Burkett v. Washington County Detention Center et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Brendan Abell Hurson on 11/22/2024. (c/m 11/22/2024 - bw5s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DAVID T. BURKETT,
Civil Action No.: BAH-24-594

Plaintiff,
V.

WASHINGTON COUNTY DETENTION
CENTER and OFFICER CARTY,
Defendants.

MEMORANDUM OPINION

David T. Burkett, a self-represented plaintiff and prisoner now confined at Jessup
Correctional Institution ("JCI"), filed a civil rights lawsuit pursuant to 42 U.S.C. § 1983. ECF I. •
Defendants Washington County Detention Center ("WCDC") and Officer Brady W. Carty' moved
to dismiss the complaint, or in the alternative for summary judgment (ECF 9), supported by a
memorandum (ECF 9-1) (collectively, the "Motion"), along with supporting exhibits. See ECFs 92, 9-3. Burkett was informed by the Court, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), of his right to respond to the Motion, and that his failure to file a response in opposition
to Defendants' Motion could result in dismissal of the complaint. ECF 10. Burkett responded in
• opposition, ECF 14, and the Defendants replied, ECF 16.
All pleadings have been thoroughly reviewed by the Court and a hearing is unnecessary
in this matter. See Local Rule 105.6 (D. Md. 2023). For reasons that follow, the Defendants'
Motion is granted due to Burkett's failure to exhaust his administrative remedies.

1 The Clerk will be directed to update the docket to reflect Officer Carty's full and correct name.

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~ackgro1nd
In his complaint, which was received by the Court on-February 26, 2024, Burkett alleges

that on FebruaJ 9, 2024, wh!le he was then housed at the WCDC, correctional officers
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conducted a cell Isearch "shakedown" of "E-pod," where Burkett was housed. ECF' 1, at I.
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Burkett' s cell ddor was ~pened to be searched, and- Defendant Officer Carty instructed his
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cellmate to exit jhile telling Burkett to remain inside the cell.· Id. Burkett alleges that after his .
cellmate exited tJe cell, Carty instructed Burkett to "strip fully naked." Id. at 2. Burkett alleges

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that his cell was in an area that was visible from other high-traffic areas, such as the "rec hall
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and sallyport," mid Burkett notes that other people were present outside his cell when he was

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ordered to• remove
his clothing. Id. at 2-3. Burkett informed Carty that he "did not feel
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comfortable withj being naked with so many people being able to see [him]." Id. at 3. Carty
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allegedly responded that "he didn't care," and told Burkett that he could either "strip now or go
to lock up." Id. Burkett again expressed his discomfort, to which Burkett alleges that Carty .
aggressively responded by stating, '.'Burkett, nobody is looking up here, you're pissing me off,
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if you don't hand me your clothes you're going to lock up." Id. In an attempt to "calm the
situation," BurkeJt alleges that Officer Webb, another correctional officer pres~nt at the time of
the incident, remL.ked t~ Burkett, "[y]ou're good, nobody is looking at you." Id. at 4. Despite

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his discomfort,
B~rkett
complied with Carty's directive and removed his clothing "so [he] would
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not be punished.'i Id. Burkett notes that Carty's actions do not comply with WCDC policy
regarding cell searches or strip searches. Id. at 1-2.

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Burkett states that he contacted "P.R.E.A."2 on February 12, 2024, shortly after the
incident, but had not heard back as of the filing of the instant complaint. Id. at 4. He states that
he has "bypassed the in-house grievance process because it lacks the fundamental principles of
the process. It's designed to be a months long process with no paper trail that stays in house with
the accused colleagues making the decision." Id. He states that he fears retaliation and asks to
"be kept away from Carty or moved to a different facility". Id. at 5-6. He seeks $1,500,000.00
in damages "for mental anguish and cruel and unusual punishment." Id. at 5. He also asks the
Court to "suspend Officer Carty ... so he can be taught the proper procedures for his job and
take the P.R.E.A. classes so no other inmates have to experience what [he's] had to experience."
Id.

