Moore v. Bennette

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL WAYNE MOORE, 

Plaintiff-Appellant,

v.

JAMES B. BENNETTE; GEORGE E.  No. 06-6696

CURRIE; JOSEPH LIGHTSEY; RICHARD

T. JONES; TONIA RODGERS,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(5:03-ct-00762-BO)

Argued: December 5, 2007

Decided: February 28, 2008

Before TRAXLER and DUNCAN, Circuit Judges,

and James P. JONES, Chief United States District Judge for the

Western District of Virginia, sitting by designation.

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Traxler wrote the opinion, in which Judge Duncan and

Judge Jones joined.

COUNSEL

ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE

& BOYD, P.A., Greenville, South Carolina, for Appellant. Elizabeth

2 MOORE v. BENNETTE

P. McCullough, YOUNG, MOORE & HENDERSON, P.A., Raleigh,

North Carolina; Yvonne Bulluck Ricci, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-

lees. ON BRIEF: Dana H. Davis, YOUNG, MOORE & HENDER-

SON, P.A., Raleigh, North Carolina, for Appellee Joseph Lightsey.

OPINION

TRAXLER, Circuit Judge:

Michael Wayne Moore appeals the dismissal of his civil rights

complaint on the basis that he failed to exhaust his administrative

remedies and failed to state a claim upon which relief could be

granted. We affirm in part, reverse in part, and remand.

I.

A.

The following is a summary of the relevant facts alleged in the par-

ties’ pleadings and contained in the attachments thereto. In early

2002, Moore was a prisoner in the Southern Correctional Institute

("Southern") in the North Carolina Department of Correction

("NCDOC"). While he was there, a prison physician diagnosed Moore

with Hepatitis C and became concerned that Moore’s pancreas, which

was swollen, could be cancerous. The doctor explained that Moore

would need regular monitoring.

Shortly thereafter, Moore and other inmates allegedly witnessed an

attack by several prison guards upon inmate Roger Bryant. Moore

sent Bryant’s mother a letter the following day, informing her about

the attack and offering to help document what he and other witnesses

saw. When Bryant’s mother began to investigate the allegations,

Moore alleges he was warned by the unit manager at Southern that

he should not get involved. Moore insisted, however, that he wanted

to see justice done.

A week after the assault, Moore had collected written accounts

from several inmates and had sealed them in two large legal enve-

MOORE v. BENNETTE 3

lopes with postage sufficient to mail them to Bryant’s mother. Before

he could mail them, however, members of the NCDOC Prison Emer-

gency Response Team are alleged to have appeared at his cell in riot

gear and transported him to the prison’s receiving area with Moore

wearing only his underwear. Several other inmates, most of whom

had provided statements regarding the attack, were rounded up in the

same manner.

Moore was sent directly to a maximum security facility in Tillery,

North Carolina. All of his privileges were revoked, and Moore alleges

his written statements concerning the attack were seized. Three days

later, Moore was transferred to a high security maximum control unit,

known as a "Supermax" unit, at Polk Correctional Institute in Butner,

North Carolina. He was placed on "strict suicide watch." J.A. 24

(internal quotation marks omitted). He was told he was on "‘Adminis-

trative seg.’ pending investigation," and he was "refused all privileges

and opportunities due to any other inmate on ‘Admin. Seg.’" J.A. 83.

In his cell, Moore was constantly monitored via video camera, and he

was not allowed contact with anyone in his family or with a lawyer

for several days. In fact, he states he remained in isolation for several

more weeks although mental health staff later determined that he was

not suicidal.

