United States District Court, M.D. Georgia, Macon Division
MARC T. TREADWELL, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge Charles H. Weigle (Doc. 43). The Magistrate Judge recommends granting the Defendants' motion for summary judgment (Doc. 34) because the Plaintiff failed to create a genuine issue of material fact with regard to his excessive force and failure to intervene claims against the Defendants. Alternatively, the Magistrate Judge recommends dismissing the Plaintiff's complaint because he failed to exhaust his administrative remedies.
The Plaintiff objected to the Recommendation (Doc. 44) to which the Defendants responded (Doc. 46). Pursuant to 28 U.S.C. 636(b)(1), the Court has considered the Plaintiff's objection and made a de novo determination of the portions of the Recommendation to which the Plaintiff objects. The Court agrees the Plaintiff failed to create a genuine issue of material fact regarding his claims that the Defendants used excessive force or failed to intervene. As to the alternative recommendation to dismiss the Plaintiff's complaint for failure to exhaust his administrative remedies, the Court recognizes it is possible for a plaintiff's complaint to show on its face that an affirmative defense bars recovery,  but the Plaintiff's complaint does not do so here. Moreover, the Defendants agree with the Plaintiff that the administrative remedies had been exhausted before the complaint was filed. (Doc. 46 at 4).
The Court has reviewed the Recommendation, and the Court accepts the findings, conclusions, and recommendations of the Magistrate Judge, except as to the recommendation to dismiss the complaint for failure to exhaust. Thus, the Recommendation is ADOPTED in part and made the Order of this ...