                              UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.
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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