STOLLARD v. GWYNN et al

Filing 19

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/17/2021 that the Motion (Docket Entry 15 ) be granted in part and denied in part as follows: Plaint iff's official-capacity claims against Defendants be dismissed on sovereign immunity grounds and his claims against Carver and Cassady, as well as any retaliatory transfer claim against Defendants, be dismissed without prejudice for failure to exhaust administrative remedies. re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by CASSADE, GWYNN, CARVER, STEVENS.(Taylor, Abby)

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

JONATHAN STOLLARD,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
C/O GWYNN, et al.,
Defendants.

1:19cv926

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This

case

comes

before

the

undersigned

United

States

Magistrate Judge for a recommendation on the “Motion to Dismiss”
(Docket Entry 15) (the “Motion”).1

For the reasons that follow,

the Court should grant in part and deny in part the Motion.
BACKGROUND
In September 2019, Jonathan Stollard (the “Plaintiff”), an
inmate with the North Carolina Department of Public Safety (the “NC
DPS”), commenced this action pursuant to 42 U.S.C. § 1983 against
certain officials at Caswell Correctional Center (the “Caswell CI”
or “Caswell”) for their alleged violation of his constitutional
rights during his incarceration at Caswell.
(the “Complaint”) at 1-15.)2

(See Docket Entry 2

More specifically, the Complaint

1
For legibility reasons, this Opinion uses standardized
capitalization, spelling, and punctuation in all quotations from
the parties’ materials.
2 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 1 of 22

identifies the following as defendants:

“C/O Gwynn” and “C/O

Stevens,” each a “Detention Officer [at] Caswell CI” (id. at 3);
“Supt. Carver,” the “Corr. Admin. [at] Caswell CI” (id. at 4);
“Asst. Supt. Cassade,” the “Asst. Corr. Admin. [at] Caswell CI”
(id.); and “Caswell CI Medical Dept Officials,” identified as
“Medical Tech. at Caswell CI.” (id.).
According to the Complaint:
On December 17, 2018, Caswell Correction Officers Stevens and
Gwynn verbally and physically assaulted Plaintiff. (See id. at 5.)
In particular, Plaintiff “was cursed at [and his hands were]
handcuffed

behind

[his]

back

[before

he

was]

picked

up

and

repeatedly slammed onto the concrete floor by Correction Officers
[Gwynn and Stevens].”

(Id.; see also id. at 12-13 (alleging that

Officers Stevens and Gwynn “handcuffed and slammed [Plaintiff] on
the floor”).)

In addition, Plaintiff “was beaten by [Officer]

Stevens[ and Officer] Gwynn.”

(Id. at 5.)

This beating caused

“numerous severe injuries to [Plaintiff’s] wrist, fingers, hands,
lower back, and neck area.”

(Id. at 13.)

However, Plaintiff “was

deprived of immediate medical treatment and placed in a Restrictive
Housing Unit.”

(Id.)

Plaintiff made “[n]umerous request[s] . . .

to receive an Emergency Sick Call, due to numbness in [his] hands,
arms, legs, and lower back,” but “Defendants and their officials
deprived [him] of receiving medical treatment/assistance.” (Id. at
5-6 (brackets omitted).)

2

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 2 of 22

“Several weeks later after receiving x-ray[s, Plaintiff] was
later examined by a medical doctor at a local hospital” (id. at 6),
but the intervening “[d]eprivation of adequate medical treatment[
caused] permanent damage[] to [Plaintiff’s] wrist, back, hand,
neck, and fingers” (id. at 13). Plaintiff also suffers from mental
anguish, PTSD, and nightmares from the assault.

(Id. at 6-7.)

In

addition, “as a means of direct retaliation from defendants[,
Plaintiff] received [a] transfer from Caswell CI, due to defendants
[]posing a direct threat to [his] life and safety.”

(Id. at 6.)

Plaintiff filed “Grievance Complaints” regarding these matters.
(Id.)
Thereafter, Plaintiff returned and the Clerk issued summonses
to “(Caswell CI) Corr. Officer Gwynn” (Docket Entry 5 at 1);
“(Caswell CI) Corr. Officer Stevens” (id. at 3); “(Caswell CI)
Corr. Admin. Carver” (id. at 5); “(Caswell CI) Asst. Corr. Admin.
Cassade” (id. at 7); and “(Caswell CI) Caswell Corr. Medical Staff”
(id. at 9).

