Al-Haqq v. Johnson et al

Filing 69

ORDER adopting the 64 Report and Recommendation, granting Defendants' 52 motion for summary judgment and dismissing the action without prejudice. Signed by Honorable Donald C. Coggins, Jr. on 4/15/2020. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Bilal Al-Haqq,

)
)
Plaintiff,
)
)
v.
)
)
Ms. Francis Johnson, Sgt. Foglebach, )
Ms. Tammy Way, Lt. Eugene Skipper, )
Ms. Francis Baughman,
)
)
Defendants.
)
________________________________ )

Case No. 1:19-cv-00158-DCC

ORDER

This matter is before the Court upon Defendants’ motion to dismiss. ECF No. 52.
Plaintiff filed a response in opposition, Defendants filed a reply, and Plaintiff filed a surreply and a letter. ECF Nos. 60, 61, 62, 63. In accordance with 28 U.S.C. § 636(b) and
Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was referred to United States Magistrate
Judge Shiva V. Hodges for pre-trial proceedings and a Report and Recommendation
(“Report”). On February 28, 2020, the Magistrate Judge issued a Report recommending
that Defendants’ motion1 be granted because Plaintiff failed to exhaust his administrative
remedies or, alternatively, on the merits. ECF No. 64. The Magistrate Judge advised the
parties of the procedures and requirements for filing objections to the Report and the

1

The Magistrate Judge had previously issued a text order informing the parties
that the motion would be considered a motion for summary judgment because it
presented matters outside the pleadings. ECF No. 55.

serious consequences if they failed to do so. Plaintiff filed objections, and Defendants
filed a reply. ECF Nos. 66, 67.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of 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.” (citation omitted)).
DISCUSSION
In the present action, Plaintiff alleges that he was denied access to courts, that
Defendants violated his Fourteenth Amendment Due Process rights, and that he was
retaliated against for exercising his constitutional rights to file legal papers against
Defendant Way. The Magistrate Judge provides a thorough recitation of the relevant
facts and the applicable law which the Court incorporates by reference. As stated above,
the Magistrate Judge recommends that summary judgment be granted because Plaintiff
2

failed to exhaust his administrative remedies. Plaintiff objects. The Court has reviewed
the record, the applicable law, and the Report de novo.
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321
(codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other things,
that prisoners exhaust their administrative remedies prior to filing civil actions concerning
prison conditions under Section 1983 or any other federal law. See Jones v. Bock, 549
U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA
and that unexhausted claims cannot be brought in court”). “[T]he PLRA's exhaustion
requirement is mandatory,” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677
(4th Cir. 2005), and “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).
The PLRA requires “proper exhaustion” of available administrative remedies prior
to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court noted,
“[a]ggrieved parties may prefer not to exhaust administrative remedies for a variety of
reasons,” whether it be concerns about efficiency or “bad faith.” Id. at 89–90. This is
especially true in a prison context. Id. at 90 n.1. Nevertheless, “[p]roper exhaustion
demands compliance with an agency's deadlines and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly
structure on the course of its proceedings.” Id. at 90–91.
“[A]n administrative remedy is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette,
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517 F.3d 717, 725 (4th Cir. 2008).

Thus, an administrative remedy is considered

unavailable when: (1) “it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that
it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart
inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016).
Here, Plaintiff filed a Step 1 grievance on June 18, 2017, alleging that on May 22,
2017, legal papers and correspondence to a news reporter were confiscated and that
Defendant Way was retaliating against him because he “reported her actions against
[him].” ECF Nos. 52-5 at 1. This grievance was returned because Plaintiff did not provide
reference to or documentation of an informal resolution. In his response in opposition,
Plaintiff states that “Defendants know that both the step #1 and step #2 grievances ha[ve]
been submitted to the court in this case.2 ECF No. 69 at 15. Regardless, there is no
evidence that Plaintiff sought informal resolution by completing a Request to Staff
Member Form or Automated Request to Staff Member Form prior to filing a Step 1
grievance. As explained in more detail by the Magistrate Judge, Plaintiff has provided a
limited number of his previously filed grievances that had been returned to him in support
of his argument that the grievance process is essentially unavailable to him. However,

