Opinion
Civil Action No. 6:17-cv-1898-TMC-KFM
07-03-2019
Clarence Scott Miller, Plaintiff, v. Officer Manning, Defendant.
REPORT OF MAGISTRATE JUDGE
This matter is before the court on the defendant's motion for summary judgment for failure to exhaust administrative remedies (doc. 66). The plaintiff filed this action pursuant to Title 42, United States Code, Section 1983, alleging that the defendant violated his constitutional rights. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Section 1983 and submit findings and recommendations to the district court.
ALLEGATIONS AND PROCEDURAL HISTORY
The plaintiff is a state prisoner, formerly housed in Evans Correctional Institution ("Evans"), part of the South Carolina Department of Corrections ("SCDC"). He alleges that on July 16, 2015, he attempted to pass through an "electrical sliding door" in the prison. Officer Manning was operating the door and closed it too quickly, causing the plaintiff's body to be "shut in the entrance of the door" (doc. 1, p. 4). As the plaintiff tried to exit the door, Officer Manning continued to close it, causing the plaintiff injuries to his gallbladder and back and pain that continues to affect him (id., pp. 4-5). In his complaint, drafted and filed prior to the plaintiff securing counsel, the plaintiff sets forth a section entitled "Exhaustion of Legal Remedies" (id., pp. 5-6). Here he alleges that he used the prisoner grievance procedure available at Evans to "solve the problem." Attached to the complaint is a Step 1 grievance form dated August 28, 2015 (received August 31, 2015), in which the plaintiff describes the incident, states he was injured, and requests medical attention and monetary damages. He also states that he "wrote Warden Sellers on Kiosk Machine" (doc. 1-4). The form contains an undated response from the Inmate Grievance Coordinator ("IGC"): "The proper procedure to see medical is to sign up for sick call. If you wish to see an outside doctor, write HCA Smith to get the outside medical care forms" (id.). The plaintiff alleges that the response did not include a Step 2 appeal form and that the IGC did not give him a chance to appeal (doc. 1 at 6).
The plaintiff, appearing pro se, filed his complaint on July 17, 2017 (doc. 1). Counsel for the plaintiff filed his notice of appearance on January 17, 2018 (doc. 36). An amended complaint has not been filed.
The defendant answered, denying the plaintiff's the allegations, including and specifically those in the "Exhaustion of Legal Remedies" section of the complaint (doc. 42, ¶ 1, ¶ 4d). The answer does not raise a stand-alone affirmative defense of exhaustion of administrative remedies.
On November 15, 2018, the plaintiff was deposed by defense counsel. The plaintiff provided sworn testimony that he began the grievance process by using the prison kiosk machine within 15 days of the incident to "do an inmate resolution" (doc. 68-1, p. 34). He states that he wrote "the warden, the head of security...and I let her know what went on" (id., p. 34). He further testified that he waited until filing his Step 1 grievance form "because you have to...give the supervisor, the warden, when you file this on the kiosk machine..., you have to give him a chance to respond" (id., p. 36). When asked about filing a Step 2 grievance, the plaintiff testified repeatedly that he was not provided with the form despite requesting it "several times" (id., pp. 29, 31-33), stating finally that the responding officer "wouldn't give me the Step 2 grievance form to file it" (id., p. 37).
On January 11, 2019, at their joint request, counsel participated in an informal telephone conference with the undersigned. As a result, the following text order was entered:
At the request of counsel an informal telephone conference was held today with the undersigned. With the consent of counsel, the amended scheduling order is hereby stayed. Counsel requests that the issue of exhaustion be considered by the Court prior to proceeding with this case. Accordingly, the defendant is ordered to submit a dispositive motion on the issue of exhaustion on or before January 25, 2019, and the plaintiff shall file any response on or before February 8, 2019. IT IS SO ORDERED.(Doc. 64). In compliance with the text order, the defendant timely filed a motion for summary judgment on the sole issue of exhaustion (doc. 66), to which the plaintiff filed a response in opposition (doc. 68). The defendant thereafter filed a reply (doc. 70).
With his motion for summary judgment, the defendant provides relevant SCDC records and the affidavit of Sherman L. Anderson, Chief of the Inmate Grievance Branch of SCDC's Office of General Counsel (doc. 66-2). Mr. Anderson testified that the records show that the plaintiff failed to complete the grievance process, as the plaintiff (1) untimely filed an Automated Request to Staff Member Form ("ARTSM") from the kiosk on July 28, 2015, which was beyond the eight working days deadline to report the July 16th incident, and (2) failed to file a Step 2 grievance form after his Step 1 grievance forms were returned (id., ¶¶ 15-18).
