JOHNSON v. HOLT et al

Filing 28

ORDER REJECTING 25 Report and Recommendations and DENYING 17 Motion to Dismiss. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/23/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TROY DELMAR JOHNSON,
Plaintiff,
v.
Warden AHMED HOLT,
Defendant.

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CIVIL ACTION NO. 5:14-CV-380 (MTT)

ORDER
Before the Court is the Recommendation of United States Magistrate Judge
Charles Weigle (Doc. 25) on the Defendants’ motion to dismiss (Doc. 17). The
Magistrate Judge recommends granting the Defendants’ motion because the Plaintiff
failed to exhaust his administrative remedies. The Plaintiff has objected to the
Recommendation, and the Defendants have responded. (Docs. 26, 27). Pursuant to
U.S.C. § 636(b)(1), the Court has reviewed the Plaintiff’s objection and has made a de
novo determination of the portions of the Recommendation to which the Plaintiff objects.
I.
The Plaintiff has asserted additional facts in his objection. Therefore, the Court
will construe the objection as a motion to amend the complaint. See Newsome v.
Chatham Cty. Det. Ctr., 256 F. App’x 342, 344 (11th Cir. 2007) (“Although the form of
those additional allegations were objections to the recommendation of dismissal, the
collective substance of them was an attempt to amend the complaint. Because courts
must construe pro se pleadings liberally, the district court should … consider[ the

plaintiff’s] additional allegations in the objection as a motion to amend his complaint and
grant[ ] it.”). Accordingly, this motion is GRANTED.
II.
A. Turner v. Burnside
The resolution of a failure-to-exhaust administrative remedies defense involves
two steps. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir.2008). The court first
looks at the parties' factual allegations. Id. If they conflict, the court takes the plaintiff's
version of the facts as true. Id. “If, in that light, the defendant is entitled to have the
complaint dismissed for failure to exhaust administrative remedies, it must be
dismissed.” Id. If the complaint is not subject to dismissal under the plaintiff's version of
the facts, the court must proceed to the second step, making specific findings of fact to
resolve the disputed factual issues related to exhaustion. Id. At this step, the
Defendants have the burden to prove the Plaintiff failed to exhaust his administrative
remedies. Id.
B. Analysis
The Plaintiff has alleged he has exhausted his administrative remedies.
Specifically, he alleges he filed a grievance, received no response within the 40 days
allotted for the prison to respond, and he filed an appeal, which also did not receive a
response within the allotted time. (Docs. 17-2 at 8; 17-3 at 2; 26 at 3; 26-1 at 3). He
admits his grievance was untimely, but he has alleged in his objection that the
grievance coordinator waived the ten-day filing requirement for grievances. (Doc. 26 at
2). The Defendants point out that the grievance “falsely” states that the Plaintiff
discovered the non-delivery of his mail on May 28, 2013, the day before he filed the

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grievance, and therefore, the grievance coordinator would not have needed to waive the
deadline. (Doc. 27 at 3). However, the grievance states on its face that the grievance
relates to an incident that occurred in February, thereby putting the grievance
coordinator on notice of possible untimeliness. (Docs. 17-3 at 2; 26-1 at 1). Because
the grievance coordinator submitted the grievance to Central State Prison, it is plausible
that she waived the ten-day requirement at screening, as described in the Standard
Operating Procedures (“SOP”).1 (Docs. 17-4 at 8, 14; 26-1 at 2). Therefore, taking the
Plaintiff’s allegations as true, he has asserted sufficient facts to allege compliance with
the SOP and thus exhaustion.
At step two, the Court makes specific findings of fact to resolve the disputed
factual issues related to exhaustion, and the Defendants have the burden to prove the
Plaintiff failed to exhaust his administrative remedies. Turner, 541 F.3d at 1082. Here,
the parties dispute whether the Plaintiff obtained a good cause waiver to excuse the
untimely filing of his grievance. The Plaintiff contends he received a waiver from the
grievance coordinator. (Doc. 26 at 2). The Defendants disagree. (Doc. 27 at 2-3).
The Defendants have not provided sufficient evidence to refute the Plaintiff’s
assertion that he received a good cause waiver. The bare assertion that the grievance

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When an out-of-time grievance is received by a grievance coordinator, the coordinator may recommend
that the Warden reject it for untimeliness or “waive the time limit for good cause” as part of a “screening”
process. (Doc. 17-4 at 8). When a prisoner is grieving an incident at a different facility, it appears that
the grievance coordinator at the inmate’s current institution is responsible for this screening process
because the grievance coordinator at the named facility picks up the grievance procedure later at the
“processing” stage. (Doc. 17-4 at 14-15) (“Where a grievance is filed in reference to a different facility,
the Grievance Coordinator at the offender’s current facility will … forward the Original Grievance to the
Grievance Coordinator at the named facility for processing.”) (emphasis added). “Processing” occurs
after “screening,” and screening is where the grievance coordinator determines whether to recommend
rejection for untimeliness. (Doc. 17-4 at 8). Processing occurs “[o]nce the Grievance Coordinator
accepts the grievance or once the Warden rejects the Grievance Coordinator’s recommendation to reject
the grievance.” (Doc. 17-4 at 9). This suggests that the coordinator at the prison where the incident
occurred is responsible for issuing the good cause waiver. This is exactly what the Plaintiff has alleged.

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was untimely filed is insufficient, as is pointing out that the Plaintiff’s reason for
untimeliness is not included in the SOP’s exemplar list. (Doc. 27 at 2, 3). The Court
notes that the grievance at issue here was filed in 2013 and is still listed as “pending.”2
(Docs. 17-2, ¶ 25; 17-3 at 3). Hence, it does not appear to have been rejected as
untimely at screening, as mandated by the SOP. (Doc. 17-4 at 8). Furthermore, the
Defendants have not provided any evidence that the grievance was rejected, such as
the acknowledgement an inmate signs when he receives a rejected grievance back.
(Doc. 17-4 at 9). On the contrary, they have provided evidence that the grievance is
pending, suggesting that it was accepted. Therefore, the Defendants have not carried
their burden to prove the Plaintiff failed to exhaust his administrative remedies. Cf.
Whatley v. Warden, Ware State Prison, ___ F.3d ___, 2015 WL 5568465, at *9 (11th
Cir.) (“[D]istrict courts may not enforce a prison's procedural rule to find a lack of
exhaustion after the prison itself declined to enforce the rule.”).
III. CONCLUSION
For the foregoing reasons, the Magistrate Judge’s Report and Recommendation
is REJECTED and the Defendants’ Motion to Dismiss is DENIED.

SO ORDERED, this the 23rd day of October, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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The grievance history is largely illegible, so it is unclear if the Plaintiff’s appeal is also listed as still
pending.

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