                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-7351


ANDREW TAB KILPATRICK,

                Plaintiff - Appellant,

          v.

DANNY HOLLIFIELD, Captain at Clay County Detention Center;
CLAY COUNTY DETENTION & MEDICAL STAFF,

                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-00022-FDW)


Submitted:   January 28, 2015             Decided:   February 3, 2015


Before GREGORY, AGEE, and THACKER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Andrew Tab Kilpatrick, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

            Andrew        Tab       Kilpatrick     appeals       the     district       court’s

order dismissing without prejudice his 42 U.S.C. § 1983 (2012)

action for failure to exhaust administrative remedies.                                  Because

we conclude the action was dismissed prematurely, we vacate 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 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).     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 establish a prisoner’s failure to exhaust.                                   Moore v.

Bennette, 517 F.3d 717, 725 (4th Cir. 2008).                             A district court

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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).

             Our review of the record indicates that the failure to

exhaust is not clear from the face of Kilpatrick’s complaint and

associated pleadings.              Particularly, it is unclear whether the

detention       center      that     housed       Kilpatrick      required       further

administrative         steps   beyond      filing    the    inmate       grievance    and

request     forms      Kilpatrick     apparently         filed.     Accordingly,       we

vacate the judgment of the district court and remand for further

proceedings       consistent       with    this    opinion.        We    deny    as   moot

Kilpatrick’s motions to appoint counsel, to amend his complaint,

and to supplement his complaint.                    We express no opinion about

the    merits     of     Kilpatrick’s      claims.        We    dispense     with     oral

argument because the facts and legal contentions are adequately

presented in the material before this court and argument will

not aid the decisional process.

                                                                VACATED AND REMANDED




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