United States District Court, M.D. Georgia, Macon Division
ORDER AND REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE.
pending before the Court are Defendant Prescott's motion
to dismiss (ECF No. 73) and Defendant Blanks and
Henderson's motion for summary judgment (ECF No. 103).
Plaintiff also has pending a motion to amend and a motion to
compel. For the reasons explained below, it is recommended
that Defendants' motions be granted and Plaintiff's
motion to amend be denied. Plaintiff's motion to compel
claims arise from events beginning on August 17, 2014 which
contributed to his arrest, prosecution, conviction, and
jailing in Monroe County, Georgia for (1) cruelty to
children, (2) sexual battery, (3) three counts of aggravated
child molestation, and (4) two counts of child molestation.
Compl. 5, ECF No. 1; Mot. Amend 2-3, ECF No. 48.
contends that numerous persons violated his constitutional
rights during the events and criminal proceedings that led to
his conviction. Plaintiff alleges that Monroe County
Sherriff's Department (“MCSD”) officials,
primarily Defendants Adam Blanks and Allen Henderson,
perjured themselves and improperly executed a search warrant
issued for his property in order to secure an indictment
against Plaintiff. Suppl. Compl. 4, ECF No. 48; Mot. Amend
1-2, ECF No. 42. Plaintiff also alleges that various trial
court judges were intemperate and discourteous during
Plaintiff's criminal proceedings, perjured themselves,
ignored or denied his motions, and sought
“revenge” against Plaintiff for filing motions
and attempting to terminate his public defender. See,
e.g., Compl. 1-3, ECF No. 1 in Moss v. Wilson,
5:16-cv-194-MTT-MSH (M.D. Ga. May 25, 2016) (“Moss
III”); Suppl. Compl. 42-43, ECF No. 44. Plaintiff
further contends that his landlord, James Mullis, actually
committed the sexual crimes for which Plaintiff was
convicted, and that Mr. Mullis was able to pay MCSD and court
officials $50, 000 in order to avoid prosecution. Suppl.
Compl. 5-6, ECF No. 48. Plaintiff alleges that his
girlfriend, Jennifer Turner, perjured herself to police in
order to have Plaintiff arrested in retaliation for Plaintiff
threatening to “kick her out” of their trailer.
various pleadings, Plaintiff also raises claims regarding his
confinement in the Monroe County Jail (“MCJ”).
Primarily, Plaintiff alleges that MCSD officials (1) failed
to provide him with “any type of law library, attorney,
or help with legal work, ” (2) monitored and recorded
his “private one on one meetings, ” (3) stopped
his store orders after he announced he filed a lawsuit
against his public defender, (4) failed to provide him
adequate dental care, (5) failed to provide him adequate
medical care, (6) failed to allow him to file grievances, and
(7) kept inmates in “mold infested” cells. Mot.
to Amend 6-8, 10-11, 14-15, ECF No. 38.
preliminary review (ECF No. 84), three of Plaintiff's
claims remain-a deliberate indifference claim against
Defendant Prescott for providing Plaintiff with inadequate
dental care and malicious prosecution claims against both
Defendants Blanks and Henderson.
13, 2017, the undersigned recommended granting Defendant
Prescott's motion to dismiss for Plaintiff's failure
to exhaust. Order & R. & R. 7-11, ECF No. 94.
Plaintiff filed multiple responses to the Recommendation in
which he offers various new allegations regarding his
attempts to exhaust his claims against Defendant Prescott.
The district judge declined to rule on the motion to dismiss
or the Recommendation and referred Plaintiff's new
allegation to the undersigned for consideration. Order 1-2,
Sept. 21, 2017, ECF No. 117. In response to the re-referral
of the motion to dismiss, the Court directed Plaintiff to
“supplement the record (with affidavits and/or other
documents) within twenty-one (21) days to support his
allegation that he was prevented from filing
grievances.” Order 2, Oct. 4, 2017, ECF No. 119.
Plaintiff moved for an extension of time to supplement the
record (ECF No. 122), and such motion was granted (ECF No.
123). Plaintiff failed to supplement the record.
meantime, Defendants Blanks and Henderson filed a motion for
summary judgment (ECF No. 103). Plaintiff filed various
responses, each with multiple attachments. (ECF Nos.
107-113.) However, he did not file one document responsive to
Defendants' arguments as directed in the Notice of
Summary Judgment Motion (ECF No. 104). Plaintiff did file a
response to Defendants' statement of material facts (ECF
No. 107). On August 4, 2017, the undersigned granted
Plaintiff's request for additional time to compile
documents and other evidence. Order 3, Aug. 4, 2017, ECF No.
114. This request was construed as a motion for additional
time to respond to the motion for summary judgment.
Id. While Plaintiff did file additional documents he
labels as exhibits, he did not file a response to the motion
for summary judgment. Defendants' motions are ripe for
Defendant Prescott's Motion to Dismiss
Prescott moves to dismiss Plaintiff's deliberate
indifference claim against her for failure to exhaust
administrative remedies (ECF No. 73). On June 13, 2017, the
undersigned recommended that Defendant Prescott's motion
be granted. Specifically, the Court used the two step
analysis as outlined in Turner v. Burnside, 541 F.3d
1077, 1082 (11th Cir. 2008), and found at the second step
that Defendant Prescott met her burden to establish a lack of
exhaustion. Order & R. & R. 9-10, Jun. 13, 2017. In
evaluating Plaintiff's allegations that he was prevented
from filing grievances, the undersigned explained:
Although Plaintiff contends that he was denied the
opportunity to file a grievance, the fact that Plaintiff
successfully filed two other grievances during his time at
the Monroe County Jail belies this claim. Plaintiff first
mentioned his claim against Defendant Prescott in his motion
on May 13, 2016, within four months of filing his second
grievance. Pl.'s Mot. to Amend 10, ECF No. 38. Plaintiff
also alleges that Defendant Prescott's actions took place
between August 2014 and February 2016, the same time in which
Plaintiff actually filed his two grievances. Id. The
evidence in the record thus contradicts Plaintiff's
assertion. Absent further evidence of a denial of the
opportunity to file a grievance regarding Defendant Prescott,
the facts discussed above show that Plaintiff failed to
exhaust administrative remedies pertaining to his deliberate
indifference claim against Defendant Prescott.
Order & R. & R. 10-11, Jun. 13, 2017.
filed objections to the Recommendation on June 25, 2017. (ECF
No. 98.) Therein, Plaintiff again asserts that he tried to
file grievances but was prevented from doing so by offers at
Monroe County Jail. For example, Plaintiff states that
[w]hen I would ask for a grievance form the[y] would ask
“about what” then they would say, “let me
ask the sargent [sic] if you can” and would not show
back up. You would ask them again later, they would say some
kind of story then say “let me ...