Rocky Johnson v. EVA FIELDS, Nurse

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7814
ROCKY JOHNSON,
Plaintiff - Appellant,
v.
EVA FIELDS, Nurse; DIANE RAY, Transform Health; TABIATHA
BRUNER, Transform Health; SCOTT ALLEN, Captain; LT. GOULD;
DAVID BISHOP, Lt.; RYAN P. ZABLOUDIL; COX; RAY; WATKINS;
BILL SALYERS, Captain,
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-00038-FDW)
Submitted: April 30, 2015 Decided: June 30, 2015
Before WYNN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Rocky Johnson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Rocky Johnson appeals the district court’s order denying
relief in his 42 U.S.C. § 1983 (2012) action. The district
court dismissed his claim for deliberate indifference to serious
medical needs with prejudice for failure to state a claim and
dismissed his remaining claims, which included being prohibited
from possessing his Bible for a period of 60 days (“Bible
claim”), being deprived of the ability to write letters for the
same period (“correspondence claim”), and being denied a shower
and change of clothes for a period of 12 days (“shower claim”),
among other claims, without prejudice for failing to exhaust
administrative remedies. We affirm in part, vacate in part, 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 we review 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 a § 1983 action. 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).

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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 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).
As to his Bible claim, correspondence claim, and shower
claim, we conclude that Johnson’s failure to exhaust is not
clear from the face of the complaint and associated pleadings.
These claims relate to the sanctions Johnson received following
a disciplinary hearing. The sanction decision detailed the
administrative steps a prisoner must take prior to filing a
complaint with the court system when dissatisfied with the
hearing or sanction. Johnson has made a prima facie showing
that he exhausted these steps. Thus, we vacate the district
court’s dismissal without prejudice for failure to exhaust as to
these claims.

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We review de novo dismissals for failure to state a claim
under 28 U.S.C § 1915A(b)(1) (2012), “applying the same
standards as those for reviewing a dismissal under Fed. R. Civ.
P. 12(b)(6).” De’Lonta v. Angelone, 708 F.3d 520, 524 (4th Cir.
2013). “The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, a Rule 12(b)(6) motion
does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.” Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation
marks and brackets omitted). As a result, to survive such a
motion, a complaint’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level” and have
“enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “In assessing the complaint’s plausibility, we accept
as true all the factual allegations contained therein.”
De’Lonta, 708 F.3d at 524.
“[D]eliberate indifference to the serious medical needs of
a pretrial detainee violates the due process clause.” Young v.
City of Mount Ranier, 238 F.3d 567, 575 (4th Cir. 2001). In
order to make out a prima facie claim of deliberate
indifference, Johnson must allege “that the defendants actually
knew of and disregarded a substantial risk of serious injury to

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[him] or that they actually knew of and ignored [his] serious
need for medical care.” Id. at 575-76.
We conclude that Johnson alleged in his complaint a prima
facie case of deliberate indifference to serious medical needs.
Johnson pleaded facts that showed the Defendants were on notice
as to his medical need but delayed treatment for two months.
White by White v. Chambliss, 112 F.3d 731, 737 (4th Cir. 1997)
(“A claim of deliberate indifference . . . implies at a minimum
that defendants were plainly placed on notice of a danger and
chose to ignore the danger notwithstanding the notice.”); see
also Smith v. Smith, 589 F.3d 736, 739 (4th Cir. 2009) (“[M]ere
delay or interference can be sufficient to constitute a
violation of the Eighth Amendment.”). Johnson’s allegations
further raised a factual question as to whether he had a medical
need that was “serious.” Iko v. Shreve, 535 F.3d 225, 241 (4th
Cir. 2008) (“[A] serious medical need is one that has been
diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” (internal quotation marks
and alterations omitted)). Thus, dismissal of this claim was
premature.
Accordingly, we vacate the judgment of the district court
dismissing without prejudice the Bible and correspondence claims
against Defendants Allen and Bishop and the shower claim against

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Defendants Allen, Bishop, and Gould. We further vacate the
district court’s dismissal with prejudice of Johnson’s claim of
deliberate indifference to serious medical needs against
Defendants Salyers and Diane Ray. As to the remaining claims
and Defendants, we affirm the district court’s dismissal without
prejudice. We remand for further proceedings consistent with
this opinion but express no opinion about the merits of
Johnson’s claims.
We deny Johnson’s motion to appoint counsel. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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