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 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) 12 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 13