FARRUGIA v. IVEY et al

Filing 33

ORDER ADOPTING as clarified 30 Report and Recommendations and GRANTING 17 Motion to Dismiss. Farrugia's complaint is DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/30/2017. (tlh)

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

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CIVIL ACTION NO. 5:16-CV-128 (MTT)

ORDER
The Defendants filed a joint motion to dismiss, asserting that Plaintiff Farrugia
failed to exhaust his administrative remedies as to his claims against them in this action.
Doc. 17. Magistrate Judge Charles Weigle recommends granting the Defendants’
motion and dismissing Farrugia’s claims for failure to exhaust administrative remedies.
Doc. 30 at 1. Farrugia has not objected and the time for filing objections has expired.
The Court has carefully reviewed the Recommendation, and accepts and adopts
the findings, conclusions, and recommendations of the Magistrate Judge. The
Recommendation (Doc. 30) is ADOPTED as clarified1 and made the order of this
Court; the Defendants’ motion (Doc. 17) is GRANTED and Farrugia’s complaint is
DISMISSED without prejudice.
SO ORDERED, this 30th day of June, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

1

Two clarifications are helpful. First, Farrugia argues in his response that he was not required to
exhaust administrative remedies as to Grievance # 211864 because the warden’s response was
untimely. Doc. 23 at 4, 6-9. The warden’s response to this grievance was indeed untimely. Doc. 17-1 at
48. The grievance records show that the response was not delivered to Farrugia until March 4, 2016,
though it was due back to him February 29, 2016. Id. The warden’s untimely response to Farrugia’s
formal grievance entitled Farrugia to proceed with an appeal pretermitting receipt of the warden’s
response; but it did not relieve him of the obligation to thereafter appeal. Id. at 23-25. Accordingly, the
Magistrate Judge correctly concluded that because this action was filed before Farrugia’s appeal of
Grievance # 211864 was resolved, Grievance # 211864 should not be considered in determining whether
Farrugia exhausted his administrative remedies in this case. See Doc. 30 at 15-16. Second, footnote 3
of the Recommendation cites “Doc. 23, p. 6” for Farrugia’s deposition testimony that Grievance # 205637
did not mention religious items. See Doc. 30 at 15 n.3. The correct citation appears to be Doc. 29 at 6.