Filed: Mar. 21, 2014
Latest Update: Mar. 21, 2014
Summary: ORDER ON REPORT AND RECOMMENDATION C. ASHLEY ROYAL, Chief Judge. Before the Court is the United States Magistrate Judge's Report and Recommendation to grant Defendants Tommy Tremble, Marvin Smith, and Euelia Durden's Motion for Summary Judgment and dismiss Plaintiff Darius Ray Jordan's case for failure to exhaust his administrative remedies. Because exhaustion is "a matter in abatement and not generally an adjudication on the merits," the Magistrate Judge also recommends treating Defendants'
Summary: ORDER ON REPORT AND RECOMMENDATION C. ASHLEY ROYAL, Chief Judge. Before the Court is the United States Magistrate Judge's Report and Recommendation to grant Defendants Tommy Tremble, Marvin Smith, and Euelia Durden's Motion for Summary Judgment and dismiss Plaintiff Darius Ray Jordan's case for failure to exhaust his administrative remedies. Because exhaustion is "a matter in abatement and not generally an adjudication on the merits," the Magistrate Judge also recommends treating Defendants' M..
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ORDER ON REPORT AND RECOMMENDATION
C. ASHLEY ROYAL, Chief Judge.
Before the Court is the United States Magistrate Judge's Report and Recommendation to grant Defendants Tommy Tremble, Marvin Smith, and Euelia Durden's Motion for Summary Judgment and dismiss Plaintiff Darius Ray Jordan's case for failure to exhaust his administrative remedies. Because exhaustion is "a matter in abatement and not generally an adjudication on the merits," the Magistrate Judge also recommends treating Defendants' Motion as a motion to dismiss rather than a motion for summary judgment.1 Plaintiff has filed an Objection to the Report and Recommendation, and Defendants have submitted an additional Response.2 Having considered these filings pursuant to 28 U.S.C. § 636(b)(1), the Court agrees with the findings and conclusions of the Magistrate Judge.
Plaintiff's Objection does not challenge the Magistrate Judge's analysis. Instead, Plaintiff asserts for the first time that the grievance coordinator should have realized he was filing an "emergency grievance" and taken immediate action to address his complaint rather than rejecting it as an untimely informal grievance.3 Plaintiff's argument is without merit.
Assuming, arguendo, that the grievance coordinator erred, Plaintiff should have addressed this error in accordance with the Georgia Department of Corrections Standard Operating Procedures ("GDC SOP"). GDC SOP specifically provides that an "inmate may grieve the determination that his grievance is not an emergency by filing a grievance. This grievance will be handled through the normal process set forth in this SOP."4 Because Plaintiff failed to file any further grievances, he also failed to exhaust his available administrative remedies.5 Thus, Plaintiff's case must be dismissed.
Based on the foregoing, the Magistrate Judge's Report and Recommendation [Doc. 25] is ADOPTED and MADE THE ORDER OF THE COURT. Defendants' Motion [Doc. 14], as construed, is GRANTED, and Plaintiff's case is hereby DISMISSED for failure to exhaust his administrative remedies.
