Ryricka Custis v. Keith Davis, 2017 U.S. App. LEXIS 5147

Background

Custis, an inmate missing toes on his right foot, was required by prison medical staff to have a bottom bunk; he was moved to an upper-tier cell and fell ascending stairs on September 2, 2014.
He filed an Informal Complaint (9/11/2014) which was denied (9/17/2014); he submitted a Regular Grievance (9/18/2014) received 9/25/2014 and initially rejected for insufficient information.
Custis amended and resubmitted; the Grievance Office denied the Regular Grievance as untimely on 10/1/2014, treating the 8/18/2014 transfer date as the trigger for the 30-day filing window.
Custis attempted to appeal to the Regional Ombudsman but mailed to an incorrect Richmond address listed in the statewide materials; his appeal was returned and then received by the correct office but rejected as untimely.
The district court sua sponte ordered proof of exhaustion and dismissed Custis's complaint for failure to exhaust administrative remedies; Custis appealed.
The Fourth Circuit vacated and remanded, holding the district court erred by sua sponte resolving exhaustion under the standards established in Jones v. Bock and related precedent.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court may sua sponte dismiss for failure to exhaust when exhaustion not apparent on the face of the complaint	Custis argued his pleadings and submitted documents could show attempted exhaustion and that some remedies might have been unavailable to him	Defendants argued the complaint and record showed failure to follow the grievance timeline and therefore dismissal was proper	Court held district court erred: courts generally may not sua sponte dismiss for PLRA exhaustion when failure to exhaust is not evident on the complaint's face
Whether providing the inmate an opportunity to address exhaustion allows sua sponte dismissal	Custis argued an opportunity to respond is not a substitute for the defendant bearing the burden as an affirmative defense	Defendants relied on pre-Jones Fourth Circuit decisions allowing dismissal after giving inmate an opportunity to respond	Court held the pre-Jones exception (allowing sua sponte dismissal after giving only an "opportunity to address") is inconsistent with Jones and does not survive post-Jones precedent
Whether record supports a determination that administrative remedies were available and unexhausted	Custis argued procedural ambiguities and prison errors (misleading address, unclear trigger date) may have made remedies unavailable	Defendants argued Custis missed clear procedural deadlines and remedies remained available	Court did not decide on exhaustion merits due to incomplete record; remanded for further fact-finding
Whether the district court properly shifted burden to plaintiff to prove exhaustion sua sponte	Custis argued burden remained with defendants as an affirmative defense	Defendants argued plaintiff failed to demonstrate exhaustion when ordered to produce documentation	Court held shifting burden via sua sponte order was improper; defendants must raise exhaustion as an affirmative defense

Key Cases Cited

Jones v. Bock, 549 U.S. 199 (PLRA exhaustion is an affirmative defense; inmates need not plead exhaustion)
Moore v. Bennette, 517 F.3d 717 (4th Cir. 2008) (defendant-raised exhaustion may be resolved after giving inmate opportunity to respond)
Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674 (4th Cir. 2005) (rare instances where dismissal is proper if failure to exhaust is apparent on the face of the complaint)
Talbot v. Lucy Corr Nursing Home, 118 F.3d 215 (4th Cir. 1997) (standard of review for dismissal for failure to exhaust)
Ross v. Blake, 136 S. Ct. 1850 (availability of administrative remedies depends on whether internal procedures are truly available to the prisoner)
E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of Educ., 773 F.3d 509 (4th Cir. 2014) (de novo review of exhaustion determinations)