Rocky Johnson v. Eva Field
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999501803-2] Originating case number: 2:14-cv-00038-FDW Copies to all parties and the district court/agency. [999611770]. Mailed to: R. Johnson. [14-7814]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7814
ROCKY JOHNSON,
Plaintiff - Appellant,
v.
EVA FIELDS, Nurse; DIANE RAY, Transform Health; TABIATHA
BRUNER, Transform Health; SCOTT ALLEN, Captain; LT. GOULD;
DAVID BISHOP, Lt.; RYAN P. ZABLOUDIL; COX; RAY; WATKINS;
BILL SALYERS, Captain,
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-00038-FDW)
Submitted:
April 30, 2015
Before WYNN and
Circuit Judge.
DIAZ,
Circuit
Decided:
Judges,
and
June 30, 2015
HAMILTON,
Senior
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Rocky Johnson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Rocky Johnson appeals the district court’s order denying
relief in his 42 U.S.C. § 1983 (2012) action.
The district
court dismissed his claim for deliberate indifference to serious
medical needs with prejudice for failure to state a claim and
dismissed his remaining claims, which included being prohibited
from
possessing
his
Bible
for
a
period
of
60
days
(“Bible
claim”), being deprived of the ability to write letters for the
same period (“correspondence claim”), and being denied a shower
and change of clothes for a period of 12 days (“shower claim”),
among other claims, without prejudice for failing to exhaust
administrative remedies.
We affirm in part, vacate in part, and
remand.
“Whether a district court properly required a plaintiff to
exhaust [his] administrative remedies before bringing suit in
federal court is a question of law” that we review de novo.
Talbot v. Lucy Corr Nursing Home, 118 F.3d 215, 218 (4th Cir.
1997).
The Prison Litigation Reform Act (“PLRA”) requires a
prisoner to exhaust his available administrative remedies before
filing a § 1983 action.
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).
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Under the PLRA, failure to exhaust administrative remedies
is an affirmative defense, which an inmate is not required to
plead or demonstrate in his complaint.
199, 216 (2007).
Jones v. Bock, 549 U.S.
Rather, the defendant bears the burden to
establish a prisoner’s failure to exhaust.
Moore v. Bennette,
517
district
F.3d
717,
permitted
to
725
(4th
address
Cir.
the
2008).
issue
A
of
exhaustion
court
sua
is
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).
As to his Bible claim, correspondence claim, and shower
claim,
we
conclude
that
Johnson’s
failure
to
exhaust
is
not
clear from the face of the complaint and associated pleadings.
These claims relate to the sanctions Johnson received following
a
disciplinary
administrative
complaint
with
hearing.
steps
the
hearing or sanction.
a
The
sanction
prisoner
court
system
must
decision
take
when
prior
detailed
to
dissatisfied
the
filing
with
a
the
Johnson has made a prima facie showing
that he exhausted these steps.
Thus, we vacate the district
court’s dismissal without prejudice for failure to exhaust as to
these claims.
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We review de novo dismissals for failure to state a claim
under
28
U.S.C
§ 1915A(b)(1)
(2012),
“applying
the
same
standards as those for reviewing a dismissal under Fed. R. Civ.
P. 12(b)(6).”
2013).
De’Lonta v. Angelone, 708 F.3d 520, 524 (4th Cir.
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, a Rule 12(b)(6) motion
does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.”
Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation
marks and brackets omitted).
As a result, to survive such a
motion, a complaint’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level” and have
“enough facts to state a claim to relief that is plausible on
its
face.”
(2007).
as
Bell
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
570
“In assessing the complaint’s plausibility, we accept
true
all
the
factual
allegations
contained
therein.”
De’Lonta, 708 F.3d at 524.
“[D]eliberate indifference to the serious medical needs of
a pretrial detainee violates the due process clause.”
Young v.
City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001).
order
to
make
out
a
prima
facie
claim
of
In
deliberate
indifference, Johnson must allege “that the defendants actually
knew of and disregarded a substantial risk of serious injury to
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[him] or that they actually knew of and ignored [his] serious
need for medical care.”
Id. at 575-76.
We conclude that Johnson alleged in his complaint a prima
facie case of deliberate indifference to serious medical needs.
Johnson pleaded facts that showed the Defendants were on notice
as to his medical need but delayed treatment for two months.
White by White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997)
(“A claim of deliberate indifference . . . implies at a minimum
that defendants were plainly placed on notice of a danger and
chose to ignore the danger notwithstanding the notice.”); see
also Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009) (“[M]ere
delay
or
violation
interference
of
the
can
Eighth
be
sufficient
Amendment.”).
to
constitute
Johnson’s
a
allegations
further raised a factual question as to whether he had a medical
need that was “serious.”
Cir.
2008)
(“[A]
Iko v. Shreve, 535 F.3d 225, 241 (4th
serious
medical
need
is
one
that
has
been
diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” (internal quotation marks
and alterations omitted)).
Thus, dismissal of this claim was
premature.
Accordingly, we vacate the judgment of the district court
dismissing without prejudice the Bible and correspondence claims
against Defendants Allen and Bishop and the shower claim against
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Defendants
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Allen,
Bishop,
and
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Gould.
We
further
vacate
the
district court’s dismissal with prejudice of Johnson’s claim of
deliberate
indifference
to
serious
Defendants Salyers and Diane Ray.
medical
needs
against
As to the remaining claims
and Defendants, we affirm the district court’s dismissal without
prejudice.
this
We remand for further proceedings consistent with
opinion
but
express
no
opinion
about
the
merits
of
Johnson’s claims.
We deny Johnson’s motion to appoint counsel.
We dispense
with oral argument because the facts and legal contentions are
adequately
presented
in
the
materials
before
this
court
and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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