United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
the court is the motion for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure filed by James
McRae, Layton Oxendine, Steve Lowry, Eric J. Powell and John
P. Hunt ("movants"). [DE 35]. On August 14, 2017,
United States Magistrate Judge Robert T. Numbers, II, issued
a Memorandum and Recommendation ("M&R"),
recommending the court deny the motion. [DE 63]. Also before
the court is the motion for summary judgment [DE 57] filed by
Eric Bullard and Tony Lowery and plaintiff Lilton
Williams' "response to motion for order on
scheduling"[DE 62], which the court construes as a
motion to set the case for trial.
a former state inmate proceeding pro se, brings this action
pursuant to 42 U.S.C. § 1983 against McRae, Oxendine,
Lowry, Powell, Hunt, Lowery and Bullard, state correctional
officers at Lumberton Correctional Institution
("Lumberton CI"). Plaintiff alleges three claims
arising out events that occurred at Lumberton CI on March 24,
2015. First, plaintiff alleges Hunt, Oxendine, Bullard and
Lowery used excessive force against him in violation of the
Eighth Amendment of the United States Constitution without
need or provocation. Compl. at 8 ¶ 29 (Count One). In
particular, plaintiff alleges Hunt beat him outside the
jail's vocational building without justification and
later that same day, he sustained a second unjustified
beating in a holding cell by Oxendine, Bullard and Lowery.
Second, he alleges bystander liability against McRae, Lowry
and Powell due to their failure to protect him from the use
of excessive force while in the holding cell. Id. at
9 ¶ 30 (Count Two). Third, he alleges McRae, Oxendine,
Lowry, Powell, Bullard and Lowery denied him medical care.
Id. at 8 ¶ 30 (Count Three).
November 4, 2016, movants moved for summary judgment,
asserting (1) plaintiff failed to exhaust his administrative
remedies, (2) Hunt did not use excessive force against
plaintiff and (3) entitlement to qualified immunity.
Subsequently, Judge Numbers entered an M&R, recommending
that the court deny summary judgment on all three grounds.
Judge Numbers observed that movants failed to address the
excessive force claim against Oxendine and completely ignored
counts two and three despite these grounds being clearly pled
in the complaint and identified in the screening order under
28 U.S.C. § 1915A. See M&R at 7; see also
Compl. at 1 ¶¶ J-K, at 4-5 ¶¶ 25-28;
Memorandum & Order at 2-4 [DE 7]. On August 28, 2017,
movants filed objections to the M&R. [D.E. 64].
court may "designate a magistrate judge ... to submit...
proposed findings of fact and recommendations for the
disposition [of a motion for summary judgment]." 28
U.S.C. § 636(b)(1)(B). The parties may object to the
magistrate judge's findings and recommendations, and the
court "shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made."
Id. § 636(b)(1); see Fed.R.Civ.P. 72(b)(3);
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Absent a specific and timely objection, the court reviews
only for "clear error" and need not give any
explanation for adopting the M&R. Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310.315 (4th Cir.
2005): Camby v. Davis, 718 F.2d 198, 200 (4th Cir.
1983). Upon careful review of the record, "the court may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1).
first object to Judge Numbers' conclusion that the claims
arising from the March 24, 2015 incident should not be
dismissed for failure to exhaust because conduct by prison
officials prevented plaintiff from completing the grievance
process. It is undisputed that plaintiff failed to exhaust
his administrative remedies. Plaintiff argues, however, that
his efforts to complete the grievance process were obstructed
at Lumberton CI.
inmate need only exhaust those administrative remedies that
are "available" to him. 42 U.S.C. §1997e(a).
Grievance procedures become unavailable when prison officials
thwart a prisoner's efforts to exhaust his remedies. See
Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016);
see, e.g.. Mitchell v. Horn, 318 F.3d 523,
529 (3rd Cir. 2003) (reversing a district court's
dismissal of a section 1983 case because it did not consider
the plaintiffs allegation that prison officials refused to
provide him with the grievance forms). Under such
circumstances, exhaustion is not a prerequisite for
initiation of a civil rights action. See Ross,
136S.Ct. at 1859-60. The inmate bears the burden of
establishing that an administrative remedy was unavailable.
