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Kimble v. Francis

United States District Court, W.D. North Carolina, Asheville Division

March 20, 2019

CIANO KIMBLE, Plaintiff,
v.
DENTON FRANCES, et al., Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF JUDGE.

         THIS MATTER

         comes before the Court on Motion to Dismiss or, in the Alternative, Motion for Summary Judgment filed by Defendant Denton Frances, (Doc. No. 24), and on the Court's Order that Plaintiff show cause why Defendant Shealton should not be dismissed from this action without prejudice, (Doc. No. 31).

         I. BACKGROUND

         Plaintiff filed pro se Complaint pursuant to 42 U.S.C. § 1983 for incidents that allegedly occurred at the Madison County Sheriff's Office. The Amended Complaint passed initial review on Plaintiff's excessive force claims against Defendants Frances Denton and Sergeant Shealton, both of whom allegedly worked at the Madison County Jail. See (Doc. No. 13).

         Defendant Denton was served and has filed the instant Motion to Dismiss/for Summary Judgment arguing that Plaintiff failed to exhaust his administrative remedies. Defendant Shealton has not been served to date and Plaintiff has been ordered to show cause why this action should not be dismissed as to Defendant Shealton.

         (1) Amended Complaint (Doc. No. 12)

         Plaintiff alleges in his verified Amended Complaint that he was a pretrial detainee on April 26, 2018, when he was being transferred to Central Prison for safekeeping due to a dispute with another inmate/family member at Madison County Jail. Plaintiff was in full restraints in a cell when Plaintiff pulled away from a tight handcuff and he was choked by a Sergeant Shealton, placed in a chokehold, and tazed with Sgt. Francis' stun device. Plaintiff's hands were at his sides when he was tazed at least four times with a “dry stun” technique against his skin. A camera was ten to twelve feet away and might have captured the incident on camera. If Madison County cannot produce video of the confrontation, that is spoliation of evidence under the North Carolina Statutes. Plaintiff sustained injuries including a broken hand. Plaintiff states with regards to exhaustion, “I was shipped before any grievance process was made.” (Doc. No. 12 at 8). He asks the Court to prosecute those involved in the breach of his rights and for damages.

         (2) Defendant Denton's Motions to Dismiss or for Summary Judgment (Doc. No. 24)

         Defendant Denton seeks dismissal for failure to state a claim pursuant to Rule 12(b)(6), or alternatively for summary judgment pursuant to Rules 12(d) and 56 based on Plaintiff's failure to exhaust administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).

         Defendant Denton argues that, at the time of Plaintiff's incarceration, the Jail had a formal written policy concerning inmate grievances. Newly admitted inmates are informed of the Jail's grievance policy when they arrive at the Jail and attempt to use the kiosk. The Jail Administrator reviews grievances and responds. Inmates may appeal the response to a higher ranked officer. Plaintiff failed to exhaust his administrative remedies through the Jail's grievance policies. He filed no grievances concerning the April 26, 2018 assault. Plaintiff is not excused from the exhaustion requirement because he was shipped before any grievance process was made, and because he is now housed at Central Prison. The grievance procedure was available to Plaintiff despite his transfer but he chose not to use it. Plaintiff had time to file a grievance before he was transported and he did not attempt to file a grievance or send a letter to the Jail about the incident either before or after his transfer.

         (3) Plaintiff's Response (Doc. Nos. 29)

         The Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), instructing Plaintiff regarding his right to respond to Defendant's Motion. See (Doc. No. . 25).

         Plaintiff filed a one-page unverified Response that states verbatim:

Opon [sic] Information on 4-26-18 at appx 2:45 & 3:00 at the time of accident 1-18cv175 I Ciano Kimble could not file or exhaust admin remedies do to the fact that I was shipped out to central prison where opon [sic] arrivle [sic] central prison did not have an grievance procedure and I ask for the ...

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