UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-6707

CORNELIUS MAURICE COREY,

Plaintiff – Appellant,

v.

FAYE DANIELS; MICHAEL T. GIBBS; ERNEST RIGGS; ALICE 

MUSSARI; DARRELL HOPKINS,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior

District Judge. (5:14-ct-03265-F)

Submitted: September 24, 2015 Decided: October 6, 2015

Before DUNCAN, AGEE, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Cornelius Maurice Corey, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Cornelius Maurice Corey appeals the district court’s order 

dismissing his 42 U.S.C. § 1983 (2012) complaint as frivolous 

pursuant to 28 U.S.C. § 1915(e)(2)(B) (2012), and dismissing his 

amended claims without prejudice for failure to exhaust. 

Because we conclude that the amended claims were dismissed 

prematurely, we vacate in part and remand for further 

proceedings.

“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); Porter v. 

Nussle, 534 U.S. 516, 532 (2002). 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 
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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 is 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 failure to exhaust 

the amended claims is not clear from the face of Corey’s amended 

complaint and attachments, which include copies of a grievance 

and related documents. Further, there is no indication that 

Corey was given an opportunity to respond regarding exhaustion. 

Accordingly, we vacate the district court’s dismissal of the 

amended claims and remand for further proceedings consistent 

with this opinion. We express no opinion regarding the merits 

of the claims. We affirm the dismissal of the claims set forth 

in the original complaint for the reasons stated by the district 

court. Corey v. Daniels, No. 5:14-ct-03265-F (E.D.N.C. Apr. 27, 

2015). Finally, we dispense with oral argument because the 

facts and legal contentions are adequately presented in the
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materials before this Court and argument would not aid the 

decisional process.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED