Simmons v. Byars et al

Filing 44

ORDER RULING ON REPORT AND RECOMMENDATION: The Court agrees with and adopts the R&R of the Magistrate Judge as the order of the Court. (Dkt. No. 29 ). Accordingly, the Court dismisses this case without prejudice and without i ssuance and service of process as to the following Defendants: Alicia Jones, RN; Nurse Ms. Spallden, RN; Mr. Officer Corley; Mr. Officer Washington; Mr. Officer Smart; Sgt. Creech; Corporal Hughes; Ms. Officer Aldrich; Lt. Bishop; Sgt. Gilbert; Ms. Pam Smith; IGC Ann Hallman; Mr. Sgt. DeLoach; Lt. Morrison; and the South Carolina Department of Corrections. Signed by Honorable Richard M Gergel on 5/22/2013. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Darren S. Simmons,

)
)
Plaintiff,
)
)
v.
)
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William R. Byars, Jr., Agency Director;
)
Thomas E. Bryne, MD; John B. McRee,
)
MD; Doctor Moore, MD; Janine Wresicics, )
RN; Terry L. Andrews, RN; Ms. P. Derrick, )
RN; Alicia Jones, RN; Nurse Ms. Spallden, )
RN; Mr. Ofc. Corely; Mr. Ofc. Washington; )
Mr. Ofc. Smart; Sgt. Creech; Corporal
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Hughes; Ms. Ofc. Aldrich; Warden John
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M. Pate; A/W Newton; Major Worrick; Ms. )
Cindy Sanders, Admin. Assistance; John
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H. Carmichael, Jr.; Lt. Bishop; Sgt. Gilbert; )
Ms. Pam Smith; IGC Ann Hallman,
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Grievance Branch Chief; Mr. Sgt. DeLoach; )
Lt. Morrison; and South Carolina
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Department of Corrections,
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Defendants.
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____________________________________)

C/A No. 5:13-644-RMG

ORDER

This matter is before the Court on the Report and Recommendation (“R&R”) of the
Magistrate Judge recommending the Court partially dismiss this action pursuant to 28 U.S.C.
§ 1915. (Dkt. No. 29). For the reasons set forth below, the Court agrees with and adopts the
R&R as the order of the Court.
Background
Darren S. Simmons (“Plaintiff”), a pro se state prisoner proceeding in forma pauperis
under 28 U.S.C. § 1915, brings this action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C.
§ 636(b) and Local Civil Rule 73.02(B)(2) DSC, this matter was referred to a Magistrate Judge
for all pretrial proceedings. The Magistrate Judge reviewed the complaint pursuant to the

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procedural provisions of 28 U.S.C. § 1915(e)(2). On April 30, 2013, the Magistrate Judge issued
an R&R recommending that Plaintiff’s complaint be summarily dismissed, without prejudice and
without issuance and service of process, as to Defendants Alicia Jones, RN; Nurse Ms. Spallden,
RN; Mr. Officer Corley; Mr. Officer Washington; Mr. Officer Smart; Sgt. Creech; Corporal
Hughes; Ms. Officer Aldrich; Lt. Bishop; Sgt. Gilbert; Ms. Pam Smith; IGC Ann Hallman; Mr.
Sgt. DeLoach; Lt. Morrison; and South Carolina Department of Corrections. (Dkt. No. 29).
Plaintiff then filed timely objections to the R&R. (Dkt. No. 40).
Legal Standard
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. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is required to make a de
novo determination of those portions of the R&R to which specific objection has been made, and
may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1).
Under 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss a prisoner’s action if it
determines that the action: “(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.”
In reviewing these pleadings, the Court is mindful of Plaintiff’s pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De’Lonta v.
Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not
mean, however, that the Court can ignore a plaintiff’s clear failure to allege facts that set forth a

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cognizable claim, or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
Discussion
After review of the record, the R&R, and Plaintiff’s objections, the Court finds the
Magistrate Judge applied sound legal principles to the facts of this case and therefore wholly
adopts the R&R as the order of the Court.
The Magistrate Judge recommended that the Court should summarily dismiss Defendants
Jones, Spallden, Corley, Washington, Smart, Creech, Hughes, Aldrich, Bishop, Gilbert,
DeLoach, and Morrison from this case because Plaintiff failed to exhaust his administrative
remedies, as required by 42 U.S.C. § 1997e, regarding his allegations against these individuals.
(Dkt. No. 29 at 6). Plaintiff objects that this finding is error because he did in fact file grievances
against these individuals. (Dkt. No. 40 at 1). However, the Court finds it is clear from the record
that Plaintiff has not filed Step 2 grievances regarding these allegations and therefore his claim
against these individuals is not yet ripe for review by this Court. See Sheppard v. Riley, C/A No.
1:10-2424-CMC-SVH, 2011 WL 5980674, at *2-3 (D.S.C. Nov. 4, 2011) (finding where a state
prisoner files a “Step 1 Grievance” but not a “Step 2 Grievance” that his claim is not ripe for
review).
Furthermore, the Magistrate Judge recommended that Plaintiff’s claims against
Defendants Pam Smith and Ann Hallman, both inmate grievance coordinators, should be
dismissed because Plaintiff has no constitutional right to a grievance procedure. See Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994). The Magistrate Judge also recommended that the South
Carolina Department of Corrections should be dismissed as a defendant pursuant to the Eleventh

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Amendment. The Court agrees with the reasoning set forth by the Magistrate Judge as to these
Defendants and Plaintiff has not filed objections responsive to these recommendations.
Conclusion
For the reasons set forth above, the Court agrees with and adopts the R&R of the
Magistrate Judge as the order of the Court. (Dkt. No. 29). Accordingly, the Court dismisses this
case without prejudice and without issuance and service of process as to the following
Defendants: Alicia Jones, RN; Nurse Ms. Spallden, RN; Mr. Officer Corley; Mr. Officer
Washington; Mr. Officer Smart; Sgt. Creech; Corporal Hughes; Ms. Officer Aldrich; Lt. Bishop;
Sgt. Gilbert; Ms. Pam Smith; IGC Ann Hallman; Mr. Sgt. DeLoach; Lt. Morrison; and the South
Carolina Department of Corrections.
AND IT IS SO ORDERED.

s/Richard M. Gergel__________
Richard Mark Gergel
United States District Court Judge
May 22, 2013
Charleston, South Carolina

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