Agee v. Church

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:22-cv-00085-MR

TED AGEE , )

)

Plaintiff, )

)

vs. ) ORDER

)

)

FNU CHURCH, et al., )

)

Defendants. )

________________________________ )

THIS MATTER is before the Court on initial review of Plaintiff’s

Complaint. [Doc. 1]. Plaintiff is proceeding in forma pauperis. [Docs. 5, 9].

I. BACKGROUND

Pro se Plaintiff Ted Agee (“Plaintiff”) is a prisoner of the State of North

Carolina currently incarcerated at Foothills Correctional Institution

(“Foothills”) in Morganton, North Carolina. He filed this action pursuant to 42

U.S.C. § 1983 on April 20, 2022 against Defendants FNU Church, FNU

Shields, FNU Franklin, FNU Lane, FNU Mangum, and FNU Freeman, all

identified as officers at Foothills, in their individual and official capacities.

[Doc. 1].

Plaintiff alleges in pertinent part as follows. On April 5, 2022 at

approximately 1:00 p.m., Plaintiff set a fire in his cell. Defendants Franklin

and Church responded and radioed for Plaintiff’s cell to be opened. Plaintiff

stepped out of his cell with his hands up and complied with Defendant

Franklin’s order to get on the ground. Plaintiff then complied with Defendant

Church’s order to get on his stomach and submit to handcuffs. Defendant

Franklin forcefully applied handcuffs to Plaintiff’s wrists and Defendant

Church tased Plaintiff’s left shoulder area. Apparently, the inmate housed

next to Plaintiff had also started a fire. Several correctional officers, including

Defendants Shields and Lane, responded to that fire. When Defendant

Shields responded, he kicked Plaintiff in the neck area. As other officers

were kicking, punching, and tasing another inmate, Plaintiff attempted to

scoot out of the way to avoid further assault. At this time, Defendant Lane

grabbed the handcuffs securing Plaintiff’s wrists and drug Plaintiff two to

three feet along the ground, causing a “friction burn” on Plaintiff’s shoulder.

During these events, Plaintiff “continuously yelled that he needed medical

and that he could barely breathe.” When Defendant Lane was pushing his

knee into Plaintiff’s back, medical arrived and informed officers that Plaintiff

needed outside medical care. Plaintiff was taken to and treated at Burke

County Hospital. [Doc. 1 at 3-4]. On April 8, 2022, Defendant Mangum came

to Plaintiff’s cell and “made several extraordinary threatening and harassing

comments.” [Id. at 4].

Plaintiff alleges that Defendants’ conduct constituted cruel and unusual

punishment under the Eighth Amendment. [Id. at 4]. Plaintiff seeks

injunctive and declaratory relief, as well as compensatory, punitive, and

nominal damages. [Id. at 5]. Plaintiff seeks a preliminary injunction ordering

that he be moved to Central Prison “for his protection until such time when

he can exhaust the administrative remedy procedure.” [Id. at 5]. Plaintiff

alleges that he “began the process of complying with 42 U.S.C. § 1997(e)(a)

[sic] on April 9th, 2022 by submitting a grievance form. Due to continuous

threats and harassment from Officers, Plaintiff is seeking a Preliminary

Injunction and Temporary Relief Order … until such time when the

Administrative Remedy Procedure can be exhausted.” [Id. at 4]. On May

12, 2022, Plaintiff mailed an Administrative Remedy Statement attesting that

he “[has] not exhausted [his] administrative remedies.” [Doc. 7].

II. STANDARD OF REVIEW

Because Plaintiff is proceeding pro se, the Court must review the

Complaint to determine whether it is subject to dismissal on the grounds that

it is “frivolous or malicious [or] fails to state a claim on which relief may be

granted.” 28 U.S.C. § 1915(e)(2). Furthermore, § 1915A requires an initial

review of a “complaint in a civil action in which a prisoner seeks redress from

a governmental entity or officer or employee of a governmental entity,” and

the court must identify cognizable claims or dismiss the complaint, or any

portion of the complaint, if the complaint is frivolous, malicious, or fails to

state a claim upon which relief may be granted; or seeks monetary relief from

a defendant who is immune from such relief.

In its frivolity review, this Court must determine whether the Complaint

raises an indisputably meritless legal theory or is founded upon clearly

baseless factual contentions, such as fantastic or delusional scenarios.

Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se

complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520

(1972). However, the liberal construction requirement will not permit a

district court to ignore a clear failure to allege facts in his Complaint which

set forth a claim that is cognizable under federal law. Weller v. Dep’t of Soc.

Servs., 901 F.2d 387 (4th Cir. 1990).

III. DISCUSSION

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

exhaust his administrative remedies before filing a § 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 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 § 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 Fed. App’x 845,

846 (4th Cir. 2011).

The PLRA, however, does not require that an inmate allege or

demonstrate that he has exhausted his administrative remedies. Anderson

v. XYZ Corr. Health Servs., 407 F.3d 674 (4th Cir. 2005). Rather, failure to

exhaust administrative remedies is an affirmative defense. “That exhaustion

is an affirmative defense, however, does not preclude the district court from

dismissing a complaint where the failure to exhaust is apparent from the face

of the complaint[.]” Id. at 683; Custis v. Davis, 851 F.3d 358, 361 (4th Cir.

2017) (“A court may sua sponte dismiss a complaint when the alleged facts

in the complaint, taken as true, prove that the inmate failed to exhaust his

administrative remedies.”).

The North Carolina Department of Public Safety (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). Inmates are required to exhaust

administrative remedies with the NCDPS in accordance with ARP. Id. An

inmate does not exhaust his administrative remedies with the NCDPS until

he completes all three steps. Id.

Here, Plaintiff affirmatively alleges that he did not exhaust the

administrative remedy procedure before filing his Complaint. Rather, he filed

the Complaint fifteen days after the incident and asks for injunctive relief

pending conclusion of the administrative remedy process. Moreover, as of

May 12, 2022, the process was not complete. The Court, therefore, will sua

sponte dismiss this action without prejudice.! See Custis, 851 F.3d at 361.

IV. CONCLUSION

For the reasons stated herein, the Court dismisses Plaintiffs Complaint

without prejudice.

ORDER

IT IS, THEREFORE, ORDERED that Plaintiff's Complaint [Doc. 1] is

hereby DISMISSED without prejudice in accordance with the terms of this

Order.

The Clerk is instructed to terminate this action.

IT IS SO ORDERED.

Signed: June 9, 2022

Reidinger ey

Chief United States District Judge AS

1 Even if Plaintiff had exhausted his administrative remedies before filing the Complaint,

the Court would not grant Plaintiff's request for injunctive relief. Injunctive relief is an

extraordinary remedy never awarded as of right, Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7, 24 (2008), and Plaintiff has not satisfied the requirements therefor, see Real

Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009).