Each summons lists 444 County Home Road, Blanch, NC

27212, the address for Caswell CI, see https://www.ncdps.gov/adultcorrections/prisons/prison-facilities/caswell-correctional-center
(last visited Feb. 17, 2021), as the relevant defendant’s address.
(See Docket Entry 5 at 1-9.)

The United States Marshals Service

served the summonses and Complaint via certified mail on December
17, 2019.

(See Docket Entries 8-11, 14.)

The postal service

delivered the summonses for Gwynn, Stevens, Carver, and Cassade on

3

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 3 of 22

December 20, 2019 (see Docket Entries 8-11), but failed to deliver
the summons to the “Caswell Corr. Medical Staff” (see Docket Entry
14 at 2 (reflecting, as most recent update as of March 11, 2020,
postal service tracking message dated December 23, 2019, indicating
that package remained “In Transit to Next Facility . . . within the
USPS network”)).
On March 30, 2020, “Defendants Stevens, Gwynn, Carver, and
Cassady” moved to dismiss the Complaint on the grounds of, inter
alia, “improper service of process[] and Plaintiff’s failure to
state a claim upon which relief can be granted” (Docket Entry 15 at
1). (See id. at 2.)

In response, Plaintiff requested an extension

of time to respond to the Motion (see Docket Entry 18 (the
“Amendment”) at 1), and also sought to “tell [the Court] a little
about this incident” (id. at 2; see id. at 2-9 (elaborating on
allegations in Complaint)).

Dated April 15, 2020 (see id. at 1),

and mailed from the Dan River Prison Work Farm (see Docket Entry
18-1 at 1), the Amendment arrived at the courthouse on April 21,
2020 (see id.), and was filed the same day (see Docket Entry 18 at
1).

The Court granted the extension request (see Text Order dated

July 9, 2020), but Plaintiff made no additional filings (see Docket
Entries dated July 9, 2020, to present).
Because Plaintiff submitted the Amendment within “21 days
after service of [the Motion],” Fed. R. Civ. P. 15(a)(1)(B), it
constitutes an amendment of right under Rule 15 of the Federal

4

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 4 of 22

Rules of Civil Procedure (the “Rules”).

The Amendment provides

significantly more detail regarding Officer Stevens’s and Officer
Gwynn’s alleged assault on Plaintiff on December 17, 2018 (see
Docket Entry 18 at 2-6),3 including that Officer Gwynn allegedly
picked Plaintiff up “and slammed [him] as hard as he could on[to]
the floor” before he “grabbed the back of [Plaintiff’s] head” and
turned it so that Plaintiff’s “face was on the concrete and [then]
pushed [Plaintiff’s] face into the concrete pushing all his weight
on [Plaintiff’s] head” (id. at 4).

Additionally, the Amendment

states:
Officer Stevens then jump[ed] down onto [Plaintiff]
and both Officers together grabbed [Plaintiff’s] arms and
put handcuffs on [Plaintiff]. Officer Gwynn then grabbed
[Plaintiff’s] right thumb and ben[t] it [un]til it broke.
[Plaintiff] felt it and told him he just broke
[Plaintiff’s] thumb. Officer Gwynn and Officer Stevens
both were laughing.
Then Officer Stevens grabbed
[Plaintiff’s] left thumb and bent it until [Plaintiff]
felt it break. [Plaintiff] then said you broke my other
thumb. The pain was so great [that Plaintiff] started to
cry because it really hurt. Then Officer Stevens said
you’re lucky that’s all we f-king did to you. Officer
Gwynn the[n] called a Code 4 on the walkie talkie. And
Officer Gwynn and Officer Stevens started elbowing
[Plaintiff’s] sides and punching on [Plaintiff] while
they were saying stop resisting. [Plaintiff] was not
resisting them[, he] was moving because [he] was being
hit and elbowed in [his] ribs. [Plaintiff] ha[s] long
hair [and] Officer Gwynn then pulled [his] head off the
floor by [his] hair and slammed [his] head back to the
floor face first. By this time other officers c[a]me
running in and Officer Gwynn and Officer Stevens [we]re
saying stop resisting so the other officers jump[ed] on
top of [Plaintiff] also.
The officers la[id] on
3 The Amendment notes that, “[w]hile this was happening there
[we]re windows all around [them] so other inmates start[ed] to
watch this happen.” (Id. at 3.)
5

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 5 of 22

[Plaintiff] for about 2 or 3 minutes then they snatch[ed
him] up off the floor[ a]nd Officers Stevens and Sergeant
Terell walk[ed Plaintiff] across the prison yard bare
footed to segregation.
When [Plaintiff] g[o]t into
segregation the officers t[ook] him into the strip room.
(Id. at 4-5.)
As to the events that followed, the Amendment alleges:
Officer Stevens directed Plaintiff to remove his clothing,
which Plaintiff did.

