Brooks v. South Carolina Dept of Corrections et al

Filing 50

ORDER ADOPTING 43 REPORT AND RECOMMENDATION and granting 29 Motion for Summary Judgment, filed by John Doe, Ofc Johnson, Jane Doe, Ofc Cox, Ofc Ledwell, Lt Carter, Sgt Davenport. It is ordered that the Plaintiff's objections are overruled, that the R & R is adopted, and therefore that Defendants' Motion for Summary Judgment is granted. Signed by Honorable Patrick Michael Duffy on 10/27/2016. (egra, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Altony Brooks,

)
)
Plaintiff,
)
)
v.
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Sgt. Davenport, Captain Pack, Lt. Carter,
)
Ofc. Johnson, Major S. Sutton, Ofc. Cox, )
Ofc. Ledwell, Jane Doe, Director John Doe, )
and Warden Stevenson,
)
)
Defendants.
)
____________________________________)

C.A. No.: 9:15-cv-3107-PMD-BM

ORDER

This matter is before the Court on Plaintiff’s objections to Magistrate Judge Bristow
Marchant’s Report and Recommendation (“R & R”) (ECF Nos. 49 & 43). In his R & R,
Magistrate Judge Marchant recommends granting Defendants’ motion for summary judgment.
For the reasons stated herein, the Court overrules Plaintiff’s objections, adopts the R & R, and
grants Defendants’ motion for summary judgment.
BACKGROUND
This action arises out of a November 2012 incident that occurred at the Broad River
Correctional Institute, in which Defendant Davenport allegedly sprayed Plaintiff with chemical
munitions. Plaintiff alleges that, after that incident, he was denied medical treatment, he was
given nutraloaf, he was denied soap, towels, toilet paper, or rags to clean himself off, and he was
left in his cell with no clothing or blanket for three days. Defendants contend that the chemical
munitions were necessary because Plaintiff was holding on to the food flap of his cell and
thereby endangering the corrections officers’ safety. In contrast, Plaintiff alleges that he was
assaulted for no apparent reason.

STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The R & R has no
presumptive weight, and the responsibility for making a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). Parties may make written objections to
the Magistrate Judge’s proposed findings and recommendations within fourteen days after being
served with a copy of the R & R. 28 U.S.C. § 636(b)(1). This Court must conduct a de novo
review of any portion of the R & R to which a specific objection is made, and the Court may
accept, reject, or modify the Magistrate Judge’s findings and recommendations in whole or in
part.

Id.

Additionally, the Court may recommit the matter to the Magistrate Judge with

instructions. Id. A party’s failure to object is taken as the party’s agreement with the Magistrate
Judge’s conclusions. See Thomas v. Arn, 474 U.S. 140 (1985). Absent a timely, specific
objection—or as to those portions of the R & R to which no specific objection is made—this
Court “must ‘only 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).
Pro se filings are held to a less stringent standard than those drafted by attorneys, Gordon
v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and federal district courts must construe such
pleadings liberally to allow the development of potentially meritorious claims, see Hughes v.
Rowe, 449 U.S. 5, 9 (1980) (per curiam). The liberal construction requirement, however, does
not mean courts can ignore a clear failure to allege facts that set forth claims cognizable in
federal district court. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

ANALYSIS
Plaintiff makes a number of objections to the R & R, but they boil down to six
objections. 1 First, he contends that it was improper for Magistrate Judge Marchant to take
judicial notice of the South Carolina Department of Corrections’ (“SCDC”) grievance procedure
and another case Plaintiff has filed with this Court. Second, he repeatedly argues that an
administratively closed grievance is not appealable and therefore he was not required to file a
Step 2 appeal. Third, he claims that the Defendants’ failure to respond to his grievance in
accordance with SCDC policy should preclude them from asserting that he failed to exhaust his
administrative remedies. Fourth, he objects to Michael Tindal’s affidavit as hearsay because
Tindal was not the person listed as closing Plaintiff’s grievance. Fifth, Plaintiff objects to
footnote four of the R & R, contending that the date in the R & R is not accurate because he did
not receive a response to his complaint until August 8, 2013. Finally, Plaintiff generally objects
to the R & R’s recommendation to dismiss his state-law claims. The Court will address each
objection seriatim.
I.

