Pittman v. Cartledge et al - Document 10

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA ) ) P l a in tif f , ) vs. ) ) Warden Cartledge, McCormick, CI; ) D r. McCree, McCormick, CI; and Unknown ) M e d i c a l Director, SCDC Headquarters, ) ) D e f e n d a n ts . ) ______________________________________ ) H a ro ld Pittman, #319544, C/A No.: 3:10-1269-JFA-JRM ORDER T h e pro se plaintiff, Harold Pittman, is incarcerated at the McCormick Correctional In s titu tio n ("MCI") of the South Carolina Department of Corrections ("SCDC"). He initiated th is action pursuant to 42 U.S.C. § 1983 contending that the defendants violated his c o n stitu tio n a l rights under the Eighth Amendment. Specifically, the plaintiff alleges that the d e f e n d a n ts failed to provide adequate medical treatment after he fell and injured his elbow. P la in tif f alleges that because his elbow surgery was delayed, the tendons improperly healed a n d he does not have full use of his arm. He seeks money damages. T h e Magistrate Judge assigned to this action 1 has prepared a Report and R e c o m m e n d a tio n wherein he suggests that this court should summarily dismiss the complaint 1 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). 1  b e c au s e the plaintiff has failed to exhaust his administrative remedies under the Prison L itig a tio n Reform Act of 1996 ("PLRA"). The Report sets forth in detail the relevant facts a n d standards of law on this matter, and the court incorporates such without a recitation. 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 , and he has filed timely objections to the Report. It thus appears this matter is ripe for resolution. T h e PLRA requires that a prisoner exhaust administrative remedies before filing a § 1 9 8 3 action concerning his confinement. 42 U.S.C. § 1997e(a). It is well established that the e x h a u s tio n requirement is mandatory, Anderson v. XYZ Correctional Health Svcs., Inc., 407 F .3 d 674, 677 (4th Cir. 2005) and that the requirement "applies to all inmate suits about prison lif e ," whether they involve general circumstances or particular episodes and whether they a lle g e excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516 (2002); see also J o n e s v. Bock, 549 U.S. 199 (2007). A lth o u g h the lack of exhaustion of administrative remedies is, generally, considered a n affirmative defense and not a jurisdictional infirmity in the Fourth Judicial Circuit, if the la c k of exhaustion is apparent from the face of the prisoner's complaint or from additional f a c t s requested by the court, sua sponte dismissal prior to service of the complaint is a p p ro p ria te . Anderson ,407 F.3d 674. The Magistrate Judge opines that it is apparent from th e face of the complaint that plaintiff failed to exhaust his remedies and that this court should d is m is s the action sua sponte prior to service of the complaint. This court agrees. 2  T h e Magistrate Judge notes the plaintiff's statement in his complaint that he did not f ile a grievance in this matter because there is an exception to the exhaustion requirement w h e n a prisoner seeks money damages for which the administrative process allows no award. In his objections, plaintiff's reliance on Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999) is m is p la c ed . Although once within the discretion of the district court, the exhaustion of a d m i n is tra tiv e remedies is now mandatory. Booth v. Churner, 532 U.S. 731 (2000). All a v a ila b le remedies must be exhausted before a complaint under § 1983 may be entertained. Id . at 738. Those remedies "need not meet federal standards, nor must they be `plain, speedy, a n d effective.'" Porter v. Nussle, 534 U.S. 516, 524 (2002), citing Booth, 532 U.S. at 739­ 4 0 , n. 5. Even when the prisoner seeks remedies not available in the administrative p ro c e e d in g s , notably money damages, exhaustion is still required prior to filing suit. Booth, 5 3 2 U.S. at 741. Recent case law demonstrates that the Supreme Court has strictly construed s e c tio n 1997e(a). Id. at 741, n. 6 ("[w]e will not read futility or other exceptions into statutory ex h au stio n requirements where Congress has provided otherwise"). H e re , with respect to the plaintiff's case, it is clear from the plaintiff's complaint that h e has not exhausted his administrative remedies as required. This court agrees with the M a g is tra te Judge that the case is premature and subject to summary dismissal. Alternatively, the plaintiff requests that this court stay the action pending the outcome o f his grievance filed with the Warden at MCI after the complaint in this case was filed. H o w e v e r, the court must deny the request because staying the action would allow the plaintiff 3  to keep the complaint filed before he exhausts his administrative remedies. A f te r a careful review of the record, the applicable law, the Report and R ec o m m en d a t io n , and the plaintiff's objections thereto, the court finds the Magistrate Judge's re c o m m e n d a tio n to be proper. Accordingly, the Report and Recommendation is incorporated h e re in by reference and this action is dismissed without prejudice and without issuance and s e rv i c e of process. IT IS SO ORDERED. O c to b e r 28, 2010 C o lu m b ia , South Carolina J o s e p h F. Anderson, Jr. U n ite d States District Judge 4