Opinion
5:22-CT-3079-D
08-14-2023
UHURU'SEKOU KAMARA AJANI OBATAIYE-ALLAH, Plaintiff, v. ASST. WARDEN FAUST, et al., Defendants.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
On March 3, 2022, Uhuru'Sekou Kamara Ajani Obataiye-Allah (“Obataiye-Allah” or “plaintiff”), a state inmate proceeding pro se, filed a complaint under 42 U.S.C. § 1983, alleging violations of his Eighth and Fourteenth Amendment rights by various defendants during his incarceration at North Carolina Central Prison (“Central Prison”). Compl. [DE-1]. On May 9, 2022, the court conducted a frivolity review and dismissed all of plaintiff's claims except certain claims concerning alleged incidents on February 16, 2022 (the “February 16 incidents”), specifically (i) defendant Stephen Lowery's (“defendant Lowery”) assault of plaintiff, and (ii) plaintiff's subsequent placement in an unsanitary cell in Central Prison by defendant Assistant Warden Nakeshia Faust (“defendant Faust,” and together with defendant Lowery, “defendants”). [DE-10] at 9. On September 7, 2022, defendant Faust filed a motion to dismiss [DE-22], and on November 9, 2022, defendant Lowery also filed a motion to dismiss. [DE-30]. Defendants each submitted a memorandum with exhibits in support of their respective motions to dismiss, and each argues that plaintiff failed to exhaust his administrative remedies prior to filing his complaint. [DE-23; 31]. Plaintiff filed a declaration in opposition [DE-27] to defendant Faust's motion to dismiss on September 20, 2022, and a declaration in opposition [DE-34] to defendant Lowery's motion to dismiss on November 28, 2022.
Plaintiff postmarked his complaint on February 27, 2022. See [D.E. 1-1].
On November 18, 2022, the court entered an order, referring defendants' motions to dismiss to the undersigned for an evidentiary hearing on the issue of exhaustion of administrative remedies, an assessment of the witnesses' credibility at the hearing, and a memorandum and recommendation. [DE-33] at 2. The evidentiary hearing in this matter took place before the undersigned on May 23, 2023, in Raleigh, North Carolina. See Hr'g Minute Entry [DE-59].
The evidentiary hearing was originally scheduled to take place on April 11, 2023, before the undersigned. [DE-38]. On April 6, 2023, counsel for defendants filed a notice [DE-44] informing the court that the North Carolina Department of Public Safety was unable honor the writ issued to produce plaintiff for the April 11, 2023 evidentiary hearing. The notice provided that plaintiff was no longer in the custody of North Carolina Department of Adult Correction, as plaintiff had been transferred to the custody of the Maryland Department of Corrections on April 5, 2023, pursuant to an interstate corrections compact agreement with the Virginia Department of Corrections. The undersigned rescheduled the evidentiary hearing for May 23, 2023, in order to give both parties an opportunity to brief the issue of plaintiff's remote appearance by video from his place of incarceration in Maryland, and to logistically prepare for the same. [DE-51; -55].
For the reasons stated below, the undersigned finds that plaintiff has not exhausted his administrative remedies and, therefore, RECOMMENDS that the court GRANT defendants' motions to dismiss [DE-22; -30], and DISMISS plaintiff's complaint [DE-1] WITHOUT PREJUDICE.
I. FACTUAL BACKGROUND
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 against numerous prison officials related to events which allegedly occurred while he was confined at Central Prison in Raleigh, North Carolina. Compl. [DE-1] at 1-2; 5. As previously summarized by this court, plaintiff alleges, in relevant part, that:
on February 16, 2022, following a heated conversation, defendant Lowery subjected him to cruel and unusual punishment and punishment without due process of law by “spraying a big can of mace” into [plaintiff's] cell and beating [plaintiff's] hands with his night stick . . . A cell extraction team then removed
[plaintiff] from his cell, placing [plaintiff] “in a cell with feces and urine in the toilet and on the floor with smoke in the cell and the black fumes etc. from where a cell was just set on fire.” [Plaintiff] “could barely breath[e] because” of the fumes in the cell, was suffering chest pains, and his ‘‘hands were bleeding really bad.” . . . [After plaintiff received medical treatment at the nurse's office,] defendant Faust, an assistant warden, instructed the officers to return [plaintiff] to ‘‘the cell with the feces etc.” and to keep him in restraints. “She even keep [sic] [him] in the flooded cell for 48 hours without it being cleaned” and “kept all [his] property for (7) days” to search through it in her office ‘‘where there are no cameras etc.”[DE-10] at 2-3 (sixth alteration in original) (internal citations omitted).
In his complaint, Plaintiff acknowledged that he did not exhaust his administrative remedies prior to filing the instant suit, however, he alleges that “the grievance office won't process my grievances, they have refused to process over (16) of my grievances” and that he sent letters “using certified mail because of this problem.” Compl. [DE-1] at 10. Plaintiff further alleges that he “turned in grievances on 2-11-22, 2-17-22, 2-20-22, 2-23-22, 2-21-22, etc” and “sent certified letter [sic] to the grievance office on 2-21-22 with (7) grievances inside[,]” and that none were processed. Id. at 14-15. The letters were sent by certified mail “to Warden Denise Jackson and [North Carolina Commissioner of Prisons] Todd Ishee[.]” [DE-27] at 2. In their respective motions to dismiss [DE-22; -30] and supporting memoranda [DE-23; 31], defendant Faust and defendant Lowery argue that plaintiff “fail[ed] to exhaust his administrative remedies prior to filing his [c]omplaint” ([DE-23] at 1; [DE-31] at 1).
II. EVIDENTIARY HEARING AND CREDIBILITY DETERMINATION
On May 23, 2023, the undersigned conducted an evidentiary hearing in Raleigh, North Carolina on the issue of exhaustion of administrative remedies. See Hr'g Minute Entry [DE-59]. Plaintiff, proceeding pro se, appeared via video conference pursuant to the undersigned's order [DE-55] due to plaintiff's current incarceration at the Jessup Correctional Institution in Jessup, Maryland (“Jessup Correctional”). Defendants were represented by counsel. Plaintiff and counsel for defendants each made arguments regarding the motions to dismiss, and presented evidence and witnesses as described below.
A. Witnesses
At the hearing, defendants presented the testimony of three witnesses: (i) the Executive Director of the Inmate Grievance Board for the North Carolina Department of Public Safety (“NCDPS”), Kimberly Grande (“Director Grande”), who appeared in person; (ii) defendant Faust, who appeared by video conference, as authorized by the undersigned [DE-58]; and (iii) the Grievance Coordinator for Central Prison, Natosha Lynch (“Coordinator Lynch”), who appeared in person. Plaintiff was placed under oath and appeared as his own witness.
B. Credibility of Witnesses
Consistent with the court's directive, the undersigned assessed the credibility of the witnesses at the evidentiary hearing. A person commits perjury if “having taken an oath before a competent tribunal . . . in any case in which a law of the United States authorizes an oath to be administered, that he will testify . . . truly, . . . willfully and contrary to such oath states . . . any material matter which he does not believe to be true.” 18 U.S.C. § 1621. The issue presented is whether or not each witness believed his or her testimony regarding the material events in question to be true. See Sanderson v. United States, No. 7:10-CR-144-D-1, 2020 WL 3979686, at *7 (E.D. N.C. June 2, 2020), report and recommendation adopted, 2020 WL 3979657 (E.D. N.C. July 14, 2020).
“Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985); see also United States v. Marcavage, 609 F.3d 264, 281 (3rd Cir. 2010) (applying factors in Anderson in holding that trial court's crediting of the government's evidence was error on the grounds that “[t]here are simply too many inconsistencies and gaps in the testimony of the government's witnesses, not to mention substantial contradictions between that testimony and other evidence in the record”). Additional considerations can include the witness's motive to lie. See, e.g., United States v. Wilson, 624 F.3d 640, 665 (4th Cir. 2010).
The testimony of defendants' witnesses was largely consistent with the exhibits admitted at the hearing and other documents filed in this case. The court finds defendants' witnesses to be credible. The court notes that defendants' witness, Coordinator Lynch, became the grievance coordinator at Central Prison in May 2022 (Hr'g Tr. 50), and therefore was not the grievance coordinator at Central Prison at the time of the February 16 incidents or at the time plaintiff filed the instant suit. Accordingly, while the court finds Coordinator Lynch's testimony to be truthful, it has only limited value in illuminating the condition of the grievance process at Central Prison in the weeks following the February 16 incidents, which are the subject of the court's inquiry.
Plaintiff's testimony was largely consistent with the exhibits at the evidentiary hearing and other documents filed in this case. Though there appeared to be several factual inconsistencies in certain details of plaintiff's testimony, the court finds that these resulted from a faulty recollection, lack of access to relevant documentation, and misunderstanding of certain elements of the ARP, as opposed to an intention to mislead the court. This is discussed in greater detail below. Accordingly, the court finds that plaintiff did not commit perjury at the hearing.
C. Exhibits
1. Defendants' Exhibits
The court admitted the following seven exhibits offered by defendants (collectively “defendants' exhibits”) [DE-60]:
Pursuant to the court's May, 11, 2023 order [DE-55], defendants mailed copies of the seven exhibits to plaintiff at Jessup Correctional. At the evidentiary hearing, plaintiff confirmed that he had received each of the seven exhibits and had them during the hearing. Hr'g Tr. 7, 42-45.
Defendants' Exhibit 1 (“Exhibit 1”) is a copy of this court's May 9, 2022 order at Docket Entry 10. [DE-10].
Defendants' Exhibit 2 (“Exhibit 2”) is a copy of the Administrative Remedy Procedure (“ARP”) set out in the NCDPS Prisons Policy and Procedures Chapter: G Section: .0300. The NCDPS provides a three-step ARP for prisoner grievances. Moore v. Bennette, 517 F.3d 717, 721-22 (4th Cir. 2008). The portions of the ARP most relevant to the present inquiry are as follows:
Publicly available at https://www.ncdps.gov/documents/g0300-administrative-remedy-procedure (last visited August 11, 2023).
Under the ARP, inmates may submit a grievance on Form DC-410 by mail or hand delivery to the “Facility Head, designated screening officer or any other staff member.” ARP .0310 (a)(1)-(2). The screening officer then has “three days to determine whether the grievance should be accepted for review or rejected, based on compliance with certain technical rules.” Griffin, 56 F.4th at 331; ARP .0310 (a)(4).
At “Step 1,” “prison officials review the grievance and must inform the inmate of their decision within 15 days of its receipt.” Newell v. Fleming, No. 5:21-CT-03226-D, 2023 WL 2416676, at *1 (E.D. N.C. Jan. 24, 2023), report and recommendation adopted sub nom. Newell v. Stein, No. 5:21-CT-3226-D, 2023 WL 2416362 (E.D. N.C. Mar. 8, 2023); ARP .0310 (a)(5).
If the aggrieved inmate disagrees with the Step 1 decision, he can appeal the decision to Step 2. ARP .0310 (b)(1). At Step 2, prison officials must review the appealed grievance and are required to provide another written response within 20 days of the inmate's appeal from Step 1. ARP .0310 (b)(3). “If the prisoner is still dissatisfied, he may initiate the third step (“Step 3”) . . . [where] the North Carolina Secretary of Public Safety must review the grievance and issue a final decision. Newell, 2023 WL 2416676, at *1; ARP .0310 (c).
“[T]he grievance procedure bars an inmate from having more than one grievance pending at or before the ‘Step 2' review.” Griffin, 56 F.4th at 331; ARP .0304(b). If the inmate already has a grievance that has not completed Step 2 of the ARP, “the screening officer may return the grievance to the inmate with written notification on the DC-410 that it may be resubmitted when the current grievance in process completes Step 2.” ARP .0310 (a)(6) (emphasis added).
