Andrew Kilpatrick v. Danny Hollifield, No. 14-7351 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7351 ANDREW TAB KILPATRICK, Plaintiff - Appellant, v. DANNY HOLLIFIELD, Captain at Clay County Detention Center; CLAY COUNTY DETENTION & MEDICAL STAFF, Defendants - Appellees. Appeal from the United States District Court for the Western District of North Carolina, at Bryson City. Frank D. Whitney, Chief District Judge. (2:14-cv-00022-FDW) Submitted: January 28, 2015 Decided: February 3, 2015 Before GREGORY, AGEE, and THACKER, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Andrew Tab Kilpatrick, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Andrew Tab Kilpatrick 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 plaintiff to a district exhaust [his] court properly administrative required remedies a 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). (“PLRA”) requires a The Prison Litigation Reform Act 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). 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 remedies the is affirmative an PLRA, failure to defense, exhaust which an administrative inmate required to plead or demonstrate in his complaint. Bock, 549 U.S. 199, 216 (2007). is not Jones v. Rather, the defendant bears the burden to establish a prisoner’s failure to exhaust. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). 2 Moore v. 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 opportunity to respond on the exhaustion issue. provided an 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 Kilpatrick’s complaint and associated pleadings. detention center Particularly, it is unclear whether the that housed administrative steps request Kilpatrick forms beyond Kilpatrick filing apparently the required inmate filed. further grievance and Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion. We deny as moot Kilpatrick’s motions to appoint counsel, to amend his complaint, and to supplement his complaint. the merits of Kilpatrick’s We express no opinion about claims. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before this court and argument will not aid the decisional process. VACATED AND REMANDED 3
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