Dickey v. SCDC et al

Filing 191

ORDER adopting 168 Report and Recommendation of Magistrate Judge Bristow Marchant. The Court adopts the Magistrate Judge's recommendation. Defendants' Motion for Summary Judgment 151 is granted. Plaintiff's Motions for Preliminary Injunction 177 and to Appoint Counsel 184 are dismissed as moot. Signed by Honorable Donald C Coggins, Jr on 02/13/2019. (egra, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
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Plaintiff,
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vs.
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SCDC, Warden Cohen, Nurse NFN Wite, Ofc. )
NFN Harris, Dr. Lemon, Dr. Roberts, Nurse
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NFN Grimes, Nurse NFN Simmons, Lt. Maze, )
Lt. Bryant, Sgt. Devin Williams,
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Defendants. )
_____________________________________
William Devon Dickey,

C/A No. 9:17-cv-02194-DCC

ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment. ECF
No. 151. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.),
this matter was referred to United States Magistrate Bristow Marchant for pre-trial
proceedings and a Report and Recommendation (“Report”). On October 9, 2018, the
Magistrate Judge issued a Report recommending that the Motion be granted. ECF No.
168.

Since the Magistrate Jude issued the Report, Plaintiff has filed ten letters, three

objections to the Report, a reply to a response, a motion for preliminary injunction, and a
motion to appoint counsel. ECF Nos. 170–74, 176–80, 182–84, 186–90. Out of an
abundance of caution to a pro se Plaintiff, the Court has considered all of Plaintiff’s filings.
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or

modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The Court
will review the Report only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of timely filed objection, 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.” (citation omitted)).
The Magistrate Judge provides a thorough recitation of the facts of this case and the
applicable law in the Report which the Court incorporates by reference. The Magistrate
Judge recommends granting the Motion for Summary Judgment because Plaintiff failed to
exhaust his administrative remedies. Plaintiff objects to the Magistrate Judge’s conclusion;
he appears to argue that he attempted to exhaust his administrative remedies and that he
is currently attempting to exhaust his administrative remedies.
Under the Prison Litigation Reform Act, a prisoner bringing an action with respect
to prison conditions under § 1983, or any other federal law, must first exhaust all available
administrative remedies. 42 U.S.C. § 1997(e)(a). Exhaustion as provided in § 1997(e)(a)
is mandatory.

Booth v. Churner, 532 U.S. 731, 741 (2001).

The exhaustion of

administrative remedies “applies to all inmate suits about prison life, whether they involve
general circumstances or particular episodes,” and is required even when the relief sought
is not available. Booth, 532 U.S. at 741. Because exhaustion is a prerequisite to suit, all
available administrative remedies must be exhausted prior to filing a complaint in federal
court. Booth, 532 U.S. at 741.

“Proper exhaustion demands compliance with an agency's deadlines and other
critical procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548
U.S. 81 (2006). “An inmate's failure to exhaust administrative remedies is an affirmative
defense to be pleaded and proven by the defendant.” Anderson v. XYZ Corr. Health
Servs., 407 F.3d 674, 683 (4th Cir. 2005).
Upon review of the record the Court finds that Plaintiff failed to properly exhaust his
administrative remedies and that summary judgment is appropriate. Therefore, the Court
adopts the Magistrate Judge’s recommendation.

Defendants’ Motion for Summary

Judgment [151] is GRANTED. Plaintiff’s Motions for Preliminary Injunction [177] and to
Appoint Counsel [184] are DISMISSED as moot.
IT IS SO ORDERED.
February 13, 2019
Spartanburg, South Carolina

s/ Donald C. Coggins, Jr.
United States District Judge

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3
and 4 of the Federal Rules of Appellate Procedure.