Petition for Writ of Certiorari — Kevin Herriott, Petitioner v. Associate Warden Ford, et al.

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FILED: December 22, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6799

(6:19-cv-00751-DCN)

KEVIN HERRIOTT

Plaintiff - Appellant

FORD, Associate Warden, in individual and official capacity; MAJOR SMITH;

DAVIS, Captain, in individual and official capacity; DANLEY, Lieutenant, in

individual and official capacity; MCCABE, Acting Warden, in individual and

official capacity; CANNING, Associate Warden, in individual and official

capacity; BRAGG, Food Service Director, in individual and official capacity

Defendants - Appellees

ORDER

. The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Wilkinson, Judge King, and

Judge Quattlebaum.

For the Court

/s/ Patricia S. Connor, Clerk

P<t°

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-6799

KEVIN HERRIOTT,

Plaintiff - Appellant,

FORD, Associate Warden, in individual and official capacity; MAJOR SMITH;

DAVIS, Captain, in individual and official capacity; DANLEY, Lieutenant, in

individual and official capacity; MCCABE, Acting Warden, in individual and

official capacity; CANNING, Associate Warden, in individual and official capacity;

BRAGG, Food Service Director, in individual and official capacity,

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at

Greenville. David C. Norton, District Judge. (6:19-cv-00751-DCN)

Submitted: November 19, 2020

Decided: November 23, 2020

Before WILKINSON, KING, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kevin Herriott, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

p.3l

PER CURIAM:

Kevin Herriott appeals the district court’s order accepting the recommendation of

the magistrate judge and granting summary judgment to Defendants on Herriott’s 42

U.S.C. § 1983 complaint. We have reviewed the record and find/no reversible error^y

Accordingly, we affirm for the reasons stated by the district court. Herriott v. Ford, No.

6:19-cv-00751-DCN (D.S.C. May 19,2020). We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED

/>,3?

6:19-cv-00751-DCN

Date Filed 05/19/20

Entry Number 175

Page 1 of 1

AO 450 (SCO 04/2010) Judgment in a Civil Action

United States District Court

for the

District of South Carolina

Kevin Heriott

Plaintiff

NFN Ford; Harrison Smith; NFN Davis; NFN

Danley; NFN Blackwell; NFN Gaskins; NFN

Baskins; NFN Campbell; NFN Jones; NFN

Amerison; NFN Robbins; NFN McCabe; NFN

Crowe; Mr Canning; NFN Bragg

Civil Action No.

)

6:19-cv-751-DCN

Defendant

SUMMARY JUDGMENT IN A CIVIL ACTION

The court has ordered that (check one):

□ the plaintiff (name)

recover from the defendant (name)

which includes prejudgment interest at the rate of

the amount of

%, plus postjudgment interest at the rate of

dollars ($_),

%, along with

costs.

□ the plaintiff recover nothing, the action be dismissed on the merits, and the defendant (name)__________________

recover costs from the plaintiff (name)________________ .

XX other: Defendants’ NFN Bragg, Mr Canning, NFN Danley, NFN Davis, NFN Ford, NFN McCabe motion

for summary judgment is granted. Major Smith previously terminated on 2/14/2020; NFN Robbins previously

terminated on 5/1/2020; NFN Blackwell, NFN Brad, NFN Campbell; NFN Canty, NFN Crowe, NFN Gaskins,

NFN Baskins, NFN Jones, NFN Amerison, NFN Baskins previously terminated on 7/10/2019.

This action was (check one):

□ tried by a jury, the Honorable

□ tried by the Honorable

presiding, and the jury has rendered a verdict.

presiding, without a jury and the above decision was reached.

XX decided by the Honorable David C. Norton.

Date: May 19,2020

CLERK OF COURT

s/Kathy Rich, Deputy Clerk

Signature of Clerk or Deputy Clerk

6:19-cv-00751-DCN

Date Filed 05/19/20

Entry Number 174

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Kevin Herriott,

)

Plaintiff,

vs.

