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McElvine v. Beaver

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

July 16, 2019

JENYON R. McELVINE, Plaintiff,
v.
KEN BEAVER, et al., Defendants.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE

         THIS 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).

         I. BACKGROUND

         Plaintiff 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.

         (1) Complaint (Doc. No. 1)

         Plaintiff 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.

         Three 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.

         Plaintiff 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 evaluated.

         Plaintiff 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).

         He seeks declaratory injunction, preliminary and permanent injunction, compensatory and punitive damages, a jury trial, costs, and any relief the Court deems just, proper, and equitable.

         (2) Motion to Dismiss (Doc. No. 20)

         Defendants 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.

         (3) Plaintiff's Response (Doc. No. 32)

         The 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 that ...


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