QUEEN v. BARNES

Filing 34

MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE that this case be dismissed based on Plaintiff's failure to exhaust administrative remedies as discussed in the Order entered on February 16, 2011. All pending motions in the case should be terminated, and the action should be closed. Signed by MAG/JUDGE WALLACE W. DIXON on 6/29/11. (Wilson, JoAnne)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DARNELL QUEEN,
Petitioner, pro se,
v.
SHERIFF B. J. BARNES,
Respondent.

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MEMORANDUM OPINION
AND RECOMMENDATION

1:10CV41

Plaintiff, Darnell Queen, brought this civil rights action under 42 U.S.C. § 1983.
In his complaint he alleged that Defendant was responsible for maintaining the
Guilford County Jail, where Plaintiff was housed at the time of filing, in such a state
of overcrowding that it caused Plaintiff to be assaulted by other inmates. The
complaint also stated that Plaintiff was denied proper medical treatment after the
assault. Plaintiff also alleged that Defendant allowed such filthy conditions to exist
in the Jail that Plaintiff suffered sickness and stomach problems which caused him
to vomit blood (docket no. 2, § V).
After further filings by the parties, the court entered an Order on February 16,
2011, in which it found that it appeared that Plaintiff had not exhausted all of his
administrative remedies as to the claims raised in the complaint. The court then
gave Plaintiff the opportunity to clarify the exhaustion issue by filing, under penalty
of perjury, “a statement as to whether or not he exhausted or attempted to exhaust
any of his claims” (docket no. 32 at 7). He was specifically warned that “[f]ailure to

file such a statement will result in the dismissal of this action for failure to exhaust
administrative remedies” (id. at 8-9). After an initial attempt at mailing the prior
Order to Plaintiff was returned as undeliverable, a second mailing was made to an
updated address. Despite the passage of more than three months since the second
mailing, Plaintiff has not filed a statement or requested more time to do so. In fact,
he has not responded to the Order in any way. Therefore, for the reasons set out
in the court’s Order of February 16, 2011, this case should be dismissed.

IT IS THEREFORE RECOMMENDED that this case be dismissed based on
Plaintiff’s failure to exhaust administrative remedies as discussed in the Order

entered on February 16, 2011.

All pending motions in the case should be

terminated, and the action should be closed.

______________________________
WALLACE W. DIXON
United States Magistrate Judge
Durham, N.C.
June 29, 2011

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