)

C/A No.: 6:19-cv-0751 DCN

ORDER

Associate Warden Ford; Associate Warden )

Canning; Captain Davis; Lieutenant

)

Danley; Food Service Director Bragg; and )

Acting Warden McCabe

)

Defendants.

)

The above referenced case is before this court upon the magistrate judge's recommenda

tion that defendants’ motion for summary judgment be granted.

This court is charged with conducting a de novo review of any portion of the magistrate

judge's report to which a specific objection is registered, and may accept, reject, or modify, in

whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1).

However, absent prompt objection by a dissatisfied party, it appears that Congress did not intend

for the district court to review the factual and legal conclusions ofthe magistrate judge. Thomas

v Am, 474 U.S. 140 (1985). Additionally, any party who fails to file timely, written objections

to the magistrate judge's report pursuant to 28 U.S.C. § 636(b)(1) waives the right to raise those

objections at the appellate court level. United States v. Schronce. 727 F.2d 91 (4th Cir. 1984),

,cert. denied. 467 U.S. 1208 (1984 ).'

Objections to the Magistrate Judge’s Report and

Recommendation were timely filed on May 11,2020 by plaintiff.

'In Wright v. Collins. 766 F.2d 841 (4th Cir. 1985), the court held "that a pro se litigant

must receive fair notification of the consequences of failure to object to a magistrate judge's

report before such a procedural default will result in waiver of the right to appeal. The

notice must be ’sufficiently understandable to one in appellant's circumstances fairly to

appraise him of what is required."’ Id. at 846. Plaintiff was advised in a clear manner that

his objections had to be filed within ten (10) days, and he received notice of the conse

quences at the appellate level of his failure to object to the magistrate judge's report.

6:19-cv-00751-DCN

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Entry Number 174

Page 2 of 2

A de novo review of the record indicates that the magistrate judge’s report accurately

summarizes this case and the applicable law. Accordingly, the magistrate judge’s Amended

Report and Recommendation is AFFIRMED, and defendants’ motion for summary judgment

is GRANTED.

AND IT IS SO ORDERED.

David C. Norton

United States District Judge

May 19, 2020

Charleston, South Carolina

NOTICE OF RIGHT TO APPEAL

The parties are hereby notified that any right to appeal this Order is governed by Rules

3 and 4 of the Federal Rules of Appellate Procedure

6:19-cv-00751-DCN

Date Filed 05/01/20

Entry Number 170

Page 1 of 10

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Kevin Herriott,

)

Plaintiff,

)

vs.

Associate Warden Ford, Associate

Warden Canning, Captain Davis,

Lieutenant Danley, Food Service

Director Bragg, and Acting Warden

McCabe,

Defendants.

Civil Action No. 6:19-751-DCN-KFM

AMENDED ORDER AND

REPORT OF MAGISTRATE JUDGE1

)

This matter is before the court on the defendants’ motion for summary

judgment (doc. 141), and the plaintiff’s motion to strike the defendants’ motion for summary

judgment (doc. 147). The plaintiff, a state prisoner proceeding pro se, brought this action

alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Pursuant to the

provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d)(D.S.C.), this

magistrate judge is authorized to review all pretrial matters in cases filed under Section

1983.

BACKGROUND

The plaintiff is an inmate at the South Carolina Department of Corrections

(“SCDC”), and he has been housed at different prisons within SCDC, including Kershaw

Correctional Institution ("Kershaw”). On March 4,2019, he filed a complaint against various

officers and employees at three SCDC prisons (see C.A. No. 6:19-cv-626, doc. 1). By

order dated March 12,2019, the initial case was severed into three separate actions, each

pertaining to the clams related to a particular prison, including this case involving claims

This amended Order and Report and Recommendation corrects the date the

plaintiffs initial complaint was filed noted on page three.

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Entry Number 170

Page 2 of 10

arising at Kershaw (doc. 1). After an unsuccessful interlocutory appeal (docs. 31,65), the

plaintiff filed an amended complaint on July 10, 2019 (doc. 57).

