United States District Court, W.D. North Carolina, Asheville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants' Motion
to Dismiss All Claims. [Doc. 20].
Plaintiff William Kimble, Jr., is an inmate of the State of
North Carolina, currently incarcerated at Bertie Correctional
Institution in Windsor, North Carolina. Plaintiff filed this
action on September 28, 2018, pursuant to 42 U.S.C. §
1983, naming as Defendants Saint T. Tapp, identified as the
Assistant Unit Manager for the F Unit at Marion Correctional
Institution (“Marion”), and Defendant FNU James,
identified as the Unit Manager for the F Unit at Marion.
Plaintiff brings a claim against Defendants for deliberate
indifference to serious medical needs in violation of his
Eighth Amendment rights. Specifically, Plaintiff alleges that
Defendants have refused to allow Plaintiff to wear his
medically prescribed shoes with inserts in them. For relief,
Plaintiff seeks to have his therapeutic shoes returned to
him. [Doc. 1].
February 12, 2019, the Court reviewed the complaint for
frivolity under 28 U.S.C. § 1915(e) and § 1915A and
allowed Plaintiff's claim to proceed. [Doc. 11]. On
August 09, 2019, Defendant filed the pending motion to
dismiss based on Plaintiff's failure to exhaust his
administrative remedies. [Doc. 20]. On August 19, 2019, this
Court entered an order, in accordance with Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Plaintiff of his right to respond to Defendants' motion
within 14 days of that Order. [Doc. 21]. Plaintiff has not
filed a response.
Prison Litigation Reform Act (“PLRA”) requires a
prisoner to exhaust his administrative remedies before filing
a section 1983 action. 42 U.S.C. § 1997e(a). The PLRA
provides, in pertinent part: “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are
exhausted.” Id. In Porter v. Nussle, 534 U.S.
516 (2002), the Supreme Court held that the PLRA's
exhaustion requirement applies to all inmate suits about
prison life. The Court ruled that “exhaustion in cases
covered by § 1997e(a) is now mandatory.” Id.at 524
(citation omitted). The Porter Court stressed that, under the
PLRA, exhaustion must take place before the commencement of
the civil action in order to further the efficient
administration of justice. Id.
Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme
Court held that the PLRA exhaustion requirement requires
“proper” exhaustion: “Administrative law .
. . requir[es] proper exhaustion of administrative remedies,
which ‘means using all steps that the agency holds out,
and doing so properly (so that the agency addresses the
issues on the merits).'” Id.at 90 (quoting Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In
Jones v. Bock, 549 U.S. 199 (2007), the Supreme
Court stated: “There is no question that exhaustion is
mandatory under the PLRA and that unexhausted claims cannot
be brought in court.” Id.at 211 (citing Porter, 534
U.S. at 524). Finally, it is well-settled that a prisoner may
not exhaust his administrative remedies during the pendency
of a Section 1983 action; rather, he must fully exhaust all
steps of the administrative process before filing his
lawsuit. See Germain v. Shearin, 653 Fed.Appx. 231,
234 (4th Cir. 2016); French v. Warden, 442
Fed.Appx. 845, 846 (4th Cir. 2011). The North Carolina
Department of Public Safety (“NCDPS”) has
established, in its Administrative Remedies Procedures
(“ARP”), a three-step procedure governing
submission and review of inmate grievances. Moore v.
Bennette, 517 F.3d 717, 721 (4th Cir. 2008).
Plaintiff admits in his own verified statement that he had
not exhausted his administrative remedies at the time he
filed this lawsuit. [Doc. 5]. Because Plaintiff failed to
comply with the exhaustion requirements of 42 U.S.C. §
1997e(a) before filing this lawsuit, his claim against
Defendants must be dismissed without prejudice. The Court
will, therefore, grant Defendant's motion to dismiss.
the Court notes that Plaintiff seeks only injunctive relief,
that is, return of his therapeutic shoes. Since filing the
Complaint in this matter, Plaintiff has been transferred to
Bertie Correctional Institution. As such, any claim Plaintiff
may have had against officials at Marion appears to be moot,
in any event. See Rendelman v. Rouse, 569 F.3d 182,
186 (4th Cir. 2009) (“[A]s a general rule, a
prisoner's transfer or release from a particular prison
moots his claims for injunctive and declaratory relief with
respect to his incarceration there.”).
for the reasons stated herein, the Court grants
Defendants' Motion to Dismiss and dismisses this action
IS, THEREFORE, ORDERED that:
Defendant's Motion to Dismiss [Doc. 20] is
GRANTED, and this action is dismissed
without prejudice for ...