2

The Court notes that Plaintiff’s conclusory allegations, without more, are
insufficient to preclude a finding of summary judgment. See Ross v. Commc'ns Satellite
Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228
(1989).
4

each of the grievances were returned for failure to submit documentation that he
attempted informal resolution. See ECF No. 60-2 at 6–19.
While his objections mainly focus on the merits of his arguments, Plaintiff asserts
that he has exhausted all of his administrative remedies. He contends that on June 30,
2017, Defendant Johnson, grievance clerk, told him that he “would not be able to refile
on this issue.” ECF No. 66 at 4. He appears to be referencing the notation at the bottom
of his returned Step 1 grievance. See ECF No. 52-5 at 2. However, the full notation
explains that the grievance is being returned because Plaintiff failed to reference an
attempt at informal resolution. Plaintiff has not objected to the conclusion that he failed
to comply with the grievance policy and has not provided any evidence that he was
prevented from completing it. Accordingly, the motion for summary judgment should be
granted because Plaintiff failed to exhaust his administrative remedies.3
In his objections, Plaintiff reiterates his request for sanctions because Defendants
failed to participate in discovery and for judgment as a matter of law. ECF No. 66 at 2.
The Magistrate Judge recommends that both requests be denied. With respect to his
request for sanctions, the Magistrate Judge denied his motion to compel discovery;
accordingly, that request is denied. Regarding his request for judgment as a matter of
law, Plaintiff has not filed a motion and the time to do so has lapsed; accordingly, this
request is denied.

3

Plaintiff raises in his objections that Defendant Johnson is not the warden and,
therefore, is not the proper party to respond to grievances. ECF No. 66 at 4. This
allegation also fails to establish that the grievance policy is unavailable to him.
5

Plaintiff requests the appointment of counsel. There is no right to appointed
counsel in 42 U.S.C. § 1983 civil rights cases. Cf. Hardwick v. Ault, 517 F.2d 295, 298
(5th Cir. 1975). While the court is granted the power to exercise its discretion to appoint
counsel for an indigent in a civil action, 28 U.S.C. § 1915(e)(1); Smith v. Blackledge, 451
F.2d 1201 (4th Cir. 1971), such appointment “should be allowed only in exceptional
cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Plaintiff has not shown that
any exceptional circumstances exist in this case. Accordingly, this request is denied.
Plaintiff requests to amend his complaint. As detailed by the Magistrate Judge,
Plaintiff filed a “Supplemental Complaint” which the Magistrate Judge construed as a
motion to amend. In the filing, Plaintiff alleges that he was sexually assaulted on June
22, 2019, and correctional officers at Trenton Correctional institution have not responded
as required. The new allegations are not related to this case. See Abebe v. S.C. Dep’t
of Corr., C/A No. 0:09-3111-MBS, 2010 WL 3258595, at *5 (D.S.C. Aug. 16, 2010)
(“[Plaintiff’s] amendment is unrelated to any of the claims in Plaintiff’s original and first
amended complaints. As such, Plaintiff must file a separate suit to allege these claims
pursuant to Fed. R. Civ. P. 15 and 20.”). The Magistrate Judge denied the motion, and,
for the same reasons, this Court denies his request.
Defendants request that this action be designated as a “strike.” The Magistrate
Judge recommended denying this request. Neither party has objected to this portion of
the Report. Upon review for clear error, the Court agrees with the recommendation of the
Magistrate Judge and declines to count this dismissal as a “strike.”

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CONCLUSION
Based on the foregoing, the Court adopts the recommendation of the Magistrate
Judge as set out.4 Defendants’ motion for summary judgment [52] is GRANTED and this
action is DISMISSED without prejudice.5
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
April 15, 2020
Spartanburg, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

4

Because the Court finds that Plaintiff has failed to exhaust his administrative
remedies, the Court has not considered the Magistrate Judge's discussion of the merits
of this case. See Mouzon v. Clawson, No. 1:13-CV-00818-RBH, 2014 WL 1668293, at
*4 (D.S.C. Apr. 25, 2014), aff'd sub nom. Mouzon v. Clauson, 585 F. App'x 110 (4th Cir.
2014) (“Exhaustion is a threshold requirement that must be satisfied in order for prisoner
complaints to proceed.”).
5

As this recommendation for dismissal is based on failure to exhaust, the dismissal
of this case should be without prejudice. Cf. Greene v. Meese, 875 F.2d 639, 643 (7th
Cir. 1989); see also Armstrong v. Scribner, 350 F. App’x 186, 2009 WL 3497769 at * 1
9th Cir. Oct. 30, 2009).
7