Opinion
Civil Action No. 8:04-23150-HMH-BHH.
March 6, 2006
ORDER AND REPORT OF MAGISTRATE JUDGE
The plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to Title 42, United States Code, Section 1983. This matter is before the Court on the defendants' motion for summary judgment and the plaintiff's motion to appoint counsel.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the District Court.
The plaintiff brought this action seeking damages against the defendants for placing him in the SMU unit where he allegedly had to "bear barbarous conditions from May 6, 2004 to June 4, 2004. . . ." The defendants have moved for summary judgment. By order, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. On October 25, 2005, the plaintiff filed a response to the motion for summary judgment.
LAW AND ANAYLSIS
LIBERAL CONSTRUCTION OF PRO SE COMPLAINT
The petitioner brought this action pro se. This fact requires that his pleadings be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, (1976); Haines v. Kerner, 404 U.S. 519 (1972); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Hughes v. Rowe, 449 U.S. 5 (1980) (per curiam). Even under this less stringent standard, however, the pro se Complaint is still subject to summary dismissal. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411 (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).
SUMMARY JUDGMENT STANDARD OF REVIEW
The requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. See Fed.R.Civ.P. 56(c). 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. Rather, the non-moving party must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the petitioner'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. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985).
DISCUSSION
I. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The Plaintiff has failed to exhaust his administrative remedies. 42 U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. The Prison Litigation Reform Act's exhaustion requirement is mandatory and "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes," including "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).
"To exhaust administrative remedies, a person must follow the rules governing filing and prosecution of a claim." Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Thus, the inmate must actually and strictly comply with the requirements of the administrative processes. See Houze v. Segarra, 217 F. Supp. 2d 394, 396 (S.D.N.Y. 2002) (and cases cited therein); see also Booth, 532 U.S. at 735 (noting that Booth failed to undertake any intermediate or appellate steps in the administrative process). An inmate's failure to "properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983." Pozo, 286 F.3d at 1024 (emphasis added); see also White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997) (dismissal is appropriate if the inmate fails to exhaust or only partially exhausts administrative remedies); Massey v. Wheeler, 221 F.3d 1030, 1034 (7th Cir. 2000) (same).
In his complaint, the plaintiff claims that his 8th Amendment rights were violated as a result of his treatment while in the SMU unit. Specifically, he complains that he was required to "bear barbarous conditions as [sic] from May 6, 2004 to June 4, 2004 without anything to wash with or anything to put on I only received towel, washcloth, soap, and toothbrush, toothpaste, and one boxer drawers. I never received any sheets, shower shoes, socks, I could not take showers from May 6, 2004 til [sic] I was transferred on June 9, 2004." (Complaint at 4.) According to the defendant, the plaintiff was placed in SMU because he had allegedly swallowed razor blades. (Pl.'s Resp. Summ. J. Ex. 1.)
On June 7, 2004, the plaintiff filed a grievance regarding his treatment in the SMU. (Pl.'s Resp. Summ. J. Ex. 1.) The grievance was returned to the plaintiff unprocessed because the plaintiff included more than one issue on the grievance form, which by the express terms of the form was not permitted. Id. In its response, the South Carolina Department of Corrections (SCDOC) indicated to the plaintiff that he had seven days from receipt of the response to resubmit his grievance. (Id.) The plaintiff originally had only fifteen days from the date of the alleged violation against him to file a complaint with the SCDOC. ( See Pl.'s Resp. Summ. J. Ex. 2.)
It appears that, on July 19, 2004, the plaintiff also filed a complaint with the Administrative Law Court alleging that the SCDOC had failed to process his Step 1 grievance. (Pl.'s Resp. Summ. J. Ex. 5.) Based on the plaintiff's improper inclusion of multiple issues on his grievance form, the ALJ, on August 17, 2004, remanded the matter back to the SCDOC so as to allow the plaintiff to resubmit a proper grievance. Id. On the following day, August 18, 2004, the plaintiff filed a second grievance. (Pl.'s Resp. Summ. J. Ex. 2.) In response to this second grievance, the SCDOC stated that the plaintiff had failed to file his complaint within 15 days of the alleged incident and, therefore, his grievance would not be processed. ( Id.)
The plaintiff has not exhausted his administrative remedies because he has failed to appeal the response of the SCDOC to either the Warden or the ALC thereafter as permitted. See Al-Shabazz v. State, 527 S.E.2d 742 (2000); Sullivan v. South Carolina Department of Corrections, 586 S.E.2d 124 (2003); (Def.'s Mem. Supp. Summ. J. Ex. Fowler Aff. ¶ 3.). An inmate's failure to "properly take each step within the administrative process . . . bars, and does not just postpone, suit under § 1983." Pozo, 286 F.3d at 1024 (emphasis added); see also White, 131 F.3d at 595 (6th Cir. 1997) (dismissal is appropriate if the inmate fails to exhaust or only partially exhausts administrative remedies).
The Court is additionally concerned by the SCDOC's response to the plaintiff's second grievance. The SCDOC refused to process the plaintiff's second grievance, which was materially identical to his first, because he had filed it more than 15 days from the time of the alleged violation. If it is true that the plaintiff's second grievance was untimely, then his first grievance, filed on June 7, 2004, must also have been untimely. The SCDOC, however, did not refuse the initial grievance because it was untimely but instead gave him seven additional days to file a cured grievance. The plaintiff timely filed his second grievance five days later on August 18, 2004. Not only is the plaintiff required to appeal these determinations before his claims may be considered exhausted, the Court is further persuaded that it is appropriate for the SCDOC to have an opportunity to address any questions regarding the timeliness of the plaintiff's grievances.
II. APPOINTMENT OF COUNSEL
The plaintiff requests that the Court grant him counsel because he suffers from depression and stress, which he contends constitute exceptional circumstances. The United States Supreme Court has held that "an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Lassiter v. Department of Social Services, 452 U.S. 18, 26-27 (1981). Accordingly, it is well settled that there is no right to the appointment of counsel in an action brought pursuant to 42 U.S.C. § 1983. See Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir. 1975). While the Court does possess power to exercise discretion to appoint counsel for an indigent in a civil action, such an appointment is made "only in exceptional cases." Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975).
If the plaintiff loses this lawsuit, he will clearly not lose his personal liberty since he is already an inmate within the Department of Corrections, and even if he prevails, the plaintiff will not be released from custody. Moreover, the Court disagrees that there is any evidence or reason to believe that the plaintiff's alleged depression and stress constitute exceptional circumstances. Thus far, he has been able to adequately express his arguments in a competent manner. Notwithstanding, the plaintiff is not prejudiced by any lack of counsel at this juncture. He has not exhausted his administrative remedies and the undersigned has recommend to the District Court that the plaintiff's Complaint should be dismissed, but without prejudice to his ability to refile at a later time.
CONCLUSION
Wherefore, it is ORDERED that the plaintiff's motion to appoint counsel is DENIED. It is RECOMMENDED that the defendants' Motion for Summary Judgment be GRANTED and the plaintiff's Complaint dismissed without prejudice.
It is so ORDERED and RECOMMENDED.