Cunningham v. Kane et al
ORDER AND OPINION adopting 40 Report and Recommendation of Magistrate Judge Bristow Marchant; denying 26 Motion to Dismiss. The Court RECOMMITTS this matter to the Magistrate Judge for further proceedings. Signed by Honorable Richard M Gergel on 9/5/2017.(ssam, )
IN THE UNITED STA TES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Eugene Jerome Cunningham, #02433-135, )
Civil Action No. 9: 16-3647-RMG
ORDER AND OPINION
Thomas R. Kane, Helen J. Marberry, Travis )
Bragg, M. Furman, and K. Parra,
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending denial of Respondents ' motion to dismiss. For the reasons set forth below,
the Court adopts the Report and Recommendation.
Petitioner seeks a writ of mandamus under 28 U.S.C. § 1361 to compel Respondents to
provide a main law library, legal aid program, funding to hire legal aides, and to remove
Respondent Parra from supervision of the law library. Petitioner also seeks appointment of a
special master to supervise Respondents.
Respondents have moved to dismiss the petition,
asserting Petitioner has failed to exhaust his administrative remedies before filing this lawsuit. 1
On July 19, 2017, the Magistrate Judge recommended that Respondents motion to dismiss be
Respondents filed objections to the Report and Recommendation and the Court
recommitted this matter to the Magistrate Judge for consideration of Respondents' objections. On
Respondents did not move to dismiss for any reason other than failure to exhaust administrative
August 18, 2017, the Magistrate Judge again recommended that Respondents ' motion to dismiss
be denied. Respondents have not objected to the second Report and Recommendation.
Report and Recommendation
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 nova determination of those portions of the Report and Recommendation 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)(l). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. Where the plaintiff fails to file any specific objections, "a district court need not
conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation," see Diamond v. Colonial Life & Accident
Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation of the Magistrate Judge, Camby
v. Davis, 718 F.2d 198 (4th Cir. 1983).
Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if
the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the
legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits
of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the
allegations constitute ' a short and plain statement of the claim showing that the pleader is entitled
to relief. '" Republican Party ofN. C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992) (quotation marks
and citation omitted). In a Rule 12(b)( 6) motion, the Court is obligated to "assume the truth of all
facts alleged in the complaint and the existence of any fact that can be proved, consistent with the
complaint's allegations." E. Shore Mkts. , Inc. v. JD. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th
Cir. 2000). However, while the Court must accept the facts in a light most favorable to the nonmoving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to
relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although
the requirement of plausibility does not impose a probability requirement at this stage, the
complaint must show more than a "sheer possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the
pleading "allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id.
Under 42 U.S.C. § 1997e(a), "[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."
"Congress has mandated exhaustion clearly enough, regardless of the relief offered through
administrative procedures." Booth v. Churner, 532 U.S. 731, 741 (2001). Before a prisoner may
prosecute a claim before a district court, he must first have exhausted the administrative remedies
available at the prison. Failure to exhaust administrative remedies is an affirmative defense and
the Government has the burden of showing that a prisoner has failed to exhaust his administrative
remedies. Jones v. Bock, 549 U.S. 199, 212 (2007).
The Bureau of Prisons has a tiered administrative grievance process which consists of the
inmate first attempting information resolution of his complaint, then filing an administrative
remedy with the warden of his institution, then filing an appeal of any adverse decision to the
regional director, and finally by appealing the regional director' s decision to the Central Office.
See 28 C.F.R. § 542.10, et. seq. The appeal to the Central Office is the final level of agency review
There is no dispute Petitioner exhausted his administrative remedies through his appeal to
the regional director. Respondents assert Petitioner' s appeal of the regional director' s decision to
the Central Office was not received under September 9, 2016 and that it was rejected as untimely,
that it was defective because it did not include a copy of the proceedings below, and that Petitioner
never sought to cure the deficiencies or explain the untimeliness. Petitioner asserts that his appeal
was timely submitted, that he received no response to it, and that under 28 C.F.R. § 542.18 he was
not required to take any further administrative action.
Both parties have submitted exhibits and arguments supporting their assertion. After
careful review of the exhibits and arguments, the Magistrate Judge determined Respondents have
not met their burden to show Petitioner has failed to exhaust administrative remedies.
Magistrate Judge notes that Petitioner alleges that he timely submitted his appeal to the Central
Office and never received a response and that those allegations are consistent with the exhibits
attached to his Complaint, and that Petitioner previously voluntarily dismissed a prior action
specifically to exhaust his administrative remedies. When considering a motion to dismiss the
Court is required to accept the allegations in the pleadings as true, and to further draw all
reasonable factual inferences in the Petitioner' s favor. The Court therefore adopts the Report and
Recommendation and denies Respondents motion to dismiss.
Respondents may renew their
exhaustion argument in a motion for summary judgment after discovery.
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge (Dkt. No. 40) as the Order of the Court, DENIES Respondents' motion to
dismiss (Dkt. No. 26), and RECOMMITTS this matter to the Magistrate Judge for further
AND IT IS SO ORDERED.
Richard Mark Gergel
United States District Court Judge
September ~ , 201 7
Charleston, South Carolina
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