Ludy v. Emmons et al

Filing 51

ORDER directing the U S Marshals to re-attempt service on Defendant Bodie. Signed by Magistrate Judge Brian K. Epps on 5/23/17. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
MITCHELL LUDY,

)
)
Plaintiff,
)
)
v.
)
)
DEANNE MORRIS, Health Service
)
Administrator, Ga. Regent Health System;
)
CHERIE PRICE, Deputy Warden; WESLEY )
O’NEAL, Unit Manager; JESSICA BYRD,
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Correctional Officer; CONSTANCE
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PULLINS, Nurse; JASON HURST, Cert.
)
Officer; LARRY TIMMONS, Cert. Officer; )
LAKEISHA SMITH, Cert. Officer; JAMIE
)
CLARK, Deputy Warden Administration;
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ANGIE CLAXTON, Nurse; PEARLENE
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ROGERS, Nurse; WALT BRYAN, Nurse;
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PAMELA LINDSEY, Nurse Practitioner; and )
ANNIE BODIE, Physician Assistant,1
)
)
Defendants.
)
________

CV 316-065

ORDER
________
Plaintiff, an inmate at Autry State Prison in Pelham, Georgia, commenced the abovecaptioned case pursuant to 42 U.S.C. § 1983 regarding events at Johnson State Prison in
Wrightsville, Georgia. He is proceeding pro se and in forma pauperis. Defendants Bryan,
Byrd, Clark, Claxton, Hurst, Lindsey, Morris, O’Neal, Price, Pullins, Rogers, Smith, and

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The Court DIRECTS the Clerk to update the docket in accordance with the caption on
this Order.

Timmons filed a partial motion to dismiss and a motion to stay discovery on May 22, 2017.
(Doc. nos. 49, 50.)
A motion to dismiss is dispositive in nature, meaning the granting of a motion to
dismiss results in the dismissal of individual claims or an entire action. If Plaintiff fails to
respond, the motion will be deemed unopposed and granted, resulting in the dismissal of the
claims that are the subject matter of the motion. See Loc. R. 7.5. Plaintiff must also respond
to the motion to stay the proceedings within fourteen days of service of that motion. If
Plaintiff fails to respond, the motion to stay will likewise be deemed unopposed. See id.
When, on a motion to dismiss, matters outside the pleadings are presented to and not
excluded by the Court, the normal course is for the Court to determine whether the motion to
dismiss should be treated as one for summary judgment and therefore disposed of as
provided by Fed. R. Civ. P. 56. Jones v. Automobile Ins. Co., 917 F.2d 1528, 1532 (11th
Cir. 1990). However, if the motion to dismiss raises the issue of exhaustion of administrative
remedies,2 the Eleventh Circuit has ruled: “Because exhaustion of administrative remedies is
a matter in abatement and not generally an adjudication on the merits, an exhaustion defense
. . . should be raised in a motion to dismiss, or be treated as such if raised in a motion for
summary judgment.” Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008).
Although a motion to dismiss based on an exhaustion defense need not be converted
to a motion for summary judgment, “it is proper for a judge to consider facts outside of the

2

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), states, “No action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison or other correctional facility until such
administrative remedies as are available are exhausted.”

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pleadings and to resolve factual disputes so long as the factual disputes do not decide the
merits and the parties have sufficient opportunity to develop a record.” Id. at 1376 (citations
omitted). Therefore, if the exhaustion issue cannot be resolved based on the pleadings alone,
and if a defendant submits affidavits or other evidence in support of the motion to dismiss,
the plaintiff must be given the opportunity to submit his own affidavits or other evidence
contradicting a defendant’s submissions. See id. Accordingly, if the motion to dismiss in
this case raises the issue of exhaustion of administrative remedies, Plaintiff’s response to the
motion should include appropriate supporting affidavits or other documentary evidence he
may have to contest any exhaustion issue raised by Defendants.
To assure Plaintiff’s response is made with fair notice of the requirements of the
Federal Rules of Civil procedure regarding motions to dismiss, generally, and motions to
dismiss for failure to state a claim upon which relief may be granted, the Court DIRECTS
the CLERK of COURT to attach a copy of Fed. R. Civ. P. 12 and 41 to Plaintiff’s service
copy of this Order. Plaintiff shall have until June 8, 2017 to respond to Defendants’ motion
to dismiss and motion to stay.
Finally, in their brief in support of their motion, Defendants assert, “At this time,
Plaintiff’s amendment has not been screened and service has not been ordered or effectuated
on [Defendants Lindsey and Bodie]. Accordingly, evaluation of Plaintiff’s exhaustion of his
claims against them is not addressed in this pleading.” (Doc. no. 49-1, p. 4, n.1.) In direct
contradiction to this assertion, Defendant Lindsey has waived service and explicitly joins in
Defendants’ motion. (See doc. nos. 48, 49.) Therefore, the Court will address Defendants’
exhaustion claims with regards to Defendant Lindsey.
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Moreover, the Court has already screened Plaintiff’s claims against Defendants
Lindsey and Bodie under the misnomer John and Jane Doe Doctors and allowed those claims
to proceed. (See doc. no. 25.) When Plaintiff identified John and Jane Doe Doctors as
Defendants Lindsey and Bodie, the Court merely deemed Plaintiff’s amended complaint
(doc. no. 22) amended to substitute Defendants. (See doc. no. 39.) There were no new
claims to be screened. (Id.)
The docket reflects Defendant Bodie has not yet been served. Indeed, although
Plaintiff identified “Ga. Regent Health System, 1499 Walton Way, Augusta, Georgia 30912”
as the address at which to serve Defendant Bodie, waiver of service was mailed to Johnson
State Prison at “P.O. Box 344, Wrightsville, Georgia 31096.” (Doc. no. 38; Doc. no. 39-1.)
Accordingly, the Court DIRECTS the United States Marshals to re-attempt service by mail
on Defendant Bodie at “Ga. Regent Health System, 1499 Walton Way, Augusta, Georgia
30912” as set forth in the Court’s March 20, 2017 Order. (See doc. no. 25, p. 5.)
SO ORDERED this 23rd day of May, 2017, at Augusta, Georgia.

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