Graham v. Gentry, 413 F.App'x 660, 663 (4th Cir.
to movants, plaintiff "admitted that he failed to submit
a grievance while confined at Lumberton [CI] then he assumed
he could not file a grievance related to the incident while
confined at Lanesboro Correctional Institution." Obj. at
4. In support, movants point to the checked line on the form
complaint indicating plaintiffs "belie[f]" that he
had no administrative remedies at Lanesboro Correctional
Institution. Compl. § II [D.E. 1]. Movants' argument
on this point is weak at best. As Judge Numbers noted,
plaintiff submitted evidence in the form of his sworn
response to the instant motion that prison officials
"intentionally disregarded" his grievances,
including a grievance from plaintiff that North
Carolina's then-Director of Prisons, George Solomon,
forwarded to Lumberton CI. See M&R at 9; PL's
Resp. at 2, 10-11. Movants fail to address these allegations
aside from labeling them as "conclusory." Obj. at
summary judgment stage, the court construes the evidence in
the light most favorable to the nonmoving party and draws all
reasonable inferences in the non-movant's favor.
Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986).
Here, plaintiff does not simply allege that prison staff
ignored his grievances "without providing any details
regarding the date the alleged grievances were submitted or
to whom they were submitted." McMillian v. N.C.
Cent. Prison, No. 5:10-CT-3037-FL, 2013 WL 1146670, at
*5 (E.D. N.C. Mar. 19, 2013). Rather, he swears that he
submitted a grievance to Mr. Solomon, who in turn forwarded
it to Lumberton CI, and implies he was incarcerated at
Lanesboro CI at that time. Cf Pickens v. Lewis, No.
1:15-CV-275-FDW, 2017 WL 3277121, at *4 (W.D. N.C. Aug. 1,
2017) (holding plaintiffs "unsworn, conclusory
allegation . . . unidentified 'prison staff, ' at
unidentified times, at unidentified [state prison]
facilities" interfered with his ability to exhaust
administrative remedies failed to create a genuine issue of
material fact) (collecting cases). Moreover, there is no
countervailing evidence before the court that affirmatively
undermines plaintiffs version of events. As a result, the
court concludes there is a genuine issue of material fact
regarding whether the necessary administrative remedies were
available to plaintiff with respect to the incident in
question. Accordingly, this objection is overruled.
movants object to Judge Numbers' conclusion that fact
issues preclude summary judgment on the excessive force claim
against Hunt. See Obj. at 5-7; M&R at 11-13. In support
of this objection, movants cite to Hunt v. Grady,
No. 5:12-CV-144-RJC, 2014 WL 4829067, at *3 (W.D. N.C. Sept.
29, 2014). However, that case is factually distinguishable
from this action. In Hunt, the court had the benefit
of a video of the incident that "blatantly
contradicted" the plaintiffs sworn version of the
events. Id. at *4 n.6. Here, the evidence is limited
to the contradictory sworn statements of Hunt and plaintiff.
See M&R at 13 (observing that "this case
presents two irreconcilable versions of the events of March
24, 2015"). This distinction is determinative.
Accordingly, this objection is overruled.
ask for additional time for the parties to submit evidence
related to the exhaustion issue in light of plaintiff s
erroneous statements that he attached relevant documents as
exhibits to his complaint. Obj. at 5; see Compl. § II
("Exhibit attached as of 5/18/15 pertaining to 3/25/15
incident."); Resp. at 2 (stating "[t]hese actions
[i.e., grievance filings] w[ere] presented to the courts with
my filing of my' 1983' application as an
exhibit"). Movants also seek leave to file supplemental
dispositive motions to address counts two and three.
See Obj. at 7 (citing Order, Blevins v.
Thornton, No. 5:15-CT-3265-BO, [D.E. 44] (E.D. N.C. ...