Andrew Kilpatrick v. Danny Hollifield
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying as moot Motion to appoint/assign counsel [999444888-2]; denying as moot Motion to amend/correct [999444888-3]; denying as moot Motion to supplement [999444888-4] Originating case number: 2:14-cv-00022-FDW Copies to all parties and the district court/agency. [999522412]. Mailed to: Andrew Kilpatrick. [14-7351]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7351
ANDREW TAB KILPATRICK,
Plaintiff - Appellant,
v.
DANNY HOLLIFIELD, Captain at Clay County Detention Center;
CLAY COUNTY DETENTION & MEDICAL STAFF,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City.
Frank D. Whitney,
Chief District Judge. (2:14-cv-00022-FDW)
Submitted:
January 28, 2015
Decided:
February 3, 2015
Before GREGORY, AGEE, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Andrew Tab Kilpatrick, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Andrew
Tab
Kilpatrick
appeals
the
district
court’s
order dismissing without prejudice his 42 U.S.C. § 1983 (2012)
action for failure to exhaust administrative remedies.
Because
we conclude the action was dismissed prematurely, we vacate and
remand.
“Whether
plaintiff
to
a
district
exhaust
[his]
court
properly
administrative
required
remedies
a
before
bringing suit in federal court is a question of law” that this
court reviews de novo.
Talbot v. Lucy Corr Nursing Home, 118
F.3d 215, 218 (4th Cir. 1997).
(“PLRA”)
requires
a
The Prison Litigation Reform Act
prisoner
to
exhaust
his
available
administrative remedies before filing an action under § 1983.
42 U.S.C. § 1997e(a) (2012); Woodford v. Ngo, 548 U.S. 81, 83-85
(2006).
Such exhaustion must be “proper”; that is, the prisoner
must “us[e] all steps that the agency holds out[] and do[] so
properly.”
Woodford, 548 U.S. at 90 (internal quotation marks
and emphasis omitted).
Under
remedies
the
is
affirmative
an
PLRA,
failure
to
defense,
exhaust
which
an
administrative
inmate
required to plead or demonstrate in his complaint.
Bock, 549 U.S. 199, 216 (2007).
is
not
Jones v.
Rather, the defendant bears the
burden to establish a prisoner’s failure to exhaust.
Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
2
Moore v.
A district court
Appeal: 14-7351
is
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permitted
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to
address
the
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issue
of
exhaustion
sua
sponte,
however, and may dismiss the complaint without input from the
defendant if the “failure to exhaust is apparent from the face
of
the
complaint,”
and
the
inmate
has
been
opportunity to respond on the exhaustion issue.
provided
an
Anderson v. XYZ
Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005).
Our review of the record indicates that the failure to
exhaust is not clear from the face of Kilpatrick’s complaint and
associated pleadings.
detention
center
Particularly, it is unclear whether the
that
housed
administrative
steps
request
Kilpatrick
forms
beyond
Kilpatrick
filing
apparently
the
required
inmate
filed.
further
grievance
and
Accordingly,
we
vacate the judgment of the district court and remand for further
proceedings
consistent
with
this
opinion.
We
deny
as
moot
Kilpatrick’s motions to appoint counsel, to amend his complaint,
and to supplement his complaint.
the
merits
of
Kilpatrick’s
We express no opinion about
claims.
We
dispense
with
oral
argument because the facts and legal contentions are adequately
presented in the material before this court and argument will
not aid the decisional process.
VACATED AND REMANDED
3
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