James v. Jones et al

Filing 60

ORDER finding as moot 35 Motion to Dismiss; granting 35 Motion for Summary Judgment; adopting Report and Recommendations re 51 Report and Recommendation. Signed by Honorable David C Norton on 8/5/2014.(cahe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
JEROME W. JAMES,

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Plaintiff,
v.
CARL JONES, FSD; MANUEL
ALFAS, FSS; JENNIFER BUTLER,
FSS; ANNETTE CHAPMAN, FSS;
VERNON GORE, FSS; and EARNEST
DELOACH, FSS,
Defendants.

No. 0:13-cv-1869-DCN

ORDER

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This matter is before the court on United States Magistrate Judge Paige J.
Gossett’s report and recommendation (“R&R”) that the court grant defendants’ motion
for summary judgment. Plaintiff Jerome W. James (“James”), an inmate who alleges
defendants violated his constitutional rights, filed written objections to the R&R. For the
reasons set forth below, the court adopts the R&R and grants the defendants’ motion for
summary judgment.
I. BACKGROUND
James is an inmate within the South Carolina Department of Corrections
(“SCDC”) who is currently incarcerated at the Lieber Correctional Institution in
Ridgeville, South Carolina. While being housed in the Special Management Unit, James
requested a “no meat” diet. Compl. 3. He alleges that since his request, he has been
receiving neither the proper amount of food nor the correct food. Id. James alleges that
the food provided lacks variety, is often overcooked or spoiled, and has made him sick on

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numerous occasions. Id. at 3-4. James says that these conditions have forced him to
often go days without eating. Id. at 4.
Jones filed the present action on July 7, 2013, pursuant to 42 U.S.C. § 1983,
claiming that defendants violated his First, Eighth, and Fourteenth Amendment rights.
On January 17, 2014, defendants filed a motion to dismiss, or in the alternative, for
summary judgment. The magistrate judge issued an R&R on May 12, 2014,
recommending that the court grant defendants’ motion. Plaintiff filed objections to the
R&R on May 23, 2014. The matter is ripe for the court’s review.
II. STANDARD OF REVIEW
A. Objections to R&R
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28
U.S.C. § 636(b)(1). A party’s failure to object is accepted as agreement with the
conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985).
In absence of a timely filed objection to a magistrate judge’s R&R, this 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, 315 (4th Cir. 2005) (citing Fed. R. Civ. P. 72
advisory committee’s note). The recommendation of the magistrate judge carries no
presumptive weight, and the responsibility to make a final determination rests with this
court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976).

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B. Pro Se Plaintiff
Plaintiff proceeds pro se in this case. Federal district courts are charged with
liberally construing complaints filed by pro se litigants to allow the development of a
potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se
complaints are therefore held to a less stringent standard than those drafted by attorneys.
Id. Liberal construction, however, does not mean that the court can ignore a clear failure
in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep’t of
Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
C. Summary Judgment
Summary judgment is proper “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). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will
not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary
judgment stage, the court must view the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in his favor. Id. at 255.
III. DISCUSSION
James objects to the magistrate judge’s finding that he failed to exhaust his
administrative remedies.
The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust “such
administrative remedies as are available” before suing over prison conditions. 42 U.S.C.

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§ 1997e(a). This requirement “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). Additionally, a
prisoner must exhaust administrative remedies even when the prisoner seeks remedies,
such as money damages, that are not available in administrative proceedings. Booth v.
Churner, 532 U.S. 731, 740-41 (2001). The remedies available “need not to meet federal
standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524
(quoting Booth, 532 U.S. at 739). Satisfaction of exhaustion also requires “using all steps
that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90
(2006) (citing Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in
original). Accordingly, “it is the prison’s requirements, and not the [PLRA], that define
the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).
Defendants have the burden of establishing that a plaintiff has failed to exhaust his
administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683
(4th Cir. 2005).
Pursuant to the SCDC Inmate Grievance Procedure, an inmate seeking to
complain of prison conditions must first
make an effort to informally resolve a grievance by either submitting a
Request to Staff Member Form or discussing it with the appropriate staff
member. If informal resolution is not possible, the inmate then completes
a Form 10-5, also known as a Step 1 Grievance, and submits it to the
employee designated by the warden within fifteen days of the alleged
incident. If the inmate is not satisfied with the decision, he may appeal to
the Division Director of Operations. The appeal is accomplished by
completing a SCDC Form 10-5a, also known as a Step 2 Grievance and
submitting it and the Step 1 Grievance to the Institutional Inmate
Grievance Coordinator within five days of the receipt of the response. The
responsible official renders a final decision which is SCDC’s final

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response. An inmate who wishes to appeal the decision has thirty days to
appeal to the South Carolina Administrative Law Court (“ALC”).
McDowell v. Ozmint, No. 12-cv-2799, 2011 WL 2731202, at *2 (D.S.C. Nov. 5, 2011)
(citations omitted); see also Malik v. Ward, No. 8:08-cv-1886, at *2 n.4 (D.S.C. Mar. 26,
2010) (“The Court may take judicial notice of the SCDC grievance process.”).
James contends that he exhausted his administrative remedies. Pl.’s Objections 14. James filed a Step 1 Grievance on February 7, 2013. Pl.’s Objections Ex. A. When
the form was returned to James, under “Action Taken By IGC [Inmate Grievance
Coordinator],” the form stated “Resolved on 03-20-13 per Ms. Smith, Support Service
Division.” Id. James checked a box at the bottom of the form, which says “I do not
accept the action taken and wish to appeal.” Id. James has not provided any evidence
that he actually appealed the Step 1 Grievance. On March 26, 2013, James filed another
Step 1 Grievance. Pl.’s Objections Ex. B. Under “Action Taken by IGC,” the form
indicated that the grievance was being returned “unprocessed” since the “issue was
resolved on 3/20/13 and 3/22/13.” Id. On the bottom of the form, James appears to have
checked both the box indicating that he does not accept the action taken and wishes to
appeal as well as the box stating “I accept the action taken by the IGC and consider the
matter closed.” Id.
James argues that once the first grievance was considered resolved, “there was
nothing else plaintiff could do administratively.” Pl.’s Objections 3. However, “Courts
within the District of South Carolina have found an inmate exhausts his administrative
remedies when he completes Step 2 of the SCDC Grievance Procedure.” Penza v.
Patterson, No. 8:10-cv-2361, 2011 WL 5869748, at *6 (D.S.C. Oct. 26, 2011), adopted
by 2011 WL 5875001 (D.S.C. Nov. 21, 2011). “Hence, within this District, an inmate’s
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claim is barred unless he completes Step 2 of the SCDC grievance procedure with respect
to that claim.” Id. James does not dispute that he failed to appeal either of the Step 1
Grievances and that he never filed a Step 2 Grievance. It is clear that James failed to
fully exhaust his administrative remedies and that the present action is barred. Therefore,
the court adopts the R&R and grants defendant’s motion for summary judgment. See
Frierson v. Hankins, No. 4:09-cv-692, 2010 WL 3282600, at *5 (D.S.C. July 26, 2010),
adopted by 4:09-cv-692, 2010 WL 3291836 (D.S.C. Aug. 19, 2010) (granting summary
judgment because plaintiff had not shown that he “completed the grievance process by
correctly and timely refiling the Step One Grievances or by appealing the decision and
filing a Step Two Grievance”).
IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R and
GRANTS defendants’ motion for summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
August 5, 2014
Charleston, South Carolina

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