In response to Burkett's complaint, Defendants filed a motion to dismiss, or in the
alternative, for summary judgment. ECF 9. Therein, they argue that 1) Burkett failed to exhaust
his administrative remedies; 2) he has failed to sufficiently plead a claim; 3) he has failed to
plead ·sufficient personal participation by any defendant; 3) defendants are entitled t? qualified
immunity; and 4) any claims against Carty in his official capacity are barred by the Eleventh
Amendment. See ECF 9-1, at 1-14.
As to their exhaustion argument, Defendants include the WCDC Inmate Handbook,
which provides the applicable grievance procedure. ECF 9-2, at 56. They note that Burkett was
provided a copy of the handbook upon arrival to WCDC, and they point out that Burkett
references the handbook many times throughout his complaint. ECF 9-1, at 6. Additionally,

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The Court understands that Burkett is referring to organizations designed to protect inmates from
unwanted sexual conduct pursuant to the Prison Rape Elimination Act ("PREA''). '.'Congress
enacted PREA with the purpose of implementing standards and policies to prevent prison rape and
to 'protect the Eighth Amendment rights of Federal, State, and local prisoners."' Doe v. Snyder,
945 F.3d 951, 955-56 (6th Cir. 2019) (quoting 34 U.S.C. § 30302).
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they include copies of grievances Burkett filed about other matters. ECF 9-3, at 1-12. They
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argue that Burkett understood the grievance process because he has previously "used this process
to address his coAcerns
of a HIP AA violation and allegations that the kitchen was serving cold
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trays." ECF 9-1, at 3. They further note that Burkett acknowledges on the face of his complaint
that he chose to "Jypass" the grievance process by filing this lawsuit, and thus allege that his cl~ims
are unexhausted ld must be .dismissed. Id. at 9.

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Burkett's bne page response does not address the Defendants' exhaustion argument. ECF

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14, at I. Rather, ~e simply states that he "seeks to use camera footage and statements from Officer
Webb" and "inmate Timothy McKenzie." Id. Burkett does not clarify how this evidence will
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assist his case, or inore to the point, how the proffered evidence will address the allegation that he
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failed to exhaust h" s administrative remedies. He also opaquely requests the assistance of counsel.3
Id.

Because Burkett has not exhausted his administrative remedies, there is· no need to
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discuss the remainder of Defendants' arguments or proffered evidence.

For the reasons

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To the extent Burkett intended this to be a motion for the appointment of counsel, it is denied.
Under 28 U.S.C. i § 1915(e)(l), the Court has discretion to appoint counsel for indigent civil
litigants in exceptjonal circumstances. See Bailey-El v. Haus. Auth. of Bait. City, 185 F. Supp. 3d
661, 670 (D. Md. '2016) (citing Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975), aff'd in part,
vacated on other irounds, 686 F. App'x 228 (4th Cir. 2017). Whether exceptional circumstances
exist is a fact-specific determination. See Whisenant v. Yaum, 739 F.2d 160, 163 (4th Cir. 1984),
abrogated on othJr grounds by Mallard v. U.S. Dist. Ct., 490 U.S. 296,298 (1989). Exceptional
circumstances exi'st
where (1) "the plaintiff 'has a colorable claim"' and (2) "considering the
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claim's objective complexity and the plaintiffs subjective abilities, ... the plaintiff 'lacks the
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capacity to presei;it it."' Jenkins v. Woodard, 109 F.4th 242, 248 (4th Cir. 2024) (quoting
Whisenant, 739 at 162). Here, Burkett has not put forth any exceptional circumstances which
might justify the appointment of counsel. And, perhaps most compellingly, this case must be
dismissed under the Prison Litigation Reform Act due to Burkett' s failure to exhaust administrative
remedies. Thus, to the extent Burkett jntended this filing to include a motion for the appointment
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of counsel, it is de • ied.
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articulated below, Defendants are entitled to dismissal due to Burkett's failure to exhaust his
claims.

II.

Standard of Review
In reviewing a complaint in response to a motion made pursuant to Fed. R. Civ. Proc.

12(b)(6), the Court accepts all well-pleaded allegations as true and construes the facts and
reasonable inferences derived therefrom in the light most favorable to Burkett. Venkatraman v.

REI Sys., Inc., 417 F.3d 418,420 (4th Cir. 2005)(citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130,
1134 (4th Cir. 1993)); Ibarra v. United States, 120 F.3d 472,473 (4th Cir. 1997). Rule 8(a)(2) of
the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim
showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'/ Inc., 248 F.3d
321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema NA., 534 U.S. 506, 513 (2002)
(stating that a complaint need only satisfy the "simplified pleading standard" of Rule 8(a)).
However, a "plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do." Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). Nonetheless, a complaint does not need "detailed factual allegations" to survive a motion
to dismiss. Id. Instead, "once a claim has been stated adequately, it may be supported by showing
• any set of facts consistent with the allegations in the complaint." Id. at 563. To survive a motion
to dismiss, "a complaint must contain sufficient f::ictual matter, accepted as true, to 'state a claim
to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting

Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Id. at 678. "But where the well-pleaded facts do not permit the court to infer

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more than the ~ere possibility of misconduct, the complaint has alleged-but it has not
'show[n]'-'thatlthe pleader is entitled to relief.'" Id. at 679 (quoting Fed.· R. Civ. P. 8(a)(2)).
Although!I Defendants have submitted exhibits with their motion, when deciding a motion
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to dismiss under ~ule 12(b)(6), a court typically considers only the complaint and any documents
attached to it. S~c y of State for Defence v. Trimble ~avigation Ltd., 484 F.3d 700, 705 (4th Cir.
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2007). Rule 12(d) reqhires courts to treat- such a motion as a motion for summary judgment if
matters outside t~e pieddings are considered and not excluded. See Fed. R. Civ. P. 12(d). Before
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converting a mo~ion ·t~ dismiss to one for summary judgment, the trial court must give the
nonmoving party '"a r~asonable opportunity to present all the material that is pertinent to the

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motion." Id "R~asonable opportunity" has two requirements:(!) the nonmoving party must have
some notice that the court is treating the Rule l 2(b)( 6) motion as a motion for summary judgment;
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and (2) the nonmbving party must be affordec;l "a reasonable ~pportunity for discovery" to obtain

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information essetjtial to oppose the motion. Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985).
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Here, the notice requirement has been satisfied by the title of Defendants' motion, which
clearly announ~e1 that it seeks summary judgment.4 ECF 9, at I. To show that a reasonable
opportunity for discoveb
has not been afforded, the nonmoving party must file an affidavit or
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declaration under. Rule 56(d), or another filing, explaining why "for specified reasons, it cannot
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. It also bears noting thdt the consideration of documents beyond the complaint does not transform
every motion to i:lismi~s into one seeking summary judgment. The Court may also consider
"documents attached to a motion to dismiss if the document is 'integral to the complaint-and there
is no dispute aboht the document's authenticity."' Reamer v. State Auto. Mut. Ins. Co., 556 F.
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Supp. 3d 544, 549 (D. Md. 2021) (quoting Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166
(4th Cir. 2016)). ! Tholfgh there does not appear to be a dispute over the authenticity of the
exhaustion-related documents attached to Defendants' motion, no argument has been made that
the documents relr'ted td exhaustion are integral to the complaint.
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present facts essential to justify its opposition." Fed. R. Civ. P. 56(d); see Harrods Ltd. v. Sixty
Internet.Domain Names, 302 F.3d 214, 244-45 (4th Cir. 2002). Burkett has not done _so here.

Pursuant to Federal Rule of Civil Procedure 56(a), '.'[t]he court .shall grant summary
judgment if 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." The Court should "view the evidence in the
light most favorable to .... the nonmovant, and draw all reasonable inferences in her favor without
weighing the evidence or assessing the witnesses' credibility." Dennis v. Columbia Colleton Med.
Ctr., Inc., 290 F.3d 639,645 (4th Cir. 2002). Importantly, "the.mere existence of some a\leged

factual dispute between the parties will not defeat an otherwise prCJperly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

While self-represented pleadings are to be liberally construed, see Erickson v. Pardus, 551
U.S. 89, 94 (2007), this Court maintains an "affirmative obligation ... to prevent factually
unsupported claims and defenses from proceeding to trial." Bouchat v. Baltimore Ravens Football
Club, Inc., 346 F.3d 514,526 (4th Cir. 2003) (internal quotation marks omitted) (quoting Drewitt
v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) and.citing Celotex Corp. v. Catrett, 477 1U.S. 317,

323-24 (1986)). "A party opposing a properly supported motion for sumrnary judgment 'may not
rest upon the mere allegations or denials of his pleadings,' but rather must 'set forth specific facts
showing that there is a genuine issue for trial."' Id. (quoting Fed. R. Civ. P. 56(e)). A dispute of
material fact is only "genuine" if sufficient evidence favoring the nonmoving party exists for the
trier of fact to return a verdict for that party. Anderson, 477 U.S. at 249-50.
Defendants assert in their motion that Burkett failed to exhaust the grievance process and
has also failed to state a claim for relief. ECF 9, at 1. The motion includes two exhibits that relate

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specifically to Bt'.irkett's efforts to _exhaust the grievance process. See ECFs 9-2, 9-3. Because the

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Court considers
as a motion for summary judgment as
. these
i exhibits, the motion
. will be construed
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to the question of exhaustion.

III.

Discussijn
The Defehdants assert that the complaint should be dismissed because Burkett failed to

exhaust the grie~ance process as to the claims in the complaint. ECF 9-1, at 8-9. If Burkett's
claims have not ~een properly presented through the administrative remedy procedure, they must
be dismissed purLant to the P;isoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. See.
Johnson v. Robinktte, 105 F.4th 99, 108 (4th Cir. 2024) ("The [PLRA] generally requires prisoners
to exhaust all 'avLlable' administrative remedies before filing an action challenging the conditions
of their confineJent."
(citing 42 U.S.C. § 1997e(a)).
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The PLR.i:\I· prov1"d es m
part that:

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No action
shall be brought with respect to prison conditions under section 1983
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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 exha\.isted.

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42 U.S.C. § 1997le(a).

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For purpolies of the PLRA, "the term 'prisoner' means any person incarcerated or detained
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in any facility Jho is accused of, convicted of, sentenced for, or adjudicated delinqu~nt for,
violations of crilinal law or the terms and conditions of parole, probation, pretrial release, or

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diversionary program."· 42 U.S.C. § 1997e(h). The phrase "prison conditions" encompasses "all
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inmate suits abo~t prison life, whether they involve general circumstances or particular episodes,
and whether theyj allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516,

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532 (2002); see Ghase v. Peay, 286 F. Supp. 2d 523, 528 (D. Md. 2003), ajf'd, 98 F. App'x 253
(4th Cir. 2004).
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Notably, administrative exhaustion under§ l 997e(a) is not a jurisdictional requirement and
does not impose a heightened pleading requirement on the prisoner. Rather, the failure to exhaust
administrative remedies is an affirmative defense to be pleaded and proven by defendants. See

Jones v. Bock, 549 U.S. 199, 215-216 (2007); Custis v. Davis, 851 F.3d 358,361 (4th Cir. 2017).
Nevertheless, a claim that has not been exhausted may not be considered by this court. See Bock,
549 U.S. at 220. In other words, exhaustion is mandatory. Ross v. Blake, 578 U.S. 632, 639
(2016). Therefore, a court ordinarily may not excuse a failure to exhaust. Ross, 578 U.S. at 639
(citing Miller v. French, 530 U.S. 327, 337 (2000). (explaining "[t]he mandatory 'shall'.
normally creates an obligation impervious to judicial discretion")).
Ordinarily, an inmate must follow the required procedural steps in order to exhaust his
administrntive remedies. Moore v. Bennette, 517 F.3d at 725,729; see also Langfordv. Couch,.
50 F. Supp. 2d 544, 548 (E.D. Va. 1999) ("[T]he ... PLRA amendment made clear that exhaustion
is now mandatory."). Exhaustion requires completion of "the administrative review process in
accordance with the applicable procedural rules, including deadlines." Woodfordv. Ngo, 548 U.S.
81, 88, 93 (2006). This requirement is one of "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)."' Woodford, 548 U.S. at 93 (quoting Pozo v. McCaughtry;
286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original). But the court is "obligated to ensure
that any defects in [administrative] exhaustion were not procured from the action or inaction ·of
prison officials." Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007);· see Kaba

v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). In other words, and in the context of grievances related
to the PREA, Burkett "was required to exhaust his PREA claims for sexual harassment and sexual

