United States District Court, W.D. North Carolina, Charlotte Division
BRUCE S. FULLER, Plaintiff,
KEVIN INGRAM, et al., Defendants.
D. Whitney, Chief United States District Judge.
MATTER comes before the Court on Defendants
Johnathan Holder and Kevin Ingram's Motion to Dismiss for
Failure to Exhaust Administrative Grievances re: PLRA, (Doc.
filed pro se Amended Complaint pursuant to 42 U.S.C.
§ 1983 that passed initial review against Defendants
Baker and Smith for deliberate indifference to a serious
medical need, against Defendants Ingram and Holder for the
use of excessive force, and against Ingram for
unconstitutional conditions of confinement and retaliation.
(Doc. Nos. 11, 19). NCDPS waived service of process for
Defendants Ingram and Holder, and Defendants Baker and Smith
were served by the U.S. Marshal. (Doc. Nos. 26, 27, 3133).
Defendants Holder and Ingram have filed a Motion to Dismiss
asserting lack of exhaustion. (Doc. No. 34). The Court issued
an Order on January 30, 2019, informing Petitioner of his
right to respond to Defendants' Motion and cautioned him
that failure to do so may result in dismissal. (Doc. No. 37).
Plaintiff has not filed a response.
Amended Complaint (Doc. No. 11)
filed this § 1983 suit about conditions that he
allegedly experienced while he resided at Lanesboro C.I.
Plaintiff alleges that he has medical conditions include
stroke and head injury that result in loss of equilibrium,
lack of stability, forgetfulness, shaking hands, and periods
of paralysis and slurred speech. He claims that he has been
deprived of a doctor-ordered shower chair since May 23, 2017
and has been denied a nurse's assistance in showering and
feeding himself. Plaintiff further claims that Defendant
Smith allows doctors to falsify medical records.
claims that, on January 22, 2018, Ingram maced him and
punched him when he fell out of his wheelchair. On another
occasion, Sergeant Holder swung his stick like a bat at
Plaintiff's head, making Ingram laugh while Plaintiff was
chained. He also claims that Ingram is denying him the
assistance and equipment which allow him to move around in a
wheelchair, shower, eat, and drink, due to his medical
conditions including stroke, and that Ingram had him
transferred back to Lanesboro C.I. from a medical camp, beat
him, and put him in the “hole” in retaliation for
having filed this lawsuit.
does not separately address exhaustion of administrative
remedies in the Amended Complaint, but rather refers to the
original Complaint in which he states that he submitted
grievances and grievance appeals, however, he has not
received responses. (Doc. No. 11 at 2); see (Doc.
No. 1 at 2).
to Dismiss (Doc. No. 34)
Holder and Ingram argue that Plaintiff was required to
exhaust NCDPS's three-step administrative inmate
grievance procedure. Plaintiff was fully aware of the
administrative remedy procedure process because it is part of
inmate orientation, is explained to each inmate, and
Plaintiff filed multiple other grievances on unrelated
matters. The factual allegations Plaintiff has raised run
roughly from January 11, 2018 to February 21, 2018 when
Plaintiff filed his Amended Complaint. Plaintiff has not
exhausted any of his claims through the administrative
remedies by completing all three steps of appeal as required
by NCDPS's administrative remedy procedure. Plaintiff
exhausted two grievances between 2017 and 2018; the first,
filed on March 21, 2017, predates the relevant time period
and relates to Plaintiff's complaint that his request for
an orderly to push him around in his wheelchair had not yet
been processed by the Lanesboro C.I. medical department. The
second, filed on April 16, 2017, also predates the relevant
time period and relates to an earlier grievance he had filed
in March 2017 relating to staff corruption for which he had
not received a response. There are no other exhausted
grievances by Plaintiff and none for the incidents in
question at Lanesboro C.I. Even if Plaintiff could file a
grievance today about these claims, it would be untimely
under NCDPS policy. Because Plaintiff cannot demonstrate that
he exhausted his administrative remedies related to his
excessive force claim, the Amended Complaint should be
dismissed with prejudice. Moreover, the record demonstrates
that Plaintiff failed to exhaust administrative remedies on
his deliberate indifference claims against Defendants Smith
and Baker and therefore the Amended Complaint should be
dismissed as to them as well.
Court issued an Order on January 30, 2019 pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), instructing Plaintiff regarding his right to
respond to Defendants' Motion and cautioning Petitioner
that failure to do so may result in the relief they seek.
(Doc. No. 37). The Court's Order was returned as
undeliverable on February 21, 2019, and the Court re-mailed
the Order to Plaintiff on March 5, 2019. (Doc. No. 38).
Plaintiff has not responded to the Motion to Dismiss to date.
STANDARD OF REVIEW
motion to dismiss under Rule 12(b)(6) determines only whether
a claim is stated; “it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses, ” Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir.1992). A
claim is stated if the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In evaluating whether a claim is stated,
“[the] court accepts all well-pled facts as true and
construes these facts in the light most favorable to the
plaintiff, ” but does not consider “legal
conclusions, elements of a cause of action, and bare
assertions devoid of further factual enhancement.”
Nemet Chevrolet, Ltd. v. ...