Andrew Kilpatrick v. Danny Hollifield

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7351

ANDREW TAB KILPATRICK,

Plaintiff - Appellant,

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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 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). 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 establish a prisoner’s failure to exhaust. Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008). A district court

2
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 Kilpatrick’s complaint and

associated pleadings. Particularly, it is unclear whether the

detention center that housed Kilpatrick required further

administrative steps beyond filing the inmate grievance and

request forms Kilpatrick apparently filed. 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. We express no opinion about

the merits of Kilpatrick’s 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