(See id. at 5.)

Officer Stevens then gave

Plaintiff a series of orders, with which Plaintiff originally
complied, but to which he ultimately objected on the grounds that
the specified conduct “[wa]s not necessary.”
“Officer

Stevens

step[ped]

up

in

(Id.)

In response,

[Plaintiff’s]

face

while

[Plaintiff was] naked and sa[id,] ‘You better f-king do it or I
will beat your f-king a-s back here.’”

(Id.)

“At this time

another officer walk[ed] in and sa[id] what are you doing put your
. . . clothes on now.

[Plaintiff] told him [Plaintiff could not

because] Officer Stevens ha[d Plaintiff’s] boxers in his hand.”
(Id. at 5-6.) “Officer Stevens threw the boxers at [Plaintiff] and
[he] got dressed.”

(Id. at 6.)

“[Plaintiff] was the[n] shackled

and handcuffed and chained around [his] waist and then put in a
cell,” where he stood “for about 20 minutes before the[y] took
[him] to medical.”

(Id.)

“When [Plaintiff] got there[, he] told

medical that [his] finger[s] were broken.
you know?’”

(Id.)

The nurse said ‘How do

Plaintiff informed the nurse that he “felt it

when the officers broke them.

[Plaintiff] was then taken back to

6

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 6 of 22

Segregation and put into a cell after the chains and cuffs were
removed.”

(Id.)

The Amendment continues:
Two days later a mobile x-ray nurse came and x-rayed
[Plaintiff’s] hands. After she took the x-ray she asked
was [Plaintiff] ok.
[Plaintiff told] her [his] hands
hurt really bad[ and] she said they are definitely broken
[and] you need to go to the hospital. She then said I’m
going to tell them you need to go. [Plaintiff] said ok
thank you and was t[a]k[en] back to [his] cell.
[Plaintiff] did not go to the doctor until December 31st.
[Plaintiff] was in extreme pain for 2 weeks. When [he]
went to the doctor on the 31st the doctor asked [him]
when this happened[. Plaintiff] told him about 2 weeks
ago [and] he said “why did you wait so long to come?”
[Plaintiff] told him [Plaintiff] had to wait for them to
bring [him and the doctor] said the prison didn’t even
call to make [Plaintiff’s] appointment until the 27th of
December.
[Plaintiff] told him [Plaintiff] did [not]
have any control over making the appointment. The doctor
then took [Plaintiff] into his x-ray room and took his
own x-rays.
When he came back in the room he told
[Plaintiff] that [Plaintiff] had to have hard cast[s] put
on both hands.
He asked how did it happen [and
Plaintiff] told him what happen[ed] and he said “Yeah I
can see they were forced breaks. But the bad thing is
that they have . . . healed deformed because of the time
the medical waited to bring [Plaintiff] to the doctor.[”]
When [Plaintiff] got back to the prison the
Superintendent Mr. Carver came to Segregation to talk to
[Plaintiff].
He asked what happen[ed] so [Plaintiff]
told him. He then asked was there anybody that could
verify [Plaintiff’s] story so [Plaintiff] gave him some
of the inmates’ names that [Plaintiff] knew. He then
told [Plaintiff that] “He didn’t need this bulls-t
happening on his watch because he was trying to retire in
5 months and he was not try[ing to] have to deal with
this mess.[”
Plaintiff] told him [Plaintiff] didn’t
either and [Plaintiff] didn’t deserve this. Mr. Carver
said I know you didn’t. He then told [Plaintiff,] he
said[,] “I’ve never even heard your name and you [have]
been here 9 months so I know you don’t cause any
trouble.[”] Mr. Carver then asked [Plaintiff] was there
another prison that [Plaintiff] want[ed] to go to closer
7

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 7 of 22

to [his] house.
Because he did [sic] need no d-n
lawsuit. [Plaintiff] told him [he] requested to come [to
Caswell] for the welding program to get certification and
[Plaintiff was] only 30 minutes from home. Mr. Carver
then told [Plaintiff that] he would make sure [Plaintiff]
was in the welding program as long as [Plaintiff]
promised not to file a lawsuit. He also said he would
give [Plaintiff] contact visits while [Plaintiff] was in
Seg[regation] which [Plaintiff] know[s] was against the
rules. So that’s when [Plaintiff] knew he was trying to
bribe [Plaintiff]. He also told [Plaintiff] the charge
of assault on an[] Officer.
That he would make it
disappear. And it did.
[Plaintiff] stayed in Seg[regation] about 40 some
days and got out and a lawyer came to see [Plaintiff
named] Jacob Daniels.
He got all [of Plaintiff’s]
paperwork and [Plaintiff has] never seen or heard from
him again. Then in June [Plaintiff] was shipped out to
Salisbury prison [and] when [he] got there [his]
programmer told [him that Plaintiff] signed up for a cook
job in the kitchen.
Which [Plaintiff] never did[.
Plaintiff] wanted to weld not cook.
So [Plaintiff]
know[s he] was sent the[re] out of retaliation.
In
August 2019[, Plaintiff] got honor grade and was sent to
Dan River which is across the street from Caswell [CI].
When [Plaintiff] got [t]here [he] was and still [is]
being harassed by officers [t]here[;] they are asking
what happened and do[es Plaintiff] have a lawsuit. A few
have c[o]me and searched [Plaintiff] and tore up [his]
family pictures and broke [his] stuff and told [him]
Officer[] Gwynn is their hunting buddy and they should
have f-ked [Plaintiff] up more than they did.
The
Superintendent [t]here at Dan River Mr. Roach told
[Plaintiff] that this prison and Caswell are a “tight
knit family so of course there is friend and family of
officers at Caswell so [Plaintiff is] just [going to]
have to deal with it.[”] Mr. Roach took [Plaintiff’s]
girlfriend off [his] visit list. And said [Plaintiff]
shouldn’t have filed a suit. So now [Plaintiff] can’t
see [his] kids [and his] mail is being held or not even
given to [him]. And not being sent out. [Plaintiff] is
a mechanic by trade and [he] can’t use [his] hand to work
so [he] do[es]n’t know how [he is] going to take care of
[his] family once [he is] released. [His] hands hurt so
bad.
[He] was suppose[d] to do physical therapy for
[his] hands at Caswell but was shipped out and when [he]

8

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 8 of 22

asked about it the nurse sa[id] there is not paperwork on
it. . . .
(Id. at 6-9.)
DISCUSSION
I. Relevant Standards
“Defendants

Stevens,

Gwynn,

Carver,

and

Cassady”

(collectively, the “Defendants”) move to dismiss this action for,
inter alia, “improper service of process” under Rule 12(b)(5).
(Docket Entry 15 at 1.)

As this Court previously explained:

The plaintiff bears the burden of establishing that the
service of process has been performed in accordance with
the requirements of [Rule] 4. In determining whether the
plaintiff has satisfied his burden, the technical
requirements of service should be construed liberally as
long as the defendant had actual notice of the pending
suit.
When there is actual notice, every technical
violation of the rule or failure of strict compliance may
not invalidate the service of process. But the rules are
there to be followed, and plain requirements for the
means of effecting service of process may not be ignored.
Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003) (internal
quotation marks and citations omitted).
In addition, Defendants move to dismiss Plaintiff’s officialcapacity claims on sovereign immunity grounds, contending that the
Eleventh Amendment bars Plaintiff’s official-capacity claims for
monetary damages.
Defendants

present

jurisdiction,”
protection

(See Docket Entry 16 at 4-5, 11-12.)

as

consideration.”

“a

facial

entitling
he

would

challenge

Plaintiff
receive

to

to

“the

under

subject
same

a

Rule

As such,
matter

procedural
12(b)(6)

Kerns v. United States, 585 F.3d 187, 192 (4th
9

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 9 of 22

Cir.

2009)

(internal

quotation

marks

omitted).

“In

[such]

situation, the facts alleged in the complaint are taken as true,
and the motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.”

Id.

Defendants also move to dismiss certain of Plaintiff’s claims
pursuant to Rule 12(b)(6). (See Docket Entry 15 at 1; Docket Entry
16 at 1.)

In reviewing a Rule 12(b)(6) motion, the Court must

“accept the facts alleged in the complaint as true and construe
them in the light most favorable to the plaintiff.”

Coleman v.

Maryland Ct. of App., 626 F.3d 187, 189 (4th Cir. 2010), aff’d sub
nom., Coleman v. Court of App. of Md., 566 U.S. 30 (2012).

The

Court must also “draw all reasonable inferences in favor of the
plaintiff.”

E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435,
omitted).

440

(4th

Moreover,

a

Cir.
pro

2011)
se

(internal

complaint

quotation

must

“be

marks

liberally

construed” and “held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (internal quotation marks omitted); but see Giarratano v.
Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (explaining that the
United States Court of Appeals for the Fourth Circuit has “not read
Erickson to undermine [the] requirement that a pleading contain
more

than

labels

and

conclusions”

(internal

quotation

marks

omitted)).

