BARNES v. TOBY et al
ORDER adopting 97 Report and Recommendations; granting 90 Motion to Dismiss Complaint. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 5/10/2022 (tam)
Case 5:20-cv-00047-MTT-CHW Document 100 Filed 05/10/22 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
OTIS L. BARNES,
CIVIL ACTION NO. 5:20-cv-47 (MTT)
Pursuant to 28 U.S.C. § 1915A(a) and § 1915(e), United States Magistrate Judge
Charles H. Weigle has conducted a screening of Defendant Nurse Carter’s motion to
dismiss. Doc. 90. The Magistrate Judge recommends that the motion to dismiss be
granted. Doc. 97. Plaintiff Otis L. Barnes objected,1 so pursuant to 28 U.S.C. §
636(b)(1), the Court reviews de novo the portions of the Recommendation to which
Barnes objects. Doc. 98.
As an initial matter, Barnes failed to respond to Carter’s motion to dismiss. After
Carter filed her motion, the Magistrate Judge issued a notification of motion to dismiss
to Barnes. Doc. 92. This notice informed Barnes of his rights and responsibilities
regarding the motion to dismiss, specifically providing:
FAILURE OF PLAINTIFF TO RESPOND TO AND REBUT THE LEGAL
ARGUMENTS SET FORTH IN DEFENDANT’S BRIEF MAY RESULT IN
THESE STATEMENTS BEING ACCEPTED AS UNCONTESTED AND
Barnes filed two sets of objections to the Recommendation. Docs. 98; 99. Although the documents
differ in styling, they are substantively identical and were both filed on the same day. The Court will refer
only to the first filed objections. Doc. 98.
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CORRECT. The Court could grant judgment to Defendant and there would be no
trial or further proceedings. Accordingly, Plaintiff is NOTIFIED of his right to
amend his complaint, submit a response brief, and, if responding to a motion to
dismiss for failure to exhaust administrative remedies, submit any affidavits
and/or documents showing he has exhausted. . . If Plaintiff fails to file a brief in
opposition to the motion to dismiss, a final judgment may be rendered against
him if otherwise appropriate under law.
Id. at 2-3. Barnes’s objections to the Recommendation attempt to rebut Carter’s
arguments that his claims should be dismissed for failure to exhaust administrative
remedies— they are arguments which would have been appropriate in response to a
motion to dismiss, but instead, Barnes waited to raise them as objections to the
Recommendation. Although this failure to respond may warrant dismissal, out of an
abundance of caution, the Court will consider Barnes’s objections.
Barnes makes three arguments in his objections: (1) his failure to file appropriate
grievances was through no fault of his own; (2) he did not need to show in his complaint
that he has exhausted all grievance procedures; (3) he should be permitted to sue
without first exhausting the grievance procedures because of exceptions established in
McCarthy v. Madigan, 503 U.S. 140 (1992). Doc. 98 at 1-2.
As to the first argument, Barnes contends that his failure to exhaust was through
no fault of his own, as he was in suicide housing at the time and “suffering from extreme
emotional distress,” while also traveling frequently for medical treatment. Doc. 98 at 2.
Additionally, Barnes argues that he was in imminent danger and exhausting the prison’s
grievance system would have “further hurt [him.]” Id. But Barnes fails to allege any
facts that explain how he would have been hurt by complying with the prison grievance
system nor what imminent danger he faced when he began his federal suit. Although
there are exceptions to the exhaustion requirements for prisoner suits, Barnes’s
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objections fail to establish such an exception. See Ross v. Blake, 578 U.S. 632, 643-44
(2016) (holding that an administrative remedy is not available when it operates as a
simple dead end, is so opaque that it is practically unusable, or when prison
administrators thwart inmates from using the administrative process). Absent such a
rare exception, compliance with Georgia prison grievance policies includes requesting
an out-of-time waiver for untimely grievances, and failure to do so requires dismissal of
the offender’s claims. See Bryant v. Rich, 530 F.3d 1368, 1378-79 (11th Cir. 2008);
Johnson v. Meadows, 418 F.3d 1152, 1158-59 (11th Cir. 2005). Barnes’s failure to
exhaust his administrative remedies is not excused by his conclusory assertion of
imminent danger, especially since Barnes has not previously argued that he is in
imminent danger, despite several earlier opportunities to address the defendant’s failure
to exhaust arguments.2
Second, Barnes argues that prisoners do not need to show that they have
exhausted all grievance procedures in their complaint and that exhausted claims must
move forward rather than being dismissed alongside unexhausted claims. Doc. 98 at 2
(citing Jones v. Bock, 549 U.S. 199 (2009)). But Jones v. Bock did not hold that
unexhausted claims are not subject to dismissal. Although dismissing a complaint for
failing to allege exhaustion is improper, dismissing claims for the prisoner’s actual
failure to exhaust is proper. See generally Ross v. Blake, 578 U.S. 632 (2016)
Notably, Carter’s motion to dismiss repeats many of the arguments raised in previous motions to
dismiss filed by former defendants in this case. Docs. 43; 56; 65. Barnes did not argue that he was in
imminent danger in response to the prior motions nor did he argue he was in imminent danger in
response to the prior Recommendation which granted dismissal to other defendants on the same
grounds. See Docs. 52; 53; 60; 70; 71; 80. In his responses to the two of the prior motions to dismiss
(Docs. 56; 65), Barnes does contend that the removal of his eye is imminent, as treatment for ongoing
medical issues from an attack by other inmates, but he does not argue that this is why he failed to
exhaust his administrative remedies. Docs. 60 at 1; 70 at 1; 71 at 2. In fact, Barnes still maintained that
he had exhausted his administrative remedies in those responses. Docs. 60 at 3; 70 at 2-3; 71 at 3.
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(explaining the scope and limitations of administrative remedy exhaustion
requirements). As the Magistrate Judge explained in the Recommendation, the record
shows that Barnes’s claims were not exhausted. Doc. 97 at 2-3. Moreover, Barnes
does not identify any claim that is not implicated by his failure to exhaust administrative
remedies. In its review, the Court failed to find an exhausted claim in Barnes’s initial
complaint or its amended versions. Thus, this argument is also meritless.
Finally, Barnes argues that there are certain exceptions to exhaustion
requirements, because “courts need to balance a person’s right to go to court to sue
over injustice against an institution’s interest in having you use whatever grievance
system they have set up.” Doc. 98 at 2. Barnes claims that this is an outcome of
McCarthy v. Madigan, 503 U.S. 140 (1992). But McCarthy v. Madigan specifically
addressed actions for which “Congress has not clearly required exhaustion” and
clarified the use of judicial discretion in those cases. Id. at 144. Congress clearly
required exhaustion of administrative remedies for prisoner lawsuits. See Jones, 549
U.S. at 202. Accordingly, Barnes’s final argument is meritless.
Therefore, after review, the Court accepts and adopts the findings, conclusions,
and recommendations of the Magistrate Judge. The Recommendation (Doc. 97) is
ADOPTED and made the Order of the Court. Accordingly, the Defendant’s motion to
dismiss is GRANTED.
SO ORDERED, this 10th day of May, 2022.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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