Sweat v. Reynolds et al

Filing 143

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 41 Defendants' Motion for Summary Judgment; denying 92 Plaintiff's Motion for Summary Judgment. All other pending motions are deemed MOOT. This action is hereby DISMISSED. Signed by Honorable Mary G Lewis on 2/14/2013.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
) Civil Action No: 9:11-1706-MGL
)
Plaintiff, )
)
v.
)
)
ORDER AND OPINION
Warden Cecilia Reynolds and Ms. Christina )
Long, in their official and individual
)
capacities
)
)
Defendants. )
______________________________________
Reginald C. Sweat, #257472,

Plaintiff Reginald C. Sweat (“Plaintiff”), a state prisoner proceeding pro se, filed this
action on July 15, 2011, pursuant to 42 U.S.C. § 1983 alleging violations of his
constitutional rights that allegedly occurred while he was housed at Kershaw Correctional
Institution (“KCI”) in the Special Management Unit (“SMU”). (ECF No. 1.) Defendants,
Cecilia Reynolds, who was the Warden of KCI, and Christina Long, who was a
Classification Case Manager at KCI, (“Defendants”) deny Plaintiff’s allegations and have
moved for summary judgment. (ECF Nos. 14 & 41.)

In accordance with 28 U.S.C.

§ 636(b)(1) and Local Civil Rule 73.02 of the District of South Carolina this was referred to
United States Magistrate Judge Bristow Marchant for pretrial handling. On February 10,
2012, Magistrate Judge Marchant issued a Report and Recommendation (“Report”)
recommending that this action be dismissed. (ECF No. 98.) The Magistrate Judge advised
the parties of the procedures and requirements for filing objections to the Report and of the
serious consequences if they failed to do so. (Id. at 16.) Plaintiff objects to the Report. For
the reasons set forth herein, the Court adopts the Report as modified and grants
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Defendants’ motion for summary judgment.
BACKGROUND
The Report sets forth in detail the relevant facts and standards of law and the Court
incorporates them and summarizes below in relevant part. At the time this complaint was
filed, Plaintiff was an inmate at KCI in Kershaw, South Carolina. Plaintiff contends, that
following a riot between Muslims and Folk gang members, he was transferred to the SMU
unit at KCI. Plaintiff further contends that on November 24, 2010, he was placed in the
same cell as his “pursuer,” James Furlow. (“inmate Furlow.”) (ECF No. 1 at 2.) Plaintiff
indicates that he and inmate Furlow were the primary parties responsible for the fighting
and should not have been housed together. Plaintiff contends that he complained to
Defendant Long that he and inmate Furlow should not be housed together and informed
Long that if he was assaulted he “would sue.” (Id. at 1.) Plaintiff alleges that over a two
month period, he wrote numerous letters to Defendant Reynolds, a Chaplin, and a
psychiatrist indicating that he and inmate Furlow wanted to be separated. (Id.)
Plaintiff contends that he was assaulted on three separate occasions while housed
with inmate Furlow. Plaintiff further contends that he spoke with Associate Warden
Washington following the first assault and Associate Warden Washington indicated Plaintiff
would be moved. However, Plaintiff was not moved and remained in the same cell with
inmate Furlow until Plaintiff’s release into the general population on or about July 8, 2011.
On February 8, 2011, Plaintiff filed a Step 1 grievance regarding his cell assignment with
inmate Furlow. Plaintiff’s grievance was denied on March 9, 2011. Thereafter, on March
10, 2011, Plaintiff filed a Step 2 grievance. On July 15, 2011, Plaintiff filed this action
alleging Defendants displayed deliberate indifference to a known risk of harm towards
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Plaintiff. (ECF No.1.) At the time Plaintiff filed this action, Plaintiff had not received a
decision on his Step 2 grievance.
REPORT AND RECOMMENDATION AND OBJECTIONS
The Magistrate Judge makes only a recommendation to this Court.
recommendation has no presumptive weight.

