Smith v. Spivey et al

Filing 53

ORDER ADOPTING 46 REPORT AND RECOMMENDATION, granting 42 Motion for Summary Judgment, filed by P E Spivey, Chris Phillips. The Plaintiff's complaint is dismissed without prejudice. Signed by Honorable R Bryan Harwell on 2/27/2013. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Gregory V. Smith,

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Plaintiff,
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v.
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P.E. Spivey, Jail Director, Individual )
and Official Capacity; and Chris
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Phillips, Detective, Individual and )
Official Capacity,
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Defendants.
)
)

Civil Action No.: 1:12-cv-00029-RBH

ORDER

This matter is before the Court after the issuance of the Report and Recommendation
(“R&R”) of United States Magistrate Judge Shiva V. Hodges.1 The above-captioned Defendants
filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
In the R&R, the Magistrate Judge recommends that the Court grant Defendants’ motion on the basis
that the undisputed evidence shows Plaintiff failed to administratively exhaust his claims prior to
filing his complaint with this Court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, a state prisoner proceeding pro se, filed this action on January 4, 2011. He
alleges—under 42 U.S.C. § 1983—several violations of his constitutional rights by the abovecaptioned Defendants. The claims arise out of allegations of a search conducted of his jail cell at
the Kershaw County Detention Center (“KCDC”), a drug test performed without Plaintiff’s consent,
and Plaintiff’s subsequent placement in solitary confinement. Defendants jointly filed a motion for
summary judgment on August 6, 2012, arguing, in part, that Plaintiff failed to exhaust his
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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.
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administrative remedies that were available at the KCDC. After having been put on notice of
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), of the consequences of summary
judgment, Plaintiff responded to their motion on September 5, 2012. The Magistrate Judge then
issued her R&R on October 11, 2012, recommending that summary judgment be granted in favor of
Defendants on the basis of Plaintiff’s failure to exhaust. R&R, ECF No. 46. Plaintiff filed timely
objections on October 22, 2012. Pl.’s Objs., ECF No. 48.
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
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).

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DISCUSSION
The Magistrate Judge recommends granting Defendants’ motion for summary judgment
because of Plaintiff’s failure to exhaust his administrative remedies. She bases her recommendation
on evidence that Plaintiff was required to submit his grievances within forty-eight hours and to then
appeal any adverse decision. R&R 6. In his objections, Plaintiff first argues that he was unaware of
a grievance policy and notes that no policy was produced in discovery, posted at the KCDC, or
known by any of its employees or detainees. Second, Plaintiff contends he was unable to file a
grievance within forty-eight hours because he was in solitary lockdown without any means to do so.
Finally, Plaintiff maintains Defendants’ claims are “frivolous” because they were in violation of an
order finding that the period for filing dispositive motions had expired prior to the filing of
Defendants’ motion.2 Pl.’s Objs. 1-3.
The Prison Litigation Reform Act (“PLRA”), as the Magistrate Judge notes, 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. Here, Plaintiff
fails to provide any evidence to dispute Defendants’ evidence that the KCDC’s grievance policy
requires inmates to file grievances within forty-eight hours and that Plaintiff failed to file a timely
grievance relating to the allegations in his complaint. Furthermore, Plaintiff provides no evidence
to dispute the fact that he did not appeal a grievance, as he is required to do in order to fully exhaust
his administrative remedies. Although Plaintiff contends in his objections that he was prevented
from filing a grievance due to his detention in solitary lockdown, he provides no evidence to
2

Plaintiff’s third objection is without merit, as the Magistrate Judge granted Defendants’ motion for
an extension of the period for filing dispositive motions. June 7, 2012 Text Order, ECF No. 30.
Having received an extension from the Magistrate Judge, Defendants timely filed their motion for
summary judgment, and it was thus not “frivolous,” as Plaintiff argues.
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support such a contention. Therefore, the Court finds the Magistrate Judge’s recommendation to
dismiss Plaintiff’s complaint is proper, and Plaintiff’s objections are overruled.
CONCLUSION
The Court has thoroughly reviewed the entire record, including the motion for summary
judgment, the R&R, objections to the R&R, and applicable law. For the reasons stated above and
by the Magistrate Judge, the Court hereby overrules Plaintiff’s objections and adopts the Magistrate
Judge’s R&R.
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment is
GRANTED and that Plaintiff’s complaint is DISMISSED without prejudice.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
February 27, 2013

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