By orders dated

September 16,2019, and February 14,2020, the Honorable David C. Norton, United States

District Judge, dismissed some of the named defendants and some of the plaintiffs claims

(docs. 79, 148). Accordingly, the remaining claims concern the plaintiffs conditions of

confinement against the following officers and employees at Kershaw: Acting Warden

Wayne McCabe, Associate Wardens Kevin Ford and Joseph Canning, Captain Benjamin

Davis, Lieutenant Derek Danley, and Food Service Director Mikel Bragg. The plaintiff

alleges in his amended complaint that since November 13, 2018, through and continuing

through the present date,2 the defendants violated his Eighth and Fourteenth Amendments

rights by subjecting him to unconstitutional conditions of confinement while in Kershaw’s

Restricted Housing Unit (“RHU”), including the lack of indoor and outdoor recreation and

exercise, an unhealthy and unsanitary cell without adequate lighting and cleaning

materials, a lack of haircuts, and cold, inadequate food (doc. 57, pp. 8-12). He further

alleges during this same period, the defendants “responded” to his numerous request to

staff member and grievance forms concerning these issues, denying his requests that these

conditions be corrected {id., pp. 9-11). He alleges that as a result of these conditions and

the defendants’ indifference and inaction to them, he suffered physical injuries and pain,

and he seeks actual and punitive damages {id. p. 13).

On October 16, 2019, the defendants filed an answer denying that they

violated the plaintiff’s rights and raising the affirmative defense of the plaintiff’s failure to

exhaust his administrative remedies (doc. 101). The plaintiff filed a reply on October 28,

2019, in which he cites cases on the issue of exhaustion, including the proposition that an

inmate must exhaust available remedies, but need not exhaust unavailable ones (doc. 107).

On January 28,2020, the defendants filed their motion for summary judgment

(doc. 141). By order filed January 29, 2020, pursuant to Roseboro v. Garrison, 528 F.2d

2The amended complaint is dated July 4, 2019 (doc. 57).

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Page 3 of 10

309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the

possible consequences if he failed to respond adequately to the motion (doc. 142). The

plaintiff filed a motion to strike on February 10, 2020 (doc. 147), to which the defendants

filed a response in opposition on February 24, 2020 (doc. 155). The plaintiff filed his

response in opposition to the motion for summary judgment on March 4, 2020 (doc. 161),

to which the defendants filed a reply on March 11,2020 (doc. 163). The plaintiff filed a surreply on March 20, 2020 (doc. 164).

In support of their motion for summary judgment, the defendants argue that

the plaintiff failed to exhaust his administrative remedies. They point out that the plaintiff

arrived at Kershaw on November 13, 2018, and filed his initial complaint here on March 3,

2019, yet he failed to file administrative grievances in the interim for his claims of

inadequate lighting, the lack of outdoor recreation and exercise, and the lack of haircuts

and cleaning issues (doc. 141-2, Anderson aff.

12,15,16). They also present evidence

that while the plaintiff did file an unsuccessful grievance about cold and inadequate food

on February 7, 2019, he failed to appeal it prior to filing his initial complaint here (id. If 13;

doc. 141-2, p. 26). Accordingly, they argue that the plaintiff failed to properly exhaust any

of his administrative remedies prior to filing this case.

The plaintiff filed a response in opposition to summary judgment arguing that

during this period the defendants, along with “gang-affiliated inmates,” interfered with his

legal mail - and apparently his grievances - in an attempt to “find his testimony” about a

riot (doc. 161-1, p. 5).

