United States District Court, E.D. North Carolina, Western Division
OMER A. ALLAHIBI, Plaintiff,
C/O RIVERA, et al, Defendants.
C. DEVER III Chief United States District Judge
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].
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).
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).
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.
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.
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.
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