United States District Court, M.D. Georgia, Macon Division
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
pending before the Court is Defendants Smith and
DeLoach's motion to dismiss (ECF No. 77). For the reasons
explained below, it is recommended that Defendants'
motion be granted.
failure to intervene claims against Defendants Deloach and
Smith arise from a May 14, 2014 cell extraction. Compl.
10-11, ECF No. 1. He filed his original complaint on December
28, 2015. (ECF No. 1.) In that complaint, Plaintiff described
Defendants Deloach and Smith as being “a few feet from
[Plaintiff's] cell (K-2 #14)” but did not allege
that either actually saw a use of excessive force or were in
a position to prevent or stop the use of excessive force.
13, 2016, the undersigned recommended Plaintiff's claims
against Defendants Deloach and Smith be dismissed because
Plaintiff “failed to allege facts sufficient to meet
[his] burden.” R. & R. 15, ECF No. 18. In
objections to the Report and Recommendation
(“R&R”), Plaintiff stated that Defendants
Deloach and Smith “authorized, plan[ned] and directly
supervised the violent cell extraction” and were
“directly in front of [Plaintiff's] cell”
with a “clear view into the cell where excessive force
and assault transpired.” Obj. to R.&R. 1-2, ECF No.
55. Plaintiff also alleged that Defendants Deloach and Smith
failed to “intercede” during the incident or
“report, review surveillance, and insure medical
treatment” afterwards. Id. at 2.
November 29, 2016, U.S. District Judge Marc Treadwell issued
an order adopting the R&R-except for the recommendation
on the failure to intervene claims. Order 2, ECF No. 62. He
remanded those claims to the undersigned “to consider
whether [Plaintiff] should be allowed to amend his complaint
to allege [the additional facts alleged in his objections]
and, if so, whether the failure to intervene claims should
proceed.” Order 1-2. Plaintiff was then allowed to
amend his complaint and his failure to intervene claims
proceeded through the initial screening required by 28 U.S.C.
§ 1915A(a). (ECF Nos., 67, 73.)
Deloach and Smith filed their motion to dismiss
Plaintiff's claims (ECF No. 77) on June 5, 2017. They
contend that because “Plaintiff failed to utilize the
Georgia Department of Corrections' Statewide Grievance
Procedure, and . . . exhaust his available administrative
remedies, ” his “claims against Defendants
DeLoach and Smith are due to be dismissed.” Defs.'
Mot. to Dismiss 1-2, ECF No. 77. The Court agrees, and thus
recommends that Defendants' motion be granted.
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
Deloach and Smith move to dismiss for lack of exhaustion
claiming that the Georgia Department of Corrections (GDOC)
has a grievance procedure which applies to all inmates and
Plaintiff failed to utilize this procedure regarding the
claim against them.Defs.' Mot. to Dismiss ...