Gill v. Deal et al

Filing 8

ORDER ADOPTING 5 Report and Recommendations of the Magistrate Judge as the opinion of the Court. OVERRULES Plaintiff's Objections and DENIES Plaintiff's 7 Motion to Amend/Correct. Signed by Judge Lisa G. Wood on 12/14/2018. (ca)

Jfn

?Hntteti States: Bt^eftrtct Court

Jfor ttie ^otttliern Bisttrtrt of (fleorsto
Woj^ttoii Btlitsiton
AHMAD RASHAD GILL,

PiaintifF,

CIVIL ACTION NO.: 5:18-cv-50

V.

JAMES DEAL;EDWINA JOHNSON;
TARAN TODMAN;AUSTIN ADAMS;and
WICKER,
Defendants.

ORDER

The Court has conducted an independent and de novo review

of the entire record and concurs with the Magistrate Judge's
Report and Recommendation, dkt. no. 5.

The Court has

additionally considered Plaintiff's Objections to the Report and
Recommendation, dkt. no. 6, and Plaintiff's Motion to Amend

Complaint, dkt. no. 7.

For the reasons set forth below, the

Court OVERRULES Plaintiff's Objections, ADOPTS the Magistrate
Judge's Report and Recommendation as the opinion of the Court,
and DENIES Plaintiff's Motion to Amend.

The Magistrate Judge recommended the Court dismiss
Plaintiff's complaint for failure to exhaust all administrative

remedies.

A0 72A

(Rev. 8/82)

In his Objections, Plaintiff argues he should not be

required to fully exhaust his administrative remedies because

exhaustion would be futile.

Dkt. No. 1, p. 1.

Plaintiff

asserts he ^Mid as much as [he] could" to exhaust his

administrative remedies.

Id.

According to Plaintiff, Ware

State Prison officials, after responding to Plaintiff's
grievance, failed to give Plaintiff any paperwork informing him
that he could appeal the decision.

Id.

In addition to his Objections, Plaintiff also filed a
Motion to Amend Complaint, dkt. no. 7.

In this Motion,

Plaintiff seeks to add a new claim against Ware State Prison
based on ""another incident that occurred on Saturday, May 14,
2017[.]"

Id.

Outside of adding this new claim and new

defendant. Plaintiff does not seek to make any modifications or
changes to his initial Complaint.
The Prison Litigation Reform Act (""PRLA") requires
prisoners fully exhaust all administrative remedies before

filing an action with the court.
Bock, 549 U.S. 199, 217 (2007).

42 U.S.C. § 1997e{a); Jones v.
""[A]s long as there is the

possibility of at least some kind of relief[,]" all
administrative remedies—including appeals—must be exhausted.
Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005)

(quoting Ross v. County of Bernalillo, 365 F.3d 1181, 1187 (10th

Cir. 2004).

A0 72A I
(Rev. 8/82)

Exhaustion is a statutory requirement that courts

have no discretion to waive.

1373 (11th Cir. 2008).

Bryant v. Rich, 530 F.Sd 1368,

Notably, the ^^exhaustion requirement

cannot be waived based upon the prisoner's belief that pursuing
administrative procedures would be futile.

Higginbottom v.

Carter, 223 F.3d 1260, 1261 (11th Cir. 2000); Kazemi v. Pugh,
No. CV 306-094, 2007 WL 601757, at *2 (S.D. Ga. Feb. 16, 2007).

However, incarcerated individuals are not required to exhaust
administrative remedies which are unavailable to them.

Turner

V. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008).

Accepting as true Plaintiff's allegation that prison

administrators did not inform him of the appeals process.
Plaintiff still failed to exhaust administrative remedies.

Plaintiff does not allege that prison officials provided
incorrect information about the appeals procedure nor does he
assert that he requested information about appealing his

grievance and was denied.

Rather, Plaintiff simply argues that

prison officials did not take affirmative steps to ensure

Plaintiff, individually, knew appealing was an available option.
Moreover, Plaintiff would have learned of the possibility of
appealing an adverse decision while drafting his Complaint.
This Court's own form, which Plaintiff filled out to file his

^

Plaintiff cites two cases in support of the futility exception

for exhaustion: Terrell v. Brewer, 933 F.2d 1015 (9th Cir. 1991), and
McCarthy v. Madigan, 503 U.S. 140 (1992). Both cases were decided
before Congress enacted the PRLA.

original Complaint, explicitly asks would-be litigants whether
they filed a grievance with the prison and whether they appealed
adverse decisions ^^to the highest level possible in the
administrative procedure[.]"

Dkt. No. 1, pp. 3-4.

Instead of

seeking out information about appealing the original grievance.
Plaintiff simply checked "no" and filed his Complaint.

Id.

Plaintiff fails to provide any new information in his Objections
or Motion to Amend which would alter the Magistrate Judge's

original finding.

The pleadings still demonstrate that

Plaintiff failed to exhaust all available administrative
remedies.

The Report and Recommendation explicitly provided Plaintiff
"the opportunity to amend his Complaint to correct the
deficiencies noted herein."

Dkt. No. 2, p. 1 n.l.

Plaintiff's

Motion to Amend does not address or correct any deficiencies but
rather seeks to add a new claim and new defendant to his

original Complaint.

As Plaintiff cannot continue his original

action, the Court DENIES his Motion to Amend.

If Plaintiff

wishes to proceed with this new claim, he may do so by filing a
separate action.
CONCLUSION

The Court, therefore, OVERRULES Plaintiff's Objections and
ADOPTS the Magistrate Judge's Report and Recommendation as the

A072A I
(Rev. 8/82)

opinion of the Court.

The Court DENIES Plaintiff's Motion to

Amend, dkt. no. 7.

SO ORDERED, this

of 71^^

m. LISA GODBEY WOOD, JUDGE
'UNITED STATES DISTRICT COURT
SOUTHERN

A072A I
(Rev. 8/82)

DISTRICT

OF GEORGIA

2018