Fuller v. Honeycutt et al

Filing 26

ORDER that Defendants' 22 Motion to Dismiss is GRANTED and this action is hereby DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. Signed by Chief Judge Martin Reidinger on 8/1/2022. (Pro se litigant served by US Mail.)(khm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:21-cv-00348-MR
JOHNATHAN A. FULLER,

)
)
Plaintiff,
)
)
vs.
)
)
RONNIE HUNEYCUTT, et al.,
)
)
Defendants.
)
___________________________ )

ORDER

THIS MATTER is before the Court on Defendants’ Motion to Dismiss.
[Doc. 19].
I.

BACKGROUND
Pro se Plaintiff Johnathan A. Fuller (“Plaintiff”) is a prisoner of the State

of North Carolina currently incarcerated at Mountain View Correctional
Institution in Spruce Pine, North Carolina. On November 29, 2021, Plaintiff
filed this action pursuant to 42 U.S.C. § 1983 against fourteen officers and
employees of Avery/Mitchell Correctional Institution (AMCI), Plaintiff’s
previous place of incarceration, as well as the North Carolina Department of
Public

Safety

(NCDPS);

Todd

Ishee,

identified

as

the

NCDPS

Commissioner; and Erik Hooks, identified as the NCDPS Secretary. [Doc.
1]. On initial review of Plaintiff’s Complaint, the Court found that Plaintiff

Case 1:21-cv-00348-MR Document 26 Filed 08/02/22 Page 1 of 11

failed to state any claim for relief under § 1983 and allowed Plaintiff thirty
days to amend his Complaint. [Doc. 8]. In Plaintiff’s verified Administrative
Remedies Statement, he simultaneously attested that: (1) “There are no
grievance procedures at the correctional facility at which [he] is being
confined;” (2) “[he] exhausted [his] administrative remedies and … attached
copies of grievances demonstrating completion;” and (3) “[he had] not
exhausted [his] administrative remedies.” [Doc. 7 at 1]. Plaintiff included a
copy of a purported grievance dated August 20, 2021, that he had sent to
Commissioner Ishee regarding the events giving rise to this action. In this
grievance to Ishee, Plaintiff stated, “I have made several attempts to exhaust
this grievance to be denied that right.” [Id. at 6]. This purported grievance
was returned to Plaintiff on September 14, 2021, by Sam Dotson, NCDPS
Operations Manager. [See Doc. 7 at 3]. Dotson advised Plaintiff that the
grievance was being returned so that Plaintiff could “process it through the
proper channel at the facility.” [Id.].
Plaintiff timely filed an unsworn, unverified Amended Complaint, which
added several Defendants and omitted several others previously named.
[Doc. 11]. In his Amended Complaint, Plaintiff alleged, in pertinent part, that
on February 25, 2021, Plaintiff and most other inmates “of African descent”
were directed to pack their belonging to be moved to a different cell block.
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The next day Defendants Honeycutt, Waldroop, and Browning, with other
unidentified prison staff, led Plaintiff and the other African American inmates
outside in the freezing rain, where they were strip searched and left in the
rain while staff removed the inmates’ property from their lockers. Plaintiff’s
property included his legal mail. After Plaintiff and the other inmates were
allowed to return to the block, Defendant Honeycutt told the inmates, as a
pretext for the search, that “he was tired of guys getting high on a substance
call[ed] K-2.” Plaintiff and the other African American inmates discovered
“racially charged hate messages” written inside their lockers using their own
toothpaste, markers, and the like. Later that evening, the plumbing in the
block backed up with sewage waste, which continued for the next 24 hours.
The inmates had to urinate in drains and defecate in bags. Plaintiff believes
these conditions were punishment aimed at people of color and those who
closely associated with them. Defendant Honeycutt, through Defendant
Waldroop, ordered that Plaintiff and the other inmates remain in the block for
seven days. After seven days, the inmates’ property was returned, but in
damaged condition. [Doc. 11 at 4, 12-13].
In his Amended Complaint, Plaintiff alleges that he filed a grievance
“immediately upon” return of his property and that he knows the grievance
“was destroyed because [he] never even got a notice of it being received.”
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[Id. at 14]. Plaintiff alleges that prison officials thwarted his ability to exhaust
a grievance in retaliation for prior and pending lawsuits. [Id.]. Plaintiff also
alleges that he sent an “emergency grievance” and affidavit to Secretary
Hooks and Commissioner Ishee, but never received a response.

[Id.].

Plaintiff alleges that “he wrote other grievance(s) addressing the grievance
process and access [and] … staff handling of the grievance by letter and
affidavit to the director (Todd Ishee) and Secretary (Erik Hooks) of Prisons.”
[Id. at 8]. Other than the “emergency grievance” sent to Commissioner Ishee
in August 2021, Plaintiff has not submitted copies of any of these alleged
grievances.
Plaintiff’s Amended Complaint passed initial review, as specified in the
Court’s Order, as to his First Amendment, Eighth Amendment, and
Fourteenth

Amendment

equal

protection

individual

claims

against

Defendants Ronnie Huneycutt, James Waldroop, Landon Browning, Angela
Lamm, James Brian Watson, Keenan Banks, Shane Banks, Edward Nile
Colvin, Jerry K. McKinney, and James Ray Queen, all officers or officials at
AMCI. [Doc. 10 at 14-15].

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Defendants now move to dismiss Plaintiff’s Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.1 [Doc. 22]. Defendants
argue that Plaintiff failed to exhaust administrative remedies pursuant to the
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), before filing this
action. [Doc. 23 at 1]. On June 8, 2022, this Court entered an order, in
accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
notifying Plaintiff of his right to respond to Defendants’ motion and cautioning
him that his failure to respond would likely result in Defendant being granted
dismissal of Plaintiff’s Complaint. [Doc. 24]. Plaintiff has not responded to
Defendants’ motion and the time to do so has expired.
The matter is now ripe for adjudication.
II.

DISCUSSION
The PLRA requires a prisoner to exhaust his administrative remedies

before filing a § 1983 action. 42 U.S.C. § 1997e(a). The PLRA provides, in
pertinent part, 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

Defendant Keenan Banks remains unserved and did not join in Defendants’ motion.
Because the claims and factual allegations against this Defendant are identical to those
against Defendants Shane Banks, McKinney, McQueen, Colvin, Lamm, McMahan, and
Watson, the Court will consider Defendants’ motion relative to Defendant Keenan Banks
as well.
1

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administrative remedies as are available are exhausted.” Id. In Porter v.
Nussle, the Supreme Court held that the PLRA’s exhaustion requirement
applies to all inmate suits about prison life. 534 U.S. 516, 532 (2002). 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 to further the efficient administration of justice. Id.
In Woodford v. Ngo, 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).’” 548 U.S. 81, 90 (2006) (quoting Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Further, “[t]here is no
question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.
199, 211 (2007) (citing Porter, 534 U.S. at 524).

Because exhaustion of

administrative remedies is an affirmative defense, Defendants have the
burden of pleading and proving lack of exhaustion. Id. at 216.
Finally, it is well-settled that a prisoner may not exhaust his
administrative remedies during the pendency of a Section 1983 action;
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rather, he must fully exhaust all steps of the administrative process before
filing his lawsuit. See Germain v. Shearin, 653 Fed. Appx. 231, 234 (4th Cir.
2016); French v. Warden, 442 F. App’x 845, 846 (4th Cir. 2011). The North
Carolina Department of Public Safety (NCDPS) has established, in its
Administrative Remedies Procedures (“ARP”), a three-step procedure
governing submission and review of inmate grievances. Moore v. Bennette,
517 F.3d 717, 721 (4th Cir. 2008).

Inmates are required to exhaust

administrative remedies with the NCDPS in accordance with ARP. Id. An
inmate does not exhaust his administrative remedies with the NCDPS until
he completes all three steps. Id.
Here, Plaintiff alleges in his unverified Amended Complaint that he
submitted a grievance regarding the events at issue that was discarded by
prison officials in retaliation for Plaintiff’s prior and pending lawsuits. Plaintiff
also claimed in a much-belated unsworn statement to Commissioner Ishee
that he “made several attempts to exhaust this grievance” and was “denied
that right.” Other than his internally contradictory Administrative Remedies
Statement, however, Plaintiff has not submitted any sworn statements or
evidence supporting his claim of exhaustion.
In support of their motion to dismiss, Defendants, on the other hand,
provide copies of Plaintiff’s eight fully exhausted grievances submitted from
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October 12, 2020, to September 20, 2021, as provided by the Inmate
Grievance Resolution Board (“IGRB”) through Kimberly Grande, the
Executive Director of the NCDPS IGRB. [Doc. 23-1 through 23-9]. See
Yarber v. Capital Bank, 944 F.Supp.2d 437, 441 (E.D.N.C. Mar. 18, 2013)
(“The court may also consider documents attached to the complaint and
documents attached to the motion to dismiss if those documents are integral
to the complaint and authentic.”); see also Doc. 23-1 at ¶¶ 9-10: Grande Dec.
(attesting to complete review of grievance records and authenticity of
attached grievances). Grande attests that these grievances were the only
ones filed by Plaintiff and exhausted through Step Three of the grievance
process. [Doc. 23-1 at ¶ 10]. These eight grievances range from complaints
about lost property to inadequate medical care to improper placement in the
“death row unit” at Central Prison. [See Doc. 23-2 through 23-9]. None of
these grievances, however, relate to the events giving rise to this cause of
action. [See id.]. Further, the record clearly evidences Plaintiff’s access to
and adeptness at navigating the grievance process.

Finally, as noted,

Plaintiff presented nothing in response to Defendants’ showing on
exhaustion.
Exhaustion is excused “if a prisoner, through no fault of his own, was
prevented from availing himself of it.” Moore, 517 F.3d at 725. Plaintiff,
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however, must show that administrative remedies were not available.
Graham v. Gentry, 413 Fed. App’x 660, 663 (4th Cir. 2011); Stohl v. Eastern
Reg’l Jail, No. 1:14-cv-109, 2015 WL 5304135, at *7 (N.D.W. Va. Sep. 8,
2015) (granting defendants’ motion to dismiss and refusing to credit
conclusory allegation that grievances were discarded where such allegation
“not only is unsupported by any of the evidence in the record, but is belied”
by documentary evidence showing plaintiff successfully filed other
grievances during the same time period).
Defendants here have shown through sworn testimony that Plaintiff did
not exhaust his administrative remedies relative to the facts giving rise to this
cause of action before Plaintiff filed his Complaint. Plaintiff, however, did not
respond to dispute Defendants’ showing of Plaintiff’s failure to exhaust. In
Plaintiff’s only verified statement before the Court, he attested that there are
no grievance procedures at his facility, that he exhausted his administrative
remedies and attached copies of grievances demonstrating exhaustion, and
that he had not exhausted his administrative remedies. [Doc. 7 at 1]. These
cannot all be true.

Moreover, Plaintiff’s claim that his grievance was

discarded in retaliation for his prior and pending lawsuits makes little sense
in the context of eight other grievances that were processed and fully
exhausted over a year during the relevant time. Despite express instructions
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to Plaintiff of his right to respond to Defendants’ motion and the
consequences for failing to do so, the only relevant “grievance” before the
Court is Plaintiff’s submission to Commissioner Ishee, which was not
properly submitted or exhausted. See Woodford, 548 U.S. at 83-84 (filing
an untimely or otherwise procedurally defective grievance or appeal is
insufficient; proper exhaustion is required). Plaintiff has not shown that
administrative remedies were not available to him thereby excusing the
exhaustion requirement. As such, this action must be dismissed without
prejudice.

See Harris v. Midford, No. 1:10-cv-263, 2011 WL 1601446

(W.D.N.C. Apr. 27, 2011).

The Court will, therefore, grant Defendants’

motion to dismiss.
III.

CONCLUSION
In sum, for the reasons stated herein, the Court grants Defendants’

motion to dismiss as to all Defendants.
ORDER
IT IS, THEREFORE, ORDERED that Defendants’ Motion to Dismiss
[Doc. 22] is GRANTED and this action is hereby DISMISSED without
prejudice for failure to exhaust administrative remedies.

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IT IS SO ORDERED.

Signed: August 1, 2022

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