The ARP provides specific requirements for confidential grievances, which are submitted directly to the Commissioner of Prisons, including that an “inmate must clearly explain the nature of the complaint and the reasons for not following the regular grievance procedure.” ARP .0309. If the Commissioner of Prisons does not find the grievance to represent a confidential matter, “the grievance shall be returned to the inmate with instructions to submit it in accordance with the [standard grievance] procedure.” Id.
The ARP also provides specific requirements for emergency grievances. The ARP provides that emergency grievances apply to “matters which present a substantial risk of physical injury or other serious and irreparable harm to the grievant if regular time limits are followed.” ARP .0308(a).
Defendants' Exhibit 3-7 (“Exhibit 3” through “Exhibit 7”) are copies of grievances submitted by plaintiff. Of all the grievances that defendants submitted as exhibits, only Exhibit 5 directly relates to the February 16 incidents which are the subject of plaintiff's instant complaint. As discussed below, Exhibits 3, 4, 6, and 7 provide relevant context for the availability, in theory and practice, of the administrative remedy process at Central Prison.
2. Plaintiff's Exhibits
Plaintiff did not object to any of defendants' exhibits. Plaintiff did not submit any exhibits prior to the evidentiary hearing but adopted, at least in part, defendants' Exhibit 2 as his own. Hr'g Tr. 53. (“I want to present some of the evidence they presented, which is the grievance procedure, statement of -- the State of North Carolina . . . Department of Public Safety Prisons, the policy and procedure for the grievances and specifically chapters -- in parts 0308 dealing with emergency grievances, 0309 dealing with confidential grievances.”). In addition, plaintiff attached, as exhibits to his responses in opposition to defendants' motions to dismiss, various documents and sworn declarations, which the court has also considered in its analysis. See generally [DE-27-1]; [DE-34].
When asked about exhibits at the evidentiary hearing, plaintiff referenced the Federal Rules of Civil Procedure Rule 26, as well as the video camera recordings and certified mail logs from Central Prison. Hr'g Tr. 53-54 (“I would like the cameras, the -- the certified mail logs -- the certified mail logs that open he brings, the certified mail.”). The court clarified that the cameras and mail logs were the same sources that plaintiff had referenced as his “witness[es]” in his witness list and exhibit list ([DE-39] at 1) filed prior to the hearing. Plaintiff also stated, in his witness list and exhibit list, that he “really [does not] have any exhibits to submit because these [correctional officers] have been deliberately throwing away [his] paperwork and documents away.” [DE-39-1] at 1. On March 8, 2023, United States District Judge James C. Dever III rejected plaintiff's request for discovery of “video recordings relating to the incident and ‘any and all pictures taken of his injuries on [February 16, 2022]'” as premature “because the court has not yet issued a scheduling order providing for a period of discovery and the requested discovery is irrelevant to whether [plaintiff] exhausted his administrative remedies.” [DE-37] at 1.
With regard to plaintiff's references during the hearing and in his witness and exhibit list [DE-39] to the Central Prison certified mail log, to the extent that plaintiff intends, if at all, for the references to be construed as a motion to produce discovery, the court does not do so here. However, even if the references were construed as a discovery motion, the undersigned would deny the motion as moot. As described in this memorandum and recommendation, the court credited plaintiff's testimony and sworn declarations regarding the dates he sent correspondence related to the February 16 incidents.
III. FINDINGS OF FACT
A. Grievances that completed all three steps of the ARP
At the evidentiary hearing, Director Grande testified that between October 2021 and June 2022, five of plaintiff's grievances completed all three steps of the ARP. She also testified that two of these five grievances were filed in 2022, but none related to the February 16 incidents. Hr'g Tr. 23. The court credits Director Grande's testimony that five grievances completed all three steps of the ARP.
B. Updates and initial responses to grievances by prison officials
At the evidentiary hearing, plaintiff testified that he did not receive an initial response, as required by ARP .0307, to many of his grievances, including those submitted as defendants' exhibits. Hr'g Tr. 64; see also ARP .0307(b) (“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.”); Hr'g Tr. 19 (Director Grande testifying that an “offender is to receive a notice as to whether the grievance is accepted for processing and a response within three days.”). The court credits plaintiff's testimony that he did not receive an initial response, as required by the ARP, to certain grievances, including those submitted as defendants' exhibits. In support of this finding, the court notes defendant Faust's testimony that she was not aware of any receipt logs at Central Prison that are used for confirming or recording that an inmate receives a response to any grievance and that inmates are also not required to sign for their returned grievances. Hr'g Tr. 81. However, as evidenced by defendants' exhibits discussed below, plaintiff signed documents appealing multiple grievances from Step 1 to Step 2 and from Step 2 to Step 3. See [DE-31-7] at 7-8, [DE-31-8] at 4-5; see also Hr'g Tr. 88 (plaintiff admitting that he had signed the appeals forms in defendants' exhibits). Accordingly, plaintiff had periodic updates with respect to the status of at least certain grievances.
C. Alleged destruction of grievances and grievances receipts
At the hearing, plaintiff alleged, without any specific date or dates, that when his cell was searched by internal affairs, prison officials would take the carbon copies plaintiff had made of the grievances. Hr'g Tr. 75-76. Defendant Faust testified that when prisoners' property is taken for various reasons, the prisoners are permitted to review the inventory of their items and sign to acknowledge it or that, if a prisoner refuses to sign, two prison officials must witness the inventory form. Hr'g Tr. 79-80.
The court finds that plaintiff may have lost certain grievance receipts, at least in part, due to circumstances beyond his control, incident to cell searches and cell moves. However, based on the testimony of defendants' witnesses, the court does not find that there was a conspiracy or design by prison officials to destroy carbon copies of plaintiff's grievances or grievance receipts. The court has been able to construct a sufficiently fulsome picture of the timing and general contents of plaintiff's allegedly missing grievances from the documentary evidence in the record of this case, and the testimony provided at the evidentiary hearing, including plaintiff's testimony. Accordingly, the court finds that any loss or destruction of grievance receipts by prison staff, while deserving censure, does not impact the instant analysis of plaintiff's exhaustion of administrative remedies.