He also argues that the staff would purposely not give him

administrative grievance forms, so he wrote his own grievances on plain paper and made

copies for his file “because prison officials would not respond when the plaintiff was writing

the Wardens and Captain concerning RHU practices all to no avail” (id., pp. 7-9). With his

response in opposition, the plaintiff provides numerous exhibits dated outside the relevant

period of his arrival at Kershaw thorough the date he filed his initial complaint here

(November 13, 2018 - March 3, 2019). Of those exhibits dated within this relevant period,

many concern his allegations of mail interference related to his state case, which is not a

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Page 4 of 10

pleaded claim here (docs. 161-4, pp. 3-59). Regarding his claims here, the plaintiff

provides only a step 1 grievance dated December 26, 2018, concerning food service and

showers (doc. 161-5, p. 4); a handwritten “Statement of Grievance" dated February 1,2019,

on the lack of a haircut and cleaning supplies (doc. 161-7, p. 2); an inmate request form

dated February 4, 2019, requesting a haircut {id., p. 3); and “duplicate” request to staff

member forms dated February 4 and 8, 2019, concerning showers, unsanitary conditions,

and the lack of cleaning supplies {id., pp. 17-18).

The defendants filed a reply in support of their motion for summary judgment,

arguing that the plaintiffs own exhibits show that he did not exhaust his administrative

remedies (doc. 163). The plaintiff then filed a sur-reply, stating again that SCDC’s

administrative remedies were unavailable, because he was not given grievance forms and

that, in any event, they would not have been processed or returned given his “knowledge

of mail interference” (doc. 164, p. 2).

APPLICABLE LAW AND ANALYSIS

Plaintiff’s Motion to Strike

The plaintiff, citing Federal Rule of Civil Procedure 12, has moved to strike

the defendants’ motion for summary judgment on the basis that it is “improper,

inappropriate, redundant, and immaterial” (doc. 147).

However, Rule 12 pertains to

pleadings rather than motions, and it is thus inapplicable here.

In any event, the

undersigned has reviewed the motion for summary judgment and finds it to be in

compliance with Rule 56. Moreover, the plaintiff has filed a thorough response with

exhibits. Accordingly, the plaintiffs motion to strike (doc. 147) is denied.

Summary Judgment Standard

Federal Rule of Civil Procedure 56 states, as to a party who has moved for

summary judgment: “The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is

deemed “material” if proof of its existence or nonexistence would affect the disposition of

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the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). An issue of material fact is “genuine” if the evidence offered is such that a

reasonable jury might return a verdict for the non-movant. Id. at 257.

In determining

whether a genuine issue has been raised, the court must construe all inferences and

ambiguities against the movant and in favor of the non-moving party. United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of

demonstrating to the district court that there is no genuine issue of material fact. Celotex

Corp. v, Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold

demonstration, the non-moving party, to survive the motion for summary judgment, may not

rest on the allegations averred in his pleadings; rather, he must demonstrate that specific,

material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the

existence of a mere scintilla of evidence in support of the plaintiff’s position is insufficient

to withstand the summary judgment motion. Anderson, 477 U.S. at 252.

Likewise,

conclusory allegations or denials, without more, are insufficient to preclude the granting of

the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of summary

judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

Exhaustion

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.

1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other

things, that prisoners exhaust their administrative remedies prior to filing civil actions

concerning prison conditions under Section 1983 or any other federal law. See Jones v.

Bock, 549 U.S. 199, 211 (2007) ("There is no question that exhaustion is mandatory under

the PLRA and that unexhausted claims cannot be brought in court”). “[T]he PLRA's

exhaustion requirement is mandatory,” Anderson v. XYZ Corn Health Servs., /nc.,407 F.3d

674, 677 (4th Cir. 2005), and “applies to all inmate suits about prison life, whether they

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Page 6 of 10

involve general circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002)

The PLRA requires “proper exhaustion” of available administrative remedies

prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court

noted, “[aggrieved parties may prefer not to exhaust administrative remedies for a variety

of reasons,” whether it be concerns about efficiency or “bad faith.” Id. at 89-90. This is

especially true in a prison context. Id. at 90 n.1.

Nevertheless, “[pjroper 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." Id. at 90-91.

“[A]n administrative remedy is not considered to have been available if a

prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered

unavailable when: (1) “it operates as a simple dead end—with officers unable or

consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that

it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart

inmates from taking

advantage of a grievance process through

machination,

misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016).

SCDC’s administrative remedies process for prisoners is outlined in SCDC

Policy GA-01.12. This court may take judicial notice of this policy. Al-Haqq v. Bryant, No.