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abuse only if the [relevant] grievance procedures for such claims were available for him to
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exhaust." Johnso'n, 105 F.4th at 108 (citing Ross, 578 U.S. at 636).
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The PLRA's exhaustion requirement serves several purposes. These include "allowing a

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prison to address complaints about the program it administers before being subjected to suit,
reducing litigatio~ to the extent complaints are satisfactorily resolved, and improving litigation
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that does, occur bi leading to the preparation of a useful record." Bock, 549 U.S. at 219; see.Moore
v. Bennette, 517 F:3d 717, 725 (4th Cir. 2008) (exhaustion means providing prison officials with

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the opportunity td,respond
to a complaint through proper use of administrative
remedies).· It is
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designed so that prisoners
pursue administrative grievances until they receive a final denial of the
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claims, appealing through all available stages in the administrative process. Chase, 286 F. Supp.
2d at 530; Gibbs v. Bureau of Prisons, 986 F. Supp. 941, 943-44 (D. Md. 1997) (di~missing a
federal prisoner's~ lawsuit for failure to exhaust, where plaintiff did not appeal his administrative
claim through all four stages of the BOP's grievance process); see also Booth v. Churner, 532 U.S.
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731, 735 (2001) (affirming dismissal of prisoner's claim for failure to exhaust where he "never
sought intermediaie or full administrative review after prison authority denied relief"); Thomas v.
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Woolum, 337 F.3d 720, 726 (6th Cir. 2003) (noting that a prisoner must appeal administrative
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rulings "to the hiJhest possible administrative level"); Pozo v. McCaughtry, 286 F.3d 1022, 1024
(7th Cir. 2002). (plisoner must follow all admi~istrative steps to meet the exhaustion requirement,
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but need not seek judicial review).
Here, the :Defendants· provide-and Burkett· does not dispute the authenticity of-the
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·grievance procedJre available at WCDC, which provides:

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If you have a complaint that cannot be resolved informally with staff, you may
access t4e Inmate Grievance Procedure. To access the Inmate Grievance
Procedure, send an Inmate Request Form to Classification stating why you need
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to receive a Grievance Form. When you receive the form, you will be advised
as to which Captain you should forward it to.
A Captain may assign another appropriate staff member to investigate and
respond to your Grievance or he may respond himself. You should receive a
written response within (15) working days (weekends and holidays are not
counted) of the date your Grievance Form was received by the Captain.
If you are not satisfied with the outcome, you have (7) days to send a written
appeal to the Warden. No special form is needed. State your reasons for
•disagreeing with the outcome. State what you want done. The Warden will notify
you of his decision in writing within (15) working days (weekends and holidays
are not counted) from the date he receives your appeal. Abuse of the Inmate
Grievance Procedure may result in disciplinary action being taken against you.
ECF 9-2, at 56. Defendants argue that all ofBurkett's claims are unexhausted, requiring dismissal.•
The Court agrees. Burkett alleges that this incident occurred on February 9, 2024. ECF 1. His
complaint is not dated, but it was received by the Court for filing only seventeen (17) days later,
on February 26, 2024. Given the WCDC grievance procedures and applicable response timelines
outlined above, it is impossible that Burkett completed the process, which allow for fifteen (15)
days for a Captain's response, seven days to appeal to the Warden, and fifteen (15) days for the·
Warden to respond. ECF 9-2, at 56. Burkett concedes as much in frankly acknowledging that he
purposefully "bypassed the in-house grievance process" and proceeded straight to filing suit. ECF
1, at 4 .
It bears noting that his allegation is, at its core, one alleging sexual misconduct and
invoking the protections of the PREA.' In Johnson, the Fourth Circuit noted that the Maryland
Department of Public Safety and Corrections, "elected to D exempt 'sexual misconduct' claims
against a prison official from its [grievance] process." 105 F.4th at 109. There is no evidence that
Burkett's place of confinement-·-WCDC----exempts accusations of sexual abuse from its
traditional grievance process. Id. at 108 ("Prisons 'that exempt sexual abuse allegations from their
remedial schemes are exempt from this standard, because their inmates may proceed directly to
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court."' (citations' omitted)); id. at 109 (citing the DPSCS's grievance policy and noting that it.
"does not permitlthe use of an informal resolution process or .[grievance] to resolve complaints of
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rape, sexual ass!ult, sexual harassm~nt, sexual abuse[,] sexual misconduct, inmate on inmate
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sexual conduct, or other areas afforded protections by standards established under the authority of
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the [PREA] and related Department procedures." (some alterations in original)). 5