The NCDOC provides an administrative remedy procedure for

prisoner complaints ("the ARP"). As is relevant here, Step 1 of the

procedure allows for the filing of grievances on a "Form DC-410,"

J.A. 143, which asks for the inmate’s name, number, and location, as

well as the date, a "Grievance Statement," J.A. 152, the remedy that

the inmate seeks, and the inmate’s signature. Under the rules, the

inmate must receive a formal written response to his grievance within

15 days from the date on which the grievance is accepted. Should the

inmate decide to appeal, he will receive a Step 2 written response

within 20 days from the appeal request. And, should the inmate

decide to appeal further, he will receive a Step 3 written response

within 20 days from the date of that appeal. The rules prohibit an

inmate from submitting a new grievance before all previously filed

grievances have completed Step 2 or been resolved. However, that

rule does not apply to emergency grievances, which are defined as

"matters which present a substantial risk of physical injury or other

serious and irreparable harm to the grievant if regular time limits are

4 MOORE v. BENNETTE

followed." J.A. 145. A grievance may be rejected because, among

other reasons, "[t]here has been a time lapse of more than one year

between the event and submission of the grievance" or if it requests

a remedy "for more than one incident." J.A. 144.

Moore availed himself of this process on February 6, 2002, filing

Grievance No. 3980-02-0249. The grievance complained of Moore’s

transfer to a maximum security prison, and then to Polk, as well as

the aforementioned conditions in his cell and the revocation of all of

his privileges. The grievance claimed that Moore was being "pun-

ished" for actions he was never charged with, J.A. 140, and indeed

that he was never even informed of what he did to bring about the

punishment. He requested that he be removed from Polk and placed

in a prison where he could have his privileges returned. The grievance

was rejected the day after it was submitted, however, because it con-

cerned "more than one issue[ ]." J.A. 136.

After arriving at Polk, Moore informed the prison medical staff of

his Hepatitis C as well as his potentially cancerous pancreas and the

fact that he would need regular monitoring and blood work. The

prison medical department also received a copy of his medical

records. Three weeks after he had been transferred to Polk, medical

personnel performed two sonograms but failed to give Moore suffi-

cient prior notice so that he could refrain from eating and drinking

beforehand. Because Moore had eaten throughout the day, the sono-

grams did not produce a sufficiently clear image of Moore’s pancreas.

Three weeks after the ineffective sonograms, Moore reported to a

nurse that his stomach had been hurting for several weeks. Although

the nurse told him that test results would be available the next day,

Moore did not receive any.

Consequently, on March 25, 2002, Moore submitted Grievance No.

3980-02-0584, which explained the history of his pancreas problem

and provided an account of the follow-up treatment he had received.

In the grievance, Moore asserted that not only had the sonograms not

been performed adequately, but they also were not performed in a

timely manner. He further expressed concern that his inadequate med-

ical care was in retaliation for the events that led to his transfer to

Polk. The Step 1 response to the grievance determined that an ultra-

sound had been performed on February 13, 2002, that the results were

MOORE v. BENNETTE 5

in Moore’s chart, and that a CT scan was scheduled for the near

future. When Moore appealed, a Step 2 response added that medical

personnel would explain the results of the scheduled CT scan to

Moore when they arrived. Following another appeal, a Step 3

response stated that Moore’s concern had been appropriately

resolved.

During his time at Polk, Moore had developed pain in his left hand

that rendered the hand useless for three months. On May 8, 2003,

Moore submitted Grievance No. 3980-03-0742, alleging that prison

medical staff had failed to give him adequate treatment for the condi-

tion for several weeks, and that when a nurse came to see him, the

nurse only glanced at his hand through a thick plexiglass window

before diagnosing Moore with gout. The nurse gave Moore ibuprofen

and told him that he would have the doctor prescribe medication, but

Moore never received any. Moore’s grievance also included com-

plaints of two other problems. It alleged that the same nurse had

examined his ears through a trap door in his cell, which Moore

alleged was "unethical." J.A. 161. The grievance further claimed that

another nurse seeking to obtain a urine sample as part of a five-year

physical for Moore sent a prison officer to collect the sample. The

grievance acknowledged that when Moore complained to the officer,

the nurse came to his cell and collected the sample herself. The griev-

ance requested that the nurses involved in these incidents be repri-

manded. It further asserted that it "should be considered as filed

correctly even though more than one incident is alleged" because

"[b]oth incidents show a distinct pattern of [i]nadequate medical care,

and are related in respect to specific allegations I have made concern-

ing a series of events that constitute discrimination and intentional

deliberate indifference towards me individually by the medical staff

here due to the [a]llegation of which I am currently on H-Con (claims

that I had plot[t]ed to [h]arm medical staff elsewhere)." J.A. 160. The

grievance nevertheless was rejected because it concerned more than

one incident.

