Opinion
C/A No. 8:20-cv-00149-RMG-JDA
02-09-2021
Demetric Hardaway, Plaintiff, v. Lori Myers, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss or, in the alternative, for summary judgment filed by Defendant. [Doc. 40.] 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.
Plaintiff, proceeding pro se and in forma pauperis, filed this action on January 10, 2020. [Doc. 1.] Thereafter, on February 28, 2020, he filed an Amended Complaint. [Doc. 11.] Except for one, all of the claims in Plaintiff's Amended Complaint have been dismissed by the Court. [Doc. 23.] The single remaining claim is Plaintiff's First Amendment retaliation claim asserting that Defendant removed Plaintiff from a work assignment with the litter crew and reassigned him to the chicken farm after Plaintiff filed a grievance alleging he had been subjected to unhealthy, hazardous, and unsanitary work conditions. [Doc. 23 at 9-10, 13.]
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 January 10, 2020. [Doc. 1-1 at 1 (envelope stamped as received by the MacDougall prison mailroom on January 10, 2020).]
On November 2, 2020, Defendant filed a motion to dismiss or, in the alternative, for summary judgment. [Doc. 40.] The next day, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 41.] Plaintiff's response in opposition was entered on the docket on January 4, 2021 [Doc. 50], and Defendant filed a reply on January 11, 2021 [Doc. 53]. Accordingly, the motion is ripe for review.
BACKGROUND
The facts in this Background section are taken directly from Plaintiff's Amended Complaint. [Doc. 11.]
Plaintiff is a state inmate currently incarcerated at York County Prison. [Doc. 54.] The allegations in the Complaint relate to Plaintiff's incarceration at MacDougall Correctional Institution. [Doc. 11.] On May 30, 2019, Plaintiff filed an inmate grievance outlining the inadequate work conditions of his litter crew work assignment. [Id. at 6.] Defendant was assigned to investigate the claims described in the grievance. [Id.] Plaintiff alleges that, shortly after filing his grievance, Defendant removed him from the litter crew, and, on June 11, 2019, Plaintiff was reassigned to the chicken farm. [Id.]
Following his reassignment, Plaintiff was asked to sign a job board review waiver, which he rejected, and Plaintiff was threatened with a disciplinary charge if he did not sign the waiver. [Id. at 6-7.] According to Plaintiff, had he signed the job board review waiver, he would have waived his right to have a hearing with the Institutional Classification Committee. [Id. at 7.] Even though Plaintiff refused to sign the waiver, he was still not afforded a job board review hearing. [Id.] Plaintiff alleges the work reassignment was made in retaliation for his filing a grievance concerning the conditions of confinement. [Id.] Plaintiff contends that, prior to the work reassignment, he was projected to apply for a designated facility transfer on July 14, 2019, allowing him to receive inmate pay. [Id.] Plaintiff alleges that Defendant was aware of his desire for a designated facility transfer and that his work reassignment would hinder him from meeting the projected facility transfer and set him back six months. [Id.]
Plaintiff alleges that he spoke to Associate Warden Storm on June 12, 2019, about being assigned to the chicken farm, and Storm said he would look into it. [Id. at 8.] Plaintiff then submitted a kiosk to Storm on June 15, 2019, but Storm "decided not to entertain [it] because [Plaintiff] sent a similar request to Warden Taylor." [Id.] Plaintiff received feedback from Taylor on June 21, 2019, explaining that he found no fault in Defendant's conduct. [Id.] Taylor indicated that Plaintiff was reassigned for complaining about the work conditions of the litter crew. [Id.] Plaintiff alleges that, after Taylor was informed about the work conditions and Defendant's conduct, "he failed to make the necessary adjustments." [Id.] Plaintiff alleges that Taylor and Defendant have a close relationship and that Taylor gives Defendant "free rei[g]n to do just about anything she wants." [Id.] Taylor stated to Plaintiff that Defendant "'reassigns inmates all the time.'" [Id. at 9.]