D. Timeline of grievance submissions
At the evidentiary hearing, plaintiff did not contest that he failed to complete the three steps of the ARP in response to February 16 incidents before filing the instant suit. See, e.g., Hr'g Tr. 58-59. However, plaintiff maintained that the grievance office would not process many of his grievances. Hr'g Tr. 62. Plaintiff testified that because the prison would not submit his grievances, he also sent certified letters explaining his grievances and difficulties in processing them to Warden Denise Jackson (“Warden Jackson”) and North Carolina Commissioner of Prisons, Todd Ishee (“Commissioner Ishee”). Hr'g Tr. 58. Based upon the testimony provided at the evidentiary hearing and existing documentary evidence, including defendants' exhibits and plaintiff's sworn declarations, the court makes the following findings regarding the timing, contents, and intended recipients of plaintiff's alleged grievance submissions:
• January 26, 2022: As documented by Exhibit 3, prison screening officials received plaintiff's grievance regarding an alleged sexual assault by a correctional officer, which is not the subject of the current complaint (the “January 26 grievance”). See also [DE-31-7]. The processing of this grievance would bar the acceptance of any further grievances until this grievance was resolved or completed Step 2 of the ARP. ARP .0304(b).
• February 9, 2022: Plaintiff appealed the January 26 grievance to Step 2 of the ARP (see DE-31-7] at 7) providing constructive awareness to plaintiff that he could not submit another grievance until the Step 2 review completed.
• February 16, 2022: The February 16 incidents giving rise to the instant case are alleged to have occurred. Compl. [DE-1] at 7-9; 11-13.
• February 17, 2022: As documented by Exhibit 5, prison officials received a grievance relating to the February 16 incidents (the “February 17 grievance”) and rejected it on the same day due to an active grievance, i.e., the January 26 grievance, still being in process. See also [DE-31-11]; [DE-27] (plaintiff's sworn declaration that on February 17, 2022, he turned in five grievances “concerning the [February 16, 2022] incident[s]”). The court credits plaintiff's testimony that this rejection was not communicated to plaintiff as required by ARP .0307. See Hr'g Tr. 64.
• February 21, 2022: The January 26 grievance completed Step 2 of the ARP on February 21, 2022, representing the first opportunity since January 26, 2022, where plaintiff could submit a new grievance to the grievance coordinators at Central Prison.
Plaintiff attempted to submit a grievance regarding the February 16 incidents on February 21, 2022. [DE-27-1] at 2. There is not a separate grievance form dated February 21, 2022 that appears in the record of this case, however, as documented by Exhibit 5, plaintiff mailed a letter to Commissioner Ishee on February 21, 2022, in which he described the February 16 incidents and the refusal of the grievance office to process plaintiff's grievances. Commissioner Ishee's office stamped this letter as received on February 25, 2022. Exhibit 5. The court finds that plaintiff reasonably believed this letter to be a confidential grievance in accordance with the ARP and “clearly explain[ed] the nature of the complaint,” i.e., the February 16 incidents, and the “reasons for not following the regular grievance procedure,” i.e., his contention that the screening office was not processing his grievances. See ARP .0309 (setting out the requirements for confidential grievances). There is no record of Commissioner Ishee's disposition of this grievance. There is no suggestion by any party that Commissioner Ishee found this grievance to be confidential in nature and processed it accordingly. If Commissioner Ishee did not find the grievance to
be confidential in nature, the court found no evidence that the grievance was “returned to [plaintiff] with instructions to submit it in accordance with the [standard grievance] procedure,” as required by the ARP. See ARP .0309.
• February 23, 2022: Plaintiff mailed letters containing five grievances to Commissioner Ishee and the Head Grievance Coordinator (the “February 23 five grievances letter”). [DE-27-1] at 2.
Plaintiff mailed a certified letter to Warden Jackson with seven grievances on February 23, 2022, with five labelled “Emergency Grievance” (the “February 23 seven grievances letter”). See [DE-27-1] at 4; see also ARP .0310(a)(2).
There is no record of the disposition of the February 23 five grievances letter or the February 23 seven grievances letter.
• February 27, 2022: Plaintiff mailed the instant complaint to the court. [DE-1-1].
• February 28, 2022: As documented by Exhibit 4, prison officials received a grievance (the “February 28 grievance”) originally dated February 15, 2022, regarding plaintiff's placement in a prison pod lacking certain amenities (such as television, telephones etc.). See also [DE-31-8]. This was the first grievance that prison officials processed after the February 16 incidents.
The court credits plaintiff's testimony that he sent certified letters with grievances to Commissioner Ishee on February 27 or 28, 2022. [DE-27] at 2; [DE-27-1] at 5.
• March 3, 2022: Plaintiff's instant complaint was filed with this court. Compl. [DE-1].
• March 18, 2022: As documented by Exhibit 4, the February 28 grievance completed Step 2 of the ARP on March 18, 2022, indicating that plaintiff could submit a new grievance. See also [DE-31-8] at 5. There is no record of plaintiff filing any grievance between this date and April 7, 2022, as discussed below.
• April 7, 2022: As documented by Exhibit 6, prison officials rejected plaintiff's grievance regarding his medical diet, due to an active grievance already being in
process. There is no record of prison officials actively processing any other grievance by plaintiff at this time.
• April 8, 2022: As documented by Exhibit 7, prison officials rejected plaintiff's grievance regarding unprocessed money orders, due to an active grievance already being in process. There is no record of prison officials actively processing any other grievance by plaintiff at this time.
Many, but not all, of defendants' exhibits at the evidentiary hearing were also filed as attachments to defendant Lowery's memorandum in support of his motion to dismiss. [DE-31]. The court has added citations to the relevant docket entries, where applicable.
While not impacting when plaintiff could submit a new grievance under the ARP, the court notes that the January 26 grievance completed Step 3 of the ARP on March 9, 2022. [DE-31-7] at 8.