Moore also was frustrated with what he considered to be a lack of

adequate medical treatment for his Hepatitis C condition. His dissatis-

faction prompted him to twice write directly to defendant Dr. Joseph

Lightsey, the chief physician for the Supermax unit, and once to

defendant Richard T. Jones, Chief Medical Supervisor at Polk, com-

6 MOORE v. BENNETTE

plaining of the lack of care for his condition and explaining that it was

only getting worse. Receiving no response, Moore filed Grievance

No. 3980-03-0775, dated May 15, 2003, in which he claimed that this

lack of treatment for the Hepatitis C was "part of [a]n on-going and

[l]ong pattern of deliberate indifference to [his] medical needs." J.A.

163. The grievance named Jones, Lightsey, and four others as being

responsible for the inadequate care. A Step 1 response noted that

Moore was scheduled to see a physician assistant. A Step 2 response,

dated June 4, 2003, indicated that the appointment was scheduled for

that very day. A Step 3 response determined that Moore’s concerns

had been adequately addressed and found no indication of staff indif-

ference.

Finally, on May 27, 2003, Moore filed an unnumbered grievance

labeled "Emergency Grievance," complaining again that he had

received inadequate treatment for his gout and that it was part of a

"[l]ong pattern concerning [his] health care needs." J.A. 167. The

grievance was returned to Moore the next day because his Hepatitis

C grievance had not yet completed Step 2 or otherwise been resolved.

B.

Moore filed this civil action pursuant to 42 U.S.C.A. § 1983 (West

2003), naming as defendants Lightsey and Jones, as well as Boyd

Bennett, director of the Division of Prisons; George E. Currie, correc-

tional administrator at Polk; and Tonia Rogers, the classification coor-

dinator at Polk. As is relevant here, Moore asserted claims for

deliberate indifference to his medical needs regarding his pancreatic

condition, his Hepatitis C, and his gout, as well as a claim of retalia-

tion based on his transfer and changes in his prison conditions result-

ing from his actions relating to the assault of Bryant. The complaint

alleged that Moore had followed the grievance procedure "[a]s far as

[he] was allowed" but that "[m]ost results were evasive or unreason-

able." J.A. 8. It alleged that Moore had exhausted his administrative

remedies relating to the complaint, and copies of the grievances dis-

cussed herein were attached. The complaint requested injunctive

relief and monetary damages.

The district court dismissed Moore’s complaint as "frivolous"

under 28 U.S.C.A. § 1915(e)(2) (West 2006), concluding that it con-

MOORE v. BENNETTE 7

tained only "a blanket and conclusory statement of wrongdoing by

[the] named Defendants" without the factual allegations necessary to

sustain the legal claims asserted therein. Moore v. Bennette, No. 5:03-

CT-762-BO (E.D.N.C. Oct. 17, 2003) ("Moore I"). On appeal, we

vacated the district court’s order to the extent that it dismissed

Moore’s claims for deliberate indifference to his medical needs with

regard to his pancreatic condition, his Hepatitis C, and the gout in his

hand. See Moore v. Bennette, 97 Fed. Appx. 405, 407 (4th Cir. 2004)

(per curiam). In so doing, we explicitly rejected—under de novo

review—the district court’s conclusion that Moore failed to state a

claim on which relief may be granted. See id. We also vacated the dis-

missal of Moore’s retaliation claim, holding that it "ha[d] an arguable

basis in fact and law." Id.

Once the case was returned to the district court, Lightsey filed an

answer and moved to dismiss the claims against him, see Fed. R. Civ.

P. 12(b)(6), contending that the complaint failed to allege that he was

directly or indirectly responsible for any of the medical treatment at

issue and asserting that Moore had not exhausted all available admin-

istrative remedies. The remaining defendants filed an answer, attach-

ing, inter alia, a copy of the ARP, and they moved for judgment on

the pleadings. They argued that Moore failed to exhaust his available

administrative remedies because he had not filed proper grievances

regarding the gout and retaliation claims. They maintained that the

pancreas, gout, and retaliation claims were also not exhausted as to

any defendant because none of the defendants were named in the

applicable grievances. They further contended that the Hepatitis C

claim was not exhausted as to defendants Bennett, Currie, and Rogers

because those defendants were not named in the applicable grievance.

Finally, they asserted that the complaint failed to state a claim for

which relief could be granted against defendants Bennett, Currie, and

Jones because it failed to allege the requisite personal connection

between these defendants and the complained of actions.

Moore filed responses to both motions. He argued that he had

exhausted all remedies available to him because his two gout griev-

ances were properly made and submitted and because it was not feasi-

ble for him to file individual grievances for each individual wrong

that he suffered. He also maintained that he was not legally precluded

from bringing suit against individuals who had not been named in his

8 MOORE v. BENNETTE

grievances. Finally, he argued that his complaint successfully stated

a claim for which relief could be granted against all defendants.

The district court ruled that defendants had "proven the affirmative

defense of failure to exhaust," and the court dismissed all claims with-

out prejudice, with the exception of the Hepatitis C claim against

Jones and Lightsey, which the court dismissed with prejudice for fail-

ure to state a claim. Moore v. Bennett, No. 5:03-CT-762-BO, slip op.

at 7 (E.D.N.C. Mar. 22, 2006). The district court ruled (1) that the

pancreas claim was not exhausted because none of the defendants

were named in the applicable grievance; (2) that the Hepatitis C claim

was not exhausted as to Bennett, Currie, and Rogers because they

were not named in the applicable grievance and it failed to state a

claim against Lightsey and Jones because they were not alleged to

have the requisite personal connection to the actions complained of;

(3) that the gout claim was not exhausted because both applicable

grievances were rejected by prison officials on procedural grounds

and neither named the defendants; and (4) that the retaliation claim

was not exhausted because the only grievance relating to it was

rejected on procedural grounds and did not identify any of the defen-

dants as being responsible for the actions complained of. See id. at 4-

6.

II.

Under the Prison Litigation Reform Act of 1995 ("PLRA"), as

amended, prisoners must exhaust "such administrative remedies as are

available" prior to filing suit in federal court challenging prison con-

ditions. 42 U.S.C.A. § 1997e(a) (West 2003). The outcome of the

present appeal depends in part on whether particular remedies were

made unavailable to Moore by virtue of what Moore contends was the

NCDOC’s unwarranted refusal to consider his gout and retaliation

grievances. We therefore must consider the meaning of "available" in

this context. Because the PLRA does not define the term, courts have

generally afforded it its common meaning; thus, an administrative

remedy is not considered to have been available if a prisoner, through

no fault of his own, was prevented from availing himself of it. See

Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007);

Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006). Conversely, a pris-

oner does not exhaust all available remedies simply by failing to fol-

MOORE v. BENNETTE 9

low the required steps so that remedies that once were available to

him no longer are. See Woodford v. Ngo, 126 S. Ct. 2378, 2385

(2006). Rather, to be entitled to bring suit in federal court, a prisoner

must have 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. Id. at 2384.

Having done that, a prisoner has exhausted his available remedies,

even if prison employees do not respond. See Dole v. Chandler, 438

F.3d 804, 809 (7th Cir. 2006).

