Mayo v. Bentley et al (INMATE 2)
Filing
38
ORDER that on or before 9/22/2011 Plaintiff shall file a response to Defendants' answer and written report, as supplemented, as further set out in the order. Signed by Honorable Judge Susan Russ Walker on 9/1/2011. (dmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
_____________________________
DAVID LEE MAYO, #241 618
Plaintiff,
v.
*
*
*
ANTHONY ASKEW, et al.,
*
Defendants.
_____________________________
2:11-CV-392-MEF
(WO)
*
ORDER
The Magistrate Judge has reviewed the answer, written report, supplemental written
report, and supporting evidentiary materials filed by Defendants and determined that Plaintiff
should file a response addressing each of the arguments and defenses contained in these
reports. In filing his response, Plaintiff shall address Defendants’ assertion that the
complaint fails to establish that they in any way acted in violation of Plaintiff's constitutional
rights. Plaintiff shall also address Defendants’ argument that he has failed to exhaust his
available administrative remedies as required by 42 U.S.C. § 1997e(a) of the Prison
Litigation Reform Act (“PLRA”).1 Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819,
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This section provides that “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” Defendants assert
that Plaintiff has failed to pursue the administrative remedies available to him at the Easterling Correctional
Facility with respect to the claims presented in the instant complaint. (Doc. No. 28 and Summers Affidavit;
Doc. No. 37 and Summers Affidavit.) Specifically, Defendants assert that during Plaintiff's incarceration at
Easterling, he has never submitted an inmate request for religious assistance in accordance with AR 313, III,
1825 n.6 (2001) (“Congress has provided in § 1997(e)(a) that an inmate must exhaust
irrespective of the forms of relief sought and offered through administrative remedies.”);
Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies
to all inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.”); Woodford v. Ngo,
548 U.S. 81, 126 S.Ct. 2378, 2387 (2006) (“[T]he PLRA 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.” Id. at 2386.
Accordingly, it is
ORDERED that on or before September 22, 2011 Plaintiff shall file a response to
Defendants' answer and written report, as supplemented. If Plaintiff fails to file a response
as required by this order, the court will treat Plaintiff's failure to respond as an
abandonment of the claims set forth in the complaint and as a failure to prosecute this
action. Moreover, Plaintiff is specifically cautioned that if he fails to file a response in
L, with respect to the allegations presented in the instant complaint which is required before seeking court
intervention regarding his claims.
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compliance with the directives of this order the undersigned will recommend that this
case be dismissed for such failure. In addition, if Plaintiff fails to respond to the
answers and written report, as supplemented, with respect to each of the claims raised
in his complaint, the court will treat this failure as an abandonment of these claims and
shall proceed as justice requires.
As indicated herein, at some time in the future the court may treat Defendants' reports
and Plaintiff's response(s) as a dispositive motion and response.2 Thus, in filing a response
to Defendants' reports Plaintiff should not rely only on his or her unsworn pleadings but
should respond by filing sworn affidavits,3 or other evidentiary materials developed through
discovery or other appropriate means and which set forth specific facts demonstrating there
is a genuine issue of material fact for trial in this case. Failure to file sworn affidavits or
other evidentiary materials may result in this court accepting Defendants’ evidence as the
truth.4 If documents are referred to in the opposing affidavits and have not been previously
filed with the court, sworn or certified copies of those papers must be attached to the
affidavits or served with them.
2
Thus, in preparing a response to the special reports filed by Defendants, Plaintiff should refer to
the requirements of Rule 56, Federal Rules of Civil Procedure.
3
An affidavit is a sworn statement in writing made under oath or on affirmation before a notary
public or other authorized officer. The affidavit must be made on personal knowledge, set forth such facts
as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the
matters stated in the affidavit.
4
If Plaintiff is unable to present, by affidavit, facts essential to justify his opposition to Defendants'
reports, then Plaintiff must file a sworn statement as to why he or she is unable to do so.
3
The parties are hereby notified that, unless within ten (10) days from the date of this
order a party files a response in opposition which presents sufficient legal cause why such
action should not be undertaken, upon the expiration of the time for Plaintiff to file a
response as allowed by this order, the court may at any time thereafter and without further
notice to the parties (1) treat the written report and any supporting evidentiary materials as
a motion for summary judgment and (2) after considering any response as allowed by this
order, rule on the motion for summary judgment in accordance with the law.
Failure to follow the requirements of this order about the proper way to respond to
Defendants' reports may result in a recommendation of the Magistrate Judge that final
judgment be entered in favor of Defendants without there being an evidentiary hearing.
Plaintiff is advised that if he asserts compliance with the correctional facility’s
administrative procedures he must submit relevant evidentiary materials in support of this
assertion showing that he has complied with each step of the grievance procedure. His
mere conclusory allegation of exhaustion will be insufficient to defeat Defendants'
argument.
DONE, this 1st day of September 2011.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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