Opinion
CIVIL ACTION NO. 5:19-CV-207 (MTT)
10-22-2019
SHERMAN CARTER, Plaintiff, v. MEGAN J. BRENNAN, Postmaster General, Defendant.
ORDER
Before the Court is the Defendant's motion to dismiss for failure to exhaust administrative remedies. Doc. 19. The Court is required to advise the Plaintiff of the significance of this motion. See Griffith v. Wainwright, 772 F.2d 822 (11th Cir. 1985). In an effort to afford the Plaintiff, who is proceeding pro se, adequate notice and time to respond to the Defendant's motion, the following notice is given.
Normally, when considering a motion to dismiss, the Court limits its consideration to the pleadings and exhibits attached thereto, as well as the parties' briefs. If, however, the Defendant has alleged that the Plaintiff's claims should be dismissed for failure to exhaust administrative remedies, "[t]he judge properly may consider facts outside of the pleadings to resolve a factual dispute as to exhaustion where doing so does not decide the merits, and the parties have a sufficient opportunity to develop the record." Trias v. Fla. Dep't of Corr., 587 F. App'x 531, 535 (11th Cir. 2014) (citing Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)); Tillery v. U.S. Dep't Homeland Sec., 402 F. App'x 421, 424-25 (11th Cir. 2010) (holding that the general exhaustion principles relied upon in Bryant also apply equally to Title VII exhaustion). If the Plaintiff is responding to a motion to dismiss for failure to exhaust, this is his opportunity to "develop the record." Trias, 587 F. App'x at 535 (citing Bryant, 530 F.3d at 1376). The Plaintiff has already filed a brief in response to the Defendant's motion to dismiss. Doc. 21. But he must be given notice and an opportunity to provide the Court with affidavits and/or other documents showing if he has exhausted available administrative remedies.
Any affidavits and/or other documents must be filed WITHIN 21 DAYS of receipt of this Order. See Fed. R. Civ. P. 15(a)(1)(B); M.D. Ga. Civ. R. 7.2. Thereafter, the Court will consider the Defendant's motion to dismiss and any opposition to the same filed by the Plaintiff, and will issue its ruling.
SO ORDERED, this 22nd day of October, 2019.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT