Cornelius Corey v. Faye Daniel

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-ct-03265-F. Copies to all parties and the district court/agency. [999672793]. Mailed to: Cornelius Corey. [15-6707]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6707

CORNELIUS MAURICE COREY,
Plaintiff – Appellant,
v.
FAYE DANIELS; MICHAEL T.
MUSSARI; DARRELL HOPKINS,

GIBBS;

ERNEST

RIGGS;

ALICE

Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:14-ct-03265-F)

Submitted:

September 24, 2015

Decided:

October 6, 2015

Before DUNCAN, AGEE, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Cornelius Maurice Corey, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Cornelius Maurice Corey appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2012) complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) (2012), and dismissing his
amended

claims

Because

we

prematurely,

without

conclude
we

prejudice

that

vacate

the
in

for

failure

amended
part

claims

and

to

were

remand

for

exhaust.
dismissed
further

proceedings.
“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 this Court reviews de
novo.

Talbot v. Lucy Corr. Nursing Home, 118 F.3d 215, 218 (4th

Cir. 1997).
a

prisoner

The Prison Litigation Reform Act (“PLRA”) requires
to

exhaust

his

available

administrative

before filing an action under § 1983.

remedies

42 U.S.C. § 1997e(a)

(2012); Woodford v. Ngo, 548 U.S. 81, 83-85 (2006); Porter v.
Nussle,

534

U.S.

516,

532

(2002).

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 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
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establish a prisoner’s failure to exhaust.

Moore v. Bennette,

517

district

F.3d

717,

permitted

to

725

(4th

address

Cir.

the

2008).

issue

of

A

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 is provided an opportunity to
respond on the exhaustion issue.

Anderson v. XYZ Corr. Health

Servs., Inc., 407 F.3d 674, 682 (4th Cir.

2005).

Our review of the record indicates that failure to exhaust
the amended claims is not clear from the face of Corey’s amended
complaint and attachments, which include copies of a grievance
and related documents.

Further, there is no indication that

Corey was given an opportunity to respond regarding exhaustion.
Accordingly, we vacate the district court’s dismissal of the
amended

claims

and

with this opinion.
of the claims.

remand

for

further

proceedings

consistent

We express no opinion regarding the merits

We affirm the dismissal of the claims set forth

in the original complaint for the reasons stated by the district
court.
2015).
facts

Corey v. Daniels, No. 5:14-ct-03265-F (E.D.N.C. Apr. 27,
Finally,
and

legal

we

dispense

contentions

with
are

3

oral

argument

adequately

because

presented

in

the
the

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materials

before

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this

Court

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and

argument

would

not

aid

the

decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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