Humphrey v. Douglas County Officers / Appointed Counsel et al

Filing 26

OPINION AND ORDER adopting the Magistrate Judge Linda T. Walkers Final Report and Recommendation 22 and granting Defendant Deputy Marc Evanss Motion to Dismiss 20 . Signed by Judge William S. Duffey, Jr on 8/22/16. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CEDRIC TIMOTHY HUMPHREY,
Plaintiff,
v.

1:15-cv-1630-WSD

OFFICER EVANS,
Defendant.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Linda T. Walker’s Final
Report and Recommendation [22] (“R&R”). The R&R recommends the Court
grant Defendant Deputy Marc Evans’s (“Defendant”) Motion to Dismiss [20].
I.

BACKGROUND
On May 7, 2015, Plaintiff Cedric Timothy Humphrey (“Plaintiff”), confined

at the Douglas County Jail in Douglasville, Georgia (the “Jail”), filed his
Complaint [1]. Plaintiff seeks damages for alleged violations of his constitution
rights at the Jail. On January 14, 2016, the Court screened Plaintiff’s Complaint,
allowed his equal protection claim against Defendant Evans to proceed, and
dismissed the other claims and defendants. ([11]).

On April 7, 2016, Defendant filed his Motion to Dismiss, arguing that
Plaintiff failed to exhaust his administrative remedies before filing his Complaint.
Defendant included with his Motion the declaration of Duane Whisenhunt, a
Captain in the Douglas County Sheriff’s Office. ([20.2]). The declaration includes
the portion of the Jail’s Inmate Handbook concerning the Jail’s grievance
procedure and Plaintiff’s grievance records. The grievance procedure requires an
inmate to submit a written grievance and, if the inmate is not satisfied with the
resolution of the grievance, file an appeal within three days of the resolution. (Id.
at 7).
Captain Whisenhunt declared that, on April 1, 2015, Plaintiff filed a
grievance regarding Defendant’s alleged discriminatory treatment of him, which is
the basis of Plaintiff’s equal protection claim. Jail officials investigated the
grievance and, on April 6, 2015, denied it. On December 22, 2015, Plaintiff
submitted to Whisenhunt an appeal of the grievance denial, and the appeal was
denied as untimely because it was not submitted within three days of April 6, 2015,
as required by the grievance procedure. Plaintiff’s subsequent appeals were denied
because the initial appeal was untimely. Plaintiff did not file a response to
Defendant’s Motion to Dismiss.

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On May 17, 2016, the Magistrate Judge issued her R&R. In it, the
Magistrate Judge determined Plaintiff failed to exhaust his administrative
remedies, because Plaintiff did not comply with the Jail’s grievance procedure
regarding the sole claim in this action. Plaintiff did not file any objections to the
R&R, and has not otherwise taken any action in this case.
II.

ANALYSIS
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
No party objects to the R&R, and the Court thus conducts a plain error review of
the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
B.

Discussion

Before filing a claim in court regarding prison conditions, prisoners must
properly exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). A
motion to dismiss is the proper vehicle to assert the affirmative defense of failure
to exhaust administrative remedies, and federal courts may resolve factual disputes

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in ruling on such a motion. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir.
2008).
The Magistrate Judge determined Plaintiff failed to exhaust his
administrative remedies, because the undisputed evidence shows Plaintiff did not
comply with the Jail’s grievance procedure regarding the sole claim in this action.
The Court agrees. See Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005)
(“[A]n untimely grievance does not satisfy the exhaustion requirement of the
[Prison Litigation Reform Act].”). The Magistrate Judge therefore recommends
the Court grant Defendant’s Motion to Dismiss. The Court finds no plain error in
these findings and recommendation, and Defendant’s Motion to Dismiss is granted
and this action is dismissed. See Slay, 714 F.2d at 1095.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Linda T. Walker’s Final

Report and Recommendation [22] is ADOPTED.
IT IS FURTHER ORDERED that Defendant Deputy Marc Evans’s
Motion to Dismiss [20] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED.

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SO ORDERED this 22nd day of August, 2016.

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