United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN STATES DISTRICT JUDGE
matter is before the court on defendant's motion for
summary judgment (DE 29). The issues raised have been fully
briefed and are ripe for adjudication. For the following
reasons, the court grants defendant's motion for summary
judgment, and dismisses the action without prejudice.
OF THE CASE
February 9, 2016, plaintiff, a state inmate, filed this civil
rights action pro se pursuant to 42 U.S.C. §
1983 against defendant Dr. Margaret Bowen
(“defendant”). Plaintiff made the following
allegations arising out of events he asserts occurred on
October 20, 2014, at the Central Prison Healthcare Complex:
[Defendant] forced me to drink a cup of cha[r]coal by writing
a order for ch[ar]coal to be given by force, after been told
by her nurse Jennifer Olivera, RN why I was refusing to drink
the ch[ar]coal and what type of significant problem that it
would present and cause (by force means strapping me down in
four point restraints and insert a NG Tube up my nose and
down my throat until it reaches my stomach). I passed out and
became unconscious and unresponsive (drug induced coma), I
was put on IV fluids and rushed to Rex hospital. While I was
unconscious and unresponsive, I aspirated (threw up) badly
and the ch[ar]coal got all within my lungs cutting off my
airwaves, this giving me Aspiration Pneumonia.
(Compl. ¶ V). Plaintiff subsequently filed a motion to
appoint counsel. On April 29, 2016, the court denied
plaintiff's motion to appoint counsel and allowed him to
proceed with his action against defendant.
September 13, 2016, defendant filed a motion for summary
judgment arguing that plaintiff's action should be
dismissed because plaintiff failed to exhaust his
administrative remedies pursuant to 42 U.S.C. §
1997e(a). Plaintiff also filed a Statement of Material Facts
and an appendix which included an affidavit from Finesse G.
Couch, who is employed by the North Carolina Department of
Public Safety (“DPS”) as the Executive Director
of the North Carolina Grievance Resolution Board.
Standard of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). There is no issue
for trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
Exhaustion of Administrative Remedies Title 42 U.S.C. §
1997e(a) of the Prison Litigation Reform Act
(“PLRA”) requires a prisoner to exhaust his
administrative remedies before filing an action under 42
U.S.C. § 1983 concerning his confinement. Ross v.
Blake, __ U.S. __, 136 S.Ct. 1850, 1856 (2016)
(“[A] court may not excuse a failure to exhaust, even
to take [special circumstances] into account.”);
Woodford v. Ngo, 548 U.S. 81, 83-85 (2006); see
Jones v. Bock, 549 U.S. 199, 217 (2007) (“failure
to exhaust is an affirmative defense under [42 U.S.C. §
1997e]”). The PLRA states 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 .
. . until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a); see
Woodford, 548 U.S. at 84. Exhaustion is mandatory.
Woodford, 548 U.S. at 85; Porter v. Nussle,
534 U.S. 516, 524 (2002) (“Once within the discretion
of the district court, exhaustion in cases covered by §
1997e(a) is now mandatory.”); Anderson, 407
F.3d at 677. A prisoner must exhaust his administrative
remedies even if the relief requested is not available under
the administrative process. Booth v. Churner, 532
U.S. 731, 741 (2001). “[U]nexhausted claims cannot be
brought in court.” Jones, 549 U.S. at 211.
a three step administrative remedy procedure which governs
the filing of grievances. See, e.g., Moore v.
Bennette, 517 F.3d 717, 721 (4th Cir. 2008). The
DPS's Administrative Remedy Procedure (“ARP”)
first encourages inmates to attempt informal communication
with responsible authorities at the facility in which the
problem arose. DOC ARP § .0301(a). If informal
resolution is unsuccessful, the DPS ARP provides that any
inmate in DPS custody may submit a written grievance on Form
DC-410. DOC ARP § .0310(a). If the inmate is not
satisfied with the decision reached at the step one level of
the grievance process, he may request relief from the
Facility Head. Id. at § .0310(b)(1). If the
inmate is not satisfied with the decision reached by the
Facility Head, he may appeal his grievance to the Secretary
of Correction through the inmate grievance examiner.
Id. § .0310(c)(1). The decision by the [Inmate
Grievance Examiner] or a modification by the Secretary of
Correction shall constitute the final step of the
Administrative Remedy Procedure. Id. §
case, the record reflects that plaintiff filed two
grievances. Plaintiff completed the administrative remedy
process for his first grievance, number 4290-3-15-142, prior
to the date he filed the instant action. However, grievance
number 4290-3-15-142 pertains to medical care plaintiff
received from Dr. Clifford A. Curtis for chronic pain and
does not relate in any way to the instant allegations that
defendant violated the Eighth Amendment when she made the
decision to pump plaintiff's stomach. (See Couch
Aff. Ex. A). ...