Major v. Smith, 5:15-CV-483 (MTT). (2018)
Court: District Court, M.D. Georgia
Number: infdco20180226885
Visitors: 7
Filed: Feb. 23, 2018
Latest Update: Feb. 23, 2018
Summary: ORDER MARC T. TREADWELL , Magistrate Judge . United States Magistrate Judge Stephen Hyles recommends granting Defendants DeLoach and Smith's motion to dismiss (Doc. 77) because Plaintiff Troy Major failed to exhaust his administrative remedies. See generally Doc. 88. Major has not objected to the Recommendation. 1 The Court has reviewed the Recommendation, and the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge. The Recommendation is ADOP
Summary: ORDER MARC T. TREADWELL , Magistrate Judge . United States Magistrate Judge Stephen Hyles recommends granting Defendants DeLoach and Smith's motion to dismiss (Doc. 77) because Plaintiff Troy Major failed to exhaust his administrative remedies. See generally Doc. 88. Major has not objected to the Recommendation. 1 The Court has reviewed the Recommendation, and the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge. The Recommendation is ADOPT..
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ORDER
MARC T. TREADWELL, Magistrate Judge.
United States Magistrate Judge Stephen Hyles recommends granting Defendants DeLoach and Smith's motion to dismiss (Doc. 77) because Plaintiff Troy Major failed to exhaust his administrative remedies. See generally Doc. 88. Major has not objected to the Recommendation.1 The Court has reviewed the Recommendation, and the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge. The Recommendation is ADOPTED and made the order of this Court. Accordingly, Defendants DeLoach and Smith's motion to dismiss (Doc. 77) is GRANTED, and Major's claims against DeLoach and Smith are DISMISSED without prejudice for failure to exhaust administrative remedies.2
SO ORDERED.
FootNotes
1. The Court also notes that Major did not respond to the Defendants' motion to dismiss despite being ordered to respond and advised of a plaintiff's burden in response to a motion to dismiss for failure to exhaust administrative remedies. See generally Doc. 79.
2. The applicable two-year statute of limitations appears to have run. Therefore, the dismissal is, in effect, likely with prejudice. Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981). Some circuits have held that equitable tolling applies while a prisoner exhausts his administrative remedies, but the Eleventh Circuit has not made such a holding. See Napier v. Preslicka, 314 F.3d 528, 534 n.3 (11th Cir. 2002) (citing Clifford v. Gibbs, 298 F.3d 328, 332-33 (5th Cir. 2002)); Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001). The Eleventh Circuit has, however, suggested that Georgia's renewal statute, O.C.G.A. § 9-2-61, applies in 42 U.S.C. § 1983 cases. See Scott v. Muscogee Cty., 949 F.2d 1122, 1123 (11th Cir. 1992). Regardless, even if Major is barred from refiling these claims, dismissal is appropriate. Major was advised of the consequences of a motion to dismiss for failure to exhaust administrative remedies, instructed to supplement the record as to the issue of exhaustion, and given an opportunity to do so. Doc. 79 at 2-3. The record shows that Major has failed to exhaust his administrative remedies. See Bryant v. Rich, 530 F.3d 1368, 1375 n.11 ("We do not mean to say today that a failure to exhaust can never correctly result in a dismissal with prejudice." (citing Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005); Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir. 2004))).
Source: Leagle
