MAJOR v. TOOLE et al

Filing 90

ORDER ADOPTING 88 Report and Recommendations and GRANTING 77 Motion to Dismiss. Major's claims against DeLoach and Smith are DISMISSED without prejudice for failure to exhaust administrative remedies. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/23/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TROY MAJOR,
Plaintiff,
v.

TIMOTHY SMITH, et al.,
Defendants.

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CIVIL ACTION NO. 5:15-CV-483 (MTT)

ORDER
United States Magistrate Judge Stephen Hyles recommends granting
Defendants DeLoach and Smith’s motion to dismiss (Doc. 77) because Plaintiff Troy
Major failed to exhaust his administrative remedies. See generally Doc. 88. Major has
not objected to the Recommendation.1 The Court has reviewed the Recommendation,
and 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. Accordingly, Defendants DeLoach and Smith’s motion to dismiss (Doc. 77) is
GRANTED, and Major’s claims against DeLoach and Smith are DISMISSED without
prejudice for failure to exhaust administrative remedies.2

1

The Court also notes that Major did not respond to the Defendants’ motion to dismiss despite being
ordered to respond and advised of a plaintiff’s burden in response to a motion to dismiss for failure to
exhaust administrative remedies. See generally Doc. 79.
2
The applicable two-year statute of limitations appears to have run. Therefore, the dismissal is, in effect,
likely with prejudice. Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993); Burden v. Yates,
644 F.2d 503, 505 (5th Cir. 1981). Some circuits have held that equitable tolling applies while a prisoner
exhausts his administrative remedies, but the Eleventh Circuit has not made such a holding. See Napier
v. Preslicka, 314 F.3d 528, 534 n.3 (11th Cir. 2002) (citing Clifford v. Gibbs, 298 F.3d 328, 332-33 (5th
Cir. 2002)); Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1280 (11th Cir. 2001). The Eleventh Circuit has,

SO ORDERED, this 23rd day of February, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

however, suggested that Georgia’s renewal statute, O.C.G.A. § 9-2-61, applies in 42 U.S.C. § 1983
cases. See Scott v. Muscogee Cty., 949 F.2d 1122, 1123 (11th Cir. 1992). Regardless, even if Major is
barred from refiling these claims, dismissal is appropriate. Major was advised of the consequences of a
motion to dismiss for failure to exhaust administrative remedies, instructed to supplement the record as to
the issue of exhaustion, and given an opportunity to do so. Doc. 79 at 2-3. The record shows that Major
has failed to exhaust his administrative remedies. See Bryant v. Rich, 530 F.3d 1368, 1375 n.11 (“We do
not mean to say today that a failure to exhaust can never correctly result in a dismissal with prejudice.”
(citing Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005); Berry v. Kerik, 366 F.3d 85, 87-88 (2d
Cir. 2004))). 

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