United States District Court for the District of South Carolina, Filed 02/24/2014, Case no. 0:13-1177

“ Finally, the defendants argue that they are entitled to qualified immunity on Hovind’s claims. Qualified immunity shields governmental officials performing discretionary functions from liability for damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. ”

“ Sturgell, 553 U.S. 880 (2008) (discussing exceptions to the general rule against nonparty claim preclusion) . Therefore, the court concludes that dismissal based on res judicata is not warranted.
C. Exhaustion of Administrative Remedies
The defendants next argue that dismissal is warranted because Hovind failed to exhaust his administrative remedies with regard to any of the claims set forth in his Complaint. A prisoner must exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”) , specifically 42 U.S.C. § 1997e (a) . ”

“ Section 1997e (a) provides that “ [n] o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” ”

“ A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. ”

“ Green, 446 U.S. 14, 18 (1980) ; see also Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006) . A Bivens claim is analogous to a claim brought against state officials under 42 U.S.C. § 1983. Therefore, caselaw involving § 1983 claims is applicable in Bivens actions, and vice versa. ”

“ Id.
“ [A] n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) . However, “a prisoner does not exhaust all available remedies simply by failing
Page 6 of 11
0:13-cv-01177-MGL Date Filed 03/06/14 Entry Number 30 Page 6 of 11
to follow the required steps so that remedies that once were available to him no longer are.” Id. at 725 (citing Woodford, 548 U.S. 81) . ”