Martin v. McDaniel et al.

Filing 55

ORDER ADOPTING 53 Report and Recommendations, GRANTING 38 Motion to Dismiss Complaint, DENYING AS MOOT 33 Motion Quasi in rem jurisdiction; DENYING AS MOOT 36 Motion for Court to Enforce Administrative Summons; DENYING AS MOOT 41 Motio n to Stay; DENYING AS MOOT 44 Motion to Amend/Correct; DENYING AS MOOT 46 Motion to Reinstitute and Process Summons; DENYING AS MOOT 49 Motion; DENYING AS MOOT 50 Motion to Amend/Correct. Ordered by Judge Marc Thomas Treadwell on 3/6/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES M. MARTIN,

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Plaintiff,
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v.
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Lieutenant JOHNNY McDANIEL
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Defendant.
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________________________________)

CIVIL ACTION NO. 5:11-CV-192 (MTT)

ORDER
This case is before the Court on the Recommendation of United States
Magistrate Judge Stephen Hyles. (Doc. 53). The Magistrate Judge, having reviewed
the Defendant’s Motion to Dismiss (Doc. 38) and the Plaintiff’s various Motions,1
recommends granting the Defendant’s Motion because the Plaintiff failed to exhaust his
available administrative remedies pursuant to 42 U.S.C. § 1997e(a)  and recommends
denying the Plaintiff’s Motions as moot.
The Plaintiff filed an objection to the Recommendation. (Doc. 54). Pursuant to
28 U.S.C. § 636(b)(1), the Court has considered the Plaintiff’s objections and has made
a de novo determination of the portions of the Recommendation to which the Plaintiff
objects. The Plaintiff argues that he exhausted his administrative remedies because the

1
The Plaintiff’s Motions include: Motion for Seizure of Property Belonging to Defendant (Doc.
33); Motion for Enforcement of Administrative Summons for Discovery (Doc. 36); Motion to Stay
(Doc. 41); Motion to Supplement Record and Strike Defendant’s Motion to Dismiss (Doc. 44);
Motion to Reinstitute and Process Summons (Doc. 46); Motion for Limited Discovery (Doc. 49);
and Motion to Amend/Correct Motion for Limited Discovery (Doc. 50).

grievance counselors failed to provide him with the opportunity to file an emergency
grievance and instead, required him to file an informal grievance. (Doc. 54 at 9).
However, the Plaintiff fails to explain why he did not comply with the prison’s nonemergency grievance process, which he is required to comply with if a counselor
determines that his grievance is not an emergency. (Doc. 38-7 at 10-11). Nor did the
Plaintiff mention the counselors’ failure to classify his grievance as an emergency in the
grievance.
The Court accepts and adopts the findings, conclusions and recommendations of
the Magistrate Judge. The Recommendation is adopted and made the order of this
Court. Therefore, the Defendant’s Motion to Dismiss (Doc. 38) is GRANTED, and the
Plaintiff’s Motions (Docs. 33, 36, 41, 44, 46, 49, and 50) are DENIED as moot. This
case is DISMISSED.
SO ORDERED, this the 6th day of March, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT