                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 14-6810


OWEN D. LEAVITT,

                       Plaintiff – Appellant,

          v.

NC   DEPARTMENT   OF    PUBLIC   SAFETY;   KEITH    WHITENER,
Administrator,    Alexander     Correctional     Institution,
individually and in his official capacity; DAWKINS, Doctor,
individually and in his official capacity; COFFEY, Chronic
Care Nurse, individually and in her official capacity;
EVENS, Head Nurse, individually and in her official
capacity; KIRBY, Lead Nurse, individually and in her
official capacity; MCRAY, Nurse, individually and in his
official capacity; W. TURNER, Officer, individually and in
his official capacity; MILLER, Sergeant, individually and
in his official capacity; HONEYCUTT, Officer in Charge,
individually and in his official capacity; BROCK, Officer,
individually and in his official capacity; HARRINGTON,
Officer, individually and in his official capacity,

                       Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Frank D. Whitney,
Chief District Judge. (5:14-cv-00027-FDW)


Submitted:   October 28, 2014             Decided:   November 12, 2014


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
Owen D. Leavitt, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Owen        D.   Leavitt       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 we

review de novo.          Talbot v. Lucy Corr Nursing Home, 118 F.3d 215,

218 (4th Cir. 1997).               The Prison Litigation Reform Act (“PLRA”)

prohibits    a     prisoner         from   filing     a    § 1983   action       addressing

conditions       of     confinement        unless    the       prisoner    has    exhausted

available administrative remedies.                   42 U.S.C. § 1997e(a) (2012).

Meeting the exhaustion requirement requires “proper exhaustion”—

that is, “using all steps that the agency holds out, and doing

so properly (so that the agency addresses the issues on the

merits).”        Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal

quotation marks 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.

                                               3
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).

           Our review of the record indicates that the failure to

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

associated pleadings, particularly in light of his request for

additional time to provide proof of exhaustion, and his verified

statement indicating that he seeks such proof from Appellees.

Accordingly, we vacate the judgment of the district court and

remand for further proceedings consistent with this opinion.                           We

express no opinion about the merits of Leavitt’s claims.                               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.


                                                               VACATED AND REMANDED




                                           4
