# WOODS v. BENTLEY

> District Court, M.D. North Carolina · November 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10253940

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** November 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253940

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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
3
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

14
[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

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253940. Public record. Not legal advice.