As the January 26 grievance completed its review at some point on February 21, 2022 (see [DE-31-7] at 8), it is unclear what the appropriate response would have been to a grievance that the screening office received on February 21, 2022. However, plaintiff did not appeal the January 26 grievance from Step 2 to Step 3 of the ARP until February 22, 2022. See id. It would have been reasonable for plaintiff to assume that any grievance submitted on February 21, 2022, would at least potentially be subject to rejection due to the pendency of an active grievance.
As discussed in the analysis section below, whether plaintiff submitted a grievance on February 21, 2023 separate and apart from the letter he mailed to Commissioner Ishee on that same date, or whether they are one and the same, is not outcome determinative on the issue of exhaustion of administrative remedies.
The sheer number of grievances included in each letter suggests that some or all of them may have “requested a remedy for more than one incident” in contravention of the ARP. See ARP .0306(c)(4). For example, if plaintiff's letter to Warden Jackson included five emergency grievances and two “non-emergency” grievances, as plaintiff states, it is unlikely that they all relate to the same incident, specifically the February 16 incidents. Accordingly, to the degree such letters requested a remedy for more than one incident, the prison system would have been entitled to reject any such grievances under the ARP at “any level.” ARP .0306(c)(4). However, the court credits plaintiff's testimony that any such rejection was not communicated to plaintiff. Hr'g Tr. 71.
While not impacting when plaintiff could submit a new grievance under the ARP, the court notes that the February 28 grievance completed Step 3 of the ARP on April 3, 2022. See [DE-31-8] at 5.
V. APPLICABLE LAW
A. PLRA
The Prison Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 . . ., or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see Ross v. Blake, 578 U.S. 632, 638-42 (2016); Woodfordv. Ngo, 548 U.S. 81, 83-85 (2006). “The PLRA's ‘mandatory language means a court may not excuse a failure to exhaust, even to take [special] circumstances into account.'” Griffin v. Bryant, 56 F.4th 328, 335 (4th Cir. 2022) (alteration in original) (quoting Ross, 578 U.S. at 639). “Administrative exhaustion under the PLRA, however, is mandatory only if the grievance procedure is actually ‘available' to the prisoner.” Clewis v. Worley, No. 5:22-CT-03009-M, 2023 WL 2416668, at *5 (E.D. N.C. Mar. 8, 2023) (citing Ross v. Blake, 578 U.S. at 642). The “[unavailability] exception is meant to be narrow.” Wallace v. Baldwin, 55 F.4th 535, 543 (7th Cir. 2022) (internal quotations omitted).
There are three circumstances that make a given administrative remedy procedure “unavailable”:
(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 (quoting Ross, 578 U.S. at 643-44); see also Williams v. Carvajal, 63 F.4th 279, 290 (4th Cir. 2023) (setting out the three circumstances under Ross where an administrative remedy may be considered unavailable).
“Administrative exhaustion is ‘defined not by the PLRA, but by the prison grievance process itself.'” Hallinan v. Scarantino, No. 5:20-CT-3333-FL, 2022 WL 945590, at *6 (E.D. N.C. Mar. 29, 2022) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).
B. Burden of proof
Generally, the burden is on a defendant to plead and prove failure to exhaust administrative remedies as an affirmative defense. See Jones, 549 U.S. at 216-17; Wilcox v. Brown, 877 F.3d 161, 167 (4th Cir. 2017); Custis v. Davis, 851 F.3d 358, 361-63 (4th Cir. 2017). However, there is a circuit split on whether, upon a showing by defendants that a plaintiff failed to exhaust the administrative remedy process, the burden shifts to the plaintiff to prove that the administrative remedies were unavailable. See Lamb v. Kendrick, 52 F.4th 286, 294-95 (6th Cir. 2022) (noting that the Second, Third, Ninth, Tenth and Eleventh Circuits, find that, upon a showing by defendants that an administrative remedy procedure existed on paper, the burden shifts to the inmate to show that the remedies were in reality unavailable, while the Sixth and Seventh Circuit do not shift the burden and require the defendant to “present evidence showing that the plaintiff's ability to exhaust was not hindered.”) (quoting Surles v. Andison, 678 F.3d 452, 457 n.10 (6th Cir. 2012) (other citations omitted)).
Although the Fourth Circuit has not explicitly adopted a formal “burden shifting” framework, the court has implicitly required plaintiffs to put on some evidence about availability of the administrative remedy process. See Griffin, 56 F.4th at 336-38 (noting that plaintiff “makes a compelling case” regarding unavailability, but noting numerous deficiencies in the evidentiary record); Moss v. Harwood, 19 F.4th 614, 622 (4th Cir. 2021) (“[E]vidence of access to the grievance system conclusively refutes Moss's allegation that the jail's administrative remedies were not ‘available' to him” (emphasis added)); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (“The outcome of the present appeal depends in part on whether particular remedies were made unavailable to Moore by virtue of what Moore contends was the NCDOC's unwarranted refusal to consider his gout and retaliation grievances.”); Graham v. Gentry, 413 Fed.Appx. 660, 663 n.3. (4th Cir. 2011) (“[I]n order to show that a grievance procedure was not ‘available,' a prisoner must adduce facts,” but declining to “adopt the Second Circuit's ‘objective' test for determining whether an administrative remedy was available . . . because we conclude that the standard articulated in Moore is more than adequate to resolve cases of this nature.”).
A case applying a form of burden shifting regarding the availability of the administrative remedy procedure to an inmate is currently on appeal before the Fourth Circuit. See Tyson v. Gay, No. 5:19-CT-03315-M, 2023 WL 1797892, at *10 (E.D. N.C. Feb. 7, 2023) (citing the Third, Ninth and Tenth Circuit) appeal docketed, No. 22-6760 (4th Cir. Feb. 7, 2023) (“[P]laintiff fails to demonstrate that the Detention Center grievance procedure was “unavailable” to him.). Sister courts in this circuit have also found that the burden shifts to plaintiff to show that the administrative remedy was unavailable. See Grady v. Smith, No. 1:20CV54, 2023 WL 130802, at *13 (M.D. N.C. Jan. 9, 2023), report and recommendation adopted, No. 1:20-CV-54, 2023 WL 3743095 (M.D. N.C. Feb. 17, 2023) (“The burden of showing that administrative remedies were unavailable lies with the plaintiff.”) (quoting Mann v. Scott, Civil Action No. 0:14-3474, 2015 WL 5165198, at *4 (D.S.C. Sept. 1, 2015).
However, the court need not address the issue of burden shifting, because even taking the evidence in the light most favorable to the plaintiff, there is not sufficient evidence to find that the administrative remedy process was unavailable to plaintiff at the time he filed the instant suit for the reasons discussed below.
VI. ANALYSIS
Similar to the Fourth Circuit's findings in Griffin, here, the undersigned finds that the grievance procedures at Central Prison appear to suffer from numerous inconsistencies and deficiencies in theory and in practice. Griffin, 56 F.4th at 338 (“It is clearly unsettled on this record how the prison system's grievance procedure functions - on paper and in practice”). Despite these findings, as discussed below, a significant portion of the grievances included in defendants' exhibits, or referenced in plaintiff's sworn declarations, suffer from procedural deficiencies under the ARP that allow for proper rejection by grievance coordinators. Such deficiencies include an active grievance being processed at the time another was filed.
In addition, plaintiff appears to misunderstand the emergency grievance process. Plaintiff alleged in his filings that he filed “emergency grievances” “because they are very important and an Emergency and NCDPS policy state [sic] to do this if you already have a grievance in.” See [DE-27-1] at 3. Plaintiff further claimed that this “is NCDPS policy when you have more than one issue.” ([DE-27] at 1). According to the ARP, the function of emergency grievances is not to allow the processing of additional complaints while a previous complaint is pending, but rather to deal with “matters which present a substantial risk of physical injury or other serious and irreparable harm to the grievant if regular time limits are followed.” ARP .0308(a). The ARP indicates that this determination will be made by prison officials, not inmates. Id. The degree of medical urgency presented by plaintiff's injured hands and respiratory conditions, after he returned from the nurse's station (see [DE-10] at 3), could be a matter of debate. However, the court finds that Central Prison officials did not abuse their discretion to the extent they found any grievance by plaintiff regarding these injuries to not be an emergency grievance.
A. Alleged unavailability of the grievance process
Plaintiff does not contest that he failed to complete the three steps of the ARP, as described above, before filing suit but alleges that ‘‘the grievance office [would not] process [his] grievances.” Compl. [DE-1] at 10.
The court considers plaintiff's claims in light of the three categories of unavailability set out in Ross: (1) “when (despite what regulations or guidance materials may promise) [administrative procedure] operates as a simple dead end;” (2) when the administrative procedure is “so opaque that it becomes, practically speaking, incapable of use” or (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” See Ross, 578 U.S. at 643-44; see also Griffin, 56 F.4th at 335 (citations omitted). The court will address each of the three categories of unavailability.
1. Machination, misrepresentation, or intimidation
There are no allegations or evidence that Central Prison attempted to “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Griffin, 56 F.4th at 335 (citing Ross, 578 U.S. at 643-44). As described above, plaintiff's prolific use of the grievance process before, during, and after the incidents in question militates against any such finding. See Hr'g Tr. 66 (plaintiff noting that “[he] ha[s] a grievance history. [He] love[s] to file grievances if something is wrong. [He] know[s] . . . [he] exhaust[s] [his] grievances all the way to the last number”).
2. Simple dead end
Director Grande testified that five of plaintiff's complaints completed Step 3 of the administrative remedy process in between October 2021 and June 2022. Hr'g Tr. 23. Moreover, between January 26, 2022, and March 18, 2022, there were only five days when plaintiff did not have an active grievance at or before Step 2 of the ARP in process. See ARP .0304; [DE-31-7] at 2, 8; [DE-31-8] at 5. Unlike certain other cases where courts found the administrative process to be unavailable, there is no allegation that plaintiff was unable to get forms to complete his complaints. Cf. Gooch, 24 F.4th at 627 (noting that plaintiff alleged “that the correctional counselor refused to give him the necessary [grievance] form.”).
Exhibits on the record show that action was undertaken in attempts to resolve the issues that plaintiff raised in the five grievances that completed all three steps of the ARP. See e.g., [DE-31-7] at 1 (noting that an investigation appears to have been undertaken in response to plaintiff's sexual assault allegations); [DE-31-8] at 4 (providing a reasonable explanation for plaintiff's housing assignment). Plaintiff never alleges that the responses he received from the five complaints that completed all three steps of the ARP were unsatisfactory.
The court notes that plaintiff's grievances included in Exhibits 6 and 7, which were both unrelated to the February 16 incidents, may have been rejected without a justifiable basis. These events occurred after plaintiff initiated the instant lawsuit and there is no evidence, aside from plaintiff's general and conclusory allegations that Central Prison would not process his grievances, that other improper rejections occurred before plaintiff initiated the instant lawsuit. Accordingly, the court does not give significant weight to these specific mistakes occurring after plaintiff filed the instant suit as a part of the “unavailability” analysis. If the plaintiff had filed his lawsuit after these events occurred, the analysis might be different. See Goebert v. Lee Cnty., 510 F.3d 1312, 1324 (11th Cir. 2007) (“The time the statute sets for determining whether exhaustion of administrative remedies has occurred is when the legal action is brought, because it is then that the exhaustion bar is to be applied.”).
Accordingly, there is no indication that the grievance process at Central Prison categorically “‘operates as a simple dead end,' with prison officials ‘unable or consistently unwilling to provide any relief to aggrieved inmates.'” Griffin, 56 F.4th at 335 (citing Ross, 578 U.S. at 643-44). Plaintiff testified at the hearing that while prison officials had processed certain of his grievances, there were additional grievances he submitted that the prison had not processed. Hr'g Tr. 86. Furthermore, he testified that he “could not as a prisoner get [his] grievances processed dealing with . . . exposing a [sic] officer's abuse, because at Central Prison, they trying to shield everything that deals with officers' abuse at that prison.” Hr'g Tr. 58; see also 64 (plaintiff noting that his “grievances at Central Prison are not being processed when it relates to abuse and assaults and stuff like that”).