Plaintiff alleges that, on June 25, 2019, he filed an inmate grievance related to his retaliation claim. [Id.] Plaintiff alleges that Frances Johnson, the Inmate Grievance Coordinator, told him that he could not file a grievance in relation to Defendant's conduct of reassigning him to the chicken farm. [Id.] According to Plaintiff, Johnson "appear[ed] to process the grievance as other, but she describe[d] the grievance as being the same as the grievance outlining the work related inadequacies." [Id.] Thus, Plaintiff alleges, Johnson marked the second grievance as a duplicate, even though it was not. [Id.] As a result, Johnson misrepresented Plaintiff's claims, thus manipulating the grievance system. [Id.] Plaintiff alleges that, on August 21, 2019, he forwarded a Request to Staff Member ("RTSM") addressed to headquarters, but he has not received a response to that letter. [Id. at 10.]
For his injuries, Plaintiff alleges that he has suffered fluctuating blood pressure, weight loss, and financial loss. [Id. at 12.] For his relief, Plaintiff seeks compensatory, monetary, and punitive damages in an amount determined by the Court. [Id.]
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 that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant'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 to Dismiss Standard
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." E. 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).
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). If on a motion pursuant to Rule 12(b)(6), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.
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:
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.(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.
DISCUSSION
In her motion to dismiss, Defendant raises four arguments as to why Plaintiff's remaining claim should be dismissed—that Plaintiff has failed to exhaust administrative remedies on the retaliation claim, that he has failed to state a claim upon which relief may be granted, that Defendant is entitled to qualified immunity, and that the claim is barred by the South Carolina Tort Claims Act. The undersigned addresses each of these arguments below.
Exhaustion
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 bears 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. 05-2187, 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 RTSM to the appropriate supervisor or staff member within eight 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 eight days of receiving a response to the RTSM. Id. "A copy of the RTSM must be attached to the Step 1 grievance form." 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. If the inmate is dissatisfied with the response he receives to the Step 1 grievance, he may then appeal with a Step 2 grievance. 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.
In her motion, Defendant asserts that "Plaintiff failed to properly initiate any grievance relating to his transfer from the litter control work program to the agricultural work program in 2019." [Doc. 40-1 at 8.] Defendant indicates that Plaintiff only "casually mention[ed]" the alleged retaliation in his Step 2 grievance of the litter crew work conditions. [Id.] In support of her argument, Defendant has provided the Court with Plaintiff's inmate grievance history report, the grievances related to the litter work crew, and an affidavit of Sherman L. Anderson, Chief of the Inmate Grievance Branch of the Office of General Counsel for SCDC. [See Docs. 40-3; 40-4; 40-5.] According to Anderson's affidavit,
[B]etween August 13, 2011 and the present date, Plaintiff filed no grievances relating to his transfer from one work crew to another. In fact, the only grievances filed by Plaintiff in 2019 appear to be his Step 1 and Step 2 grievances relating to the litter control work crew's working conditions and an August 2019 grievance relating to the quality of food provided to inmates at MacDougall Correctional Institution. I note that [Plaintiff] referenced his transfer between work crews in the Step 2 grievance he filed relating to the working conditions of the litter crew. This reference does not comply with SCDC's grievance procedure as [Plaintiff] did not attempt an Informal Resolution or file a Step 1 grievance relating to his transfer.[Doc. 40-5 ¶ 16.]
In response, Plaintiff argues that he did properly exhaust by filing a Step 1 grievance regarding retaliation. [Doc. 50 at 2.] In support of his argument, Plaintiff provides a copy of the Step 1 grievance. [Doc. 50-2.] It states,
On May 30, 2019, I filed a grievance in relation to unsafe and unsatisfactory work conditions (Litter-Crew). Almost immediately thereafter Captain Myers took me off the Litter-Crew Outcount. June 11, 2019, I was released from Litter-Crew and reassigned to the Chicken Farm. The purpose of the complaint is to show and/or establish cause that Captain Myers has engaged in Employee Misconduct and/or a Lesser Included Offense.[Id.] The Step 1 grievance was processed, signed by Frances Johnson, and deemed to be the "same as grievance MACD-0067-19." [Id.]
