Clegg v. Aaron et al
ORDER DISMISSING CASE without prejudice; FURTHER ORDERED that Plaintiffs application to proceed in forma pauperis re 2 is GRANTED. Signed by Chief Judge Frank D. Whitney on 8/29/2014. (Pro se litigant served by US Mail.)(eef)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
THIS MATTER is before the Court on an initial review of Plaintiff’s pro se complaint
that was filed pursuant to 42 U.S.C. § 1983, and Plaintiff’s application to proceed in forma
Plaintiff is a prisoner of the State of North Carolina and is presently confined in the
Lanesboro Correctional Institution which is located within this district. In his complaint, Plaintiff
alleges that some of his property, which included both religious and legal property, was destroyed
without his consent. Plaintiff contends that the defendants were negligent in destroying the
property; that his constitutional rights have been violated, and that he is entitled to monetary
damages for mental distress, and to reimburse him for the loss of property.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(A)(a), “The court shall review . . . a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
The Court has examined Plaintiff’s affidavit and his prisoner trust account and finds that he does not have sufficient
funds from which to prepay the costs of this civil action. Plaintiff’s motion to proceed in forma pauperis will therefore
governmental entity.” Following this initial review the “court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the complaint—(1) is frivolous,
malicious, or fails to state a claim upon which relief may be granted.” Id. § 1915A(b)(1). In
conducting this review, the 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).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the liberal construction requirement will not permit a district court to ignore a
clear failure to allege facts in the complaint which set forth a claim that is cognizable under
Federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Plaintiff is a prisoner of the State of North Carolina and as such his pro se § 1983
complaint must satisfy to the mandatory requirements of the Prisoner Litigation Reform Act
(“PLRA”) which provides that a prisoner must exhaust his administrative remedies prior to the
commencement of a civil action under § 1983. 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 administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
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 and the Court noted that
“exhaustion in cases covered by § 1997e(a) is now mandatory.” Id. at 524 (citing Booth v.
Churner, 532 U.S. 731, 739 (2001)). The Porter Court went on to stress that the exhaustion
requirement must be met before commencement of the suit. Id. Whether an inmate has properly
exhausted his administrative remedies is a matter to be determined by referencing the law of the
state where the prisoner is housed and where the allegations supporting the complaint arose. See
Jones v. Bock, 549 U.S. 199, 218 (2007) (“The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to system and claim to claim, but it is the
prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”).
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 Corr. Health
Servs., 407 F.3d 674 (4th Cir. 2005). Indeed, failure to exhaust administrative remedies is an
affirmative defense, but the Court is not prohibited from sua sponte examining the issue of
exhaustion in reviewing the complaint. As the Fourth Circuit observed:
[A]n inmate's failure to exhaust administrative remedies is an affirmative defense 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.
Anderson, 407 F.3d at 683.
In North Carolina, State prisoners must complete a three-step administrative remedy
procedure (ARP) in order to exhaust their administrative remedies. See N.C. Gen. Stat. §§ 148118.1 to 148-118.9 (Article 11A: Corrections Administrative Remedy Procedure); Moore v.
Bennette, 517 F.3d 717, 721 (4th Cir. 2008).
In Plaintiff’s complaint, he makes no assertion that he has participated in the ARP but he
has filed separate documents which demonstrate that he completed the first two steps of the
grievance procedure. Plaintiff signed the Step Two response on July 28, 2014, and indicated his
intention to appeal the recommendation that no further action be taken on his grievance to Step
Three of the ARP. (Doc. No. 4 at 3). Plaintiff appeared before a Notary Public on July 30, 2014
and averred that the contents of his complaint were true, (Doc. No. 1 at 11), and his complaint was
mailed on August 8th. (Doc. No. 1-1: Envelope). It appears from this record that in his haste to file
suit, Plaintiff failed to await the outcome of his Step Three appeal and as noted above, a prisoner
must exhaust his administrative remedies before filing suit.
Based on the foregoing review of the record, it appears that Plaintiff has failed to exhaust
his administrative remedies. Accordingly, this civil action will be dismissed without prejudice to
his ability to refile the complaint and submit proof that he has fully exhausted his state
IT IS, THEREFORE, ORDERED that Plaintiff’s complaint is DISMISSED without
prejudice. (Doc. No. 1).
IT IS FURTHER ORDERED that Plaintiff’s application to proceed in forma pauperis
is GRANTED. (Doc. No. 2).
The Clerk of Court is directed to close this civil case.
IT IS SO ORDERED.
Signed: August 29, 2014
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