Opinion
Case No. 8:16-cv-03811-TMC-JDA
07-27-2017
Timothy A. Evans, #128262, Plaintiff, v. William R. Byars, Jr., Dennis Patterson, John R. Pate, Arthur Jordan, McKendly Newton, Walter Worrock, Ricky Grimes, Larry Morris, George Jenkins, Rump, Bealum, Keith Wallace, John Barkley, Donaldson, Spalding, M. Smart, Ann Hallman, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff, proceeding pro se, filed this action on November 30, 2016, against William R. Byars, Jr., Dennis Patterson, John R. Pate, Arthur Jordan, McKendly Newton, Walter Worrock, Ricky Grimes, Larry Morris, George Jenkins, Rump, Bealum, Keith Wallace, John Barkley, Donaldson, Spalding, M. Smart, and Ann Hallman, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. [Doc. 1-1.] On February 16, 2017, William R. Byars, Jr., Dennis Patterson, John R. Pate, Arthur Jordan, McKendly Newton, Walter Worrock, Ricky Grimes, Larry Morris, George Jenkins, Rump, Keith Wallace, John Barkley, Donaldson, M. Smart, and Ann Hallman (collectively, the " Moving Defendants") filed an Answer and a "Motion to Dismiss" the action "pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and S.C. Code Ann. §§ 15-3-530(5), 15-3-545, and 15-78-110." [Docs. 14, 16.] After receiving several extensions of time in which to respond, Plaintiff filed a response in opposition to the motion to dismiss, and, after receiving an extension of time, the Moving Defendants filed a reply. [Docs. 90, 96]. Accordingly, the motion to dismiss is ripe for review. 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., this 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.
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 November 30, 2016. [Docs. 1-2 & 1-3 (envelopes, stamped as received by the prison mailroom on November 30, 2016.]
Bealum (also identified by Plaintiff as Sapp) is not represented by counsel. [See Docs. 14, 16, 22, 24.] A summons was issued for her on January 12, 2017, and was returned unexecuted on February 16, 2017. [Docs. 11, 17.] On March 14, 2017, the Court ordered service of a second summons for Bealum (or Sapp); the summons was returned unexecuted on April 17, 2017. [Docs. 39, 41, 65.] On May 2, 2017, the Court ordered the attorney who had entered an appearance in this case, Michael C. Tanner, to consult with counsel for the South Carolina Department of Corrections ("SCDC") to ascertain whether Bealum (or Sapp) had been employed by the SCDC on the date of the incident at issue, and to so inform the court. [Doc. 72.] Mr. Tanner has stated that the SCDC Office of General Counsel has indicated that Bealum (or Sapp) was not an employee of SCDC at the time of the incident at issue; accordingly, Mr. Tanner was not authorized to accept service of process for this person. [Doc. 75.] On June 19, 2017, the Court issued a Report and Recommendation recommending that Bealum (or Sapp) be dismissed from this action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. [Doc. 87.] Plaintiff timely filed objections to the Report and Recommendation, and Defendants have filed a reply thereto. [Docs. 94, 97.]
Spalding is not represented by counsel. [See Docs. 14, 16, 22, 24.] A summons was issued for Spalding on January 12, 2017, and was returned unexecuted on February 16, 2017. [Docs. 11, 17.] On March 14, 2017, the Court ordered the service of a second summons for Spalding; the summons was returned unexecuted on April 17, 2017. [Docs. 39, 41, 65.] On May 2, 2017, the Court ordered Mr. Tanner to consult with SCDC's counsel to ascertain whether Spalding had been employed by the SCDC on the date of the incident at issue, and to so inform the court. [Doc. 72.] On May 19, 2017, Mr. Tanner responded to the Court's Order [Doc. 75], and on May 23, 2017, the Court ordered the service of a third summons for Spalding. [See Docs. 80, 82.] Spalding was served on June 17, 2017, and filed a pro se Answer on July 10, 2017. [Docs. 89, 95.]
