WOODS v. BENTLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TRAVON LEVI WOODS, )

)

Plaintiff, )

)

v. ) 1:19cv743

)

FNU BENTLEY and )

FNU LEWIS, )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on “Defendants’ Motion for

Summary Judgment” (Docket Entry 30 (the “Summary Judgment

Motion”)). For the reasons that follow, the Court should grant the

Summary Judgment Motion.

BACKGROUND

I. Procedural History

Pursuant to 42 U.S.C. § 1983 (“Section 1983”), Travon Levi

Woods (the “Plaintiff”), acting pro se, commenced this action

against two employees of the North Carolina Department of Public

Safety (“NCDPS”), Seth Bentley (“Bentley”) and Christopher Lewis

(“Lewis”) (collectively, the “Defendants”),1 for using excessive

1 The caption includes only surnames, reflecting the extent

of Plaintiff’s knowledge when he filed suit. (See Docket Entry 2

at 2 (naming Defendants by surname and listing job titles and place

of employment).) After repeated, unsuccessful attempts at service

(see, e.g., Docket Entries 20, 21), the Court (per the undersigned)

force against Plaintiff during his incarceration at Albemarle

Correctional Institution (“ACI”). (See Docket Entry 2 (the

“Complaint”) at 1-4.) Defendants answered the Complaint, invoking

various defenses (to include qualified immunity). (See Docket

Entry 26 (the “Answer”).)? Thereafter, the parties commenced

discovery. (See Text Order dated Nov. 19, 2020 (adopting

Scheduling Order) .)?

After discovery closed, Defendants jointly filed the Summary

Judgment Motion (Docket Entry 30), supporting memorandum (Docket

Entry 31), and exhibits (Docket Entries 32-1, 32-2, 32-3, 32-4, 32-

directed “Assistant Attorney General (‘AAG’) Alex R. Williams of

the North Carolina Department of Justice, as an officer of the

Court” (Text Order dated Aug. 29, 2020) to inquire and report as to

the addresses and employment statuses of Defendants (see id.).

Efforts in compliance with that order resulted in the

identification of Defendants and their then-current job titles and

places of employment (see Docket Entry 22 at 2), which ultimately

allowed for successful service of process (see Docket Entries 24,

25).

2 The Answer denied the allegations relating to exhaustion of

administrative remedies, as Defendants lacked “information

sufficient to form a belief as to th[ose] allegations” (id. at 1).

3 During discovery, Plaintiff filed a copy of his “First

Interrogatories, Requests for Production of Documents, and Requests

for Admissions” (Docket Entry 27 (all-caps font omitted)), which he

supposedly served on Defendants on January 15, 2021 (see id. at

10). Consistent with Local Rule 26.1(b) (3), the record does not

reflect Defendants’ responses to such inquiries. (See Docket

Entries dated Jan. 15, 2021, to present.) In any event, the

interrogatories, requests for production of documents, and requests

for admission do not pertain to Plaintiff’s exhaustion of

administrative remedies (see Docket Entry 27 at 1-9), the sole (and

dispositive) issue discussed above.

5, 32-6, 32-7, 32-8 (slip sheet), 32-9, 32-10 (slip sheet)).4 That

same day, the Clerk sent Plaintiff a letter advising him of his

“right to file a 20-page response in opposition . . . within 30

days from the date of service of the [Summary Judgment Motion] upon

[him].” (Docket Entry 36 at 1 (emphasis omitted).) The letter

specifically cautioned Plaintiff that a “failure to . . . file

affidavits or evidence in rebuttal within the allowed time may

cause the [C]ourt to conclude that [ D]efendants’ contentions are

undisputed and/or that [Plaintiff] no longer wish[es] to pursue the

matter,” as well as that, “unless [Plaintiff] file[s] a response in

opposition to the [Summary Judgment Motion], it is

likely . . . judgment [will be] granted in favor of [ D]efendants.”

