Blakely v. Andrews et al

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATION.The court agrees with the Magistrate Judge's recommendation 13 . Accordingly, Plaintiff's complaint is summarily DISMISSED without prejudice and without issuance and service of process. Signed by Honorable Mary G Lewis on 4/23/2013. (mcot, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
James G. Blakely,
a.k.a James Gatewood Blakely,
a.k.a Jimmy G. Blakely,

) CA No. 5:12-3004-MGL
)
)
)
)
Plaintiff,
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ORDER
)
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vs.
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Ms. Andrew, Head Nurse of MCormick Corr.;
)
A/W Parker;
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Warden Cartledge;
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Mr. David M. Tatarsky,
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Defendants.
)
__________________________________________)
Plaintiff James G. Blakely (“Plaintiff”) is a state prisoner in the custody of the South
Carolina Department of Corrections (“SCDC”) and is currently housed at McCormick Correctional
Institution. Plaintiff, appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his constitutional rights due to inter alia Defendants’ failure to give him a medical
examination for possible cancer and a heart disorder and for being subjected to prison overcrowding
by being housed in a “three man cell.” (ECF No. 1). Plaintiff seeks injunctive relief.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was referred
to United States Magistrate Kaymani D. West for pretrial handling. The Magistrate Judge reviewed
the pro se complaint pursuant to the provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison
Litigation Reform Act of 1996. The Magistrate Judge filed a Report and Recommendation
(“Report”) (ECF No. 13) on November 1, 2012, recommending that Plaintiff’s Complaint (ECF No.
1) be dismissed without prejudice and without issuance and service of process due to Plaintiff’s
failure to exhaust the available administrative remedies. The Report sets forth in detail the relevant
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facts and legal standards on this matter which the court incorporates herein without a recitation.
The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this court.
Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The court is charged
with making a de novo determination of any portions of the Report and Recommendation 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 may recommit the matter to the Magistrate Judge
with instructions. 28 U.S.C. § 636(b)(1).
On November 16, 2012, Plaintiff filed objections to the Report and Recommendation.1
However, most of Plaintiff’s objections are non-specific, unrelated to the dispositive portions of the
Report or merely restate Plaintiff’s claims. The court was able to glean only one specific objection.
Plaintiff objects to the Magistrate Judge’s conclusion that he did not exhaust his administrative
remedies for the grievances that serve as the basis for his complaint. To support this objection,
Plaintiff asserts that he filed a grievance asking for a medical examination in May of 2012 while
housed at a different correctional facility. Plaintiff contends that SCDC did not respond to his May
2012 grievance and that he should not have to file another grievance for the same issues.
Upon review, the court overrules Plaintiff’s objections. The Magistrate Judge recommended
summary dismissal of this case due to Plaintiff’s failure to administratively exhaust his claims
regarding alleged unconstitutional prison conditions and denial of medical treatment under the

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Plaintiff filed a response to the Report styled as “Plaintiff’s Opposition to the Report and
Recommendation”. The court is aware that it must liberally construe Plaintiff's pro se response,
see Hughes v. Rowe, 449 U.S. 5 (1980) (stating that the pleadings of pro se litigants are accorded
liberal construction) accordingly, the court has characterized the response as Plaintiff's
objections to the Report and Recommendation.

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Prison Litigation Reform Act (“PLRA”). (ECF No 13 at 3). The court agrees with the Magistrate
Judge’s recommendation. The PLRA provides that “no action shall be brought with respect to
prison conditions under section 183 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). Congress created this limitation to allow prison officials the
opportunity to take corrective action if necessary, to reduce prisoner litigation in federal courts, and
to provide the contours of any federal litigation. Porter v. Nussle, 534 U.S. 516, 524–25, 122 S.Ct.
983, 152 L.Ed.2d 12 (2002). The PLRA's requirements are mandatory and apply to “all inmate suits
about prison life, whether they involved general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.” Id. at 524; see also Anderson v. XYZ Corr.
Health Servs., Inc., 407 F.3d 674, 67 (4th Cir.2005) (stating that the prerequisite of exhaustion is
strictly enforced and must be completed prior to filing a complaint).
Here, the record reflects that Plaintiff did not file a grievance concerning the alleged
constitutional violations that he asserts occurred at McCormick Correctional Institution. Although,
Plaintiff contends that he filed a grievance in May 20122, he was not transferred to McCormick
Correctional Institution, until August 14, 2012. Thus, his May 2012 grievance could not have
addressed the underlying issues that Plaintiff asserts in this case.
Accordingly, after carefully reviewing the Report, Plaintiff's objections, the record, and
applicable law, the court finds that the Magistrate Judge’s recommendation fairly and accurately
summarizes the facts and applies the correct principles of law. The Report is incorporated by
reference. Accordingly, Plaintiff's complaint is summarily DISMISSED without prejudice and

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Here, the court has no way of verifying Plaintiff’s contention that he filed a grievance in
2012 that addresses the same issues set forth in this case since Plaintiff has neither attached a
copy of the May 12, 2012, grievance nor submitted a verified complaint that attests to Plaintiff’s
contentions.
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without issuance and service of process.
IT IS SO ORDERED.

/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
April 23, 2013

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