Robinson v. Marquart

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION: the court ACCEPTS in part and REJECTS in part the Report of the magistrate judge (ECF No. 33 ). It is therefore ordered that Defendant's Motion for Summary Judgment (ECF No. 27 ) is GRANTED and Plaintiff's Motion for Partial Summary Judgment (ECF No. 21 ) is DENIED. Signed by Honorable J Michelle Childs on 9/10/2014. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Corey Jawan Robinson,

)
)
Plaintiff,
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v.
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Sgt. (SMUA-Shift) Marquart,
)
)
Defendant.
)
____________________________________)

Civil Action No. 5:13-cv-01899-JMC

ORDER AND OPINION

Plaintiff Corey Jawan Robinson (“Plaintiff”) filed this pro se action pursuant to 42 U.S.C.
§ 1983. Plaintiff alleges excessive force, assault and battery, gross negligence, and denial of
access to court by Defendant Sgt. Michael Marquardt (identified by Plaintiff as Sgt. (SMUAShift) Marquart) (“Defendant”). (ECF No. 1.) This matter is before the court on Plaintiff’s
Motion for Partial Summary Judgment (ECF No. 21) and Defendant’s Motion to Dismiss, or in
the Alternative, Motion for Summary Judgment (ECF No. 27).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Kaymani D. West for pre-trial handling. On February 28, 2014,
the magistrate judge issued a Report and Recommendation (“Report”) recommending the court
grant Defendant’s Motion for Summary Judgment and deny Plaintiff’s Motion for Partial
Summary Judgment. (ECF No. 33.) This review considers Plaintiff’s Objection to Report and
Recommendation (“Objections”), filed March 7, 2014. (ECF No. 35.) For the reasons set forth
herein, the court ACCEPTS in part and REJECTS in part the magistrate judge’s Report. The
court thereby GRANTS Defendant’s Motion for Summary Judgment (ECF No. 27) and
DENIES Plaintiff’s Motion for Partial Summary Judgment (ECF No. 21). For reasons outlined

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herein, the court rejects that portion of the magistrate judge’s Report that grants summary
judgment based on Plaintiff’s failure to exhaust his administrative remedies.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the magistrate judge’s Report is accurate, and the court adopts this
summary as its own. However, a recitation of the relevant facts and procedural history is
warranted.
Plaintiff is incarcerated at Lieber Correctional Institution (“LCI”) within the South
Carolina Department of Corrections (“SCDC”). (ECF No. 1 at 3.) Plaintiff alleges excessive
force by Defendant in violation of the Eighth Amendment prohibition of cruel and unusual
punishment. (Id. at 4.) In addition, Plaintiff alleges denial of access to courts in violation of the
Fourteenth Amendment and state law claims of assault and battery and gross negligence. (Id.)
Plaintiff seeks to sue Defendant in his individual capacity, to have the district court exercise
supplemental jurisdiction over his state law claims, to be awarded compensatory and punitive
damages totaling $7,500, to be awarded attorney and court fees, to clear all fees and costs to state
and federal courts, injunctive relief to seek outside treatment for medical conditions allegedly
exacerbated by the use of chemical munition, and a non-jury trial. (Id. at 6.)
Plaintiff alleges that on May 9, 2013, he did not receive his special diet lunch tray, and
began knocking on his cell door to get the attention of a corrections officer to explain the
situation. (Id. at 4.) Plaintiff claims that when Defendant approached his cell, Plaintiff tried to
explain he had not received lunch, but the officer “gassed [Plaintiff] with chemical munition and
walked off without hearing what the problem was.” (Id.) Defendant contends that Plaintiff
continued to kick at his cell door after multiple requests from multiple corrections officers to

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stop and after assurances that his lunch was on its way. (ECF No. 24-1 at 2.) Defendant further
contends that he discharged 18 grams of chemical munition “to restore order to the cell block as
[Plaintiff] continued to disregard [Defendant’s] directives.” (Id.)
Plaintiff also contends he is being denied access to courts, as the grievance process at
LCI, as amended on May 28, 2013, had prevented him from exhausting his administrative
remedies. (ECF No. 1 at 5.)
Plaintiff filed his Complaint on July 11, 2013. (ECF No. 1.) Defendant filed his Answer
to Plaintiff’s Complaint on August 21, 2013. (ECF No. 15) On September 9, 2013, Defendant
filed a Motion for Partial Summary Judgment on the issue of excessive force. (ECF No. 21.)
Defendant filed a Reply to Plaintiff’s motion on September 26, 2013 (ECF No. 24), and Plaintiff
filed a Reply Motion for Partial Summary Judgment on October 3, 2013. (ECF No. 25.) On
November 27, 2013, Defendant filed a Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment.1 (ECF No. 27.) On December 2, 2013, the magistrate judge entered a
Roseboro Order2 advising Plaintiff of the importance of the motion and his need to file an
adequate response. (ECF No. 28.) Plaintiff filed his Response in Opposition to Defendant’s
motion on December 23, 2013. (ECF No. 31). The magistrate judge issued the Report on
February 28, 2014, recommending Defendant’s motion be granted due to Plaintiff’s failure to
exhaust administrative remedies. (ECF No. 33.)
With the evidence in the record at the time of the magistrate judge’s Report, Plaintiff
could not demonstrate he had fully exhausted his administrative remedies, providing only
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The magistrate judge evaluated Defendant’s Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment (ECF No. 27) as a motion for summary judgment. (See ECF No. 33 at
1). The court agrees that Defendant’s motion should be construed as such.
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The order was entered in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
which requires the court to provide an explanation of dismissal or summary judgment procedures
to pro se litigants.
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returned and unprocessed Step 1 Grievance forms that requested Plaintiff attach an answered
Request to Staff Member form and resubmit his grievance. (Id. at 6.) As Plaintiff could not
offer any evidence he had attempted to resubmit a corrected grievance form, the magistrate judge
reasoned, Plaintiff could not demonstrate he had properly exhausted his administrative remedies.
(Id.)
The magistrate judge recommended granting summary judgment based on Plaintiff’s
failure to exhaust his administrative remedies. (Id.) However, the Report neither addressed
summary judgment on the merits of the excessive force or state law claims nor Defendant’s
qualified immunity defense. (Id. at 4, n.3.)
Plaintiff timely filed his Objections on March 7, 2014. (ECF No. 35.) Included with his
Objections, Plaintiff attached his Step 1 Grievance, including the warden’s decision (ECF No.
35-1 at 1-2), and his Step 2 Grievance, which was denied on February 25, 2014. (ECF No. 25-1
at 3.) The Step 2 Grievance form states “The decision rendered by the responsible official
exhausts the appeal process of the Inmate Grievance Procedure.” (Id.) Plaintiff signed the form,
acknowledging receipt of the response, on February 27, 2014. (Id.)
STANDARD OF REVIEW
The magistrate judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The magistrate judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270-71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the magistrate judge’s recommendation, or recommit the matter with

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instructions. See 28 U.S.C. § 636 (b)(1).
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248 (1986).

“[T]here is no issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.” Id. at 249.
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124
(4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with
mere allegations or denials of the movant’s pleading, but instead must set forth specific facts
demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d 1009, 1012 (4th
Cir. 1991). All that is required is that “sufficient evidence supporting the claimed factual dispute
be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
Anderson, 477 U.S. at 249 (quoting First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253,
288-89 (1968)). “Mere unsupported speculation . . . is not enough to defeat a summary judgment
motion.” Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).
Conclusory allegations or denials, without more, are insufficient to preclude the granting of the
summary judgment motion. Anderson, 477 U.S. at 248.
As Plaintiff is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments

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that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
ANALYSIS
Failure to exhaust
The Prison Litigation Reform Act (“PLRA”) provides that “No 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(a). To satisfy this requirement, a
plaintiff must use “all steps the agency holds out, and [do] so properly.” Woodford v. Ngo, 548
U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002).
With the evidence available to the magistrate judge at the time of writing the Report,
Plaintiff could not provide proof he had used all steps provided by LCI, nor that he had done so
properly. (ECF No. 33 at 6.) Under the SCDC Inmate Grievance Branch policy, amended on
May 28, 2013, and applied to grievances filed starting May 6, 2013, inmates are required to
attach an answered Request to Staff Member form to a grievance. (ECF No. 1-1 at 1.) In the
record available to the magistrate judge, Plaintiff could only provide proof of Step 1 Grievance
forms that were returned because he had not attached an answered Request to Staff Member
form and did not provide evidence he had attempted to submit a corrected grievance. (ECF No.
33 at 6. See ECF No. 1-1 at 3; ECF No. 22-1 at 2.)
Under the policy, any grievance alleging criminal activities is provided to the Division of
Investigations (“DOI”) for possible investigation. (ECF No. 1-1 at 2.) Due to the allegations
Plaintiff made in his grievance, his grievance was forwarded to the DOI per the policy. (ECF
No. 1-1 at 3; ECF No. 35-1 at 1.) In his July 23, 2013, decision regarding Plaintiff’s grievance,

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LCI’s warden indicated the DOI had investigated Plaintiff’s allegations and referred the matter to
the warden, who denied the grievance. (ECF No. 35-1 at 2.) On July 25, 2013, Plaintiff filed a
Step 2 Grievance, appealing the denial. (Id. at 3.) This grievance was also denied, with a
decision dated February 25, 2014, three days before the magistrate judge filed the Report. (Id.)
Plaintiff signed the Step 2 Grievance form, acknowledging receipt of the decision, on February
27, 2014, the day before the Report was filed. (Id.) The warden’s response to the Step 1
Grievance and the Step 2 Grievance and response were not in the record available to the
magistrate judge when she issued her Report.
In light of Plaintiff’s submission with his Objections of his denied Step 2 Grievance
form, which states that the decision rendered “exhausted the appeal process” (Id.), Plaintiff can
show he has exhausted his administrative remedies. As such, the court declines to adopt the
magistrate judge’s recommendation that Defendant’s Motion for Summary Judgment be granted
due to Plaintiff’s failure to exhaust his administrative remedies.
Excessive Force
To prove a claim of excessive force, a plaintiff must satisfy the two-part test outlined by
the Fourth Circuit in Iko v. Shreve, 535 F.3d 225 (4th Cir. 2008). Under this standard, a plaintiff
must show “whether the prison official acted with a sufficiently culpable state of mind
(subjective component) and whether the deprivation suffered or injury inflicted on the inmate
was sufficiently serious (objective component).” Id. at 238 (quoting Williams v. Benjamin, 77
F.3d 756, 761 (4th Cir.1996)).
Although Plaintiff and Defendant offer affidavits from witnesses providing different facts
surrounding the incident that could create a genuine dispute of material fact regarding
Defendant’s state of mind under the subjective component (see ECF No. 22-1 at 3-8; ECF No.

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24-1 at 1-3; ECF No. 27-1 at 1-3), where Plaintiff fails is under the objective component. With
the facts in the record, Plaintiff not only fails to establish a “sufficiently serious” injury, but any
injury at all. Attached to his Reply Motion for Partial Summary Judgment (ECF No. 25),
Plaintiff provides 35 pages of medical records and Request to Staff Member forms requesting
medical attention. (ECF No. 25-1.) The Medical Summary entry for May 9, 2013, the date of
the incident, reports “No medical issues noted nor did [inmate] make any complaints related to
medical issues. No resp. issues noted.” (Id. at 11. See also Affidavit of Toby Markowitz, RN,
ECF No. 24-2 at 1-2.) None of the subsequent entries in Plaintiff’s Medical Summary mentions
any of Plaintiff’s alleged injuries due to the use of chemical munition on May 9, 2013. (ECF No.
25-1 at 11-14.) Additionally, none of the Request to Staff Member forms attached to Plaintiff’s
Reply Motion is from the period following the incident on May 9, 2013, and therefore these
forms provide no evidence of Plaintiff’s alleged injury.

(ECF No. 25-1.)

Plaintiff’s sole

evidentiary offering is his own conclusion that the chemical munition caused blurry vision and a
burning sensation in his lungs. (ECF No. 1 at 4.) “Mere unsupported speculation . . . is not
enough to defeat a summary judgment motion.” Ennis, 53 F.3d at 62. As such, Plaintiff can
show no genuine dispute of material fact regarding an injury sustained by Defendant’s actions,
and therefore Defendant is entitled to summary judgment on this claim.
Furthermore, Defendant argues he is entitled to qualified immunity for his actions on
May 9, 2013. Government officials performing discretionary functions are “shielded from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Wilson v. Layne, 526
U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

When

evaluating a claim for qualified immunity, the court must first determine whether Plaintiff has

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alleged a deprivation of an actual constitutional right. Id. As discussed, Plaintiff cannot allege a
deprivation of an actual constitutional right, as he cannot demonstrate any injury as the result of
Defendant’s actions. As such, Defendant is entitled to qualified immunity on this claim.
As the court finds Defendant is entitled to summary judgment on Plaintiff’s excessive
force claim, the court accepts the magistrate judge’s recommendation that Plaintiff’s Motion for
Partial Summary Judgment on this claim (ECF No. 21) be denied.
Denial of Access to Courts
Plaintiff also alleges a denial of access to court based on the grievance policy at LCI.
(ECF No. 1 at 4-5.) Plaintiff alleges that the policy is designed to prevent plaintiffs from
exhausting administrative remedies and therefore precludes them from filing suit. (Id. at 5.)
Plaintiff, however, fails to allege any facts that show Defendant personally acted to prevent
Plaintiff’s access to the courts and therefore Defendant is entitled to summary judgment on this
claim.
Assault and Battery and Gross Negligence
Under 28 U.S.C. § 1367(c)(3), the district court may decline to exercise supplemental
jurisdiction over a claim if it “has dismissed all claims over which it has original jurisdiction.”
As the court has found Defendant is entitled to summary judgment on Plaintiff’s constitutional
claims, the court accepts the magistrate judge’s recommendation that the court decline to
exercise supplemental jurisdiction over any remaining claims under state law.
CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report of the
magistrate judge and the record in this case, the court ACCEPTS in part and REJECTS in part
the Report of the magistrate judge (ECF No. 33). It is therefore ordered that Defendant’s Motion

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for Summary Judgment (ECF No. 27) is GRANTED and Plaintiff’s Motion for Partial Summary
Judgment (ECF No. 21) is DENIED.
IT IS SO ORDERED.

United States District Judge
September 10, 2014
Columbia, South Carolina

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