United States District Court, W.D. North Carolina, Statesville Division
D WHITENY UNITED STATES DISTRICT JUDGE.
MATTER is before the Court following the filing of
Plaintiff's Step-Three response to the denial of his
written grievance, and his motion for reconsideration of the
Order dismissing his § 1983 complaint for failure to
exhaust. (5:15-cv-00106, Doc. No. 16-1, Doc. No.
is a prisoner of the State of North Carolina and was so at
the time that he filed his complaint pursuant to 42 U.S.C.
§ 1983. Accordingly, Plaintiff is bound by the mandatory
requirements of the Prisoner Litigation Reform Act
(“PLRA”) which 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. § 1997e(a).
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 noted
that “exhaustion in cases covered by § 1997e(a) is
now mandatory.” Id. at 524 (citing Booth
v. Churner, 532 U.S. 731, 739 (2001)). The
Porter Court went on to stress that the exhaustion
requirement must be met before commencement of the suit.
Id. Whether 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 housed
and where the allegations supporting the complaint arose.
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
Fourth Circuit has determined that the PLRA does not require
that an inmate allege or demonstrate that he has exhausted
his administrative remedies. Anderson v. XYZ Corr.
Health Servs., 407 F.3d 674 (4th Cir. 2005).
Indeed, failure to exhaust administrative remedies is an
affirmative defense, but the Court is not prohibited from sua
sponte examining the issue of exhaustion in reviewing the
complaint. As the Fourth Circuit observed:
[A]n inmate's failure to exhaust administrative remedies
is an affirmative defense to be pleaded and proven by the
defendant. That exhaustion is an affirmative defense,
however, does not preclude the district court from dismissing
a complaint where the failure to exhaust is apparent from the
face of the complaint, nor does it preclude the district
court from inquiring on its own motion into whether the
inmate exhausted all administrative remedies.
407 F.3d at 683.
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.
§§ 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).
present case, Plaintiffs complaint was filed on or about
August 6, 2015, (see Doc. No. 1); however his
Step-Three response is dated February 12, 2016, therefore
Plaintiff could not have exhausted his administrative
remedies prior to filing his § 1983 complaint.
Further, “a prisoner does not comply with the mandatory
requirements of 42 U.S.C. § 1997e(a) by exhausting his
administrative remedies during the course of litigation;
exhaustion must occur before the filing of the lawsuit, or
the case must be dismissed.” Woodward v.
Daughtry, 845 F.Supp.2d 681, 684 (W.D. N.C. 2012)
(citing Moore, supra at 725)).
prison officials explained in its Step One response,
Plaintiffs complaints were made the subject of an internal
investigation and the Step Three response noted the
investigation had been completed and Plaintiffs grievance was
dismissed for lack of sufficient evidence. (Doc. No. 12-1:
Step One Response; Doc. No. 16-1: Step Three Response). That
Plaintiff may have been eager to pursue his § 1983
complaint prior to the completion of the ARP does not excuse
him from the mandatory exhaustion requirements of the PLRA.
is advised that he may file a new § 1983 complaint since
it is apparent that he has now exhausted his administrative
remedies if he chooses to do so.
IS, THEREFORE, ORDERED that Plaintiffs motion for
reconsideration is DENIED. (Doc. No. 19).
IS FURTHER ORDERED that the Clerk mail Plaintiff an
Application to Proceed without Prepayment of Fee or Costs ...