The Fourth Circuit has suggested in dicta that the inability to file certain categories of grievances may make the process unavailable with respect to that category. See Moss v. Harwood, 19 F.4th 614, 622 (4th Cir. 2021) (“[I]f there were record evidence to indicate, for instance, that plaintiff was able to use the grievance system on April 22 to raise issues regarding medical treatment but not disciplinary hearings, then we would have a different case.”) (citing Kaba v. Stepp, 458 F.3d 678, 685 (7th Cir. 2006)). Here, while plaintiff has generally alleged that the prison would not process “assault” or “abuse” grievances, his testimony did not identify any other grievances related to abuse that failed to benefit from the ordinary process of the grievance system.
The court notes that the January 26 grievance, which completed all three steps of the grievance process, alleges attempted sexual assault by a prison official, which would also represent a grievance related to abuse. See [DE-31-7] at 1, 2. However, as grievances related to sexual abuse benefit from additional safeguards under the ARP, see, e.g., ARP .0307(f)(1)(A); .0310(b)(2), the court does not credit the processing of this grievance as evidence contradicting plaintiff's allegation that grievances related to abuse are not processed.
Plaintiff's testimony includes a vague allusion to a grievance he sent by certified mail to an unspecified recipient alleging that on March 2, he “received stitches in [his] arm by somebody closing [his] arm in a tray slot.” Hr'g Tr. 69. However, the February 28 grievance was pending during this time and had not yet completed Step 2 of the ARP, and accordingly, any grievance related to the stitches submitted around that time could have been properly rejected under ARP .0304 (b). Moreover, while it does not explicitly mention the alleged abuse by defendant Lowery, plaintiff's February 17 grievance references the February 16 incidents. See [DE-31-11] at 1 (alleging that defendant “Lowery violated [plaintiff's] rights on camera.”). This grievance was processed and reviewed by screening officers. See id. The February 17 grievance was properly rejected per the ARP because a previous complaint had not yet completed Step 2 of the ARP. See ARP .0306 (b); see also [DE-31-7] at 7-8.
Accordingly, these grievances that reference or include abuse allegations were subject to rejection under express provisions of the ARP, which plaintiff disregarded. See Moore, 517 F.3d at 725 (“[T]o be entitled to bring suit in federal court, a prisoner must have utilized all available remedies ‘in accordance with the applicable procedural rules.'” (citing Woodford, 548 U.S. at 88)).
Furthermore, other Central Prison documentation contradicts a finding of an institutionwide conspiracy to destroy or conceal allegations of assault or abuse. For example, responses to subsequent grievances mention a “Use of Force Investigation that occurred on February 16, 2022,” further indicating that the prison officials at Central Prison did not categorically ignore or conceal the February 16 incidents. [DE-31-8] at 4. Similarly, plaintiff's letter to Commissioner Ishee describing the use of force incident and naming both defendant Lowery and defendant Faust was sufficiently documented and archived for defendants to produce it as a hearing exhibit. See Exhibit 5; Hr'g Tr. 84-85 (defendants' counsel noting that the letter came in a response to a request to the “case tracker system” and “given that it was related to some grievances that were filed, . . . it was just included within that batch that was relating to the February 17th grievance.”).
Accordingly, even taking the evidence in the light most favorable to the plaintiff, plaintiff has been unable to point to any evidence of a categorical failure to process grievances related to assaults or abuse in accordance with the ARP. Cf. Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (“The nonmoving party, however, cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.”).
3. Incapable of use due to opaqueness
The testimony and exhibits presented at the evidentiary hearing provided strong evidence that inmates do not receive all prescribed updates on their filed grievances, and, specifically, do not always, or potentially ever, receive the results of the initial screening on their DC-410 forms. The court notes an inherent ambiguity in the ARP on whether screening officers must advise inmates attempting to submit new grievances that they currently have an active grievance in the system that has not yet completed Step 2 of the ARP. Cf. ARP .0307(b) (“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.”) (emphasis added); ARP .0310(a)(6) (“[T]he screening officer may return the grievance to the inmate with written notification on the DC-410 that it may be resubmitted when the current grievance in process completes Step 2.”) (emphasis added).
The prison's failure to provide feedback complicates an inmates attempt to effectively utilize the grievance process. However, in this instance, even if plaintiff did not receive the DC-410 screening response for the February 17 grievance advising him that his complaint was rejected because an active grievance was in process (see [DE-31-11] at 2), he constructively knew that this must be the case. At no point did plaintiff allege that he was unfamiliar with or did not have access to a copy of the ARP. Cf. Hr'g Tr. 66 (plaintiff noting that “[he] ha[s] a grievance history. [He] love[s] to file grievances if something is wrong. [He] know[s] . . . [he] exhaust[s] [his] grievances all the way to the last number”). Even if he were unaware of certain provisions of the ARP, this would not make the administrative process unavailable to him. Williams v. Carvajal, 63 F.4th 279, 290 (4th Cir. 2023) (“Simple unawareness [of an administrative remedy], however, does not rise to the level of unavailability.”).
The ARP provides that new grievances may be filed once a pending grievance reaches Step 2. ARP .0304(b). Plaintiff signed an appeal of the January 26 grievance from Step 1 to Step 2 on February 9, 2022, which gave plaintiff constructive knowledge that a pending grievance had not reached Step 2. [DE-31-7] at 7. The January 26 grievance had twenty days to complete the Step 2 review before it became delinquent. See ARP .0307(f)(2). When plaintiff appealed his January 26 grievance to Step 3, he constructively knew that any complaints he submitted before February 21, 2022, would have been rejected under the ARP. See [DE-31-7] at 8; see also Carawan v. Solomon, No. 5:16-CT-3269-FL, 2020 WL 1491494, at *3 (E.D. N.C. Mar. 27, 2020) (“DPS's rule that plaintiff may only pursue one administrative grievance at a time does not render the procedure unavailable under the standard set forth above.”).
