Kelly v. Wright et al (INMATE2)(CONSENT)
ORDER directing that on or before October 25, 2011 Plaintiff shall file a response to Defendants' 16 written report, as further set out. Signed by Honorable Judge Terry F. Moorer on 10/4/11. (scn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EDDIE MACK KELLY, #273 542
HOMER WRIGHT, et al.,
The Magistrate Judge has reviewed the answer, 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 this report. In filing his
response, Plaintiff shall specifically 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, 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.”);
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 failed to pursue the administrative remedies available to him at the Pike County Jail with respect to
the claims presented in the instant complaint. (Doc. No. 16 at pgs. 20-21.) Specifically, Defendants state that
the Pike County Jail provides administrative remedies to persons confined in the facility by way of a grievance
procedure and that Plaintiff failed to exhaust these available remedies. (Id.)
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 October 25, 2011 Plaintiff shall file a response to
Defendants' written report. If Plaintiff fails to file a response as required by this order,
the court will treat this 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 compliance with the directives
of this order the undersigned will order that this case be dismissed for such failure. In
addition, if Plaintiff fails to respond to the written report 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' report
and Plaintiff's response(s) as a dispositive motion and response.2 Thus, in filing a response
to Defendants' report 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.
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 special report and any supporting evidentiary materials as
a motion for summary judgment and (2) after considering any response as allowed by this
Thus, in preparing a response to the special report filed by Defendant Plaintiff should refer to
the requirements of Rule 56, Federal Rules of Civil Procedure.
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.
If Plaintiff is unable to present, by affidavit, facts essential to justify his opposition to
Defendants' report, then Plaintiff must file a sworn statement as to why he or she is unable to do so.
order, rule on the motion for summary judgment in accordance with the law.
Failure to follow the requirements of this order about the proper manner in which to
respond to Defendants' report will result in an Order 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 county jail's grievance procedures he must submit relevant
evidentiary materials in support of this assertion showing that he complied with each step
of the grievance procedure. His mere conclusory allegation of exhaustion will be
insufficient to defeat Defendants' argument.
Done, this 4th day of October 2011.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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