10

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 10 of 22

To avoid Rule 12(b)(6) dismissal, a complaint must contain
sufficient factual allegations “to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To qualify as plausible, a claim needs sufficient factual
content to support a reasonable inference of the defendant’s
liability for the alleged misconduct.
U.S. at 556).

Id. (citing Twombly, 550

The complaint need not contain detailed factual

recitations, but must provide “the defendant fair notice of what
the claim is and the grounds upon which it rests.”

Twombly, 550

U.S. at 555 (internal quotation marks and ellipsis omitted).

“At

bottom, determining whether a complaint states . . . a plausible
claim for relief . . . will ‘be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quoting Iqbal, 556 U.S. at 679).
Finally,

in

ruling

on

a

Rule

12(b)(6)

motion,

“a

court

evaluates the complaint in its entirety, as well as documents
attached or incorporated into the complaint.”
F.3d at 448.
the motion to

E.I. du Pont, 637

The Court may also consider documents “attached to
dismiss, so long as they are integral to the

complaint and authentic.”

Philips v. Pitt Cty. Mem’l Hosp., 572

F.3d 176, 180 (4th Cir. 2009).

Generally, a “court cannot go

beyond these documents” without “convert[ing] the motion into one

11

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 11 of 22

for

summary

judgment.”

E.I.

du

Pont,

637

F.3d

at

448.

Nevertheless, “[i]n reviewing a Rule 12(b)(6) [motion, the Court]
may properly take judicial notice of matters of public record.”
Philips, 572 F.3d at 180.
II. Preliminary Matters
“As a general rule, an amended pleading ordinarily supersedes
the original and renders it of no legal effect.”

Young v. City of

Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (internal quotation
marks omitted).

Thus, the filing of an amended complaint normally

moots a pending motion to dismiss.

See, e.g., Mooney v. Cato

Corp., No. 1:07cv76, 2007 WL 2406961, at *1 (W.D.N.C. Aug. 20,
2007).

Here, however, many of Defendants’ dismissal arguments

apply as equally to the Amendment as to the Complaint.

(See, e.g.,

Docket Entry 16 at 8-9 (urging dismissal on grounds that, inter
alia,

“(A)

Plaintiff

failed

to

properly

serve

Defendants;

(B) Defendants are entitled to sovereign immunity for official
capacity

claims;

administrative

[and]

(C)

remedies”).)

Plaintiff
Under

failed
the

to

exhaust

his

circumstances,

the

undersigned will “consider the [M]otion as being addressed to the
[A]mend[ment],” 6 Charles Alan Wright, et al., Federal Practice and
Procedure

§

1476

(3d

ed.).

See

Brumfield

v.

McCann,

No.

2:12-cv-1481, 2013 WL 943807, at *2-3 (S.D. W. Va. Mar. 11, 2013)
(granting motion to amend complaint, but concluding that court

12

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 12 of 22

could still consider pending dismissal motions, and collecting
cases).
III. Service Challenge
Defendants first maintain that they “were improperly served
because someone else signed for the summons.”
9.)

(Docket Entry 16 at

According to Defendants:
Rule 4(e) states that individuals must be served by
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to receive
service of process.
Fed. R. Civ. P. 4(e)(2). The rules does [sic] not allow
service to be accomplished by leaving a copy of the
summons and complaint at the individual’s place of
employment with someone else.
Instead, if service is
accomplished at the defendant’s place of employment, it
must be served on the defendant personally.
In this case, the Return of Service clearly
indicates that the Summons and Complaint were served at
the Caswell Correctional Center — not the Defendants’
respective residences.
As such, Rule 4 requires that
each of the Defendants were required to sign for their
respective copies of the Summons and Complaint. However,
that did not occur — Amy Durham (not Defendants) signed
for the Summons and Complaint.
Thus, Plaintiff has
improperly served Defendants. Without proper service,
the Court lacks personal jurisdiction.
Therefore,
Plaintiff’s Complaint should be dismissed.

(Docket Entry 16 at 9-10 (emphasis in original).)

13

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 13 of 22

Relying
argument

strictly

overlooks

on

Rule

Rule

4(e)(2)

4(e)(1),

(see

which

id.),

permits

Defendants’
service

by

“following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district
court is located or where service is made,” Fed. R. Civ. P.
4(e)(1).

North Carolina state law permits service via certified

mail to a defendant’s place of employment.

See, e.g., Moore v.

