Sharpe v. Bush et al
Filing
102
ORDER granting 86 Motion for Summary Judgment; adopting Report and Recommendations re 97 Report and Recommendation. Signed by Honorable David C Norton on December 10, 2019.(kwhe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
SHAWN WILLIAM SHARPE,
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Plaintiff,
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vs.
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DENNIS BUSH, ALVIN GRABBER,
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LISA YOUNG, and FULLER,
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Defendants.
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____________________________________)
No. 5:18-cv-00749-DCN
ORDER
This matter is before the court on United States Magistrate Judge Kaymani D.
West’s report and recommendation (“R&R”) recommending that the court grant
defendants Dennis Bush, Alvin Graber, 1 Lisa Young, and Fuller’s (collectively,
“defendants”) motion for summary judgment, ECF No. 97. For the reasons set forth
below, the court adopts the R&R and grants defendants’ motion.
I. BACKGROUND
Plaintiff Shawn William Sharpe (“Sharpe”) is a prisoner in the South Carolina
Department of Corrections (“SCDC”) prison system. Sharpe alleges that his property
was lost when he was moved from the Moultrie Unit to “SMU lock up” at Broad River
Correctional Institution (“BRCI”). ECF No. 30 at 5. Included in that property was legal
paperwork that Sharpe planned to use to file an application for post-conviction relief
(“PCR”). Sharpe contends that because his paperwork was lost, he was unable to file his
PCR application in time, and as a result, his PCR claim was dismissed as untimely. See
ECF No. 86-6 at 3–5 (state court order finding Sharpe’s PCR application to be untimely
1
Graber’s name is misspelled in the complaint.
1
and equitable tolling to be inapplicable). Sharpe alleges that each defendant was
personally involved in the loss of his possessions. According to Sharpe, defendant Fuller
and defendant Alvin Graber (“Graber”) were to pack up Sharpe’s possessions. Then
Fuller was to give the possessions to Graber, who was to give the possessions to
defendant Lisa Young (“Young”), who worked in SMU lock up’s property room.
Defendant Dennis Bush (“Bush”) was the Warden at BRCI at the time, and Sharpe
contends that Bush’s involvement included responding to Sharpe’s grievances and
verbally assuring Sharpe that Sharpe would receive trial transcripts from his trial.
Sharpe filed several grievances based on the loss of his property. The SCDC
procedure for filing a grievance is as follows. An inmate must first “make an effort to
informally resolve a grievance by submitting a Request to a Staff Member form” within
eight working days of the incident. ECF No. 86-4 at 13. If the issue cannot be
informally resolved, then the inmate must complete a “Form 10-5, Step 1” (“Step 1
form”) and place it in the designated grievance box. The Warden responds to the
grievance in writing, and the inmate will then sign and date the response to acknowledge
receipt. If the inmate disagrees with the Warden’s decision, the inmate can appeal the
decision by completing a “Form 10-5a, Step 2” (“Step 2 form”) and placing it in the
designated grievance box. The “responsible official” eventually renders a decision on the
appeal, marking SCDC’s final response on the matter.
Sharpe filed three different Step 1 forms related to the loss of his property. His
first Step 1 form was received on October 14, 2016. ECF No 93-1 at 2. In response, the
Warden issued a decision that recommended various items be reissued to Sharpe through
the commissary. ECF No. 93-1 at 3. The Warden noted that “[p]ersonal items such as
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pictures and mail cannot be replaced or compensated.” Id. The Warden concluded by
stating that “[b]ased on this information, your action requested has been resolved. If not
satisfied with my response, see Step 5 below.” Id. “Step 5” contains instructions on how
to appeal the Warden’s decision, which includes completing a “Step 2 appeal form” and
placing it in the grievance box. Id. After the Warden’s decision, the document contains
two options with empty check boxes next to them. The first says “I accept the Warden’s
decision and consider the matter closed.” Id. The second says “I do not accept the
Warden’s decision and wish to appeal.” Id. Sharpe placed a check next to and circled
the option that states “I accept the Warden’s decision and consider the matter closed.”
