Mallory v. Hetzel et al (INMATE2)

Filing 16

ORDER that on or before November 17, 2011 Plaintiff shall file a response to Defendants' answers and written reports as further set out in order. Signed by Honorable Judge Susan Russ Walker on 10/27/2011. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JACQUES G. MALLORY, #191 525,
Plaintiff,
v.
GARY HETZEL, WARDEN, et al.,
Defendants.

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CIVIL ACTION NO. 2:11-CV-767-TMH
(WO)

ORDER
The Magistrate Judge has reviewed the answers, written reports, and supporting
evidentiary materials filed by Defendants (Doc. Nos. 8, 12-15.) 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 specifically address:
1. Defendants Wood’s, McKinnon’s, and Webb’s 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.”);
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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.” The mental health
defendants (Wood, McKinnon, and Webb) 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. Nos. 13, 14, 15 and Wood and Webb Affidavits.) Specifically, the mental health
defendants assert that during Plaintiff's incarceration at Easterling, he has never submitted a grievance with
respect to the allegations presented in the instant complaint which is required before seeking court
intervention regarding his claims.

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.
2. Defendant Wilson's assertion that the complaint fails to establish that this
defendant in any way acted in violation of Plaintiff's constitutional rights.
Accordingly, it is
ORDERED that on or before November 17, 2011 Plaintiff shall file a response to
Defendants' answers and written reports. 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 compliance with the
directives of this order the undersigned will recommend that this case be dismissed for

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such failure. In addition, if Plaintiff fails to respond to the answers and written reports
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.
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

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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.
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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.
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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.

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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 reports 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 medical provider’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 Wood’s,
McKinnon’s, and Webb’s argument.
DONE, this 27th day of October 2011.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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