Cox, 341 F. Supp. 2d 570, 573 (M.D.N.C. 2004).
Moreover, if the certified mail receipt “[i]s signed by a
person other than the addressee, North Carolina presumes ‘that the
person who received the mail . . . and signed the receipt was an
agent of the addressee authorized by appointment or by law to be
served or to accept service of process.’”
5:10-ct-3105,

2012

WL

43593,

at

*5

Godfrey v. Long, No.

(E.D.N.C.

Jan.

9,

2012)

(ellipsis in original) (quoting N.C. Gen. Stat. § 1A–1, Rule
4(j2)(2)), aff’d, 472 F. App’x 174 (4th Cir. 2012); see also Moore,
341 F. Supp. 2d at 573 (observing that “a person authorized to
receive mail is an authorized agent for purposes of receiving
service of process in North Carolina”).4

“A party may rebut this

presumption of valid service with ‘affidavits of more than one
person showing unequivocally that proper service was not made upon

4 It also bears noting that “[p]olicy considerations likewise
do not support [Defendants’] proposed construction: indeed, many
defendants sued in connection with their work might prefer that
plaintiffs not be encouraged to seek out their home addresses.”
Waller v. Butkovich, 584 F. Supp. 909, 926 (M.D.N.C. 1984).
14

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 14 of 22

the person of the defendant.’”

Godfrey, 2012 WL 43593, at *5

(quoting Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94
(1996)).

However,

“‘[a]

defendant

who

seeks

to

rebut

the

presumption of regular service generally must present evidence that
service of process failed to accomplish its goal of providing
defendant with notice of the suit, rather than simply questioning
the identity, role, or authority of the person who signed for
delivery of the summons.’”

D.B.G. v. Robeson Cty. Bd. of Educ.,

No. 7:18-cv-122, 2019 WL 1005195, at *3 (E.D.N.C. Mar. 1, 2019)
(quoting Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 493, 586
S.E.2d 791, 797 (2003)).
Here, “[t]here is no showing of improper service. On [January
3, 2020], the United States Marshal filed [returns] of service on
[Defendants] indicating service on [them] via certified mail,
return receipt requested.

[(See Docket Entries 8-11.)]

The

attached return receipt[s] show[] that the delivery was accepted by
‘[Amy L Durham (see id.)]’ who, under North Carolina law, is
presumed

to

be

[Defendants’]

agent

Godfrey, 2012 WL 43593, at *5.
affidavits challenging service.

for

service

of

process.”

Defendants failed to file any
(See Docket Entries dated Jan. 3,

2020, to present.) Accordingly, “[b]ecause [Defendants] ha[ve] not
overcome the presumption of valid service under North Carolina law,
the [C]ourt [should] den[y their request to dismiss] based on
improper service.”

Godfrey, 2012 WL 43593, at *5.

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Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 15 of 22

IV. Exhaustion Challenge
Defendants

next

contend

that

Plaintiff’s

claims

against

“Carver and Cassady should be dismissed because Plaintiff failed to
exhaust his administrative remedies.”

(Docket Entry 16 at 16.)

Defendants similarly assert that, “to the extent that Plaintiff’s
Complaint is interpreted to include a claim of retaliation, claim
of unauthorized transfer, or some other type of due process claim,
. . . such claims should be dismissed because Plaintiff failed to
exhaust his administrative remedies.”

(Id.)

As relevant here, the Prison Litigation Reform Act of 1995, as
amended (the “PLRA”), provides that “[n]o action shall be brought
with respect to prison conditions under section 1983 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 exhausted.”

42 U.S.C. § 1997e(a).

This “exhaustion requirement applies to all inmate suits about
prison

life,

whether

they

involve

general

circumstances

or

particular episodes, and whether they allege excessive force or
some other wrong.”

Porter v. Nussle, 534 U.S. 516, 532 (2002).

The defendant bears the burden of establishing that a prisoner
failed to exhaust administrative remedies.

See Jones v. Bock, 549

U.S. 199, 216 (2007) (“We conclude that failure to exhaust is an
affirmative defense under the PLRA, and that inmates are not

16

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 16 of 22

required to specially plead or demonstrate exhaustion in their
complaints.”).
Nevertheless, the “exhaustion of administrative remedies under
the PLRA is a question of law to be determined by the judge.”
Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010); see also
Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (“[A]ll . . . of
the circuits that have considered the issue agree that judges may
resolve factual disputes relevant to the exhaustion issue without
the participation of a jury.” (internal quotation marks omitted)).
A prisoner satisfies the PLRA exhaustion requirement when he “ha[s]
utilized all available remedies ‘in accordance with the applicable
procedural rules,’ so that prison officials have been given an
opportunity to address the claims administratively.”

Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (quoting Woodford v.
Ngo,

548

U.S.

81,

88

(2006)).

Thus,

the

relevant

prison’s

grievance procedures determine the steps that a prisoner must take
to meet his exhaustion obligations.

See id. at 726.

Plaintiff asserts in his Complaint that he filed “Grievance
Complaints” regarding the “[a]ctions of defendants.” (Docket Entry
2 at 6.)

Defendants attached two grievances to the Motion, which

NC DPS officials indicate “represent all completed Step 3 appeal
[grievance] records” for Plaintiff from January 1, 2018, through
March 11, 2020.

(Docket Entry 16-1 at 3 (emphasis in original).)5

5 “The NC DPS provides a three-step administrative review
process for inmate grievances.” Grady v. Brayboy, No. 1:18cv777,
17

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Plaintiff did not address the grievances in the Amendment.

(See

Docket Entry 18; see also Docket Entry 17 at 1 (warning Plaintiff
that “failure to respond or, if appropriate, to file affidavits or
evidence in rebuttal within the allowed time may cause the [C]ourt
to conclude that the defendant(s)’ contentions are undisputed”).)
The first grievance, dated January 1, 2019, states that, “[o]n
12-17-18[,]

Officer

Gwynn

and

Officer

Stevens

broke

[Plaintiff’s] thumbs after [he] was placed in handcuffs.”
Entry 16-1 at 4 (the “Assault Grievance”).)

both

(Docket

As a remedy, the

Assault Grievance requests that Officer Stevens’s and Officer
Gwynn’s “contracts [be] terminated to prevent anyone else from
getting hurt the same way or worse.”

(Id.)

The Step One and Step

Two responses state that the NC DPS “[wa]s aware of [Plaintiff’s]
allegations” and undertaking an investigation, which negated the
need for “further action . . . at this level” of the grievance
process.

(Id. at 6; accord id. at 5.)

In turn, the Step Three

response states:
This examiner has reviewed this grievance and the
response given by staff in the Step 1 and Step 2
responses. My review of this grievance reveals serious
allegations made against staff at Caswell C[I], which is
[Plaintiff’s] current housing location. [Plaintiff] was
provided medical care for [his] injuries. [His] medical

2019 WL 5064846, at *1 n.3 (M.D.N.C. Oct. 9, 2019), report and
recommendation adopted, No. 1:18-cv-777, 2019 WL 11069406 (M.D.N.C.
Nov. 6, 2019); see generally State of North Carolina Department of
Public Safety Prisons, Policy & Procedures, Administrative Remedy
Procedure, https://files.nc.gov/ncdps/div/Prisons/Policy_Procedure_
Manual/G.0300_08_01_13.pdf (last visited Feb. 17, 2021).
18

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 18 of 22

concerns related to this incident were resolved in a
separate grievance (#00012).
[Plaintiff’s] grievance remedy request was that the
staff involved be “terminated”, ‘so that no one else
could get hurt the same or worse from them’.
This
examiner has determined that the allegations have been
investigated (report #4415-18-176) by the Facility
Investigator. During the course of this investigations,
the staff involved had been assigned duties with NO
offender contact so that there would no opportunity for
[Plaintiff] to be supervised by them. The investigation
appears appropriate, and was referred for review,
approval and possible disciplinary action (up to
including dismissal) to the Director of Prisons.
This
examiner
has
verified
that
the
above
information
and
Investigation
meets
[Plaintiff’s]
grievance remedy request, therefore the grievance is
dismissed as resolved.
(Id. at 7 (emphasis in original).)
As this response reflects, Plaintiff also filed a grievance
regarding the medical treatment he received in connection with his
injuries. (See id. at 8 (the “Medical Grievance”).) Dated January
16, 2019, this grievance states:
On 12-17-18[, Plaintiff’s] thumbs were injured. The
nurses ordered for xrays on 12-19-18. The xrays showed
[Plaintiff’s] thumbs were broken. Medical failed to set
up
[Plaintiff]
an
appointment
until
12-27-18[.
Plaintiff] didn’t go to the doctor until 12-31-18.
[Plaintiff] was in extreme pain for 2 weeks[; Plaintiff]
stated this to the nurses numerous times[.] They acted
like it didn’t matter that [Plaintiff] was in pain. Both
[his] hands were swollen and were black and blue,
purple[,] they were clearly broken.
(Id.)

As a remedy, the Medical Grievance requests that the NC DPS

“hire medical staff that are more professional and reliable.”
(Id.)

Finding “that prison staff have taken appropriate action to

19

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 19 of 22

address

and

resolve

[Plaintiff’s]

concerns

voiced

in

the

grievance,” the Step Three reviewer deemed the Medical Grievance
“resolved by prison staff” and, “therefore, dismissed[ it].”

(Id.

at 11.)
Neither grievance addresses Plaintiff’s claims against Carver
or

Cassady.

(See

id.

at

4,

8.)

Dating

from

Plaintiff’s

incarceration at Caswell CI (see id.), the grievances also do not
address his claims of retaliatory transfer (see Docket Entry 18 at
8).

Plaintiff has therefore failed to exhaust administrative

remedies on these claims, necessitating their dismissal.

See,

e.g., Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir. 2016)
(“Given that [the plaintiff] failed to . . . exhaust his claims,
dismissal is mandatory.”).
V. Official-Capacity Claims
Finally, Defendants move to dismiss Plaintiff’s officialcapacity claims on the grounds that “the Eleventh Amendment bars
such claims.”

(Docket Entry 16 at 11.)

In that regard:

Section 1983 provides a federal forum to remedy many
deprivations of civil liberties, but it does not provide
a federal forum for litigants who seek a remedy against
a State for alleged deprivations of civil liberties. The
Eleventh Amendment bars such suits unless the State has
waived its immunity or unless Congress has exercised its
undoubted power under § 5 of the Fourteenth Amendment to
override that immunity.
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989)
(citation omitted).

Congress did not override States’ eleventh-

amendment immunity in enacting Section 1983, see id., and “North
20

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 20 of 22

Carolina has not waived its sovereign immunity by consenting to be
sued in federal court for claims brought under [Section] 1983,”
Lomick v. Beaver, No. 5:18-cv-57, 2021 WL 328917, at *8 (W.D.N.C.
Feb. 1, 2021).

Moreover, “a judgment against a public servant ‘in

his official capacity’ imposes liability on the entity that he
represents.”

Brandon v. Holt, 469 U.S. 464, 471 (1985).

Per the

Complaint, Defendants all constitute employees of the NC DPS (see
Docket Entry 2 at 3-4), and Plaintiff seeks only “Monetary Rewards”
against them (id. at 8).

Accordingly, “the Court should dismiss

[Plaintiff’s official-capacity] claims [against Defendants] because
any judgment against them would impose liability on the state,
which the Eleventh Amendment would bar.” Fuller v. North Carolina,
No. 1:12cv1198, 2013 WL 5817652, at *5 (M.D.N.C. Oct. 29, 2013).6

6 In addition, Plaintiff’s official-capacity claims against
Officer Gwynn and Officer Stevens lacks merit. Under Section 1983,
official-capacity liability occurs only if “execution of a
government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury.” Collins v. City of Harker Heights,
503 U.S. 115, 121 (1992) (internal quotation marks omitted).
Relevant here, “an official’s discretionary acts, exercised in
carrying out official duties, do not necessarily represent official
policy.” Perdue v. Harrison, No. 1:17cv403, 2017 WL 4804363, at *2
(M.D.N.C. Oct. 24, 2017). “Rather, the official must have ‘final
authority’ over government policy with respect to the action in
question to trigger official capacity liability.”
Id. (certain
internal quotation marks omitted).
The Complaint and Amendment
contain no allegations that Officers Gwynn and Stevens either acted
pursuant to any NC DPS policy or possessed “final authority” over
any such custom or policy. (See generally Docket Entries 2, 18.)
Accordingly, Plaintiff’s official-capacity claims against Officer
Stevens and Officer Gwynn also fail as a matter of law.
21

Case 1:19-cv-00926-WO-LPA Document 19 Filed 02/17/21 Page 21 of 22

CONCLUSION
Defendants’ Rule 12(b)(5) challenge lacks merit, but sovereign
immunity precludes Plaintiff’s official-capacity claims against
Defendants.

In

addition,

Plaintiff

failed

to

exhaust

administrative remedies on his claims against Carver and Cassady,
as well as his claims against Defendants regarding retaliatory
transfer.
IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 15)
be granted in part and denied in part as follows:
official-capacity

claims

against

Defendants

be

Plaintiff’s
dismissed

on

sovereign immunity grounds and his claims against Carver and
Cassady,

as

well

as

any

retaliatory

transfer

claim

against

Defendants, be dismissed without prejudice for failure to exhaust
administrative remedies.
This 17th day of February, 2021.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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