Sewell v. Chatman et al

Filing 73

ORDER granting 46 Motion to Dismiss; adopting 66 Report and Recommendations. Therefore, this case is dismissed without prejudice and this case stands closed. Signed by Judge J. Randal Hall on 5/20/15. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

JEFFERY SEWELL,
Plaintiff,

CIVIL ACTION NO.: CV614-67

BRUCE CHATMAN; WINDELL FOWLER;
LARRY BREWTON; JOHN PAUL; and
FREDDIE DAVIS,
Defendants.

ORDER

Presently before the Court are Plaintiffs Objections, (docs. 68, 69), to the Magistrate

Judge's Report and Recommendation, (doc. 66), and Defendants' Response to Plaintiffs

Objections.1 (Doc. 71.) After an independent and de novo review of the entire record, the
undersigned concurs with the Magistrate Judge's Report and Recommendation. The Court finds
that the Magistrate Judge accurately laid out the applicable law and correctly determined that
Defendants' Motion to Dismiss must be granted. There is no need to repeat the Magistrate

Judge's analysis at length. However, the Court does address Plaintiffs Objections.
In his Objections, Plaintiff seeks to once again explain why he filed his original grievance

untimely. While the Court recognizes Plaintiffs contention that he could not file a timely

grievance, the Court also recognizes that Plaintiffs contention misses the mark. Without

repeating the Magistrate Judge's analysis on the exhaustion issue, the undersigned notes the
Magistrate Judge's conclusion that, even if Plaintiff had filed Grievance Number 151495 in a
1 Plaintiff filed a Reply Brief, (doc. 68), which was docketed two (2) days after the Magistrate Judge

entered his Report and Recommendation. The undersigned considers this pleading as one of Plaintiffs
Objectionsto the Report and Recommendation.

timely manner, he still would not have exhausted his administrative remedies prior to the filing
of his Complaint.

The reason for this is because Plaintiff failed to set forth any factual

allegations in this grievance which align with the assertions he set forth in his Complaint.
Plaintiff also asserts that the Court should have disregarded the affidavits and other

documents Defendants submitted with their Motion to Dismiss. This Court cannot ordinarily
consider matters outside the pleadings when ruling on a motion to dismiss without converting the
dismissal motion into one for summary judgment. However, if a motion to dismiss is based on a

defendant's contention the plaintiff failed to exhaust his administrative remedies, this Court can

accept and consider matters outside the pleadings without the need to convert the motion into
one for summary judgment. Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) ("Where

exhaustion—like jurisdiction, venue, and service of process—is treated as a matter in abatement

and not an adjudication on the merits, it is proper for a judge to consider facts outside of the

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."). The Magistrate Judge's Report

does not speak to the relative merits of Plaintiffs claims, only whether Plaintiff properly
exhausted his administrative remedies prior to filing this cause of action. Therefore, it was

proper for the Magistrate Judge to consider the documents submitted by Defendants. Moreover,
because the Report and Recommendation only addresses exhaustion, the Court need not address
Plaintiffs remaining Objections which only speak to his claims' merits.

Plaintiffs Objections are OVERRULED.

The Magistrate Judge's Report and

Recommendation is ADOPTED as the opinion of the Court, and Defendants' Motion to

Dismiss, (doc. 46), is GRANTED. Plaintiffs Complaint, (doc. 1), is DISMISSED, without

prejudice, based on his failure to exhaust his administrative remedies prior to the filing of this

cause of action. The Clerk of Court is directed to enter the appropriate judgment of dismissal

and to CLOSE this case.

Additionally, for the reasons set forth in the Report and

Recommendation, in the event Plaintiff files an appeal in this matter, his Motion to Proceed In
Forma Pauperis on appeal is DENIED.

SO ORDERED, this ^jfc day of

,2015.

HONORABLE J. RANDAL HALL

UNITED STATES DISTRICT JUDGE

fTHERN DISTRICT OF GEORGIA