Stephney v. Ozmint et al

Filing 67

REPORT AND RECOMMENDATIONS recommending that Defendants' Motion for Summary Judgment 54 be granted. If the district judge accepts this recommendation, all other motions will be rendered moot. Objections to R&R due by 12/29/2010. Signed by Magistrate Judge Shiva V Hodges on 12/8/2010 (Attachments: # 1 Notice).(mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Wade Stephney, Jr., #141962,
Plaintiff,
vs.
John Ozmint, SCDC Dir; M. Beinor,
SCDC Physician, KCI R&E; S. Blake,
SCDC Physician, KCI R&E; J. McKay,
SCDC RPN HCA, KCI R&E; M. Hughs,
SCDC RPN HCA, WRCI; C. Smith,
SCDC RPN HCA, ECI; S. Daley, SCDC
LPN, KCI R&E; Lewis, SCDC LPN,
WRCI; Dr. R. Bearden, SCDC
Physician; Dr. R. Steen, SCDC
Physician,
Defendants.

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C/A No. 1:09-2898-MBS-SVH

REPORT AND RECOMMENDATION

Plaintiff Wade Stephney, Jr. (“Plaintiff”) filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983.

Plaintiff is incarcerated with the South Carolina

Department of Corrections (“SCDC”) and has been since October 15, 2008. Before the
court are the following motions: (1) Plaintiff’s Motion to Appoint Counsel [Entry #32];
(2) Plaintiff’s Motion to Compel Discovery [Entry #34]; (3) Plaintiff’s Motion to Dismiss
[Entry #45]; (4) Plaintiff’s Motion to Amend the Complaint [Entry #46]; (5) Plaintiff’s
Motion for an Evidentiary Hearing and to Compel [Entry #47]; and (6) Defendants’
Motion for Summary Judgment [Entry #54].
All pretrial proceedings in this case were referred to the undersigned pursuant to
the provisions of Local Civil Rule 73.02(B)(2)(d) (D.S.C.).

Because the motions to

dismiss and for summary judgment are dispositive, this Report and Recommendation is
entered for review by the district judge.
I.

Factual and Procedural Background
In his complaint filed on November 13, 2009, Plaintiff alleges Defendants have

violated his Eighth Amendment Rights “due to below substantial compliance, inadequate,
and improper health care services” from October 15, 2008 through September 15, 2009.
Plaintiff contends the doctor defendants:
(1) failed to make or keep medical appointments; (2) failed to adequately
and properly diagnose: scan or x-ray; lab testing or results; treating urinary
tracts; lymphatics; respiratory infections and neck and back lumbar
paralysis . . .; (3) failing to inquire about Plaintiff’s allegations, inform, or
have the Plaintiff informed, concerning prescribed medications’ harmful
side-effects . . . .
[Entry #1 at 3-4.] He also claims nurses conspired to have his prescriptions “exposed with
contaminated asymptoms infestious bio-hazard bacteria.” Id. at 4. He claims “serious
bodily harm and life threatening diseases.” Id. Defendants filed a motion for summary
judgment, claiming, inter alia, that Plaintiff has failed to exhaust his administrative
remedies.
Defendants filed a motion for summary judgment on August 14, 2010. Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the
summary judgment and dismissal procedures and the possible consequences if he failed to
respond adequately to Defendants’ motion [Entry #55]. Plaintiff filed responses in
opposition to Defendants’ motion [Entry #62, #64]. Having carefully considered the

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parties’ submissions and the record in this case, the court recommends Defendants’
motion for summary judgment be granted.
II.

Discussion
A.

Standard of Review

A federal court must liberally construe pleadings filed by pro se litigants to allow
them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319
(1972); see also Haines v. Kerner, 404 U.S. 519 (1972). In considering a motion for
summary judgment, the court’s function is not to decide issues of fact, but to decide
whether there is an issue of fact to be tried. The requirement of liberal construction does
not mean that the court can ignore a clear failure in the pleadings to allege facts which set
forth a federal claim. Weller v. Department of Social Services, 901 F.2d 387 (4th Cir.
1990). Nor can the court assume the existence of a genuine issue of material fact where
none exists. If none can be shown, the motion should be granted. Fed. R. Civ. P. 56(c).
The movant has the burden of proving that a judgment on the pleadings is appropriate.
Once the moving party makes this showing, however, the opposing party must respond to
the motion with “specific facts showing that there is a genuine issue for trial.” Id. The
opposing party may not rest on the mere assertions contained in the pleadings. Fed. R.
Civ. P. 56(e); see also Celotex v. Catrett, 477 U.S. 317 (1986).
The Federal Rules of Civil Procedure encourage the entry of summary judgment
where both parties have had ample opportunity to explore the merits of their cases and
examination of the case makes it clear that one party has failed to establish the existence
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of an essential element in the case, on which that party will bear the burden of proof at
trial. See Fed. R. Civ. P. 56(c). Where the movant can show a complete failure of proof
concerning an essential element of the non-moving party’s case, all other facts become
immaterial because there can be “no genuine issue of material fact.”
B.

Exhaustion of Administrative Remedies

Defendants contend that they are entitled to summary judgment on Plaintiff’s
claims because he has not exhausted his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(a). The PLRA 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.” 42
U.S.C. § 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). To
satisfy this requirement, a plaintiff must avail himself of every level of available
administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies
neither need to meet federal standards, nor are they required to be plain, speedy, and
effective. Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739).
Satisfaction of the exhaustion requirement requires “using all steps that the agency
holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quotation
omitted) (emphasis in original). Thus, “it is the prison’s requirements, and not the [Prison
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Litigation Reform Act], 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
failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc.,
407 F.3d 674, 683 (4th Cir. 2005).
The purpose of the exhaustion requirement is twofold. First, it gives an
administrative agency “an opportunity to correct its own mistakes with respect to the
programs it administers before it is haled into federal court.” Woodford, 548 U.S. 81, 89
(quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)). Second, “[c]laims generally
can be resolved much more quickly and economically in proceedings before an agency
than in litigation in federal court.” Id. Any consideration of administrative remedies
pursued after the commencement of the litigation would only serve to frustrate both
purposes of the PLRA’s exhaustion requirement.
Here, Plaintiff’s inmate record reveals he has not exhausted his administrative
remedies. See Coleman Aff., ¶ 3 [Entry #54-2]. Specifically, SCDC Branch Chief of
Inmate Grievances Mary Coleman attests to the following:
I have reviewed Plaintiff’s grievance records and Plaintiff has not filed a
grievance regarding the allegations in his Complaint. Specifically, the
Plaintiff has not filed a grievance concerning the denial of adequate and
proper medical healthcare services, conspiracy and retaliation with regard to
treatment, diagnoses, medication and other medical services between
October 15, 2008 and September 15, 2009.
Id. Coleman further attests that Plaintiff has an opportunity to file a grievance and appeal
any decision pursuant to SCDC policy. Id. at ¶ 4.

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Plaintiff does not dispute his failure to exhaust his administrative remedies.
Although Plaintiff’s complaint suggests he filed a grievance in a prior case, he indicates
he has not filed a grievance concerning the claims raised in this matter. In Plaintiff’s
initial opposition to summary judgment [Entry #62], he appears to argue that exhaustion
is not required for claims regarding a prisoner’s medical condition. The undersigned
disagrees.

Based on the undisputed evidence that Plaintiff has failed to exhaust his

administrative remedies on all of his claims, this court lacks jurisdiction over Plaintiff’s
claims and Defendants are entitled to summary judgment on all claims.
III.

Conclusion
For the reasons discussed above, it is recommended that Defendants’ Motion for

Summary Judgment [Entry #54] be granted. If the district judge accepts this
recommendation, all other motions will be rendered moot.
IT IS SO RECOMMENDED.

December 8, 2010
Florence, South Carolina

Shiva V. Hodges
United States Magistrate Judge

The parties are directed to note the important information in the attached
“Notice of Right to File Objections to Report and Recommendation.”

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