Byrd v. Stirling, 144 F. Supp. 3d 803

Plaintiff, a diabetic inmate at Manning Correctional Institution, sued alleging the prison served food incompatible with his disease and sometimes expired or rotten food.
Plaintiff and five others initially submitted a group letter; the Clerk treated it as a complaint and the magistrate ordered separate actions; plaintiff filed his individual complaint on a court form for prisoner civil-rights claims.
On the complaint form plaintiff answered only that a grievance procedure exists but left subsequent exhaustion questions blank; magistrate issued special interrogatories asking about grievance steps and plaintiff replied that the institution had no grievance program and that he used an informal kiosk complaint.
Magistrate Judge McDonald issued an R & R recommending dismissal without prejudice for failure to exhaust administrative remedies, stating plaintiff needed to file a formal Step 1 grievance to exhaust.
After the R & R, plaintiff submitted a Step 1 grievance (denied) and then objected to the R & R, arguing exhaustion; the objection and Step 1 form were filed slightly late.
The district court reviewed the record, exercised its discretion to consider the late submission, and concluded plaintiff failed to complete the prison’s multi-step grievance process (Step 1 and Step 2) before filing suit; it overruled the objection and dismissed the complaint without prejudice and without service.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff exhausted administrative remedies under the PLRA before filing suit	Plaintiff contends his informal kiosk complaints and later Step 1 (filed after R&R) show exhaustion	Plaintiff did not complete required Step 1 and Step 2 grievance levels before filing; Step 1 was filed after suit	Court held plaintiff failed to exhaust (Step 1/Step 2 not completed pre-suit) and dismissed without prejudice
Whether court may consider late objection and post-R&R evidence when addressing exhaustion sua sponte	Plaintiff requested the court consider his late objection and attached Step 1 grievance to show exhaustion	The R&R was served and objection was slightly late; normally court may review only for clear error and need not consider new evidence	Court exercised discretion to consider the late materials but still found no exhaustion and overruled the objection

Mathews v. Weber, 423 U.S. 261 (1976) (magistrate judge’s report and recommendation has no presumptive weight; district court makes final determination)
Thomas v. Arn, 474 U.S. 140 (1985) (failure to object to magistrate recommendations is taken as agreement; limits de novo review)
Jones v. Bock, 549 U.S. 199 (2007) (failure to exhaust is an affirmative defense; plaintiff need not plead exhaustion)
Anderson v. XYZ Corr. Health Servs. Inc., 407 F.3d 674 (4th Cir. 2005) (PLRA requires exhaustion; district court may sua sponte raise dismissal for failure to exhaust where apparent or after giving inmate opportunity to address issue)
Moore v. Bennette, 517 F.3d 717 (4th Cir. 2008) (complaint may be dismissed for nonexhaustion if inmate is given opportunity to address exhaustion)
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir. 2005) (standards for district court review of magistrate recommendations)
Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999) (inmate may not exhaust administrative remedies during pendency of federal suit)
Hentosh v. Old Dominion Univ., 767 F.3d 413 (4th Cir. 2014) (unpublished Fourth Circuit opinions inconsistent with published precedent are neither controlling nor persuasive)