Opinion
C/A 9:21-cv-00523-RMG-MHC
08-01-2022
John Ervin Wilson, Jr., Plaintiff, v. Nurse Jackson, Defendant.
ORDER AND REPORT AND RECOMMENDATION
MOLLY H. CHERRY, MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while he was incarcerated within the South Carolina Department of Corrections (“SCDC”) at the Kershaw Correctional Institution. ECF No. 1. Specifically, Plaintiff alleges Eighth Amendment claims against Defendant Nurse Jackson for deliberate indifference to a serious medical need. Id. This matter is before the Court on Plaintiff's Motion for Hearing, ECF No. 79, and Motion for Default Judgment, ECF No. 86, as to Defendant Nurse Jackson. ECF No. 79.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because Plaintiff's Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the following reasons, the undersigned denies Plaintiff's Motion for Hearing and recommends denying the Motion for Default Judgment and dismissing the claims against Defendant Nurse Jackson.
I. PROCEDURAL BACKGROUND
Plaintiff seeks a hearing and a default judgment against Defendant Nurse Jackson for her failure to answer or otherwise respond to his Complaint. Plaintiff filed this lawsuit on February 18, 2021. ECF No. 1. On March 18, 2021, the Court directed Defendants to file an answer to the Complaint or otherwise plead. ECF No. 14. After process was served, all Defendants except Nurse Jackson responded to the Complaint. ECF Nos. 25, 52. On October 6, 2021, the Clerk of Court, upon Plaintiff's request, entered default as to Nurse Jackson. ECF Nos. 64, 65.
On May 9, 2022, the undersigned issued a Report and Recommendation, which recommended that the Motion for Summary Judgment-filed by all Defendants except Nurse Jackson-be granted. ECF No. 73.
On May 25, 2022, the undersigned entered a text order directing the clerk to send a copy of the public docket sheet to Defendant Nurse Jackson, as it was unclear whether Plaintiff had properly served his Request for Entry of Default on Nurse Jackson. ECF No. 76.
The address provided by Plaintiff for Defendant Nurse Jackson in his Summons forms was the address for the Kershaw Correctional Institute at 4848 Gold Mine Highway in Kershaw, South Carolina. ECF Nos. 19 at 2; 45. However, the USMS could not locate Defendant Nurse Jackson at that address. ECF No. 19 at 2. Instead, it appears the USMS served the husband of Defendant Nurse Jackson at a home address, which has been redacted from the public record. ECF No. 45. Accordingly, it is unclear how Plaintiff would or could have had access to the correct address for Defendant Nurse Jackson for purposes of serving his Request for Entry of Default. While Plaintiff included a “proof of service” with his Request, he did not provide an address or other information as to where he may have served the Request on Defendant Nurse Jackson. ECF No. 64 at 2.
On June 14, 2022, the Court granted the Motion for Summary Judgment as to all
Defendants except Nurse Jackson. In so doing, the Court found that “Plaintiff filed suit in this action prior to exhausting his administrative remedies” and “identified no evidence that the administrative remedies of the South Carolina Department of Corrections were unavailable or inadequate,” such that “dismissal of this action is mandatory.” ECF No. 81 at 4.
Those Defendants-Defendants Ofc. Givens, Lt. Riggins, Capt. Smith, Major Commander, Dr. Burnham, RN Williams, Capt. Goodwin, Lt. Summers, and Norwood-have been dismissed from this action. See ECF No. 81. Thus, the only Defendant remaining in this case is Nurse Jackson.
Plaintiff filed the Motion for Hearing on June 13, 2022, and the Motion for Default Judgment on June 29, 2022. ECF Nos. 79, 86. A copy of each of the Motions was mailed to Defendant Nurse Jackson at the same address where the Complaint was served on her. ECF Nos. 84, 85, 87, and 88. Defendant Nurse Jackson has not filed any response or otherwise made an appearance in the action.
II. LEGAL STANDARD
Once entry of default has been entered pursuant to Federal Rule of Civil Procedure 55(a), Rule 55(b) permits entry of default judgment against properly served defendants who failed to file responsive pleadings. In determining whether to enter judgment on the default, “[t]he court must . . . determine whether the well-pleaded allegations in [Plaintiff's] complaint support the relief sought in this action.” Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001); see also Fed.R.Civ.P. 8(b)(6) (“An allegation - other than one relating to the amount of damages -is admitted if a responsive pleading is required and the allegation is not denied.”).
However, a defendant is not deemed to have admitted conclusions of law and the entry of “default is not treated as an absolute confession by the defendant of [her] liability and of the plaintiff's right to recover.” Ryan, 253 F.3d at 780 (citation omitted); see also J & J Sports Prods., Inc. v. Romenski, 845 F.Supp.2d 703, 705 (W.D. N.C. 2012). Thus, it is for the Court to determine whether the facts, as alleged, support Plaintiff's Motion for Default Judgment and the relief sought. See Ryan, 253 F.3d at 780; Romenski, 845 F.Supp.2d at 705.
Additionally, “[i]f the court finds that liability is established, it must then determine damages.” Romenski, 845 F.Supp.2d at 706. “The court must make an independent determination regarding damages, and cannot accept as true factual allegations of damages.” Id.
