Deese v. Hughes

          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 (4^th 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 ...