2:14-cv-0008-TMC-MGB, 2016 WL 769121, at *2 (D.S.C. Feb. 8, 2016) (citing Malik v.

Ward, No. 9:08-cv-01886, 2010 WL 936777, at *2 n.4 (D.S.C. Mar. 16, 2010)). The policy

provides in relevant part:

13.2 Inmates must make an effort to informally resolve a

grievance by submitting a Request to Staff Member Form to the

appropriate supervisor/staff within eight (8) working days of the

incident. However, in certain cases, informal resolution may not

be appropriate or possible.... If informal resolution is not

possible, the grievant will complete Form 10-5, Step 1, which

is located in common areas, i.e., living areas, libraries, etc. and

will place the form in a designated grievance drop box within

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Page 7 of 10

five (5) working days of the alleged incident.... All information

must be placed on SCDC Form 10-5, " Inmate Grievance

Form." An inmate will submit a grievance within the time frames

established in the policy....

The grievance form must contain information about how, with

whom, and when attempts were made to resolve the problem

informally within eight (8) working days of the appropriate

supervisor's signature date on the SCDC Form 19-11," Inmate

Request To Staff Member" (RTSM). . . .

13.3 All grievances will be picked up on a daily basis, during

normal working hours, by an employee designated by the

Warden (not the IGC). All grievances will be numbered and

entered into the automated system (regardless of whether the

issue is grievable or non-grievable) within three (3) working

days by an employee designated by the Warden (not the IGC).

The employee designated by the Warden will give the

grievances to the IGC after the grievance has been entered

into the automated system. Upon receipt of a grievance, the

IGC will, within three (3) working days, complete the additional

text for the grievance into the CRT screen and enter the

grievance information in the grievance log book. The time

frame for responding to the grievance will begin once the text

for the grievance has been entered into the OMS system....

13.5 The Warden will respond to the grievant in writing (in the

space provided on SCDC Form 10-5, Step 1) indicating in

detail the rationale for the decision rendered and any

recommended remedies. The grievant will also be informed of

his/her rights to appeal to the next level. The Warden will

respond to the grievant no later than 45 days from the date the

grievance was formally entered into the OMS system by the

IGC....

13.7 Appeal Process: The grievant may appeal by completing

the SCDC Form 10-5a, Step 2 to the IGC within five (5)

calendar days of the receipt of he response by the grievant. .

. . The Inmate Grievance Branch will confirm receipt to the

appeal, conduct any further investigation necessary, prepare

a report, and present all available information to the

responsible official. The responsible official will render the final

decision on the grievance within 90 days from the date that the

IGC received the appeal of the Warden’s decision.. ..

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SCDC Policy/Procedure, Inmate Grievance System, GA-01.12 §§ 13.2, 13.3, 13.5, 13.7

(May 12, 2014) available at http://www.doc.sc.gov/policy/policy.html.

The plaintiff clearly has not exhausted his administrative remedies.

His

claims forinadequate lighting, lack of recreation or exercise, cold and inadequate food, and

lack of haircuts and cleaning supplies at Kershaw can only arise while he was in custody

there, beginning on November 13, 2018, and continue through the date he filed his initial

complaint here, March 3, 2019. The defendants’ records show that he filed only one

grievance about cold and inadequate food during this period on February 7, 2019, which

was returned to him unprocessed as incomplete, and he failed to appeal it prior to filing his

initial complaint (doc. 141-2, Anderson aff. U 13; doc. 141-2, p. 26). Their records also

show that he failed to file relevant grievances on any of his remaining claims during this

period. The plaintiff provides his own evidence, showing that he filed a step 1 grievance

dated December 26, 2018, concerning food service and showers (doc. 161-5, p. 4), a

handwritten “Statement of Grievance" dated February 1,2019, on the lack of a haircut and

cleaning supplies (doc. 161-7, p. 2), an inmate request form dated February 4, 2019,

requesting a haircut (id., p. 3), and “duplicate” request to staff member forms dated

February 4 and 8, 2019, concerning showers, unsanitary conditions, and the lack of

cleaning supplies (id., pp. 17-18). However, he has not demonstrated that he pursued and

appealed these grievances. As such, the evidence from both parties shows that the plaintiff

did not exhaust his administrative remedies.

