mail, that no authorized recipient had been available, and that the delivery receipt had not been returned. [Id.; Doc. 136-1.]
Rule 4(m) provides that unless a particular defendant is served within 90 days after the complaint is filed, this Court must dismiss an action without prejudice as to that particular defendant. Fed. R. Civ. P. 4(m). Here, the 90-day limit began to run when the updated summons was issued on March 1, 2020. [Doc. 51.] Therefore, the deadline for service on Officer Brown was June 1, 2020. [Id.] The undersigned has provided Plaintiff with opportunities to provide a valid address for service. Indeed, the undersigned ordered counsel for the appearing Defendants to provide a last-known address for Officer Brown, the USMS attempted service at that address and was able to find a new address, and then the USPS twice attempted service at that new address. Because more than 90 days have passed since the summons was issued, the undersigned recommends that Officer Brown be dismissed from this action without prejudice.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Moving Defendants’ motion for summary judgment [Doc. 77] be GRANTED. It is further recommended that Officer Brown be dismissed without prejudice for failure to timely serve him.
IT IS SO RECOMMENDED.