THOMPSON v. MCLAUGHLIN et al

Filing 25

ORDER ADOPTING [23[ Report and Recommendations and GRANTING 18 Motion to Dismiss. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/16/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
AQUANUS DONTEL THOMPSON,
Plaintiff,
v.
Warden GREGORY MCLAUGHLIN,
et al.,
Defendants.

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CIVIL ACTION NO. 5:17-CV-230 (MTT)

ORDER
United States Magistrate Judge Thomas Q. Langstaff recommends that
Defendants Gregory McLaughlin, Clarence Kegler, Charles Hudson, and Richard
Jackson’s motion to dismiss (Doc. 18) for failure to exhaust administrative remedies be
granted and that Plaintiff Aquanus Dontel Thompson’s complaint be dismissed. Doc. 23
at 6. Thompson has not objected to the recommendation. The Court has reviewed the
recommendation and accepts the proposed findings, conclusions, and
recommendations of the Magistrate Judge. The recommendation (Doc. 23) is
ADOPTED and made the order of this Court. Accordingly, the Defendants’ motion to
dismiss (Doc. 18) is GRANTED, and Thompson’s complaint is DISMISSED without
prejudice.1

1
 The applicable two-year statute of limitations may 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). Although mandatory, the exhaustion requirement is not jurisdictional. See
Jones v. Bock, 549 U.S. 199, 212-17 (2007). Accordingly, several Circuits have held that the statute of
limitations is “tolled while a prisoner completes the mandatory exhaustion process.” See Gonzalez v.
Hasty, 651 F.3d 318, 323-24 (2d Cir. 2005). The Eleventh Circuit has declined to hold that equitable

SO ORDERED, this 16th day of August, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

tolling applies, but it has stated that the statute of limitations may be tolled while a prisoner exhausts
administrative remedies. 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)) (“We proffer, but do not hold, as that issue is not before us,
that . . . the doctrine of equitable tolling, as other circuits have applied that doctrine to the administrative
exhaustion requirement for prison condition suits[, may apply].”); Leal v. Ga. Dep't of Corr., 254 F.3d
1276, 1280 (11th Cir. 2001) (“Because the statute of limitations may have been tolled on account of [the
Plaintiff]’s exhaustion of administrative remedies, it does not appear beyond a doubt from the complaint
itself that Leal can prove no set of facts which would avoid a statute of limitations bar.” (citation omitted)).
Also, several Circuits have held that, either pursuant to state law or equitable tolling, the statute of
limitations is tolled while a plaintiff’s case is pending in federal court. See Miller v. Norris, 247 F.3d 736,
739 (8th Cir. 2001) (allowing the plaintiff to take advantage of Arkansas’s one-year savings statute after
his action was dismissed for failure to exhaust); Clifford, 298 F.3d at 333 (holding that the limitations
period is equitably tolled during pendency of federal suit); Wright v. Hollingsworth, 260 F.3d 357, 359 (5th
Cir. 2001) (finding that the statute of limitations should be equitably tolled “during the pendency of this
action”). Again, the Eleventh Circuit has not addressed the issue. But it has 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). But even if the Plaintiff is barred from refiling this claim, dismissal is
appropriate. The Plaintiff was notified of the potential effect of a motion to dismiss, his burden to oppose
such a motion, and the need to supplement the record when faced with an allegation of failure to exhaust;
however, the Plaintiff failed to do so. Doc. 19.. The record shows that the Plaintiff has failed to exhaust
his administrative remedies as to these claims. 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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