Summonses were issued to all captioned defendants on January 12, 2017. [Doc. 11.] The summons for Keith Wallace was returned unexecuted; it was noted that this individual had died on February 17, 2016. [Doc. 49 at 1-2.] Nonetheless, Mr. Tanner has indicated that he is representing Keith Wallace. [See Docs. 14, 16, 36, 51, 60.]
The summons for Ann Hallman was returned unexecuted on April 27, 2017. [Doc. 67 at 1-2.] Mr. Tanner has indicated that he is representing Ann Hallman. [See Docs. 14, 16, 36, 51, 60.]
BACKGROUND
The facts included in this Background section are taken directly from Plaintiff's Complaint. [Doc. 1.]
At all times relevant to this action, Plaintiff was in the custody of the SCDC and housed in the Special Management Unit ("SMU") at Allendale Correctional Institution ("ACI"). [Doc. 1 at 5.] Liberally construed, the Complaint alleges the following facts.
Plaintiff has been housed at Lee Correctional Institution since the time he filed the Complaint. [Doc. 1.]
On September 13, 2012, Plaintiff was under mental health care, and Defendants knew, or should have known of this fact because he had been prescribed "Zoloff, Doxepin, and Holopridol." [Id. at 31, 37, 54.] On that date, Barkley told Plaintiff that he would have to move cells; in response, Plaintiff said that because he was a "mental health" inmate, SCDC policy required that mental health would have to order the transfer to another cell. [Id. at 27.] Barkley said he would relay this information to Bealum. [Id.] Plaintiff began to pack his belongings. [Id.] A few hours later, Bealum told Plaintiff she would confirm his mental health status with Grimes. [Id.]
The Court understands these medications to be Zoloft, Doxepin, and Haloperidol, which is sold under the trade name Haldol.
Plaintiff was lying on his mattress when he heard other SMU inmates beating on their cell doors to draw the attention of the SMU officials who had abandoned their duty post. [Id. at 28.] Wallace responded and told the inmates that if they did not stop beating on their doors, he was going to mace them. [Id.] Plaintiff called out to Wallace and told him "that he needed to see the fat-wom[a]n," referring to Bealum, and upon hearing this, "Wallace['s] whole demeanor change[d]." [Id.] Wallace walked up to Plaintiff's cell, unholstered his can of mace, and told Plaintiff to sit down before he was maced. [Id. at 28-29.] Plaintiff watched as Wallace took out the key to open Plaintiff's cell door security flap, and having seen Wallace mace other prisoners, Plaintiff put his mattress against his door in self-defense. [Id. at 29.] Wallace opened Plaintiff's service flap and sprayed mace on the mattress, re-holstered his mace canister, and then began to punch the mattress until Plaintiff let go of it. [Id. at 29-30.] Wallace then sprayed mace on Plaintiff's arms and face and on the walls, toilet, and sink in the cell before closing and locking Plaintiff's service flap, leaving Plaintiff enclosed in his cell "breathing an extreme quan[t]ity of chemical toxin." [Id. at 30.] Plaintiff felt pain in his right lung, face, and arms because of the mace; he began to spit up blood; he suffered convulsions and swelling of his arms and face. [Id. at 6, 30.] At the time of this incident, Plaintiff alleges he had not been acting in violation of any prison policy that would have justified the use of mace against him. [Id. at 30-31.]
Plaintiff had been stabbed by another inmate on March 3, 2001, resulting in a puncture wound to his right lung, which then collapsed. [Doc. 1 at 43, ¶¶ 43-44.]
A few hours later, Bealum, Barkley, and "John Doe Defendant(s)" approached Plaintiff's cell, and Bealum told Plaintiff to turn his back to the cell door so he could be restrained. [Id. at 31.] Plaintiff told Bealum of his injuries, Bealum told him to stop complaining or he would be maced again. [Id.] Plaintiff was escorted out of his cell to the SMU holding cell. [Id.] Grimes asked Plaintiff what had happened, and Plaintiff told him that Wallace had failed to adhere to the SCDC policy regarding the use of mace. [Id. at 31-32.] Grimes told Plaintiff he had checked the computer and confirmed that Plaintiff was under mental health care and should not have been moved from his cell, and told Bealum to return Plaintiff to his cell. [Id. at 32-33.] Bealum asked Plaintiff the reason Wallace had maced him, and Plaintiff said, "Because I called you fat." [Id. at 33.] Bealum replied: "That's how I train him." [Id.]
Plaintiff does not further identify these persons.
On the way to his cell, Plaintiff asked Rump to take photographs of his cell and his mace-saturated mattress, but Rump refused. [Id. at 34.] Barkley and the John Doe Defendants removed Plaintiff's personal property from his cell, and Plaintiff was forced to sleep on the concrete and steel bed without a mattress, bed linens, or pillow; he did not have a T-shirt, jumpsuit, socks, or footwear. [Id. at 34-35, 44.] The only clothing he was provided was boxer shorts; he was confined to this "dry cell" for forty-two (42) days, from September 13, 2012, to October 25, 2012. [Id. at 36, 45, 54.] As a result of these conditions of confinement, Plaintiff suffered swollen legs and feet. [Id. at 34-35, 36-37.]
Worrock issued a Memorandum to Plaintiff, dated September 14, 2012, informing him that due to the September 13, 2012 incident, he would be deprived of a mattress and linens for thirty (30) days. [Doc. 1-1 at 18.]
Plaintiff alleges Bealum has failed to supervise and train her subordinates in violation of SCDC policy and procedure [id. at 33-34], and that Grimes, Bealum, Barkley, Rump, and Wallace prevented Plaintiff from receiving medical care for his serious medical needs, and that he was never referred to medical after Wallace maced him [id. at 35, 41]. He contends that the day after the incident, Plaintiff shouted at Nurse Spalding and Donaldson; both "looked towards plaintiff['s] cell then ran off of" the SMU wing. [Id. at 41.] Plaintiff further alleges that Pate, Jordan, Newton, Worrock, Morris, Jenkins, and Byars acquiesced to Plaintiff's conditions of confinement without basic minimum necessities. [Id. at 39, 41-42.] Plaintiff also contends that Defendants engaged in criminal activity, pursuant to SCDC policy and custom, to deny him access to the courts. [Id. at 37-38.]
Plaintiff filed numerous grievances about these issues. [Id. at 8.] He alleges that he believed SCDC would send the issues to the Department of Investigation because he alleged criminal activity. He further alleges that the grievance process was not concluded until December 5, 2014, when the South Carolina Administrative Law Court "(ALC") filed its Order of Dismissal dismissing his appeal of the SCDC's denial of his Step 2 grievance. [Doc. 1-1 at 22.] He argues that because he had three years from that date to file a lawsuit, his case is timely.
Plaintiff advances violations of his rights under the Eighth Amendment due to the excessive use of mace in his cell and due to the deliberate indifference to his serious medical needs. [Doc. 1 at 6.] He alleges that ACI had a practice, policy or custom ("Policy") that permitted female officers in the SMU to spray excessive amounts of pepper spray or mace into the cells of inmates who violated certain SCDC disciplinary rules. Specifically, he contends that Byars, Patterson, Pate, Jordan, Newton, Worrock, Grimes, Morris, Jenkins, Rump, Bealum, Barkley, and Donaldson created, encouraged, and acquiesced to the Policy, that Wallace acted in accordance with the Policy, that Spalding acted with deliberate indifference to his serious medical needs that arose because of the Policy, and that Smart and Hallman deprived him of his access to the courts, in violation of the First Amendment (accessing the courts took "four (4) years"). [Id. at 8, 15-23.] He also asserts violations of the Fourteenth Amendment Due Process Clause (taking of personal property without a hearing). [Id. at 8, 15, 22-23.] Plaintiff seeks compensatory and punitive damages, a declaration that his constitutional rights have been violated, an injunction to prevent unconstitutional practices against him, and an order terminating the employment of all of the named defendants. [Id. at 45-53.]
