DIAMOND

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARTIN RUSSELL DIAMOND, )

)

Plaintiff, )

)

v. ) 1:24cv553

)

SERGEANT MR. WALKER, et al., )

)

Defendants. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on the “Motion for Summary

Judgment” (Docket Entry 22 (the “Motion”) at 1 )1 filed by Wilbert

Walker, Steven Gibson, Burnard Thompson, III, Ian Oxendine (“I.

Oxendine”), Justin Oxendine (“J. Oxendine”), Ronald Covington, and

Anthony Leonard (collectively, the “Defendants”). For the reasons

that follow, the Court should deny the Motion.

BACKGROUND

In June 2024, Martin Russell Diamond (the “Plaintiff”) filed

a verified complaint (see Docket Entries 2 to 2-2) (collectively,

the “Complaint”) against Defendants for allegedly employing

excessive force against him on February 6, 2022, during his

incarceration at Scotland Correctional Institution. (See, e.g.,

1 For legibility reasons, this Opinion omits all-cap and bold

font, as well as the word “the” in front of “Plaintiff,” in all

quotations from the parties’ materials. [Docket Entry page

citations utilize the CM/ECF footer’s pagination.]

Docket Entry 2 at 2-7; Docket Entry 2-1 at 20.) The Complaint

contains extensive, detailed, verified allegations regarding

Plaintiff’s efforts to exhaust his administrative remedies

regarding the incident. (See Docket Entry 2-1 at 23-28; Docket

Entry 2-2 at 1-31; see also Docket Entry 2-2 at 32-53 (supporting

exhibits) .) Defendants responded by generally denying the

allegations against them, including “specifically den[ying]”

(Docket Entry 21 (the “Answer”) at 3) “Section VII, Administrative

Procedures” (id.), “to the extent that it asserts or implies that

Plaintiff has exhausted administrative remedies as required by law

in connection with the claims asserted in this action against...

Defendants” (id.). Nevertheless, the Answer does not include

failure to exhaust administrative remedies as one of its twelve

affirmative defenses to Plaintiff’s claims. (See id. at 4-7.)

The day after filing the Answer (compare id. at 7, with Docket

Entry 22 at 2), however, Defendants “mov[ed] for summary judgment

as to all claims on the grounds of the affirmative defense of

Plaintiff’s failure to exhaust administrative remedies” (Docket

Entry 22 at 1). Plaintiff filed a response in opposition to the

Motion (see Docket Entry 29) (the “Opposition”), asserting, inter

alia, that at a minimum a material factual dispute existed as to

his exhaustion of administrative remedies (see, e.g., id. at 9).

Defendants failed to reply to the Opposition. (See Docket Entries

dated Aug. 25, 2025, to present (lacking any filings from

Defendants) .) Thus, as relevant to the Motion, the record

reflects:

A. Plaintiff’s Evidence

According to the Complaint:

On February 6, 2022, after Walker “slam[med]” him into a table

(Docket Entry 2 at 16), Plaintiff spit on Walker as Walker,

Thompson, Leonard, I. Oxendine, J. Oxendine, and Gibson escorted

Plaintiff to the Receiving area for a strip search in preparation

for Plaintiff’s transfer into restrictive housing (see id.). After

taking Plaintiff to a remote strip search room in the Receiving

area, Walker beat Plaintiff at least thirty times with a baton,

injuring Plaintiff, while Thompson, Leonard, I. Oxendine,

J. Oxendine, Gibson, and Covington stood watch, verbally

encouraging Walker to continue striking Plaintiff. (See id. at 17-

19.) Walker only ceased beating Plaintiff after Plaintiff feigned

unconsciousness. (See id. at 19-20.) Then, as Plaintiff exited

the room after the beating, Walker suddenly punched Plaintiff in

the left eye, causing Plaintiff further injury. (See id. at 20.)

At Plaintiff’s insistence, he “was escorted to Medical” (id.

at 24), where a nurse asked Plaintiff, “‘How are you’” (id.) and

Plaintiff responded, “‘My head hurts but I’m going to be just fine

when I file this lawsuit’” (id.), prompting an order from Covington

for “Plaintiff to shut up” (id.). Plaintiff requested that

officials photograph his injuries before the nurse examined him,

but Covington refused to allow anyone to photograph him. (See id.

at 24-25.) After examining Plaintiff, the nurse said that he

needed to go to the hospital. (See id. at 25.) As Plaintiff

walked towards the transportation vehicle, he again asked about

photographing his injuries, but officials refused to do so,

prompting Plaintiff to say, “‘That’s cool[,] I’1ll make sure I put

you in the lawsuit too’” (id.), which comment spurred one of the

nearby officers to take two pictures of Plaintiff (although

Covington thwarted attempts to take pictures of Plaintiff’s head

injury by covering Plaintiff’s head with a shirt or towel) (see

id.). Thompson and Leonard transported Plaintiff to the hospital,

where medical personnel diagnosed Plaintiff with a “closed fracture

of [the] left orbital floor (eye socket), finger fracture, chest

wall contusion, back contusions, two lacerations of [the] scalp,

hand contusion, and [a] closed head injury.” (Id. at 26.)

“Plaintiff underwent two laceration repair procedures,” involving

a total of sixteen staples, and received a splint for his finger

fracture. (Id.) “Surgery was scheduled. Follow-ups for the [eye

socket fracture were] scheduled” and medical personnel prescribed

hydrocodone for Plaintiff’s pain. (Id.)

During his transportation back to Scotland Correctional

Institution, Plaintiff told Leonard, “*I’m not mad at Walker[.] If

someone spit on me I would have fucked them up to[o].’” (Id.)

“Leonard responded[, ] ‘Yeah it was the principle, nothing

personal,’” to which Plaintiff replied, “‘I understand[,] but

understand this[:] when I file my lawsuit it’s nothing personal[,]

just business.’” (Id.)