In its recent decision in Jones v. Bock, 127 S. Ct. 910 (2007), the

Supreme Court decided that failure to exhaust available administra-

tive remedies is an affirmative defense, not a jurisdictional require-

ment, and thus inmates need not plead exhaustion, nor do they bear

the burden of proving it.1 See Jones, 127 S. Ct. at 918-26; see also

Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 681

(4th Cir. 2005). However, even if it is not apparent from the pleadings

that there are available administrative remedies that the prisoner

failed to exhaust, a complaint may be dismissed on exhaustion

grounds so long as the inmate is first given an opportunity to address

the issue. See Anderson, 407 F.3d at 682 (holding that district court

may raise affirmative defense of exhaustion sua sponte under the

PLRA so long as plaintiff is given an opportunity to respond).

A.

Moore first suggests that the district court’s dismissal of most of

his claims on exhaustion grounds was premature in that it was not

apparent from the face of the complaint that he had not exhausted his

remedies and that he had no valid excuse for not doing so. See Free-

man v. Watkins, 479 F.3d 1257, 1260 (10th Cir. 2007) ("[W]e caution

that only in rare cases will a district court be able to conclude from

the face of the complaint that a prisoner has not exhausted his admin-

istrative remedies and that he is without a valid excuse." (internal

quotation marks omitted)). We conclude that the district court did not

commit reversible error in this regard.

1

The district court cannot be faulted for not applying Jones—or Wood-

ford for that matter—because they were not released by the United States

Supreme Court until after the district court had issued its order.

10 MOORE v. BENNETTE

Moore was afforded an opportunity to respond to the defendants’

contentions that he had failed to exhaust his administrative remedies.

And, Moore’s responses made clear—as his appellate briefs do—that

his claim to have exhausted all available remedies rested entirely on

the premise that the grievances he attached to his complaint were

properly made and submitted. Whether the district court should have

explicitly instructed Moore to come forward with any facts not con-

tained in the pleadings that might show that he had exhausted all

available issues before dismissing on the ground of failure to exhaust

is a question we need not decide today, because any error by the dis-

trict court in failing to so was harmless. Cf. McMillan v. Jarvis, 332

F.3d 244, 250 (4th Cir. 2003) (affirming sua sponte dismissal of

habeas petition on statute of limitations grounds even when petitioner

was not given opportunity to address the limitations issue until motion

for reconsideration; because district court considered petitioner’s

arguments "unfettered by the [usual] procedural constraints of Rule

59(e)" of the Federal Rules of Civil Procedure and petitioner on

appeal did "not point to any specific fact or argument that he was not

able to present," any error in not allowing petitioner to respond prior

to issuance of dismissal order was harmless). We now turn to Moore’s

arguments that he exhausted all available remedies concerning his

respective claims.

B.

Moore first argues that the district court erred in dismissing the

pancreas claim on the ground that the defendants were not named or

referenced in the grievance he had submitted regarding his pancreas.

We agree.

The Supreme Court recently addressed the issue of whether prison

grievances must name particular defendants in order to satisfy the

PLRA’s exhaustion requirements as against those defendants. See

Jones, 127 S. Ct. at 922-23. The Court held that to exhaust adminis-

trative remedies, the PLRA requires only "[c]ompliance with prison

grievance procedures." See id. The Court did acknowledge that bar-

ring federal claims against defendants who had not been named in

prior grievances might "promote early notice to those who might later

be sued." Id. at 923. Nevertheless, even aside from the fact that the

text of the PLRA contains no such bar, the Court noted that promot-

MOORE v. BENNETTE 11

ing such notice "has not been thought to be one of the leading pur-

poses of the [PLRA’s] exhaustion requirement," which the Court

identified as "allowing a prison to address complaints about the pro-

gram it administers before being subjected to suit, reducing litigation

to the extent complaints are satisfactorily resolved, and improving liti-

gation that does occur by leading to the preparation of a useful

record." Id.

Here, nothing in the ARP required Moore to identify specific indi-

viduals in his grievances. The ARP requires only that a grievance be

submitted on a Form DC-410, which does not require identification

of the persons responsible for the challenged conduct. We therefore

vacate the dismissal of the pancreas claim.

C.

Moore next contends that the district court erred in dismissing his

Hepatitis C claim as to defendants Bennett, Currie, and Rogers for

failure to exhaust available administrative remedies and dismissing

the claim as to Lightsey and Jones for failure to state a claim. Ini-

tially, we note that because the district court’s ruling that Moore

failed to exhaust his administrative remedies as to Bennett, Currie,

and Rogers was based on the failure to name these defendants in the

grievance relating to his Hepatitis C, we must reject the district

court’s ruling for the reasons discussed in the previous section. We

therefore turn to the question of whether the district court erred in rul-

ing that the Hepatitis C claim failed to state a claim against Lightsey

and Jones.

In the earlier appeal in this case, we determined that "Moore suffi-

ciently stated . . . a claim [for which relief could be granted] with

regard to his Hepatitis C condition." Moore, 97 Fed. Appx. at 407.

Moore maintains that the district court violated the mandate from our

prior appeal by concluding that his complaint failed to state a claim

for deliberate indifference to his Hepatitis C with regard to Lightsey

and Jones. We agree.

"The mandate rule prohibits lower courts, with limited exceptions,

from considering questions that the mandate of a higher court has laid

12 MOORE v. BENNETTE

2

to rest." Doe v. Chao, 2007 WL 4554545, at *3 (4th Cir. Dec. 28,

2007). The defendants concede, as they must, that no exception to the

rule applies here. Nevertheless, they argue that we erred in our prior

appeal by considering de novo whether Moore’s complaint failed to

state a claim for deliberate indifference to his medical needs. The

defendants contend that resolving that question was unnecessary since

the district court had dismissed the complaint as "frivolous."

28 U.S.C.A. § 1915(e)(2)(B) (West 2006). On this basis, the defen-

dants contend that we "must reconsider [our earlier] opinion, vacate

[the corresponding m]andate, apply the proper standards and affirm

the District Court’s [earlier] dismissal of this case." Brief of Appel-

lees, at 12-13. In the event we decline to reconsider our earlier deci-

sion, the defendants alternatively argue that our prior opinion should

not be read as holding that Moore’s complaint stated a claim for

which relief could be granted regarding the claims at issue. Rather,

the defendants maintain, we held only that the claims at issue were

not frivolous. We reject all of the defendants’ arguments.

Consideration of these issues requires an understanding of the

change the PLRA underwent in 1996. Prior to 1996, the PLRA

allowed for dismissal of a prisoner suit in forma pauperis if "the

action is frivolous or malicious," 28 U.S.C. § 1915(d) (1994), which

was interpreted by the Supreme Court to mean "lack[ing] an arguable

basis either in law or in fact," Neitzke v. Williams, 490 U.S. 319, 325

(1989). Thus, although there was "considerable common ground"

between the familiar Rule 12(b)(6) standard, see Fed. R. Civ. P.

12(b)(6), and the standard for dismissal for frivolousness under the

PLRA, neither "encompasse[d] the other," Neitzke, 490 U.S. at 328.

That was because the failure of the facts alleged in the complaint to

state a claim did not warrant dismissal for frivolousness under the

PLRA if the question of the sufficiency of the alleged facts was a

close one, and because dismissal under Rule 12(b)(6) was not appro-

2

Exceptions include when "controlling legal authority has changed dra-

matically," when "significant new evidence, not earlier obtainable in the

exercise of due diligence, has come to light," and when "a blatant error

in the prior decision will, if uncorrected, result in a serious injustice."

United States v. Aramony, 166 F.3d 655, 662 (4th Cir. 1999) (internal

quotation marks omitted).

MOORE v. BENNETTE 13

priate when a claim was frivolous only because the factual conten-

tions underlying it were "clearly baseless."3 Id. at 327-28.

In 1996, however, Congress amended the PLRA to add as a basis

for dismissal that "the action . . . fails to state a claim on which relief

may be granted." 28 U.S.C.A. § 1915(e)(2)(B)(ii) (West 2006); see

Jones, 127 S. Ct. at 920.4 Thus, after the amendment, a complaint that

previously could have been dismissed as frivolous because of the

obvious legal insufficiency of the factual allegations to entitle the

plaintiff to relief was dismissable under the PLRA for failure to state

a claim.

Here, the district court’s analysis in the order we reviewed in the

first appeal demonstrates unmistakably that its frivolousness determi-

nation was based on the perceived legal insufficiency of Moore’s fac-

tual allegations to state a claim for which relief may be granted. See

Moore I, at 1 ("A complaint must contain factual allegations, other-

wise the claim is nothing more than a bare assertion and frivolous.").

There was no suggestion in the district court order that the court

found any factual allegations in the complaint to be clearly baseless.

Because a determination that Moore’s complaint failed to state a

claim for deliberate indifference to his medical needs would have

warranted affirmance of the dismissal of the pancreas, Hepatitis C,

and gout claims, our consideration of whether the complaint indeed

stated such claims was not only appropriate, but also necessary. And,

our application of the de novo standard, which is properly applied to

issues of dismissals under the PLRA for failure to state a claim, see

De’lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003), as opposed

to the abuse of discretion standard, which applies to frivolousness

review, see Nagy v. FMC Butner, 376 F.3d 252, 254 (4th Cir. 2004),

3

Neitzke explained that the PLRA "accord[ed] judges not only the

authority to dismiss a claim based on an indisputably meritless legal the-

ory, but also the unusual power to pierce the veil of the complaint’s fac-

tual allegations and dismiss those claims whose factual allegations are

clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989).

4

As amended, the PLRA also allows for dismissal of a claim "seek[-

ing] monetary relief against a defendant who is immune from such

relief." 28 U.S.C.A. § 1915(e)(2)(B)(iii) (West 2006).

14 MOORE v. BENNETTE

only confirms that it was the failure-to-state-a-claim issue that we

resolved. Thus, even were we otherwise inclined to recall a mandate

that issued more than two years ago, but see Sargent v. Columbia

Forest Prods., Inc., 75 F.3d 86, 90 (2d Cir. 1996) ("[A]lleged errone-

ous rulings of law are generally not held to be sufficiently unconscio-

nable to justify reopening a judgment not void when issued,"

(citations & internal quotation marks omitted)), we would not do so

in this case. And, in light of our holding that the allegations in ques-

tion stated claims against the defendants for which relief could be

granted, the district court erred in ruling that the Hepatitis C claim

failed to state a claim against Lightsey and Jones. We therefore vacate

the dismissal of this claim.

D.

Moore also maintains that the district court erred in ruling that he

failed to exhaust his remedies regarding his gout claim by failing to

properly submit a grievance concerning that claim. We disagree.

Relying on Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004),

Moore first argues that he was not required to grieve the inadequate

treatment of his gout because it was part of the same pattern of the

intentionally substandard medical care he had complained of with

regard to his Hepatitis C and pancreatic condition. The present case

is clearly distinguishable from Johnson, however. In Johnson, an

inmate twice unsuccessfully filed grievances alleging that he was a

homosexual who was being repeatedly assaulted and that he needed

to be moved to a safe location where other homosexuals were housed.

When the inmate brought suit alleging injuries that resulted from sub-

sequent assaults, the appeals court held that he was not "required to

file repeated grievances reminding the prison officials that he

remained subject to attack in the general population" after the offi-

cials refused to take corrective action in response to the earlier griev-

ances. Johnson, 385 F.3d at 521. Thus, he had successfully exhausted

his available remedies by filing the grievances he had filed. See id.

The reason that the inmate in Johnson had no duty to continue to

file additional grievances—that his earlier grievances had already

given prison officials "a fair opportunity to address the problem that

[eventually] form[ed] the basis of the lawsuit," id. at 517—does not

MOORE v. BENNETTE 15

apply here. Moore’s pancreatic condition and Hepatitis C grievances,

although alleging a pattern of inadequate medical care, did not give

prison officials a fair opportunity to address the alleged inadequate

care he received for his gout. At the conclusion of the review of those

grievances, prison officials determined that medical care that had

been provided since Moore filed his grievance, or that would soon be

provided, adequately addressed Moore’s concerns about the treatment

he was receiving for these conditions. Because the grievances did

nothing to alert the officials that Moore had any additional condition

that was not being treated adequately, they had no reason to investi-

gate any further. Under these circumstances, allowing Moore to bring

suit for alleged inadequate treatment of his gout would not serve the

purposes behind the exhaustion requirement. See Jones, 127 S. Ct. at

923. The district court was therefore correct in concluding that Moore

was required to grieve the prison staff’s failure to treat his gout in

order to exhaust his administrative remedies.

Moore next argues that even if he was required to grieve the alleg-

edly inadequate treatment of his gout, at least one of his gout griev-

ances was properly filed. We disagree.

Moore’s first gout grievance also contained, inter alia, a complaint

that a nurse attempted to use a prison officer to collect a urine sample

that was to be analyzed for a regular physical examination. The griev-

ance requested that the prison consider all of the facts alleged therein

to be a single incident showing a pattern of inadequate medical care

fueled by retaliatory motives. Indeed, Moore now argues that because

he was not allowed to include the two complaints in the same griev-

ance, he was prevented from showing a pattern of deliberate indiffer-

ence. Simply stated, though, it is hard to see how Moore’s claim that

a nurse attempted to have an officer collect a urine sample has any-

thing to do with a possible pattern of deliberate indifference toward

Moore’s medical needs. Thus, we conclude that the rejection of the

grievance as violating the rule prohibiting a single grievance from

being used to complain of two separate incidents certainly was well

founded.

Moore’s second gout grievance was returned because it was sub-

mitted while his Hepatitis C grievance, filed 12 days earlier, was still

pending. Moore notes that he had labeled his second gout grievance

16 MOORE v. BENNETTE

an "emergency" grievance and that the ARP allows emergency griev-

ances to be submitted while another grievance is pending. We never-

theless conclude that this grievance was properly returned and did not

serve to exhaust Moore’s remedies. The "emergency" label notwith-

standing, Moore’s grievance did not indicate that his inability to

receive prompt relief would "present a substantial risk of physical

injury or other serious and irreparable harm," J.A. 145, as the ARP

requires for a grievance to constitute an emergency. Because Moore

had no excuse for not resubmitting the grievance on or after June 5,

2003, when Step 2 of his Hepatitis C grievance was completed, the

district court properly concluded that Moore failed to exhaust his

available remedies regarding his gout claim.

E.

Moore finally maintains that the district court erred in ruling that

he failed to exhaust his available administrative remedies with regard

to his retaliation claim. The district court determined that Moore

failed to properly exhaust his administrative remedies because the

only grievance he submitted concerning the facts of that claim con-

tained multiple issues and failed to name any of the defendants in this

case.

We have already concluded that the latter ground is not a proper

basis for finding that remedies have not been exhausted, and we con-

clude that the former basis is not valid either. At its essence, Moore’s

grievance was a complaint about being punished in various ways for

conduct that he had never been informed of or charged with. Under

these circumstances, requiring Moore to grieve each of the alleged

components of his punishment separately would have prevented him

from fairly presenting his claim in its entirety. Thus, we conclude that

Moore’s grievance was proper and that the district court erred in dis-

missing his retaliation claim.

III.

In sum, for the reasons already discussed, we vacate the dismissal

of the pancreas, Hepatitis C, and retaliation claims, affirm the dis-

missal of the gout claim, and remand for further proceedings consis-

tent with this opinion.

MOORE v. BENNETTE 17

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED