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Major v. Toole

United States District Court, M.D. Georgia, Macon Division

January 31, 2018

TROY MAJOR, Plaintiff,
v.
Warden ROBERT TOOLE, et al., Defendants.

          REPORT AND RECOMMENDATION

          STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE

         Presently 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.

         BACKGROUND

         Plaintiff's 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. Compl. 11.

         On June 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.

         On 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.)

         Defendants 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.

         DISCUSSION

         I. Exhaustion Standard

         Title 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.

         “[D]eciding 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. Id.

         II. Plaintiff's Failure to Exhaust

         A. Step One

         Defendants 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.[1]Defs.' Mot. to Dismiss ...


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