United States District Court, S.D. Georgia, Savannah Division
ORDER AND REPORT AND RECOMMENDATION
Christopher L. Ray United States Magistrate Judge.
pro se and in forma pauperis, plaintiff
Benjamin Maxell has filed this 42 U.S.C. § 1983 action
alleging officers at Chatham County Detention Center (CCDC)
utilized unnecessary excessive force on him. See
Doc. 1. The Court granted Maxwell's request to pursue his
case in forma pauperis (IFP), doc. 3, and he
returned the necessary forms. Docs. 4 & 5. The Court now
proceeds to screen the Complaint pursuant to 28 U.S.C. §
1915A, which requires the immediate dismissal of any pro
se complaint that fails to state at least one actionable
claim against a governmental entity or
December 23, 2018, Maxwell was involved in an “incident
with another inmate” and was handcuffed and led away in
leg restraints by CCDC officers. Doc. 1 at 5. He wriggled
about and complained that the handcuffs were
“cutting” into his wrist and, when Officer
Aguilar wrenched the handcuff painfully, Maxwell “threw
[his] left shoulder from the pain the handcuffs were
causing.” Id. Apparently perceiving the
allegedly-innocent reaction as some type of threat, Officers
Aguilar and Bright “rushed [him] to the wall and began
strangling [him].” Id. Captain Boyles
eventually intervened, stopping the strangling, but Officer
Aguilar got in another swing, “push[ing]
[Maxwell's] head to the wall and bust[ing] [his]
lip.” Id. Maxwell did not notice that his lip
was bleeding until some time later, when he was seen by the
prison nurse. Id. at 6. He seeks $80, 000 against
Officers Aguilar and Bright, id. at 7, and filed a
paper grievance naming them on December 27, 2018.
Id. at 3. At the time of filing this action, he had
not “received any feedback from a grievance that's
supposed to be answered in 48 hours.” Id. at
inmate must exhaust administrative remedies before
filing a § 1983 action challenging prison conditions. 42
U.S.C. § 1997e(a); Miller v. Pryor,
315 Fed.Appx. 149, 150 (11th Cir. 2008). Section
1997e(a)'s exhaustion requirement is mandatory.
Porter v. Nussle, 534 U.S. 516, 524 (2002).
Exhaustion is a “pre-condition to suit” that must
be enforced even if the available administrative remedies are
either “futile or inadequate.” Harris v.
Garner, 190 F.3d 1279, 1285-86 (11th Cir. 1999),
aff'd in part and vacated and remanded on other
grounds by Harris v. Garner, 216 F.3d 970 (2000) (en
banc); see also Jones v. Bock, 549 U.S. 199, 199-200
(2007) (“There is no question that exhaustion is
mandatory under the PLRA”). Simply put, if an
administrative remedy is “available, ” it
must be exhausted. 42 U.S.C. § 1997e(a).
failure to exhaust is an affirmative defense, however, and
inmates are not required to specially plead or
demonstrate exhaustion in their complaint. Jones v.
Bock, 549 U.S. 199, 216 (2007). But the normal pleading
rules still apply: when it is clear from the face of the
Complaint that a prisoner cannot state a claim for relief,
dismissal at screening is appropriate. Cole v. Secretary,
Dep't of Corr., 451 Fed.Appx. 827, 828 (11th Cir.
2011) (“[A] complaint may be dismissed under §
1915A(b) if lack of exhaustion appears on the face of the
complaint.”); see Dollar v. Coweta County Sheriff
Office, 446 Fed.Appx. 248, 251-52 (11th Cir. 2011);
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011). In other words, when a prisoner's Complaint
establishes that he has made no effort to exhaust his
available administrative remedies, the Court must dismiss the
Complaint at screening. See Okpala v. Drew, 248
Fed.Appx. 72 (11th Cir. 2007); Cole v. Ellis, 2010
WL 5564632, at *3 (N.D. Fla. Dec. 28, 2010); Rashid v.
Liberty County Jail, 2010 WL 3239241, at *1 n.1 (S.D.
Ga. May 3, 2010).
it is apparent from the face of the Complaint both that a
grievance procedure is available and that Maxwell failed to
exhaust that procedure: he waited a little over a week from
submitting his paper grievance (on December 27, 2018) to
signing his Complaint (on January 5, 2019). Doc. 1 at 3, 6.
No decision - a denial or otherwise - by the prison grievance
Committee or Appeals Committee has been made. Id. As
discussed, exhaustion is mandatory, and there is no
discretion to waive this requirement. Alexander v.
Hawk, 159 F.3d 1321, 1324-26 (11th Cir. 1998).
Plaintiff's impatience notwithstanding, the Complaint
should be DISMISSED without prejudice on
nonexhaustion grounds. See Johnson, 418 F.3d at
it is time for Maxwell to pay his filing fee. Since his PLRA
paperwork reflects an average monthly balance of $54.02, doc.
5, he owes an initial partial filing fee of $10.80.
See 28 U.S.C. § 1915(b)(1) (requiring an
initial fee assessment “when funds exist”). His
custodian (or designee) shall therefore remit $10.80 to the
Court and shall set aside and remit 20 percent of all future
deposits to his account, then forward those funds to the
Clerk each time the set aside amount reaches $10.00, until
the balance of the Court's $400.00 filing fee has been
paid in full.
Clerk is DIRECTED to send this Report and
Recommendation (R&R) to plaintiff's account custodian
immediately, as this payment directive is nondispositive
within the meaning of Fed.R.Civ.P. 72(a), so no Rule 72(b)
adoption is required. In the event he is transferred to
another institution, his present custodian shall forward a
copy of this R&R and all financial information concerning
payment of the filing fee and costs in this case to
plaintiff's new custodian. The balance due from plaintiff
shall be collected by the custodian at his next institution
in accordance with the terms of the payment directive portion
of this Order.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge's Report
and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
ORDERED AND REPORTED AND RECOMMENDED.
 Because the Court applies Fed.R.Civ.P.
12(b)(6) standards in screening a complaint pursuant to
§ 1915A, Leal v. Ga. Dep't of Corr., 254
F.3d 1276, 1278-79 (11th Cir. 2001), allegations in
plaintiff's Complaint are taken as true and construed in
the light most favorable to him. Bumpus v. Watts,
448 Fed.Appx. 3, 4 n.1 (11th Cir. 2011). Conclusory
allegations, however, fail. A ...