HUBBARD v. ROSEBORO

IN THE UNITED STATES DISTRICT COURT | FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EDWARD LORENZO HUBBARD, JR., ) Plaintiff, v. 1:21CV787 OFFICER T. ROSEBORO, et al., Defendants. MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter is before the Court on a motion to dismiss pursuant to Rules 12(b)(2) and (6) of the Federal Rules of Civil Procedute filed by Defendants Officer Roseboro, Officer Johnson, and Guilford County Jail (“GCJ”). (Docket Entry 17.) Plaintiff Edward Lorenzo Hubbard, Jr. filed a response. (Docket Entry 24.) Defendants’ primary argument is that Plaintiff failed to exhaust his administrative remedies as requited by the Prison Litigation Reform Act (““PLRA”). (See Docket Entry 18 at 4-19.)! In support of their motion, Defendants have submitted several affidavits and attachments, which contain information not referenced in the Complaint. (See Docket Entties 18-1 through 18-9.) For the following reasons, the Court recommends that Defendants’ motion be construed as a motion for summary judgment, and that summary judgment be granted in their favor. "Unless otherwise noted, all citations in this recommendation refer to the page numbers at the bottom right-hand corner of the documents as they appear in the Court’s CM/ECF system. I. BACKGROUND Plaintiff initiated this action against Defendants Roseboro, Johnson and the GCJ for violation of his Eighth Amendment tights while Plaintiff was housed as a pretrial detainee at the GCJ. (See Complaint, Docket Entry 2.)* Specifically, Plaintiff alleges that on May 24, 2020, Roseboro and Johnson both used excessive force by striking Plaintiff several times in his cell although he was “not resisting.” (Id. at 4.) As a result of the incident, Plaintiff was paranoid and fearful that he would be beat again by prison officials. (Id. at 5.) PlaintifPs face was swollen, he suffered cuts, and he hit his head against the bed and wall of the cell. id.) He was seen by medical staff, but his wounds were not treated. (Id.) In the initial Complaint, Plaintiff states that he did not file a grievance at the GC]. (dd. at 7.) When asked if the grievance process is complete, Plaintiff states that the GCJ “violates the rights of inmates by making inmates request a grievance. If they feel like your situation does not meet qualifications you[re] denied the grievance, which is a violation of civil liberties, and due process.” (Id.) When asked to state why he did not file a grievance, to state his efforts in informing prison officials of his claim, and to set forth additional information relevant to the exhaustion of his administrative remedies, Plaintiff wrote: So, I spoke with Captain and also contacted Prison Legal Services[.] I was denied [a] grievance, [GCJ] stipulates you request a grievance and its [to] their discretion if you qualify to [their] standards. 2 Defendants’ motion describes an “Amended Complaint” and “Supplement to Amended Complaint.” (See Docket Entry 18.) Plaintiff's original Complaint was filed (Docket Entry 2) and later filings were docketed as supplemental pleadings. (See Docket Entries 7, 8.) The undersigned will discuss all three filings herein. I did speak to Captain Johnson and was denied after which I became scated to move further [because] I was in fear of repercussions from staff and inmates. Once I was denied I contacted Prison Legal Services so that I could have it catalog[uled and filed. (Id. at 8.) After submitting the initial Complaint, Plaintiff filed two additional pleadings. First, he submitted a letter document which mostly discusses concerns beyond the May 24, 2020 excessive force incident and makes minimal reference to either Roseboto ot Johnson. (See Docket Entry 7 at 1-7.)3 Plaintiff does attach Inmate Request Forms (“IRF”), which all appear to be filled out by Plaintiff well over a year after the May 24, 2020 incident. (See at 8-13.) In Plaintiff's second supplemental pleading, he filed another Prisoner Complaint Form which looks similar to the original Complaint but clarifies that the claims against Defendants ate in their official and individual capacities. (See Docket Entry 8.) Plaintiff restates the alleged May 24, 2020 excessive force incident and the information regatding exhaustion of his administrative remedies. (See zd. at 5-9.) After Defendants’ motion for an extension of time to answer was granted, (see Docket Entry 10; Text Order dated 11/ 23/2021), Defendants filed the pending motion to