The

The responsibility for making a final

determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549,
46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of any
portions of the Report to which a specific objection is made. However, the district court
need not conduct a de novo review when a party makes only general and conclusory
objections that do not direct the court to a specific error in the Magistrate Judge's proposed
findings and recommendations. Orpiano v. Johnson, 687 F.2d 44, 47–48 (4th Cir.1982).
The Court may accept, reject, or modify, in whole or in part, the recommendation made by
the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions.
28 U.S.C. § 636(b)(1).
Upon review, Magistrate Judge Marchant recommended that Defendants’ motion
for summary judgment be granted due to Plaintiff’s failure to exhaust his administrative
remedies and in the alternative that Plaintiff’s motion for summary judgment be granted due
to Plaintiff’s failure to present evidence sufficient to create genuine issue of fact as to
whether Defendants were deliberately indifferent to a known risk of harm to Plaintiff. The
Magistrate Judge noted that four months had passed since Plaintiff filed his Step 2
grievance and the filing of this lawsuit. Therefore, in the alternative, the Magistrate Judge
recommended that, if the Court deemed that Plaintiff had exhausted his administrative
remedies, summary judgment should be granted due to Plaintiff’s failure to set forth a claim
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for deliberate indifference.
Plaintiff objected to the Magistrate Judge’s Report and has submitted multiple
documents that set forth his objections including, a first set of objections on February 21,
2012 (ECF No. 100); a second set of objections on February 22, 2012 (ECF No. 103); a
third set of objections on February 27, 2012 (ECF No. 104); a fourth set of objections on
March 2, 2012 (ECF No. 105); and a fifth set of objections on March 20, 2012. Plaintiff has
also voiced his opposition to the Magistrate Judge’s recommendation in declarations filed
on March 6, 2012 (ECF No. 106); a declaration filed on March 8, 2012 (ECF No. 107); a
declaration filed on March 14, 2012 (ECF No. 109); a declaration filed on March 23, 2012
(ECF No. 112); a declaration on March 26, 2012 (ECF No. 114); two declarations on April
2, 2012 (ECF Nos. 116 & 117); a declaration filed on April 3, 2012 (ECF No. 118); a
declaration filed on April 5, 2012 (ECF No. 120); a declaration filed on April 23, 2012 (ECF
No. 125); a declaration filed on April 25, 2012 (ECF No. 127); and a declaration filed on
June 18, 2012 (ECF No. 134.) Upon review, the Court finds that many of Plaintiff’s
objections are non-specific, unrelated to the dispositive portions of the Magistrate Judge's
Report, or merely restate his claims. The Court, however, was able to glean two specific
objections from Plaintiff’s submissions which are: (1) The Magistrate Judge erred in
recommending summary judgment on his deliberate indifference claim, and, (2) The
Magistrate Judge erred in concluding Plaintiff had failed to exhaust his administrative
remedies.
SUMMARY JUDGMENT
The Court shall grant summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to a judgment as a
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matter of law.” F.R.Civ.P. 56(a). In other words, summary judgment should be granted
“only when it is clear that there is no dispute concerning either the facts of the controversy
or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Props., 810
F.2d 1282, 1286 (4th Cir.1987). When determining whether the movant has met its burden,
the court must assess the documentary materials submitted by the parties in the light most
favorable to the nonmoving party.” Id. The party seeking summary judgment shoulders the
initial burden of demonstrating to the court that there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has made this threshold demonstration, the non-moving
party, to survive the motion for summary judgment, may not rest on the allegations averred
in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific,
material facts exist that give rise to a genuine issue. Id. Under this standard, “[c]onclusory
or speculative allegations do not suffice, nor does a ‘mere scintilla of evidence’” in support
of the nonmoving party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649
(4th Cir.2002). Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials;
or

(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.

Fed.R. Civ. P. 56(c)(1).
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DISCUSSION
Plaintiff alleged that Defendants were deliberately indifferent to a known risk of harm
in violation of his Eighth Amendment rights. Defendants moved for summary judgment and
asserted several grounds for relief including, that Plaintiff failed to exhaust his
administrative remedies prior to filing this action and, Plaintiff has failed to create a genuine
issue of material fact as to whether Defendants demonstrated deliberate indifference to a
known risk of harm to Plaintiff.
1. Exhaustion of Administrative Remedies
Defendants argue they are entitled to summary judgment due to Plaintiff’s failure
to exhaust his administrative remedies prior to filing this action. Defendants assert that
Plaintiff filed a Step 1 Grievance and later a Step 2 Grievance, but he did not wait for a final
determination of the Step 2 Grievance prior to filing this action. (ECF No. 41 at 4.) Plaintiff
does not dispute that he did not exhaust his administrative remedies. In his objections,
Plaintiff argues that this case should not be dismissed on exhaustion grounds because he
“made a good faith effort” to exhaust his remedies prior to filing this action. (ECF No. 104
at 1 & 125 at 1.)
Exhaustion of administrative remedies prior to bringing a federal law suit is required
by 42 U.S.C. § 1997e(a) (stating “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”). A prisoner has not exhausted all of his administrative remedies
by “failing to follow the required steps so that remedies that once were available to him no
longer are.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir.2008). Exhaustion requires

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that the prisoner utilize all available procedures so that prison officials have the opportunity
to remedy the situation administratively. Id.
In order to exhaust the SCDC administrative remedy process, after unsuccessful
attempts at informal resolution of the problem(s), (1) an inmate must fill out a Form 10–5
(Step 1 Grievance form) to explain his complaint and give the form to an employee
designated by the Warden within fifteen days of the alleged incident; (2) the grievance must
then be entered into SCDC’s automated system, and the Institutional Inmate Grievance
Coordinator (“IGC”) notified so that the information in the automated system can be
finalized and an attempt to informally resolve it before sending it to the Warden can be
made within ten working days from the time the grievance is submitted; (3) the Warden
should respond to the inmate in writing within forty days of the Warden's receipt of the Step
1 grievance and then the IGC has five working days to provide the Step 1 response to the
inmate; (4) the inmate may then appeal the Warden's response by completing a Form
10–5a (Step 2 Appeal) and submitting it to the IGC within five “calendar days” of the
inmate's receipt of the response; (5) the IGC then notifies the Inmate Grievance Branch of
the Step 2 appeal and the Branch has another five “calendar days” to get the Step 2 appeal
to the responsible SCDC official (the Division Director of Operations) for a response; (6)
the Division Director of Operations then has sixty days from the day the appeal was
received by the IGC at the institution to respond to the Step 2 grievance, and finally, (7)
then there is another five days for the IGC to serve the inmate with the Step 2 response.
SCDC Policy/Procedure GA–01.12, at §§ 11, 13.1–13.6 (Oct. 1, 2010). The decision of the
“responsible official” who answers the Step 2 appeal is the Department's final response in
the matter. Id. at § 13.6.

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In the instant action, Plaintiff filed a Step 1 Grievance on February 8, 2011,
requesting that he be transferred from to a different cell on the grounds that he and his
roommate were members of rival gangs. (ECF No. 41-11 at 1.) Plaintiff’s Step 1
Grievance was reviewed and denied on March 9, 2011. (Id. at 2.) Plaintiff filed a Step
Two Grievance on March 10, 2011. (ECF 41-12.) At the time Plaintiff filed this action, no
response had been given to Plaintiff’s Step 2 Grievance.
The Court is aware that no bright line rule exists for determining what constitutes a
reasonable response time to an inmate grievance, and what time period constitutes a wait
so unreasonable that an inmate who has received no response can be said to have
exhausted all administrative remedies. Such an inquiry inherently depends on a thorough,
holistic examination of the totality of the circumstances in which the filing and response of
the grievance took place.
Courts in other circuits have found that administrative remedies are considered
exhausted when prison officials fail to timely respond to a properly filed grievance. Boyd
v. Corrections Corp. of America, 380 F.3d 989, 996 (6th Cir.2004) (“[A]dministrative
remedies are exhausted when prison officials fail to timely respond to a properly filed
grievance.”); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002) ( “[T]he failure [of
prison officials] to respond to a grievance within the time limits contained in the grievance
policy renders an administrative remedy unavailable.”); Lewis v. Washington, 300 F.3d 829,
833 (7th Cir.2002) (stating that prison's failure to timely respond renders administrative
remedies unavailable); Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir.2001) (“[O]nce [the
prison] failed to respond to [the prisoner's written grievance], no further administrative
proceedings were ‘available’ to him.”); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir.1999) (per

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curiam) (“A prisoner's administrative remedies are deemed exhausted when a valid
grievance has been filed and the state's time for responding thereto has expired.”)
In this matter, Plaintiff filed his Step 2 Grievance on March 10, 2011. More than 150
days had elapsed between the time Plaintiff filed his Step 2 grievance and the time he filed
this action on July 15, 2011. Defendants have not asserted or presented anything to show
that an extension of time to process the Grievance was granted or that some exception
applies. Thus, for summary judgment purposes, Plaintiff has shown genuine issues of
material fact as to whether Defendants hindered his ability to exhaust his administrative
remedies.
2. Deliberate Indifference/Failure to Protect
Defendants contend that they are entitled to summary judgment on Plaintiff’s claim
that Defendants have been deliberately indifferent to his needs under the Eighth
Amendment for failing to protect him from harm. In the Report, the Magistrate Judge
recommending granting Defendant’s motion for summary judgment. Plaintiff objects to the
Magistrate Judge’s recommendation.
The Court applies the deliberate indifference standard in assessing failure to protect
claims. See, e.g., Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994). “‘[P]rison officials have a duty . . . to protect prisoners from violence at the hands
of other prisoners.’” Id. at 833. “The treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth Amendment.”
Id. at 832. However, not every injury suffered by one inmate at the hands of other inmates
constitutes liability for the prison officials responsible for the victim’s safety. Id. at 835. A
prison official's “deliberate indifference” to a substantial risk of serious harm to an inmate

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violates the Eighth Amendment. Id. at 828. “[A] prison official may be held liable under the
Eighth Amendment . . . only if he knows that inmates face a substantial risk of serious harm
and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. The
test is not whether an official knew or should have known of the possibility of harm, but
whether he did, in fact, know of it and consciously disregard that risk. Further, the Eighth
Amendment is not violated by the negligent failure to protect inmates from violence. Whitley
v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).
Plaintiff objects to the Magistrate Judge’s determination that he has not set forth
evidence showing that Defendants were deliberately indifferent to his needs in housing him
with inmate Furlow. According to Plaintiff, Defendants knew that Plaintiff and inmate
Furlow should not be housed together. Plaintiff argues that he complained to multiple
individuals, including Defendants, that he was being subjected to harm by being housed
with inmate Furlow. Plaintiff further argues that Defendants knew or should have know of
the danger Plaintiff faced. Plaintiff also indicates that he sent letters to various individuals
asking to be moved to a different cell and filed grievances asking to be moved. The
Magistrate Judge concluded that other than Plaintiff’s own general and conclusory
assertions that he should not have been housed with inmate Furlow, there is no evidence,
to show that inmate Furlow was a danger to Plaintiff. Plaintiff's conclusory statements and
self-serving opinions without objective corroboration, is insufficient to stave off summary
judgment. See Evans v. Technologies Application & Service Co., 80 F.3d 954, 962 (4th
Cir.1996).
In opposing summary judgment, Plaintiff also directs the Court to a November 23,
2010, Incident Report, a tape of a hearing and medical summaries as evidence that he and

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inmate Furlow should not be housed together. While Plaintiff contends the November 23,
2010, Incident Report identifies Plaintiff and inmate Furlow as “leaders of the gang fight,”
there is nothing in the Incident Report that indicates what gang each inmate is a member
or, nor does the Incident Report indicate that any of the four inmates cannot be housed
together. (ECF No. 41-3.)

As to the tape that Plaintiff contends supports his alleged

constitutional violations, the Court listened to the tape and finds no support for Plaintiff’s
claims. The tape appears to be from a hearing wherein Plaintiff complains about being
housed with inmate Furlow and Defendant Long indicates that the matter will be reviewed.
Thus, the hearing tape does not suggest that Plaintiff could not be housed with inmate
Furlow.
Finally, as to Plaintiff’s contention that he was assaulted on three occasions by
inmate Furlow, Plaintiff submitted his medical summaries as evidence of the alleged
assaults. Plaintiff circled certain medical entries that he suggests are evidence treatment
for the assaults that he contends occurred. After reviewing the medical entries, including
the items circled by Plaintiff, the Court finds the medical entries are not evidence of alleged
assault. Instead, at most, the medical summaries indicate that Plaintiff was seen in medical
for complaints arising out of joint and back pain caused by degenerative joint disease and
arthritic changes. (ECF No. 41-9.)
Defendants have submitted various documents in support of their motion for
summary judgment on Plaintiff’s claim of deliberate indifference. Among the documents
submitted by Defendants was an affidavit from Defendant Long wherein she attests that
the Security Detention Board and the Institution Classification Committee both approved
Plaintiff’s classification and housing in SMU. (ECF No. 41-1.) Defendants also submitted

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an affidavit from Jason Hall (“Hall”) who worked as a correctional officer in the SMU at KCI
during the time Plaintiff was housed with inmate Furlow. (ECF No. 96.) Hall attests that
he was not aware of any altercation or threats of harm between Plaintiff and inmate Furlow
while they were housed together. (ECF No. 96-1 at 2.) Defendants also submitted copies
of Plaintiff’s cell assignment documentation.

(ECF No. 41-2.)

Upon review, these

documents do not reflect security concerns over housing Plaintiff with inmate Furlow.
(ECF Nos 41-2 & 41-4-7.)

Further, as to Plaintiff’s specific allegations of assault,

Defendants submitted an affidavit from Nurse Pamela A. Phillips who attests that Plaintiff
was not seen in medical for injuries from any alleged assault. (ECF No. 41-8.)
Upon review, the Court finds that Plaintiff did not want to be housed in the same cell
with inmate Furlow. The record reflects that Plaintiff submitted requests and grievances
asking to be moved to another cell. While Plaintiff does not have a constitutional right to
choose where he will be housed or who will be his cellmate, Defendants cannot be
deliberately indifferent to a known risk of harm to an inmate. Slezak v. Evatt, 21 F.3d 590
(4th Cir. 1994.) Here, Plaintiff has not come forth with evidence showing that inmate Furlow
was a danger to Plaintiff; that inmate Furlow had threatened or assaulted Plaintiff; or that
Defendants were aware that housing inmate Furlow with Plaintiff posed a substantial risk
of harm. Farmer, 511 U.S. at 837.
CONCLUSION
The Court has carefully reviewed the record, the Report, the applicable law and
Plaintiff’s objections. Upon review, the Court declines to adopt the portion of the Report
that recommends granting Defendant’s motion for summary judgment due to Plaintiff’s
failure to exhaust his administrative remedies. Instead the Court adopts and incorporates

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by reference the portion of the Report recommending summary judgment due to Plaintiff’s
failure to present evidence creating a genuine issue of fact as to whether Defendants were
deliberately indifferent to a known risk of harm to Plaintiff.
Accordingly, Defendants’ motion for summary judgment is GRANTED and Plaintiff’s
motion for summary judgment is DENIED. All other pending motions are deemed MOOT.
This action is hereby DISMISSED.
IT IS SO ORDERED.

/s/ Mary G. Lewis
United States District Judge
Spartanburg, South Carolina
February 14, 2013

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