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Allahibi v. Rivera

United States District Court, E.D. North Carolina, Western Division

April 6, 2017

OMER A. ALLAHIBI, Plaintiff,
v.
C/O RIVERA, et al, Defendants.

          ORDER

          JAMES C. DEVER III Chief United States District Judge

         On June 1, 2016, Magistrate Judge Numbers issued a Memorandum and Recommendation ("M&R") [D.E. 16]. In that M&R, Judge Numbers recommended that the court dismiss Omer A. Allahibi's ("Allahibi") 42 U.S.C. § 1983 complaint without prejudice for failure to exhaust administrative remedies. On June 20, 2016, Allahibi filed objections to the M&R [D.E. 17].

         "The Federal Magistrates Act requires a district court to make a de novo detennination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (emphasis, alteration, and quotation omitted); see 28 U.S.C. § 636(b). Absent a timely objection, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Diamond. 416F.3dat315 (quotation omitted). Moreover, the court need not conduct a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson. 687 F.2d 44, 47 (4th Cir. 1982); see Wells v. Shriners Hosp.. 109 F.3d 198, 200-01 (4th Cir. 1997). "Section 636(b)(1) does not countenance a form of generalized objection to cover all issues addressed by the magistrate judge; it contemplates that a party's objection to a magistrate judge's report be specific and particularized, as the statute directs the district court to review only those portions of the report or specified proposed findings or recommendations to which objection is made." United States v. Midgette. 478 F.3d 616, 621 (4th Cir. 2007) (emphasis and quotation omitted).

         Judge Numbers recommended that Allahibi's claims be dismissed without prejudice because he had not exhausted his administrative remedies. See M&R [D.E. 16] 3-4. The Prison Litigation Reform Act of 1995 ("PLRA") requires a prisoner to exhaust administrative remedies "regardless of the relief offered through administrative procedures." Booth v. Churner. 532 U.S. 731, 741 (2001). "[E]xhaustion is mandatory under the PLRA and.. .unexhausted claims cannot be brought in court." Jones v. Bock. 549 U.S. 199, 211 (2007); see Ross v. Blake. 136 S.Ct. 1850, 1856-57 (2016). Failure to exhaust administrative remedies is an affirmative defense a defendant generally must plead and prove. See Anderson v. XYZ Corr. Health Servs.. 407 F.3d 674.681 (4th Cir. 2005).

         Section 1997e(a) requires an inmate to exhaust his administrative remedies before filing suit. See Ford v. Johnson. 362 F.3d 395, 398 (7th Cir. 2004); Johnson v. Jones. 340 F.3d 624, 626-28 (8th Cir. 2003). When an inmate files suit early, courts typically dismiss the action without prejudice. See, e.g., Ford. 362 F.3d at 401; Johnson v. Cannon. No. 4:08-776-PMD, 2010 WL 936706, at *8 (D.S.C. Mar. 15, 2010) (unpublished); Shouse v. Madsen. No. 7:09-cv-00461, 2010 WL 276543, at *2 (W.D. Va. Jan. 19, 2010) (unpublished). A dismissal without prejudice allows the prisoner an opportunity to exhaust the administrative process and then file a new suit, if the prisoner so chooses.

         In Ross, the Supreme Court emphasized the PLRA's "mandatory language" concerning exhaustion. Ross. 136 S.Ct. at 1856-57 (stating that "mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion"). Nevertheless, the Court identified "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. at 1859. First, an administrative remedy may be unavailable when "it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. Second, a remedy might be "so opaque that it becomes, practically speaking, incapable of use" because "no ordinary prisoner can discern or navigate it" or "make sense of what it demands." Id. (citations omitted). Third, an administrative remedy may be unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860.

         Allahibi concedes in his complaint that he did not exhaust his administrative remedies before filing this action. Compl. [D.E. 1] 2. Likewise, the exhibits attached to his objections confirm this fact. See Pl's Exs. [D.E. 17-1]. Finally, nothing suggests that administrative remedies were unavailable to Allahibi. Indeed, he exhausted his administrative remedies after he filed this action. Id.

         In sum, after reviewing the M&R, the record, and Allahibi's objections, the court is satisfied that there is no clear error on the face of the record. Accordingly, Allahibi's objections [D.E. 17] are OVERRULED, and the court adopts the conclusions in the M&R [D.E. 16]. Allahibi's ...


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