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Burkett alleges that he avoided the grievance process because "it lacks the fundamental
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principles of the ,process" and "is designed to be a months long process with no paper trail that

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stays in house with accused colleagues
making the decision." ECF 1, at 4. While it is often the

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case that an in-h~use grievance process appears to go nowhere, at least from the perspective of the
person filing the'.grievance, this Court is not permitted to "read futility or other exceptions into
statutory exhaustion requirements where Congress has provided otherwise." Booth v. Churner,
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PREA standards do not permit a prison or jail to "require an inmate to use any informal grievance
process, or to ot~erwise attempt to resolve with staff, an alleged incident of sexual abuse." 28
C.F.R. § l 15.52(b)(3). WCDC's administrative grievance procedure does appear to endorse an
informal resoluti6n of grievances. ECF 9-2, at 56 ("If you have a complaint that cannot be resolved
informally with Jtaff, you may access the Inmate Grievance Procedure."). Moreover, a jail or
prison "shall not Iimpose a time limit on when an inmate may submit a grievance regarding an
allegation of sexual abuse." 28 C.F.R. § l l 5.52(b )(I). No party has raised the question of whether
this preamble to1 the grievance procedure requires the use of informal channels to resolve
allegations of se~ual misconduct at the facility, just as no party has argued that WCDC requires
the filing of suc~I a grievance within a time limit. As such, the Court will not address these
questions either. ffowever, the Court notes that the "Inmate Grievance Procedure" does not appear
to include any time limitations for the filing of any grievance. ECF 9-2, at 56. Further, Defendants
do not argue thatiPlaintiff was required to pursue an informal resolution of his grievance; rather,
Defendants alleg~ that Plaintiff began the process of alleging a PREA grievance but voluntarily
abandoned it. ECF
9-1, at 6 ("Here, Plaintiff claims
he made a report with PREA, an agency
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established by Washington County Sheriffs Office to oversee efforts to comply with the PREA
standards in all of its lockups and detention facilities. Plaintiff filed his report on February 12,
2024, and then filed this Complaint two weeks later as he did 'not hear anything back yet."')
(quoting ECF 1, qt 4)). Putting aside the fact that "PREA complaints are not prison grievances for
purposes of satisfying the administrative remedies requirement under the PLRA," Barringer v.
Stanley, No. 5:l~-CV-17-FDW, 2017 WL 1-028595, at *3 (W.D.N.C. Mar. 16, 2017), Plaintiff
admits that he affirinatively chose not to participate in the formalized WCDC grievance process.
even thought it was clearly available to him, see ECF I, at 4.
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532 U.S. 731, 741 n.6 (2001). Further, beyond conclusory statements, Plaintiff has failed to show
that WCDC's "administrative procedure is unavailable"-meaning that, "despite what [its]
regulations or guidance materials may promise[,] it operates as a simple dead end-with officers
unable or consistently unwilling to provide any relief to aggrieved inmates." Ross, 578 U.S. at
643.
Burkett has provided no basis for the Court to find that the grievance process can be
bypassed in this case. As his claims are unexhausted, this Court cannot consider them, and the
complaint must be dismissed without prejudice.

IV.

Conclusion
For the foregoing reasons, I shall grant the Defendants' Motion (ECF 9), and the complaint

is dismissed without prejudice.
• A separate implementirig order follows.

Isl

November 22, 2024
Date

Brendan A. Hurson
United States District Judge

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