Marshall v. North Carolina Department of Public Safety et al

Filing 25

ORDER that Defendants Cody Hughes and Tyler McKinney's Motion to Dismiss All Claims for Failure to Exhaust Administrative Remedies 18 is GRANTED, and this action is DISMISSED. The Clerk is respectfully instructed to close this case. Signed by Chief Judge Martin Reidinger on 4/26/2021. (Pro se litigant served by US Mail.)(rhf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:20-cv-00214-MR

DANTE MARSHALL,

)
)
Plaintiff,
)
)
vs.
)
)
NORTH CAROLINA DEPARTMENT
)
OF PUBLIC SAFETY, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER comes before the Court on Defendants Cody Hughes
and Tyler McKinney’s Motion to Dismiss All Claims for Failure to Exhaust
Administrative Remedies [Doc. 18].
I.

BACKGROUND
The Plaintiff, proceeding pro se, filed this action pursuant to 42 U.S.C.

§ 1983 addressing incidents that allegedly occurred while he was
incarcerated at the Mountain View Correctional Institution.1 The Complaint
passed initial review on claims that Defendants Tyler McKinney and Cody

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The Plaintiff filed the Complaint while he was incarcerated at the Warren Correctional
Institution. He was subsequently released from the North Carolina Department of Public
Safety and now resides in Jacksonville, Florida.

Hughes, who are both correctional officers, violated the Plaintiff’s Eighth
Amendment rights. [Doc. 9].
Defendants McKinney and Hughes have now filed a Motion to Dismiss
All Claims for Failure to Exhaust Administrative Remedies. [Doc. 18]. The
Court notified the Plaintiff of the opportunity to respond to Defendants’ Motion
and cautioned him that the failure to do so may result in the Defendants being
granted the relief that they seek by way of the Motion to Dismiss. [Doc. 22].
The Plaintiff has not filed a Response, and the time to do so has expired.
This matter is ripe for adjudication.
II.

DISCUSSION
The Prison Litigation Reform Act (“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 administrative remedies as are available are
exhausted.” Id. PLRA’s exhaustion requirement applies to all inmate suits
about prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002). There is “no
question that exhaustion is mandatory under PLRA and that unexhausted
claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007)
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(citing Porter, 534 U.S. at 524). The PLRA requires “proper” exhaustion,
which means “using all steps that the agency holds out, and doing so
properly (so that the agency addresses the issues on the merits).” Woodford
v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022,
1024 (7th Cir. 2002)). The exhaustion of administrative remedies must occur
before a civil action is commenced. Porter, 534 U.S. at 516. A prisoner may
not exhaust his administrative remedies during the pendency of a § 1983
action. Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir. 2016); French v.
Warden, 442 F. App’x 845, 846 (4th Cir. 2011).
NCDPS has established a three-step procedure governing submission
and review of inmate grievances, which it refers to as the Administrative
Remedies Procedure (“ARP”).

N.C. Gen. Stat. § 148-11A; Moore v.

Bennette, 517 F.3d 717, 721 (4th Cir. 2008); see Fed. R. Civ. P. 201
(addressing judicial notice).

Under the ARP, an inmate must submit a

grievance at step one and then may appeal an unfavorable decision from
step one at steps two and three. Id. A decision at step three of the ARP
exhausts the prisoner’s remedies under the PLRA.
In the Complaint, the Plaintiff alleges that he filed a grievance
concerning his claim for § 1983 relief. [Doc. 1 at 8]. In support of their Motion
to Dismiss, the Defendants have submitted a copy of the Plaintiff’s grievance,
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dated January 2, 2020, pertaining to the incident involving Defendants
McKinney and Hughes.2 [Doc. 20-1 at 1]. The grievance was rejected
because it was filed outside the 90-day time limit.

[Doc. 20-1 at 2].

Therefore, it was not properly 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).
The Plaintiff has failed to respond to the Motion to Dismiss. As such,
he does not dispute the authenticity of the grievance at issue, nor has he
demonstrated that the ARP was unavailable.
For the reasons stated in the Defendants’ Motion, the Court concludes
that the Plaintiff failed to properly exhaust the available administrative
remedies. Therefore, the Defendants’ Motion to Dismiss is granted and this
case will be closed.
ORDER
IT IS, THEREFORE, ORDERED that Defendants Cody Hughes and
Tyler McKinney’s Motion to Dismiss All Claims for Failure to Exhaust

2

In ruling on a motion to dismiss, a district court may consider documents attached to the
complaint or the motion to dismiss without converting the motion to dismiss into a motion
for summary judgment “so long as [the documents] are integral to the complaint and
authentic.” Philips v. Pitt County Mem. Hosp., 572 F.3d176, 180 (4th Cir. 2009).
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Administrative Remedies [Doc. 18] is GRANTED, and this action is
DISMISSED.
The Clerk is respectfully instructed to close this case.
IT IS SO ORDERED.
Signed: April 26, 2021

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