Green v. Simpson et al

Filing 18

ORDER overruling objections; adopting 14 Report and Recommendation; dismissing Plaintiff's complaint for failure to exhaust administrative remedies; and close this case. Signed by Judge J. Randal Hall on 07/14/2014. (thb) Modified on 7/14/2014 (thb).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

RAMONE WILLIE GREEN,
Plaintiff,
CV 114-012

HAROLD SIMPSON, Correctional
Officer I, et al.,
Defendants.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation, to which objections have been filed (doc. no. 17.)
The Magistrate Judge recommended dismissal of Plaintiffs complaint, filed on January

17,2014, for failure to exhaust administrative remedies prior to the commencement of his

case because he stated that he was currently waiting on a response to the "final appeal" of
his formal grievance. (Doc. no. 14, pp. 5-6.)

In his objections, Plaintiff provides new information and states that he has
complied with the grievance procedures and fully exhausted his administrative remedies
because he filed his complaint after the warden failed to respond to his formal grievance

within forty days, per Georgia Department of Corrections' Standard Operating Procedure
("SOP"). (Doc. no. 17, pp. 1-2.) Additionally, the director of investigations responded to

his grievance in March 2014 by saying that it was referred to internal investigation,
which Plaintiff asserts terminates the grievance process. (Id at 5.)

The Courts finds that this new information provides no reason to depart from the
Magistrate Judge's recommendation. Under the SOP, the warden's alleged failure to
respond to his grievance within forty days entitles Plaintiff to immediately file a Central
Office Appeal on his grievance, not immediately file a civil action, and it does not end

the grievance process. SOP IIB05-0001 § VI(E)(4).

Plaintiff did not immediately

appeal, but instead filed this action. Therefore, Plaintiff had not properly exhausted his
administrative remedies by using all steps of the available exhaustion procedure when he
filed this action. Woodford v. Ngo. 548 U.S. 81, 93 (2006). Additionally, while the SOP

provides that a referral of a grievance to internal investigation does terminate the
grievance process, SOP IIB05-0001 § VI(D)(8), the director of investigations' response
notifying Plaintiff it was referred was not issued until March 2014, two months after

Plaintiff filed this civil action. (Id at 5.) Therefore, Plaintiff did not complete the
administrative grievance procedure before initiating this action, and therefore did not
exhaust his administrative remedies. Higginbottom v. Carter. 223 F.3d 1259, 1261 (11th
Cir. 2000) (per curiam).

As a result, the Court OVERRULES Plaintiffs objections. Accordingly, the
Court ADOPTS the Report and Recommendation of the Magistrate Judge as its opinion,

DISMISSES Plaintiffs complaint without prejudice for failure to exhaust administrative
remedies, and CLOSES this civil action.

SO ORDERED this //day ofJuly, 2014, aj^cagrrsta, Georgia.

HONORABLE J. RANDAL HALL

UNITEIj>STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA