Lilly v. Ozmint et al
Filing
88
ORDER RULING ON REPORT AND RECOMMENDATIONS 84 of Magistrate Judge Robert S Carr, declining to follow the Magistrate Judge's suggestion that this case be dismissed with prejudice and counted as a strike. The Court denies 76 Motion to Amend/C orrect filed by Thurman V Lilly; denies 77 Motion for Three Judge-Court filed by Thurman V Lilly, and grants 65 Motion for Summary Judgment, filed by Adrian Martell, Tim B Roof, Gilbert Emrhein, Stan Burtt, Jon Ozmint, Fred Thompson, Yvette Blowe, R Reeves, Mr Powell, Thierry Nettles, Robert Ward, Mr Williams. All other aspects of the Report and Recommendation are incorporated herein. This action is dismissed without prejudice. Signed by Honorable Joseph F Anderson, Jr on 3/10/2009. (ssan, )
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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA
T h u rm a n Van Lilly,
) ) P l a in tif f , ) vs. ) ) Jon Ozmint; Stan Burtt; Adrian Martell; ) R . Reeves; Robert Ward; Fred Thompson; ) T h ie rry Nettles; Tim B. Roof; Gilbert Emrhein; ) N F N Williams; J. Powell; and Yvette Blowe, ) ) D e f e n d a n ts . ) ______________________________________ )
C/A No.: 2:07-1700-JFA-RSC
ORDER
T h e pro se plaintiff, Thurman V. Lilly, is an inmate incarcerated at the South Carolina D e p a rtm e n t of Corrections ("SCDC"). He initiated this action pursuant to 42 U.S.C. § 1983 o n June 16, 2007, purporting to represent a class of inmates exceeding 550 putative plaintiffs in c a rc e ra te d at the SCDC. In his complaint, the plaintiff raises numerous constitutional c h a lle n g e s to the conditions of confinement at the Lieber state correctional facility where the v io la tio n s are alleged to have occurred.1 The plaintiff seeks declaratory and injunctive relief, b u t not monetary damages. Specifically, plaintiff challenges his conditions of confinement relating to access to the c o u rts , recreation, exercise, food, cell locks, double and triple-celling, overcrowding, canteen item s and costs, tobacco use, medical care, mental health care, dental care, disciplinary m a tte rs , use of "lock-up" units, religious exercise, use of pink jumpsuits, and property and
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The plaintiff is now incarcerated at the Lee Correctional Institution of the SCDC.
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p e r s o n searches. T h e Magistrate Judge assigned to this action 2 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this court should dismiss the matter with prejudice a n d count the action as a "strike" under the PLRA. The defendants contend that the plaintiff h as failed to exhaust his remedies and that summary judgment should be granted in their favor. T h e plaintiff was advised of his right to file objections to the Report and R e c o m m e n d a tio n , which was entered on the docket on January 13, 2009. The plaintiff timely f ile d a 12-page objection memorandum. The court has reviewed the specific objections as t h e y relate to the Magistrate's recommendation of dismissal and finds them to be without m e rit. B A CK G R O U N D A f te r the plaintiff filed the action and this court denied the request for a 500+ member in m a te class, the case proceeded as one by the plaintiff, individually, seeking to challenge the c o n d i tio n s of his confinement. The remaining named plaintiffs were severed from this case a n d assigned separate civil action numbers. T h e plaintiff was then directed to file an amended complaint stating the specific facts o f how the alleged prison conditions and violation of federal rights by each defendant has
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The Magistrate Judge's review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the Report 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).
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p e rso n a lly affected or injured the plaintiff. However, he did not comply with the Magistrate Ju d g e 's order. Instead, the plaintiff filed a notice of interlocutory appeal with the Fourth C irc u it Court of Appeals. He also filed a motion to stay this action which this court denied. T w o months after the interlocutory appeal was filed, the plaintiff then filed before this court a Rule 59 motion to alter or amend the judgment which this court denied. The plaintiff, after unsuccessfully petitioning the Fourth Circuit to file an interlocutory a p p e al, then moved for an order from this court to certify its denial of class certification for in te rlo c u to ry appeal pursuant to 28 U.S.C. § 1292. Such motion was denied by this court on J a n u a ry 23, 2008. O n December 5, 2007, the plaintiff filed a four-page form amended complaint which e ss e n tia lly refers to and reiterates the allegations of the original complaint. He adds that the a lle g e d incidents occurred between January 1, 2004 and June 30, 2007. He also contends that h e was being retaliated against by the defendants and was placed on lock-up without due p roc ess and that his legal materials in his other cases pending before this court were c o n f is c a te d . T h e court then granted plaintiff's motion to proceed in forma pauperis and directed se rv ice of process on the defendants. The defendants were granted extensions of time to a n sw e r the amended complaint and to file a dispositive motion. B efore the Magistrate Judge, the defendants moved for summary judgment contending, a m o n g other things, that the plaintiff has failed to meet the threshold requirement that he first e x h a u st his administrative remedies by pursuing his rights under the Prison Grievance System 3
a s required by 42 U.S.C. § 1997e. In accordance with established procedure in this district, the plaintiff was given a copy o f the motion and was given an explanation of the dismissal and summary judgment p ro c e d u re s as well as pertinent extracts from Rules 12 and 56 of the Federal Rules of Civil P ro c e d u re . Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). P la in t if f then sought additional time within which to respond to the motion, a request th a t was granted by the Magistrate Judge. The deadline was extended to November 28, 2008. W h e n no opposition to the motion had been filed by that date, the Magistrate Judge entered a n o th e r order, on December 2, 2008, giving the plaintiff ten additional days to oppose the su m m a ry judgment motion, with a warning that the action may be dismissed if he failed to file a response. T h e plaintiff responded within the ten-day period simply suggesting that the court c a n n o t review the summary judgment motion until the court has ruled upon plaintiff's first tw o motions. The first two motions were: (1) a motion to convene a three-judge court to re v ie w the constitutionality of the exhaustion requirement; and (2) a motion to amend the c o m p la in t to add fourteen new defendants and have the defendants "certified as re p re se n tativ e s of a class within the meaning of Fed. R. Civ. P. 26." r e sp o n d e d in opposition to both motions. T HE PLAINTIFF'S MOTION TO CONVENE A THREE-JUDGE COURT A s the Magistrate Judge noted, this is not a case challenging the constitutionality of the a p p o rtio n m e n t of a congressional district. See § 2284(a). This removes one avenue from 4 The defendants
c o n sid e ra tio n . Plaintiff points to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, a n d the statute requiring notice to the Attorney General of the Unites States when the c o n stitu tio n a lity of an Act of Congress is questioned, see 28 U.S.C. § 2402, but neither of th e s e statutes have anything to say regarding the impanelment of a three-judge court. Plaintiff's remaining refuge is in the statute mapping remedies with respect to prison c o n d itio n s , see 18 U.S.C. § 3626, but that statute is not applicable either. The section requires a party seeking an order releasing him from prison to file a request for a three-judge court and in c lu d e with that request materials sufficient to demonstrate that release from prison is n e c es s a ry to correct the violation of the party's federal rights. Id. Allegations of trumped-up d isc ip lin a ry charges and withholding of personal effects are not in this ballpark. This statute in ste a d covers what seems to be the subject matter of Plaintiff's other pending litigation in f e d era l court, which explains why Plaintiff's first mention of a three-member court references th e other lawsuit. S im ila rly, a constitutional challenge to the exhaustion requirement of the Prison L itig a tio n Reform Act, 42 U.S.C. 1997e, does not cut the mustard for a three-member court. T h e judge to whom the request for a three-member court is made possesses discretion to d e ter m in e whether three judges are required, 28 U.S.C.A. § 2284(b)(1) (West 2006), and in th is case, three judges are not. Under 18 U.S.C. § 3626, the three-judge statute Plaintiff points th e court to, there are hoops to jump through before a prisoner can be released. These include (1 ) a previous issuance by the court of an order that has failed to remedy the deprivation of th e federal right, § 3626(a)(3)(A)(I); (2) the defendant's enjoyment of a reasonable amount 5
o f time to comply with the court's order, § 3626 (a)(3)(A)(ii); and (3) a finding by the court th a t prison crowding is the primary cause of the violation of the federal right, § 3 6 2 6 (a )(3 )(E )(I). A challenge to the PLRA is not going in this direction. T HE PLAINTIFF'S MOTION TO AMEND THE AMENDED COMPLAINT A s to plaintiff's motion to amend his amended complaint to add new defendants and c e rtif y a class, the court finds that to do so at this point in the litigation would be prejudicial to the defendants. In addition, the plaintiff has not shown "good cause" for this court to allow h im to amend his complaint so late in the process of this case. Under Fed. R. Civ. P. 15(a), le a v e to amend a complaint should be freely given, unless the amendment would be p re ju d ic ia l to the opposing party, there has been bad faith on the part of the moving party, or th e amendment would have been futile. Steinburg v. Chesterfield County Planning Comm'n, 5 2 7 F.3d 377, 391 (4th Cir. 2008). As the defendants note in their response opposing the motion to amend, the plaintiff's o rig in a l complaint raised allegations of conditions of confinement at Lieber Correctional In s ti tu t io n where the plaintiff was being housed when he filed the complaint. The plaintiff is now incarcerated at Lee Correctional Institution and the proposed new defendants are all e m p lo ye e s working at Lee Correctional, not Lieber. Additionally, the proposed new
ch allen g es to conditions of confinement relate to Lee, not Lieber. A s the court finds herein that plaintiff has not exhausted his administrative remedies w ith regard to his original complaint, and since the plaintiff was not even housed at Lee until a f ter this action was filed, such subsequent proposed amendments are likely subject to
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d is m is s a l for non-exhaustion as well. Accordingly, plaintiff's motion to amend is denied. I n addition, the time to amend the complaint to add new defendants and certify a class o f defendants has long since passed in this case. This leaves us with the defendant's third m o tio n , which is a simple opposition to summary judgment suggesting that the court should n o t proceed to hear the motion because of the pendency of the other two motions. T h e court has thus rejected the plaintiff's first two motions, and therefore, the plaintiff h as failed to provide any meaningful opposition to the motion for summary judgment. In s h o rt, he has not given any reason why exhaustion should not be required in this case. T HE PLRA AND EXHAUSTION OF ADMINISTRATIVE REMEDIES T h e defendants have pleaded the affirmative defense of plaintiff's failure to comply w ith the PLRA's exhaustion requirement and have moved for summary judgment on that basis. T h e defendants have presented the sworn affidavit of Mary Coleman, the Branch Chief for th e Inmate Grievance Branch. A review of the plaintiff's filed grievances (attached to the A f f id a v it ) show that the plaintiff's grievances do not address any claims or conditions s p e c if ic a lly raised in plaintiff's amended complaint. The defendants note that the other g rie v a n c e s which have been submitted were not filed until after this lawsuit was filed. In his objections to the Report, the plaintiff addresses the Magistrate's suggestion of d ism iss a l as a sanction. The plaintiff's only reference to the threshold exhaustion issue is his sta tem e n t that "requesting a three-judge court to specially review 42 U.S.C. § 1997e, its a p p lica tio n to SCDC, and the federal courts view of its application to prisoners of SCDC is n o t for any purpose of delay, but to the contrary, it is to finally resolve the exhaustion issues
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c o n c e rn in g SCDC's grievance policy."
However, as noted previously and denied by this
c o u r t, review by a three-judge panel has not been required in this case under any of these c irc u m sta n c e s and there is no legal basis for the appointment of such a panel. T h e Prison Litigation Reform Act, 42 U.S.C. § 1997e(a)(1996), provides as follows: N o action shall be brought with respect to prison conditions u n d e r section 1983 of this title or any other federal law, by a p riso n e r confined in any jail, prison, or other correction facility u n til such administrative remedies as are available are exhausted. T h e PLRA requires that inmates exhaust available administrative remedies prior to filing civil a c tio n s though the administrative process may not afford them the relief they might obtain th ro u g h civil proceedings. Woodford v. Ngo, 548 U.S. 81, 84-86, (2006); Porter v. Nussle, 5 3 4 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001); Moore v. Bennette, 517 F.3d 7 1 7 (4th Cir. 2008). The PLRA does not require that an inmate allege or demonstrate that he has exhausted h is administrative remedies. See Jones v. Bock, 549 U.S. 199 (2007); Anderson v. XYZ C o r r e c tio n a l Health Serv., 407 F.3d 674, 677 (4th Cir. 2005). Failure to exhaust
a d m in is tra tiv e remedies is an affirmative defense. Prison officials have the burden of proving th a t the inmate had available remedies which he did not exhaust. In order to exhaust the SCDC administrative remedies, an inmate must fill out a Form 1 0 -5 or Step 1 grievance about the matters raised in his complaint and give the form to the In s titu tio n a l Inmate Grievance Coordinator within fifteen (15) days of the alleged incident of w h ic h the inmate complains. The Warden must respond to the Step 1 grievance in writing no la te r than forty (40) days from the filing of the initial grievance. If the inmate is not satisfied 8
w ith the Warden's response, he must file an appeal of the Step 1 grievance response by filing a Form 10-5a or Step 2 Request for Responsible Official Review with the Inmate Grievance C o o rd in a to r within five (5) days of the receipt of the response from the Warden. A responsible o f f ic ia l has sixty (60) days to respond to the Step 2 grievance. The decision of the official who a n sw e rs Step 2 is considered the SCDC's final response in the matter. Only after completing b o th Steps 1 and 2 in the SCDC grievance process has an inmate properly exhausted a claim u n d e r § 1983. 42 U.S.C. § 1997e. T h e purpose of the exhaustion requirement is twofold. First, it gives an administrative ag en cy "an opportunity to correct its own mistakes with respect to the programs it administers b e f o re it is haled into federal court." Woodford. Second, "[c]laims generally can be resolved m u c h more quickly and economically in proceedings before an agency than in litigation in f e d e r a l court." Id. Any consideration of administrative remedies pursued after the c o m m e n c e m e n t of the litigation would only serve to frustrate both purposes of the PLRA's e x h a u stio n requirement. T h e undersigned finds that plaintiff has failed to exhaust his administrative remedies w ith regards to the claims raised in this action. The plaintiff has failed to present any evidence in that contradicts the sworn affidavit of the defendants in support of their motion for s u m m a ry judgment. Further, the plaintiff's contentions that the PLRA exhaustion provision is unconstitutional is without merit. Consequently, the plaintiff's claims in this action should b e dismissed.
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S TANDARD OF REVIEW FOR SUMMARY JUDGMENT A federal court must liberally construe pleadings filed by pro se litigants, to allow th e m to fully develop potentially meritorious cases. Cruz v. Beto, 405 U.S. 319 (1972), and H a in e s v. Kerner, 404 U.S. 519 (1972). In considering a motion for summary judgment, the c o u rt's function is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a c le a r failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of S o c ia l Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a g e n u in e issue of material fact where none exists. If none can be shown, the motion should be g ra n te d . Fed.R.Civ.P. 56(c). The movant has the burden of proving that a judgment on the p le a d in g s is appropriate. Once the moving party makes this showing, however, the opposing p a rty must respond to the motion with "specific facts showing that there is a genuine issue for tria l." The opposing party may not rest on the mere assertions contained in the pleadings. Fed. R . Civ. P. 56(e) and Celotex v. Catrett, 477 U.S. 317 (1986). THE MAGISTRATE JUDGE'S REPORT In his Report, the Magistrate Judge suggests that this matter should be dismissed with p re ju d ic e pursuant to Fed. R. Civ. P. 41(b) and counted as a "strike" under the PLRA. He n o te s that the plaintiff has unsuccessfully filed numerous cases in this court, all of which have p ro tra c te d litigation histories and a pattern of failure to obey direct court orders. The Magistrate Judge also opines that this action meets all of the criteria for dismissal u n d er Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). As the Fourth Circuit
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h a s noted, dismissal with prejudice is a "harsh sanction which should not be invoked lightly." D a v is v. Williams, 588 F.2d 69, 70 (4th Cir. 1978). In reviewing such a dismissal, a court
m u s t ascertain: (1) the degree of personal responsibility of the plaintiff, (2) the amount of p re ju d ice caused the defendant, (3) the existence of "a drawn out history of deliberately p ro c e ed in g in a dilatory fashion," and (4) the existence of a sanction less drastic than d is m is s a l. Davis at 70; Reizakis v. Loy, 490 F.2d 1132 (4th Cir. 1974). C O N C LU S IO N A f te r carefully reviewing the record in this case, the applicable law, the Report and R e c o m m e n d a tio n , and plaintiff's objections thereto, the court declines to follow the M a g i str a te Judge's suggestion that this case be dismissed with prejudice and counted as a s trik e .3 This court has considered the Magistrate Judge's careful review and judicial notice o f the plaintiff's dilatory responses to court orders in this case and repeated failures to obey c o u rt orders in other cases. However, the undersigned declines to dismiss the action on that b a s is . Instead, the court grant defendants' motion for summary judgment and the remaining p e n d in g motions are disposed of as noted previously in this order. All other aspects of the R e p o rt are incorporated herein. This action is dismissed without prejudice. IT IS SO ORDERED.
M arc h 10, 2009 C o lu m b ia , South Carolina
J o s e p h F. Anderson, Jr. U n ite d States District Judge
In light of the decision of the United States Court of Appeals for the Fourth Circuit in Green v. Young, 454 F.3d 405 (4th Cir. 2006) (dismissal under PLRA for failure to exhaust administrative remedies does not count as a "strike" for purposes of the "three strikes" rule), imposition as a "strike" is not appropriate in this action.
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