Streeter v. Williams

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:23-cv-00038-MR

FAITH SHERRIE STREETER, )

)

Plaintiff, )

)

vs. )

) ORDER

)

MARSHALL WILLIAMS, )

)

Defendant. )

________________________________ )

THIS MATTER is before the Court on Defendant’s Motion to Dismiss

[Doc. 37].

I. BACKGROUND

Pro se Plaintiff Faith Sherrie Streeter (“Plaintiff”) filed this action on

January 23, 2023, pursuant to 42 U.S.C. § 1983 against Defendant Marshall

Williams based on events she alleged occurred while she was incarcerated

at Anson Correctional Institution in Polkton, North Carolina. [Doc. 1].

Plaintiff’s Eighth Amendment excessive force claim survived initial review

and Plaintiff’s remaining claims were dismissed. [Doc. 10]. In her unverified

Complaint, Plaintiff alleged, in pertinent part, as follows. On November 8,

2022, at approximately 3:00 p.m., Defendant Williams, along with three other

officers, was escorting Plaintiff to mental health observation. Plaintiff was in

full restraints, including leg shackles. Upon entering the receiving area,

Plaintiff kicked a trash can, and Defendant Williams instructed staff to take

Plaintiff to the ground. Defendant Williams shoved Plaintiff’s arms, which

were restrained behind her back, up toward her head. Defendant Marshall

“kept pulling [Plaintiff’s] arms causing [her] extreme pain.” Plaintiff was then

put on her feet and instructed to enter a cell. After Plaintiff was in the cell,

Defendant Williams entered the cell and pushed Plaintiff forcefully from

behind. Defendant Williams then “proceeded to get into [Plaintiff’s] face,

brushing up against [her] chest and threatening [her].” [Id. at 6-7].

In her Complaint, Plaintiff alleged that she had filed a grievance

regarding the alleged incident and admitted that it was “still in process” when

she filed her Complaint. [Id. at 10]. Plaintiff included a copy of the grievance,

which is dated January 2, 2023, with her Complaint. [Id. at 12]. In the

grievance, Plaintiff complained only about Defendant Williams’ alleged use

of force inside the cell. [See id.]. In response to the question on the

grievance form, “What remedy would resolve your grievance?”, Plaintiff

wrote “[n]o remedy needed whereas I am pursuing this matter further.” [Id.].

On August 14, 2023, the Court entered a Pretrial Order and Case

Management Plan (PTOCMP) setting the discovery deadline as December

8, 2023, and the dispositive motions deadline as January 8, 2024.1 [Doc.

22]. On September 6, 2023, Plaintiff notified the Court that she had recently

been transferred to the North Carolina Correctional Institution for Women

(NCCIW) in Raleigh, North Carolina, which remains her address of record

now. [Doc. 24]. The unextended discovery completion deadline expired on

December 8, 2023.

On April 22, 2024, mail the Clerk had sent to Plaintiff at the NCCIW

was returned undeliverable; the envelope was marked “Inmate Released.”

[See Doc. 31]. The Clerk, therefore, entered a Text-Only Notice instructing

the Plaintiff that she must notify the Clerk of any changes to her address

within 14 days of the Notice and that the failure to do so may result in the

dismissal of this action. [4/24/2024 Text-Only Notice]. The Clerk sent a copy

of the Text-Only Notice and a Notice of Change of Address Form to the

Plaintiff at the NCCIW the same day. [Id.]. On May 8, 2024, these

documents were returned to the Clerk as undeliverable.2 [Doc. 35].

On May 9, 2024, Defendant moved to dismiss Plaintiff’s Complaint for

failing to prosecute this matter and for failing to exhaust administrative

1 The current dispositive motions deadline in this matter is July 3, 2024. [4/29/2024 Text

Order].

2 Two other Text-Orders – both extending the dispositive motions deadline – have also

been returned undelivered since the Court’s Text-Only Notice. [Docs. 34, 36].

remedies pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. §

1997e(a), before filing this action.3,4 [Doc. 37].

On May 17, 2024, Plaintiff responded to Defendant’s motion to dismiss.

[Doc. 39]. In this unverified response, Plaintiff claims that she “has made the

court aware of current address by written letter to the clerk of court.”5 [Id. at

2]. Plaintiff claims that Defendant has failed to respond to interrogatories,

requests for admissions, or requests for production of documents Plaintiff

mailed in October 2023. [Id. at 1]. Plaintiff also contends that she “filed a

grievance on December 12[,] 2022,” that “[n]o response was given to the

grievance,” that she “wrote Amanda Henry to follow up with the grievance

and was advised that [it] was sent to NCCIW for response,” and that she

submitted the grievance “receipt” with her Complaint. [Id.]. Finally, Plaintiff

claims, without further elaboration, that “Defendant has failed to comply with

court orders, and administrative remedy requirements.” [Id. at 2].

The matter is now ripe for adjudication.

3 Because it would have inevitably been returned as undelivered, the Court did not enter

a Roseboro Order advising Plaintiff of her obligations in responding to this motion.

4 After learning Plaintiff’s current address on inquiry to the North Carolina Department of

Adult Corrections (NCDAC), Defendant Williams served his motion to dismiss on Plaintiff

at the Wake County Detention Center in Raleigh, North Carolina. [See Doc. 37-6 at 1;

Doc. 37 at 3; Doc. 39-1].

5 The Court has received no such letter from the Plaintiff.

II. DISCUSSION

The PLRA requires a prisoner to exhaust his/her 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). Because exhaustion of

administrative remedies is an affirmative defense, Defendants have the

burden of pleading and proving lack of exhaustion. Id. at 216.

Finally, it is well-settled that a prisoner may not exhaust her

administrative remedies during the pendency of a Section 1983 action;

rather, she must fully exhaust all steps of the administrative process before

filing her 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 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.6 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

she completes all three steps. Id.

6 On January 1, 2023, the NCDAC replaced the arm of the NCDPS concerned with adult

corrections. In this matter the 2013 NCDPS ARP – and not the 2023 NCDAC ARP – was

in effect at the time of the alleged incident and at the time of any alleged grievance [see

Doc. 37-5 at 1]. Therefore, the Court will herein reference the responding administrative

entity as the NCDPS.

Here, Plaintiff included with her Complaint a copy of a grievance she

submitted on January 2, 2023, regarding the alleged incident. On the

grievance, Plaintiff wrote that she needed “[n]o remedy” because she was

“pursuing this matter further,” presumably by way of the instant action. [See

Doc. 1 at 12]. Plaintiff now contends in her unverified response to

Defendant’s motion to dismiss that she filed a grievance on December 12,

2022; that she received no response to it; and that, on further inquiry, she

was told the grievance was sent to NCCIW for response. [Doc. 39 at 1].

In support of his motion to dismiss, Defendant provided copies of

Plaintiff’s three fully exhausted grievances from May 2022 to January 2023,

as provided by the Inmate Grievance Resolution Board (“IGRB”) through

Executive Director Kimberly Grande. [Doc. 37-4]. 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.”). See also Doc. 37-2 at ¶ 4: Aff. of Counsel; Doc. 37-4: Grande

Memo.]. Grande provides that these grievances were the only ones

submitted by Plaintiff during the relevant time and exhausted through Step

Three of the grievance process. [Doc. 37-4 at 1]. Two of these grievances

regarded Plaintiff’s lost identification and food stamp cards and the third

involved an alleged use of force incident in December 2021. [See Doc. 37-

4 at 2-23]. None of these grievances relate to the events giving rise to this

cause of action. [See id.]. Further, the record clearly evidences Plaintiff’s

access to and adeptness at navigating the grievance process. Finally, as

noted, Plaintiff presented no grievance records or any statements under

penalty of perjury in response to Defendant’s showing on exhaustion.

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. Plaintiff,

however, must show that administrative remedies were not available.

Graham v. Gentry, 413 Fed. App’x 660, 663 (4th Cir. 2011); Stohl v. Eastern

Reg’l Jail, No. 1:14-cv-109, 2015 WL 5304135, at *7 (N.D.W. Va. Sep. 8,

2015) (granting defendants’ motion to dismiss and refusing to credit

conclusory allegation that grievances were discarded where such allegation

“not only is unsupported by any of the evidence in the record, but is belied”

by documentary evidence showing plaintiff successfully filed other

grievances during the same time period).

Defendant here has shown that Plaintiff did not exhaust her

administrative remedies relative to the facts giving rise to this cause of action

before she filed her Complaint. That is, while Defendant acknowledges that

Plaintiff filed a grievance on January 2, 2023 regarding the alleged incident,

he points out that Plaintiff did not appeal this grievance through Step Three.

[Doc. 38 at 7]. Plaintiff admitted that the grievance was “still in process” when

she filed her Complaint and only now contends, in her unverified response

to Defendant’s motion to dismiss, that she attempted to follow up on the

grievance and “still [received] no response.” As such, Plaintiff has not shown

that administrative remedies were not available to her thereby excusing the

exhaustion requirement. As such, this action 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 Defendant’s

motion to dismiss.

Even if Plaintiff had exhausted her administrative remedies before filing

this action, the Court would dismiss this action without prejudice for Plaintiff’s

failure to prosecute. That is, the deadline to notify the Court of her new

address has passed, and Plaintiff has not done so.7

ORDER

IT IS, THEREFORE, ORDERED that Defendant’s Motion to Dismiss

[Doc. 37] is GRANTED and this action is DISMISSED without prejudice.

7 The Court also notes that, in an apparent attempt to save her Complaint from dismissal,

Plaintiff claims that Defendant failed to respond to her discovery requests and “to comply

with court orders, and administrative remedy requirements.” [Doc. 39]. Plaintiff cites

nothing in support of these plainly baseless claims. To be sure, Plaintiff filed no motions

to compel discovery responses from Defendant and there is no failure to comply with any

Court Order by Defendant evident from the record.

The Clerk is instructed to terminate this action.

IT IS so ORDERED. Signed: May 27, 2024

Martifi Reidinger ey

Chief United States District Judge wally

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