United States District Court, W.D. North Carolina, Asheville Division
ORDER
Frank
D. Whitney Chief United States District Judge.
THIS
MATTER comes before the Court on Defendants Kody
Hughes, Garren Vance, and Alisha Hicks' Motion to Dismiss
All Claims, (Doc. No. 15), in which they seek dismissal of
the Complaint in its entirety pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure because Plaintiff has
failed to exhaust his administrative remedies.
I.
BACKGROUND
On May
16, 2018, Plaintiff filed pro se civil rights suit
pursuant to 42 U.S.C. § 1983 for incidents that
allegedly occurred at the Mountain View Correctional
Institution. (Doc. No. 1). The Complaint passed initial
review on claims of excessive force/failure to intervene
against Defendants Hicks, Hughes, and Vance, and the
remaining claims were dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) and (ii). (Doc. No. 7). NCDPS returned
executed waivers of service for Defendants on October 15,
2018, and they filed the instant Motion to Dismiss on
December 14, 2018. On December 18, 2018, the Court mailed
Plaintiff a Notice pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975) informing him of the
importance of responding to Defendants' Motion, (Doc. No.
17), and Plaintiff has filed a Response, (Doc. No. 20).
(1)
Complaint (Doc. No. 1)
In the
verified Complaint, Plaintiff alleges that he was being
escorted to segregation at around 11:00 or 11:30 PM on April
25, 2018, by Hughes, Vance, and Hicks. He was handcuffed
behind his back and Hughes and Vance each had him by one arm.
Vance asked Plaintiff to stop walking in the hallway near the
chaplain's office because Plaintiff was “talking
under [his] breath and tryen [sic] to adjust [his] left arm
because of … nerve damage [he] ha[s] on [his] left
side of [his] back.” (Doc. No. 1 at 5). Plaintiff
stopped walking and also stopped talking under his breath
pursuant to Vance's instruction. Just after Plaintiff
stopped, he looked up at Hicks who sprayed the left side of
Plaintiff's face with pepper spray. Plaintiff was asked
to start walking again and he complied and was taken to
segregation. All of these events took place within 75 feet of
a video camera outside the chaplain's office. Hicks said
that she sprayed Plaintiff because he was pulling away from
her and the other officers which is not true. Plaintiff was
written up for disobeying a direct order. Plaintiff pled
guilty. Plaintiff has tried to get unit management and
Captain Stewart to go back and look at the camera footage
that shows he was not pulling away from officers when he was
sprayed. They have not done so. Plaintiff claims that his
left eye was damaged and, at the time the Complaint was
filed, he was still awaiting medical treatment through the
sick call procedure.
Plaintiff
admits that he did not file a grievance about the incident
because “[he] was told by staff that [he] could
not.” (Doc. No. 1 at 10). Around May 10, 2018,
“unit management” said they would check on it and
Captain Stewart said around May 13, 2018 that he would check
on it. (Doc. No. 1 at 10). Plaintiff also had family call
Mountain View C.I. and they talked to the superintendent who
said they would check on it.
Plaintiff
asks that Defendants be terminated from NCDPS employment and
at least $50, 000 in damages.
(2)
Defendants' Motion to Dismiss (Doc. No.
16)
Defendants
argue that Plaintiff's claims are barred because
Plaintiff failed to exhaust administrative remedies prior to
filing his Complaint, and the dismissal should be with
prejudice because the time to exhaust has expired without
Plaintiff taking any action and amendment would be futile.
Plaintiff
was required to exhaust his administrative remedies by using
NCDPS's three-step procedure. Plaintiff does not assert
that he completed or even attempted the administrative remedy
procedure. He never filed a grievance related to this
Complaint. The only reason he gives for failing to attempt to
exhaust administrative remedies is that staff told him he
could not. Assuming Plaintiff was actually told something to
this effect by a staff member, it was most likely in response
to a question about the discipline process for the incident,
and not through the administrative remedy procedure, as his
guilty plea in the disciplinary matter foreclosed the
possible avenue of appeals as the basis for exhaustion of
administrative remedies. Further, a statement by an unnamed
staff member did not prevent Plaintiff from pursuing the
administrative remedy procedure. Plaintiff was fully aware of
the process because it is part of inmate orientation and
Plaintiff has filed three grievances unrelated to this matter
during the time period during which this claim
arose.[1]A statement from a staff member does not
rise to the level of having prevented Plaintiff from pursuing
the process. At most, it would have led him to believe that
he would be granted no relief if he filed a grievance. Even
if that was his interpretation, he remained obligated to file
a grievance even if relief could not be granted under the
administrated procedure remedy process. Assuming that unit
management and Captain Stewart told Plaintiff that they would
look into the incident on May 10 and 13, 2018, Plaintiff gave
them no time to conduct a review and respond, as he filed the
Complaint on May 16, 2018. While informal communication is
encouraged by the administrative remedy procedure as a means
of resolving an issue without resorting to a formal
grievance, the informal attempt is merely an optional first
act which is to be followed by the formal written grievance
and three-step appeal procedure which Plaintiff ignored.
Defendants
further argue that allowing Plaintiff to amend his Complaint
is futile because the PLRA requires exhaustion prior to the
filing of a lawsuit. He cannot now exhaust his administrative
remedies because a grievance would be untimely under NCDPS
Policy and Procedures as more than 90 days have elapsed since
the April 25, 2018 incident. Plaintiff cannot cure this fatal
flaw through amendment or dismissal and refiling so this
matter should be dismissed with prejudice.
(3)
Plaintiff's Response (Doc. No. 20)
Plaintiff
has filed an unsigned Response in which he reiterates the
allegations set forth in his Complaint. He alleges that he
talked to Captain Stewart about the incident after he was
released from segregation and Stewart said it would be looked
into. After about two weeks, Stewart and unit management told
Plaintiff that they did not have time to go back and look at
the camera footage. After another week Plaintiff talked to
unit management about writing a grievance. Plaintiff was told
he was not allowed to write a grievance at that time because
he had pled guilty to the write-up he received. He states
that, “[e]ven ...