dismiss. (Docket Entry 17.) In support of theit motion, Defendants first raise the affirmative defense > A portion of this document appeats to discuss a subsequent criminal proceeding related to the underlying May 24, 2020 incident. (Compare Docket Entry 7 at 1 (“I was manipulated to take the plea by Government officials . . . I was placed on trial for the same incident I was trying to sue the jail for.”) with Docket Entry 2 at 12 (“Hubbard was charged with malicious conduct by prisonet”’) and Docket Entry 18 at 4 n. 3 (“Plaintiff was convicted on October 12, 2021... in the Guilford County Superior Court of ‘Malicious Conduct by Prisoner’ pursuant to N.C. Gen. Stat. § 14-258.4 (a) for throwing utine at Officer Roseboro on May 24, 2020[.|”) and Docket Entry 18-1 at 3 (State Court Judgment Additional Offenses).) of failure to exhaust administrative remedies. (See Docket Entry 18 at 7-19.) The undersigned concludes that because there is no genuine issue of material fact concerning this issue, the Court need only to address this argument herein. II. DISCUSSION A. Relevant Standard Defendants’ motion to dismiss contends, in pertinent part, that the Court should dismiss Plaintiffs complaint for failure to exhaust his administrative remedies. (Id. at 7-19.) 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 detetmine whether the complaint is legally and factually sufficient. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Ath Corp. v. Twombly, 550 U.S. 544, 570 (2007). To sutvive a motion to dismiss under Rule 12(6)(6), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. 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 Mortg. 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 4 Although Defendants’ section of the brief concerning the argument on exhaustion of administrative remedies does not explicitly set out the Rule 16(b)(6) standard, it correctly notes that this issue should not be treated as a subject matter jurisdiction issue. (See Docket Entry 18 at 6 □□□□□ The undersigned here, sets forth the Rule 16(b)(6) standard Defendants otherwise set out in their brief, and further construes Defendants’ motion as a motion for summary judgment in light of Defendants’ materials referenced outside the pleadings. 4 □ consttues these facts in the light most favorable to the plaintiff,” but does not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of factual enhancement{,] .. . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Ine, 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted). In other words, the standard requires 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 telief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Igba/, 556 US. at 678, and Twombly, 550 U.S. at 557 ). Hete, in support of their motion, Defendants have submitted several affidavits and attachments, which contain information related to the GC] gtievance process and Plaintiff's gtievance history. (See Docket Entries 18-3 through 18-9.) Defendants rely upon such information to demonstrate that Plaintiff did not fully exhaust his administrative remedies regarding the allegations asserted against Roseboro and Johnson related to the May 24, 2020 incident. Because these documents contain information not referenced in the Complaint (and supplements thereto) and because the Court considers this evidence in disposing of the pending motion, Defendants’ motion to dismiss should be converted into a motion for summary judgment. See Fed. R. Civ. P. 12(d) (“‘If, on a motion under Rule 12(b)(6).. □ , matters outside the pleadings are presented to and not excluded by the court, the motion must treated as one for summaty judgment under Rule 56.”); see also 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 summaty judgment where the movant attached several exhibits supporting movant’s position which were not excluded by the court); Mons v. Lowe's Home Centers, 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 presented to and not excluded by the coutt, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.’”). When construing a motion to dismiss as a motion for summaty judgment, “[alll parties 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). “[IJhe term ‘reasonable opportunity’ requires that all patties be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment, with the consequent tight in the opposing party to file counter affidavits or pursue reasonable discovery.” Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (alteration, some internal quotation marks, and citation omitted). The Court finds that Plaintiff was afforded appropriate notice and reasonable oppottunity 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 Cir. 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 letter5 sent to him, which advised him: Defendant filed a Motion to Dismiss on December 21, 2021, which may or may not be supported by affidavits. You have the tight to file a 20-page response in opposition to this motion. Your failure to respond or, if appropriate, to file affidavits or evidence in rebuttal within the allowed time may cause the court to conclude □ that the defendant’s contentions are undisputed and/ot that you no longer wish to pursue the matter. Therefore, unless you file a response in opposition to the motion, ## és likely your case will be dismissed, or judgment granted in favor of the defendants. A response to a Motion to Dismiss must be filed within 21 days from the date of setvice of the Motion upon you. Any tesponse you file should be accompanied by a brief containing a concise statement of reasons for your opposition and a citation of authorities upon which you tely. You are reminded that affidavits must be made on personal knowledge, contain facts admssible in evidence and be made by one shown to be competent to testify. A false statement under oath or under penalty of perjury may be a crime punishable as provided by law. (Docket Entry 23) (emphasis added).¢ 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. ° A notice sent pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) generally advises a pro se plaintiff of his or her right to file a response to a dispositive motion. ° The undersigned notes that the Roseboro letter was sent twice to Plaintiff regarding Defendants’ motion to dismiss. The first was sent on December 22, 2021, at PlaintifPs previous location, (see Docket Entry 20), and once again on January 10, 2022 in response to Plaintiffs Notice of Change of Address, (see Docket Entry 23). Neither Roseboro letter was returned undeliverable to the Coutt. Further, Plaintiff filed a response to Defendants’ motion and attached documents to said response. (See Docket Entry 24.)’ Under the citcumstances, considering Defendants’ reliance on affidavits and exhibits and Plaintiff's response, and neither side’s indication tegatding a need for mote discovery, the Court concludes that Defendants’ motion should be treated as request for summaty judgment under Rule 56. Gay, 761 F.2d at 177 ; see also Merts v. Yarbrough, No. 1:21CV617, 2022 WL 2869048 , at *11 (M.D.N.C. July 21, 2022) (anpublished) (“Defendant relies on exhibits outside the Amended Complaint in support of his Motion. ... Accordingly, his Motion mote properly constitutes a request for summaty judgment than for Rule 12(b)(6) dismissal.”); Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989) (treating district coutt’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”). 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 matetial fact and the movant ts entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of establishing the absence of a genuine dispute of material fact, Celotex Corp. v. Catrett, 4T7 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 documentary 7 One document appears to be an attachment to Plaintiffs original Complaint. (See Docket Entry 24 at 6.) However, it appears Plaintiff has added hand-written notes on said document. (See id) evidence contradicting the assertion,” Nea/ v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (internal quotation matks omitted). “While the Court will view the facts and inferences drawn in the light most favorable to the nonmoving party, the party opposing the motion for summary 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 (E.