He then signed the form.
Sharpe filed another Step 1 form that was received on October 13, 2017. Id. at 8.
In that grievance, Sharpe explains that he was transferred from one prison to another and
that he never received his property after the transfer. In relation to his legal documents,
Sharpe explains that his legal work was included in the property and that he needed it as
soon as possible because he was in the middle of his PCR. The grievance was returned to
Sharpe because Sharpe “failed to attach the required RTSM/KIOSK number regarding
[his] attempt at an informal resolution on this issue as required in GA-01.12 Inmate
Grievance Procedures.” Id. at 9. Sharpe was told that he could refile a new grievance
after receiving a response to his informal resolution attempt and that failure to refile
would result in an abandonment of the grievance. According to SCDC records, Sharpe
did not take any further action with respect to this grievance. ECF No. 86-4 at 4.
Sharpe filed a third Step 1 form, which was received on July 20, 2018. ECF No.
Id. at 29. The form was again returned to Sharpe because he “failed to attempt an
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informal resolution in accordance with Agency Policy GA-01.12.” Id. The form further
stated that “[y]ou may re-file a new grievance form within eight (8) working days of
receiving a response to the Request to Staff Form or ARTSM.” Id. According to SCDC
records, Sharpe did not take any further action with respect to this grievance. Id. at 5.
In his second amended complaint, the now operative complaint, Sharpe brought
claims under 42 U.S.C. § 1983 based on a violation of Sharpe’s First Amendment right to
access to courts and on a violation of Sharpe’s Fourth Amendment right to “feel secure in
life liberty and property.” ECF No. 30 at 4. 2 The magistrate judge then recommended
that Sharpe’s Fourth Amendment/due process claim be dismissed but that his First
Amendment access-to-courts claim survive. ECF No. 43. No objections to that R&R
were filed, so the court dismissed Sharpe’s Fourth Amendment/due process claim. ECF
No. 49. As such, Sharpe’s remaining claim is his First Amendment access-to-courts
claim. Defendants filed a motion for summary judgment on March 4, 2019. ECF No.
86-1. Sharpe responded on March 27, 2019, ECF No. 93, and defendants replied on
April 3, 2019, ECF No. 96. The magistrate judge issued an R&R on August 19, 2019
that recommended that the court grant defendants’ motion for summary judgment. ECF
No. 97. Sharpe filed objections to the R&R on September 6, 2019. ECF No. 99.
Defendants did not reply to Sharpe’s objections.
2
The court notes that the R&R also considered Sharpe’s Eighth Amendment
claim and due process claim. The Eight Amendment claim was raised in Sharpe’s first
amended complaint but not in his second amended complaint, the now operative
complaint. The due process claim was dismissed by the court. ECF No. 49. As such, the
court does not address either of these claims in this order.
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II. STANDARD
A. Pro Se Standard
Federal district courts are charged with liberally construing petitions filed by pro
se litigants to allow the development of a potentially meritorious case. See Hughes v.
Rowe, 449 U.S. 5, 9-10 (1980). Pro se petitions are therefore held to a less stringent
standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978). Liberal construction, however, does not mean that a court may ignore a clear
failure in the pleading to allege facts that set forth a cognizable claim. See Weller v.
Dep’t of Soc. Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).
B. R&R Review
The magistrate judge makes only a recommendation to the court. Mathews v.
Weber, 423 U.S. 261, 270 (1976). The recommendation carries no presumptive weight,
and the responsibility to make a final determination remains with the court. Id. at 270-71.
The court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge . . . or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). The court is charged with
making a de novo determination of any portion of the R&R to which a specific objection
is made. Id. However, in the absence of a timely filed, specific objection, the court
reviews the R&R only for clear error. Diamond v. Colonial Life & Accident Ins. Co.,
416 F.3d 310, 315 (4th Cir. 2005) (citation omitted). Furthermore, “[a] party’s general
objections are not sufficient to challenge a magistrate judge’s findings.” Greene v. Quest
Diagnostics Clinical Labs., Inc., 455 F. Supp. 2d 483, 488 (D.S.C. 2006) (citation
omitted). In other words, de novo review is unnecessary when a party makes general and
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conclusory objections without directing a court’s attention to a specific error in the
magistrate judge’s proposed findings. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982).
C. Summary Judgment
Summary judgment shall be granted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court should view the evidence in the light most
favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
III. DISCUSSION
Construing Sharpe’s objections liberally, as the court is required to do, Sharpe
raises two objections to the R&R. First, Sharpe objects to the R&R’s finding that there is
no genuine issue of material fact concerning defendants’ personal involvement in the loss
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of Sharpe’s possessions. Second, Sharpe objects to the R&R’s finding that Sharpe has
failed to show that his underlying PCR claim is “arguable” and “nonfrivolous.” Despite
Sharpe’s objections, the court agrees that summary judgment is warranted in favor of
defendants.
A. Defendants’ Involvement
The R&R found that Sharpe presented no evidence of any defendant engaging in
specific conduct that lead to a specific injury. In his objections, Sharpe states that “it is
facts [sic] that [his] property was lost due to the defendants not doing their job properly.”
ECF No. 99 at 1. To provide greater context for Bush’s involvement, Sharpe explains
that in response to his first grievance, Bush admitted that Sharpe’s property was lost and
that several of Sharpe’s items would be replaced. Sharpe notes that Bush’s decision
“states that certain items would be replaced, however, legal documents and photos would
not be replaced. Both [Sharpe] and Warden Bush agreed on those stipulations, however,
its [sic] now three years later and [Sharpe] has yet to receive the items agreed upon.” Id.
Sharpe goes on to explain that Bush told Sharpe in person that Bush would have the
associate warden obtain copies of trial transcripts from Sharpe’s trial but that Sharpe
never received them. Sharpe does not mention the other defendants in his objections, but
in his response to defendants’ motion for summary judgment, he argues that Fuller and
Graber were responsible for ensuring that Sharpe’s possessions were packed and
transported, and that Young should have checked to ensure that Sharpe received his
possessions.
A civil action under 42 U.S.C. § 1983 allows “a party who has been deprived of a
federal right under the color of state law to seek relief.” City of Monterey v. Del Monte
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Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a
plaintiff must allege two essential elements: (1) that a right secured by the Constitution or
laws of the United States was violated, and (2) that the alleged violation was committed
by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
In Bounds v. Smith, the Supreme Court recognized that “prisoners have a constitutional
right of access to the courts.” 430 U.S. 817, 821 (1977). Right-to-access claims include
claims in which a prisoner has alleged that an official act that denied access to the courts
caused the loss of a meritorious case. Christopher v. Harbury, 536 U.S. 403, 414 (2002).
“The right of access to the courts includes ‘the opportunity to prepare, serve and file
whatever pleadings or other documents are necessary or appropriate in order to
commence or prosecute court proceedings affecting one’s personal liberty, or to assert
and sustain a defense therein.’” Pronin v. Johnson, 628 F. App’x 160, 162 (4th Cir.
2015) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011)). As such, a
prisoner may pursue a § 1983 claim when his right to access the courts has been violated
because prison officials have prevented him from preparing and filing court documents
that affect his personal liberty.
