Lilly v. Thompson et al

Filing 44

ORDER RULING ON REPORT AND RECOMMENDATIONS 38 of Magistrate Judge Robert S Carr, incorporating them herein by reference, and granting 27 Motion for Summary Judgment, filed by L Randall, Morris Elmore, Dorris Gantt, Eugene Skipper, James Blackwell, Fred Thompson, McKither Bodison, D McCommons, D Nunnally, S Jenkins. Signed by Honorable Joseph F Anderson, Jr on 3/10/2009. (ssan, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C H A R L E S T O N DIVISION T h u rm a n Van Lilly, #297494, ) ) P l a in tif f , ) vs. ) ) Fred Thompson; Morris Elmore; James ) B la c k w e ll; McKither Bodison; D. Nunnally; ) E u g e n e Skipper; S. Jenkins; L. Randall; ) D . McCommons; Dorris Gantt, ) ) D e f e n d a n ts . ) ______________________________________ ) C/A No.: 2:08-266-JFA-RSC

ORDER

T h e pro se plaintiff, Thurman V. Lilly ("Plaintiff"), is an inmate in state custody. He initiated this lawsuit with a 42 U.S.C. § 1983 claim contending that the defendants (who are a ll employed by the South Carolina Department of Corrections) violated his constitutional rig h ts while he was incarcerated. Plaintiff seeks a declaratory judgment, injunctive relief, and d a m a g e s from each defendant. T h is case was assigned to a magistrate 1 who prepared a report recommending that this c o u rt grant the defendants' motion for summary judgment.2 The magistrate specifically found th a t Plaintiff has not exhausted his administrative remedies and recommended that this lawsuit

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The magistrate's review is made in accordance with 28 U.S.C. §§ 636(b)(1)(A) and (B), and Local Civil Rule 73.02. The magistrate 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made and the court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate, or recommit the matter to the magistrate with instructions. 28 U.S.C. § 636(b)(1). The magistrate issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) notifying Plaintiff of the summary dismissal procedure and possible consequences if he failed to adequately respond to the motion for summary judgment. Plaintiff thereafter filed a response.
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b e dismissed. Plaintiff filed objections to the magistrate's report and recommendation, and to aid in the analysis of those objections, a bit of background is instructive. Plaintiff initiated this lawsuit complaining that the defendants violated his rights as s e c u re d by the First, Eighth, and Fourteenth Amendments to the United States Constitution. T h is lawsuit is not Plaintiff's first venture into federal court as a pro se plaintiff. Plaintiff in f a c t has another pending lawsuit in this court which he filed on his own behalf and on behalf o f numerous other inmates protesting the conditions of their confinement. That lawsuit is d ra w n into the picture here, because Plaintiff alleges in the instant case that the defendants lea rn e d of his large conditions of confinement case and thereafter engaged in a retaliatory c o u rs e of conduct designed to injure Plaintiff and chill his exercise of his rights. Plaintiff sp ec ifica lly contends that the defendants trumped up a phony disciplinary charge to assert a g a in st him (prison records suggest Plaintiff was charged with illegal possession of a cell p h o n e ), and used this charge to have Plaintiff removed from his position as an officer of an inm ate advocacy organization. Plaintiff additionally contends the defendants confiscated legal d o c u m e n ts from him, improperly withheld personal property from him, and have refused to p r o c e s s grievances he has filed related to these allegations. T h e defendants answered Plaintiff's claims with denials and then moved for summary ju d g m e n t primarily on the grounds that Plaintiff had failed to exhaust his administrative re m e d ies . The defendants specifically pointed to pending grievances which relate to

P la in tif f 's complaints -- one of which was filed after Plaintiff initiated this lawsuit -- and th a t Plaintiff filed other grievances which were rejected due to his failure to comply with p ris o n grievance policies. The defendants supported these arguments with affidavits and other

