United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Webster United States Magistrate Judge.
Isaiah Fox, a prisoner of the State of North Carolina, seeks
monetary damages pursuant to 42 U.S.C. § 1983 for
alleged federal constitutional violations related to an
incident that occurred while in custody as a pre-trial
detainee. (See Amended Compl, Docket Entry 21.) Defendants,
Sheriff B.J. Barnes and Officer C. Cary (collectively,
"GCSO Defendants"), have filed a Motion to Dismiss
Plaintiffs Amended Complaint. (Docket Entry 22.) For the
reasons stated herein, the Court recommends that this motion
be converted to a motion for summary judgment, and be
Amended Complaint, Plaintiff alleges that on March 21, 2016,
he was injured as a result of an incident at the Guilford
County Jail ("Greensboro Jail"). (Am. Compl.,
Docket Entry 21.) Plaintiff states that Defendant Cary
"came to let Plaintiff out of cell for and [sic] hour
recreation [and] shower." (Id. at 1.) Before
walking downstairs to the lower tier, Plaintiff states that
Defendant Cary "placed [P]laintiff in handcuffs, placed
[a] chain around the waist of [P]laintiff [and] shackles on
[P]laintiff['s] ankles." (Id. at 2.)
Plaintiff alleges that he warned Defendant Cary that jail
officers are required to provide adequate safety to pre-trial
detainees in such situations and that Defendant Cary
responded, "[d]on't tell me how to do my job."
(Id.) Plaintiff states that Defendant Cary failed to
assist Plaintiff and that Defendant Cary did not provide
adequate safety to Plaintiff, resulting in a violation of his
Due Process rights under the Fourteenth Amendment.
also asserts that, as he was walking down the stairs, he
stated that his restraints were "too tight,"
"unfit," and "uncomfortable" to which
Defendant Cary replied that the restraints were not too
tight. (Id. at 3.) As such, Defendant Cary was aware
of the risk of harm and showed deliberate indifference to
this harm. (Id. at 2-3.) As he was walking down the
stairs, Plaintiff "loss [sic] balance, slipped [and]
fell downstairs, as a result of defendant(s) not taking full
responsibility in providing Plaintiff adequate safety."
(Id. at 3.) He immediately "felt [a] sharp pain
in [his] lower back," that he claims is now permanent,
as well as pain and swelling of his left leg, ankle and arm
that lasted for several days. (Id.)
alleges that the incident could have been prevented if
Defendant Barnes "would have upheld [and] obeyed Policy,
N.C. [General Statutes], [and the] 14th Amendment by
enforcing policy," and "training staff adequately
to be aware of the risk of harm [and] to keep inmates
safe." (Id.) In his prayer for relief,
Plaintiff asks for compensatory damages from GCSO Defendants
in the amount of $350, 000 "jointly and severally"
or $175, 000 against each Defendant. (Id. at 4.)
the alleged incident, Plaintiff states that he submitted
grievances to jail officials on March 24, 2016 and April 18,
2016. (Id.) He also makes reference to a Guilford
County Sheriffs Office Detention Bureau Inmate Request Form
("Inmate Request Form"), dated September 25, 2016,
in which Plaintiff describes the alleged events of March 21,
2016 and which Plaintiff captions "Grievance About a
Complaint." (Id.; see also Docket Entry 2 at
8.) Plaintiff states that he never received a response to the
Inmate Request Form. (Am. Compl. at 4.)
Defendants filed their Motion to Dismiss the Amended
Complaint on October 11, 2017. (Docket Entry 23.) Defendants
included affidavits and other attachments in support of their
filings. (Docket Entries 23-1, 23-2, 23-3, 23-4.) On October
30, 2017, Plaintiff filed a document, with an attached
affidavit from another inmate, which the Court construes as
an opposition brief in response to Defendants' Motion to
Dismiss. (Docket Entry 26.) Defendants thereafter
filed a reply. (Docket Entry 27.) On June 5, 2018, this Court
issued an order giving all parties notice of the Court's
intention to consider construing Defendants' Motion to
Dismiss as a motion for summary judgment solely on the issue
of whether Plaintiff exhausted administrative remedies.
(Docket Entry 29.) After receiving additional time to submit
any other material on this issue (id.), Plaintiff filed a
supplemental response on June 27, 2018. (Docket Entry 30.)
Defendants filed an objection and reply to Plaintiffs
response on July 5, 2018. (Docket Entry 32.)
Defendants' Motion to Dismiss Should be Converted to a
Motion for Summary Judgment.
to Rule 12(d), when matters outside the pleadings are
submitted with a motion to dismiss for failure to state a
claim upon which relief can be granted, "the motion must
be treated as one for summary judgment under Rule 56."
Fed.R.Civ.P. 12(d) (2017); Gay v. Wall, 761 F.2d
175, 177 (4th Or. 1985). Furthermore, "[a]ll parties
must be given reasonable opportunity to present all material
that is pertinent to the motion." Fed.R.Civ.P. 12(d).
When determining the requirements for the term
"reasonable opportunity", the Fourth Circuit has
held that all parties be given '"some indication by
the court . . . that it is treating the 12(b)(6) motion as a
motion for summary judgment,' with the consequent right
in the opposing party to file counter affidavits or pursue
reasonable discovery." Johnson v. RAC Corp.,
491 F.2d 510, 513 (4th Or. 1974) (quoting Dale v.
Hahn, 440 F.2d 633, 638 (2d Cir. 1971)). "Once
notified, a party must be afforded a 'reasonable
opportunity for discovery' before a Rule 12(b)(6) motion
may be converted and summary judgment granted." Gay, 761
F.2d at 177; see also Johnson, 491 F.2d at 515.
"Converting a motion to dismiss into a motion for
summary judgment... applies only to a motion made pursuant to
Rule 12(b)(6)." Wilson-Cook Med., Inc. v.
Wilson, 942 F.2d 247, 252 (4th Cir. 1991).
both parties submitted affidavits for the Court's
consideration regarding GCSO Defendants' motion to
dismiss. After the Court placed the parties on notice of its
intent to construe GCSO Defendants' motion to dismiss as
a motion for summary judgment solely on the issue of
exhaustion of administrative remedies, Plaintiff filed a
supplemental response brief asserting that he recently
submitted several requests for grievance forms and was
denied. (Docket Entry 30.) Plaintiff attached several Inmate
Request Forms to support this assertion. (Id. at
2-7.) Considering that both parties have submitted documents
outside the Complaint and Plaintiff has been given a
reasonable opportunity to present material relevant to the
issue of exhaustion of his administrative remedies, the
undersigned finds that GCSO Defendants' motion to dismiss
should be converted to a motion for summary judgment, and be
Plaintiff Did Not Exhaust His Administrative Remedies.
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(c); Zahodnick v.
Int'lBus. Machs. Corp., 135 F.3d 911, 913 (4th Or.
1997). The party seeking summary judgment bears the initial
burden of coming forward and demonstrating the absence of a
genuine issue of material fact. Temkin v. Frederick
County Comm'rs,945 F.2d 716, 718 (4th Cir. 1991)
(citing Celotex v. Catrett,477 U.S. 317, 322
(1986)). Once the moving party has met its burden, the
non-moving party must then affirmatively demonstrate that
there is a genuine issue of material fact which requires
trial. Matsushita Elec. Indus. 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 fact finder to return a verdict for
that party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert
County, Md.,48 ...