Leavitt v. NC Department of Public Safety , 585 F. App'x 171 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6810
OWEN D. LEAVITT,
Plaintiff – Appellant,
v.
NC DEPARTMENT OF PUBLIC SAFETY; KEITH WHITENER,
Administrator, Alexander Correctional Institution,
individually and in his official capacity; DAWKINS, Doctor,
individually and in his official capacity; COFFEY, Chronic
Care Nurse, individually and in her official capacity;
EVENS, Head Nurse, individually and in her official
capacity; KIRBY, Lead Nurse, individually and in her
official capacity; MCRAY, Nurse, individually and in his
official capacity; W. TURNER, Officer, individually and in
his official capacity; MILLER, Sergeant, individually and
in his official capacity; HONEYCUTT, Officer in Charge,
individually and in his official capacity; BROCK, Officer,
individually and in his official capacity; HARRINGTON,
Officer, individually and in his official capacity,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Frank D. Whitney,
Chief District Judge. (5:14-cv-00027-FDW)
Submitted: October 28, 2014 Decided: November 12, 2014
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Owen D. Leavitt, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Owen D. Leavitt appeals the district court’s order
dismissing without prejudice his 42 U.S.C. § 1983 (2012) action
for failure to exhaust administrative remedies. Because we
conclude the action was dismissed prematurely, we vacate and
remand.
“Whether a district court properly required a
plaintiff to exhaust [his] administrative remedies before
bringing suit in federal court is a question of law” that we
review de novo. Talbot v. Lucy Corr Nursing Home, 118 F.3d 215,
218 (4th Cir. 1997). The Prison Litigation Reform Act (“PLRA”)
prohibits a prisoner from filing a § 1983 action addressing
conditions of confinement unless the prisoner has exhausted
available administrative remedies. 42 U.S.C. § 1997e(a) (2012).
Meeting the exhaustion requirement requires “proper exhaustion”—
that is, “using all steps that the agency holds out, and doing
so properly (so that the agency addresses the issues on the
merits).” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal
quotation marks omitted).
Under the PLRA, failure to exhaust administrative
remedies is an affirmative defense, which an inmate is not
required to plead or demonstrate in his complaint. Jones v.
Bock, 549 U.S. 199, 216 (2007). Rather, the defendant bears the
burden to establish a prisoner’s failure to exhaust. Moore v.
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Bennette, 517 F.3d 717, 725 (4th Cir. 2008). A district court
is permitted to address the issue of exhaustion sua sponte,
however, and may dismiss the complaint without input from the
defendant if the “failure to exhaust is apparent from the face
of the complaint,” and the inmate has been provided an
opportunity to respond on the exhaustion issue. Anderson v. XYZ
Corr. Health Servs., Inc., 407 F.3d 674, 682 (4th Cir. 2005).
Our review of the record indicates that the failure to
exhaust is not clear from the face of Leavitt’s complaint and
associated pleadings, particularly in light of his request for
additional time to provide proof of exhaustion, and his verified
statement indicating that he seeks such proof from Appellees.
Accordingly, we vacate the judgment of the district court and
remand for further proceedings consistent with this opinion. We
express no opinion about the merits of Leavitt’s claims. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
VACATED AND REMANDED
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