United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
se plaintiff Bobby Joe Allen filed his initial complaint
in this case on June 11, 2017. (Doc. 1). Mr. Allen has
amended or supplemented his complaint multiple times. (Docs.
10, 12, 14, 19, 28, 31). Mr. Allen filed his final complaint
on April 11, 2018. (Doc. 31). Mr. Allen used a form for his
complaint that is designed for prisoner complaints concerning
civil rights violations. (Doc. 31).
April 11, 2018 complaint, Mr. Allen alleges that on October
3, 2017, at the Limestone County Detention Facility, Officers
Vickers, Thompson, and Parham assaulted him while Officers
Vanschoiack and Head watched. (Doc. 31, pp. 3-8). Mr. Allen
asserts that each defendant either used excessive force
against him or failed to intervene to prevent the use of
excessive force against him by other officers. The magistrate
judge assigned to this case has recommended that the Court
dismiss Mr. Allen's claims with prejudice pursuant to 42
U.S.C. § 1997e(a) for the failure to exhaust
administrative remedies. (Doc. 57). Mr. Allen has filed
written and typed objections to the magistrate judge's
report and recommendation. (Docs. 58, 59). The substance of
the objections in the two documents is the same.
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.”
Id. The Court reviews for plain error proposed
factual findings to which no objection is made, and the Court
reviews propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (per curiam), cert. denied, 464 U.S. 1050
(1984) (“The failure to object to the magistrate's
findings of fact prohibits an attack on appeal of the factual
findings adopted by the district court except on grounds of
plain error or manifest injustice.”) (internal citation
omitted); Macort v. Prem, Inc., 208 Fed.Appx. 781,
784 (11th Cir. 2006).
Allen filed two prison grievances relating to the October 3,
2017 confrontation with prison officers. Prison officials
closed both grievances. The magistrate judge found that Mr.
Allen did not complete the Limestone County Detention
Facility's grievance procedure because Mr. Allen did not
appeal the initial disposition of his grievances. The
magistrate judge held that Mr. Allen's failure to follow
the appeal process in the grievance procedure mandated
dismissal of Mr. Allen's civil rights complaint pursuant
to 42 U.S.C. § 1997e(a) for failure to exhaust
Allen does not challenge the magistrate judge's finding
concerning his failure to use the appeal mechanism in the
prison grievance procedure. (Docs. 58, 59). Instead, Mr.
Allen argues that 42 U.S.C. § 1997e(a) does not apply to
his § 1983 action for monetary damages. (Doc. 58, p. 1;
Doc. 59, pp. 1-2). Section 1997e(a) states that “[n]o
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 correctional
facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Therefore,
§ 1997e(a) applies to Mr. Allen's § 1983 action
and his request for compensation. See Porter v.
Nussle, 534 U.S. 516, 524 (2002) (explaining that
exhaustion is a prerequisite to suit “[e]ven when the
prisoner seeks relief not available in grievance proceedings,
notably money damages”); Booth v. Churner, 532
U.S. 731, 740-41 (2001).
support of his objection to the magistrate judge's
report, Mr. Allen cites Ross v. Blake, 136 S.Ct.
1850 (2016). Ross supports the magistrate
judge's recommendation; Ross does not support
Mr. Allen's objections. In Ross, the Supreme
The Prison Litigation Reform Act of 1995 (PLRA) mandates that
an inmate exhaust “such administrative remedies as are
available” before bringing suit to challenge prison
conditions. 42 U.S.C. § 1997e(a). The court below
adopted an unwritten “special circumstances”
exception to that provision, permitting some prisoners to
pursue litigation even when they have failed to exhaust
available administrative remedies. Today, we reject that
freewheeling approach to exhaustion as inconsistent with the
PLRA. But we also underscore that statute's built-in
exception to the exhaustion requirement: A prisoner need not
exhaust remedies if they are not “available.” 136
S.Ct. at 1854-55. The Supreme Court explained that the
language in 42 U.S.C. § 1997e(a) is
“‘mandatory': An inmate ‘shall'
bring ‘no action' (or said more conversationally,
may not bring any action) absent exhaustion of available
administrative remedies . . . And that mandatory language
means a court may not excuse a failure to exhaust, even to
take [special] circumstances into account.”
136 S.Ct. at 1856. The Supreme Court remanded the
Ross case for additional proceedings because the
parties' “briefs and other submissions . . .
suggest the possibility that the aggrieved inmate lacked an
available administrative remedy, ” and the PLRA
provides a statutory exception to the exhaustion requirement
when an administrative remedy is not available to a prisoner.
136 S.Ct. at 1855. Mr. Allen does not contend that he lacked
an administrative remedy.
Court finds no error in the magistrate judge's factual
findings or legal analysis. Therefore, the Court overrules
Mr. Allen's objections, adopts the magistrate judge's
report, and accepts his recommendation to dismiss Mr.
Allen's case for failure to exhaust administrative
remedies. The Court will dismiss this case with prejudice as
to the first grievance and without prejudice as to the second
because it is not clear to the Court that Mr. Allen's
administrative remedies concerning the second grievance are
absolutely time-barred. Bryant v. Rich, 530 F.3d
1368, 1371 n.2 (11th Cir. 2008). On the calendar, Mr.
Allen's five days to appeal from the disposition of his
grievances expired long ago, but on October 10, 2017, Mr.
Allen sought permission to add to his complaint in this
action claims regarding the October 3, 2017 incident for
which he seeks relief. Mr. Allen's motion to amend fell
within the five-day period for an administrative appeal from
his second grievance, and the Court does not know whether a
tolling mechanism would allow Mr. Allen to resume his
administrative appeal. If he has the benefit of a tolling
mechanism, then he likely will have to file an administrative
appeal concerning his second grievance within one day of his
receipt of this opinion.
Court will enter a separate order consistent with this
 The Court notes that under the
Limestone County Detention Facility's grievance
procedure, there is no time limit for Mr. Allen to file a
grievance relating to the October 3, 2017 incident. The
procedure states: “Inmates may submit a grievance at
any time, with the understanding that any delay in reporting
a complaint may compromise the ability of the Jail Staff to
investigate and respond to complaints.” (Doc. 46-13, p.
2). Therefore, it seems that nothing in the grievance
procedure would ...