United States District Court, W.D. North Carolina, Asheville Division
MARVIN H. JOHNSON, Plaintiff,
KENNETH LASSITER, et al., Defendants.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendants'
Motion to Dismiss for Failure to Exhaust Administrative
Grievances re: PLRA, (Doc. No. 29).
se incarcerated Plaintiff filed a civil rights suit
pursuant to 42 U.S.C. § 1983 along with four other
inmates alleging, inter alia, that their forced
participation in an RDU Program at Marion Correctional
Institution violates their constitutional rights. (Doc. No.
1). The Complaint was so seriously deficient that the Court
was unable to complete initial review. On May 15, 2018, the
Court ordered Plaintiffs to file IFP applications and an
Amended Complaint within 21 days. (Doc. No. 3). The Court
cautioned Plaintiffs that failure to comply would probably
result in dismissal. The Court also informed Plaintiffs that
the filing of more than one Amended Complaint would probably
result in the opening of separate § 1983 cases.
Plaintiffs did not file a single Amended Complaint pursuant
to the Court's instruction and the case was severed.
(Doc. No. 6).
Amended Complaint, (Doc. No. 5), passed initial review on
claims regarding the deprivation of his property, cruel and
unusual conditions of confinement, and deprivation of
privacy. See (Doc. No. 12). Defendants have now
filed a Motion to Dismiss asserting that Plaintiff has failed
to exhaust the available administrative remedies with regards
to these claims. (Doc. No. 29). The Court issued an Order on
March 18, 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. 32). Plaintiff has
not filed a response.
Complaint (Doc. No. 5)
alleges that he arrived at Marion C.I. on January 26, 2017.
Upon entering the RDU Program, he was forced to either send
home or donate his legal books, literature, and religious
literature. None of Plaintiff Johnson's property exceeded
the two cubic foot limit. He failed to meet the deadline for
his federal habeas corpus petition, which was March 8, 2018,
because he did not have the needed legal books and
literature. When Plaintiff Johnson said he needed his
religious literature, he was told “Rastafarian or
Moorish science was not real religions so I shouldn't
feel bad.” (Doc. No. 13 at 5). His personal privacy was
invaded when he was forced to talk about or fill out a survey
regarding his past and his present medical, mental health,
criminal charges, and family issues, which has exposed to
psychological harm, and Sergeant Pruett called him a
“crack baby.” (Doc. No. 13 at 5). Plaintiff
Johnson has been forced to do six months in segregation with
no procedural due process. It is fraud to hold him in
segregation from March 10, 2018, to September 10, 2018, while
his status in the prison remained “Reg.
Population.” (Doc. No. 13 at 5). Plaintiff Johnson
claims that he has completed the RDU Program but is still in
segregation. He is being harassed continuously and pepper
spray was put in his food three times. His injuries have
included psychological harm, separation from his immediate
family, “assassination of character, ” violation
of federal constitutional rights and privileges,
discrimination, and the right to practice his religion. (Doc.
No. 5 at 5). Plaintiff Johnson seeks on behalf of himself and
participants in the “class” damages of $250, 000,
removal from the RDU Program, and cancellation of the RDU
Motion to Dismiss (Doc. No. 29)
concede that Plaintiff did exhaust his administrative
grievances, but not do so until after he filed the initial
Complaint with his fellow Plaintiffs. The failure to exhaust
was done despite being fully aware of the administrative
remedy process as it is a part of inmate orientation, it is
explained orally to each inmate, and Plaintiff himself filed
several other grievances that were fully exhausted. Plaintiff
therefore failed to satisfy the PLRA's exhaustion
requirement and all claims should be dismissed with
Court issued an Order 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. 32).
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. Consumeraffairs.com. Inc.,
591 F.3d 250, 255 (4th Cir. 2009). Nor does a
court accept as true “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26