The plaintiff argues that his failure to exhaust should be excused since

SCDC’s administrative remedies were unavailable to him, because the staff would not

provide him with grievance forms, and they interfered with his outgoing mail. However, the

plaintiffs own exhibits in response to the motion for summary judgment belie these

contentions.

During the same period at issue, the plaintiff plainly had access to the

necessary forms, as he submitted multiple request to staff member and step 1 grievance

forms regarding his complaint of interference with his legal mail (docs. 161-4, pp. 3-51).

Also contained within these exhibits are copies of his correspondence to and from the state

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Page 9 of 10

court, showing that he did in fact receive his mail. In any event, the plaintiff has failed to

show that SCDC’s administrative grievance procedure was unavailable to him. Because

he failed to exhaust his administrative remedies before filing suit here, the defendants are

entitled to summary judgment.

CONCLUSION AND RECOMMENDATION

Now, therefore, based upon the foregoing,

IT IS HEREBY ORDERED that the plaintiffs motion to strike the motion for

summary judgment (doc. 147) is denied; and

IT IS HEREBY RECOMMENDED that the defendants’ motion for summary

judgment (doc. 141) be granted.

s/ Kevin F. McDonald

United States Magistrate Judge

May 1,2020

Greenville, South Carolina

The attention of the parties is directed to the important notice on the foiiowing page.

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Page 10 of 10

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this

Report and Recommendation with the District Judge. Objections must specifically identify

the portions of the Report and Recommendation to which objections are made and the

basis for such objections. “[I]n the absence of a timely filed objection, a district court need

" itself that there is no clear error

not conduct a de novo review, but instead must ‘only satisfy

on the face of the record in order to accept

& the recommendsation.’” Diamond v. Colonial Life

2005) (quoting Fed. R. Civ. P. 72 advisory

& Acc. ins. Co., 416 F.3d 310 (4th

committee’s note).

Specific written objections must be filed within fourteen (14) days of the date

of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil

Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

300 East Washington Street, Room 239

Greenville, South Carolina 29601

Failure to timely file specific written objections to this Report and

Recommendation will result in waiver of the right to appeal from a judgment of the

District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v.

Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v.

Schronce, 727 F.2d 91 (4th Cir. 1984).

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Entry Number 165

Page 1 of 10

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Kevin Herriott,

)

Plaintiff,

vs.

Associate Warden Ford, Associate

Warden Canning, Captain Davis,

Lieutenant Danley, Food Service

Director Bragg, and Acting Warden

McCabe,

Defendants.

)

Civil Action No. 6:19-751-DCN-KFM

ORDER AND

REPORT OF MAGISTRATE JUDGE

This matter is before the court on the defendants’ motion for summary

judgment (doc. 141), and the plaintiffs motion to strike the defendants’ motion for summary

judgment (doc. 147). The plaintiff, a state prisoner proceeding pro se, brought this action

alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Pursuant to the

provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d)(D.S.C.), this

magistrate judge is authorized to review all pretrial matters in cases filed under Section

1983.

BACKGROUND

The plaintiff is an inmate at the South Carolina Department of Corrections

(“SCDC”), and he has been housed at different prisons within SCDC, including Kershaw

Correctional Institution (“Kershaw”). On March 4,2019, he filed a complaint against various

officers and employees at three SCDC prisons (see C.A. No. 6:19-cv-626, doc. 1). By

order dated March 12,2019, the initial case was severed into three separate actions, each

pertaining to the clams related to a particular prison, including this case involving claims

arising at Kershaw (doc. 1). After an unsuccessful interlocutory appeal (docs. 31,65), the

plaintiff filed an amended complaint on July 10, 2019 (doc. 57).

