United States District Court, S.D. Georgia, Atlanta Division.
GODBEY WOOD, JUDGE
Court has conducted an independent and de novo
review of the entire record and concurs with the Magistrate
Judge's Report and Recommendation, dkt. no. 5. The Court
has additionally considered Plaintiff's Objections to the
Report and Recommendation, dkt. no. 6, and Plaintiff's
Motion to Amend Complaint, dkt. no. 7. For the reasons set
forth below, the Court OVERRULES
Plaintiff's Objections, ADOPTS the
Magistrate Judge's Report and Recommendation as the
opinion of the Court, and DENIES
Plaintiff's Motion to Amend.
Magistrate Judge recommended the Court dismiss
Plaintiff's complaint for failure to exhaust all
administrative remedies. In his Objections, Plaintiff argues
he should not be required to fully exhaust his administrative
remedies because exhaustion would be futile. Dkt. No. 7, p.
1. Plaintiff asserts he "did as much as [he] could"
to exhaust his administrative remedies. Id.
According to Plaintiff, Ware State Prison officials, after
responding to Plaintiff's grievance, failed to give
Plaintiff any paperwork informing him that he could appeal
the decision. Id.
addition to his Objections, Plaintiff also filed a Motion to
Amend Complaint, dkt. no. 7. In this Motion, Plaintiff seeks
to add a new claim against Ware State Prison based on
"another incident that occurred on Saturday, May 14,
2017[.]" Id. Outside of adding this new claim
and new defendant, Plaintiff does not seek to make any
modifications or changes to his initial Complaint.
Prison Litigation Reform Act ("PRLA") requires
prisoners fully exhaust all administrative remedies before
filing an action with the court. 42 U.S.C. § 1997e(a);
Jones v. Bock, 549 U.S. 199, 217 (2007). "[A]s
long as there is the possibility of at least some kind of
relief[, ]" all administrative remedies-including
appeals-must be exhausted. Johnson v. Meadows, 418
F.3d 1152, 1156 (11th Cir. 2005) (quoting Ross v. County
of Bernalillo, 365 F.3d 1181, 1187 (10th Cir. 2004).
Exhaustion is a statutory requirement that courts have no
discretion to waive. Bryant v. Rich, 530 F.3d 1368,
1373 (11th Cir. 2008). Notably, the "exhaustion
requirement cannot be waived based upon the prisoner's
belief that pursuing administrative procedures would be
futile." Higginbottom v. Carter, 223 F.3d
1260, 1261 (11th Cir. 2000); Kazemi v. Pugh, No. CV
306-094, 2007 WL 601757, at *2 (S.D. Ga. Feb. 16, 2007).
However, incarcerated individuals are not required to exhaust
administrative remedies which are unavailable to them.
Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir.
as true Plaintiff's allegation that prison administrators
did not inform him of the appeals process, Plaintiff still
failed to exhaust administrative remedies. Plaintiff does not
allege that prison officials provided incorrect information
about the appeals procedure nor does he assert that he
requested information about appealing his grievance and was
denied. Rather, Plaintiff simply argues that prison officials
did not take affirmative steps to ensure Plaintiff,
individually, knew appealing was an available option.
Moreover, Plaintiff would have learned of the possibility of
appealing an adverse decision while drafting his Complaint.
This Court's own form, which Plaintiff filled out to file
his original Complaint, explicitly asks would-be litigants
whether they filed a grievance with the prison and whether
they appealed adverse decisions "to the highest level
possible in the administrative procedure[.]" Dkt. No. 1,
pp. 3-4. Instead of seeking out information about appealing
the original grievance, Plaintiff simply checked
"no" and filed his Complaint. Id.
Plaintiff fails to provide any new information in his
Objections or Motion to Amend which would alter the
Magistrate Judge's original finding. The pleadings still
demonstrate that Plaintiff failed to exhaust all available
Report and Recommendation explicitly provided Plaintiff
"the opportunity to amend his Complaint to correct the
deficiencies noted herein." Dkt. No. 2, p. 1 n.1.
Plaintiff's Motion to Amend does not address or correct
any deficiencies but rather seeks to add a new claim and new
defendant to his original Complaint. As Plaintiff cannot
continue his original action, the Court
DENIES his Motion to Amend. If Plaintiff
wishes to proceed with this new claim, he may do so by filing
a separate action.
Court, therefore, OVERRULES Plaintiff's
Objections and ADOPTS the Magistrate
Judge's Report and Recommendation as the opinion of the
Court. The Court DENIES Plaintiff's Motion to Amend, dkt.
 Plaintiff cites two cases in support
of the futility exception for exhaustion: Terrell v.
Brewer, 933 F.2d 1015 (9th Cir. 1991), and McCarthy
v. Madigan, 503 U.S. 140 (1992). Both cases were ...