Palomar-Martinez v. Hughes et al (INMATE2)

Filing 12

ORDER that on or before 11/28/2011 Plaintiff shall file a response to Defendants' 10 Answer and 11 Special Report as further set out in the order. Signed by Honorable Judge Susan Russ Walker on 11/7/2011. (dmn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISIO
JOSE PALOMAR-MARTINEZ,
Plaintiff,
v.
PRESTON HUGHES (CAPT.), et al.,
Defendants.

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) CIVIL ACTION NO. 2:11-CV-780-TMH
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(WO)
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ORDER

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.”);
Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies

1

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 Covington County Jail with respect to the claims presented in
the instant complaint. (Doc. No. 11 and Exhs. F-H.) Specifically, Defendants state that the Covington County Jail
provides administrative remedies to persons confined in the facility by way of a grievance procedure and that
Plaintiff has failed to exhaust these available remedies. (Id.)

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 November 28, 2011 Plaintiff shall file a response to
Defendants' answer and 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 recommend 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.

2

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

2

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.
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'
report, then Plaintiff must file a sworn statement as to why he or she is unable to do so.

3

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' report 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 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 7th day of November 2011.

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

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