(Id.) Despite these warnings, Plaintiff did not respond. (See

Docket Entries dated Aug. 24, 2021, to present.)5

4 Defendants simultaneously filed a motion to seal (Docket

Entry 33 (the “Sealing Motion”)) and a sealed version of

Plaintiff’s medical records (Docket Entry 34-11), the subject of

the Sealing Motion. Defendants also obtained Plaintiff’s signature

on a document “acknowledg[ing] that [he] ha[d] received and

reviewed” (Docket Entry 37-1 at 1 (emphasis omitted)), inter alia,

the Summary Judgment Motion, supporting memorandum, and all

accompanying materials. (See id.)

5 By local rule, “[i]f a respondent fails to file a response

within the time required . . ., the motion will be considered and

decided as an uncontested motion, and ordinarily will be granted

without further notice.” M.D.N.C. LR 7.3(k). In particular, a

party’s failure “to respond to a summary judgment motion may leave

uncontroverted those facts established by the motion,” Custer v.

Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993). However,

the United States Court of Appeals for the Fourth Circuit requires

substantive review of even unopposed motions for summary judgment.

See id. (“[T]he court, in considering a motion for summary

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II. Allegations

In his unverified Complaint, Plaintiff alleges that:

On May 11, 2018, Plaintiff and Bentley exchanged words at ACI

near the entrance to the exercise yard. (See Docket Entry 2 at 3.)

Plaintiff challenged Bentley to a physical confrontation “away from

camera view” (id.), prompting Bentley to ask Plaintiff to submit to

handcuffs. (See id.) Plaintiff complied but continued to

“verbally . . . assault [Bentley]” (id.), who responded in kind.

(See id.) As Bentley escorted a handcuffed Plaintiff toward “the

Sergeant’s office[,] . . . [Bentley] slam[med Plaintiff] against

the wall without valid reason” (id.) and punched him in the right

eye with “a curled palm” (id.).

Shortly thereafter, “Lewis t[ook] control of the situation by

leading [Plaintiff] into his office.” (Id.) During the

conversation that followed, Lewis “sploke] Lo [Plaintiff]

dismissively” (id.), which angered Plaintiff and ultimately

resulted in Lewis escorting Plaintiff to “restrictive housing while

bending [Plaintiff’s] wrists in multiple uncomfortable, painful

ang[le]s” (id.). En route to restrictive housing, Plaintiff fell

on the steps, and Lewis failed to support his weight or help him

back to his feet. (See id.) Once in restrictive housing, a non-

judgment, must review the motion, even if unopposed, and determine

from what it has before it whether the moving party is entitled to

summary judgment as a matter of law.”).

party prison employee photographed “[Plaintiff’s] face, wrists, and

legs” (id.), after which two nurses assessed Plaintiff. (See id.)

Plaintiff has represented that he filed a grievance regarding

the use of force by Defendants (the “Incident”). (See id. at 2.)°

However, he has conceded his failure to “appeal any adverse

decision to the highest level possible in the administrative

procedure” (id.), explaining that he made “[s]leveral

attempts . . . at filing grievances” (id.) but faced rejection on

the grounds that (A) another then-pending grievance had not yet

proceeded past the second step of administrative review, or (B) he

had presented more than one issue in a single grievance. (See id.)

As a result of the Incident, Plaintiff has claimed entitlement

to “monetary damages, emotional damages, physical damages, punitive

damages, and compensatory awards.” (See id. at 4.) Plaintiff has

sought to recover between $45,000 and $1.5 million from

“[D]efendants in their individual capacities” and “official

capacities . . . if possible” (id.) and has requested the

termination of Defendants’ employment with NCDPS (see id.).

6 According to the Complaint, Plaintiff filed a grievance on

May 5, 2018, six days before the Incident, “[r]eporting excessive

force from two government officials while being restrained and

physically cooperative” (id.). This Memorandum Opinion and

Recommendation assumes that such grievance relates to the Incident

and that the Complaint contains a typographical error as to the

date of the grievance.

III. The Record

In support of the Summary Judgment Motion, Defendants tendered

(i) personal declarations (Docket Entries 32-6, 34-7 (“Lewis

Declaration”)),7 (ii) a declaration from Kimberly D. Grande

(“Grande”), the Executive Director of the NCDPS’s Inmate Grievance

Resolution Board (“IGRB”) (Docket Entry 32-1 (“Grande

Declaration”)), (iii) a copy of NCDPS’s Administrative Remedy

Procedure (“ARP”) dated August 1, 2013 (Docket Entry 32-2),

(iv) copies of three grievances that Plaintiff fully exhausted

between January 1, 2018, and December 31, 2018 (Docket Entries 32-

3, 32-4, 32-5 (collectively, the “Grievances”)), (v) a report

regarding the Incident (Docket Entry 32-7), (vi) a recording of the

Incident (Docket Entry 32-8), (vii) photographs of Plaintiff

(Docket Entry 32-9), and (viii) certain of Plaintiff’s medical

records (Docket Entry 32-10).

As relevant to the Summary Judgment Motion, the record

reflects the following:

7 Defendants failed to file the Lewis Declaration with the

other publicly available exhibits accompanying the Summary Judgment

Motion. Although Defendants have not sought to seal the Lewis

Declaration (see Docket Entry 33), only a sealed version of that

document appears on the docket. (Compare Docket Entries 32-1, 32-

2, 32-3, 32-4, 32-5, 32-6, 32-7, 32-8, 32-9, 32-10, with Docket

Entries 34-1, 34-2, 34-3, 34-4, 34-5, 34-6, 34-7, 34-8, 34-9, 34-

10, 34-11.) By Local Rule, a party who moves to seal documents

“must file two complete sets of documents, one public and one under

temporary seal.” M.D.N.C. LR 5.4(c)(8) (emphasis added).

6

A. Grande Declaration

Grande averred that she reviewed records maintained by the

IGRB (see Docket Entry 32-1, 10) and discovered only three fully

exhausted grievances by Plaintiff “that reached the IGRB between

January 1, 2018, and December 31, 2018” (id., @{ 11). Regarding

those Grievances, final administrative review occurred on February

2, 2018, July 9, 2018, and August 23, 2018, respectively. (See

id., 7 12.)

B. Grievances

Grande provided, as exhibits to the Grande Declaration,

“[t]rue and accurate copies of the Grievances” (id.). According to

the Grievances:

Plaintiff filed the first Grievance on November 29, 2017,

relating an encounter between Plaintiff and a $non-party

correctional officer during which Plaintiff inquired about the

“barber shop list” (Docket Entry 32-3 at 2) and “[the officer] made

a personal threat” (id.) against Plaintiff. As a result of that

encounter, Plaintiff requested relocation. (See id.) On May 7,

2018, after his release from segregated housing, Plaintiff

submitted the second Grievance concerning some missing property.

(See Docket Entry 32-4 at 2.) As relief, Plaintiff stated that he

wished to recover such property. (See id.) Plaintiff lodged the

third Grievance on June 21, 2018, describing some of his property

as missing or damaged during his transfer from ACI to Scotland

Correctional Institution and requesting that ACI return such

property. (See Docket Entry 32-5 at 2.) No Grievance in the

record mentions the Incident or any use of force by Defendants.

(See Docket Entries 32-3, 32-4, 32-5.)

DISCUSSION

I. Relevant Legal Standards

A. Summary Judgment

“The [C]ourt shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Additionally, “[a]s to materiality, . . . [o]nly

disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary

judgment.” Id. The movant bears the burden of establishing the

absence of such dispute. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). In particular:

Where, as here, the movant seeks summary judgment on an

affirmative defense, it must conclusively establish all

essential elements of that defense. When the defendant

has produced sufficient evidence in support of its

affirmative defense, the burden of production shifts to

the plaintiff to come forward with specific facts showing

that there is a genuine issue for trial.

8

Ray Comme’ns, Inc. v. Clear Channel Comme’ns, Inc., 673 F.3d 294,

299 (Ath Cir. 2012) (internal citation and quotation marks

omitted).

In analyzing a summary judgment motion, the Court “tak[es] the

evidence and all reasonable inferences drawn therefrom in the light

most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d

524, 531 (4th Cir. 2011) (en banc). In other words, the nonmoving

“party is entitled ‘to have the credibility of his evidence as

forecast assumed, his version of all that is in dispute accepted,

[and] all internal conflicts in it resolved favorably to him.’”

Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc)

(brackets in original) (quoting Charbonnages de France v. Smith,

597 F.2d 406, 414 (4th Cir. 1979)). If, applying this standard,

the Court “find[s] that a reasonable jury could return a verdict

for [the nonmoving party], then a genuine factual dispute exists

and summary judgment is improper.” Evans v. Technologies

Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996).

“However, the non-moving party may not rely on beliefs,

conjecture, speculation, or conclusory allegations to defeat a

motion for summary judgment.” Lewis v. Eagleton, No. 4:08CV2800,

2010 WL 755636, at *5 (D.S.C. Feb. 26, 2010) (unpublished) (citing

Barber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir.

1992)), aff’d, 404 F. App’x 740 (4th Cir. 2010); see also Pronin v.

Johnson, 628 F. App’x 160, 161 (4th Cir. 2015) (explaining that

“[m]ere conclusory allegations and bare denials” or the nonmoving

party’s “self-serving allegations unsupported by any corroborating

evidence” cannot defeat summary judgment). In response to a

summary judgment motion, “the nonmoving party [must] go beyond the

pleadings and[,] by her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate

specific facts showing that there is a genuine issue for trial.”

Celotex Corp., 477 U.S. at 324 (internal quotation marks omitted).

Factual allegations in a complaint or court filing constitute

evidence for summary judgment purposes only if sworn or otherwise

made under penalty of perjury. See Reeves v. Hubbard, No.

1:08CV721, 2011 WL 4499099, at *5 n.14 (M.D.N.C. Sept. 27, 2011)

(unpublished), recommendation adopted, slip op. (M.D.N.C. Nov. 21,

2011).

B. Exhaustion

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 [S]ection 1983 . . . , 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

10

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 required to

specially plead or demonstrate exhaustion in their complaints.”).

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]J1ll . . . 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)). The relevant prison’s grievance

procedures determine the steps that a prisoner must take to achieve

exhaustion. See id. at 726.

North Carolina state prisons employ a three-step ARP. (See

Docket Entry 32-2 (copy of ARP issued on August 1, 2013).)}) The ARP

first encourages inmates to attempt “informal communication with

11

responsible authorities at the facility [where] the problem arose.”

ARP, § .0301(a). Absent resolution in that manner, the ARP

provides that “any aggrieved inmate may submit a written

grievance . . . .” Id., § .0310(a)(1). The grievance must

“contain language sufficient to put defendants on notice” of the

constitutional violation. Hamilton v. Daniels, 5:13CT3048, 2013 WL

6795008, at *3 (E.D.N.C. Dec. 20, 2013) (unpublished) (finding that

grievance failed to put prison officials on notice because it

lacked information pertaining to inmate’s need for safety helmet,

wheelchair, or assistance from orderly).

The ARP imposes several requirements as to the form and timing

of grievances. More specifically, an inmate must submit a

grievance on a particular document, ARP, § .0304(a), within 90 days

of the event giving rise to the grievance, id., § .0306(c)(2).

Additionally, an inmate may not seek “a remedy for more than one

incident” via a single grievance, id., § .0306(c)(4), and may not

file a new grievance while another grievance remains pending until

“the pending grievance has completed [the second step of

administrative] review or has been resolved,” id., § .0304(b).

Non-compliance with any such requirement constitutes grounds for

rejection. See id., § .0306(c)(6).

After a screening officer accepts a grievance, the inmate will

receive a written response from the facility head or designee. See

id., § .0310(a)(5). If the inmate remains unsatisfied with the

12

decision at the above-described step one of the grievance process,

he or she may request relief from the facility head. See id.,

§ .0310(b) (1). If the above-described step two of the grievance

process fails to resolve the inmate’s concern, “he or she may

appeal to the Secretary of Public Safety through the Inmate

Grievance Examiner (‘IGE’).” see id., § .0310(c) (1). “The

decision by the IGE or a modification by the Secretary of Public

Safety . . . constitute[s] the final step of the [ARP].” Id.,

§ .0310(c) (6). To demonstrate exhaustion, an inmate generally must

complete all three steps of the ARP. See Murray v. Dobyns, No.

1:12cV214, 2013 WL 3326661, at *2-3 (M.D.N.C. July 1, 2013)

(unpublished), recommendation adopted, slip op. (M.D.N.C. Jan. 14,

2014); accord Alston v. Solomon, No. 3:14CV250, 2014 WL 2208275, at

*2 (W.D.N.C. May 28, 2014) (unpublished).

II. Analysis

Defendants first have staked their entitlement to summary

judgment on Plaintiff’s failure to exhaust administrative remedies

(see Docket Entry 31 at 11), arguing that Plaintiff only completed

the three steps of the ARP as to the Grievances, all of which

related to issues other than the Incident (see id. at 9-11).

Alternatively, Defendants have contended that no reasonable jury

could conclude that they used excessive force against Plaintiff

during the Incident. (See id. at 11-14.)

13

The Court need address only Defendants’ argument concerning

exhaustion of administrative remedies. Generally speaking,

Plaintiff’s lack of response to the Summary Judgment Motion does

not automatically defeat his claim. See Custer v. Pan Am. Life

Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993) (requiring substantive

review of unopposed summary judgment motions). However, upon

review of the record, summary judgment for Defendants remains

appropriate. The Grande Declaration and Grievances submitted by

Defendants establish that Plaintiff failed to exhaust

administrative remedies as to the Incident. (See Docket Entry 32-

1, ¶¶ 10–12; Docket Entries 32-3, 32-4, 32-5.) Even if Plaintiff

filed or attempted to file a grievance regarding the Incident, as

the (unverified) Complaint asserts (see Docket Entry 2 at 2), the

record lacks any evidence to show that Plaintiff completed all

three steps of the grievance process (as required under the ARP)

(see id. (conceding failure in that regard)) or that, “through no

fault of his own,” Moore, 517 F.3d at 725, such remedy eluded him.

Accordingly, Plaintiff’s failure to respond to the Summary Judgment

Motion left “uncontroverted,” Custer, 12 F.3d at 416, the fact that

Plaintiff did not (fully) pursue administrative remedies regarding

the Incident.

In sum, because Defendants have offered sufficient evidence to

support their exhaustion-based affirmative defense, Plaintiff, as

“the nonmoving party[, must] go beyond the pleadings and[,] by

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[his] own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial,” Celotex Corp.,

477 U.S. at 324 (internal quotation marks omitted). See also Ray

Commc’ns, 673 F.3d at 299. In light of Plaintiff’s failure to

respond to the Summary Judgment Motion, no competent evidence

supports the proposition that Plaintiff exhausted administrative

remedies as to the Incident. Even if the Complaint contained such

allegation, Plaintiff may not rely on the mere allegations of his

unverified Complaint to defeat summary judgment. See Pronin, 628

F. App’x at 161. Those circumstances warrant dismissal of

Plaintiff’s claim. 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.”).

Accordingly, the Court should grant summary judgment in favor of

Defendants.

CONCLUSION

Because the record demonstrates that Plaintiff did not exhaust

administrative remedies as to his eighth-amendment excessive-force

claim, Defendants have established entitlement to judgment as a

matter of law.

15

IT IS THEREFORE RECOMMENDED that the Summary Judgment Motion

(Docket Entry 30) be granted and that this action be dismissed

without prejudice for failure to exhaust administrative remedies.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

November 5, 2021

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