CONSTANT v. BROWN et al

Filing 36

ORDER adopting Magistrate Judge's 35 SECOND REPORT AND RECOMMENDATION. Defendants Brown and Land's motion to dismiss (Doc. 29 ) is DENIED. This case is recommitted to the magistrate judge for further pretrial proceedings. Signed by JUDGE T KENT WETHERELL II on 1/10/2022. (mb)

Case 5:20-cv-00085-TKW-MJF Document 36 Filed 01/10/22 Page 1 of 2

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
BRIAN CHARLES PIERRE
CONSTANT, III,
Plaintiff,
v.

Case No. 5:20-cv-85-TKW-MJF

JEFFREY BROWN, et al.,
Defendants.
/
ORDER
This case is before the Court based on the magistrate judge’s Second Report
and Recommendation (Doc. 35). No objections were filed. Upon due consideration
of the Report and Recommendation and the case file, the Court agrees with the
magistrate judge’s determination that Defendants Brown and Land’s motion to
dismiss should be denied because they have not satisfied their burden of showing
that an administrative remedy was “available”—as that term is used in §1997e(a)
and as construed by the Supreme Court—to exhaust the choking incident that
allegedly occurred at Holmes C.I. on October 21, 2019.
Accordingly, it is ORDERED that:
1.

The magistrate judge’s Second Report and Recommendation is adopted
and incorporated by reference in this Order.
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Case 5:20-cv-00085-TKW-MJF Document 36 Filed 01/10/22 Page 2 of 2

2.

Defendants Brown and Land’s motion to dismiss (Doc. 29) is
DENIED.

3.

This case is recommitted to the magistrate judge for further pretrial
proceedings.

DONE and ORDERED this 10th day of January, 2022.

T. Kent Wetherell, II
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE

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