However, negligent conduct that results in the denial of access to courts cannot
serve as the basis of a § 1983 action. Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995). For
example, in Pink, the Fourth Circuit held that prison officials’ negligent processing of an
inmate’s request form for a money order for his docketing fee was not actionable under
§ 1983. Id. at 74–75. The inmate gave the completed request form to a prison guard,
who gave it to the proper prison officials. Id. at 74. The form was signed and approved
by the assistant warden and should have been delivered to the Accounting Department,
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but for reasons unknown, Accounting did not receive the form. As a result, the money
order was never issued, the court never received the inmate’s docketing fee, and the
inmate’s appeal was dismissed. The inmate brought a § 1983 action against the prison
officials for violating his right to access to courts. Relying on Daniels v. Williams, 474
U.S. 327 (1986), the Fourth Circuit explained that “the unintended misrouting of a
routine money order request is too far afield from state action used for purposes of
oppression” to form a constitutional violation. Id. at 75–76. Indeed, “[t]he inadvertent
misrouting of a request form simply does not implicate the fundamental democratic
principle of the right to petition; namely, that a republican government not turn a deaf ear
to its citizenry.” Id. at 76. Therefore, mere negligence cannot sustain a § 1983 action for
denial of access to courts.
The R&R recommended that the court grant summary judgment on Sharpe’s
access-to-courts claim in part because Sharpe failed to provide evidence that any
defendant engaged in specific conduct that led to a specific injury. The R&R recounted
the affidavits of Bush, Graber, and Young, all of which deny any personal involvement in
the packaging or transporting of Sharpe’s belongings. Moreover, Graber and Young
indicate that it was the responsibility of Moultrie Unit officers to inventory and move
Sharpe’s possessions, and not their responsibility. 3 ECF Nos. 83-2 at 1; 86-3 at 2. The
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Fuller was the unit manager of the Moultrie Unit. Service on Fuller has been
attempted several times but has been unsuccessful. ECF Nos. 54, 72. As such, Fuller has
not made an appearance in this case.
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R&R also noted that negligent conduct cannot serve as the basis for § 1983 liability,
suggesting that to be the case here.
The court agrees with the R&R’s finding that Sharpe failed to present any
evidence that any of defendants’ involvement in the loss of his legal paperwork 4 that
could account for anything more than negligence. “As a general rule, when one party
files a motion for summary judgment, the non-movant cannot merely rely on matters
pleaded in the complaint, but must, by factual affidavit or the like, respond to the
motion.” Carter v. Lassiter, 2019 WL 6048043, at *4 (W.D.N.C. Nov. 14, 2019). Sharpe
did not submit any affidavits in response to defendants’ motion. However, in the Fourth
Circuit, a pro se plaintiff’s verified complaint is treated as an affidavit for summary
judgment purposes when the factual allegations contained therein are based on the
plaintiff’s personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Therefore, because Sharpe’s second amended complaint is verified, the court considers
any factual allegations based on Sharpe’s personal knowledge. Even in doing so, Sharpe
has failed to show that any defendant acted in a manner more than negligence. To
survive defendants’ summary judgment motion, Sharpe must point to some evidence to
show that at least one of the defendants intentionally lost his legal paperwork. As to
Bush and Young, Sharpe has failed to point to any action by Bush or Young that shows
intentional mishandling of his legal paperwork. At most, in the light most favorable to
Sharpe, Young failed to check and see if Sharpe received his possessions after they had
4
The court notes that Sharpe has continued to state that he has not received
certain items that were mentioned in the decision on Sharpe’s first Step 1 grievance.
However, as discussed above, Sharpe’s only remaining claim is his access-to-courts
claim, which focuses on the loss of his legal paperwork. As such, the loss of and failure
to replace the rest of Sharpe’s possession are outside of the scope of this lawsuit.
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presumably already been lost. Similarly, Sharpe only mentions Bush’s involvement after
Sharpe’s possession had been lost.
With regard to Graber and Fuller, Sharpe states in his second amended complaint
that Graber and Fuller lost or stole his property. ECF No. 30 at 6. Again, the action of
losing Sharpe’s property, without any evidence to show that it was intentional, is at most
negligence and not actionable. With regard to stealing Sharpe’s property, that certainly
suggests intent on the part of Graber and Fuller. However, Sharpe does not provide
enough detail or information for the court to determine that he has personal knowledge
that Graber and Fuller stole his possession, meaning that the court cannot treat that
information as a factual dispute for purposes of summary judgment. Indeed, the fact that
Sharpe states that Graber and Fuller lost or stole his property suggests that he is not sure
which is true—that Graber and Fuller either lost the property or that they stole it.
Without indication of Sharpe’s personal knowledge on this issue, the court cannot credit
his allegation as a factual assertion in an affidavit. Because there is no evidence of
intentional action by any of the defendants, the court finds that summary judgment is
warranted in favor of defendants.
B. Arguable or Nonfrivolous Claim
The R&R also recommends summary judgment in favor of defendants because
Sharpe failed to show that his underlying claim was arguable or nonfrivolous. To show
injury in an access-to-court claim, “the plaintiff must show that he lost or will lose the
opportunity to pursue a ‘nonfrivolous’ and ‘arguable’ claim.” Pronin, 628 F. App’x at
162. “To prevail on a claim he has been denied meaningful access to the courts, Plaintiff
must allege more than a missed deadline or opportunity to file an action in court.” Hurt
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v. Fann, 2015 WL 1210541, at *5 (D. Md. Mar. 16, 2015). The Supreme Court has
emphasized “the need for care in requiring that the predicate claim be described well
enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature of the
underlying claim is more than hope.” Christopher, 536 U.S. at 416.
Sharpe argues both in response to defendant’s motion for summary judgment and
in his objections that if his legal paperwork had not been lost, he would have been able to
file his PCR application on time and his sentence could have been reduced or he could
have been freed. ECF No. 93 at 2; ECF No. 99 at 1. Sharpe’s PCR claims include an
ineffective assistance of counsel claim and a due process claim. As for the ineffective
assistance of counsel, Sharpe alleged that his lawyer was ineffective for failing to show
him his “rule’s/motion of discovery” before trial, for failing to call certain witnesses that
Sharped wanted to call, and for letting Sharpe’s rights “be violated by due process.” ECF
No. 86-5 at 3. The two bases for Sharpe’s due process claim are that Sharpe was not
indicted within 90 days of being served with his arrest warrants and that Sharpe’s
indictments were not properly written, particularly because they used “and/or” when
referring to the various defendants’ alleged criminal behavior.
The problem with Sharpe’s argument is two-fold. First, Sharpe provides no
argument as to why his PCR claims were arguable or nonfrivolous. Indeed, Sharpe fails
to show that if his PCR application was timely filed, the application would have been
arguable or nonfrivolous. Second, the court is unconvinced that Sharpe was actually
prevented from timely filing his PCR application because his legal paperwork was lost,
meaning that he was not denied access to the courts. Sharpe’s direct appeal ended on
October 7, 2015, so his PCR application was due by October 7, 2016. Sharpe’s legal
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paperwork was lost on August 9, 2016. Sharpe eventually filed his PCR application
without his legal paperwork on February 10, 2017. The court tends to agree with Sharpe
that he should not be faulted for failing to file his PCR application from October 7, 2015
to the date on which he lost his paperwork. Sharpe had the right to file his PCR
application at any point in between October 7, 2015 and October 7, 2016. He could not
predict that his legal paperwork would be lost. However, as the R&R notes, Sharpe could
have filed his PCR application between August 9, 2016, when his paperwork was lost,
and October 7, 2016, when his PCR application was due. Sharpe provides no reason as
to why he did not file his PCR application during this time. Sharpe does not argue that he
could not file his PCR application without his lost paperwork, nor does he argue that his
lost paperwork was required to properly complete his PCR application. The fact that
Sharpe did subsequently file his PCR application without recovering his legal paperwork
indicates that he could have filed his application without his paperwork between August
9, 2016 and October 7, 2016. However, Sharpe failed to do so.
The court reviewed for clear error the remaining portions of the R&R to which
Sharpe did not object. After a thorough review of the record, the court finds no clear
error and grants defendants’ motion for summary judgment.
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IV. CONCLUSION
For the foregoing reasons the court ADOPTS the R&R and GRANTS
defendants’ motion for summary judgment.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
December 10, 2019
Charleston, South Carolina
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