United States District Court, S.D. Georgia, Dublin Division
K. EPPS UNITED STATES MAGISTRATE JUDGE.
an inmate at Autry State Prison in Pelham, Georgia, commenced
the above-captioned case pursuant to 42 U.S.C. § 1983
regarding events at Johnson State Prison in Wrightsville,
Georgia. He is proceeding pro se and in forma
pauperis. Defendants Bryan, Byrd, Clark, Claxton, Hurst,
Lindsey, Morris, O'Neal, Price, Pullins, Rogers, Smith,
and Timmons filed a partial motion to dismiss and a motion to
stay discovery on May 22, 2017. (Doc. nos. 49, 50.)
motion to dismiss is dispositive in nature, meaning the
granting of a motion to dismiss results in the dismissal of
individual claims or an entire action. If Plaintiff fails to
respond, the motion will be deemed unopposed and granted,
resulting in the dismissal of the claims that are the subject
matter of the motion. See Loc. R. 7.5. Plaintiff
must also respond to the motion to stay the proceedings
within fourteen days of service of that motion. If Plaintiff
fails to respond, the motion to stay will likewise be deemed
unopposed. See id.
on a motion to dismiss, matters outside the pleadings are
presented to and not excluded by the Court, the normal course
is for the Court to determine whether the motion to dismiss
should be treated as one for summary judgment and therefore
disposed of as provided by Fed.R.Civ.P. 56. Jones v.
Automobile Ins. Co., 917 F.2d 1528, 1532 (11th Cir.
1990). However, if the motion to dismiss raises the issue of
exhaustion of administrative remedies,  the Eleventh
Circuit has ruled: “Because exhaustion of
administrative remedies is a matter in abatement and not
generally an adjudication on the merits, an exhaustion
defense . . . should be raised in a motion to dismiss, or be
treated as such if raised in a motion for summary
judgment.” Bryant v. Rich, 530 F.3d 1368,
1374-75 (11th Cir. 2008).
a motion to dismiss based on an exhaustion defense need not
be converted to a motion for summary judgment, “it is
proper for a judge to consider facts outside of the pleadings
and to resolve factual disputes so long as the factual
disputes do not decide the merits and the parties have
sufficient opportunity to develop a record.”
Id. at 1376 (citations omitted). Therefore, if the
exhaustion issue cannot be resolved based on the pleadings
alone, and if a defendant submits affidavits or other
evidence in support of the motion to dismiss, the plaintiff
must be given the opportunity to submit his own affidavits or
other evidence contradicting a defendant's submissions.
See id. Accordingly, if the motion to dismiss in
this case raises the issue of exhaustion of administrative
remedies, Plaintiff's response to the motion should
include appropriate supporting affidavits or other
documentary evidence he may have to contest any exhaustion
issue raised by Defendants.
assure Plaintiff's response is made with fair notice of
the requirements of the Federal Rules of Civil procedure
regarding motions to dismiss, generally, and motions to
dismiss for failure to state a claim upon which relief may be
granted, the Court DIRECTS the CLERK of COURT to attach a
copy of Fed.R.Civ.P. 12 and 41 to Plaintiff's service
copy of this Order. Plaintiff shall have until June 8, 2017
to respond to Defendants' motion to dismiss and motion to
in their brief in support of their motion, Defendants assert,
“At this time, Plaintiff's amendment has not been
screened and service has not been ordered or effectuated on
[Defendants Lindsey and Bodie]. Accordingly, evaluation of
Plaintiff's exhaustion of his claims against them is not
addressed in this pleading.” (Doc. no. 49-1, p. 4,
n.1.) In direct contradiction to this assertion, Defendant
Lindsey has waived service and explicitly joins in
Defendants' motion. (See doc. nos. 48, 49.)
Therefore, the Court will address Defendants' exhaustion
claims with regards to Defendant Lindsey.
the Court has already screened Plaintiffs claims against
Defendants Lindsey and Bodie under the misnomer John and Jane
Doe Doctors and allowed those claims to proceed.
(See doc. no. 25.) When Plaintiff identified John
and Jane Doe Doctors as Defendants Lindsey and Bodie, the
Court merely deemed Plaintiffs amended complaint (doc. no.
22) amended to substitute Defendants. (See doc. no.
39.) There were no new claims to be screened. (Id.)
docket reflects Defendant Bodie has not yet been served.
Indeed, although Plaintiff identified “Ga. Regent
Health System, 1499 Walton Way, Augusta, Georgia 30912”
as the address at which to serve Defendant Bodie, waiver of
service was mailed to Johnson State Prison at “P.O. Box
344, Wrightsville, Georgia 31096.” (Doc. no. 38; Doc.
no. 39-1.) Accordingly, the Court DIRECTS the United States
Marshals to re-attempt service by mail on Defendant Bodie at
“Ga. Regent Health System, 1499 Walton Way, Augusta,
Georgia 30912” as set forth in the Court's March
20, 2017 Order. (See doc. no. 25, p. 5.)
The Court DIRECTS the Clerk to update
the docket in accordance with the caption on this
The Prison Litigation Reform Act, 42
U.S.C. § 1997e(a), states, “No 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 ...