However, even if plaintiff had properly submitted a grievance related to the February 16 incidents on or after February 21, 2022, which was the first day he could do so, the Step 1 review could take up to 15 days. See ARP .0307 (f)(1). Yet, six days later, when plaintiff mailed his complaint on February 27, 2022, there was no reasonable basis to assume that the administrative remedy process was unavailable. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (“[T]he district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred.”). Similarly, plaintiff allowed no reasonable amount of time for Commissioner Ishee or Warden Jackson to respond to his letters at the time he filed his lawsuit. Plaintiff's declaration in the February 17 grievance that “I will be suing ASAP” ([DE-31-11] at 1) draws into question the good faith of plaintiff's attempts to exhaust the administrative remedies available to him before filing suit in this court.
The most glaring deficiency in Central Prison's processing of a grievance related to the February 16 incidents appears to be the improper response to plaintiff's letter to Commissioner Ishee dated February 21, 2022, which could be considered a confidential grievance under ARP .0309 for the reasons discussed above. Commissioner Ishee's office received this letter on February 25, 2022. If the Commissioner of Prisons determined that the complaint was not in fact confidential in nature, the response violated the ARP by not “return[ing] [the grievance] to the inmate with instructions to submit it in accordance with the [standard grievance review procedure].”
The failure to return plaintiff's confidential grievance with instructions to file was a violation of the ARP and could have served to obscure the process to plaintiff. The court, however, does not significantly weigh this fact in the instant unavailability analysis because plaintiff did not wait an appropriate amount of time to receive any such response before filing suit in this court. Specifically, plaintiff mailed his complaint for the instant suit on February 27, 2022, which is 11 days after the alleged February 16 incidents occurred and two days after Commissioner Ishee received plaintiff's letter. Plaintiff had 90 days to initiate the grievance process at Central Prison with respect to this incident (ARP .0306(c)(2)) and over three years under § 1983 in North Carolina until his statute of limitations expired. See Neal v. McNeil, No. 5:15-CT-3284-BO, 2018 WL 9849368, at *2 (E.D. N.C. Sept. 12, 2018), aff'd sub nom. Neal v. McClure-McNeil, 746 Fed.Appx. 211 (4th Cir. 2018) (noting a three-year statute of limitations for personal injury actions under 42 U.S.C. § 1983 in North Carolina in light of the analogous state statute of limitations).
The court notes that plaintiff filed additional documents on March 17, 2022, in response to this court's deficiency order. However, these documents do not allege any additional or amended facts, claims or defendants and are therefore not an amended or supplemental complaint. See Finfrock v. Jordan, 105 F.3d 660 (7th Cir. 1996) (noting that “a true amended complaint . . . [amends] the original complaint-and . . . a supplemental complaint add[s] new defendants and claims). Accordingly, they do not impact plaintiff's filing date for purposes of exhaustion even under legal interpretations that look to the filing date of supplemental or amended complaint as relevant for exhaustion analysis. See Jackson v. Fong, 870 F.3d 928, 935 (9th Cir. 2017) (“Exhaustion requirements apply based on when a plaintiff files the operative [supplemental or amended] complaint.”).
The ARP does not explain the implications of the initiation of a lawsuit for associated grievances that are still being processed. However, if prison officials were intending to return plaintiff's “confidential” grievance to him in accordance with the ARP, there would be little incentive to do so after plaintiff initiated the current lawsuit. “Rules of the form ‘negotiate now, litigate later' or ‘administrative remedies first, litigation second' reflect a belief that postponing suits induces people to concentrate their attention on negotiation or alternative dispute resolution, so that some fraction of the time parties will not need to litigate at all.” See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).
If there were evidence of egregious and pervasive examples of any of the three categories described in Ross, filing a complaint such a short time after the underlying incident might be excusable. However, while the court found evidence that certain elements of the grievance procedures at Central Prison fell short of the standards set out in the ARP, the court did not find evidence that any of these were sufficiently prohibitive to make the administrative remedy process unavailable to plaintiff at the time he filed this lawsuit. If plaintiff had waited for the repercussions of these deficiencies to come more fully to bear on his specific incident, the result may have been different.
B. Failure to exhaust administrative remedies
In sum, unlike the plaintiff in Griffin, plaintiff here has not made “a compelling case that the grievance procedure's overlapping rules and deadlines presented him with ‘a simple dead end.'” Griffin, 56 F.4th at 338. While certain aspects of the grievance process, as implemented at Central Prison with respect to the February 16 incidents, do raise concerns, plaintiff has deprived the court of the ability to evaluate the impact of these disfunctions by prematurely filing the instant lawsuit. Accordingly, the undersigned finds that plaintiff had not exhausted the administrative remedy at the time he filed his lawsuit, and that there is insufficient evidence to determine that any deficiencies in Central Prison's grievance administrative procedure, as implemented, made the grievance process unavailable to plaintiff at that time.
VII. CONCLUSION
For the reasons stated above, the undersigned finds that plaintiff has not exhausted his administrative remedies and, therefore, RECOMMENDS that the court GRANT defendants' motions to dismiss [DE-22; -30] and DISMISS plaintiff's complaint [DE-1] WITHOUT PREJUDICE.
According to the ARP, a grievance may be rejected if the inmate submits it more than 90 days after the alleged incident. See ARP .0306(c). As the ARP only allows, but does not require, dismissal if the inmate submits the grievance after 90 days, the undersigned RECOMMENDS that the court dismiss this complaint without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the respective parties or, if represented, their counsel.
The Clerk of Court is DIRECTED to send a copy of this Memorandum and Recommendation to the Warden of the Jessup Correctional Institution in Maryland in order to provide redundant delivery of the Memorandum and Recommendation to plaintiff.
Each party shall have until August 29, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections, and in no event later than September 5, 2023, whichever is earlier.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
SO ORDERED.