Ransom v. Davis

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:19-cv-00040-MR

BRIAN G. RANSOM, )

)

Plaintiff, )

)

vs. ) ORDER

)

FNU DAVIS, et al., )

)

Defendants. )

___________________________ )

THIS MATTER is before the Court on Defendants’ Motion to Dismiss.

[Doc. 22].

I. BACKGROUND

Pro se Plaintiff Brian G. Ransom (“Plaintiff”) is a prisoner of the State

of North Carolina currently incarcerated at Scotland Correctional Institution

in Laurinburg, North Carolina. On February 4, 2019, Plaintiff filed this action

pursuant to 42 U.S.C. § 1983 against Defendants Nicholas Davis, identified

as a correctional line staff at Marion Correctional Institution (“Marion”);

Thomas Hamilton, identified as the E-unit restrictive housing acting Unit

Manager at Marion; and Morgan Kizer, identified as the E-unit restrictive

housing Unit Sergeant at Marion.1

On November 19, 2019, Plaintiff’s Complaint survived initial review as

to Plaintiff’s claim against Defendant Hamilton for allegedly violating

Plaintiff’s First Amendment right to be free of retaliation for filing grievances

and against all Defendants under the Eighth and Fourteenth Amendments

for allegedly failing to fix Plaintiff’s toilet and forcing Plaintiff to live in

unsanitary conditions between January 21, 2019 through January 25, 2019

as punishment for filing a P.R.E.A.2 complaint against Defendant Davis. [CR

Doc. 14 at 5-7]. Plaintiff’s First Amendment claim against Defendant

Hamilton for retaliation includes, in part, allegations of Plaintiff having

received disciplinary infractions on January 8, 2019 for filing a P.R.E.A.

complaint against Defendant Davis and denying Plaintiff access to pictures

sent by his mother under the guise of suspected contraband. [See Doc. 1 at

4-6].

Defendants now move to dismiss Plaintiff’s Complaint for Plaintiff’s

failure to exhaust administrative remedies. [Doc. 22]. In their supporting

1 Defendants were named in the Complaint as FNU Davis, T. Hamilton, and FNU Kizer,

respectively. The Court will instruct the Clerk to update the docket in this matter to reflect

Defendants’ true identities.

2 P.R.E.A. stands for the Prison Rape Elimination Act, 34 U.S.C. § 30301. It seeks to

establish “zero tolerance” for the incidence of prison rape. The purpose of this Act is to

protect inmates in correctional facilities from sexual abuse and sexual assault. Gadeson

v. Reynolds, No. 2:08-3702-CMC-RSC, 2009 WL 4572872, at *3 (D.S.C. Dec. 4, 2009).

memorandum, Defendants assert that “Plaintiff’s retaliation claim is based

on disciplinary infractions charged on January 8, 2019,” but fail to recognize

that this claim also relates to wrongfully denying Plaintiff access to his

pictures in retaliation for filing a P.R.E.A. complaint. [See Doc. 23 at 7].

On March 16, 2020 this Court entered an order, in accordance with

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of his

right to respond to Defendants’ motion within fourteen (14) days of that

Order. [Doc. 24]. Plaintiff has not responded to Defendants’ motion.

The matter is now ripe for adjudication.

II. DISCUSSION

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to

exhaust his administrative remedies before filing a section 1983 action. 42

U.S.C. § 1997e(a). The PLRA provides, in pertinent part, that “[n]o action

shall be brought with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any jail, prison, or

other correctional facility until such administrative remedies as are available

are exhausted.” Id. In Porter v. Nussle, the Supreme Court held that the

PLRA’s exhaustion requirement applies to all inmate suits about prison life.

534 U.S. 516, 532 (2002). The Court ruled that “exhaustion in cases covered

by § 1997e(a) is now mandatory.” Id. at 524 (citation omitted). The Porter

Court stressed that, under the PLRA, exhaustion must take place before the

commencement of the civil action in order to further the efficient

administration of justice. Id.

In Woodford v. Ngo, the Supreme Court held that the PLRA exhaustion

requirement requires “proper” exhaustion: “Administrative law . . . requir[es]

proper exhaustion of administrative remedies, which ‘means using all steps

that the agency holds out, and doing so properly (so that the agency

addresses the issues on the merits).’” 548 U.S. 81, 90 (2006) (quoting Pozo

v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Further, “[t]here is no

question that exhaustion is mandatory under the PLRA and that

unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S.

199, 211 (2007) (citing Porter, 534 U.S. at 524). Finally, it is well-settled

that a prisoner may not exhaust his administrative remedies during the

pendency of a Section 1983 action; rather, he must fully exhaust all steps of

the administrative process before filing his lawsuit. See Germain v. Shearin,

653 Fed. Appx. 231, 234 (4th Cir. 2016); French v. Warden, 442 F. App’x

845, 846 (4th Cir. 2011). The NCDPS has established, in its Administrative

Remedies Procedures (“ARP”), a three-step procedure governing

submission and review of inmate grievances. Moore v. Bennette, 517 F.3d

717, 721 (4th Cir. 2008).

Here, in his Complaint, Plaintiff alleges the following as to exhaustion:

Plaintiff sought to exhaust his Administrative

remedies as required by prison policy and the

requirement for the Prisoner Litigation Reform Act.

But T. Hamilton, the unit manager that is retaliating

against Plaintiff, has stated to the Plaintiff[’s] face

verbally that all Grievances and mail has to go

through him first, And that he will reject any

Grievances or throw them away if it was dealing with

certain officials.

[Doc. 1 at 3]. Plaintiff, however, has filed no documents reflecting the use of

the administrative grievance process relative to the claims in his Complaint.

In support of their motion to dismiss, Defendants provide copies of

Plaintiff’s three fully exhausted grievances filed between January 1, 2019

and January 14, 2020 as provided by the Inmate Grievance Resolution

Board. [Docs. 23-1, 23-2]. See Yarber v. Capital Bank, 944 F.Supp.2d 437,

441 (E.D.N.C. Mar. 18, 2013) (“The court may also consider documents

attached to the complaint and documents attached to the motion to dismiss

if those documents are integral to the complaint and authentic.”).3

Defendants claim that none of these grievances relate to the claims that

3 Here, defense counsel attests that, “it is anticipated that these documents will be

uncontested, the facts contained therein relate solely to a matter of formality, and there

will be no substantial evidence offered in opposition.” [Doc. 23-1 at ¶ 2].

remain at issue in this case and that “they do not satisfy the PLRA for the

purposes of this action.” [See Doc. 23 at 8-9; Doc. 23-2 at 2-15].

Defendants’ assessment of these grievances is partially incorrect,

apparently because of Defendants’ mistaken position that Plaintiff’s First

Amendment claim against Defendant Hamilton relates only to the January 8,

2019 infractions and not to the denial of Plaintiff’s photographs. One of the

three grievances does, in fact, relate to Plaintiff’s claim of retaliation against

Defendant Hamilton. In Grievance No. 3730-2019-EU3D-00049, dated

January 9, 2019, Plaintiff complains as follows:

On 1/9/19 I received a rejection notice about some

pictures that were sent to me from my mother. It was

11 color photos, but 4 of them had an “unknown

substance”. I have never gotten any contraband in

or out of Prison, & have never tried. Hamilton is

taking out a breach of policy for retaliation on me for

putting a prea investigation on an officer. Two

wrong’s do not make a right. only four of the eleven

had an “unknown substance” & the NC DPS has a

way to detect any kind of contraband & controlled

substance. I feel that this matter needs to be handled

in a proper & just manner….

All im asking is that I be allowed to get my seven

remaining pictures in a timely manner. And for the

unit manager be made to bring me my pictures.

[Doc. 23-2 at 3 (errors uncorrected) (emphasis added)]. Plaintiff appealed

this Grievance through Step Three and it was “dismissed for lack of

supporting evidence.” [Id. at 2]. Defendants are correct that none of the

grievances relate to Plaintiff’s other claim regarding the Defendants’ refusal

to fix Plaintiff’s toilet and the resultant conditions of confinement.

Exhaustion is excused “if a prisoner, through no fault of his own, was

prevented from availing himself of it.” Moore, 517 F.3d at 725. Futility,

however, is no exception to the exhaustion requirement. Reynolds v. Doe,

431 Fed. App’x 221, 222 (4th Cir. 2011) (citing Booth v. Churner, 532 U.S.

731, 741 n. 6 (2001)). As such, to the extent that Plaintiff sought to allege

that he should be excused from the exhaustion requirement due to

Defendant Hamilton’s involvement in the process, this argument is

unavailing. Plaintiff made no attempt to exhaust his administrative remedies

as to his claims against all the Defendants under the Eighth and Fourteenth

Amendments. As such, these claims must be dismissed without prejudice.

See Harris v. Midford, No. 1:10-cv-263, 2011 WL 1601446 (W.D.N.C. Apr.

27, 2011). The Court will, therefore, grant Defendants’ motion to dismiss as

to these claims and dismiss Defendants Davis and Kizer as Defendants in

this matter.

As to Plaintiff’s claim against, Defendant Hamilton, however, Plaintiff

did exhaust his administrative remedies, at least so far as the claim relates

to Defendant Hamilton’s alleged retaliation against Plaintiff for filing a

P.R.E.A. complaint against Defendant Davis. Defendants’ motion to dismiss

this claim will, therefore, be denied.

IV. CONCLUSION

In sum, for the reasons stated herein, the Court grants Defendants’

motion to dismiss Plaintiff's Eighth and Fourteenth Amendment claims

against all Defendants and denies Defendants’ motion to dismiss Plaintiff's

First Amendment claim against Defendant Hamilton.

ORDER

IT IS, THEREFORE, ORDERED that Defendants’ Motion to Dismiss

[Doc. 22] is DENIED IN PART as to Plaintiff's First Amendment claim against

Defendant Hamilton and GRANTED IN PART as to Plaintiff's Eighth and

Fourteenth Amendment claims against Defendants Davis, Hamilton, and

Kizer, and those claims are hereby DISMISSED WITHOUT PREJUDICE for

failure to exhaust administrative remedies. Defendants Davis and Kizer are

HEREBY dismissed as Defendants in this matter.

The Clerk is instructed to update the docket in this matter to reflect the

true identities of FNU Davis, T. Hamilton, and FNU Kizer as Nicholas Davis,

Thomas Hamilton, and Morgan Kizer, respectively.

IT IS SO ORDERED.

Signed: August 11, 2020

ie ee

Chief United States District Judge AS