Scott v. Byars et al

Filing 50

ORDER RULING ON REPORT AND RECOMMENDATION adopting as modified 32 Report and Recommendation, denying 25 Motion to Dismiss for Failure to State a Claim,, filed by William R Byars, Jr, Geraldine Miro, denying 18 Motion to Dismiss for Failure to State a Claim, filed by William R Byars, Jr. Signed by Honorable R Bryan Harwell on 1/16/2013. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
JAMES DARNELL SCOTT, #
269988,

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Plaintiff,
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v.
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GERALDINE MIRO,
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RESPONSIBLE AUTHORITY FOR )
POLICY PS-10.08; WILLIAM R.
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BYARS, JR., SOUTH CAROLINA )
DEPARTMENT OF CORRECTIONS )
DIRECTOR,
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Defendants.
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Civil Action No.: 0:11-cv-03169-RBH

ORDER

Plaintiff James Darnell Scoot, a state prisoner proceeding pro se, filed this action, alleging
violations of his constitutional rights. Defendants Geraldine Miro and William R. Byars, officials
with the South Carolina Department of Corrections (“SCDC”), filed a motions to dismiss pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF Nos. 18 & 25. These matters are
now before the Court after the issuance of the Report and Recommendation (“R&R”) of United
States Magistrate Judge Paige J. Gossett.1 In the R&R, the Magistrate Judge recommends that the
Court deny Defendants’ motions to dismiss.

1

In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling. The Court is mindful of its duty to liberally
construe the pleadings of pro se litigants. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978); but see Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, who is incarcerated at Lee Correctional Institution, filed this 42 U.S.C. § 19832
action in November 2011, alleging his First and Fourteenth Amendment rights were violated when
he was denied delivery of a newsletter he was sent as the result of policies adopted by Defendants
and the SCDC. Defendants filed motions to dismiss, arguing that the allegations in Plaintiff’s
complaint show that it must be dismissed as time barred because the denial occurred on June 27,
2008, over three years before he filed his complaint. The Magistrate Judge issued her R&R on
October 18, 2012, recommending that Defendants’ motions should be denied. R&R, ECF No. 32.
Based on a declaration filed by Plaintiff in response to the motions, the Magistrate Judge converted
the motions into motions for summary judgment and found that Plaintiff had created a genuine
dispute of material fact regarding equitable tolling.3 Defendants filed timely objections to the R&R
on November 5, 2012. Defs.’ Objs., ECF No. 35.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo
determination of those portions of the R&R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to her with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a

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Because Plaintiff proceeds pro se, the Court liberally construes his constitutional claims as raised
pursuant to 42 U.S.C. § 1983. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
3
Defendants did not file a reply to Plaintiff’s response.
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party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R&R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “ ‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’ ” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION
The Magistrate Judge, in converting Defendants’ motions to dismiss to motions for
summary judgment, recommends denying the motions in light of Plaintiff’s declaration and
contention that he was prevented from filing his action because the SCDC failed to respond to his
Step Two grievance. In their objections, Defendants argue (1) that the Court need not convert the
motions to motions for summary judgment and consider Plaintiff’s declaration, (2) that they should
have been on notice that the Court would convert their motions to motions for summary judgment,
and (3) that, if the Court does indeed deny their motions as motions for summary judgment, that it
only consider the motions as a partial motions for summary judgment. The Court addresses the
Defendants’ objections in turn.
First, the Court agrees with Defendants that treating the motions to dismiss as motions for
summary judgment was not necessary. Specifically, the declaration filed by Plaintiff provides no
evidence of a material fact of which this Court cannot already take judicial notice. Plaintiff’s
declaration merely recites the SCDC’s policy regarding responses to inmate grievances, and courts
may take judicial notice of the SCDC’s policies. See Fed. R. Evid. 201(b) (“The court may
judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known

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within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.”). Thus, the SCDC’s policy need not be
considered a “matter[] outside the pleadings” requiring treatment of the motions “as [motions] for
summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
Second, Defendants’ contention in their motions that it is clear from the face of Plaintiff’s
complaint that the action is time barred is without merit. As the Magistrate Judge notes, this Court
must liberally construe the allegations of Plaintiff’s pro se complaint. R&R 2; see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Taking judicial notice of the SCDC’s policy regarding responses
to inmate grievances, the Court cannot say it is sufficiently clear from the complaint that the action
is time barred. Specifically, SCDC policy notes that “[u]nder certain circumstances the grievance
process may exceed 215 days.” SCDC Policy GA-01.12, Inmate Grievance System ¶ 11. Assuming
that the statute of limitations is tolled while Plaintiff’s grievance is pending, there is no legal
certainty that Plaintiff’s action is time-barred. See Peoples v. Rogers, No. 10-cv-00024-CMC, 2010
WL 424201, at *1-2 (D.S.C. Feb. 1, 2010) (reasoning that South Carolina law allows for equitable
tolling during a “statutory prohibition,” such as the Prison Litigation Reform Act’s requirement that
a prisoner must exhaust his administrative remedies). In other words—and as the Magistrate Judge
notes in the R&R—dismissal of Plaintiff’s complaint for failure to state a claim would not be
proper. See, e.g., Goodman v. Praxair, Inc., 494 F.3d 458, 466 (4th Cir. 2007) (holding it was error
for a district court to dismiss an action under 12(b)(6) when “the fact of the complaint does not
allege facts sufficiently clear to conclude that the statute of limitations had run”). Therefore, the

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Court finds that the Magistrate Judge’s overall recommendation to deny Defendants’ motions is
proper.4
CONCLUSION
The Court has thoroughly analyzed the entire record, including the complaint, the parties’
briefs, the Magistrate Judge’s R&R, objections to the R&R, and the applicable law. For the reasons
stated above, the Court rejects the Magistrate Judge’s recommendation to treat Defendants’ motions
as motions for summary judgment but adopts the result of the Magistrate Judge’s R&R as modified.
IT IS THEREFORE ORDERED that Defendants’ motions to dismiss are DENIED
without prejudice.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
January 16, 2013
Florence, South Carolina

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Because the Court declines to treat Defendants’ motions as motions for summary judgment,
Defendants’ second and third objections are moot. In other words, the denial of Defendants’
motions has no preclusive effect on the merits of their affirmative defenses and their right to raise
the statute of limitations issue again at the summary judgment stage, supported by appropriate
evidence.
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