United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on consideration of
Plaintiff's pro se complaint, filed pursuant to 42 U.S.C.
§ 1983. For the reasons that follow, Plaintiff's
complaint will be dismissed.
is a state inmate confined in the Marion Correctional
Institution and in his complaint he alleges he was jumped on
while in full restraints and that he was pepper-sprayed.
District courts are required to review a complaint under
Section 1983 when a prisoner “seeks redress from a
governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a). The statute further
provides that “the court shall identify cognizable
claims or dismiss the complaint, or any portion of the
complaint, if the complaint-(1) is frivolous, malicious, or
fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.” § 1915A(b)(1) & (2).
conducting this review, the Court must determine whether the
complaint raises an indisputably meritless legal theory or is
founded upon clearly baseless factual contentions, such as
fantastic or delusional scenarios. Neitzke v.
Williams, 490 U.S. 319, 327-28 (1989). While a pro se
complaint must be construed liberally, Haines v.
Kerner, 404 U.S. 519, 520 (1972), this requirement of
liberal construction will not permit a district court to
ignore a clear failure to allege facts in the complaint which
set forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990). Further, the Court is “not bound
to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265,
Prisoner Litigation Reform Act (“PLRA”) provides
that a prisoner must exhaust his administrative remedies
prior to the commencement of a civil action under
§ 1983. The PLRA provides, in pertinent part that
“[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.” 42 U.S.C.
Porter v. Nussle, 534 U.S. 516 (2002), the Supreme
Court held that the PLRA's exhaustion requirement applies
to all inmate suits about prison life and the Court found
that “exhaustion in cases covered by § 1997e(a) is
now mandatory.” Id. at 524 (citation omitted).
The Porter Court went on to stress that the
exhaustion requirement must be met before commencement of the
an inmate has properly exhausted his administrative remedies
is a matter to be determined by referencing the law of the
state where the prisoner is incarcerated. See Jones v.
Bock, 549 U.S. 199, 218 (2007) (“The level of
detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to
claim, but it is the prison's requirements, and not the
PLRA, that define the boundaries of proper
North Carolina, state prisoners must complete a three-step
administrative remedy procedure (the “ARP”) in
order to properly exhaust their administrative remedies.
See N.C. Gen. Stat. §§ 148-118.1 to
148-118.9 (Article 11A: Corrections Administrative Remedy
Procedure); Moore v. Bennette, 517 F.3d 717, 721
(4th Cir. 2008) (discussing the ARP).
complaint, Plaintiff admits that he did not appeal the denial
of his initial grievance for a Step Three determination.
See Policies and Procedures, Administrative Remedy
Procedure, Chapter G, § .0301 et seq.
Plaintiff explains he filed a second grievance before his
initial grievance completed Step Two of the ARP. (Compl. at
2). However, as the Policies and Procedurals manual provides,
an “inmate may submit a new grievance once the initial
grievance has completed Step 2 or has been resolved.”
Id. § .0304 (b). Because it plainly appears
that Plaintiff failed to exhaust his administrative remedies
in accordance with North Carolina law prior to filing his
complaint, Plaintiffs complaint will be dismissed.
the Court finds that Plaintiffs complaint may be dismissed
without prejudice on the merits as he has not named any
defendant amenable to suit. In other words, neither the
Marion Correctional Institution nor the State placed him in
THEREFORE, ORDERED that Plaintiffs complaint is DISMISSED
WITHOUT PREJUDICE (Doc No 1).
Clerk of Court is respectfully directed to ...