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 mere existence of a scintilla of evidence” will not defeat a summaty judgment motion. Anderson, 477 U.S. at 252, 256 . Here, Defendants argue that they are entitled to dismissal of this case because Plaintiff did not exhaust his administrative remedies before filing this action. (Docket Entry 18 at 719.) In support of their motion, Defendants submitted various exhibits, including a declaration from Captain J. Sellers and an affidavit from Officer M. Diehl, both of the Guilford County ShetifPs Office (“GCSO”). (See Affidavit of Officer M. Diehl, Docket Entry 18-3; Declaration of Captain J. Sellers, Docket Entry 18-8.) Attaching a copy of the GCSO “Inmate Handbook” in effect during all relevant times (see Sellers Decl. {] 2) and relying on such, Captain Sellers avers that the gtievance policy and procedure is verbally explained to all inmates, including [Plaintiff], during the orientation process that takes place during the first few days following an inmate’s arrival at the Jail: All inmates, including [Plaintiff], are also informed that a copy of the Inmate Handbook contains a written description [of] the gtievance policy and procedure, and that the Inmate Handbook is available in all inmate housing units to tead and use, upon fequest. Specifically, the written desctiption of the gtievance procedure and policy is found at pages 27 - 29 of [the attached Inmate Handbook]. (Id. 3. (emphasis in original).) Captain Sellers further explained that inmates may submit written requests to GCSO staff either (1) “electtonically through computer kiosks located in each housing unit,” or (2) “in handwriting by asking their Floor Officer for a[n IRF].” da. | 5.) While inmates in a disciplinaty status have no access to the electronic kiosks, they could still submit paper IRFs. (Id.) The GCSO tetains copies of both electronic grievance requests and the paper IRFs while inmates also receive a copy of their paper IRFs “to maintain for their own records.” (Id. §] 6.) Captain Sellers further explained the grievance process as described in the Inmate Handbook. (Id. J 7-8.) Informal resolution of inmate concerns is usually attempted first. (Id. J 7.) However, if unsuccessful, the inmate “may submit a request for assistance in tesolving the complaint. These requests can be submitted electronically via a kiosk or in handwriting via the paper IRF.” (Id) A response is provided by “a higher-ranking Detention Staff Member.” (Id.) “If the inmate is not satisfied with the response to his or her electronic ot handwritten request, then the inmate must request a Grievance Form. Requests for Grievance Forms can also be submitted electronically via a kiosk or through a handwritten IRF.” (d.) Captain Sellers further states that: An inmate’s request for a Grievance Form will be reviewed by Detention Staff. If the inmate has previously attempted to resolve the complaint (albeit unsuccessfully) . . . and identifies a complaint that is subject to the grievance process . . ., the inmate will be issued a Grievance Form by the Shift Commander or Classification/Grievance Officer, who shall affix a date/time stamp to the Grievance Form. All forms associated with the Grievance Policy are produced and distributed to inmates in — 10 — “carbon copy” format, allowing the inmate to retain for his/her tecotds a copy of each form submitted as a part of this process. (Id. { 8.) The Inmate Handbook sets out matters which an inmate may file a grievance inchiding “actions of Jail Staff or other inmates.” (See id. 9; see also Docket Entry 18-9 at 2829.) Regarding the timing of grievances, “an inmate must submit his/her Grievance Form within three days from the date of the incident complained of, or within three days of learning that grounds for a complaint exist.” (Sellers Decl. | 10.) Also, “[a] grievance will . . . be deemed timely if the inmate initiates the grievance process . .. within three days of the incident complained of and then submits his/her Grievance Form ‘within three days of receiving that form from the Jail’s Staff” Ud.) After receiving the grievance form, the Classification/Grievance Officer will forwatd it to the Division Commander, who “has twenty-one days to respond to the grievance.” (Id. { 11.) If dissatisfied with the response from the Division Commander, the inmate can then appeal to the Bureau Commander. (Id. 12.) The Inmate Handbook indicates that “[t]he tesponse ftom the Bureau Commander shall be the final step in the appeal process.” (Docket Entry 18-9 at 29.) As to medical requests, inmates may request a sick call form “from the nutse duting medical rounds.” (Sellers Decl. §[ 13; see also Docket Entry 18-9 at 21.) ‘Detention Officers do not provide or receive sick call forms.” (Sellers Decl. { 13; see □□□□ Docket Entry 18-9 at 21-22.) Although the Inmate Handbook was updated, Captain Sellers contends that the grievance procedures that were effective April 30, 2019, were nearly identical to procedures effective during the separate petiods of incarceration that Plaintiff experienced — 11 — throughout his time at the GC] between October 6, 2019, and November 16, 2021. (Sellers Decl. J 14.) Officer M. Diehl, “the GCSO’s Court Liaison Officer,” also provided an affidavit in suppott of Defendants’ Motion. (Docket Entry 18-3.) Officer Diehl “maintain[s] records of the [IRFs] and Inmate Grievance Forms at the [GCJ].” (Id. 41.) He personally searched through GCJ records and attached to his affidavit complete copies of all handwritten, paper IRFs in the possession of the GCSO that were submitted by Plaintiff at the GCJ since the date of Plaintiffs first booking on Februaty 28, 2019 through the date of his most recent release on November 16, 2021. (Id. 9 3, 5.) The exhibit includes 3 IRFs all dated in October 2021. (See Docket Entry 18-4.) Officer Diehl notes that three of the paper IRFs attached to Plaintiffs supplemental pleading “were not archived” at the GCJ. (Diehl Aff. {| 6; see □□□□ Docket Entry 7 at 8, 10, 11.) Officer Diehl also attached “true, accurate, and complete copies of all electronicallysubmitted kiosk requests submitted by Plaintiff at [the GCJ]” between February 28, 2019 and November 16, 2021. (Diehl Aff. 7.) “This exhibit consists of 51 pages and the requests have been placed in chronological order.” (Id) Officer Diehl also attached “the only Grievance Form issued to Plaintiff’ between February 28, 2019 and November 16, 2021. (Id. 8.) It was issued on October 4, 2021 (see Docket Entry 18-6), but “Plaintiff refused to sign acknowledging receipt of the Grievance Form and never filed or returned it.” (Diehl □□□□ 8.) Thus, upon review of the above-mentioned documents attached to Officer Diehl’s affidavit, he “confirm[ed] that... Plaintiff never requested a Grievance Form . . . concerning — 12 — the May 24, 2020 incident’ nor did he “file[] a Grievance Form concerning the May 24, 2020 incident.” (Id. §] 9 (emphasis omitted).) In fact, per Officer Diehl’s review, none of the first three exhibits to his affidavit, “nor the 6 pages of IRFs attached” to Plaintiffs first supplemental pleading relate to the May 24, 2020 incident. Ud.) In response to Defendants’ motion, Plaintiff in pertinent part and in cursory fashion, simply states, “I was denied a gtievance [and] mistreated as well.” (Docket Entry 24 at 3.) Defendants filed a reply contending that “[i]f a pro se inmate Plaintiff could defeat a Motion to Dismiss based on nothing more than the mete allegation that he/she did not receive a grievance, then the PLRA’s exhaustion requirement would be rendered meaningless.” (Docket Entry 25 at 3.) Failure to Exhaust Administrative Remedies . The PLRA tequites inmates to properly exhaust administrative remedies before filing civil actions challenging the conditions of their confinement. See Woodford v. Ngo, 548 U.S. 81, 84 (2006); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). The exhaustion requirement applies “to all inmate suits about prison life, whether they involve general circumstances of patticulat episodes, and whether they allege excessive force or some other wrong.” Porter v. Nuss, 534 U.S. 516, 532 (2002). It is well-settled by now that Section 1997e’s exhaustion requirement is mandatory. See Jones v. Bock, 549 U.S. 199, 211 (2007); see also Woodyjord, 548 U.S. at 90-91 (stating that the PLRA requires “proper exhaustion,” which “demands compliance with an agency’s deadlines and other critical procedural rules”); Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674 , 676-77 (4th Cir. 2005) (citing Porter, 534 U.S. at 524 ). The defendant beats the burden of establishing that an inmate has filed to exhaust his or her — 13 — administrative remedies. Jones, 549 U.S. at 216 . Moreover, the Court recognizes that a ptisonet’s failure to exhaust administrative remedies may be excused when prison officials hinder, delay, or othetwise prevent prisoners from availing themselves of administrative procedures. See Hill v. Haynes, 380 P. App’x 268, 270 (4th Cir. 2010). The PLRA exhaustion requirement is satisfied when an inmate “ha[s] utilized all available remedies ‘in accordance with the applicable procedural rules,’ so that prison officials have been given an opportunity to address the claims administratively.” Moore, 517 F.3d at 725 (quoting Woodford, 548 U.S. at 88 ). Therefore, “the relevant prison’s grievance procedutes determine the steps that a prisoner must take to meet his exhaustion obligations.” Mens, 2022 WL 2869048 , at *11 (citation omitted). Ultimately, “[b]ecause prisoners must comply with the applicable grievance policy, they