Drummond v. Hall et al

Filing 18

ORDER ADOPTING 15 Report and Recommendations, OVERRULING the objections, DISMISSING case without prejudice for failure to exhaust administrative remedies, and CLOSING this civil action. Signed by Judge Dudley H. Bowen on 11/08/2017. (maa)

IN THE UNITED STATES DISTRICT COURT

FILED

U.S. DISTRICT COURT
AUC'TTA diY

FOR THE SOUTHERN DISTRICT OF GEORGIA

zon NOV

P 12: 08

DUBLIN DIVISION

CLERK
GA.

ARTHUR GLENN DRUMMOND,

Plaintiff,
CV 317-041

PHILLIP HALL, Warden;
BARBARA GRANT,Unit Manager;
FREDRICK JOHNSON,Unit Manager;

LISA FOUNTAIN,Interim Manager; and
SHELAND CRAY,CO II Officer,
Defendants.

ORDER

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

Judge's Report and Recommendation ("R&R"), to which objections have been filed, (doc.
no. 17). The Magistrate Judge recommended dismissal because Plaintiff failed to exhaust his
administrative remedies as required by section 1997e(a) of the Prison Litigation Reform Act.
(See doc. no. 15.) In both the original and amended complaints. Plaintiff attested under
penalty of perjury he had not filed an administrative appeal, despite the expiration of time for
the Warden to respond to the original grievance. (Doc. no. 1, p. 3; doc. no. 5, p. 9.) In the
amended complaint. Plaintiff alternately swears that he did, and did not, file any grievance,

but consistently acknowledges he did not file an appeal. (Doc. no. 5, pp. 8-10.)

upon entry of the R&R explaining the case was subject to dismissal for failing to
exhaust the administrative grievance process, Plaintiff responded with an unsworn
explanation that at some unidentified time, prison counselors told him there "were no more

Central Office Appeal(s)." (Doc. no. 17, pp. 1-2.) As explained in the R&R, the grievance
process must be exhausted prior to filing the lawsuit, and there is nothing in the objections
showing Plaintiff made any inquiry about appealing that was denied prior to commencing
this lawsuit. Not only is Plaintiffs belated explanation devoid of any details concerning

when he asked to appeal, but it is notably not attested to as true under penalty of perjury.
(Id.) Moreover, despite the requirement in Federal Rule of Civil Procedure 11(a) that every
document filed with the Court by a pro se litigant must be signed by that litigant, the
objections were signed by a different hand than that of the signator on the complaint, motion
to proceed informa pauperis, consent to collection of fees, and the amended complaint. (See
doc. nos. 1, 3, 5, 7.)

"A complaint may be dismissed if an affirmative defense, such as failure to exhaust,

appears on the face of the complaint." Bingham v. Thomas. 654 F.3d 1171, 1175 (11th Cir.

2011)(per curiam)(citing Jones v. Bock. 549 U.S. 199, 215 (2007)). The Magistrate Judge
properly identified the failure to exhaust the administrative grievance process on the face of

Plaintiffs amended complaint. The Court finds no basis for rejecting Plaintiffs previously
sworn concession regarding the failure to exhaust in favor of his belated and unsworn

suggestion he was unable to pursue a Central Office Appeal at some unidentified time.
In sum, the Court OVERRULES the objections. Accordingly, the Court ADOPTS

the Report and Recommendation of the Magistrate Judge as its opinion, DISMISSES this

case without prejudice for failure to exhaust administrative remedies, and CLOSES this civil
action.

,is 8

SO ORDERED this CJ day of November, 2017, at Augusta, Georgia.

j-

UNITED STATES DISTRICT JUDGE/