Montague v. Bell et al (INMATE3)

Filing 32

ORDER that the stay of proceedings in this case entered on 5/27/2011 is LIFTED; ORDER TO FILE SPECIAL REPORT and ANSWER on or before July 17, 2013, as further set out in order. Signed by Honorable Judge Wallace Capel, Jr on 6/17/13. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RUSSELL MONTAGUE,
Plaintiff,
v.
LIEUTENANT BELL, et al.,

Defendants.

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Civil Action No. 2:11cv256-WHA
(WO)

ORDER
Upon review of Federal Defendants’ Response to Order to Show Cause, filed on May
30, 2013 (Doc. No 31), it is hereby
ORDERED that the stay of proceedings in this case entered on May 27, 2011, is
LIFTED.
The court believes the government has had sufficient time in which to conduct any
relevant investigations and finds that Federal Defendants have failed to provide good cause
as to why the stay should remain in effect in this case. Therefore, with the exception of
filing dates set forth in court’s prior orders, this case shall proceed under the orders entered
prior to the stay of proceedings, specifically the court’s order of May 10, 2011 (Doc. No. 9).
Accordingly, it is hereby ORDERED that:
1. The defendants undertake a review of the subject matter of the instant complaint
(a) to ascertain the relevant facts/circumstances; (b) to consider whether any action should
be taken by prison officials to resolve the subject matter of the complaint; and (c) to

determine whether other similar complaints, whether pending in this court or elsewhere,
should be considered together.
2. A written report be filed by the defendants and a copy served upon the plaintiff on
or before July 17, 2013. The report must contain the sworn statements of all persons having
personal knowledge of the subject matter of the complaint.
3. All defenses including immunity defenses must be set forth in the written report
or such defenses may be waived. Authorization is hereby granted to the defendants to
interview all witnesses who agree to such action, including the plaintiff. Whenever relevant,
copies of medical and/or psychiatric records shall be attached to the written report. Where
the plaintiff's claim or the defendants’ defenses relate to or involve the application of
administrative rules, regulations or guidelines, the written report shall include copies of all
such applicable administrative rules, regulations or guidelines. In addressing the claims
presented by the plaintiff, the defendants shall furnish copies of all documents, records and
regulations relevant to the plaintiff’s claims for relief.
4. If the defendants assert failure of exhaustion as an affirmative defense, they must
specifically identify the grievance procedure available to the plaintiff and/or the manner in
which the plaintiff failed to exhaust a grievance procedure. If the plaintiff failed to undertake
the available grievance procedure during his confinement in the jail/correctional facility and
such procedure is no longer available to him, the defendants shall so advise the court. Jones
v. Bock, 549 U.S. 199, 216 (2006) (failure of exhaustion is an affirmative defense which
must be raised by the defendants); Woodford v. Ngo, 548 U.S. 81, 93 (2006) (“[T]he PLRA
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exhaustion requirement requires proper exhaustion.”).

“Proper exhaustion demands

compliance with an agency’s deadlines and other critical procedural rules [as a precondition
to filing suit in federal court] because no adjudicative system can function effectively without
imposing some orderly structure on the courts of its proceedings.... Construing § 1997e(a)
to require proper exhaustion ... fits with the general scheme of the PLRA, whereas [a
contrary] interpretation [allowing an inmate to bring suit in federal court once administrative
remedies are no longer available] would turn that provision into a largely useless
appendage.” 548 U.S. at 90-91. If appropriate, the defendants may limit their report to
assertion of the exhaustion defense.
5. An answer shall be filed by the defendants on or before July 17, 2013.
6. No motion for summary judgment, motion to dismiss or any other dispositive
motions addressed to the complaint be filed by any party without permission of the court.
If any pleading denominated as a motion for summary judgment, motion to dismiss or other
dispositive motion is sent to the court, the court shall not file or otherwise treat the pleading
as a dispositive motion until and unless further order of the court.
Done this 17th day of June, 2013.

/s/Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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