Pearson v. Stevenson et al
Filing
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ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 33 Motion for Summary Judgment. This action is DISMISSED, without prejudice, for failure to exhaust administrative remedies. Signed by Honorable R Bryan Harwell on 2/20/2015.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Cody J. Pearson, #284231,
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Plaintiff,
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v.
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Capt. J. Stevenson; Lt. Tompkins; and )
Sgt. Smith,
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Defendants.
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Civil Action No.: 9:14-cv-454-RBH
ORDER
Plaintiff Cody J. Pearson, #284231 (“Plaintiff”), a state prisoner proceeding pro se, filed this
action pursuant to 42 U.S.C. § 1983 against Defendants Capt. J. Stevenson; Lt. Tompkins; and Sgt.
Smith (“Defendants”) on February 21, 2014.1 See Compl., ECF No. 1; Am. Compl., ECF No. 15.
On June 6, 2014, Defendants filed a motion for summary judgment. See Defs.’ Mot., ECF No. 33.
Plaintiff timely responded to Defendants’ motion on July 14, 2014, see ECF No. 39, and Defendants
replied on August 7, 2014, see ECF No. 44. Defendants’ motion is now before the Court after the
issuance of the Report and Recommendation (“R & R”) of United States Magistrate Judge Bristow
Marchant.2 See R & R, ECF No. 47. In the R & R, the Magistrate Judge recommends the Court
grant Defendants’ motion for summary judgment and dismiss this case without prejudice. See id. at
9.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
1
The South Carolina Department of Corrections was also named as a Defendant, but was
previously dismissed by the Court. See Order, ECF No. 24.
2
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.), this matter was
referred to the Magistrate Judge for pretrial handling.
Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the R & R to which specific objection is made, and the Court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific
error in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence
of objections to the R & R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “‘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) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
DISCUSSION3
In the R & R, the Magistrate Judge recommends the Court find that Plaintiff failed to
exhaust his administrative remedies. See ECF No. 47 at 9. The Magistrate Judge noted that
Defendants provided an affidavit from Ann Hallman, Chief of the Inmate Grievance Branch of the
South Carolina Department of Corrections (“SCDC”), who averred that Plaintiff failed to exhaust
his administrative remedies. See Aff. of Ann Hallman, ECF No. 33-2 at ¶ 11. Hallman explained
that, while Plaintiff did file a Step 1 grievance regarding the alleged excessive force, he never
3
The facts of this case, including citations to the record, were completely and accurately set forth in
the Magistrate Judge’s Report and Recommendation. See ECF No. 47 at 2–5. Briefly stated,
Plaintiff alleges that while he was housed at the McCormick Correctional Institution, the
Defendants assaulted him with excessive force. See ECF No. 1 at 3–4. Plaintiff alleges that he
suffered a busted eardrum and a permanent protrusion on his forehead as a result of the purported
assault, and he seeks monetary damages as the remedy. See id. at 3–5.
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appealed the denial of the Step 1 grievance by filing a Step 2 grievance. See id. at ¶ 12. Hallman
stated that SCDC has no record of Plaintiff ever having filed a Step 2 grievance, and that the time in
which to do so has long since expired. See id. The Magistrate Judge noted that Plaintiff has not
presented a copy of the Step 2 grievance or any other evidence sufficient to give rise to a genuine
issue of fact that he filed a Step 2 grievance. See ECF No. 47 at 7. The Magistrate Judge explained
that Plaintiff must do more than simply submit an affidavit saying “yes I did” file the grievance
(like he did in this case) and expect to survive summary judgment.
See ECF No. 47 at 8.
Accordingly, the Magistrate Judge recommends that Defendants’ motion be granted, and this action
be dismissed without prejudice for failure to exhaust.
Plaintiff filed a series of documents subsequent to the R & R. The first filing is a reply to
Defendants’ reply in support of their motion for summary judgment, which the Court will refer to as
a sur-reply. See Pl.’s Sur-reply, ECF No. 49. Plaintiff also timely filed objections to the Magistrate
Judge’s R & R on September 29, 2014, see ECF No. 51, and supplemented these objections on
October 16, 2014 and January 22, 2015, see ECF Nos. 54–55.4 Essentially, Plaintiff argues in these
filings that he did in fact file a Step 2 grievance, claiming that he placed this document in his cell
door “to be placed in the grievance box on October 10, 2013.” See ECF No. 51 at 3; see also Pl.
Aff, ECF No. 51-1 at ¶¶ 3, 7. Plaintiff asserts that Hallman does not know whether he placed the
document in his door or not, and that her affidavit is “self serving and irrelevant.” See id. at 3–4.
Plaintiff provided an affidavit of another inmate who averred that he heard Plaintiff yell on the
morning of October 10, 2013 that the grievance was “gone,” meaning it had been picked up. See
Aff. of Terrell Bryan, ECF No. 55-1 at 1. Plaintiff also claims he did not make a copy of the Step 2
4
The Court notes that the sur-reply and both supplements to Plaintiff’s objections were untimely.
However, these filings all assert the same arguments as Plaintiff’s initial objections to the R & R
(which were timely) and thus, out of an abundance of caution, the Court considered them all in
issuing this Order.
