United States District Court, E.D. North Carolina, Western Division
C. DEVER, III CHIEF UNITED STATES DISTRICT JUDGE.
March 15, 2016, Kevin Cornilius Cox, Jr., ("Cox" or
"plaintiff'), a state inmate proceeding pro se and
in forma pauperis, filed a complaint under 42 U.S.C. §
1983 together with several exhibits [D.E. 1, 1 -1, 2, 9]. On
September 22, 2016, the court reviewed the complaint under 28
U.S.C. § 1915A and allowed the action to proceed [D.E.
11]. On February 10, 2017, defendants McCargo, Teel and
Mebane answered the complaint [D.E. 26]. On May 9, 2017, the
court dismissed Cox's claims against defendant White
pursuant to Federal Rule of Civil Procedure 12(b)(6), and set
a deadline of May 31, 2017, for any further motions [D.E.
33], On May 31, 2017, the remaining defendants moved for
summary judgment [D.E. 34] and submitted the affidavit of
Finesse G. Couch [D.E. 37-1], Executive Director of the North
Carolina Inmate Grievance Resolution Board
("IGRB"), together with affidavits from two
defendants and other exhibits [D.E. 37-2, 37-3]. Pursuant to
Roseboro v. Garrison. 528 F.2d 309, 310 (4th Cir.
1975) (per curiam), the court notified Cox about the motion,
the consequences of failing to respond, and the response
deadline [D .E. 31 ]. On June 12, 2017, Cox responded in
opposition [D.E. 3 9]. As explained below, the court grants
in part the motion for summary judgment, and dismisses the
action without prejudice for failure to exhaust
"a practicing Muslim" seeking a legal name change
"for religious reasons." Compl. at 4. In 2011, the
North Carolina legislature amended the process for applying
for a legal name change to require an applicant to submit a
criminal history background check with fingerprints.
See Change of Name-Criminal History Record
Information, S.L. 2011-303, § 1, eff. June 24, 2011
(codified at N.C. Gen. Stat. § 101-5); see also [D.E.
1-1] 3 (grievance response). "The clerk shall instruct
the applicant on the process for having fingerprints taken
and submitted for the criminal history record check,
including providing information on law enforcement agencies
or acceptable service providers." N.C. Gen. Stat. §
101-5(b). Cox contacted the Bertie County Clerk of Superior
Court, and defendant White, a deputy clerk, provided him with
the address for the Bertie County Sheriff s Office. See
Compl. at 3: [D.E. 1-1] 1. The Bertie County Sheriff s Office
did not respond to Cox's letter. Compl. at 3. Cox also
made "many request[s]" for assistance to his former
case manager, defendant Teel. Id. Teel spoke with
defendant Mebane, who "said he'll do the
fingerprinting but he got to get permission from [defendant]
Mr. [McCargo]." Id. at 3-4; see [D.E. 1-1] 2.
McCargo "disregarded my/our request... and pointed us in
the direction of Bertie County Clerk of Courts." Compl.
at 4. Cox seeks injunctive relief and monetary damages.
Id. at 4-5.
North Carolina Department of Public Safety ("DPS")
provides a three-step administrative-remedy procedure for
prisoner grievances. See Couch Aff., Ex. A [D.E. 37-1] 3-13
(DPS Administrative Remedy Procedure policy); see also
Moore v. Bennette. 517 F.3d 717, 721 (4th Cir. 2008)
(describing the three steps). Between January 1, 2015, and
December 22, 2016, Cox completed six three-step appeals.
Couch Aff. [D.E. 37-1] ¶ 7 & Ex. B [D.E. 3/7-1]
14-56 (complete grievance records). These six three-step
appeals do not relate to the allegations of Cox's
complaint. Cox contends that the step one response to his
grievance concerning the name-change process "was a
'stonewall[, ]'" Compl. 1, but does not further
elaborate on why he was unable to fully exhaust his
judgment is appropriate when the record as a whole reveals 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. Inc.. 477 U.S. 242,
247-48 (1986). The party seeking summary judgment initially
must demonstrate the absence of a genuine issue of material
fact or the absence of evidence to support the nonmoving
party's case. Celotex Corp. v. Catrett. 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party may not rest on the allegations or
denials in its pleading, Anderson. 477 U.S. at
248-49, but "must come forward with specific facts
showing that there is a genuine issue for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A
trial court reviewing a motion for summary judgment should
determine whether a genuine issue of material fact exists.
Anderson. 477 U.S. at 249. In making this
determination, the court must view the evidence and the
inferences drawn therefrom in the light most favorable to the
nonmoving party. Scott v. Harris. 550 U.S. 372, 378
contend that Cox failed to exhaust administrative remedies
before filing suit. Mem. Supp. Mot. Summ. J. [D.E. 35] 8-11.
The Prison Litigation Reform Act of 1995 ("PLRA")
states that "[n]o action shall be brought with respect
to prison conditions under section 1983 ..., or any other
Federal law, by a prisoner... until such administrative
remedies as are available are exhausted." 42 U.S.C.
§ 1997era): see Ross v. Blake. 136 S.Ct. 1850,
1856 (2016); Woodford v. Ngo, 548 U.S. 81, 83-85
(2006); Porter v. Nussle. 534 U.S. 516, 524 (2002).
"[T]he PLRA's exhaustion requirement applies to all
inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong." Porter.
534 U.S. at 532. The 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. 136 S.Ct. at 1856-57. Failure
to exhaust administrative remedies is an affirmative defense
that a defendant must generally plead and prove. See
Jones. 549 U.S. at 216; Custis v. Davis.
851 F.3d 358, 361 (4th Cir. 2017); Anderson v. XYZ
Correction Health Servs.. 407 F.3d 674, 681 (4th Cir.
2005), abrogation on other grounds
recognized by Custis. 851 F.3d at 362-63.
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"). Cox has not presented any circumstance
excusing his failure to comply with the administrative remedy
procedure. Cf Id. at 1859. Furthermore, the
grievance procedure was available to Cox. C£
Id. (identifying "three kinds of circumstances
in which an administrative remedy, although officially on the
books, is not capable of use to obtain relief);
Moore. 517 F.3d at 725. Additionally, the DPS's
administrative remedy procedure is not "so opaque that
it becomes, practically speaking, incapable of use, "
and the grievance responses did not lead Cox to reasonably
believe that he had properly exhausted his administrative
remedies. C£ Ross. 136 S.Ct. at 1859. Thus,
the court grants defendants' motion for summary judgment
and dismisses Cox's complaint without prejudice. Because
Cox failed to exhaust his administrative remedies, the court
declines to address the merits of his claims.
the court GRANTS IN PART the motion for summary judgment
[D.E. 34] and DISMISSES the action WITHOUT PREJUDICE for
failure to exhaust ...