III. DISCUSSION
Plaintiff alleges in his Complaint that on January 20, 2021, former defendants Givens and Riggins used excessive force by using mace on him on two occasions, putting pressure on his neck and back while he was in restraints, and shoving him. ECF No. 1 at 7. He claims that he was not allowed to shower and did not have access in his cell to wash off the mace for more than a day. ECF No. 1 at 7-8. Plaintiff maintains that medical personnel looked at his injuries but failed to provide him with medical treatment and would not allow him a shower. ECF No. 1 at 7-10. As to Defendant Nurse Jackson specifically, Plaintiff alleges that she denied him a shower, stating “due to [former defendants] Doctor Burnham and RN Ms. Williams denying shower and treatment, that she was doing the same . . .” ECF No. 1 at 8. He claims that he suffered from breathing problems, vision problems, eye pain, a swollen right hand, dislocated fingers, hip pain, back pain, neck injuries, burning flesh (from the chemical munitions), and mental injuries because of the alleged incident. ECF No. 1 at 10. He seeks monetary damages. Id.
The undersigned finds that, as a result of Defendant Nurse Jackson's failure to answer or otherwise defend against any well-pled allegations in Plaintiff's Complaint against her, those allegations are deemed admitted. Ryan, 253 F.3d at 780. However, Defendant Nurse Jackson is not deemed to have admitted conclusions of law and the entry of “default is not treated as an absolute confession by the defendant of [her] liability and of the plaintiff's right to recover.” Id. (citation omitted); see also Romenski, 845 F.Supp.2d at 705. Thus, it is for the Court to determine whether the facts, as alleged, support Plaintiff's Motion for Default Judgment against Defendant Nurse Jackson and the relief sought. See Ryan, 253 F.3d at 780; Romenski, 745 F.Supp.2d at 705.
Although Plaintiff has requested a hearing in this matter, he is not entitled to one. Moreover, the record and issues before the Court are clear, such that a hearing would not aid the Court in reaching a decision in this matter. Accordingly, Plaintiff's Motion for a Hearing, ECF No. 79, is DENIED.
This Court has already determined that Plaintiff failed to exhaust his administrative remedies as to all other Defendants, who have now been dismissed from this case. This finding applies equally to Defendant Nurse Jackson.
The PLRA requires an inmate to exhaust “such administrative remedies as are available” before bringing suit under § 1983 to challenge prison conditions. Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)). The PLRA “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).
Notably, administrative exhaustion under § 1997e(a) is not a jurisdictional requirement and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust administrative remedies is an affirmative defense to be pleaded and proven by defendants. See Jones v. Bock, 549 U.S. 199, 215-16 (2007); Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017). Although Defendant Nurse Jackson herself has not raised this defense, a claim that has not been exhausted may not be considered by this Court. See Bock, 549 U.S. at 220. In other words, exhaustion is mandatory. Ross, 578 U.S. at 639. Therefore, a court ordinarily may not excuse a failure to exhaust. Id. (citing Miller v. French, 530 U.S. 327, 337 (2000) (explaining “[t]he mandatory ‘shall' . . . normally creates an obligation impervious to judicial discretion”)).
Here, as explained in detail by the Court, Plaintiff failed to exhaust his administrative remedies in this matter as to the former defendants, including Dr. Burnham and RN Williams. ECF No. 81. Plaintiff's claim against Defendant Nurse Jackson for deliberate indifference to a serious medical need is essentially the same claim he raised against Dr. Burnham and RN Williams: failure to provide a shower to decontaminate the chemical munitions Plaintiff claims were used on him. See ECF No. 1. Indeed, Plaintiff alleges Defendant Nurse Jackson denied him a shower because Dr. Burnham and RN Williams had denied him a shower. Id. at 8. “Where the liability is joint and several or closely interrelated and a defending party establishes that plaintiff has no cause of action or present right of recovery, this defense generally inures also to the benefit of a defaulting defendant.” Accardi v. Coley, No. 5:20-CT-3093-FL, 2021 WL 4591682, at *3 (E.D. N.C. Sept. 17, 2021) (quoting U.S. ex rel. Hudson v. Peerless Ins. Co., 374 F.2d 942, 945 (4th Cir. 1967)), aff'd, No. 21-7409, 2021 WL 6067227 (4th Cir. Dec. 20, 2021).
In this instance, former defendant Dr. Burnham's and RN Williams' defense of exhaustion of administrative remedies applies equally to Defendant Nurse Jackson. Id. (denying Plaintiff's motion for entry of default and dismissing the case without prejudice, finding co-defendants' defense of failure to exhaust administrative remedies applied equally to Defendant who did not respond to Plaintiff's complaint). Accordingly, the undersigned recommends that Plaintiff's Motion for Default Judgment be denied, and the Court dismiss all claims against Defendant Nurse Jackson, as with the former defendants, based on Plaintiff's failure to exhaust administrative remedies.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that Plaintiff's Motion for Default Judgment be DENIED and the claims against Defendant Nurse Jackson be DISMISSED.
The parties are directed to the attached Notice for their rights to file objections to this recommendation.
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
Post Office Box 835
Charleston, South Carolina 29402
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).