Pearson v. Federal Bureau of Prisons et al

Filing 43

ORDER ADOPTING 40 Report and Recommendations; GRANTING 35 Motion to Dismiss, filed by D Drew, Mr Beasly, Mr Appolo, Ms Middleton. This action is dismissed without prejudice. Signed by Honorable Richard M Gergel on 4/28/2011. (mbro, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Bradley Allen Pearson,

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Plaintiff,
vs.

Mr. Beasley, Food Administrator, et. aI.,

Civil Action No.6: I O-<:v- I 965-RMG

ORDER

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Defendants.

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PlaintiITbrought this action pursuant to 42 U.S.C. § 1983. As a result, this matter
was referred to a Magistrate Judge for pre-trial proceedings. The Magistrate Judge has
made a report and recommendation that Defendants ' motion be granted. (Dkt. No. 40).1

The Plaintiff has failed to object. After a review for errors of law, this Court adopts the
recommendation of the Magistrate Judge.

Analysis

The magistrate judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and responsibility for making a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 26 1, 270-7 1, 96
S.C!. 549, 46 L.Ed.2d 483 (1976).

This Court is charged with making a de novo

detennination of those portions of the Report and Recommendation to which specific
objection is made, and this Court may "accept, reject. or modify, in whole or in pan, the

findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(l). This
Court may also "receive further evidence or recommit the matter to the magistrate with

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The Magistrate Judge and this Court have construed the motion as one for summary

judgment since Defendants rely on materials outside the pleadings.
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instructions." Id.

In the absence of specific objections to the Report and

Recommendation. this Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).
Defendants' claim that they are entitled to judgment on Plaintirrs claim because
Plaintiff failed to exhaust his administrative remedies prior to initiating litigation as
required by 42 U.S.c. § 1997e(a).

The Prison Litigation Reform Act ("PLRA")

defines a "prisoner" as "any person incarcerated or detained in any facility who is
accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole, probation, pretrial release, or
diversionary program." 42 U.S.c. § I 997e(h). The PLRA requires that a prisoner exhaust
administrative remedies before filing a § 1983 action concerning his confinement. 42
U.S.C.A. § I 997e(a). The Supreme Court held that the PLRA's exhaustion requirement
"applies to all inmate suits about prison life, whether they involve general circwnstances
or particular episodes, and whether they allege excessive force or some other wrong."
Porter v. Nussle, 534 U.S. 516, 532 (2002).
An inmate's failure to exhaust administrative remedies is an affinnative defense
that must be properly raised by the defendant. Anderson v. XYZ Corr. Health Servs., Inc.,
407 F.3d 674, 681 (4th Cir. 2005). Exhaustion is defined by each prison's grievance
procedure, not the PLRA; an inmate must comply with his prison's grievance procedure
to exhaust his administrative remedies. Jones, 549 U.S. at 218. However, as the United
States Supreme Court has emphasized, an irunate can only exhaust those administrative
remedies that are available to the inmate. Woodford v. Ngo, 548 U.S. 81, 85 (2006)
(" Prisoners must now exhaust all ' avai lable' remedies, not just those that meet federal

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standards."); 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison

conditions . . . until such administrative remedies as are available are exhausted."
(emphasis added)).

In the present action, Defendants have established they have a grievance
procedure in place. Plaintiff in his Complaint concedes he did not utilize the process to
complete but attempts to blame the Defendants for his fai lures. However, the record is
clear the plaintiff has taken part only in the informal resolution process and has fai led to
file any forma l grievance or any appeal to the Regional Director and General Counsel.
The plaintiff has made absolutely no showing that he was prevented, through no fault of

his own, from pursing hi s administrative remedies.

Remedies were available; the

plaintiff simply chose not to avail himself of them . Accordingly, Plaintiff's action fails .
Conclusion
Based on the above, Defendants' motion is gra nted and this action is dismissed
without prejducie. (Dk!. No. 35).

AND IT IS SO ORDERED.

United States District Court Judge

April~ 2011
Charleston, South Carolina

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