In her reply, Defendant acknowledges the Step 1 grievance but asserts that "[e]ven assuming arguendo that Plaintiff did complete a RTSM or an ARTSM, and also filed a Step 1 Grievance, Plaintiff identifies no evidence that he filed a Step 2 Grievance in relation to his transfer between work assignments." [Doc. 53 at 4.] Thus, Defendant asserts that Plaintiff did not exhaust all levels of SCDC's grievance procedure. [Id. at 4-5.]
The evidence provided to the Court regarding exhaustion demonstrates that Plaintiff made his initial complaints regarding the conditions of the litter crew on May 17, 2019, by way of a kiosk submission. [Doc. 40-4 at 5.] Associate Warden Hopkins responded to the complaint on May 21, 2019, noting that he had spoken with Defendant and Associate Warden Storm about Plaintiff's concerns and that the matter would be addressed. [Id.] In a Step 1 grievance form signed on May 30, 2019, and received by SCDC on May 31, 2019, Plaintiff followed up on his complaints regarding the litter crew working conditions. [Id. at 3.] Plaintiff was removed from the litter crew and reassigned to the chicken farm on June 11, 2019. [See Doc. 50-2; see also Doc. 40-2 at 2.] On June 25, 2019, Plaintiff signed a Step 1 grievance regarding his removal from the litter crew and reassignment to the chicken farm, and SCDC received that grievance on June 26, 2019. [Doc. 50-2.] Also on June 26, 2019, Plaintiff received the Warden's decision with respect to his Step 1 grievance about the litter crew conditions. [Doc. 40-4 at 4.] In a Step 2 grievance that was signed by Plaintiff and received by SCDC on June 27, 2019, Plaintiff noted that he was dissatisfied with the Warden's decision regarding the litter crew working conditions, "[a]nd for purposes of offering general information, in an act of retaliation this administration removed me from the job assignment in question, almost immediately after I filed the initial complaint." [Id. at 1.]
The Step 1 grievance references Kiosk # 19-01288326, but no further information has been provided to the Court about when the kiosk submission was made.
Based on the documentation provided to the Court, the undersigned declines to recommend that summary judgment be granted based on Plaintiff's failure to exhaust administrative remedies on his retaliation claim. The Step 1 grievance supplied by Plaintiff tends to show that Plaintiff filed both a RTSM and a Step 1 grievance regarding his retaliation claim. [See Doc. 50-2.] SCDC deemed Plaintiff's retaliation claim to be the same as his earlier grievance about the litter crew working conditions. [See id.] The next day, Plaintiff filed a Step 2 grievance regarding both issues. [Doc. 40-4 at 1.] Thus, it appears that Plaintiff has fully exhausted his retaliation claim. But at a minimum, there is a genuine issue of material fact as to exhaustion. For example, Sherman's affidavit contradicts the other documentation provided to this Court. [Compare Doc. 40-5 ¶ 16 (indicating that the only grievances filed by Plaintiff in 2019 were the Step 1 and Step 2 grievances about the litter crew working conditions and a grievance about food quality) with Doc. 50-2 (Step 1 grievance about being removed from the litter crew and reassigned to the chicken farm).] Additionally, there are questions of fact as to whether the administrative remedies were available to Plaintiff. For these reasons, the undersigned recommends that Defendant's motion be denied based on her argument that Plaintiff failed to exhaust administrative remedies.
As the Fourth Circuit Court of Appeals has recognized,
The Supreme Court [has] provided three scenarios where administrative remedies "on the books" are considered "unavailable": (1) where the procedure "operates as a simple dead end" because officials are "unable or consistently unwilling to provide any relief to aggrieved inmates[;]" (2) where the grievance process itself is so incomprehensible that "no ordinary prisoner can discern or navigate it[;]" and (3) where administrators prevent inmates from availing themselves of remedies by way of "machination, misrepresentation, or intimidation."Germain v. Shearin, 653 F. App'x 231, 232-33 (4th Cir. 2016) (second and third alterations in original) (quoting Ross v. Blake, 136 S. Ct. 1850, 1858-60 (2016)).