While awaiting his housing assignment after returning from the

hospital on February 6, 2022, Plaintiff obtained a grievance form,

which he promptly completed and submitted to the sergeant on duty.

(See Docket Entry 2-2 at 2.)2 “The grievance submitted was in full

compliance with the North Carolina Department of Adult Correction’s

Division of Prisons Policy and Procedure Chapter G .0300

Administrative Remedy Procedure” (at times, the “ARP”). (Id.)3

2 Against policy, however, “Plaintiff was never given an

opportunity to write a use of force statement.” (Docket Entry 2 at

26.)

3 The Complaint generally refers to the North Carolina

Department of Adult Correction (at times, the “NCDAC”) and attaches

a copy of an NCDAC ARP (see id. at 32-42) that bears an issue date

of August 2013 and a review date of December 2021 (see id. at 32,

42). According to Defendants’ supporting memorandum, “[t]he North

Carolina Department of Adult Correction (‘DAC’) is an Agency

created on January 1, 2023[,] and was formerly the North Carolina

Department of Public Safety ([at times, the] ‘DPS’) Division of

Prisons. DAC and DPS may be used interchangeably.” (Docket Entry

23 at 2 n.1.) In 2021, the North Carolina General Assembly created

NCDAC “as a single, unified cabinet-level department,”

consolidating within it various duties and entities from the

Department of Public Safety, including the “Prisons Section.” N.C.

Session Law 2021-180, available at https://www.ncleg.gov/

EnactedLegislation/SessionLaws/HTML/2021-2022/SL2021-180.html (last

visited Jan. 30, 2026). “The Grievance Resolution Board [also]

transferred to the Department of Adult Correction” under that law.

Id. Although various provisions — including that, “[t]hroughout

the General Statutes, the Revisor of Statutes may replace . . . a

reference to the Section of Prisons of the Division of Adult

Correction and Juvenile Justice of the Department of Public Safety

with a reference to the Division of Prisons of the Department of

(continued...)

5

“Plaintiff observed the sergeant place the grievance inside the

Grievance Box,” but “[t]he grievance was not screened for

acceptance or rejection by the screening officer[,] in direct

violation of the [NCDAC ARP] □□ (Id.) “That violation of the

grievance procedure directly caused Plaintiff’s grievance to lose

access to the Administrative Remedy Procedure, making the

Administrative Remedy Procedure ‘unavailable.’” (Id.)

Thereafter, “Plaintiff filed another grievance.” (Id.)

Specifically, on February 13, 2022, Plaintiff completed and

submitted a grievance regarding “the excessive force incident of

February 6, 2022.” (Id.; see also id. at 11, 43 (reflecting filing

date of February 13, 2022, rather than February 9, 2022).) Staff

violated the ARP by not timely screening the grievance (see id. at

2-3), but “[t]he grievance was eventually screened and accepted as

being in full compliance with the [ARP]” (id. at 3). “Due to a

violation of the time frame established for Step 1 responses”

(id.), officials forwarded the grievance to Step 2 (see id.).

Plaintiff disagreed with the Step 2 response, which he “appealed to

Step 3.” (Id.; see also id. at 14 (alleging that, on March 21,

2022, Plaintiff received Step 2 response and “placed a check mark

at (B) Appeal to Secretary, DPS[], signed, dated, and returned the

3(...continued)

Adult Correction” — became immediately effective, the remainder of

the provisions, including the aforementioned creation of NCDAC,

became “effective January 1, 2023.” Id.

Step 2 Response to the staff member who brought the response to

Plaintiff’s cell door and was waiting to rec[ei]ve the response

back”).)

After thirty days, incorrectly believing that the turn-around

time for the Step 3 response had expired, Plaintiff “inquir[ed]

into the Step 3 response.” (Id. at 3.) “The Screening Officer

sent Plaintiff a copy of a Step 2 DC-410 Response.” (Id.)4 “That

response was a forgery of Plaintiff’s Step 2 decision[;] instead of

appeal to Step 3 [being] check marked[,] agree to Step 2 was check

marked.” (Id.; see also id. at 14 (“[After inquiring about the

Step 3 response on April 20, 2022,] at mail call on April 22[,]

2022[,] Plaintiff received a copy of Plaintiff’s purported Step 2

level response. It was fraudulent. On the rec[ei]ved copy of

‘Plaintiff’s’ Step 2 level response agreed was check marked with

Plaintiff’s signature forged. Plaintiff on March 21[,] 2022[,]

rec[ei]ved the Step 2 level response, Plaintiff did not agree with

the response that no excessive force was used by staff (went

contrary to Plaintiff’s whole grievance statement), Plaintiff check

marked (B) Appeal to Secretary.”).) Staff’s “actions directly

le[d] to Plaintiff’s grievance not being appealed from Step 2 to

the final level Step 3. Staff’s forgery and submission of a forged

document thwarted Plaintiff’s utilization of the Administrative

4 Per the ARP, an inmate in state custody “may submit a

written grievance on Form DC-410.” (Id. at 34; Docket Entry 23-1

at 3.)

7

Remedy Procedure to obtain relief for the action complained of.”

(Id. at 3.) In sum, “[s]taff actions made the Administrative

Remedy Procedure ‘unavailable.’” (Id.) “Plaintiff filed another

grievance and wrote [to] the Warden about staff’s misconduct

concerning the forgery and submission of the forgery (interference

of grievance process).” (Id.)

“[O]n April 22, 2022[,] after receiving the fake [response,

Plaintiff] submitted another grievance about the excessive use of

force by staff on February 6, 2022.” (Id.) “Staff confirmed to

Plaintiff that the grievance was placed in the Grievance Box. The

grievance submitted was in full compliance with the [NCDAC ARP, but

t]he grievance was not screened for acceptance or rejection by the

Screening Officer[,] in direct violation of the [NCDAC ARP].” (Id.

at 4.) “That violation of the [ARP] directly caused Plaintiff’s

grievance to be blocked [from] access to the [ARP,] making the

[ARP] ‘unavailable.’” (Id.) “Plaintiff filed another grievance.”

(Id.)

“On April 27[,] 2022[,] Plaintiff submitted two grievances”

regarding the excessive force incident to staff, one for the

Grievance Box, the other for transmission to the Screening Officer

through the internal mail system. (Id.) The grievances fully

complied with the ARP, and “Officer Locklear confirmed that both

items were placed in the appropriate places.” (Id.) Yet, in

direct violation of the ARP, “[n]either grievance was screened for

8

acceptance or rejection by the Screening Officer” (id.), rendering

unavailable the ARP (see id. at 4-5). “Plaintiff filed another

grievance.” (Id. at 5.)

“On May 2[,] 2022[,] Plaintiff submitted six grievances,” each

of which fully complied with the ARP. (Id.) “One was for the

Grievance Box, four were for direct submission to various prison

officials [through] the prison’s internal mail system, [and] one

was a confidential grievance to be mailed to the Deputy Secretary

of Prisons.” (Id.) “Staff confirmed to Plaintiff that each item

submitted was placed in the appropriate place.” (Id.) However,

directly violating the ARP, “[n]one of the five grievances

submitted internally on May 2[,] 2022[,] was screened for

acceptance or rejection by the Screening Officer,” rendering

unavailable the ARP. (Id.) Conversely, “[t]he confidential

grievance that Plaintiff mailed to the Deputy Secretary on May 2[,]

2022[,] was screened and accepted.” (Id.; see also id. at 21

(explaining that, “[i]f a confidential grievance is returned to an

inmate from the Deputy Secretary of Prisons it has been rejected[,

but] Plaintiff’s confidential grievance was not returned meaning

acceptance”).) Because the ARP prohibits Plaintiff from receiving

anything other than a Step 1, Step 2, and Step 3 response,

Plaintiff “had to rely on th[e] lack of remedies sought occurring

to make a determination of the grievance response.” (Id. at 5-6.)°

As all grievances must be completed within ninety days, after

ninety days passed without the occurrence of Plaintiff’s requested

remedies, “Plaintiff appealed the apparent grievance denial

response” (id. at 6). (See id. at 5-6.) Because the ARP “provides

no information about confidential grievance appeals” (id. at 6),

Plaintiff used his best judgment and, on August 3, 2022, “submitted

three confidential grievance appeals” (id.) “to the Deputy

Secretary of Prisons, Secretary of Adult Correction, and State of

North Carolina Offender Grievance Resolution Board” (id.). After

another ninety days elapsed without the requested remedies,

Plaintiff concluded that his “confidential grievance appeal was

denied.” (Id.; see also id. at 23 (noting that under ARP, if

“inmate does not rec[ei]ve a response within the time provided for

[a] reply . . ., the absence of a response shall be a denial”).)

Separately, “[o]n May 9[,] 2022[,] in response to the internal

grievances submitted [on] May 2[,] 2022[,] being ignored/not

screened, Plaintiff wrote another grievance.” (Id. at 7.)

However, rather than using the internal mail system or Grievance

Box, “Plaintiff asked Officer Locklear to place the grievance under

the Unit Manager’s office door,” and Officer Locklear subsequently

5 Plaintiff’s grievances requested, inter alia, an

investigation into the incident and the opportunity for Plaintiff

to write an incident report statement. (See, e.g., id. at 10, 12,

16, 18, 21, 26-28, 30.)

10

“confirmed that the grievance was placed inside the Unit Manager’s

office under the door.” (Id.) “On May 12[,] 2022[,] the Unit

Manager personally told Plaintiff that the grievance was signed by

the Unit Manager and given to the Screening Officer.” (Id.)

Although the ARP requires the Screening Officer “to screen a

grievance for acceptance or rejection” (id. at 8) within three days

(see id. at 7-8), “eleven days after the Unit Manager Mr. Scott

submitted Plaintiff’s grievance to Ms. Locklear (the Screening

Officer) the grievance still was not screened” (id. at 8). “On May

23[,] 2022[,] Plaintiff submitted a request for information form to

Ms. Locklear. The request form explained that Plaintiff knew Mr.

Scott signed off on the grievance [on] May 12[,] 2022[,] but

Plaintiff[’s] grievance still was not screened by her yet.” (Id.)

The following day, “Ms. Locklear screened the submitted grievance

and rejected it as being over ninety days between the date of the

alleged incident and the submission of the grievance.” (Id.)

“Plaintiff filed a grievance seeking the allowance of the

rejected grievance to be processed.” (Id.) Although that

“grievance was accepted as being in full compliance with the [ARP, ]

Plaintiff never rec[ei]ved a Step 1, Step 2, or Step 3 response.”

(Id.) Instead, “[t]he grievance was simply ignored in violation of

[the NCDAC ARP] .” (Id.)

Plaintiff included with the Complaint a detailed explanation

of each grievance, including its contents, when and to whom he

11

submitted it, and the treatment of that grievance. (See id. at 10-

31.) He also submitted “a true and accurate copy of the [NCDAC

ARP,] the February [13,] 2022[,] Grievance with the Step 1

response, the Step 2 response forgery[,] and the Warden’s letter to

[Plaintiff] about the grievance tampering (and no access to law

library),” as well as “the May 9[,] 2022[,] grievance with the

request for information form sent to [the] Screening Officer and

the DC-410 Screening response that followed.” (Id. at 9; see id.

at 32-53.)

B. Defendants’ Evidence

For their part, Defendants submitted a copy of the DPS ARP

issued on August 1, 2013 (see Docket Entry 23-1 at 1), as well as

declarations from Kimberly Grande, the executive director of the

NCDAC Inmate Grievance Resolution Board (the “IGRB”) (see Docket

Entry 23-2 (the “Grande Declaration”) at 1), and Dean Locklear,

Scotland Correctional Institution’s Associate Warden (see Docket

Entry 23-4 (the “Locklear Declaration”) at 1}. According to the

Grande Declaration:

“The IGRB employs grievance examiners, who are charged with

investigating inmate grievances in accordance with the procedures

established by the [ARP].” (Docket Entry 23-2, 9 4.) The current

version of the ARP became effective on September 30, 2023. (See

id.) “The ARP establishes a three-tier review process for inmate

grievances, and appeal to the IGRB is the final step (Step 3).

12

Exhaustion of administrative remedies by an inmate in the custody

of NCDAC is not complete until the IGRB completes Step 3 Review and

issues an order.” (Id., ¶ 5.) Grande reviewed “IGRB records for

all Step 3 Grievance Appeals submitted by [Plaintiff] between

February 1, 2022, through March 20, 2025.” (Id., ¶ 9.) During

that period, Plaintiff exhausted 18 grievances through Step 3.

(Id., ¶ 10.) The earliest such grievance bears a date of April 23,

2023. (See id.) Grande attached a copy of those grievances to her

declaration. (See id.; see also Docket Entry 23-3.)

In turn, Locklear avers:

In his role as Associate Warden, Locklear “oversee[s] the day-

to-day operations at [Scotland Correctional Institution].” (Docket

Entry 23-4, ¶ 2.) “Grievances are tracked and maintained in the

Correspondence Tracking System. CTS tracks all grievances, even

those terminating at Step 1 and 2. A table of [Plaintiff’s] CTS

record of grievances is attached as Exhibit A.” (Id., ¶ 3.) “In

accordance with Statewide policy, Scotland [Correctional

Institution] provides all offenders a grievance process. Offenders

are provided the DC-410 form on which they can file their grievance

on any issue they desire. The facility takes the grievance process

seriously.” (Id., ¶ 4.) “Offenders can either place their

grievance in a secured lock-box or hand it directly to a sergeant

or higher ranking officer on duty. Officers know that offender

grievances are part of the job and they do not get offended when

13

offenders file grievances for their actions.” (Id., 9 5.) “The

Grievance process at Scotland [Correctional Institution] is

maintained in accordance with statewide policy and is available to

all offenders, including [Plaintiff].” (Id.)

The attached “CTS/Grievances” document contains a five-column

table. (See Docket Entry 23-5 at 1-2.) The first column contains

a descriptive label, such as “Staff conduct” (id. at 2

(underscoring omitted)); the second column contains the Grievance

number (see, é.g., id. (“Grievance — 17544”)); the third column

contains a date (see, e.g., id. (“02/22/2022”)); the fourth column

contains the status (“Completed” or “In Process”) (id. at 1-2); and

the final column contains a facility name and number (such as

“4860:Scotland CI” (id. at 2)). The earliest entry on this table

bears the label “Requesting Status of Special Draw submi,” a

Grievance number of 15708, a date of June 29, 2021, a “Completed”

status, and a location of “3600:Southern CI.” (Id. (alterations

and underscoring omitted).) However, all entries on that row bear

a line through them (e.g., “06/29/20¢+”), in an apparent attempt to

strike them from the table. (Id.) No explanation of that

alteration appears on the exhibit or in the Locklear Declaration.

(See Docket Entries 23-4, 23-5.)

C. The Administrative Remedy Procedure

Aside from the review date and signature, the copies of the

ARP that Plaintiff and Defendants submitted appear similar in all

14

material respects, except for the titles involved. (Compare Docket

Entry 2-2 at 32-42 (generally referencing NCDAC and associated

titles), with Docket Entry 23-1 (referencing DPS and associated

titles).)6 Both copies of the ARP envision three types of

grievances — “Emergency Grievances,” “Confidential Grievances,” and

regular grievances (i.e., non-emergency, non-confidential

grievances) — each of which follows its own procedures. (See

Docket Entry 2-2 at 36-40; Docket Entry 23-1 at 6-9.)

Nevertheless, per the ARP, “[f]rom filing to final disposition, all

grievances shall be processed within ninety (90) days,” with “[t]he

90-day period commenc[ing] the day after the grievance has been

accepted.” (Docket Entry 2-2 at 35; accord Docket Entry 23-1 at

4.) “Within three days after submission of the grievance, the

inmate who submits the grievance will be notified of acceptance or

rejection in writing upon the appropriate form.” (Docket Entry 2-2

at 35; Docket Entry 23-1 at 4.) “If, at any step of the procedure,

a response is not made within the prescribed time limits, the

grievance will be forwarded to the next step for review.” (Docket

6 Although it bears an August 1, 2013, date in the upper left

corner of its second through eleventh pages, the copy of the ARP

that Plaintiff submitted contains a “Review Date” of “December 18,

2021” on the first page and a signature of the “Secretary of Adult

Correction” dated “December 13, 2021” on the final page. (See

Docket Entry 2-2 at 32-42.) Although it also bears the August 1,

2013, date on the upper left corner of its second through eleventh

pages, Defendants’ copy of the ARP lacks the “Review Date” (id. at

32) on the first page and contains a signature of the “Director of

Prisons” dated August 1, 2013, on its final page. (See Docket

Entry 23-1 at 1-11.)

15

Entry 2-2 at 35; Docket Entry 23-1 at 4.) “At each procedural

level or step an appeal shall be requested within twenty-four (24)

hours of receipt of written denial or the right to appeal shall be

waived,” but “[t]he person to whom the appeal is directed has the

discretion to accept a late appeal in the event of extenuating

circumstances.” (Docket Entry 2-2 at 35; Docket Entry 23-1 at 4.)

For grievances proceeding through the regular grievance review

process, the following “time limits” apply. (Docket Entry 2-2 at

35; Docket Entry 23-1 at 5.) “At Step 1, formal written response

to the inmate shall be made within fifteen (15) days from the date

of acceptance of the grievance.” (Docket Entry 2-2 at 36; Docket

Entry 23-1 at 5.) “At Step 2, formal written response to the

inmate shall be made within twenty (20) days from the date of

request for Step 2 review.” (Docket Entry 2-2 at 36; Docket Entry

23-1 at 5.) Next:

At Step 3, the Inmate Grievance Examiner (IGE) shall

forward the decision to the Secretary of Public Safety

within twenty (20) days from the date of the inmate’s

appeal. Within twenty days from the date of transmittal

of the DC-410 from the IGE, the Director of Prisons shall

forward a written response to the Secretary of Public

Safety.

(Docket Entry 2-2 at 36; Docket Entry 23-1 at 5.) “The final

decision of the Secretary of Public Safety must be delivered to the

inmate within thirty (30) days of the transmittal of the decision

from the IGE.” (Docket Entry 23-1 at 5; accord Docket Entry 2-2 at

36 (same, but for decision of “Secretary of Adult Correction”).)

16

If at any level of the administrative remedy process,

including the final level, the inmate does not receive a

response within the time provided for reply, including

any properly noticed extension, the absence of a response

shall be a denial at that level which the inmate may

appeal, but the 24 hours time limit to request an appeal

does not begin until the inmate receives a written

denial.

(Docket Entry 2-2 at 36; Docket Entry 23-1 at 5.)

For regular grievances, the ARP establishes a three-step

review process, found in Section .0310. (See Docket Entry 2-2 at

38-40; Docket Entry 23-1 at 7-9.) An inmate may initiate the

grievance process by completing a Form DC-410 and giving the

completed form to a staff member for transmission, by hand delivery

or mail, to the appropriate official. (See Docket Entry 2-2 at 38;

Docket Entry 23-1 at 7.) “The screening officer shall review the

grievance and decide whether it should be accepted, rejected, or

returned under the criteria set forth in this policy. This

screening shall be completed within three (3) days of the

submitting the grievance.” (Docket Entry 2-2 at 38; Docket Entry

23-1 at 7.) “If the screening officer rejects the grievance . . .,

the inmate will be informed of the rejection reason in writing on

the DC-410. A copy of all rejected grievances will be reviewed,

initialed, and retained by the Facility Head.” (Docket Entry 2-2

at 38; Docket Entry 23-1 at 8.) “The Facility Head may determine

that the grievance should be accepted. If so, the inmate will be

notified in writing and provided the opportunity to resubmit the

17

grievance on a new DC-410 [form] . . . .” (Docket Entry 2-2 at 38-

39; Docket Entry 23-1 at 8.)

“If the inmate is not satisfied with the Step 1 decision, he

or she may request relief from the Facility Head,” by appealing the

Step 1 response within twenty-four hours of receiving it. (Docket

Entry 2-2 at 39; accord Docket Entry 23-1 at 8.) “The Facility

Head may investigate the grievance or may assign a staff member to

investigate it.” (Docket Entry 2-2 at 39; Docket Entry 23-1 at 8.)

After the investigation, “the Facility Head shall complete Form

DC-410 indicating the decision and reasons for the decision.”

(Docket Entry 2-2 at 39; Docket Entry 23-1 at 8.)

“If the inmate is not satisfied with the Step 2 decision he or

she may appeal to the Secretary of Public Safety through the

[IGE],” within twenty-four hours of receiving the Step 2 response.

(Docket Entry 2-2 at 39; Docket Entry 23-1 at 9.) “The IGE will

order such relief as is appropriate or deny the grievance. The IGE

shall forward any order for relief on Form DC-410 to the Secretary

of Adult Correction within twenty (20) days from the date of the

inmate’s appeal from Step 2.” (Docket Entry 2-2 at 40; see also

Docket Entry 23-1 at 9 (same, but forwarding to “Secretary of

Public Safety”).) “Simultaneously, a copy of the form DC-410

reflecting the decision shall be forwarded to the Deputy Secretary

of Prisons.” (Docket Entry 2-2 at 40; see also Docket Entry 23-1

at 9 (same, but forwarding to “Director of Prisons”).)

18

Lastly:

The Deputy Secretary of Prisons or designee shall

review the grievance and may make comments to the

Secretary of Adult Correction. The Deputy Secretary of

Prisons’ comments will be forwarded to the Secretary of

Adult Correction within twenty (20) days from the date of

transmittal of Form DC-410 from the [IGE]. The Secretary

of Adult Correction shall review the Deputy Secretary of

Prisons’ comments and then approve the decision of the

IGE or make written findings that the relief ordered is

not appropriate. If it is determined that the relief

ordered is not appropriate, a written explanation for the

findings must be given and an alternative order for

relief must be made. The Secretary of Adult Correction’s

final decision will be delivered to the inmate by the

IGE, with a copy to the Deputy Secretary of Prisons,

within thirty (30) days of transmittal of the decision

from the IGE.

(Docket Entry 2-2 at 40; see also Docket Entry 23-1 at 9 (same,

referencing “Director of Prisons” and “Secretary of Public Safety,”

respectively).) “The decision by the IGE or a modification by the

Secretary of Adult Correction shall constitute the final step of

the Administrative Remedy Procedure.” (Docket Entry 2-2 at 40; see

also Docket Entry 23-1 at 9 (same, referencing “Secretary of Public

Safety”).)

As for “Confidential Grievances,” the ARP provides:

If an inmate believes that a grievance is [of] a

confidential nature, his grievance may be submitted

directly with the Deputy Secretary of Prisons and mailed

as legal mail. The inmate must clearly explain the

nature of the complaint and the reasons for not following

the regular grievance procedure. If the Deputy Secretary

determines that the grievance is not of a confidential

nature, the grievance shall be returned to the inmate

with instructions to submit it in accordance with the

procedure set forth in Section .0310. If the Deputy

Secretary determines that the grievance is in fact

confidential in nature, the Deputy Secretary shall order

19

any necessary investigation. If the investigation

indicates action should be taken, the Deputy Secretary

shall cause the appropriate action to be taken to resolve

the grievance.

(Docket Entry 2-2 at 37-38; see also Docket Entry 23-1 at 7 (same,

referencing “Director of Prisons”).)

DISCUSSION

I. Relevant 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). The movant bears the burden of establishing the

absence of such dispute. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986).

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)

20

(internal quotation marks omitted) (brackets in original). If,

applying this standard, the Court “find[s] that a reasonable [fact-

finder] 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).

B. Administrative Exhaustion

As relevant here, 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 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.” 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 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.”); see also, e.g., Whatley v. Judge, No. 5:23ct3277,

2025 WL 2921830, at *3 (E.D.N.C. Oct. 14, 2025) (“Failure to

21

exhaust administrative remedies is an affirmative defense that

defendants generally must plead and prove.”).

Nevertheless, 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]1ll .. □ 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)). Thus, the relevant prison’s

grievance procedures determine the steps that a prisoner must take

to meet his exhaustion obligations. See id. at 726.

Importantly, though, “the exhaustion requirement hinges on the

‘availability’ of administrative remedies: An inmate, that is,

7 However, “parties have a right to a jury trial on PLRA

exhaustion when that issue is intertwined with the merits of [the

plaintiff’s] claim.” Perttu v. Richards, 605 U.S. 460, 468 (2025);

see also id. at 464 (explaining that case involved intertwined

First Amendment and exhaustion issues, “because both depend on

whether [defendant prison employee] did in fact destroy [plaintiff

inmate’s] grievances and retaliate against him”). That situation

does not apply here.

22

must exhaust available remedies, but need not exhaust unavailable

ones.” Ross v. Blake, 578 U.S. 632, 642 (2016) (brackets omitted);

see also Griffin v. Bryant, 56 F.4th 328, 335 (4th Cir. 2022)

(observing that exhaustion requirement contains “a built-in

exception,” namely “that a prisoner need not exhaust remedies if

they are not ‘available’” (certain internal quotation marks

omitted)). As the United States Court of Appeals for the Fourth

Circuit has explained:

[T]he [PLRA] spells out a crucial “limitation on an

inmate’s duty to exhaust” administrative remedies — “[he]

need not exhaust unavailable ones.” Pursuant to Ross, if

a prison grievance procedure’s provided avenues for

recourse are not meaningfully “capable of use to obtain

some relief for the action complained of,” the exhaustion

requirement “does not come into play.” And the Ross

Court identified three circumstances where an

administrative remedy, “although officially on the books,

is not capable of use to obtain relief”: (1) where the

remedy “operates as a simple dead end,” with prison

officials “unable or consistently unwilling to provide

any relief to aggrieved inmates”; (2) where an

administrative scheme is “so opaque” that it is

“practically . . . incapable of use” because “no ordinary

prisoner can discern or navigate it”; and (3) where

“prison administrators thwart inmates from taking

advantage of a grievance process through machination,

misrepresentation, or intimidation.”

Griffin, 56 F.4th at 335 (citations omitted) (ellipsis and final

set of brackets in original).

II. Analysis

A. Waiver Contention

As an initial matter, Plaintiff maintains that Defendants

waived their exhaustion argument by failing to raise it in their

23

Answer. (See Docket Entry 29 at 7-8.) As Plaintiff correctly

notes (see id. at 7), Defendants failed to include administrative

exhaustion in their twelve affirmative defenses, notwithstanding

the Complaint’s extensive discussion of Plaintiff’s exhaustion

efforts (see Docket Entry 21 at 4-7). Per the Federal Rules of

Civil Procedure (the “Rules”), “[i]n responding to a pleading, a

party must affirmatively state any avoidance or affirmative

defense,” Fed. R. Civ. P. 8(c)(1).8 “It is settled that a failure

to raise an affirmative defense in the appropriate pleading results

in the loss of that defense.” RCSH Operations, L.L.C. v. Third

Crystal Park Assocs. L.P., 115 F. App’x 621, 629 (4th Cir. 2004).

“However, even if a party fails to plead an affirmative defense,

the opposing party still must show ‘prejudice or unfair surprise’

before the waiver will be enforced.” Id. at 630. “This is because

the Supreme Court has held that the purpose of Rule 8(c) is to give

the opposing party notice of the affirmative defense and a chance

to rebut it.” Grunley Walsh U.S., LLC v. Raap, 386 F. App’x 455,

459 (4th Cir. 2010) (brackets and internal quotation marks

omitted). Notably, “[c]ourts have found that affirmative defenses

raised for the first time in summary judgment motions may provide

the required notice.” Id.

8 The Rules separately require the responding party to “admit

or deny the allegations asserted against it by an opposing party.”

Fed. R. Civ. P. 8(b)(1)(B).

24

Here, the Complaint details Plaintiff’s efforts to exhaust his

administrative remedies, reflecting his awareness of the

administrative exhaustion issue. (See, e.g., Docket Entry 2-2 at

1-31.) Moreover, although it does not comply with Rule 8(c), the

Answer does “specifically den[y]” (Docket Entry 21 at 3) the

allegations in “Section VII, Administrative Procedures” (id.), “to

the extent that [such Section] asserts or implies that Plaintiff

has exhausted administrative remedies as required by law in

connection with [his claims against Defendants]” (id.). Further,

Defendants filed the Motion the day after filing their Answer

(compare id. at 7, with Docket Entry 22 at 2), providing Plaintiff

prompt notice of Defendants’ assertion of the administrative

exhaustion defense. Finally, the Opposition does not assert that

Defendants’ failure to comply with Rule 8(c) prejudiced Plaintiff

(see Docket Entry 29 at 7-8), but it does substantively address

Defendants’ administrative exhaustion arguments (see id. at 8-13).

Under the circumstances, the Court should address the merits of

Defendants’ administrative exhaustion defense. See, e.g., Grunley

Walsh, 386 F. App’x at 459 (explaining that “the parties fully

briefed and argued the merits of the [relevant] affirmative

defense,” and “find[ing] that [the plaintiff] has shown no unfair

surprise or prejudice from consideration of an issue [the

plaintiff] itself fully argued”).

25

B. Administrative Exhaustion Challenge

According to Defendants, the fact that Plaintiff exhausted

other grievances “to Step Three conclusively demonstrate[s] . . .

that Defendants process Plaintiff’s grievances through completion”

and thus that “Plaintiff was not prevented from utilizing the ARP

through exhaustion regarding this matter.” (Docket Entry 23 at 9.)

Instead, Defendants maintain, “[Plaintiff] simply chose not to

follow through with a grievance for the facts he alleges in his

Complaint.” (Id.) This contention misses the mark.

To begin, Defendants entirely ignore Plaintiff’s sworn

assertions regarding his confidential grievance. (See id. at 1-

12.) Plaintiff avers that, in compliance with the ARP, he mailed

a confidential grievance regarding the relevant incident to “the

Deputy Secretary of Prisons,” which grievance “was screened and

accepted” (Docket Entry 2-2 at 5), as it “was not returned” to

Plaintiff (id. at 21). Accepted as true, see Miller, 913 F.2d at

1087, this assertion exhausts administrative remedies under the ARP

that Plaintiff attached to the Complaint (see Docket Entry 2-2 at

37-38). See, e.g., Sutherland v. Sapper, No. 5:20ct3322, 2023 WL

6276616, at *5 (E.D.N.C. Sept. 26, 2023) (“determin[ing that the]

plaintiff has sufficiently alleged he has exhausted his

administrative remedies as to his conditions of confinements

claims” where he “alleges he mailed a confidential grievance to

defendant Dail, as Director of Prisons, explaining the

26

unconstitutional conditions of confinement,” but “did not receive

a response, and thus, such nonresponse would be considered a denial

under the ARP”), on reconsideration in part, No. 5:20ct3322, 2025

WL 963584 (E.D.N.C. Mar. 31, 2025).

Given its references to NCDAC, however, that ARP appears to

post-date Plaintiff’s grievance attempts. See N.C. Session Law

2021-180, available at https://www.ncleg.gov/EnactedLegislation/

SessionLaws/HTML/2021-2022/SL2021-180.html (last visited Jan. 30,

2026); see also G.0300 Administrative Remedy Procedure, available

at https://www.ncdps.gov/documents/g0300-administrative-remedy-

procedure (last visited Jan. 30, 2026) (containing ARP, published

“September 13, 2022,” with “Review Date” of December 18, 2021, and

signature by “Commissioner of Prisons” on “12/13/2021,” that

references DPS rather than NCDAC).9 Notably, though, the NCDAC

“Deputy Secretary of Prisons” appears to be the same individual as

the DPS “Director of Prisons.” (Compare, e.g., Docket Entry 2-2 at

36 (describing relevant official as “Director of Prisons”), with

id. at 40 (describing relevant official as “Deputy Secretary of

Prisons”).) Under the ARP that Defendants submitted,10 an inmate

9 The Court may take judicial notice of this ARP. See

Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.

2009) (observing that the Court “may properly take judicial notice

of matters of public record”).

10 Per Defendants’ summary judgment memorandum, “Policy

G.0300 attached as Exhibit 1 was in effect during times relevant to

Plaintiff’s Complaint until October 1, 2023[,] when it was updated

(continued...)

27

can exhaust administrative remedies by sending to the Director of

Prisons a confidential grievance that the Director of Prisons does

not return to the inmate. (See Docket Entry 23-1 at 7.)'' As such,

a genuine issue of material fact exists regarding whether Plaintiff

exhausted his administrative remedies via submission of a

confidential grievance. See Sutherland, 2023 WL 6276616, at *5 &

n.3 (denying motion to dismiss and for judgment on pleadings where

plaintiff alleged submission of confidential grievance, but

declining, at that time, “to address whether [relevant official] in

fact received plaintiff’s letter and grievance or [the plaintiff]

used the proper procedure to send the documents”).

Defendants likewise fail to address the Complaint’s sworn

assertions that staff forged a Step 2 response for Plaintiff’s

February 13, 2022, grievance, changing his request for an appeal

into an agreement with the finding that officials did not use

excessive force against him (see Docket Entry 2-2 at 3, 14). (See

10(...continued)

to the current version referenced in Exhibit 2 by its URL.”

(Docket Entry 23 at 2 n.2.) Notably, though, “[s]tatements in a

brief are not evidence.” Bayer CropScience Inc. v. Syngenta Crop

Prot., LLC, No. 1:13cv316, 2013 WL 12137000, at *1 (M.D.N.C. Dec.

12, 2013); see also United States v. White, 366 F.3d 291, 300 (4th

Cir. 2004) (explaining that “an attorney’s unsworn argument does

not constitute evidence”). In any event, the current record does

not establish which version of the ARP applied to Plaintiff’s

attempts to exhaust administrative remedies on his excessive force

claim.

11 The same applies to the ARP published in September 2022.

See https://www.ncdps.gov/documents/g0300-administrative-remedy-

procedure/open, at 6-7 (last visited Jan. 30, 2026).

28

Docket Entry 23 at 1-12.) The Opposition reiterates that

“Plaintiff was thwarted by prison officials from taking advantage

of a grievance process through machination when th[is forgery

occurred]” (Docket Entry 29 at 11), which prevented his grievance

“from being reviewed at the Step 3 level” (id.), creating “a

genuine dispute of material fact” regarding Plaintiff’s compliance

with the administrative exhaustion requirement (id. at 13; see also

id. at 12-13 (highlighting various facts that undermine notion

Plaintiff would have agreed to Step 2 response, including his

comments regarding filing a lawsuit, extent of his injuries, and

his repeated attempts to grieve the incident)). By failing to

respond to Plaintiff’s arguments regarding the forged grievance

(see Docket Entries dated Aug. 25, 2025, to present; see also

Docket Entry 23 at 1-12), Defendants conceded them. See Kinetic

Concepts, Inc. v. Convatec Inc., No. 1:08cv918, 2010 WL 1667285, at

*8 (M.D.N.C. Apr. 23, 2010) (discussing “general principle that a

party who fails to address an issue has conceded the issue”)

(collecting cases). In any event, “there is no evidence of record

disputing [that P]laintiff’s signature was forged on [the relevant]

Step [2] response,” creating “a genuine issue of material fact as

to whether the grievance process was available to [P]laintiff for

his [excessive force] claim[].” Sutherland v. Sapper, No.

5:20ct3322, 2025 WL 963584, at *8 (E.D.N.C. Mar. 31, 2025)

(“Sutherland II”); see also Ross, 578 U.S. at 644 (explaining that

29

administrative procedure qualifies as “unavailable” where “prison

administrators thwart inmates from taking advantage of a grievance

process through machination[ or] misrepresentation”).

Next, although not directly acknowledging Plaintiff’s

averments that officials failed to screen his repeated grievances

(see Docket Entry 23 at 1-12), Defendants contend that, “[g]iven

that the facility has accepted and responded to grievances[,]

Plaintiff cannot show an inability of the facility to fail [sic] to

accept his grievance” (id. at 11). However, the simple fact that

Plaintiff successfully exhausted other grievances through Step 3

does not, by itself, defeat his contention that staff thwarted his

attempts to successfully grieve his excessive force claim by

failing to screen his grievances. See, e.g., Moss v. Harwood, 19

F.4th 614, 622 (4th Cir. 2021) (acknowledging that “cases

recogniz[e] that an inmate able to file one grievance is not

necessarily able to file others, at different times or on different

topics,” and agreeing that “[a] prisoner’s ability to take

advantage of administrative grievances is not an ‘either-or’

proposition . . ., because sometimes grievances are clearly

available; sometimes they are not; and sometimes there is a middle

ground where, for example, a prisoner may only be able to file

grievances on certain topics” (brackets and certain internal

quotation marks omitted)); see also Hill v. O’Brien, 387 F. App’x

396, 401 (4th Cir. 2010) (“find[ing the d]efendants’ reliance on

30

[the plaintiff’s] high-volume [grievance] filings specious,” and

observing, inter alia, that “the fact that [the plaintiff]

successfully filed many grievances in the past suggests that [he]

is familiar with the requirements of the administrative process and

is not purposefully attempting to evade them”).

Defendants further maintain that “it is apparent through the

CTS data[ that] facilities administered the grievance process

professionally and in accordance with statewide policy.” (Docket

Entry 23 at 12.) Yet, the record reflects that officials did not

always adhere to the ARP requirements. (See, e.g., Docket Entry 2-

2 at 46 (noting “[t]ime frame violation” for Step 1 response to

Plaintiff’s February 13, 2022, grievance); id. at 51-53 (reflecting

that screening officer screened grievance twelve days after unit

manager signed grievance — which itself occurred three days after

date on grievance — and only after Plaintiff submitted request for

information form detailing his awareness of date unit manager

signed grievance).) Moreover, Plaintiff disputes the accuracy of

the CTS data, noting, inter alia, that it omits “the grievance(s)

used to satisfy the PLRA’s requirement in Diamond v. Oderere[, No.]

1:22cv287 [(M.D.N.C.)]” (Docket Entry 29 at 10 (underscoring

added)), an excessive force case regarding an incident on April 12,

2021, see Diamond, No. 1:22cv287, Docket Entry 1 at 1-7 (M.D.N.C.

Apr. 12, 2022), that Plaintiff successfully pursued to settlement

against two DPS officers,, see id., Docket Entry 115 at 1 (M.D.N.C.

31

Jan. 3, 2025), and to trial against a third DPS officer, see id.,

Docket Entry 114 at 1-3 (M.D.N.C. Dec. 17, 2024). (See Docket

Entry 29 at 10; see also Docket Entry 23-5 at 1-2 (lacking relevant

grievance).) Additionally, the CTS table appears to reflect only

screened grievances, as the grievances all contain numbers

(see Docket Entry 23-5 at 1-2; cf. Docket Entry 2-2 at 43-45, 51,

53 (reflecting that DC-410 forms lack grievance numbers, but that

such numbers appear on screening responses)). As such, a material

factual dispute exists regarding whether officials rendered the ARP

unavailable by failing to screen Plaintiff’s grievances. see,

e.g., Sutherland II, 2025 WL 963584, at *8 (“find[ing] the

grievance procedures were unavailable to [the] plaintiff for the

unprocessed complaints regarding second-hand smoke” and thus that

material factual dispute existed regarding exhaustion requirement).

Nevertheless, dismissing the Complaint’s contentions as “self-

serving unsupported allegations” (Docket Entry 23 at 10), “bare

assertions” (id. at 11), and “bald assertions” that “do[ not] in

any way demonstrate an unavailable grievance process” (id.),

Defendants assert that “the credible evidence shows that Plaintiff

did not exhaust a grievance concerning excessive force on February

6, 2022 at Scotland C[orrectional Institution] as alleged in the

present matter” (id. at 9). This argument warrants no relief. The

Complaint contains detailed, sworn allegations regarding

Plaintiff’s attempts to exhaust his administrative remedies (see,

32

e.g., Docket Entry 2-2 at 1-31), not “bare assertions” (Docket

Entry 23 at 11) or “unsupported allegations” (id. at 10). Further,

at this stage of the proceedings, Plaintiff, as 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 . . . resolved favorably to him,”

Miller, 913 F.2d at 1087 (internal quotation marks omitted)

(brackets in original); see also Raynor v. Pugh, 817 F.3d 123, 130

(4th Cir. 2016) (“[W]here affidavits present conflicting versions

of the facts which require credibility determinations, summary

judgment cannot lie.” (internal quotation marks omitted)).

CONCLUSION

The Court should consider the merits of Defendants’ exhaustion

defense, but material factual disputes regarding the availability

and exhaustion of administrative remedies preclude summary

judgment.

IT IS THEREFORE RECOMMENDED that the Motion (Docket Entry 22)

be denied.

This 30th day of January, 2026.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

33