MOSS v. KNOX et al
ORDER ADOPTING 129 Report and Recommendations; GRANTING 73 Motion to Dismiss; GRANTING 103 Motion for Summary Judgment; and DENYING 126 Motion to Amend/Correct. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/8/2018. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
JEFFREY EDWARD MOSS,
ADAM BLANKS, et al.,
CIVIL ACTION NO. 5:16-CV-10 (MTT)
United States Magistrate Judge Stephen Hyles recommends that Defendants
Adam Blanks and Sergeant Allen Henderson’s motion for summary judgment (Doc.
103) and Defendant Carolyn Prescott’s motion to dismiss for failure to exhaust
administrative remedies (Doc. 73) be granted. Doc. 129 at 1, 15. Moreover, the
Magistrate Judge recommends that Plaintiff Jeffrey Edward Moss’s motion to amend
(Doc. 126) be denied. Id. at 1, 14-15. Moss has objected to the Recommendation.
Doc. 133. Accordingly, pursuant to 28 U.S.C. § 636(b)(1), the Court has performed a
de novo review of the portions of the Recommendation to which Moss objects. Moss’s
only objection relates to the Magistrate Judge’s finding that Moss did not respond to the
order to supplement the record regarding his exhaustion of administrative remedies. Id.
at 1. Moss references his “Motion to Dismiss Summary Judgment” as constituting such
a response. Id. It appears Moss is referring to one of his many responses to Blank and
Henderson’s summary judgment, but, regardless, none of these responses are
responsive to the Court’s order to supplement the record regarding Defendant
Prescott’s motion to dismiss for failure to exhaust administrative remedies. See Docs.
107-113. The Court agrees with the findings, conclusions, and recommendations of the
Magistrate Judge. The Recommendation is ADOPTED and made the order of this
Court. Prescott’s motion to dismiss for failure to exhaust administrative remedies (Doc.
73) and Blanks and Henderson’s motion for summary judgment (Doc. 103) is
GRANTED. Moss’s claims against Prescott are DISMISSED without prejudice1 for
failure to exhaust administrative remedies, and his claims against Blanks and
Henderson are DISMISSED with prejudice. Moss’s motion to amend (Doc. 126) is
SO ORDERED, this 8th day of March, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
The applicable two-year statute of limitations may have run. Therefore, the dismissal may, in effect, be
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,
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 Moss is
barred from refiling this claim, dismissal is appropriate. Moss 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. 119. Moss has not supported his claims
that he was preventing from exhausting his administrative remedies, and thus the record supports the
conclusion that he in fact did not exhaust those 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))).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?