United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Justin S.
Anand's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
grant Defendants Theodore Jackson, Mark Adgers, Reuben
Wingfield, and Jerry Conner's (collectively,
“Defendants”) Motion to Dismiss . The motion
2, 2016, Plaintiff Kentavius Carr (“Plaintiff”)
filed his Complaint , alleging that he is Muslim, that as
part of his beliefs he is required to eat Halal or Kosher
food, and, while incarcerated at the Fulton County Jail, he
did not receive responses to his numerous requests to receive
Halal or meals that met Muslim dietary restrictions. On
August 16, 2016, the Magistrate Judge, pursuant to a
frivolity review under 28 U.S.C. § 1915A, allowed
Plaintiff's First and Fourteenth Amendment religious free
exercise claims to proceed. ().
October 31, 2016, Defendants filed their Motion to Dismiss.
Defendants argue the Complaint should be dismissed because
Plaintiff failed to exhaust his administrative remedies.
Plaintiff did not file a response to the Motion to Dismiss,
and it is deemed unopposed. See LR 7.1(B), NDGa.
11, 2017, the Magistrate Judge issued his R&R. The
Magistrate Judge found that Plaintiff failed to exhaust his
available administrative remedies. He recommends the Court
grant Defendants' Motion to Dismiss and dismiss this
action without prejudice for lack of exhaustion. Plaintiff
did not file objections to the R&R, and has not taken any
other action in this case.
conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or
modify a magistrate judge's report and recommendation. 28
U.S.C. § 636(b)(1); Williams v. Wainwright, 681
F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge
“shall make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where, as here, no party has objected to
the report and recommendation, the Court conducts only a
plain error review of the record. United States v.
Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).
the Prison Litigation Reform Act (“PLRA”),
“[n]o action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a
prisoner confined in any jail . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). “[A] prisoner must complete the
administrative review process in accordance with the
applicable procedural rules, including deadlines, as a
precondition to bringing federal court.” Woodford
v. Ngo, 548 U.S. 81, 88, 93 (2006). The purpose of the
exhaustion requirement is “to afford corrections
officials time and opportunity to address complaints
internally before allowing the initiation of a federal
case.” Id. at 93 (alteration and citation
omitted). The PLRA's exhaustion requirement is mandatory,
“regardless of the relief offered through
administrative procedures.” Booth v. Churner,
532 U.S. 731, 741 (2001). Courts do not have discretion to
waive it. Bryant v. Rich, 530 F.3d 1368, 1372-73
(11th Cir. 2008). “The modifier ‘available'
in the PLRA means that inmates must exhaust administrative
remedies so long as there is the possibility of at least some
kind of relief.” Johnson v. Meadows, 418 F.3d
1152, 1156 (11th Cir. 2005) (quotation marks and citations
omitted). There is an established process to evaluate if
administrative remedies were exhausted:
[D]eciding a motion to dismiss for failure to exhaust
administrative remedies is a two-step process.
First, the court looks to the factual allegations in the
defendant's motion to dismiss and those in the
plaintiff's response, and if they conflict, takes the
plaintiff's version of the facts as true. If, in that
light, the defendant is entitled to have the complaint
dismissed for failure to exhaust administrative remedies, it
must be dismissed. This process is analogous to judgment on
the pleadings under Federal Rule of Civil Procedure 12(c).
If the complaint is not subject to dismissal at the first
step, where the plaintiff's allegations are assumed to be
true, the court then proceeds to make specific findings in
order to resolve the disputed factual issues related to
exhaustion. The defendants bear the burden of proving that
the plaintiff has failed to exhaust his available
administrative remedies. Once the court makes findings on the
disputed issues of fact, it ...