Judicial Notice

Plaintiff objects to Magistrate Judge Marchant’s decision to take judicial notice of
SCDC’s grievance procedure and Plaintiff’s other case before this Court. The Court will address
each in turn.
Magistrate Judge Marchant took judicial notice of SCDC’s grievance procedure in the
process of making his recommendation that the Court grant Defendants’ motion for summary

1.
Plaintiff also objects to Magistrate Judge Marchant’s decision to grant Defendants an extension to file their
motion for summary judgment. As a non-dispositive matter, that objection is properly decided pursuant to Rule
72(a) of the Federal Rules of Civil Procedure. Rule 72(a) provides that a party may serve and file objections to an
order on a non-dispositive matter within 14 days after being served with a copy of that order. Here, Magistrate
Judge Marchant ruled on Plaintiff’s motion for reconsideration on June 7, 2016. Plaintiff did not object until
September 30. Accordingly, he is well beyond the 14 days permitted by Rule 72(a). Thus, his objection is denied.

judgment. Plaintiff objects, stating that the SCDC policy does not apply to administratively
closed grievances. The Court does not share that concern. This Court has previously held that it
is appropriate to take judicial notice of SCDC’s grievance procedures, and the Court sees no
error in the Magistrate Judge’s decision to do so here. See Jones v. Hartwig, No. 8:13-cv-334DCN, 2014 WL 101983, at *5 (D.S.C. Jan. 8, 2014). Indeed, SCDC’s grievance procedure is
frequently implicated in § 1983 litigation. See, e.g., Byrd v. Stirling, 144 F. Supp. 3d 803, 808
(D.S.C. 2015); Branton v. Ozmint, No. 8:08-cv-2306-GRA-BHH, 2009 WL 1457144, at *2
(D.S.C. May 22, 2009); Jones v. Kay, No. 4:07-cv-3480-SB, 2007 WL 4294216, at *5 (D.S.C.
Dec. 5, 2007); Jenkins v. S.C. Dep’t of Corrs., No. 0:05-cv-2800-HFF, 2006 WL 1083563, at *5
(D.S.C. Apr. 18, 2006). Accordingly, Magistrate Judge Marchant’s decision to take judicial
notice of the grievance procedure was appropriate, and Plaintiff’s objections to that decision are
overruled.
Magistrate Judge Marchant also took judicial notice of Plaintiff’s other case before this
Court, Brooks v. Davenport, No. 9:15-cv-3195-PMD-BM (D.S.C.). Plaintiff objects, citing
opinions holding that factual findings in one case are not admissible for their truth in other cases.
See Wyatt v. Terhune, 315 F.3d 1108, 1114 n.5 (9th Cir. 2003), overruled on other grounds by
Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014); Holloway v. Lockhart, 813 F.2d 874, 879 (8th
Cir. 1987). However, Magistrate Judge Marchant did not rely on facts from Plaintiff’s other case
in making his decision in this case. Instead, he merely noted that the grievance in Plaintiff’s
other case was returned to Plaintiff on May 20, 2013. Accordingly, Plaintiff’s objection is
overruled.
II.

