WILLIS v. SEABOLT

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

FRANKLIN KYLE WILLIS, )

Plaintiff,

v. 1:21CV766

GREG SEABOLT, et al,

Defendants.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on a motion to dismiss putsuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure filed by Defendants Greg Seabolt (“Sheriff Seabolt’)

and Phillip Cheek (‘Major Cheek”). (Docket Entry 12.) Plaintiff Franklin Kyle Willis did

not file a tesponse. Defendants raise several arguments to support their motion, but as a

preliminary matter, they contend that Plaintiff failed to exhaust administrative remedies. (See

Docket Entry 13 at 4-8.)! In support of Defendants’ motion, Major Cheek submitted a

Declaration, which contains information and attachments not referenced in the Complaint.

(See Phillip Cheek Declaration, Docket Entry 13-1.) For the following reasons, the Court

recommends that Defendants’ motion be construed as a motion for summary judgment for

failure to exhaust administrative remedies, and that summary judgment be granted.

" Unless otherwise noted, all citations in this recommendation refer to the page numbets at

the bottom right-hand corner of the documents as they appear in the Court’s CM/ECF system.

I. BACKGROUND

Plaintiff filed this action asserting claims against Defendants for violation of his First

Amendment and Fourteenth Amendment tights while Plaintiff was housed as a pretrial

detainee at the Randolph County Detention Center ((RCDC”). (See Complaint, Docket

Entry 2.) Specifically, Plaintiff alleges that on May 1, 2021, RCDC staff members conducted

a seatch of his unit and confiscated all books, magazines, dictionaries, religious devotionals,

and newspapers. (Id. at 4, 14-15.) An exception was made for the Bible, which Plaintiff and

other inmates were allowed to retain. (Id.) Plaintiff alleges that the decision to confiscate the

material was made by Major Cheek, who is supervised by Sheriff Seabolt, and was done to

“deprive” all inmates of such material. (Id. at 15.)

Plaintiffs mother spoke with Sheriff Seabolt two days after the materials were

confiscated, and Sheriff Seabolt was “unawate of this new policy,” although Plaintiffs

mother was later told that the books and other materials presented a fire hazard. (Id)

Plaintiff alleges that the other reason for the confiscation of the material was due to an

inmate having contraband smuggled into the RCDC through “pages of novels” and mail

packages. (Id) As a solution to the confiscation of the materials, Plaintiff alleges that

Defendants provided inmates with tablets that have access to reading material through the

Overdrive Library APP. (id at 16.) Plaintiff asserts, however, that this is an insufficient

replacement because thete ate not enough tablets for every inmate, there is limited time

availability on the tablets, and the tablets contain limited materials and lack access to law

books, legal dictionaries, magazines, newspapers, and devotionals. (Id) Plaintiff claims that

the confiscation of materials has impacted or prevented his pursuit of religious and legal

studies, his ministerial duties to his fellow inmates, and it has exacerbated his mental illness.

(Id. at 5, 16.)

Plaintiff states that he filed a gtievance at the electronic kiosk in the D-Pod housing

unit, claiming the confiscation of the materials deprived him of his rights. (id at 7.) In

tesponse to his gtievance, Plaintiff claims that he was told that the decision to confiscate

teading matetials was made because the reading materials presented a security risk. (Id)

When asked on his Prisoner Complaint form whether Plaintiff took steps to appeal the

gtievance decision, Plaintiff states:

There is not an “appeal” option on the kiosk. My Mom called

[Sheriff Seabolt and he] told her that there was nothing that he

could do. [Plaintiffs mom] then called the [RCDC] and was told

that all books were banned and confiscated due to a “fire

hazard.”

(Id)

When asked to set forth additional information relevant to his exhaustion of

administrative remedies, Plaintiff claimed that “[e]verything is electronic here,” and

requested a copy of the “Grievance and Administrative Remedies.” (Id. at 8.)

After Defendants’ motion for an extension of time to answer was granted, (see

Docket Entry 10; Text Order dated 1/ 27/2022), Defendants filed the pending motion to

dismiss. (Docket Entry 12.) In support of their motion, Defendants first raise the

affirmative defense of failure to exhaust administrative remedies. (See Docket Entry 13 at 4-

8.) Defendants then proceeded with additional arguments including grounds for dismissal

based on qualified immunity. (Id. at 8-22.) The undersigned concludes that because there is

no genuine issue of material fact concerning Plaintiffs failure to exhaust administtative

remedies, the Coutt need only to address that issue.

II. DISCUSSION

As an initial matter, because Plaintiff “failfed] to file a response [to Defendant’s

motion to dismiss] within the time requited by [this Court’s Local Rules], 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); see also Kinetic Concepts, Inc. v. ConvaTec Inc, No.

1:08CV918, 2010 WL 1667285, at *6-8 (M.D.N.C. Apr. 23, 2010) (unpublished) (analyzing

this Court’s Local Rules 7.3(8, 7.2(a), and 7.3(k) and discussing authority supporting

ptoposition that failure to respond to atgument amounts to concession). “Plaintiffs status

as a pro se litigant does not excuse his inaction.” Simpson v. Hassan, No. 1:08CV455, 2014 WL

3547023, at *1 n4 (M.D.N.C. July 16, 2014) (unpublished). Alternatively, as explained

below, the Coutt should construe Defendants’ motion to dismiss as a motion for summary

judgement, which should be granted.

A. Relevant Standard

Defendants’ motion to dismiss contends, in pertinent part, that the Court should

dismiss Plaintiff's complaint for failure to exhaust administrative remedies. (Docket Entry

13 at 4-8.) Defendants pursue dismissal under Fedetal Rule of Civil Procedure 12(b)(6). In

considering a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief

can be granted, a court must determine whether the complaint is legally and factually

sufficient. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Ail. Corp. v. Twombly, 550 U.S. 544,

570 (2007). To sutvive a motion to dismiss under Rule 12(b)(6), a complaint “must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.” Igbal, 556 US. at 678 (quoting Twombly, 550 U.S. at 570).)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct.” Id; see also Simmons v.

United Morte, and Loan Inv, LLC, 634 F.3d 754, 768 (4th Cir. 2011) (On a Rule 12(b)6)

motion, a complaint must be dismissed if it does not allege enough facts to state a claim to

relief that is plausible on its face.”) (citations and quotations omitted). The “court accepts all

well-pled facts as true and consttues these facts in the light most favorable to the plaintiff,”

but does not consider “legal conclusions, elements of a cause of action, and bate assertions

devoid of factual enhancement[,] .. . unwarranted inferences, unreasonable conclusions, or

atguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc. 591 F.3d 250, 255 th Cir. 2009)

(citations omitted). In other words, the standard requites a plaintiff to articulate facts that,

when accepted as true, demonstrate the plaintiff has stated a claim that makes it plausible he

is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556

USS. at 678, and Twombly, 550 U.S. at 557).

Here, in support of theit motion, Defendants submitted Major Cheek’s declaration

and documents relating to RCDC’s formal grievance process. (See Cheek Decl. &

Attachments, Docket Entry 13-1.) Defendants rely upon such information to demonstrate

that Plaintiff did not fully exhaust his administrative remedies regarding the allegations

assetted in the instant Complaint. Because these documents contain information not

referenced in the Complaint and because the Court considers this evidence in disposing of

this pending motion, Defendants’ motion to dismiss should be converted into a motion for

summaty judgment. See Fed. R. Civ. P. 12(d) (Tf, on a motion under Rule 12(b)(6) ... ,

mattets outside the pleadings are presented to and not excluded by the coutt, the motion

must be treated as one for summaty judgment under Rule 56.”); see a/so Johnson v. Wolfe, No.

Civ.A. ELH-13-719, 2014 WL 2651184 at *2-3 (D. Md. June 11, 2014) (unpublished)

(construing motion to dismiss as a motion for summary judgment where the movant

attached several exhibits supporting movant’s position which wete not excluded by the

coutt); Morris v. Lowe’s Home Cis. Inc, No. 1:10-CV—388, 2011 WL 2417046, at *2

(M.D.N.C. June 13, 2011) (unpublished) (“When ‘matters outside the pleadings are

ptesented to and not excluded by the court, the [Rule 12(b)(6)] motion must be treated as

one fot summaty judgment under Rule 56.’”).

When construing a motion to dismiss as a motion for summaty judgment, “alll

patties must be given a reasonable opportunity to present all the material that is pertinent to

the [converted] motion.” See Fed. R. Civ. P. 12(d). “[T]he term ‘reasonable opportunity’

tequires that all patties be given some indication by the court that it is treating the 12(b)(6)

motion as a motion for summaty judgment, with the consequent tight in the opposing patty

to file counter affidavits or pursue teasonable discovery.” Gay ». Wall, 761 F.2d 175, 177

(4th Cit. 1985) (alteration, some internal quotation marks, and citation omitted).

The Court finds that Plaintiff was afforded appropriate notice and reasonable

opportunity to respond in this matter. First, Defendants submitted evidence in support of

their motion to dismiss that was “outside the pleadings, putting [Plaintiff] on notice of

possible conversion.” Fornshill v. Ruddy, No. 95-2490, 89 F.3d 828 (table), 1996 WL 333223,

at *2 (4th Cit. June 11, 1996) (unpublished)); see also Laughlin v. Metro. Washington Airports

Auth., 149 F.3d 253, 260-261 (4th Cir. 1998) (“Setting aside the caption for a moment, we

note that the [D]efendant submitted affidavits and other materials with its motion... .

Therefore, by operation of the Federal Rules of Civil Procedure, [P]laintiff also should have

been on notice that the [D]efendant’s motion could be considered by the court to be a

summaty judgment motion.”).

Second, Plaintiff was further put on notice by the Roseboro letter sent to him, which

advised him:

The respondent has filed a Motion to Dismiss on 02/28/2022,

which may ot may not be supported by an affidavit.

You have the right to file a 20-page response in opposition to the

respondent’s motion. Your response may be accompanied by counter affidavits

or you may submit other responsive material. Ordinarily, uncontested motions

ate granted. Therefore, your failure to respond or, if appropriate, to file counter

affidavits or evidence in rebuttal within the allowed time may cause the court to

conclude that the respondent’s contentions are undisputed. As a result, the coutt

may dismiss your suit or render judgment against you. Therefore,

unless you file a response in opposition to the respondent’s motion, #

is Likely your case will be dismissed or summary judgment will be granted in favor of

the respondent.

(Docket Entry 14) (emphasis added).2 Because the Roseboro Letter advised Plaintiff to

respond with “affidavits or evidence in rebuttal,” he was put on notice that the Court might

consider summary judgment, and conversion is therefore propet.

Moteover, the Court notes that Plaintiff did not even need to respond to the merits

of Defendants’ allegations to prevent this summaty judgment recommendation. If there was

any doubt as to whether Plaintiff had failed to exhaust his administrative remedies, Plaintiff

metely needed to file “an affidavit or declatation pursuant to Rule 56(d) (formerly Rule

56(f)), explaining why, ‘for specified reasons, [Plaintiff] cannot present facts essential to

2 The undersigned notes that the Roseboro letter was sent twice to Plaintiff regarding

Defendants’ motion to dismiss. ‘The first was sent on Match 1, 2022, at Plaintiff's previous location,

(see Docket Entry 14), and once again on March 11, 2022 in response to Plaintiffs Notice of Change

of Address, (see Docket Entry 15). Neither Roseboro letter was returned undeliverable to the Coutt.

justify [Plaintiff's] opposition, without needed discovery’.” Johnson, 2014 WL 2651184, at *2

(citations omitted). Though given reasonable opportunity to request further discovery,

Plaintiff failed to do so.3 Accordingly, the Court concludes that Plaintiff was on notice of

the possibility of summary judgment against him and was subsequently afforded “reasonable

opportunity to present all the material that is pettinent to the motion.” Fed. R. Civ. P. 12d);

see also Herbert v. Saffell, 817 F.2d 267, 270 (4th Cir. 1989) (treating district court’s holding as a

grant of summaty judgment, where “{t}he [plaintiffs] had ample opportunity to bring forth

evidence to show that genuine issues of material fact remained”); Pegram v. Williamson, No.

1:18CV828, 2020 WL 564136, at *5 (M.D.N.C. Feb. 5, 2020) (finding that the plaintiff was

watned of the threat of summaty judgment in Roseboro notice, and was thus provided

sufficient opportunity to respond pursuant to Rule 12(d)); Learson v Berryhill, No.

1:18CV348, 2018 WL 4717973, at *3 (M.D.N.C. Oct. 1, 2018) (concluding that issuance of a

Roseboro letter provided pro se claimant with a reasonable opportunity to respond and

therefore permitted conversion of a motion to dismiss to a motion for summary judgment).

For these teasons, summaty judgment on the issue of exhaustion of administrative remedies

is propet.

B. Rule 56 Requirements

In analyzing a summaty judgment motion, “[t]he court 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

3 While Plaintiff's failure to file an affidavit may be excused, see Johyson, 2014 WL 2651184, at

42, Plaintiff has not tesponded nor has otherwise filed anything that serves as a “functional

equivalent of an affidavit.” Id. (citation omitted).

material fact exists “if the evidence is such that a reasonable jury could return a verdict for

the nonmoving patty.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant

beats the burden of establishing the absence of a genuine dispute of material fact, Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986), and “any factual assertion in the movant’s affidavits

will be accepted .. . as being true unless the plaintiff submits his own affidavits or other

documentaty evidence contradicting the assertion,’ Nea/ v. Kelly, 963 F.2d 453, 456 (D.C.

Cir. 1992) (internal quotation marks omitted).

“While the Court will view the facts and inferences drawn in the light most favorable

to the nonmoving patty, the patty opposing the motion for summaty judgment must put

forth specific facts showing a genuine issue for trial”? Dunn v. Aclairo Pharm. Dev. Grp.,

401(K) Plan, No. 1:15-CV-975, 2016 WL 592787, at *2 (Z.D. Va. Feb. 10, 2016)

(citing Anderson, 477 U.S. at 248). In that regard, the nonmoving patty cannot rest on

conclusory allegations or denials, and “[t]he mete existence of a scintilla of evidence” will

not defeat a summaty judgment motion. Anderson, 477 USS. at 252, 256.

Here, Defendants argue that they ate entitled to the dismissal of this case because

Plaintiff did not exhaust his administrative remedies before filing this action. (Docket Entry

13 at 5-8.) In support of their motion, Major Cheek filed a declaration noting that, as a jail

administrator, he is familiar with RCDC’s gtievance policies and procedures and helps

maintain grievance forms. (Cheek Decl. { 1.) Major Cheek has attached the grievance

procedures. (See Attachment A, Docket Entry 13-1 at 5-11.) He states that newly-admitted

inmates ate notified of the RCDC’s grievance policy upon attiving at the facility. (Cheek

Decl. 5.) They ate also notified of the Inmate Rules at this time, which contains a

summaty of the grievance procedures and ate posted in the inmate pods for reference. (See

id.; see also Attachment B, Docket Entry 13-1 at 13-15.) Grievances may be completed at the

kiosk ot in paper form. (Cheek Decl. 3; see a/so Attachment A, Docket Entry 13-1 at 11.)

It is the inmate’s responsibility to complete the form, including noting whether the form is

being submitted as a “gtievance” ot “appeal.” (Cheek Decl. { 3; see a/so Attachment <A,

Docket Entry 13-1 at 7-8.) For initial grievances, the reviewing supervisor ot chief jailer

provides a written response. (Cheek Decl. { 4; see a/so Attachment A, Docket Entry 13-1 at

9.) Upon teceipt of the written tesponse, the inmate may appeal to the RCDC

Administrator or Sheriff. (Cheek Decl. { 4; see a/so Attachment A, Docket Entry 13-1 at 9-

10.) ‘The decision by the RCDC Administrator or Sheriff is considered final. (id.

As to Plaintiff, Major Cheek states that he “reviewed the [RCDC’s] inmate grievances

to determine whether [Plaintiff] filed any grievances atising from the confiscation of books

and other written periodicals from the [RCDC] on or about May 1, 2021.” (Cheek Decl. {

6.) Plaintiff did file one grievance regarding the lack of access to physical books and limited

tablets on April 27, 2021. (Id § 7; see also Attachment C, Docket Entry 13-1 at 17.)

Lieutenant Lindsey responded to this grievance on May 1, 2021, explaining that the reading

materials were being temoved because physical books were being used to smuggle

contraband, but that reading materials would be provided through daily access to a tablet.

(Id) Plaintiff did not appeal this response and did not file any other grievances regarding the

removal of physical books and other reading materials form the RCDC. (Cheek Decl. { 8.)

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Failure to Exhaust Administrative Remedies

Defendants assert that Plaintiff has failed to exhaust his administrative remedies prior

to filing suit. (Docket Entry 13 at 5-8.) The undersigned agrees. The PLRA requites

inmates to ptoperly exhaust administrative temedies before filing civil actions challenging the

conditions of their confinement. See Woodford v. Ngo, 548 U.S. 81, 84 (2006); Moore v. Bennette,

517 F.3d 717, 725 (4th Cir. 2008). The exhaustion requirement applies “to all inmate suits

about prison life, whether they involve genetal circumstances ot patticular episodes, and

whether they allege excessive force ot some othet wrong.” Porter v. Nussle, 534 U.S. 516, 532

(2002). It is well-settled by now that Section 1997e’s exhaustion requirement is mandatoty.*

See Jones v. Bock, 549 U.S. 199, 211 (2007); see also Woodford, 548 U.S. at 90-91 (stating that the

PLRA tequites “ptopet exhaustion,” which “demands compliance with an agency’s deadlines

and other critical procedural rules”); Anderson v. XYZ Correctional Health Servs. Inc., 407 F.3d

674, 676-77 (4th Cir. 2005) (citing Porter, 534 U.S. at 524).

A teview of Plaintiffs complaint and the exhibits attached to Defendants’ motion

demonstrates that Plaintiff did not exhaust his administrative remedies. As the evidence

demonstrates, newly-admitted inmates ate notified of the RCDC’s grievance policy upon

attiving at the RCDC. (Cheek Decl. Plaintiff filed an initial grievance as to some of his

claims, but there is no evidence that he appealed the response from Lt. Lindsey. Rather, he

filed the instant Complaint several months later. Plaintiff Complaint states that there is not

* The Court recognizes that a prisonet’s failure to exhaust administrative remedies may be

excused when prison officials hinder, delay, or otherwise prevent prisoners from availing themselves

of administrative procedures. See Hill ». Haynes, 380 F. App’x 268, 270 (4th Cir. 2010). However,

Plaintiff has neither responded to Defendant’s motion, nor otherwise presented any factual support

for this exception to be applicable to the disposition of this motion.

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an “appeal” option on the RCDC’s electtonic kiosk. (See Compl. at 7.) However, this

allegation is belied by the evidence demonstrating that inmates ate made aware of the

gtievance procedures upon enteting the facility which clearly and concisely lay out the steps

needed to exhaust his administrative remedies prior to filing suit. (Cheek Decl. § 5.) This is

reiterated in the Inmate Rules that wete posted and available to Plaintiff in the pod areas.

(Id.; see also Attachment B, Docket Entty 13-1 at 13-15.) There is no evidence that Plaintiff

did not have access to the appeal process at all relevant times.> See Hz//, 380 F. App’x at 270

(“[W]hen prison officials prevent inmates from using the administrative process . . ., the

process that exists on paper becomes unavailable in reality.”) (internal quotations and

citation omitted). That Plaintiff's mother called Sheriff Seabolt and the RCDC concetning

the confiscation of materials does not change this conclusion. See Davis v. Thakkar, No.

5:21-CT-3086-D, 2022 WL 2251236, at *3 (E.D.N.C. June 9, 2022) (unpublished)

(“[Clomplaints by family members . . . do not serve as means to citcumvent the . .. PLRA’s

exhaustion tequitement.”). Ultimately, it is Plaintiffs responsibility to complete the

gtievance process, including noting on his grievance form whether it is an initial grievance or

an appeal. ‘There is simply no evidence that he did so here, not is there any evidence that

RCDC officials prohibited him from doing such. See Moore, 517 F.3d at 725. (“[A]n

administrative remedy is not considered to have been available if a prisoner, through no fault

of his own, was prevented from availing himself of it.”).

> While PlaintifPs Complaint states that “[e]verything is electronic here,” see Compl. at 8,

Major Cheek has noted that RCDC policy allows inmates to request grievance forms from any staff

member. (See Cheek Decl. {| 3; see a/so Attachment A, Docket Entry 13-1 at 7, 11.) In addition,

grievances and appeals ate available to be completed through the electronic kiosk. (Cheek Decl. {]

3)

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In sum, Plaintiff has failed to submit a grievance concerning his claim for inadequate

access to legal resources, and he has failed to properly appeal the response to the gtievance

that he did raise concerning the lack of access to physical books and limited tablets. Thus,

there exists no genuine issue of material fact that Plaintiff did not exhaust his administrative

remedies by completing the appeal process set out in the RCDC policy and procedures

before filing this lawsuit. Plaintiff has presented no evidence to the contradict this finding.

Therefore, Defendants’ motion should be granted.

Ill. CONCLUSION

Based upon the foregoing reasons, IT IS HEREBY RECOMMENDED that

Defendants Greg Seabolt and Phillip Cheek’s Motion to Dismiss Plaintiffs Complaint

(Docket Entry 12) be converted to a motion for summary judgment, be GRANTED, and

that this action be dismissed without prejudice.

ites

United States Magistrate Judge

July 29, 2022

Durham, North Carolina

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