United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion to
dismiss (DE 30), which the court construes as a motion for
summary judgment pursuant to Federal Rule of Civil Procedure
56. Plaintiff did not respond to the motion and the issues
raised are ripe for decision. For the following reasons, the
court grants the motion and dismisses plaintiff's claims
OF THE CASE
a federal inmate proceeding pro se, commenced this action by
filing complaint on May 1, 2017, pursuant to Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). Plaintiff alleges defendants were
deliberately indifferent to his serious medical needs by
failing to provide treatment for his Hepatitis C and terminal
cancer. On April 12, 2018, plaintiff filed motion to be
restarted on antibiotic therapy. On April 25, 2018, the court
denied plaintiff's motion to be restated on antibiotic
therapy, conducted its initial frivolity review of the
complaint, and directed plaintiff to file amended complaint
particularizing his claims.
filed amended complaint on May 22, 2018. On June 1, 2018, the
court conducted its frivolity review of the amended complaint
and allowed the action to proceed as to plaintiff's
claims against defendants Doctor Rosenthal, Ms. Bunn, P.A.
Adkins, Counselor Jones, and Dr. Phillips.
October 15, 2018, defendants filed the instant motion to
dismiss, supported by memorandum or law, declarations of
Christy Bunn and Genna Petre, plaintiff's inmate
demographic data, Bureau of Prisons (“BOP”)
Program Statement 1330.18 - Administrative Remedy Program,
and plaintiff's BOP administrative grievance records.
That same day, the court provided plaintiff notice, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), that defendants' motion relied on matters outside
the pleadings, and thus the court may construe it as a motion
for summary judgment pursuant to Federal Rule of Civil
Procedure 56. The court also notified plaintiff of his right
to respond to the motion, and explained the appropriate
procedures for doing so under Rule 56. As noted, plaintiff
did not respond to the motion.
Standard of Review
the instant motion relies on matters outside the pleadings,
the court construes it as a motion for summary judgment.
See Fed.R.Civ.P. 12(d). Summary judgment is
appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The party seeking summary judgment “bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has met its burden, the non-moving party must then
“come forward with specific facts showing that there is
a genuine issue for trial.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (internal quotation omitted).
raise the affirmative defense that plaintiff failed to
exhaust administrative remedies before filing this action.
The Prison Litigation Reform Act (“PLRA”) states
that “[n]o action shall be brought with respect to
prison conditions under . . . any . . . Federal law, by a
prisoner . . . until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a);
see Woodford v. Ngo, 548 U.S. 81, 84 (2006).
Exhaustion is mandatory. Woodford, 548 U.S. at 84;
Porter v. Nussle, 534 U.S. 516, 524 (2002)
(“Once within the discretion of the district court,
exhaustion in cases covered by § 1997e(a) is now
mandatory.”). A prisoner must exhaust his
administrative remedies even if the relief requested is not
available under the administrative process. Booth v.
Churner, 532 U.S. 731, 741 (2001). The PLRA requires
“proper exhaustion” which includes
“compliance with [the] agency's deadlines and other
critical procedural rules . . . .” Woodford,
548 U.S. at 90. “[U]nexhausted claims cannot be brought
in court.” Jones v. Bock, 549 U.S. 199, 211
provides a four-step administrative remedy procedure, which
an inmate must complete in order to exhaust administrative
remedies. The first step requires an inmate to present the
issue to staff in an attempt at informal resolution.
See 28 C.F.R. § 542.13. If informal resolution
is unsuccessful, an inmate may submit a formal written
administrative remedy request to the warden using a BP-9
form. See 28 C.F.R. § 542.14. If an inmate is
dissatisfied with the warden's response, he then may
appeal to the BOP's regional director, using a BP-10
form, and then to the BOP's General Counsel, using a
BP-11 form. See 28 C.F.R. § 542.15.
plaintiff filed four grievances concerning his medical care
before filing the instant complaint. (Petre Decl. (DE 32)
¶¶ 10-22). Plaintiff, however, did not exhaust any
of these grievances because he did not appeal them to the
BOP's general counsel using the BP-11 form. (See
id). Accordingly, based on the administrative record
provided by defendants, plaintiff did not exhaust his
administrative remedies before filing this action. And where
plaintiff failed to respond to the motion for summary
judgment, he has not presented evidence ...