Failure to State a Claim
Defendant further argues that Plaintiff has failed to state a claim upon which relief may be granted. [Doc. 40-1 at 9-13.] To state a First Amendment retaliation claim under § 1983, a plaintiff must establish three elements: (1) that his speech was protected; (2) "that the defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech"; and (3) that a causal relationship existed between the plaintiff's speech and the defendant's retaliatory action. Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685-86 (4th Cir. 2000). Defendant admits that Plaintiff has identified a protected activity—his First Amendment right to file a grievance without retaliation. [Doc. 40-1 at 11.] Nevertheless, Defendant argues that "Plaintiff has not pled or otherwise identified any facts which indicate that the allegedly retaliatory conduct would likely deter a person from exercising a First Amendment right." [Id.] She further argues that Plaintiff has not demonstrated harm or that the protected conduct was a substantial or motivating factor in Defendant's decision to transfer Plaintiff. [Id. at 12.] However, the Honorable Richard Mark Gergel has already determined in this case "that Plaintiff sufficiently states a claim of retaliation for filing a grievance in violation of his First Amendment right to petition the government." [Doc. 23 at 10.] Accordingly, Defendant's motion should be denied based on her argument that Plaintiff failed to state a claim.
Qualified Immunity
Defendant asserts that she is entitled to qualified immunity in this case. Qualified immunity protects government officials performing discretionary functions from civil damage suits as long as the conduct in question does not "violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, qualified immunity does not protect an official who violates a constitutional or statutory right of a plaintiff that was clearly established at the time of the alleged violation such that an objectively reasonable official in the official's position would have known of the right. Id. Further, qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
"In determining whether an officer is entitled to summary judgment on the basis of qualified immunity, courts engage in a two-pronged inquiry." Smith v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). The first concern is whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the officer's conduct violated a federal right. See Saucier v. Katz, 533 U.S. 194, 201 (2001). The second "asks whether the right was clearly established at the time the violation occurred such that a reasonable person would have known that his conduct was unconstitutional." Smith, 781 F.3d at 100. For purposes of this analysis, a right is "clearly established" if "[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
District court judges are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). If a court decides in the negative the first prong it considers—i.e., the court decides the plaintiff has not alleged the deprivation of an actual constitutional right or the right was not clearly established at the time of the alleged violation—the court need not consider the other prong of the qualified immunity analysis. See id. at 243-45; Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991) (holding the court "need not formally resolve" the constitutional question of "whether the [plaintiffs] were arrested without probable cause" to address the plaintiffs' § 1983 claim; the court stated that it "need only determine whether [the defendant]—a deputy sheriff performing within the normal course of his employment—acted with objective reasonableness necessary to entitle him to qualified immunity").
The undersigned finds that Defendant has not met her burden as to either prong of the qualified immunity analysis at this stage of the litigation. As already addressed by the Court, Plaintiff has stated a First Amendment retaliation claim. And Defendant has not offered any evidence regarding the merits of that claim and, instead, has offered evidence only with respect to her argument that Plaintiff failed to exhaust his administrative remedies. As to the second prong of the qualified immunity analysis, the Fourth Circuit has held that "an inmate's First Amendment right to be free from retaliation for filing a grievance [is] clearly established . . . ." Booker v. S.C. Dep't of Corr., 855 F.3d 533, 546 (4th Cir. 2017). Thus, the undersigned recommends that Defendant's motion be denied based on her claim that she is entitled to qualified immunity.
South Carolina Tort Claims Act
As stated, the only claim remaining in this matter is the § 1983 retaliation claim. Thus, Defendant's argument with respect to the South Carolina Tort Claims Act is inapplicable, and her motion should be denied on this basis.
RECOMMENDATION
In light of all the foregoing, it is recommended that Defendant's motion to dismiss or, in the alternative, for summary judgment [Doc. 40] be DENIED with leave to refile.
As stated, Defendant has offered evidence only with respect to her argument that Plaintiff failed to exhaust his administrative remedies. Accordingly, the undersigned recommends that Defendant be afforded an opportunity to file a motion for summary judgment addressing the merits of Plaintiff's retaliation claim.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 9, 2021
Greenville, South Carolina