CLARK v. IVEY et al

Filing 27

ORDER REJECTING 26 Report and Recommendations. The Plaintiff is ORDERED to redraft his complaint within 14 days. The redrafted complaint shall contain all of the Plaintiff's allegations. On the question of exhaustion, the Plaintiff shall attach to his complaint any evidence tending to establish that he exhausted his administrative remedies. Therefore, the Recommendation is REJECTED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 1/26/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JUSTIN CLARK,
Plaintiff,
v.
GEORGE IVEY, et al.,
Defendants.

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CIVIL ACTION NO. 5:16-CV-95(MTT)

ORDER
United States Magistrate Judge Stephen Hyles recommends granting the
Defendants’ motion to dismiss. Doc. 26. The Plaintiff has not objected to the
Recommendation.
The Court agrees, for the reasons stated in the Recommendation, that (1) the
Plaintiff has failed to state a claim for which relief may be granted against Defendant
Ivey for deliberate indifference to medical needs; (2) the Plaintiff has failed to exhaust
his administrative remedies for his other claims; and (3) the Court should decline to
exercise supplemental jurisdiction over the Plaintiff’s state law claims. Dismissal for
these reasons would be without prejudice, but because the events underlying the
Plaintiff’s claims evidently occurred in November of 2014 or earlier,1 it is likely that the
relevant two-year statute of limitations would prevent the Plaintiff from refiling his federal
claims, and thus dismissal would be with prejudice. The Eleventh Circuit has stated that
“[w]here a more carefully drafted complaint might state a claim, a [pro se] plaintiff must
be given at least one chance to amend the complaint before the district court dismisses
1

The Plaintiff, proceeding pro se, filed his complaint on March 4, 2016. Doc. 1.

the action with prejudice.” Bank v. Pitt, 928 F.3d 1108, 1112 (11th Cir. 1991), overruled
on other grounds by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541 (11th
Cir. 2002).2 Accordingly, if the Plaintiff believes he can allege facts sufficient to cure the
deficiencies in his complaint, he shall REDRAFT his complaint within 14 days.
The Plaintiff is ORDERED to redraft his complaint. The redrafted complaint shall
contain all of the Plaintiff’s allegations. On the question of exhaustion, the Plaintiff shall
attach to his complaint any evidence tending to establish that he exhausted his
administrative remedies. Therefore, the Recommendation is REJECTED.
SO ORDERED, this 26th day of January, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

2

The Court assumes, without deciding, that this right to amend applies to the claims dismissed for failure
to exhaust.

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