United States District Court, E.D. North Carolina, Western Division
S. SHANE SMITH, Plaintiff,
L. CARTER, DONALD MOBLEY, DR. CLIFFORD CURTIS, NURSE FLEMMING, and THE NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Defendants.
W. FLANAGAN United States District Judge.
matter is before the court on defendant's motion for
summary judgment or motion to dismiss (DE 32), which was
fully briefed. Also before the court is plaintiff's
pleading captioned “Plaintiff's Request for a
Waiver of Rules and Request for a Hearing/Telephonic
Conference” (DE 42) and motion for a bench trial (DE
45). Defendants did not respond to plaintiff's motions.
In this posture, the issues raised are ripe for adjudication.
For the following reasons, the court rules as follows.
OF THE CASE
29, 2016, plaintiff, a state inmate, filed this civil rights
action pro se pursuant to 42 U.S.C. § 1983
alleging that defendants L. Carter, Donald Mobley, Dr.
Clifford Curtis (“Curtis”), Nurse Flemming, and
the North Carolina Department of Public Safety
(“DPS”) acted with deliberate indifference to his
serious medical needs in violation of the Eighth Amendment to
the United States Constitution. Plaintiff subsequently moved
for appointment of counsel and for a temporary restraining
order or for a preliminary injunction. On September 13, 2016,
the court conducted a frivolity review of plaintiff's
action pursuant to 28 U.S.C. § 1915 and allowed
plaintiff to proceed. The court also denied plaintiff's
motion to appoint counsel and directed defendants to respond
to plaintiff's motion for injunctive relief. Defendants
responded to plaintiff's motion for injunctive relief on
September 27, 2016, and plaintiff replied. On October 20,
2016, the court denied plaintiff's request for injunctive
relief. Defendant Curtis then moved for a consent protective
order governing the production of confidential materials,
which the court allowed.
December 20, 2016, defendant Curtis filed a motion for
summary judgment solely arguing that plaintiff failed to
exhaust his administrative remedies pursuant to 28 U.S.C.
§ 1997e(a). Alternatively, defendant Curtis seeks
dismissal of plaintiff's action pursuant to Federal Rules
of Civil Procedure 12(b)(1), (3) on the grounds that
plaintiff is attempting to enforce a settlement agreement
reached in Smith v. Beck, No. 5:07-CT-3034-FL (E.D.
N.C. March 25, 2011) (“Smith I ”), which
must be brought as an action for breach of contract in state
court. In support, defendants submitted a Statement of No
Material Facts and an Appendix which included an affidavit
from Finesse G. Couch-the Executive Director of the North
Carolina Inmate Grievance Resolution Board. (Couch Aff.
¶ 2). Plaintiff subsequently filed a pleading captioned
“Plaintiff's Request for a Waiver of Rules and
Request for a Hearing/Telephonic Conference.” Plaintiff
contemporaneously responded to defendants' motion for
summary judgment and attached a personal declaration.
Defendants then replied. On March 15, 2017, plaintiff filed a
motion for a bench trial.
Motion for Summary Judgment
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
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.
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.
plaintiff attests that he submitted grievances regarding
defendant Curtis' alleged failure to provide him with
medical supplies needed to care for plaintiff's genetic
medical condition on August 15, 2015, May 10, 2016, and July
15, 2016. (Pl. Aff. ¶¶ 3, 4). Plaintiff further
attests that prison officials ignored each grievance, and
there is no indication in the record that any of
plaintiff's grievances were accepted or processed.
(See i d .; Couch Aff.). Thus, the court DENIES
defendant's motion for summary judgment based on