Poe v. Bryant et al

Filing 132

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 79 Motion for Summary Judgment; granting 119 Motion for Summary Judgment. This case is dismissed without prejudice. Signed by Honorable Richard M Gergel on 11/21/2013.(cwhi, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

RECEIVED CLERK'S OFFICE

10n NOV 2 I A <1: 51
Richard Keith Poe,
Plaintiff,
v.
Sheriff Bryant, Richard L. Martin,
Dr. James Jewell, M.D., Tammy
Dover, R.N., Major Robert Hudgins,
Chief James Arwood, and
Lt. Cheryl H. Guzman,
Defendants.

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No.9: 12-cv-3142-RMG

ORDER

This matter is before the Court on the Report and Recommendation ("R & R") of the
Magistrate Judge recommending this Court grant Defendants' motions for summary judgment
and that this case be dismissed without prejudice. (Dkt. No. 128). For the reasons set forth
below, the Court agrees with and adopts the R & R as the order of the Court.
Background

Plaintiff Richard Keith Poe, who at the time this case was filed was an inmate at York
County Detention Center, brings this 42 U.S.C. § 1983 action pro se alleging violations of his
constitutional rights by the named Defendants. Through his Complaint, Plaintiff seeks medical
care and monetary damages. (Dkt. No.1). Pursuant to 28 U.S.c. § 636(b) and Local Civil Rule
73.02(B)(2)(e) DSC, this matter was automatically referred to a United States Magistrate Judge.
Defendant James Jewell filed a motion for summary judgment on May 7, 2013. (Dkt. No. 79).
Plaintiff filed a memorandum in opposition on May 22, 2013. (Dkt. No. 85). Defendant Jewell
filed a supplemental memorandum in support of summary judgment on June 13, 2013. (Dkt. No.
89). Plaintiff then supplemented his response on July 1,2013, and July 26, 2013. (Dkt. Nos. 98,

103). Defendant Jewell filed a reply memorandum on August 6, 2013, and Plaintiff filed a sur
reply on August 19,2013. (Dkt. Nos. 104, Ill).
By motion filed August 30, 2013, (Dkt. No. 115) and order filed September 3, 2013,
(Dkt. No. 166), Plaintiff withdrew all claims in his Complaint relating to denial of access to the
courts and dismissed two named defendants from the case. The remaining defendants, aside
from Jewell, filed a motion for summary judgment on September 12, 2013. (Dkt. No. 119).
Plaintiff filed memorandum in opposition to summary judgment on October 10,2013. (Dkt. No.
126). Defendants filed a reply memorandum on October 21,2013. (Dkt. No. 127). On October
29, 2013, the Magistrate Judge issued the present R & R recommending the Court grant
Defendants' motions for summary judgment. (Dkt. No. 128). Plaintiff then failed to file timely
objections to the R & R.
Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261,270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R&R to which specific objection is made.
Additionally, 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 may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id
In reviewing these pleadings, the Court is mindful of Plaintiff s pro se status. This Court
is charged with liberally construing the pleadings of a pro se litigant. See, e.g., De'Lonta v.

Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not
mean, however, that the Court can ignore a plaintiffs clear failure to allege facts that set forth a

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cognizable claim, or that a court must assume the existence of a genuine issue of material fact
where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
Discussion

As to Plaintiffs requests for medical care by the Defendants or to be transferred to a
specific cell, Plaintiff is no longer an inmate at York County Detention Center, making his
requests moot. See Taylor v. Rogers, 781 F.2d 1047, 1048 n.1 (4th Cir. 1986) (holding that
prisoner's transfer mooted a request for declaratory and injunctive relief).

Therefore, this

request is properly denied.
As to Plaintiffs claim for monetary damages, the Magistrate Judge accurately points out
that this claim is subject to dismissal pursuant to 42 U.S.C. § 1997e(a) which states, "[n]o 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." The Defendants have the burden of
showing that Plaintiff failed to exhaust his administrative remedies. See Anderson v. XYZ Corr.
Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005) (inmate's failure to exhaust administrative
remedies is an affirmative defense to be both pled and proven by the Defendant).
Here, Defendants have satisfied this burden with exhibits detailing the grievance process
and showing that Plaintiff failed to exhaust this remedy. Plaintiff has not presented any evidence
to the contrary. He has only mentioned exhaustion in his response memorandum where he states
contradictorily that "York County" would not provide him a grievance and that he had been told
Dover responded to his grievance. (Dkt No. 126). This statement is not sufficient to avoid
summary judgment in light of the contrary documentary evidence provided to this Court. See
Malik v. Sligh, No.5: 11-1 064-RBH, 2012 WL 3834850, at *5 (D.S.C. Sept. 4, 2012), aff'd, 507

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Fed. App'x 294 (4th Cir. 2013) (finding that a self serving affidavit from the Plaintiff was
"simply not enough to create a genuine dispute as to any material fact" in light of the other
evidence that disputed the credibility of Plaintiffs self serving claims).
The evidence before the Court shows that Plaintiff failed to exhaust the administrative
remedies that were available to him at the Detention Center. Therefore, Defendants are entitled to
summary judgment in this case.
Conclusion

For the reasons given above, this Court adopts the Magistrate Judge's R & R in full. (Dkt.
No. 128). Accordingly, Defendants' motions for summary judgment, (Dkt. Nos. 79, 119), are
GRANTED and this case is dismissed without prejudice.

AND IT IS SO ORDERED.

United States District Court Judge
November <- I ,2013
Charleston, South Carolina

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