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e v id e n c e including copies of Plaintiff's grievances. Plaintiff countered by challenging the c o n stitu tio n a lity of the exhaustion requirement, and he included the unusual request that his c o n stitu tio n a l challenge be heard by a three-judge panel and consolidated with his pending p ris o n conditions case. P lain tiff presents two objections to the magistrate's report and recommendation. First, P lain tiff disputes the magistrate's assertion that Plaintiff has not properly brought his co n stitutio n al challenge to the court. Second, Plaintiff quarrels with the Magistrate's

c o n c lu s io n that there is no basis for Plaintiff's request that a three-judge panel be appointed to hear this case. Both objections are misplaced, and the court will deal with the second o b jec tio n first. It is true that the United States Code calls for the impaneling of a three-judge court in c e rta in circumstances, see 28 U.S.C.A. § 2284 (West 2006), but none of those circumstances a re at play here. As the magistrate noted, this is not a case challenging the constitutionality o f the apportionment of a congressional district. See § 2284(a). This removes one avenue f ro m consideration. Plaintiff points to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2 2 0 2 , and the statute requiring notice to the Attorney General of the Unites States when the c o n stitu tio n a lity of an Act of Congress is questioned, see 28 U.S.C. § 2402, but neither of th e s e statutes have anything to say regarding the impanelment of a three-judge court. Plaintiff's remaining refuge is in the statute mapping remedies with respect to prison c o n d itio n s , see 18 U.S.C. § 3626, but that statute is not applicable either. The section requires a party seeking an order releasing him from prison to file a request for a three-judge court and in c lu d e with that request materials sufficient to demonstrate that release from prison is

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n e c e s s a r y to correct the violation of the party's federal rights. Id. Allegations of trumped-up d isc ip lin a ry charges and withholding of personal effects are not in this ballpark. This statute in ste a d covers what seems to be the subject matter of Plaintiff's other pending litigation in f e d era l court, which explains why Plaintiff's first mention of a three-member court references th e other lawsuit. See [dkt. # 35, p.2]. Similarly, a constitutional challenge to the exhaustion requirement of the Prison L itig a tio n Reform Act, 42 U.S.C. 1997e, does not cut the mustard for a three-member court. T h e judge to whom the request for a three-member court is made possesses discretion to d e ter m in e whether three judges are required, 28 U.S.C.A. § 2284(b)(1) (West 2006), and in th is case, three judges aren't. Under 18 U.S.C. § 3626, the three-judge statute Plaintiff points th e court to, there are hoops to jump through before a prisoner can be released. These include (1 ) a previous issuance by the court of an order that has failed to remedy the deprivation of th e federal right, § 3626(a)(3)(A)(i); (2) the defendant's enjoyment of a reasonable amount o f time to comply with the court's order, § 3626 (a)(3)(A)(ii); and (3) a finding by the court th a t prison crowding is the primary cause of the violation of the federal right, § 3 6 2 6 (a )(3 )(E )(i). A challenge to the PLRA is not going in this direction. T h is leads to the issue of Plaintiff's constitutional challenge and his objection to the m a g is tra te 's conclusion that it was not properly before the court. Whether properly before the c o u rt or not, Plaintiff's constitutional challenge is going nowhere. The exhaustion

re q u ire m e n t does not prevent Plaintiff from bringing claims for constitutional violations in f e d era l court. It merely requires that he pursue his relief administratively first. See Zehner v . Trigg, 133 F.3d 459 (7th Cir. 1997).

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A f te r a careful review of the record, the applicable law, and the report and re c o m m e n d a tio n , the court finds the magistrate's recommendation to be proper. Accordingly, th e report and recommendation is incorporated herein by reference, with the additions this c o u rt has noted, and the defendants' motion for summary judgment is granted. In light of the decision of the United States Court of Appeals for the Fourth Circuit in G r e e n v. Young, 454 F.3d 405, (4th Cir.2006) (dismissal under PLRA for failure to exhaust ad m inistrat iv e remedies does not count as a "strike" for purposes of the "three strikes" rule), im p o s itio n as a "strike" is not appropriate in this action.

IT IS SO ORDERED.

M arc h 10, 2009 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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