fail to properly exhaust [their administrative remedies] when they miss grievance policy deadlines.” (Id) _A review of Plaintiffs Complaint, supplemental pleadings, and the exhibits attached to Defendants’ motion demonstrates that Plaintiff did not exhaust his administrative remedies. The evidence demonstrates that Plaintiff never requested a Grievance Form via a handwritten, paper IRF or by kiosk request concerning the May 24, 2020 incident involving Roseboro and Johnson that is the subject of this lawsuit. Plaintiff also never filed a Grievance Form concerning the May 24, 2020 incident. Furthermore, none of the unarchived IRFs attached to Plaintiff's supplemental pleading relate to the May 24, 2020 incident involving Roseboro or Johnson. (See Docket Entry 7 at 8, 10, 11.) While Plaintiff does not dispute that he did not file a grievance, he instead alleges and argues that he was denied his request for a Grievance Form regarding the subject incident that — 14 — occutted on May 24, 2020. (See Docket Entry 2 at 7-8; Docket Entry 7 at 3, 7; Docket Entry 8 at 8-9; Docket Entry 24 at 3.) However, there is no documented request for a Grievance Form on ot within three days of the May 24, 2020 incident, or within three day of a response to a related IRF as tequited by the Inmate Handbook. (See Docket Entry 18-9 at 28 (“The inmate must file the grievance within three (3) days from the date of the incident, the discovery of the incident, when they reasonably should have discovered the incident, giving tise to the complaint, or within three (3) days of receipt of a response to an inmate request form.”).) Rather, the first time Plaintiff documented a request for a grievance was on June 27, 2020 (see Docket Entry 18-5 at 35), approximately a month after the May 24, 2020 incident, and according to Officer Diehl, did not relate to the May 24, 2020 incident but “rather an incident where Plaintiff failed to follow orders and was allegedly not afforded the opportunity to write a statement before his disciplinary hearing concluded.” (Diehl Aff. { 10; see a/so Docket Entry 18-7,) : Furthermore, the only Grievance Form issued to Plaintiff was on October 4, 2021, well over a yeat after the May 24, 2020 incident, and that grievance form was sought to grieve a sepatate alleged assault incident. (See Diehl Aff 8; Docket Entry 18-4 at 1; Docket Entry 18-6.) In any event, “Plaintiff refused to sign acknowledging receipt of the Grievance Form and never filed or returned it.’ (Diehl Aff. 8.) Despite Plaintiffs contentions that he was denied his ability to grieve the May 24, 2020 incident, he has produced no evidence of such even though “[ajll forms associated with the Grievance Policy are produced and distributed to inmates in ‘carbon copy’ format, allowing the inmate to retain for his/her records a copy of each form submitted as a part of th[e] process.” (Sellers’ Decl. § 8.) — 15 — Ultimately, there is no evidence that Plaintiff completed or appealed any grievances related to the May 24, 2020 incident, nor is there evidence that Defendants hindered or interfered with Plaintiffs ability to exhaust his administrative remedies. Because there is no genuine issue of material fact as to whether Plaintiff has exhausted his administrative remedies, Defendants’ motion should be granted, and Plaintiffs Complaint (and supplements thereto) should be dismissed without prejudice.® HiIl. CONCLUSION For the rfeasons stated herein, IT IS HEREBY RECOMMENDED ‘that Defendants’ Motion to Dismiss (Docket Entry 17) be converted to a Motion for Summary Judgment, and be GRANTED, to the extent that Plaintiffs Complaint (and supplements thereto) be dismissed without prejudice for failure to exhaust administrative remedies. Joe L. Webster United States Magistrate Judge August 18, 2022 Durham, North Catolina 8 Bven if Plaintiff had exhausted his administrative remedies, the Complaint would still be subject to dismissal against the GCJ because it is not an entity capable of being sued in federal court. See Willingham v. Buncombe Cnty. Jail, No. 1:19-CV-59-FDW, 2019 WL 1331753 , at *1 (W.D.N.C. Mar. 25, 2019) (unpublished) (“[I]he Buncombe County Jail is not a legal entity capable of being sued, nor is it a ‘person’ within the meaning of 42 U.S.C. § 1983 .”); Ellenburg v. Henderson Cnty. Jail, No. 1:14-CV290-FDW, 2015 WL 2127229 , at *4 (W.D.N.C. May 6, 2015) (unpublished) (“[IJhe Henderson County Jail is not a distinct legal entity capable of being sued.”). — 16 —