United States District Court, M.D. Georgia, Albany Division
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
pending before the Court are Defendant's motion to
dismiss (ECF No. 22) and Plaintiff's motion to amend (ECF
No. 26). For the reasons explained below, it is recommended
that Defendant's motion to dismiss be granted and
Plaintiff's motion to amend be denied.
claims arise from his incarceration at Calhoun State Prison.
According to Plaintiff's Recast Complaint, Plaintiff and
his cellmates were accused of hiding contraband-a cell phone
and “green leafy material”-in their cell. Recast
Compl. 5, ECF No. 10. Plaintiff alleges that during the
disciplinary hearing related to this infraction, one of his
cellmates “took full responsibility for said
contraband” and made clear that Plaintiff “had no
knowledge of its presents [sic] or location.”
Id. Despite this cellmate's confession,
Defendant Daniels, the disciplinary hearing officer, found
Plaintiff guilty of possessing the contraband even though
Defendant Daniels acknowledged to Plaintiff that “he
truly believed” the contraband did not belong to
Plaintiff. Id. at 6. Plaintiff states that he
“protested” this decision at the time, and he was
then asked to leave the room. Id.
after Plaintiff left the room, Plaintiff alleges that
Defendant Daniels conferred with Defendant Holloman, the unit
manager. Plaintiff was asked again to step outside, where he
“was surrounded by C.E.R.T. officers White, Ingram
& Hendrix” who placed him in handcuffs.
Id. Plaintiff alleges he was compliant with the
officers' instructions, but when he questioned why he was
being handcuffed, Defendant Holloman instructed the other
officers to “TAKE [Plaintiff] DOWN.” Id.
Plaintiff contends Defendants White, Ingram, and Hendrix
lifted him off his feet, twisted his arms, brought him
“down face 1st into the pavement blinding [him] for
seconds, ” “dove” onto Plaintiff's
back, and cuffed him very tightly. Id. at 7.
Plaintiff alleges he was not resisting during this episode.
Id. Plaintiff states he was then locked into a two
man cell for forty-nine days and later returned to general
population despite requesting protective custody.
preliminary review of his recast complaint, only
Plaintiff's claim for excessive force against Defendants
Holloman, Hendrix, Ingram, and White was allowed to proceed.
Order 1-2, Aug. 30, 2017, ECF No. 19. Defendants moved to
dismiss for, inter alia, Plaintiff's failure to
exhaust his administrative remedies for the excessive force
claim. (ECF No. 22.) Plaintiff responds that he either
sufficiently exhausted or attempted to exhaust. (ECF No. 25.)
Plaintiff also moves to amend (ECF No. 26) to assert
additional facts concerning his excessive force claim and to
bring additional claims. These motions are ripe for review.
Defendants' Motion to Dismiss
move to dismiss claiming, first, that Plaintiff failed to
exhaust his administrative remedies. Plaintiff responds with
multiple arguments for why this Court should excuse his
failure to exhaust. Because the Court finds that Plaintiff
did not exhaust his administrative remedies, the Court
declines to address Defendants' other grounds for
42, United States Code section 1997e(a) provides that
“[n]o action shall be brought with respect to prison
conditions under section 1983 of this title . . . by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” “[W]hen a state provides a
grievance procedure for its prisoners, as Georgia does here,
an inmate alleging harm suffered from prison conditions must
file a grievance and exhaust the remedies available under
that procedure before pursuing a § 1983 lawsuit.”
Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir.
2005) (internal quotation marks and citation omitted). The
argument that a plaintiff has failed to satisfy section
1997e(a) is properly raised in a motion to dismiss.
Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008)
(“[E]xhaustion should be decided on a Rule 12(b) motion
to dismiss[.]”). Furthermore, since dismissal for
failure to exhaust is not an adjudication on the merits, the
Court can resolve factual disputes using evidence from
outside the pleadings. Id. at 1376.
a motion to dismiss for failure to exhaust administrative
remedies is a two-step process.” Turner v.
Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
“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 versions of the facts as true.”
Id. If, taking plaintiff's facts as being true,
the defendant is entitled to dismissal for failure to
exhaust, then the complaint should be dismissed. Id.
“If the complaint is not subject to dismissal at the
first step . . ., the court then proceeds to make specific
findings in order to resolve the disputed factual issues
related to exhaustion.” Id. The defendant
bears the burden of proof during this second step.
Plaintiff's Failure to Exhaust
move to dismiss for lack of exhaustion claiming that the
Georgia Department of Corrections (GDOC) has a grievance
procedure that applies to all inmates, but Plaintiff failed
to fully utilize this procedure regarding his claims for
excessive force. Defs.' Br. in Supp. of Mot. to Dismiss
3-11, ECF No. 22-1. Plaintiff responds that he fully
exhausted four grievances at Calhoun State Prison; that
because his claim is for excessive force, filing a grievance
would be futile; that he did exhaust through grievance
205763; and that he appealed grievances 224795 and 205763,
but he has not received a response regarding those appeals.
Br. in Opp'n to Mot. to Dismiss 1-7, ECF No. 25. Because
at the first stage of the exhaustion analysis the Court must
take Plaintiff's version of the facts as being ...