Jenkins v. Bittinger et al

Filing 72

ORDER RULING ON REPORT AND RECOMMENDATION: The Court ADOPTS the R&R of the Magistrate Judge (Dkt. No. 67 ) as the Order of the Court, and Defendant Eric S. Hooper's motion for summary judgment (Dkt. No. 48 ) is GRANTED. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 03/21/2019. (dsto, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

Bobby C. Jenkins,

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Plaintiff,
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V.
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Eric S. Hooper,
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Defendant.
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Civil Action No. 5: 16-cv-2649-RMG

ORDER AND OPINION

Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge
(Dkt. No. 67) recommending the Court grant Defendant Eric S. Hooper's motion for summary
judgment (Dkt. No. 48). For the reasons set forth below, the Court adopts the R & Ras the order
of the Court, and the Court grants the Defendant's motion for summary judgment.
I.

Background

The Court adopts the relevant facts as outlined in the R & R. (Dkt. No. 67 at 2 - 5.) 1 In
brief, Plaintiff argues that on March 1, 2016, while waiting to be taken to a meal, Officer McCall
and Defendant Hooper, an officer and counselor respectively at Evans Correctional Institution
("ECI") where Plaintiff was incarcerated at the time,2 ordered a shakedown of his cell. Plaintiff
was ordered to place his hands on the wall to be frisked and Defendants decided to handcuff
Plaintiff. Plaintiff then took his hands off the wall and refused to be handcuffed, arguing he feared
for his safety if he was handcuffed and he could be attacked for being a Muslim, as had allegedly
happened to other inmates. Plaintiff tried to leave the cell and Defendant Hooper grabbed Plaintiff

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Plaintiffs objections to the R & R's factual findings are discussed in the relevant legal sections.
Previously, all claims again three other Defendants in this action were dismissed, as was a policy
violation claim against the one remaining defendant, Defendant Hooper. (Dkt. No. 20.)
2

Plaintiff is now incarcerated at Ridgeland Correctional Institution ("RCI").
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to handcuff him and, as Plaintiff was attempting to leave his cell, Defendant sprayed mace in
Plaintiffs face. Defendant Hooper and Plaintiff then allegedly got into a fight, where Defendant
Hooper sprayed Plaintiff and hit Plaintiff. During the fight, Defendant Hooper slipped on the
mace, pulled Plaintiff down as he was falling, and Defendant Hooper sustained serious injuries.
Plaintiff also alleges that a Captain who ultimately took him to lock-up refused to let Plaintiff wash
his eyes.
Defendant Hooper filed a motion for summary judgment. (Dkt. No. 48.) Plaintiff opposed
the motion. (Dkt. No. 65.) On February 7, 2019, the Magistrate Judge issued an R & R which
recommended granting Defendant's motion. (Dkt. No. 67.) Plaintiff has not filed objections.

II.

Legal Standard
A.

Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court that has no presumptive
weight. The responsibility to make a final determination remains with the Court. See Mathews v.

Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b )(1 ). This
Court must make a de nova determination of those portions of the R & R Plaintiff specifically
objects. Fed. R. Civ. P. 72(b)(2). Where Plaintiff fails to file any specific objections, "a district
court need not conduct a de nova 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." Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover,

in the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the recommendation." Wilson v. S.C. Dept ofCorr., No. 9:14-CV-4365-RMG, 2015 WL
1124701 , at *1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th
Cir.1983). Plaintiff has not filed objections.
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B.

Summary Judgment

To prevail on a motion for summary judgment, the movant must demonstrate that there is
no genuine issue of any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party seeking summary judgment has the burden of identifying
the portions of the "pleadings, depositions, answers to interrogatories, any admissions on file,
together with the affidavits, if any, which show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The Court will construe all inferences and ambiguities against the
movant and in favor of the non-moving party. US. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The existence of a mere scintilla of evidence in support of the non-moving party's position is
insufficient to withstand a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 4 77
U.S. 242, 252 (1986). However, an issue of material fact is genuine ifthe evidence is such that a
reasonable jury could return a verdict in favor of the non-movant. Id. at 257.
"When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts." Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "In the language of the Rule,
the nonmoving party must come forward with "specific facts showing that there is a genuine issue
for trial." Id. at 587. "Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no 'genuine issue for trial."' Id. quoting First Nat'! Bank

ofAriz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
III.

Discussion

To begin with, as the Magistrate Judge correctly noted, Plaintiff has not exhausted his claim
against Defendant Hooper, and therefore Defendant Hooper is entitled to summary judgment. The
Prison Litigation Reform Act ("PLRA") mandates that an inmate exhaust "such administrative
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remedies as are available" before bringing suit under § 1983. 42 U.S.C. § 1997e(a). It is the
defendant' s burden to establish that a plaintiff failed to exhaust his administrative remedies. See

Wilcox v. Brown, 877 F.3d 161, 167 (4th Cir. 2017). The administrative remedies are dictated by
the prison. See Jones v. Bock, 549 U.S. 199, 218 (2007).

Defendant Hooper presented

uncontroverted evidence that, pursuant to South Carolina Department of Corrections policy, an
inmate has only exhausted his administrative remedies when he filed a Form 10-5 Step 1 grievance,
and then a Form 10-5a Step 2 grievance. Before filing a Step 1 grievance, an inmate must first
attempt an informal resolution of the issue by submitting a Request to Staff Member Form
("RTSM") within eight working days of the incident. Once a Step 1 grievance is filed, the Warden
must respond in writing and, if the inmate is not satisfied, the inmate may appeal the decision in a
Step 2 grievance. (Dkt. No. 48-6 at

iii!

5 - 11, South Carolina Dept. of Corrections, Inmate

Grievance System, GA-01.12, May 12, 2014, available at http://www.doc.sc.gov/policy/GA-Ol12.htm1553119234319.pdf (last accessed, March 21, 2019).)
Here, the uncontroverted record shows that Plaintiff failed to exhaust his administrative
remedies. As the Magistrate Judge ably found, out of the eighteen grievances Plaintiff filed
between March 1, 2016 and July 1, 2016, Plaintiff filed no grievance regarding Defendant Hooper
using excessive force. Further, even if one grievance, number ECI-229-16, could be construed to
allege excessive force, Plaintiff never filed a Step 2 grievance appealing the warden's decision and
instead marked and signed that he "accept[s]" the Warden' s decision and "consider[s] the matter
closed." (Dkt. No. 48-6 at 44 - 46.) Therefore, Plaintiff failed to exhaust his administrative
remedies and Defendant' s motion for summary judgment is granted.
Further, the Magistrate Judge was correct in holding that Plaintiffs claim fails for reasons
independent of his failure to exhaust. First, reviewing the four factors in lko v. Shreve, 535 F.3d

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225 (4th Cir. 2008) for excessive use of force, it is clear that Plaintiff cannot make out a claim for
excessive use of force as Plaintiff admits he disobeyed a direct order to be handcuffed, admits he
tried to leave his cell while Defendant was attempting to handcuff him, Defendant reasonably
perceived a threat regarding Plaintiffs attempt to leave his cell, and Defendant only used force
after giving Plaintiff opportunity to comply and attempting to first use mace.
Second, Plaintiffs claims against Defendant in his official capacity are barred since
Plaintiff, in his official capacity, is not a "person" within the meaning of 42 U.S.C. § 1983. Finally,
as the Magistrate Judge correctly held, Defendant Hooper is entitled to qualified immunity. Under
the doctrine of qualified immunity, officials may be shielded from liability for civil damages if
their conduct does not violate clearly established statutory or constitutional rights. As the Court
found that there is no dispute of material fact that Defendant Hooper did not use excessive force,
Defendant did not violate any clearly established statutory or constitutional rights.

IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the R & R of the Magistrate Judge (Dkt.

No. 67) as the Order of the Court, and Defendant Eric S. Hooper's motion for summary judgment
(Dkt. No. 48) is GRANTED.
AND IT IS SO ORDERED.

Richard Mark rgel
United States District Court Judge
March ] l, 2019
Charleston, South Carolina

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