United States District Court, M.D. Georgia, Macon Division
DEBRA D. HINES, Plaintiff,
Deputy Warden MELVIN BUTTS, et al., Defendants.
T. TREADWELL, JUDGE
States Magistrate Judge Charles H. Weigle recommends granting
Defendants Melvin Butts, Miguel Stubbs, and Fabron
Roberts' motion to partially dismiss (Doc. 21) and
denying Defendants' motion to dismiss or motion to strike
Plaintiff Debra Hines' amended complaint (Doc. 40). Doc.
45. Specifically, the Magistrate Judge recommends granting
the first motion (Doc. 21) because (1) Hines cannot recover
any official capacity damages under 42 U.S.C. § 1983,
and (2) Hines failed to exhaust her administrative remedies
before filing this action pursuant to the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(a). Id. Hines has
moved for reconsideration of the Recommendation and has filed
a separate objection to the Recommendation. Docs. 47; 49.
MOTION FOR RECONSIDERATION
Court “may reconsider any pretrial matter [decided by
the Magistrate Judge] . . . where it has been shown that the
[M]agistrate [J]udge's order is clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A);
see Brown v. United States, 748 F.3d 1045, 1055
(11th Cir. 2014); Muhammad v. HSBC Bank USA, N.A.,
399 Fed. App'x 460, 462 (11th Cir. 2010).
motion, Hines contends that she changed her claims against
the Defendants in their individual capacities, not official
capacities, and claims against all Defendants in their
individual capacities should be allowed to proceed. Doc. 47
at 2. The Magistrate Judge's recommendation to dismiss
Hines' claims against Butts and Stubbs is just that: a
recommendation. Thus, the Court cannot consider this argument
in her motion for reconsideration. On the other hand, the
Magistrate Judge ordered that her claims against
Roberts in his individual capacity were to proceed, and that
order is the only thing that may be reconsidered based on her
motion. Doc. 45; Fed.R.Civ.P. 72(a) advisory committee's
note to 1983 amendment (“[R]econsideration of a
magistrate's order . . . shall be by the
district judge to whom the case is assigned.” (emphasis
has not made a showing that the Magistrate Judge's order
for her claims against Roberts in his individual capacity to
proceed is clearly erroneous or contrary to law. Accordingly,
Hines' motion for reconsideration (Doc. 47) is
to 28 U.S.C. § 636(b)(1), the Court considers Hines'
objection and makes a de novo determination of the
portions of the Recommendation to which Hines objects.
objection regarding Butts is that she submitted her grievance
on October 26, 2018, rather than November 1, which was the
date the grievance was submitted to prison officials. Doc.
21-6 at 2. However, as the Defendants point out in their
response to Hines' objections, “the statewide
grievance procedure provides that the Warden must respond
within forty days ‘from the date the counselor received
the Grievance Form from the inmate. . .
.'” Doc. 50 at 6 (citing Doc. 21-2 ¶ 8).
Accordingly, “the November 1, 2018 date is the
operative date for determining whether Plaintiff waited the
requisite period of time before filing her lawsuit.”
Id. Hines filed her lawsuit on December 13, 2018,
which is more than forty days after she filed her grievance.
Doc. 1. However, Hines is required to complete the grievance
process by submitting an appeal of her grievance if the
Warden fails to respond within forty days. Doc. 21-2
¶¶ 9-10. Because Hines has failed to complete the
grievance process regarding her claims against Butts, the
Court agrees with the Magistrate Judge that Hines has not
exhausted her administrative remedies against him.
also objects to the Recommendation that she failed to exhaust
her administrative remedies against Stubbs because she was
thwarted from completing the grievance process. Docs. 49 at
2; 51 at 1. In the Defendants' response to her objection,
the Defendants contend that Hines' grievance against
Stubbs that was received on January 14, 2019 was
“voluntarily dropped” on March 25, and she thus
did not exhaust her administrative remedies. Doc. 50 at 7.
The Defendants attached an unauthenticated, “certified
copy” of the grievance and “drop form.”
Doc. 50-1 at 2-3. Hines claimed in her reply that, when
compared to the grievance, the drop form misspells her first
name and alleged that Grievance Counselor Tracey Jackson
forged her signature. Doc. 51 at 1, 3; compare Doc.
50-1 at 2 (signed “Debra D. Hines”) with
Doc. 50-1 at 3 (signed “Deborah Hines”).
Hines' signature was forged,  Hines filed her
original complaint prematurely before the response
period expired, and she did not even file her grievance
against Stubbs until after she filed this action. Docs. 1
(original complaint dated December 10, 2018); 50-1 at 2
(filed January 9, 2019, received January 14). Accordingly,
the Court agrees with the Magistrate Judge that Hines has not
exhausted her administrative remedies against Stubbs. See
Turner v. Burnside, 541 F.3d 1077, 1082-83 (11th Cir.
2008) (holding that if the parties' versions of the facts
conflict, the Court must take the plaintiff's version as
true, and if the complaint is not dismissed at this stage,
the Court must then “make specific findings to resolve
the disputed factual issues related to exhaustion”).