REPORT AND RECOMMENDATION

STEPHEN HYLES, Magistrate Judge.

Presently pending before the Court are two motions for judgment on the pleadings ("MJOP") (ECF Nos. 8, 13) filed by Defendants. For the reasons explained below, it is recommended that Defendants' MJOPs be granted and Plaintiff's remaining claims be dismissed.

BACKGROUND

I. Procedural History

Plaintiff originally filed his complaint in the Superior Court of Macon County, Georgia, on August 29, 2016. Defendants filed a notice of removal (ECF No. 1) on July 28, 2017. On November 7, 2017, the Court issued an Order and Report and Recommendation ("R&R") after reviewing Plaintiff's complaint as required by the Prison Litigation Reform Act ("PLRA"). Order & R. & R., ECF No. 12. Therein, it was recommended that most of Plaintiff's claims be dismissed. See id. at 1-2. U.S. District Judge Marc T. Treadwell adopted those recommendations as the order of the Court on February 6, 2018. Order 2, ECF No. 14. Plaintiff's Eighth Amendment claims against Defendants McKenzie and McLaughlin regarding his administrative segregation confinement were allowed to proceed, as were his Religious Land Use and Institutionalized Persons Act ("RLUIPA") claims and his First Amendment retaliation claims against Defendants McKenzie and McLaughlin.1 Id.

II. Factual Background of Plaintiff's Remaining Claims

Plaintiff's claims arise out of his May 25, 2016, transfer to—and imprisonment at— Macon State Prison ("MSP") in Oglethorpe, Georgia. He asserts he is a "minimum security level inmate" who was inappropriately transferred to MSP, a "level 5 facility which houses a mixture of dangerous close security level inmates and dangerous medium security level inmates." Compl. 6, ECF No. 1-1. Plaintiff alleges that his confinement at MSP is likely to cause "imminent harm and substantial injury to Plaintiff's person[,]" and that he receives threats from other inmates and lives in constant fear of being hurt or killed. Id. at 6, 9. Plaintiff's constant fear and stress have caused "severe sleep disorders" which, in turn, have put him on a highway to the "Danger Zone."2 Id. at 10.

According to Plaintiff, Defendant McKenzie labeled him "a threat to the safe and secure operation of the facility." Compl. 7. As a result, Plaintiff was placed in "disciplinary segregation." Id. at 8. Plaintiff believes Defendant McKenzie's labeling of him as a threat—and the resulting placement of Plaintiff in segregation—was done in retaliation for his filing a grievance complaining of his circumstances. Id. Plaintiff also alleges that his placement in segregation violates his Eighth Amendment rights because it puts his mental health at risk of deterioration and could require hospitalization. Id. at 13.

Finally, while at MSP, Plaintiff "continually requested that he be provided vegan meal trays in accordance with his religious belief[s]." Compl. 11. Plaintiff alleges that these requests were not honored, and he "suffer[ed] from extreme hunger," as a result of foregoing meals that did not conform to his beliefs. Id. at 12. This extreme hunger forced him to "significantly modify his religious behavior and significantly violate his religious beliefs" by eating "food which included meat[.]" Id.

DISCUSSION

Defendants move for judgment on the pleadings in their favor claiming, inter alia, that Plaintiff failed to exhaust his administrative remedies. (ECF Nos. 8, 13.) Because the Court finds that Plaintiff did not exhaust his administrative remedies, the Court declines to address Defendant's other grounds for dismissal.

I. Exhaustion Standard

Title 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). The argument that a plaintiff has failed to satisfy section 1997e(a) is properly raised in a motion to dismiss. Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008) ("[E]xhaustion should be decided on a Rule 12(b) motion to dismiss[.]").3 Furthermore, since dismissal for failure to exhaust is not an adjudication on the merits, the Court can resolve factual disputes using evidence from outside the pleadings. Id. at 1376.

"[D]eciding 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. Id.

II. Defendants' Motions for Judgment on the Pleadings

Defendants contend Plaintiff failed to fully utilize the Georgia Department of Corrections ("GDOC") grievance procedure—applicable to all inmates—before filing his complaint. First Br. in Supp. 4-9, ECF No. 8-1.4 Plaintiff did not respond to Defendants' arguments. However, in his complaint Plaintiff states that he "did present the facts relating to his complaint in the institution's prisoner grievance procedures[]" via "appropriately filed grievances [and] appeals of grievances after [initial] grievances had been rejected[.]" Compl. 2. Because at the first stage of the exhaustion analysis the Court must take Plaintiff's version of the facts as being true, Plaintiff's Complaint cannot be dismissed for lack of exhaustion at this first step. Turner, 541 F.3d at 1082; see also Dollar v. Coweta Cty. Sheriff Office, 446 F. App'x 248, 251-52 (11th Cir. 2011).

Since the Complaint was not dismissed at the first step, the Court can make factual findings relating to exhaustion. A defendant bears the burden of establishing a lack of exhaustion at the second step of the inquiry. Turner, 541 F.3d at 1082-83. The Court makes the following factual findings and determines that Defendants have met their burden regarding Plaintiff's claims.

Macon State Prison follows the GDOC's Standard Operating Procedures ("SOPs") regarding grievances. Streeter Aff. ¶ 3, ECF No. 8-2. 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. ¶¶ 9 & Attach. A at 8. A warden has forty calendar days within which to respond to an original grievance. Id. Attach. A at 11. 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. ¶ 16 & Attach. A at 13.

Before bringing this action, Plaintiff filed two grievances related to his remaining claims. On July 1, 2016, Plaintiff submitted grievance number "222152" in which he complained that "[s]ince May of 2016," MSP officials acted "[r]ecklessly and negligently" by confining him there instead of a location more appropriate for a prisoner of his security classification. Streeter Aff. ¶ 18 & Attach. C-1 at 2.5 That grievance was rejected because it was filed "outside of the timeframe as outlined in [the GDOC SOPs]." Id. Attach. C-1 at 4 Plaintiff appealed the rejection but his appeal was denied on October 12, 2016. Streeter Aff. ¶ 18 & Attach. C-1 at 7. On July 20, 2016, Plaintiff submitted a grievance complaining that MSP staff had "been depriving [Plaintiff] of food and subsequently causing [Plaintiff's] health to diminish from lack of nutrition and extreme mental stress since May of 2016[]" and asking that his name "be immediately added to the list designated for individuals to receive vegan meals." Id. ¶ 20 & Attach. C-3 at 1. This grievance was also rejected because it had been filed "out of time according to policy." Id. ¶ 20 & Attach. C-3 at 2. Plaintiff did not appeal. He did not file any grievances related to his claim that his placement in segregation was retaliatory.6

"The 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 F. App'x 864, 866 (11th Cir. 2013).

By showing that Plaintiff's grievances did not comply with relevant administrative deadlines, Defendants have shown that Plaintiff failed to properly exhaust the administrative remedies applicable to his claims. Accordingly, it is recommended that Defendants' motions for judgment on the pleadings (ECF Nos. 8, 13) be granted and Plaintiff's claims dismissed.

CONCLUSION

For the reasons explained above, it is recommended that Defendants' motions for judgment on the pleadings (ECF Nos. 8, 13) be granted and Plaintiff's claims dismissed. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.

The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."

SO RECOMMENDED,