STOLLARD v. GWYNN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JONATHAN STOLLARD, )

)

Plaintiff, )

)

v. ) 1:19cv926

)

C/O GWYNN, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on the “Motion to Dismiss”

(Docket Entry 15) (the “Motion”).1 For the reasons that follow,

the Court should grant in part and deny in part the Motion.

BACKGROUND

In September 2019, Jonathan Stollard (the “Plaintiff”), an

inmate with the North Carolina Department of Public Safety (the “NC

DPS”), commenced this action pursuant to 42 U.S.C. § 1983 against

certain officials at Caswell Correctional Center (the “Caswell CI”

or “Caswell”) for their alleged violation of his constitutional

rights during his incarceration at Caswell. (See Docket Entry 2

(the “Complaint”) at 1-15.)2 More specifically, the Complaint

1 For legibility reasons, this Opinion uses standardized

capitalization, spelling, and punctuation in all quotations from

the parties’ materials.

2 Citations herein to Docket Entry pages utilize the CM/ECF

footer’s pagination.

identifies the following as defendants: “C/O Gwynn” and ‘C/O

Stevens,” each a “Detention Officer [at] Caswell CI” (id. at 3);

“Supt. Carver,” the “Corr. Admin. [at] Caswell CI” (id. at 4);

“Asst. Supt. Cassade,” the “Asst. Corr. Admin. [at] Caswell CI”

(id.); and “Caswell CI Medical Dept Officials,” identified as

“Medical Tech. at Caswell CI.” (id.).

According to the Complaint:

On December 17, 2018, Caswell Correction Officers Stevens and

Gwynn verbally and physically assaulted Plaintiff. (See id. at 5.)

In particular, Plaintiff “was cursed at [and his hands were]

handcuffed behind [his] back [before he was] picked up and

repeatedly slammed onto the concrete floor by Correction Officers

[Gwynn and Stevens].” (Id.; see also id. at 12-13 (alleging that

Officers Stevens and Gwynn “handcuffed and slammed [Plaintiff] on

the floor”).) In addition, Plaintiff “was beaten by [Officer]

Stevens[ and Officer] Gwynn.” (Id. at 5.) This beating caused

“numerous severe injuries to [Plaintiff’s] wrist, fingers, hands,

lower back, and neck area.” (Id. at 13.) However, Plaintiff “was

deprived of immediate medical treatment and placed in a Restrictive

Housing Unit.” (Id.) Plaintiff made “[n]umerous request[s] .. .

to receive an Emergency Sick Call, due to numbness in [his] hands,

arms, legs, and lower back,” but “Defendants and their officials

deprived [him] of receiving medical treatment/assistance.” (Id. at

5-6 (brackets omitted) .)

“Several weeks later after receiving x-ray[s, Plaintiff] was

later examined by a medical doctor at a local hospital” (id. at 6),

but the intervening “[d]eprivation of adequate medical treatment [

caused] permanent damage[] to [Plaintiff’s] wrist, back, hand,

neck, and fingers” (id. at 13). Plaintiff also suffers from mental

anguish, PTSD, and nightmares from the assault. (Id. at 6-7.) In

addition, “as a means of direct retaliation from defendants[,

Plaintiff] received [a] transfer from Caswell CI, due to defendants

[]posing a direct threat to [his] life and safety.” (Id. at 6.)

Plaintiff filed “Grievance Complaints” regarding these matters.

(Id.)

Thereafter, Plaintiff returned and the Clerk issued summonses

to “(Caswell CI) Corr. Officer Gwynn” (Docket Entry 5 at 1);

“(Caswell CI) Corr. Officer Stevens” (id. at 3); “(Caswell CI)

Corr. Admin. Carver” (id. at 5); “(Caswell CI) Asst. Corr. Admin.

Cassade” (id. at 7); and “(Caswell CI) Caswell Corr. Medical Staff”

(id. at 9). Each summons lists 444 County Home Road, Blanch, NC

27212, the address for Caswell CI, see https://www.ncdps.gov/adult-

corrections/prisons/prison-facilities/caswell-correctional-center

(last visited Feb. 17, 2021), as the relevant defendant’s address.

(See Docket Entry 5 at 1-9.) The United States Marshals Service

served the summonses and Complaint via certified mail on December

17, 2019. (See Docket Entries 8-11, 14.) The postal service

delivered the summonses for Gwynn, Stevens, Carver, and Cassade on

December 20, 2019 (see Docket Entries 8-11), but failed to deliver

the summons to the “Caswell Corr. Medical Staff” (see Docket Entry

14 at 2 (reflecting, as most recent update as of March 11, 2020,

postal service tracking message dated December 23, 2019, indicating

that package remained “In Transit to Next Facility . . . within the

USPS network”)).

On March 30, 2020, “Defendants Stevens, Gwynn, Carver, and

Cassady” moved to dismiss the Complaint on the grounds of, inter

alia, “improper service of process[] and Plaintiff’s failure to

state a claim upon which relief can be granted” (Docket Entry 15 at

1). (See id. at 2.) In response, Plaintiff requested an extension

of time to respond to the Motion (see Docket Entry 18 (the

“Amendment”) at 1), and also sought to “tell [the Court] a little

about this incident” (id. at 2; see id. at 2-9 (elaborating on

allegations in Complaint)). Dated April 15, 2020 (see id. at 1),

and mailed from the Dan River Prison Work Farm (see Docket Entry

18-1 at 1), the Amendment arrived at the courthouse on April 21,

2020 (see id.), and was filed the same day (see Docket Entry 18 at

1). The Court granted the extension request (see Text Order dated

July 9, 2020), but Plaintiff made no additional filings (see Docket

Entries dated July 9, 2020, to present).

Because Plaintiff submitted the Amendment within “21 days

after service of [the Motion],” Fed. R. Civ. P. 15(a) (1) (B), it

constitutes an amendment of right under Rule 15 of the Federal

Rules of Civil Procedure (the “Rules”). The Amendment provides

significantly more detail regarding Officer Stevens’s and Officer

Gwynn’s alleged assault on Plaintiff on December 17, 2018 (see

Docket Entry 18 at 2-6),3 including that Officer Gwynn allegedly

picked Plaintiff up “and slammed [him] as hard as he could on[to]

the floor” before he “grabbed the back of [Plaintiff’s] head” and

turned it so that Plaintiff’s “face was on the concrete and [then]

pushed [Plaintiff’s] face into the concrete pushing all his weight

on [Plaintiff’s] head” (id. at 4). Additionally, the Amendment

states:

Officer Stevens then jump[ed] down onto [Plaintiff]

and both Officers together grabbed [Plaintiff’s] arms and

put handcuffs on [Plaintiff]. Officer Gwynn then grabbed

[Plaintiff’s] right thumb and ben[t] it [un]til it broke.

[Plaintiff] felt it and told him he just broke

[Plaintiff’s] thumb. Officer Gwynn and Officer Stevens

both were laughing. Then Officer Stevens grabbed

[Plaintiff’s] left thumb and bent it until [Plaintiff]

felt it break. [Plaintiff] then said you broke my other

thumb. The pain was so great [that Plaintiff] started to

cry because it really hurt. Then Officer Stevens said

you’re lucky that’s all we f-king did to you. Officer

Gwynn the[n] called a Code 4 on the walkie talkie. And

Officer Gwynn and Officer Stevens started elbowing

[Plaintiff’s] sides and punching on [Plaintiff] while

they were saying stop resisting. [Plaintiff] was not

resisting them[, he] was moving because [he] was being

hit and elbowed in [his] ribs. [Plaintiff] ha[s] long

hair [and] Officer Gwynn then pulled [his] head off the

floor by [his] hair and slammed [his] head back to the

floor face first. By this time other officers c[a]me

running in and Officer Gwynn and Officer Stevens [we]re

saying stop resisting so the other officers jump[ed] on

top of [Plaintiff] also. The officers la[id] on

3 The Amendment notes that, “[w]hile this was happening there

[we]re windows all around [them] so other inmates start[ed] to

watch this happen.” (Id. at 3.)

5

[Plaintiff] for about 2 or 3 minutes then they snatch[ed

him] up off the floor[ a]nd Officers Stevens and Sergeant

Terell walk[ed Plaintiff] across the prison yard bare

footed to segregation. When [Plaintiff] g[o]t into

segregation the officers t[ook] him into the strip room.

(Id. at 4-5.)

As to the events that followed, the Amendment alleges:

Officer Stevens directed Plaintiff to remove his clothing,

which Plaintiff did. (See id. at 5.) Officer Stevens then gave

Plaintiff a series of orders, with which Plaintiff originally

complied, but to which he ultimately objected on the grounds that

the specified conduct “[wa]s not necessary.” (Id.) In response,

“Officer Stevens step[ped] up in [Plaintiff’s] face while

[Plaintiff was] naked and sa[id,] ‘You better f-king do it or I

will beat your f-king a-s back here.’” (Id.) “At this time

another officer walk[ed] in and sa[id] what are you doing put your

. . . clothes on now. [Plaintiff] told him [Plaintiff could not

because] Officer Stevens ha[d Plaintiff’s] boxers in his hand.”

(Id. at 5-6.) “Officer Stevens threw the boxers at [Plaintiff] and

[he] got dressed.” (Id. at 6.) “[Plaintiff] was the[n] shackled

and handcuffed and chained around [his] waist and then put in a

cell,” where he stood “for about 20 minutes before the[y] took

[him] to medical.” (Id.) “When [Plaintiff] got there[, he] told

medical that [his] finger[s] were broken. The nurse said ‘How do

you know?’” (Id.) Plaintiff informed the nurse that he “felt it

when the officers broke them. [Plaintiff] was then taken back to

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Segregation and put into a cell after the chains and cuffs were

removed.” (Id.)

The Amendment continues:

Two days later a mobile x-ray nurse came and x-rayed

[Plaintiff’s] hands. After she took the x-ray she asked

was [Plaintiff] ok. [Plaintiff told] her [his] hands

hurt really bad[ and] she said they are definitely broken

[and] you need to go to the hospital. She then said I’m

going to tell them you need to go. [Plaintiff] said ok

thank you and was t[a]k[en] back to [his] cell.

[Plaintiff] did not go to the doctor until December 31st.

[Plaintiff] was in extreme pain for 2 weeks. When [he]

went to the doctor on the 31st the doctor asked [him]

when this happened[. Plaintiff] told him about 2 weeks

ago [and] he said “why did you wait so long to come?”

[Plaintiff] told him [Plaintiff] had to wait for them to

bring [him and the doctor] said the prison didn’t even

call to make [Plaintiff’s] appointment until the 27th of

December. [Plaintiff] told him [Plaintiff] did [not]

have any control over making the appointment. The doctor

then took [Plaintiff] into his x-ray room and took his

own x-rays. When he came back in the room he told

[Plaintiff] that [Plaintiff] had to have hard cast[s] put

on both hands. He asked how did it happen [and

Plaintiff] told him what happen[ed] and he said “Yeah I

can see they were forced breaks. But the bad thing is

that they have . . . healed deformed because of the time

the medical waited to bring [Plaintiff] to the doctor.[”]

When [Plaintiff] got back to the prison the

Superintendent Mr. Carver came to Segregation to talk to

[Plaintiff]. He asked what happen[ed] so [Plaintiff]

told him. He then asked was there anybody that could

verify [Plaintiff’s] story so [Plaintiff] gave him some

of the inmates’ names that [Plaintiff] knew. He then

told [Plaintiff that] “He didn’t need this bulls-t

happening on his watch because he was trying to retire in

5 months and he was not try[ing to] have to deal with

this mess.[” Plaintiff] told him [Plaintiff] didn’t

either and [Plaintiff] didn’t deserve this. Mr. Carver

said I know you didn’t. He then told [Plaintiff,] he

said[,] “I’ve never even heard your name and you [have]

been here 9 months so I know you don’t cause any

trouble.[”] Mr. Carver then asked [Plaintiff] was there

another prison that [Plaintiff] want[ed] to go to closer

7

to [his] house. Because he did [sic] need no d-n

lawsuit. [Plaintiff] told him [he] requested to come [to

Caswell] for the welding program to get certification and

[Plaintiff was] only 30 minutes from home. Mr. Carver

then told [Plaintiff that] he would make sure [Plaintiff]

was in the welding program as long as [Plaintiff]

promised not to file a lawsuit. He also said he would

give [Plaintiff] contact visits while [Plaintiff] was in

Seg[regation] which [Plaintiff] know[s] was against the

rules. So that’s when [Plaintiff] knew he was trying to

bribe [Plaintiff]. He also told [Plaintiff] the charge

of assault on an[] Officer. That he would make it

disappear. And it did.

[Plaintiff] stayed in Seg[regation] about 40 some

days and got out and a lawyer came to see [Plaintiff

named] Jacob Daniels. He got all [of Plaintiff’s]

paperwork and [Plaintiff has] never seen or heard from

him again. Then in June [Plaintiff] was shipped out to

Salisbury prison [and] when [he] got there [his]

programmer told [him that Plaintiff] signed up for a cook

job in the kitchen. Which [Plaintiff] never did[.

Plaintiff] wanted to weld not cook. So [Plaintiff]

know[s he] was sent the[re] out of retaliation. In

August 2019[, Plaintiff] got honor grade and was sent to

Dan River which is across the street from Caswell [CI].

When [Plaintiff] got [t]here [he] was and still [is]

being harassed by officers [t]here[;] they are asking

what happened and do[es Plaintiff] have a lawsuit. A few

have c[o]me and searched [Plaintiff] and tore up [his]

family pictures and broke [his] stuff and told [him]

Officer[] Gwynn is their hunting buddy and they should

have f-ked [Plaintiff] up more than they did. The

Superintendent [t]here at Dan River Mr. Roach told

[Plaintiff] that this prison and Caswell are a “tight

knit family so of course there is friend and family of

officers at Caswell so [Plaintiff is] just [going to]

have to deal with it.[”] Mr. Roach took [Plaintiff’s]

girlfriend off [his] visit list. And said [Plaintiff]

shouldn’t have filed a suit. So now [Plaintiff] can’t

see [his] kids [and his] mail is being held or not even

given to [him]. And not being sent out. [Plaintiff] is

a mechanic by trade and [he] can’t use [his] hand to work

so [he] do[es]n’t know how [he is] going to take care of

[his] family once [he is] released. [His] hands hurt so

bad. [He] was suppose[d] to do physical therapy for

[his] hands at Caswell but was shipped out and when [he]

8

asked about it the nurse sa[id] there is not paperwork on

it. . . .

(Id. at 6-9.)

DISCUSSION

I. Relevant Standards

“Defendants Stevens, Gwynn, Carver, and Cassady”

(collectively, the “Defendants”) move to dismiss this action for,

inter alia, “improper service of process” under Rule 12(b)(5).

(Docket Entry 15 at 1.) As this Court previously explained:

The plaintiff bears the burden of establishing that the

service of process has been performed in accordance with

the requirements of [Rule] 4. In determining whether the

plaintiff has satisfied his burden, the technical

requirements of service should be construed liberally as

long as the defendant had actual notice of the pending

suit. When there is actual notice, every technical

violation of the rule or failure of strict compliance may

not invalidate the service of process. But the rules are

there to be followed, and plain requirements for the

means of effecting service of process may not be ignored.

Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003) (internal

quotation marks and citations omitted).

In addition, Defendants move to dismiss Plaintiff’s official-

capacity claims on sovereign immunity grounds, contending that the

Eleventh Amendment bars Plaintiff’s official-capacity claims for

monetary damages. (See Docket Entry 16 at 4-5, 11-12.) As such,

Defendants present “a facial challenge to subject matter

jurisdiction,” entitling Plaintiff to “the same procedural

protection as he would receive under a Rule 12(b)(6)

consideration.” Kerns v. United States, 585 F.3d 187, 192 (4th

9

Cir. 2009) (internal quotation marks omitted). “In [such]

situation, the facts alleged in the complaint are taken as true,

and the motion must be denied if the complaint alleges sufficient

facts to invoke subject matter jurisdiction.” Id.

Defendants also move to dismiss certain of Plaintiff’s claims

pursuant to Rule 12(b) (6). (See Docket Entry 15 at 1; Docket Entry

16 at 1.) In reviewing a Rule 12(b) (6) motion, the Court must

“accept the facts alleged in the complaint as true and construe

them in the light most favorable to the plaintiff.” Coleman v.

Maryland Ct. of App., 626 F.3d 187, 189 (4th Cir. 2010), aff’d sub

nom., Coleman v. Court of App. of Md., 566 U.S. 30 (2012). # □□□

Court must also “draw all reasonable inferences in favor of the

plaintiff.” E.1I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435, 440 (4th Cir. 2011) (internal quotation marks

omitted). Moreover, a pro se complaint must “be liberally

construed” and “held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (internal quotation marks omitted); but see Giarratano v.

Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (explaining that the

United States Court of Appeals for the Fourth Circuit has “not read

Erickson to undermine [the] requirement that a pleading contain

more than labels and conclusions” (internal quotation marks

omitted)).

10

To avoid Rule 12(b)(6) dismissal, a complaint must contain

sufficient factual allegations “to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). To qualify as plausible, a claim needs sufficient factual

content to support a reasonable inference of the defendant’s

liability for the alleged misconduct. Id. (citing Twombly, 550

U.S. at 556). The complaint need not contain detailed factual

recitations, but must provide “the defendant fair notice of what

the claim is and the grounds upon which it rests.” Twombly, 550

U.S. at 555 (internal quotation marks and ellipsis omitted). “At

bottom, determining whether a complaint states . . . a plausible

claim for relief . . . will ‘be a context-specific task that

requires the reviewing court to draw on its judicial experience and

common sense.’” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.

2009) (quoting Iqbal, 556 U.S. at 679).

Finally, in ruling on a Rule 12(b)(6) motion, “a court

evaluates the complaint in its entirety, as well as documents

attached or incorporated into the complaint.” E.I. du Pont, 637

F.3d at 448. The Court may also consider documents “attached to

the motion to dismiss, so long as they are integral to the

complaint and authentic.” Philips v. Pitt Cty. Mem’l Hosp., 572

F.3d 176, 180 (4th Cir. 2009). Generally, a “court cannot go

beyond these documents” without “convert[ing] the motion into one

11

for summary judgment.” E.I. duPont, 637 F.3d at 448.

Nevertheless, “[i]n reviewing a Rule 12(b) (6) [motion, the Court]

may properly take judicial notice of matters of public record.”

Philips, 572 F.3d at 180.

II. Preliminary Matters

“As a general rule, an amended pleading ordinarily supersedes

the original and renders it of no legal effect.” Young v. City of

Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (internal quotation

marks omitted). Thus, the filing of an amended complaint normally

moots a pending motion to dismiss. see, _ e.g., Mooney v. Cato

Corp., No. 1:07cv76, 2007 WL 2406961, at *1 (W.D.N.C. Aug. 20,

2007). Here, however, many of Defendants’ dismissal arguments

apply as equally to the Amendment as to the Complaint. (See, e.g.,

Docket Entry 16 at 8-9 (urging dismissal on grounds that, inter

alia, “ (A) Plaintiff failed to properly serve Defendants;

(B) Defendants are entitled to sovereign immunity for official

capacity claims; [and] (C) Plaintiff failed to exhaust his

administrative remedies”) Under the circumstances, the

undersigned will “consider the [M]otion as being addressed to the

[A]mend[ment],” 6 Charles Alan Wright, et al., Federal Practice and

Procedure § 1476 (3d ed.). See Brumfield v. McCann, No.

2:12-cv-1481, 2013 WL 943807, at *2-3 (S.D. W. Va. Mar. 11, 2013)

(granting motion to amend complaint, but concluding that court

12

could still consider pending dismissal motions, and collecting

cases).

III. Service Challenge

Defendants first maintain that they “were improperly served

because someone else signed for the summons.” (Docket Entry 16 at

9.) According to Defendants:

Rule 4(e) states that individuals must be served by

(A) delivering a copy of the summons and of the

complaint to the individual personally;

(B) leaving a copy of each at the individual’s

dwelling or usual place of abode with someone of

suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent

authorized by appointment or by law to receive

service of process.

Fed. R. Civ. P. 4(e)(2). The rules does [sic] not allow

service to be accomplished by leaving a copy of the

summons and complaint at the individual’s place of

employment with someone else. Instead, if service is

accomplished at the defendant’s place of employment, it

must be served on the defendant personally.

In this case, the Return of Service clearly

indicates that the Summons and Complaint were served at

the Caswell Correctional Center — not the Defendants’

respective residences. As such, Rule 4 requires that

each of the Defendants were required to sign for their

respective copies of the Summons and Complaint. However,

that did not occur — Amy Durham (not Defendants) signed

for the Summons and Complaint. Thus, Plaintiff has

improperly served Defendants. Without proper service,

the Court lacks personal jurisdiction. Therefore,

Plaintiff’s Complaint should be dismissed.

(Docket Entry 16 at 9-10 (emphasis in original).)

13

Relying strictly on Rule 4(e)(2) (see id.), Defendants’

argument overlooks Rule 4(e)(1), which permits service by

“following state law for serving a summons in an action brought in

courts of general jurisdiction in the state where the district

court is located or where service is made,” Fed. R. Civ. P.

4(e) (1). North Carolina state law permits service via certified

mail to a defendant’s place of employment. See, e.g., Moore v.

Cox, 341 F. Supp. 2d 570, 573 (M.D.N.C. 2004).

Moreover, if the certified mail receipt “[i]ls signed by a

person other than the addressee, North Carolina presumes ‘that the

person who received the mail . . . and signed the receipt was an

agent of the addressee authorized by appointment or by law to be

served or to accept service of process.’” Godfrey v. Long, No.

5:10-ct-3105, 2012 WL 43593, at *5 (E.D.N.C. Jan. 9, 2012)

(ellipsis in original) (quoting N.C. Gen. Stat. § 1A-1, Rule

4(42) (2)), aff’d, 472 F. App’x 174 (4th Cir. 2012); see also Moore,

341 F. Supp. 2d at 573 (observing that “a person authorized to

receive mail is an authorized agent for purposes of receiving

service of process in North Carolina”).* “A party may rebut this

presumption of valid service with ‘affidavits of more than one

person showing unequivocally that proper service was not made upon

4 It also bears noting that “[p]olicy considerations likewise

do not support [Defendants’] proposed construction: indeed, many

defendants sued in connection with their work might prefer that

plaintiffs not be encouraged to seek out their home addresses.”

Waller v. Butkovich, 584 F. Supp. 909, 926 (M.D.N.C. 1984).

14

the person of the defendant.’” Godfrey, 2012 WL 43593, at *5

(quoting Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94

(1996)). However, “‘[a] defendant who seeks to rebut the

presumption of regular service generally must present evidence that

service of process failed to accomplish its goal of providing

defendant with notice of the suit, rather than simply questioning

the identity, role, or authority of the person who signed for

delivery of the summons.’” D.B.G. v. Robeson Cty. Bd. of Educ.,

No. 7:18-cv-122, 2019 WL 1005195, at *3 (E.D.N.C. Mar. 1, 2019)

(quoting Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 493, 586

S.E.2d 791, 797 (2003)).

Here, “[t]here is no showing of improper service. On [January

3, 2020], the United States Marshal filed [returns] of service on

[Defendants] indicating service on [them] via certified mail,

return receipt requested. [(See Docket Entries 8-11.)] The

attached return receipt[s] show[] that the delivery was accepted by

‘[Amy L Durham (see id.)]’ who, under North Carolina law, is

presumed to be [Defendants’] agent for service of process.”

Godfrey, 2012 WL 43593, at *5. Defendants failed to file any

affidavits challenging service. (See Docket Entries dated Jan. 3,

2020, to present.) Accordingly, “[b]ecause [Defendants] ha[ve] not

overcome the presumption of valid service under North Carolina law,

the [C]ourt [should] den[y their request to dismiss] based on

improper service.” Godfrey, 2012 WL 43593, at *5.

15

IV. Exhaustion Challenge

Defendants next contend that Plaintiff’s claims against

“Carver and Cassady should be dismissed because Plaintiff failed to

exhaust his administrative remedies.” (Docket Entry 16 at 16.)

Defendants similarly assert that, “to the extent that Plaintiff’s

Complaint is interpreted to include a claim of retaliation, claim

of unauthorized transfer, or some other type of due process claim,

. . . such claims should be dismissed because Plaintiff failed to

exhaust his administrative remedies.” (Id.)

As relevant here, the Prison Litigation Reform Act of 1995, as

amended (the “PLRA”), provides 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).

This “exhaustion requirement applies to all inmate suits about

prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive force or

some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

The defendant bears the burden of establishing that a prisoner

failed to exhaust administrative remedies. See Jones v. Bock, 549

U.S. 199, 216 (2007) (“We conclude that failure to exhaust is an

affirmative defense under the PLRA, and that inmates are not

16

required to specially plead or demonstrate exhaustion in their

complaints.”).

Nevertheless, the “exhaustion of administrative remedies under

the PLRA is a question of law to be determined by the judge.”

Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010); see also

Lee v. Willey, 789 F.3d 673, 677 (6th Cir. 2015) (“[A]1ll .. □ of

the circuits that have considered the issue agree that judges may

resolve factual disputes relevant to the exhaustion issue without

the participation of a jury.” (internal quotation marks omitted)).

A prisoner satisfies the PLRA exhaustion requirement when he “ha[s]

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.” Moore v.

Bennette, 517 F.3d 717, 725 (Ath Cir. 2008) (quoting Woodford v.

Ngo, 548 U.S. 81, 88 (2006)). Thus, the relevant prison’s

grievance procedures determine the steps that a prisoner must take

to meet his exhaustion obligations. See id. at 726.

Plaintiff asserts in his Complaint that he filed “Grievance

Complaints” regarding the “[a]ctions of defendants.” (Docket Entry

6.) Defendants attached two grievances to the Motion, which

NC DPS officials indicate “represent all completed Step 3 appeal

[grievance] records” for Plaintiff from January 1, 2018, through

March 11, 2020. (Docket Entry 16-1 at 3 (emphasis in original).)°

5 “The NC DPS provides a three-step administrative review

process for inmate grievances.” Grady v. Brayboy, No. 1:18cv777,

17

Plaintiff did not address the grievances in the Amendment. (See

Docket Entry 18; see also Docket Entry 17 at 1 (warning Plaintiff

that “failure to respond or, if appropriate, to file affidavits or

evidence in rebuttal within the allowed time may cause the [C]ourt

to conclude that the defendant(s)’ contentions are undisputed”) .)

The first grievance, dated January 1, 2019, states that, “[o]n

12-17-18[,] Officer Gwynn and Officer Stevens broke both

[Plaintiff’s] thumbs after [he] was placed in handcuffs.” (Docket

Entry 16-1 at 4 (the “Assault Grievance”) .) As a remedy, the

Assault Grievance requests that Officer Stevens’s and Officer

Gwynn’s “contracts [be] terminated to prevent anyone else from

getting hurt the same way or worse.” (Id.) The Step One and Step

Two responses state that the NC DPS “[wa]ls aware of [Plaintiff’s]

allegations” and undertaking an investigation, which negated the

need for “further action . . . at this level” of the grievance

process. (Id. at 6; accord id. at 5.) In turn, the Step Three

response states:

This examiner has reviewed this grievance and the

response given by staff in the Step 1 and Step 2

responses. My review of this grievance reveals serious

allegations made against staff at Caswell C[I], which is

[Plaintiff’s] current housing location. [Plaintiff] was

provided medical care for [his] injuries. [His] medical

2019 WL 5064846, at *1 n.3 (M.D.N.C. Oct. 9, 2019), report and

recommendation adopted, No. 1:18-cv-777, 2019 WL 11069406 (M.D.N.C.

Nov. 6, 2019); see generally State of North Carolina Department of

Public Safety Prisons, Policy & Procedures, Administrative Remedy

Procedure, https://files.nc.gov/ncdps/div/Prisons/Policy Procedure _

Manual/G.0300 08 01 13.pdf (last visited Feb. 17, 2021).

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concerns related to this incident were resolved in a

separate grievance (#00012).

[Plaintiff’s] grievance remedy request was that the

staff involved be “terminated”, ‘so that no one else

could get hurt the same or worse from them’. This

examiner has determined that the allegations have been

investigated (report #4415-18-176) by the Facility

Investigator. During the course of this investigations,

the staff involved had been assigned duties with NO

offender contact so that there would no opportunity for

[Plaintiff] to be supervised by them. The investigation

appears appropriate, and was referred for review,

approval and possible disciplinary action (up to

including dismissal) to the Director of Prisons.

This examiner has verified that the above

information and Investigation meets [Plaintiff’s]

grievance remedy request, therefore the grievance is

dismissed as resolved.

(Id. at 7 (emphasis in original).)

As this response reflects, Plaintiff also filed a grievance

regarding the medical treatment he received in connection with his

injuries. (See id. at 8 (the “Medical Grievance”).) Dated January

16, 2019, this grievance states:

On 12-17-18[, Plaintiff’s] thumbs were injured. The

nurses ordered for xrays on 12-19-18. The xrays showed

[Plaintiff’s] thumbs were broken. Medical failed to set

up [Plaintiff] an appointment until 12-27-18[.

Plaintiff] didn’t go to the doctor until 12-31-18.

[Plaintiff] was in extreme pain for 2 weeks[; Plaintiff]

stated this to the nurses numerous times[.] They acted

like it didn’t matter that [Plaintiff] was in pain. Both

[his] hands were swollen and were black and blue,

purple[,] they were clearly broken.

(Id.) As a remedy, the Medical Grievance requests that the NC DPS

“hire medical staff that are more professional and reliable.”

(Id.) Finding “that prison staff have taken appropriate action to

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address and resolve [Plaintiff’s] concerns voiced in the

grievance,” the Step Three reviewer deemed the Medical Grievance

“resolved by prison staff” and, “therefore, dismissed[ it].” (Id.

at 11.)

Neither grievance addresses Plaintiff’s claims against Carver

or Cassady. (See id. at 4, 8.) Dating from Plaintiff’s

incarceration at Caswell CI (see id.), the grievances also do not

address his claims of retaliatory transfer (see Docket Entry 18 at

8). Plaintiff has therefore failed to exhaust administrative

remedies on these claims, necessitating their dismissal. see,

e.g., Germain v. Shearin, 653 F. App’x 231, 234 (4th Cir. 2016)

(“Given that [the plaintiff] failed to . . . exhaust his claims,

dismissal is mandatory.”).

V. Official-Capacity Claims

Finally, Defendants move to dismiss Plaintiff’s official-

capacity claims on the grounds that “the Eleventh Amendment bars

such claims.” (Docket Entry 16 at 11.) In that regard:

Section 1983 provides a federal forum to remedy many

deprivations of civil liberties, but it does not provide

a federal forum for litigants who seek a remedy against

a State for alleged deprivations of civil liberties. The

Eleventh Amendment bars such suits unless the State has

waived its immunity or unless Congress has exercised its

undoubted power under § 5 of the Fourteenth Amendment to

override that immunity.

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989)

(citation omitted). Congress did not override States’ eleventh-

amendment immunity in enacting Section 1983, see id., and “North

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Carolina has not waived its sovereign immunity by consenting to be

sued in federal court for claims brought under [Section] 1983,”

Lomick v. Beaver, No. 5:18-cv-57, 2021 WL 328917, at *8 (W.D.N.C.

Feb. 1, 2021). Moreover, “a judgment against a public servant ‘in

his official capacity’ imposes liability on the entity that he

represents.” Brandon v. Holt, 469 U.S. 464, 471 (1985). Per the

Complaint, Defendants all constitute employees of the NC DPS (see

Docket Entry 2 at 3-4), and Plaintiff seeks only “Monetary Rewards”

against them (id. at 8). Accordingly, “the Court should dismiss

[Plaintiff’s official-capacity] claims [against Defendants] because

any judgment against them would impose liability on the state,

which the Eleventh Amendment would bar.” Fuller v. North Carolina,

No. 1:12cv1198, 2013 WL 5817652, at *5 (M.D.N.C. Oct. 29, 2013).6

6 In addition, Plaintiff’s official-capacity claims against

Officer Gwynn and Officer Stevens lacks merit. Under Section 1983,

official-capacity liability occurs only if “execution of a

government’s policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official

policy, inflicts the injury.” Collins v. City of Harker Heights,

503 U.S. 115, 121 (1992) (internal quotation marks omitted).

Relevant here, “an official’s discretionary acts, exercised in

carrying out official duties, do not necessarily represent official

policy.” Perdue v. Harrison, No. 1:17cv403, 2017 WL 4804363, at *2

(M.D.N.C. Oct. 24, 2017). “Rather, the official must have ‘final

authority’ over government policy with respect to the action in

question to trigger official capacity liability.” Id. (certain

internal quotation marks omitted). The Complaint and Amendment

contain no allegations that Officers Gwynn and Stevens either acted

pursuant to any NC DPS policy or possessed “final authority” over

any such custom or policy. (See generally Docket Entries 2, 18.)

Accordingly, Plaintiff’s official-capacity claims against Officer

Stevens and Officer Gwynn also fail as a matter of law.

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CONCLUSION

Defendants’ Rule 12(b)(5) challenge lacks merit, but sovereign

immunity precludes Plaintiff’s official-capacity claims against

Defendants. In addition, Plaintiff failed to exhaust

administrative remedies on his claims against Carver and Cassady,

as well as his claims against Defendants regarding retaliatory

transfer.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 15)

be granted in part and denied in part as follows: Plaintiff’s

official-capacity claims against Defendants be dismissed on

sovereign immunity grounds and his claims against Carver and

Cassady, as well as any retaliatory transfer claim against

Defendants, be dismissed without prejudice for failure to exhaust

administrative remedies.

This 17th day of February, 2021.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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