By orders dated

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Entry Number 165

Page 2 of 10

September 16,2019, and February 14,2020, the Honorable David C. Norton, United States

District Judge, dismissed some of the named defendants and some of the plaintiff’s claims

(docs. 79, 148). Accordingly, the remaining claims concern the plaintiffs conditions of

confinement against the following officers and employees at Kershaw: Acting Warden

Wayne McCabe, Associate Wardens Kevin Ford and Joseph Canning, Captain Benjamin

Davis, Lieutenant Derek Danley, and Food Service Director Mikel Bragg. The plaintiff

alleges in his amended complaint that since November 13, 2018, through and continuing

through the present date,1 the defendants violated his Eighth and Fourteenth Amendments

rights by subjecting him to unconstitutional conditions of confinement while in Kershaw’s

Restricted Housing Unit (“RHU”), including the lack of indoor and outdoor recreation and

exercise, an unhealthy and unsanitary cell without adequate lighting and cleaning

materials, a lack of haircuts, and cold, inadequate food (doc. 57, pp. 8-12). He further

alleges during this same period, the defendants “responded" to his numerous request to

staff member and grievance forms concerning these issues, denying his requests that these

conditions be corrected {id., pp. 9-11). He alleges that as a result of these conditions and

the defendants’ indifference and inaction to them, he suffered physical injuries and pain,

and he seeks actual and punitive damages {id. p. 13).

On October 16, 2019, the defendants filed an answer denying that they

violated the plaintiffs rights and raising the affirmative defense of the plaintiffs failure to

exhaust his administrative remedies (doc. 101). The plaintiff filed a reply on October 28,

2019, in which he cites cases on the issue of exhaustion, including the proposition that an

inmate must exhaust available remedies, but need not exhaust unavailable ones (doc. 107).

On January 28,2020, the defendants filed their motion for summary judgment

(doc. 141). By order filed January 29, 2020, pursuant to Roseboro v. Garrison, 528 F.2d

309 (4th Cir. 1975), the plaintiff was advised of the summary judgment procedure and the

possible consequences if he failed to respond adequately to the motion (doc. 142). The

The amended complaint is dated July 4, 2019 (doc. 57).

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plaintiff filed a motion to strike on February 10, 2020 (doc. 147), to which the defendants

filed a response in opposition on February 24, 2020 (doc. 155). The plaintiff filed his

response in opposition to the motion for summary judgment on March 4, 2020 (doc. 161),

to which the defendants filed a reply on March 11,2020 (doc. 163). The plaintiff filed a surreply on March 20, 2020 (doc. 164).

In support of their motion for summary judgment, the defendants argue that

the plaintiff failed to exhaust his administrative remedies. They point out that the plaintiff

arrived at Kershaw on November 13, 2018, and filed his initial complaint here on March 3,

2020, yet he failed to file administrative grievances in the interim for his claims of

inadequate lighting, the lack of outdoor recreation and exercise, and the lack of haircuts

and cleaning issues (doc. 141-2, Anderson aff.lHj 12,15,16). They also present evidence

that while the plaintiff did file an unsuccessful grievance about cold and inadequate food

on February 7, 2019, he failed to appeal it prior to filing his initial complaint here (id. If 13;

doc. 141-2, p. 26). Accordingly, they argue that the plaintiff failed to properly exhaust any

of his administrative remedies prior to filing this case.

The plaintiff filed a response in opposition to summary judgment arguing that

during this period the defendants, along with “gang-affiliated inmates,” interfered with his

legal mail - and apparently his grievances - in an attempt to "find his testimony" about a

riot (doc. 161-1, p. 5).

He also argues that the staff would purposely not give him

administrative grievance forms, so he wrote his own grievances on plain paper and made

copies for his file “because prison officials would not respond when the plaintiff was writing

the Wardens and Captain concerning RHU practices all to no avail” (id., pp. 7-9). With his

response in opposition, the plaintiff provides numerous exhibits dated outside the relevant

period of his arrival at Kershaw thorough the date he filed his initial complaint here

(November 13, 2018 - March 3, 2019). Of those exhibits dated within this relevant period,

many concern his allegations of mail interference related to his state case, which is not a

pleaded claim here (docs. 161-4, pp. 3-59).

Regarding his claims here, the plaintiff

provides only a step 1 grievance dated December 26, 2018, concerning food service and

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showers (doc. 161-5, p. 4); a handwritten “Statement of Grievance” dated February 1,2019,

on the lack of a haircut and cleaning supplies (doc. 161-7, p. 2); an inmate request form

dated February 4, 2019, requesting a haircut {id., p. 3); and “duplicate” request to staff

member forms dated February 4 and 8, 2019, concerning showers, unsanitary conditions,

and the lack of cleaning supplies {id., pp. 17-18).

The defendants filed a reply in support of their motion for summary judgment,

arguing that the plaintiff’s own exhibits show that he did not exhaust his administrative

remedies (doc. 163). The plaintiff then filed a sur-reply, stating again that SCDC’s

administrative remedies were unavailable, because he was not given grievance forms and

that, in any event, they would not have been processed or returned given his “knowledge

of mail interference” (doc. 164, p. 2).

APPLICABLE LAW AND ANALYSIS

Plaintiffs Motion to Strike

The plaintiff, citing Federal Rule of Civil Procedure 12, has moved to strike

the defendants’ motion for summary judgment on the basis that it is “improper,

inappropriate, redundant, and immaterial” (doc. 147).

However, Rule 12 pertains to

pleadings rather than motions, and it is thus inapplicable here.

In any event, the

undersigned has reviewed the motion for summary judgment and finds it to be in

compliance with Rule 56. Moreover, the plaintiff has filed a thorough response with

exhibits. Accordingly, the plaintiffs motion to strike (doc. 147) is denied.

Summary Judgment Standard

Federal Rule of Civil Procedure 56 states, as to a party who has moved for

summary judgment: “The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is

deemed “material” if proof of its existence or nonexistence would affect the disposition of

the case under the applicable law. Anderson v. Liberty Lobby, Inc., All U.S. 242, 248

(1986). An issue of material fact is “genuine” if the evidence offered is such that a

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reasonable jury might return a verdict for the non-movant. Id. at 257.

In determining

whether a genuine issue has been raised, the court must construe all inferences and

ambiguities against the movant and in favor of the non-moving party. United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of

demonstrating to the district court that there is no genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold

demonstration, the non-moving party, to survive the motion for summary judgment, may not

rest on the allegations averred in his pleadings; rather, he must demonstrate that specific,

material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the

existence of a mere scintilla of evidence in support of the plaintiff’s position is insufficient

to withstand the summary judgment motion. Anderson, 411 U.S. at 252.

Likewise,

conclusory allegations or denials, without more, are insufficient to preclude the granting of

the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of summary

judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

Exhaustion

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.

1321 (codified as amended at 42 U.S.C. § 1997e(a) (1996)), mandates, among other

things, that prisoners exhaust their administrative remedies prior to filing civil actions

concerning prison conditions under Section 1983 or any other federal law. See Jones v.

Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under

the PLRA and that unexhausted claims cannot be brought in court”). “[T]he PLRA's

exhaustion requirement is mandatory,” Anderson v.XYZCorr. Health Servs., /nc.,407 F.3d

674, 677 (4th Cir. 2005), and “applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002)

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The PLRA requires “proper exhaustion” of available administrative remedies

prior to filing suit. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006). As the Supreme Court

noted, “[aggrieved parties may prefer not to exhaust administrative remedies for a variety

of reasons," whether it be concerns about efficiency or “bad faith.” Id. at 89-90. This is

especially true in a prison context. Id. at 90 n.1.

Nevertheless, “[p]roper 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." Id. at 90-91.

“[A]n administrative remedy is not considered to have been available if a

prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Thus, an administrative remedy is considered

unavailable when: (1) “it operates as a simple dead end—with officers unable or

consistently unwilling to provide any relief to aggrieved inmates”; (2) it is “so opaque that

it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart

inmates from taking

advantage of a grievance

process through