Timmons v. Bryson et al

Filing 30

ORDER ADOPTING 26 Report and Recommendations, DISMISSING as moot 11 Motion to Compel, and GRANTING 17 Motion to Dismiss. The Court DENIES Plaintiff leave to proceed in forma pauperis on appeal and CLOSES this case. Signed by Judge J. Randal Hall on 12/19/2016. (maa)

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

TIMOTHY TIMMONS,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-19

v.

BRANDON SELLERS; DERRICK
SHUEMAKE; OTIS MCINTOSH; and
BOOTH CONTROL OFFICER,
Defendants.
ORDER

Presently before the Court are Plaintiffs Objections to the Magistrate Judge's Report and

Recommendation dated September 20, 2016, (doc. 26). After an independent and de novo
review of the entire record, the Court concurs with the Magistrate Judge's Report and

Recommendation.

Accordingly, the Court ADOPTS the Magistrate Judge's Report and

Recommendation, as supplemented herein, as the opinion of the Court and OVERRULES

Plaintiffs Objections. The Court GRANTS Defendants' Motion to Dismiss based on Plaintiffs
failure to exhaust his administrative remedies, DISMISSES Plaintiffs Complaint, and DENIES

Plaintiff leave to proceed in forma pauperis on appeal.

The Court DISMISSES as moot

Plaintiffs Motion to Compel. (Doc. 11.) The Court DIRECTS the Clerk of Court to enter the
appropriate judgment of dismissal and to CLOSE this case.
BACKGROUND

Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 on February 19, 2016.

(Doc. 1.) After conducting the requisite frivolity review, the Magistrate Judge ordered that
Plaintiffs Complaint be served based on Plaintiffs assertions that Defendants Shuemake and

Sellers used an excessive amount of force against him on April 24, 2015, and Defendant "Booth
Control Officer" witnessed this use of force without intervening on Plaintiffs behalf. Plaintiffs
Complaint was also served based on Plaintiffs allegation that Defendant Mcintosh violated his
right to due process during his disciplinary hearing procedures. (Doc. 7.) The Magistrate Judge

recommended that all other claims against all Defendants be dismissed, and the Court adopted
this recommendation as the opinion of the Court. (Doc. 23.)
Defendants Sellers, Shuemake, and Mcintosh filed a Motion to Dismiss. (Doc. 17.) The

Magistrate Judge recommended Defendants' Motion, to include the still unidentified "Booth
Control Officer," be granted. (Doc. 26.) Plaintiff has now filed Objections to the Magistrate
Judge's Report and Recommendation.

(Doc. 27.)

Plaintiff also filed a "Supplemental

Complaint".1 (Doc. 28.)
DISCUSSION

In his Objections, Plaintiff asserts he agrees with the Court regarding the law courts must

employ in determining whether a party has exhausted his administrative remedies. (Id at p. 1.)
However, Plaintiff states in a conclusory fashion that he could not access the grievance

procedures "due to Defendants' strategic methods of hendering [sic] Plaintiff to enact his right to
do such, due to allegations of assault by Defendants." (Id.)

Plaintiff also states that the

grievance he filed in November 2015 constitutes exhaustion of his administrative remedies
because he received the final denial of his appeals of that grievance on March 17, 2016. (Id at

p. 5.)

As the Magistrate Judge noted, a prisoner-plaintiff is to exhaust his available

administrative remedies prior to filing a cause of action in federal court. (Doc. 26, pp. 3-14.)

Plaintiffs Complaint was filed on February 19, 2016, (doc. 1). Thus, even if the Court were to
1 The assertions in Plaintiffs Supplemental Complaint are due to be dismissed for the same reasons
Defendants' Motion to Dismiss is granted and Plaintiffs Complaint is dismissed.

accept as true Plaintiffs assertion that he exhausted his available administrative remedies as of
March 17, 2016, he still would not have exhausted those remedies prior to the filing of his
Complaint.
Lastly, Plaintiff admits that he was advised of his right to appeal the disciplinary hearing
officer's finding of guilt. (Doc. 27, p. 5.) Nevertheless, Plaintiff maintains he was not given the

opportunity to appeal the decision and was not informed as to how to appeal the decision. The
Magistrate Judge noted that Plaintiff had available to him the grievance procedure applicable to
disciplinary proceedings, Standard Operating Procedure IIB02-001, and concluded that Plaintiff
did not avail himself to that procedure. (Doc. 26, pp. 17-18.) Plaintiffs Objection in this regard
presents nothing more than his displeasure with the Magistrate Judge's findings, which is an
insufficient basis for the Court to sustain this Objection.
CONCLUSION

For the reasons set forth above, the Court ADOPTS the Magistrate Judge's Report and

Recommendation, as supplemented herein, as the opinion of the Court and OVERRULES

Plaintiffs Objections. The Court GRANTS Defendants' Motion to Dismiss based on Plaintiffs
failure to exhaust his administrative remedies, DISMISSES Plaintiffs Complaint without

prejudice, and DENIES Plaintiff leave to proceed in forma pauperis on appeal. The Court
DISMISSES as moot Plaintiffs Motion to Compel. (Doc. 11.) The Court DIRECTS the Clerk

of Court to enter the appropriate judgment of dismissal and to CLOSE this case.

SO ORDERED, this /9ciay of </Je O^Jlfl -^

2016.

HONORABLE J. RANDAL HALL
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA