Cornelius Corey v. Faye Daniels , 626 F. App'x 414 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6707
CORNELIUS MAURICE COREY,
Plaintiff – Appellant,
v.
FAYE DANIELS; MICHAEL T. GIBBS; ERNEST RIGGS; ALICE
MUSSARI; DARRELL HOPKINS,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-ct-03265-F)
Submitted: September 24, 2015 Decided: October 6, 2015
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Cornelius Maurice Corey, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornelius Maurice Corey appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2012) complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) (2012), and dismissing his
amended claims without prejudice for failure to exhaust.
Because we conclude that the amended claims were dismissed
prematurely, we vacate in part and remand for further
proceedings.
“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 this Court reviews de
novo. Talbot v. Lucy Corr. Nursing Home, 118 F.3d 215, 218 (4th
Cir. 1997). The Prison Litigation Reform Act (“PLRA”) requires
a prisoner to exhaust his available administrative remedies
before filing an action under § 1983. 42 U.S.C. § 1997e(a)
(2012); Woodford v. Ngo, 548 U.S. 81, 83-85 (2006); Porter v.
Nussle, 534 U.S. 516, 532 (2002). Such exhaustion must be
“proper”; that is, the prisoner must “us[e] all steps that the
agency holds out[] and do[] so properly.” Woodford, 548 U.S. at
90 (internal quotation marks and emphasis 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
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establish a prisoner’s failure to exhaust. Moore v. 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 is 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 failure to exhaust
the amended claims is not clear from the face of Corey’s amended
complaint and attachments, which include copies of a grievance
and related documents. Further, there is no indication that
Corey was given an opportunity to respond regarding exhaustion.
Accordingly, we vacate the district court’s dismissal of the
amended claims and remand for further proceedings consistent
with this opinion. We express no opinion regarding the merits
of the claims. We affirm the dismissal of the claims set forth
in the original complaint for the reasons stated by the district
court. Corey v. Daniels, No. 5:14-ct-03265-F (E.D.N.C. Apr. 27,
2015). Finally, we dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before this Court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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