Exhaustion of SCDC’s Grievance Procedure

Plaintiff claims that his failure to file a Step 2 appeal does not mean that he failed to
exhaust his administrative remedies. The essence of his argument is that neither Defendants nor
Magistrate Judge Marchant have shown that Plaintiff was required to file a Step 2 appeal after
his Step 1 grievance was administratively closed. Plaintiff makes a number of arguments on this
point, but they are all undermined by Plaintiff’s failure to produce evidence refuting the claim
that he failed to exhaust his administrative remedies. See Jones, 2014 WL 101983 at *5 (citing
Hill v. Haynes, 380 F. App’x 268, 270 (4th Cir. 2010) (per curiam) (“[T]o survive a motion for
summary judgment asserting that he failed to exhaust, the inmate is required to produce evidence
in response to the motion that refutes the claim that he failed to exhaust.”)). Instead of producing
evidence, Plaintiff maintains his focus on Defendants’ failures to show that SCDC’s policy
requires him to file a Step 2 appeal after his Step 1 grievance was administratively closed. As
stated by the Magistrate Judge, Plaintiff simply does not dispute that he never filed a Step 2
appeal of the dismissal of his Step 1 grievance. Additionally, the Court is unaware of an
“administratively closed” exception to the general rule that a Step 2 appeal is necessary before an
inmate may seek relief in this Court. Accordingly, Plaintiff’s objection is overruled.
III.

Defendants’ Preclusion from Arguing Failure to Exhaust

Plaintiff next asserts that Defendants should be precluded from arguing failure to exhaust
as a result of their delay in responding to his Step 1 grievance. This objection restates Plaintiff’s
original arguments before the Magistrate Judge, and the Court concludes that the R & R
adequately responds to this objection. See, e.g., Anderson v. Dobson, 627 F. Supp. 2d 619, 623
(W.D.N.C. 2007) (“An ‘objection’ that . . . simply summarizes what has been presented before,
is not an ‘objection’ as that term is used in this context.” (citation and quotation marks omitted)).
Accordingly, Plaintiff’s objection is overruled.

IV.

Michael Tindal’s Affidavit

Plaintiff next contends that Michael Tindal’s affidavit is inadmissible hearsay because he
was not the employee who closed the grievance administratively. The Court disagrees. Mr.
Tindal works for SCDC as an inmate grievance administrator. Although Mr. Tindal may not
have been the employee who actually closed Plaintiff’s grievance, the statements in his affidavit
reflect his personal knowledge of Plaintiff’s grievance history. Beyond the generic allegation
that Mr. Tindal’s affidavit is hearsay, Plaintiff does not provide any additional reasons to doubt
the veracity of Mr. Tindal’s affidavit. Having reviewed the affidavit, the Court is satisfied that
the statements contained therein are admissible. Accordingly, Plaintiff’s objection is overruled.
V.

Footnote Four of the R & R

Plaintiff also objects to Magistrate Judge Marchant’s finding that Plaintiff’s grievance
was returned to him on May 20, 2013, instead of on August 8, 2013. Plaintiff contends that the
date the grievance was returned constitutes a disputed material fact and summary judgment is
therefore inappropriate. The Court disagrees. For purposes of this opinion, as long as Plaintiff’s
grievance was returned, it ultimately does not matter whether the grievance was returned on May
20, 2013, or August 8, 2013. Either way, Plaintiff failed to file a Step 2 appeal, thereby failing to
exhaust his administrative remedies. Accordingly, Plaintiff’s objection is overruled.
VI.

Dismissal of State-Law Claims

Finally, Plaintiff objects to the Magistrate Judge’s recommendation to dismiss his statelaw claims as a result of the dismissal of his federal claims. Again, the Court concludes that the
Magistrate Judge’s analysis is correct. Plaintiff’s federal claim is before this Court pursuant to
the Court’s federal-question jurisdiction over actions arising under 42 U.S.C. § 1983, and
Plaintiff’s state-law claims are before this Court pursuant to its supplemental jurisdiction over

state-law claims that form part of the same case or controversy. Where all federal question
claims have been dismissed, this Court may decline to exercise supplemental jurisdiction over
any related state-law claims. 28 U.S.C. § 1367. The Court finds it appropriate to do so here.
Accordingly, Plaintiff’s objection is overruled.
CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff’s objections are
OVERRULED, that the R & R is ADOPTED, and therefore that Defendants’ Motion for
Summary Judgment is GRANTED.
AND IT IS SO ORDERED.

October 27, 2016
Charleston, South Carolina