Mr. Anderson provides copies of two Step 1 grievance forms submitted by the plaintiff. The first was returned unprocessed (doc. 66-2, p. 9). The second was returned with the response that he sign up for medical, as set out above (id., p. 8).
In his response in opposition to summary judgment (doc. 68), the plaintiff argues that the defendant failed to raise exhaustion as an affirmative defense in his answer, and is therefore barred from raising it now. He also argues that his efforts to exhaust were frustrated by SCDC officials, so his failure to exhaust should be excused and his case here allowed to go forward (doc. 68).
The defendant filed a reply (doc. 70) countering that his failure to raise exhaustion as a stand-alone affirmative defense in his answer should not act as a waiver to prevent him from raising it now, and that the SCDC officials at Evans did not frustrate the plaintiff's efforts to exhaust his administrative remedies.
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 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). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the 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. In 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 district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (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; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff'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 the granting of 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." Id.
Exhaustion of Administrative Remedies
The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things, that prisoners exhaust their administrative remedies prior to filing civil actions concerning prison conditions under Section 1983 or any other federal law. See Jones v. Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court"). "[T]he PLRA's exhaustion requirement is mandatory," Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), 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, 532 (2002). Although PLRA exhaustion is not jurisdictional, failure to exhaust is an affirmative defense that can be pleaded by the defendants. Jones, 549 U.S. at 216; Anderson, 407 F.3d at 681. "[U]nexhausted claims cannot be brought in court." Jones, 549 U.S. at 211. "Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court." Id. at 204. It also has the "potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record." Id.
The PLRA requires "proper exhaustion" of available administrative remedies prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court noted, "[a]ggrieved parties may prefer not to exhaust administrative remedies for a variety of reasons," whether it be concerns about efficiency or "bad faith." Id. at 89-90. This is especially true in a prison context. Id. at 90 n.1. Nevertheless, "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90-91.
SCDC Grievance Procedure
The SCDC grievance procedure is outlined in SCDC Policy GA-01.12 ("Inmate Grievance System") (doc. 68-2). Subject to certain exceptions, the Inmate Grievance System requires that inmates initially attempt to resolve grievances informally by "submitting a Request to Staff Member Form to the appropriate supervisor/staff within eight (8) working days of the incident" (id. ¶ 13.2). Informal resolution is not required, however, when "the matter involves allegations of criminal activity" (id.). With respect to criminal activity complaints, the inmate must file Form 10-5, Step 1 grievance within five working days of the alleged incident (id.) The Inmate Grievance System provides:
Any grievance which alleges criminal activity will be referred immediately to the Chief/designee, Inmate Grievance Branch. The IGC will note on the grievance tracking CRT screen that the grievance has been forwarded to the Inmate Grievance Branch for possible investigation by the Division of Investigations and the date on which the grievance was forwarded. The Chief/Designee, Inmate Grievance Branch, will consult with the Division of Investigations to determine if a criminal investigation would be appropriate. If deemed appropriate, the grievance will be forwarded to the Division of Investigations, to be handled in accordance with applicable SCDC policies/procedures. The grievance will be held in abeyance until the Division of Investigations completes their review/investigation.(Id. ¶ 15). If it is determined that a criminal investigation is not required, the grievance will be processed in accordance with the procedures applicable to non-criminal activity grievances (id.).
If an inmate files a Step 1 grievance that does not involve criminal activity, the Warden is required to respond in writing within 45 days and advise the inmate of his right to appeal to the next level:
The Warden will respond to the grievant in writing (in the space provided on SCDC Form 10-5, Step 1), indicating in detail the rationale for the decision rendered and any recommended remedies. The grievant will also be informed of his/her rights to appeal to the next level. The Warden will respond to the grievant no later than 45 days from the date the grievance was formally entered into the OMS system by the IGC. The
response will be served by the IGC to the grievant, within ten (10) calendar days, and the grievant will sign and date the response acknowledging receipt. The IGC will maintain the original grievance for the inmate's grievance file and a copy will be given to the inmate.(Id. ¶ 13.5).