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grievance (and thus cannot provide one to the Court) because the slow turnaround time at the law
library meant he may have missed the deadline had he tried to do so. See ECF No. 55 at 3. Plaintiff
then contends that he refiled the Step 1 and Step 2 grievances (on April 4, 2014 and May 29, 2014,
respectively) for this incident since his original Step 2 was lost. See ECF No. 49 at 2; ECF No. 51
at 3; ECF No. 54 at 2. Plaintiff disagrees with Defendants’ argument that these grievances related
to the adequacy of Plaintiff’s medical care rather than the excessive force claim. See id.
After a de novo review of the record, the Court agrees with the Magistrate Judge that
dismissal is warranted for failure to exhaust. As the Magistrate Judge noted, through enactment of
the Prison Litigation Reform Act, “Congress has mandated exhaustion clearly enough, regardless of
the relief offered through administrative procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001).
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, 681 (4th Cir. 2005) (inmate’s failure
to exhaust administrative remedies is an affirmative defense to be both pled and proven by the
Defendant); Jones v. Bock, 549 U.S. 199, 211–12 (2007). However, Plaintiff may not escape
summary judgment by simply asserting that “yes I did” exhaust administrative remedies. Cf. Malik
v. Sligh, No. 11-1064, 2012 WL 3834850, at *4 (D.S.C. Sept. 4, 2012) (finding that Plaintiff’s selfserving contention, in response to evidence to the contrary, that he did submit a grievance was
“simply not enough to create a genuine dispute as to any material fact”); see also Nat’l Enters., Inc.
v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000) (holding that a self-serving affidavit was insufficient to
survive summary judgment); King v. Flinn & Dreffein Eng’g Co., No. 09-410, 2012 WL 3133677,
at *10 (W.D. Va. July 30, 2012) (finding no genuine issue of material fact where only evidence was
“uncorroborated and self-serving testimony” (citation omitted)); Drakeford v. Thompson, No. 092239, 2010 WL 4884897, at *3 (D.S.C. Nov. 24, 2010).
4
As the Magistrate Judge explained, Defendants provided evidence in the form of an affidavit
explaining that, while Plaintiff did file a Step 1 grievance concerning his excessive force claim,
there is no record that he ever filed a Step 2. Plaintiff, notably, has not been able to provide a copy
of the Step 2 grievance either. However, he did provide numerous copies of other grievances and
“request to staff” forms. Conveniently though, the allegedly “missing” Step 2 grievance is the only
form referenced in the parties’ filings of which Plaintiff has not been able to produce a copy.
Plaintiff has provided no evidence aside from his own conclusory and self-serving affidavit
testimony claiming that he did in fact file a Step 2 grievance.5 It is also telling that, while he notes
in the affidavit that he submitted the grievance and that it was picked up, in Paragraph 7 he left a
blank space for the date which he alleges he placed the grievance in the mail. See ECF No. 51-1 at
2. The Court finds that Plaintiff’s evidence is insufficient to survive summary judgment in light of
Defendants’ evidence contradicting Plaintiff’s claim that he filed a Step 2 grievance and Plaintiff’s
failure to provide any evidence aside from his own self-serving affidavits.
Moreover, the Court agrees with Defendants that Plaintiff’s claim that the Step 1 and Step 2
grievances filed on April 4, 2014 and May 29, 2014 did satisfy the exhaustion requirement is
without merit. These forms do refer to the alleged assault that took place on August 26, 2013.
However, the Step 1 grievance noted that Plaintiff is still “suffering” and having intense headaches
and pain. See ECF No. 49-1 at 1. Plaintiff explained that he “voiced” that the pain pills he was
given had little effect and that he was requesting “proper treatment for my injuries.” See id. The
Step 2 grievance further stated that Plaintiff “may need special medical attention to help alleviate
the pain.” See ECF No. 49-1 at 2. As Defendants note, the basis of both of these grievances was
the adequacy of the medical care Plaintiff received, not the assault itself. Plaintiff clearly sought
5
Terrell Bryan’s affidavit does nothing more than confirm Plaintiff told him that the Step 2
grievance had been filed.
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“proper treatment” as the remedy. In any event, as Defendants correctly argue, these additional
filings would not have been processed even if they related to the August 13 incident because they
were filed well beyond the time allowed to file a grievance. Plaintiff had five days after he received
a response to his October 4, 2013 Step 1 grievance, which was issued on October 8, 2013, to file a
Step 2. See ECF No. 33-2 at ¶ 12.
Therefore, the Court agrees with the Magistrate Judge that Plaintiff has failed to exhaust his
administrative remedies.
Accordingly, Defendants’ motion for summary judgment should be
granted.
CONCLUSION
The Court has thoroughly reviewed the entire record, including Plaintiff’s complaint,
Defendants’ motion for summary judgment, Plaintiff’s response in opposition, Defendants’ reply in
support, Plaintiff’s sur-reply, Defendants’ response to the sur-reply, the R & R, Plaintiff’s
objections and supplemental objections, Defendants’ responses to the objections and supplemental
objections, and applicable law. For the reasons stated above and by the Magistrate Judge, the Court
hereby overrules Plaintiff’s objections and adopts the Magistrate Judge’s R & R.
IT IS THEREFORE ORDERED that Defendants’ motion for summary judgment is
GRANTED. This action is DISMISSED, without prejudice, for failure to exhaust administrative
remedies.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Florence, South Carolina
February 20, 2015
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