Plaintiff lists these rules as: (1) #822 [sexual misconduct]; (2) #1.09 [indecent exposure]; and (3) #854 [exhibitionism and public masturbation]. [Doc. 1 at 16.]
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)).
Motion Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure
As previously mentioned, the Moving Defendants filed their "Motion to Dismiss" pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. "Under Rule 12(c), a party may move for judgment on the pleadings any time after the pleadings are closed . . . ." Prosperity Mortg. Co. v. Certain Underwriters At Lloyd's, London, No. GLR-12-2004, 2013 WL 3713690, at *2 (D. Md. July 15, 2013). The pleadings are closed when the defendant files an answer. Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405 (4th Cir. 2002). Regardless of the Moving Defendants' labeling of the motion as one to dismiss, as it is clearly filed pursuant to Rule 12(c), the Court will consider it as a motion for judgment on the pleadings. "[A] Rule 12(c) motion for judgment on the pleadings is decided under the same standard as a motion to dismiss under Rule 12(b)(6)." Bierman Family Farm, LLC. v. United Farm Family Ins. Co., C.A. No. ADC-17-0004, 2017 WL 2992480, at *3, n.5 (D. Md. July 13, 2017) (quoting Deutsche Bank Nat'l Trust Co. v. I.R.S., 361 F. App'x 527, 529 (4th Cir. 2010) (per curiam)).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) ("[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.").
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)—the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ. P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 ("Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of "entitlement to relief."'" (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
DISCUSSION
The Moving Defendants have moved for judgment on the pleadings in this matter, arguing that Plaintiff failed to exhaust his administrative remedies prior to filing this action and that he filed his action outside the applicable statute of limitations. [Docs. 16; 16-1.] The Court will address each of these arguments in turn.
Exhaustion of Administrative Remedies
The Moving Defendants contend that Plaintiff has failed to comply with the Prison Litigation Reform Act ("PLRA"), codified at 42 U.S.C. § 1997e. [Docs. 16; 16-1 at 2.] Section 1997e 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). Defendants have the burden of establishing that a plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005).
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). Pursuant to the SCDC Inmate Grievance Procedure, an inmate seeking to complain of prison conditions must first:
[M]ake an effort to informally resolve a grievance by either submitting a Request to Staff Member Form or discussing it with the appropriate staff member. If informal resolution is not possible, the inmate then completes a Form 10-5, also known as a Step 1 Grievance, and submits it to the employee designated by the warden within fifteen days of the alleged incident. If the inmate is not satisfied with the decision, he may appeal to the Division Director of Operations. The appeal is accomplished by completing a SCDC Form 10-5a, also known as a Step 2 Grievance and submitting it and the Step 1 Grievance to the Institutional Inmate Grievance Coordinator within five days of the receipt of the response. The responsible official renders a final decision which is SCDC's final response. An inmate who wishes to appeal the decision has thirty days to appeal to the South Carolina Administrative Law Court ("ALC").James v. Jones, No. 0:13-cv-1869, 2014 WL 3867813, at *2-3 (D.S.C. Aug. 5, 2014) (citing McDowell v. Ozmint, No. 12-cv-2799, 2011 WL 2731202, at *2 (D.S.C. Nov. 5, 2011)); see also Malik v. Ward, No. 8:08-cv-1886, 2010 WL 936777, at *2 n.4 (D.S.C. Mar. 16, 2010) ("The court may take judicial notice of the SCDC grievance process.").
Plaintiff contends he exhausted his administrative remedies. [Doc.1 at 37-41, 43-44.] On September 29, 2012, he filed a "Request to Staff Member" form regarding the "dry cell" punishment, and a "Request to Staff Member" form alleging excessive use of force, excessive use of restraints, and cruel and unusual punishment (dry celling) in violation of the Eighth Amendment. [Doc. 1-1 at 10, 13.] On October 23, 2012, he filed a "Request to Staff Member" form regarding SCDC employees carrying out the Policy, which caused cruel and unusual punishment and involved excessive use of force; he also alleged he was being denied access to the courts because his grievances were being returned to him. [Id. at 31-36.]
On October 2, 2012, Plaintiff filed a Step 1 grievance (ACI-0875-12) alleging Defendants' violation of SCDC policies; he also alleged cruel and unusual punishment and excessive use of force. [Id. at 14-17.] The Step 1 grievance (ACI-0875-12) was denied on October 15, 2012, and received by Plaintiff on October 17, 2012. [Id. at 15.] Plaintiff appealed the denial of ACI-0875-12 by filing a Step 2 grievance on October 22, 2012. [Id. at 19-21.] Plaintiff's Step 2 grievance was denied on October 10, 2014, and Plaintiff received notice of the decision on October 29, 2014. [Id. at 19.]
"Courts within the District of South Carolina have found an inmate exhausts his administrative remedies when he completes all steps of a prison's grievance procedure, and § 1997e(a) does not require inmates to further appeal to South Carolina's Administrative Law Court." Gunnells v. Goodman, C.A. No. 8:14-1978-MGL, 2015 WL 4257199, at *6 (D.S.C. July 14, 2015) (citing Ayre v. Currie, C.A. No. 0:05-3410-HMH-BM, 2007 WL 3232177, at *7 n.5 (D.S.C. Oct. 31, 2007); Charles v. Ozmint, C.A. No. 2:05-2187-DCN-RSC, 2006 WL 1341267, at *4 (D.S.C. May 15, 2006)). "Thus, it is not necessary for Plaintiff to proceed to the state judicial system to have exhausted his administrative remedies." King v. McPherson, C.A. No. 0:15-cv-2358-RBH, 2017 WL 490111, at *4 (D.S.C. Feb. 6, 2017), aff'd, — F. App'x —, 2017 WL 2304366, at *1 (4th Cir. 2017) (per curiam). Because Plaintiff pursued his administrative remedies through SCDC's Step 2 grievance process, he has exhausted his administrative remedies. Therefore, it is recommended that the Moving Defendants' motion, insofar as it is based on the failure to exhaust administrative remedies, be denied.
Statute of limitations
The Moving Defendants contend that Plaintiff filed this action outside the applicable statute of limitations, relying on S.C. Code Ann. §§ 15-3-530(5), 15-3-545, and 15-78-110. [Docs. 16; 16-1 at 1-2.] In his Complaint, Plaintiff claims he filed his action within the statute of limitations. [Doc. 1 at 44.]
Section 15-3-530(5) provides for a three-year statute of limitations for "an action for assault, battery, or any injury to the person or rights of another, not arising on contract and not enumerated by law, and those provided for in Section 15-3-545 . . . ."
Section 15-3-545 is titled "Actions for Medical Malpractice" and provides for a three-year statute of limitations; the action "must be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence, or as tolled by this section."
Section 15-78-110 applies to actions brought pursuant to the South Carolina Tort Claims Act ("SCTCA") and provides for a two-year statute of limitations; an action must be "commenced within two years after the date the loss was or should have been discovered; provided, that if the claimant first filed a claim pursuant to this chapter then the action for damages based upon the same occurrence is forever barred unless the action is commenced within three years of the date the loss was or should have been discovered."
