United States District Court, W.D. North Carolina, Charlotte Division
JENYON R. McELVINE, Plaintiff,
KEN BEAVER, et al., Defendants.
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendants William
Rogers and Edward Gazoo's Motion to Dismiss for Failure
to Exhaust Administrative Grievances re: PLRA, (Doc. No. 20),
and pro se Plaintiff's Motions to Appoint
Counsel, (Doc. Nos. 36, 38), and Motion to Compel Discovery,
(Doc. No. 41).
filed a Complaint pursuant to 42 U.S.C. § 1983
addressing incidents that allegedly occurred at the Lanesboro
Correctional Institution. The Complaint passed initial review
against Defendants Gazoo and Rogers for the use of excessive
force and against Gazoo and Rorie for due process violations.
(Doc. Nos. 1, 10). Defendants Rogers and Gazoo have filed a
Motion to Dismiss Plaintiff's excessive force claim, but
not his due process claim, for failing to properly exhaust
the available administrative remedies.
Complaint (Doc. No. 1)
alleges that Defendants Rorie and Gazoo knew that Plaintiff
was being moved to a close custody classification pod to
punish him, without first having a classification hearing or
disciplinary board hearing which violates NCDPS prison policy
and procedures. Rorie used her job and power over housing to
discriminate against Plaintiff.
days later, on September 29, 2016, Defendant Rogers assaulted
Plaintiff by kicking his face and head with his boots and
punching Plaintiff's face while Plaintiff was fully
restrained in handcuffs, leg cuffs, and a waist chain, and
lying on the floor. The kicks could have caused
life-threatening injury and left him with continuing pain, a
swollen eye, bruising that lasted for months, and permanent
eye damage. Gazoo was “involved in assaulting and
seriously injuring Plaintiff['s] … face and eyes
on 9/29/16.” (Doc. No. 1 at 2). Defendant Beaver is
legally responsible for the operation of Lanesboro and the
welfare of all inmates. Beaver was standing outside the
holding cell at Lanesboro and asked Gazoo if he had seen what
happened and what he was going to do about it.
requested medical attention for the pain and swelling to his
eyes on September 29, 2016. He was prescribed aspirin for his
bruised and swollen eyes. Beaver had “full knowledge of
[Plaintiff's] physical conditions” and failed to
get him an optometrist appointment. (Doc. No. 1 at 3).
Plaintiff has no vision in his left eye, pain in his nose,
and his right eye was clogged with vision coming and going.
He had a swollen body and a fractured eye socket, which
Beaver and Gazoo knew, yet they refused to have him properly
was transferred to Polk C.I. on September 30, 3016, a high
security “Supermax” control prison as punishment
without due process. (Doc. No. 1 at 4).
seeks declaratory injunction, preliminary and permanent
injunction, compensatory and punitive damages, a jury trial,
costs, and any relief the Court deems just, proper, and
Motion to Dismiss (Doc. No. 20)
Rogers and Gazoo argue that Plaintiff failed to exhaust his
administrative remedies with regards to the excessive
force/failure to protect claim prior to filing his Complaint.
Plaintiff was fully aware of the administrative remedy
procedure because it is part of inmate orientation, it is
explained orally to each inmate, and Plaintiff exhausted a
grievance with regards to the due process claim but not the
excessive force claim. To the extent that Plaintiff filed a
grievance related to the due process claim, it was not
timely, and therefore he Plaintiff never properly presented
his due process claim to NCDPS for resolution through
available administrative procedures before filing his
Complaint. Defendants Rogers and Gazoo argue that the
excessive force claim should be dismissed because Plaintiff
has failed to satisfy the PLRA's exhaustion requirement
and the excessive force/failure to protect claims should be
dismissed with prejudice.
Plaintiff's Response (Doc. No. 32)
Court issued an Order on January 28, 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