Stevens v. Director of Prisons et al

Filing 9

ORDER DISMISSING CASE without prejudice for failure to exhaust administrative remedies. Signed by Chief Judge Frank D. Whitney on 12/22/16. (Pro se litigant served by US Mail.)(emw)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:16-cv-370-FDW
RUSSELL WAYNE STEVENS,

)
)
Plaintiff,
)
)
vs.
)
)
DIRECTOR OF PRISONS, et al.,
)
)
Defendants.
)
___________________________________ )

ORDER

THIS MATTER comes before the Court on initial review of this action filed pursuant to
42 U.S.C. § 1983, (Doc. No. 1). On December 5, 2016, the Court entered an order waiving the
initial filing fee and directing monthly payments to be made from Plaintiff’s prison account.
(Doc. No. 5).
I.

BACKGROUND

Pro se Plaintiff Russell Wayne Stevens is a North Carolina inmate currently incarcerated
at Craggy Correctional Institution in Asheville, North Carolina. Plaintiff filed this action on
November 14, 2016, naming the following persons as Defendants: (1) the “Director of Prisons
for the Western District”; (2) FNU Crowe, identified as a unit manager at Avery/Mitchell
Correctional Institution; (3) FNU Banks, identified as a correctional officer at Avery/Mitchell;
(4) FNU Ball, identified as a correctional officer at Avery/Mitchell; (5) Randy Mull, identified as
a disciplinary hearing officer; and (6) FNU Ledford, identified as a correctional officer at
Avery/Mitchell.
Plaintiff’s action arises out of an incident on August 29, 2016, in which Defendants
Banks, Ball, and Ledford allegedly used excessive force against Plaintiff while Plaintiff was
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incarcerated at Avery/Mitchell. Plaintiff also alleges that he subsequently pled guilty under
duress from Defendant Mull in a related disciplinary hearing. Plaintiff purports to bring Eighth
Amendment claims for excessive force, as well as a Fourteenth Amendment due process claim
against Defendants. As to Defendants “Director of Prisons” and Crowe, Plaintiff purports to
impose liability against these Defendants based on supervisory liability. Plaintiff also purports to
bring various state law tort claims against Defendants, including assault and negligence.
Plaintiff seeks declaratory and injunctive relief, as well as damages.
II.

STANDARD OF REVIEW

Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint
to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious
[or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915A requires an initial review of a “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity,” and the
court must identify cognizable claims or dismiss the complaint, or any portion of the complaint,
if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or seeks monetary relief from a defendant who is immune from such relief. In its
frivolity review, this Court must determine whether the Complaint raises an indisputably
meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or
delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
III.

DISCUSSION

The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust his
administrative remedies before filing a Section 1983 action. 42 U.S.C. § 1997e(a). The PLRA
provides, in pertinent part: “[n]o action shall be brought with respect to prison conditions under
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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.” Id.
In Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court held that the PLRA’s exhaustion
requirement applies to all inmate suits about prison life. The Court ruled that “exhaustion in
cases covered by § 1997e(a) is now mandatory.” Id. at 524 (citation omitted). The Porter Court
stressed that under the PLRA, exhaustion must take place before the commencement of the civil
action in order to further the efficient administration of justice. Id.
In Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held that the PLRA
exhaustion requirement requires “proper” exhaustion: “Administrative law . . . requir[es] 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).’” Id. at 90 (quoting
Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). In Jones v. Bock, 549 U.S. 199
(2007), the Supreme Court stated: “There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.” Id. at 211 (citing Porter, 534
U.S. at 524).
The Fourth Circuit has determined that the PLRA does not require that an inmate allege
or demonstrate that he has exhausted his administrative remedies. Anderson v. XYZ
Correctional Health Servs., 407 F.3d 674 (4th Cir. 2005). Failure to exhaust administrative
remedies is an affirmative defense. “The Court is not precluded, however, from considering at
the outset whether an inmate has exhausted administrative remedies.” Green v. Rubenstein, 644
F. Supp. 2d 723, 742 (S.D. W. Va. 2009). The Fourth Circuit stated in Anderson, 407 F.3d at
683, as follows:
[A]n inmate’s failure to exhaust administrative remedies is an affirmative defense
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to be pleaded and proven by the defendant. That exhaustion is an affirmative
defense, however, does not preclude the district court from dismissing a
complaint where the failure to exhaust is apparent from the face of the complaint,
nor does it preclude the district court from inquiring on its own motion into
whether the inmate exhausted all administrative remedies.
In North Carolina, state prisoners must complete a three-step administrative remedy
procedure in order to exhaust their administrative remedies. See N.C. GEN. STAT. §§ 148-118.1
to 148-118.9 (Article 11A: Corrections Administrative Remedy Procedure); Moore v. Bennette,
517 F.3d 717, 721 (4th Cir. 2008). The law is settled that a plaintiff must exhaust administrative
remedies before filing a claim, and a prisoner is not entitled to exhaust administrative remedies
during the pendency of an action. Cannon v. Washington, 418 F.3d 714, 719 (7th Cir. 2005);
Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999).
Plaintiff attached to his Complaint the initial grievance he submitted related to his claims
here. (Doc. No. 1-1). Plaintiff filed his initial grievance related to the claims raised here on
October 25, 2016. (Id.). Prison officials denied the grievance at Step One on November 2, 2016.
(Doc. No. 6 at 1).

Plaintiff appealed to Step Two, and prison officials denied the grievance at

Step Two, but Plaintiff has not attached the Step Two response. See (Id.). Plaintiff filed this
action on November 14, 2016. Plaintiff appealed his grievance to Step Three, and prison
officials denied the grievance at Step Three on November 29, 2016. (Id. at 2). Here, the record
clearly shows that Plaintiff filed this action before he had proceeded through all three steps of the
administrative remedies process. Plaintiff, therefore, did not exhaust his claims before filing this
action, and his claims must therefore be dismissed.
IV.

CONCLUSION

Plaintiff’s action will be dismissed without prejudice for failure to exhaust administrative
remedies.
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IT IS THEREFORE ORDERED that:
(1) Plaintiff’s action is DISMISSED without prejudice.
(2) The Clerk of Court is directed to terminate this action and mail this Order to
Plaintiff’s current place of incarceration, Craggy Correctional Center, and note such
address change in the docket.

Signed: December 22, 2016

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