The Moving Defendants contend that Plaintiff's "state law claims" have a "two year statute of limitation which will have expired September 17, 2014, pursuant to S.C. Code of Laws, Ann. § 15-78-110 and Pollard v. County of Florence, 314 S.C. 397, 444 S.E.2d 534 (S.C. App. 1994)." [Doc. 16-1 at 2.] The Court does not construe Plaintiff's Complaint as asserting state law claims pursuant to the SCTCA. To the extent the District Court disagrees with this construction of Plaintiff's Complaint, the Court notes that the SCTCA "provides a two-year statute of limitations for personal-injury torts alleged against employees of state agencies, such as SCDC." Wilder v. Byars, C.A. No. 3:12-1743-CMC-JRM, 2013 WL 3155619, at *3 (D.S.C. June 20, 2013) (citing S.C. Code Ann. § 15-78-110)). Exhaustion of SCDC's administrative remedies is not required before filing an action pursuant to the SCTCA. Buff v. S.C. Dep't of Corrs., C.A. No. 5:13-01901-TLW-KDW, 2014 WL 3867996, at *4 (D.S.C. Aug. 6, 2014) (citing S.C. Code Ann. § 15-78-80(f)). "Therefore, the two-year SCTCA statute of limitations is not tolled while plaintiffs pursue administrative remedies." Id. As previously noted, the incident at issue occurred on September 13, 2012; thus, even if Plaintiff has alleged claims pursuant to the SCTCA, the applicable two-year statute of limitations would have expired on September 13, 2014, approximately two years before Plaintiff filed the Complaint in this action. Therefore, to the extent that the District Court construes any of Plaintiff's claims as alleged pursuant to the SCTCA, these claims would be barred by the SCTCA's statute of limitations.
The Moving Defendants argue that Plaintiff failed to bring his action within the three-year statute of limitations for "an action for assault, battery, or any injury to the person or rights of another, not arising on contract and not enumerated by law, and those provided for in [medical malpractice claims.]" [Doc. 16-1 at 1 (referring to S.C. Code Ann. § 15-3-530(5) & 15-3-545).] The Moving Defendants use September 13, 2012, the date of the mace incident, as the date that any statute of limitations began to run. [Doc. 16-1 at 2.] According to the Moving Defendants, the Plaintiff's action, filed on "December 1, 2016" is untimely and must be dismissed. [Id.]
As mentioned previously, Plaintiff filed his Complaint on November 30, 2016, pursuant to Houston v. Lack.
The Moving Defendants appear to misapprehend the date to use for calculating the statute of limitations. See Saucillo v. Samuels, C.A. No. 0:12-cv-240-TMC, 2013 WL 360258, at *2 (D.S.C. Jan. 30, 2013) (holding that § 1983's three-year statute of limitations is tolled during the prison administrative exhaustion process). The District Court's teaching in Saucillo is instructive to the case at bar and merits quotation at length:
Section 1983 does not specify a statute of limitations, so, courts fill the gap by applying the applicable state law statute of limitations, usually the limitations period for a personal injury claim. See Wallace v. Kato, 549 U.S. 384, 387, 127 S. Ct. 1091, 166 L. Ed.2d 973 (2007); Nat'l Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1161 (4th Cir. 1991). In South Carolina, personal injury claimants are subject to a three year limitations period. S.C. Code Ann. § 15-3-530(5) (mandating a three year statute of limitations for "an action for assault, battery, or any injury to the person or rights of another, not arising out of contract and not enumerated by law"). Thus, "[t]he statute of limitations for section 1983 causes of action arising in South Carolina is three years." Hamilton v. Middleton, No. 4:02-1952-23, 2003 WL 23851098, at *4 (D.S.C. June 20, 2003).
