United States District Court, M.D. Georgia, Macon Division
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's recast (ECF No. 7) and
amended complaints (ECF No. 9) seeking relief under 42 U.S.C.
§ 1983, and Defendants' motion for summary judgment
(ECF No. 29). For the reasons explained below, it is
recommended that Defendants' motion be granted and
Plaintiff's remaining claims be dismissed.
claims arise from his incarceration at the Calhoun State
Prison. Recast Compl. 5, ECF No. 7. Plaintiff alleges that in
July of 2016, he became concerned that his housing assignment
was unsafe. Id. Plaintiff accordingly refused his
housing assignment, and “security” sent him to
the J-1 cell block. Id. Plaintiff contends he was
moved from cell to cell in J-1 but was unable to receive a
safe assignment “due to [his] charges.”
Id. Plaintiff alleges that Defendant Doe, the
“officer-in-charge of J-1[, ]” ultimately
assigned him to a cell with an inmate named Taylor who
threatened to beat Plaintiff “until his brain [was]
scattered all over this cell.” Id. Plaintiff
alleges that he told Defendant Doe that he was scared of
inmate Taylor “after all the comments he has made that
he's going to kill whom ever [sic] goes into his cell,
” but Defendant Doe “disregard[ed his]
pleadings.” Id. Approximately two to three
days later, inmate Taylor attacked Plaintiff, causing several
injuries that required medical treatment. Recast Compl. 5;
Recast Compl. Attach. 1, ECF No. 7-1. Plaintiff further
alleges that he still suffers severe headaches and nightmares
as a result of the attack. Recast Compl. Attach. 1.
Plaintiff contends Defendants' failure to protect him
from this attack violated his constitutional rights, and he
seeks compensatory and punitive damages as a result. Recast
move for summary judgment in their favor claiming, inter
alia, that Plaintiff failed to exhaust his
administrative remedies. Br. in Supp. Mot. for Summ. J. 1-2,
12-15, ECF No. 29-2. Failure to exhaust administrative
remedies “is a matter in abatement and not generally an
adjudication on the merits [and, therefore, ] is not
ordinarily the proper subject for a summary judgment
[motion].” Bryant v. Rich, 530 F.3d 1368,
1374-75 (11th Cir. 2008). If such an argument is raised in a
motion for summary judgment, it should be treated as if it
were raised in a motion to dismiss. Id. at 1375.
Accordingly, the Court has analyzed Defendants' failure
to exhaust argument as if it were brought in a motion to
dismiss. Because Plaintiff did not exhaust his administrative
remedies, the Court recommends that his remaining claims
should be dismissed and declines to address Defendants'
other grounds for judgment in their favor.
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).
Because dismissal for failure to exhaust is not an
adjudication on the merits, the Court can resolve factual
disputes using evidence from outside the pleadings.
Rich, 530 F.3d 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.
contend that the Georgia Department of Corrections
(“GDOC”) has a grievance procedure applicable to
all inmates which Plaintiff failed to fully utilize regarding
his remaining claims. Br. in Supp. Mot. for Summ. J. 2,
12-15. Plaintiff was given notice of Defendants' motion
but did not respond to it. Notice, July 26, 2018, ECF No. 30.
State Prison follows the GDOC's Standard Operating
Procedures (“SOPs”) regarding grievances. Cross
Aff. ¶ 3, ECF No. 29-3. The SOPs mandate that an inmate
must follow a two-step process in order to exhaust his
remedies: (1) file an original grievance no later than ten
days from the date of the incident giving rise to the
grievance; and (2) file an appeal to the Central Office.
Id. ¶ 6-9 & Ex. 1 at 14-20. A warden has
forty calendar days within which to respond to an original
grievance. Id. Ex. 1 at 17. An inmate may file an
appeal after the warden issues a decision or after the time
allowed for the warden to make his decision expires.
Id. at 19. To successfully file an appeal, an inmate
must fill out a Central Office Appeal Form, sign it, and give
it to the appropriate counselor. Id. The
Commissioner-or their designee-must deliver a decision on the
appeal to the inmate within one-hundred calendar days of
their receipt of it. Id. at 20.
amended complaint, Plaintiff states that on March 3, 2017, he
filed a grievance concerning the issues involved in this
case. Am. Compl. 3, ECF No. 9. That grievance was rejected as
untimely filed and Plaintiff acknowledged receipt of that
decision on July 3, 2017. Cross Aff. ¶ 12, Ex. 3 at 39,
43. In response to the standard complaint form's prompt
asking if he had appealed that grievance, Plaintiff marked
“yes and no.” Am. Compl. at 4. Plaintiff attached
a hand-written document dated March 3, 2017, and May 1, 2017,
and entitled “Grievance Appeal Form[, ]” to his
amended complaint which he mailed to the Central Office in
the first week of May 2017. Cross Aff. ¶ 13; Massengale
Dep. 62-63, ECF No. 29-7. Plaintiff initiated this suit on
March 10, 2017 (ECF No. 1).
PLRA exhaustion requirement requires proper
exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93
(2006). “Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural
rules.” Id. at 91. Accordingly, “where
an inmate's grievance fails to meet administrative
deadlines or an existing exception to a timely filing
requirement, his federal claim will be barred.”
Tilus v. Kelly, 510 Fed.Appx. 864, 866 (11th Cir.
2013). Because the un-contested facts show that Plaintiff
failed to properly and fully exhaust his available
administrative remedies, it is clear at step one of the
exhaustion analysis that Plaintiff failed to exhaust.
Turner, 541 F.3d at 1082; see also Dollar v.
Coweta Cty. Sheriff Office, 446 Fed.Appx. 248, 251-52
(11th Cir. 2011). Plaintiff initiated this suit prior to the