The inmate may then appeal by filing a Form 10.5(a), Step 2 appeal to the IGC within five days of the receipt of the response (id. ¶ 13.7). The appeal is referred to the "responsible official" who is required to make a final decision within 90 days (id.).
Failure to Plead Exhaustion as Affirmative Defense
Officer Manning concedes that his answer does not raise exhaustion as an affirmative defense, but he argues that he has not waived his ability to pursue it, as it has been the subject of pretrial matters in which the plaintiff and his counsel were involved. The undersigned agrees.
Federal Rule of Civil Procedure 8(c)(1) states in general, when responding to a pleading, "a party must affirmatively state any avoidance or affirmative defense." A defendant's failure to raise an affirmative defense typically waives the issue for the remainder of the litigation. See Staudner v. Robinson Aviation, Inc., 910 F.3d 141 (4th Cir. 2018). However, this rule is not absolute, as even if a party fails to plead an affirmative defense, the opposing party still must show "prejudice or unfair surprise" before the waiver will be enforced. See RCSH Operations, LLC v. Third Crystal Park Assocs. LP, 115 Fed.Appx. 621, 630 (4th Cir. 2004) (quoting Brinkley v. Harbor Recreation Club, 180 F.3d 598, 612 (4th Cir. 1999)).
As an initial matter, the plaintiff himself raised the issue of exhaustion in his complaint in a section he entitled "Exhaustion of Legal Remedies" (doc. 1, ¶¶ 16-19). Officer Manning answered the allegations of these paragraphs with a general denial (doc. 42, ¶ 5(d)). Thereafter and with the assistance of counsel, the plaintiff certainly became aware that exhaustion would be affirmatively raised as a dispositive matter. First, the plaintiff was deposed by defense counsel on November 14, 2018, on his efforts to comply with SCDC's grievance process following the sliding door incident (doc. 68-1, pp. 27-37). Then on January 11, 2019, at the request of counsel, an informal telephone conference was held and a scheduling order issued on the sole issue of exhaustion (doc. 64). With this advance notice, the plaintiff cannot now claim that he was surprised that exhaustion was raised, nor that he suffered prejudice as a result; indeed, he makes no such claim in his response in opposition to summary judgment (doc. 68). Accordingly, the defendant's affirmative defense of exhaustion is not waived, and the issue is properly before the court here.
Failure to Exhaust - Frustration
As set forth above, the PLRA requires proper exhaustion of available administrative remedies prior to filing suit. However, "an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered unavailable when: (1) "it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) it is "so opaque that it becomes, practically speaking, incapable of use"; or (3) "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016).
The defendant relies primarily on two perceived missteps or failures by the plaintiff in the SCDC grievance process to show that he did not properly follow or complete it before filing suit here.
1. ATRSM Informal Resolution Request
First, the defendant argues that the plaintiff filed his ARTSM informal resolution request at the kiosk on July 28, 2015, which was past the eight working days deadline since the incident occurred on July 16th. However, though not addressed by the parties, it appears that the ATRSM was in fact timely, as the SCDC policy expressly uses the term working days, rather than days, in its deadline (doc. 68-2, ¶ 13.2). The number of working days in the period of January 16-28, 2015, is in fact eight days, as four non-working weekend days within the period are not counted. Accordingly, the plaintiff's ATRSM was in fact timely, having been filed on the eighth working day.
2. Step 2 Grievance
The defendant argues that the plaintiff failed to appeal his Step 1 grievances by filing a Step 2 form. However, the plaintiff has provided sworn testimony that he requested the Step 2 form on numerous occasions, and he was not provided with it (doc. 68-1, pp. 29, 31-33, 37). It is unclear from the record why he did not receive the form, and the officials' refusal to provide it cannot be ruled out from the evidence before the court. If the plaintiff was in fact refused the Step 2 form, he was effectively prevented form completing SCDC's grievance process. In any event, the uncertainty in the record creates a genuine issue of material fact as to whether the SCDC grievance procedure was a "dead end" as described in Ross. Accordingly the defendant's motion for summary judgment on the issue of exhaustion should be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, it is RECOMMENDED that the defendant's motion for summary judgment for failure to exhaust administrative remedies (doc. 66) be denied.
IT IS SO RECOMMENDED. July 3, 2019
Greenville, South Carolina
s/Kevin F. McDonald
United States Magistrate Judge
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).