Because the limitations period and decisions regarding tolling are so interrelated, "federal courts must 'also borrow [ ] the state's tolling rules.'" Peoples v. Rogers, No. 8:10-24-CMC-BHH, 2010 WL 424201, at *1 (D.S.C. Feb. 1, 2010) (quoting Smith v. City of Chicago Heights, 951 F.2d 834, 839-40 (7th Cir. 1992)). The relevant South Carolina tolling statute states: "When the commencement of an action shall be stayed by . . . statutory prohibition the time of the . . . prohibition shall not be part of the time limited for the commencement of the action." S.C. Code Ann. § 15-3-100. Thus, federal courts applying this provision to § 1983 actions should toll the statute of limitations when a statutory bar delays the plaintiff from commencing the suit.2013 WL 360258, at *1-2. Applying Saucillo to the present case, the statute of limitations for Plaintiff's § 1983 claims is three years. See id. at *1 (citing 15-3-530(5)). Plaintiff's Complaint is based on incidents that occurred on September 13, 2012. He pursued the SCDC administrative grievance process, as required by 42 U.S.C. § 1997e(a), during which time the statute of limitations was tolled. See Saucillo, 2013 WL 360258, at *1-2.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prevents prisoners from bringing § 1983 actions until they have exhausted all available administrative remedies. See 42 U.S.C. § 1997e(a). Thus, many circuits with similar tolling statutes "have concluded that federal courts should toll state statutes of limitations while inmates exhaust their administrative remedies under § 1997e." Peoples, 2010 WL 424201 at *2 (citing Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000); Harris v. Hegmann, 198 F.3d 153, 157-59 (5th Cir. 2009)). The Fourth Circuit has not ruled on the relationship between § 1997e and South Carolina's tolling statute, but this court adopts the reasoning above. Accordingly, the statute of limitations is tolled in this case until Saucillo exhausted all available administrative remedies.
Plaintiff contends that the SCDC grievance process was not concluded until December 5, 2014, the date on which the ALC issued its order dismissing Plaintiff's appeal of the SCDC's denial of his Step Two grievance. [Doc. 1-1 at 22.] Plaintiff argues he had three years from December 5, 2014, to file this action; as he filed his case on November 30, 2016, he asserts it is timely. [Doc. 1 at 44.]
In the "Decision and Reason" portion of the grievance form, the reason for denying the grievance was typed in, as was the following statement: "You may appeal this decision under the Administrative Procedures Act to the Administrative Law Court. In order to appeal, you must fill out the attached Notice of Appeal Form and submit is as instructed on the form within 30 days of receipt." [Doc. 1-1 at 19.] Below the typewritten text, the Step 2 grievance form states: "The decision rendered by the responsible official exhausts the appeal process of the Inmate Grievance Procedure." [Id. at 19.]
To be sure, some authority supports using the December 5, 2014 date. In Wise v. Ozmint, the District Court, without discussion, adopted the report and recommendation of a magistrate judge who, relying on Saucillo, found that the date of the ALC's order of dismissal triggered the running of the three-year statute of limitations: "[T]o the extent the issues raised by the plaintiff in [the] grievance . . . constitute viable Section 1983 claims, the three year statute of limitations applicable to said claims began to run when his administrative remedies [before the ALC] were exhausted on July 3, 2008, and expired on July 3, 2011." C.A. No. 6:13-cv-3414-RMG-KFM, 2015 WL 3902192, at *4 (D.S.C. June 24, 2015), appeal dismissed, 625 F. App'x 221 (4th Cir. 2015) (per curiam). However, other authority supports tolling the statute of limitations only until the date on which the inmate was due a final response to a grievance. Washington v. Pratt, C.A. No. 9:16-3218-RMG-BM, 2017 WL 1740472, at *3 (D.S.C. Apr. 13, 2017) (collecting cases), Report and Recommendation adopted by 2017 WL 1745463 (D.S.C. May 3, 2017). Because the Moving Defendants base their statute of limitations calculation on the date of the incident and fail to address tolling during the prison administrative exhaustion process, it is recommended that the Moving Defendants' motion, insofar as it is based on the untimely filing of the Complaint, be denied.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Moving Defendants' motion to dismiss [Doc. 16] be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 27, 2017
Greenville, South Carolina