Opinion
5:20-CV-287 (MTT)
06-10-2021
CHRISTOPHER BOYD, Plaintiff, v. WARDEN BRENWER, et al., Defendants.
SUPPLEMENTAL RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
On April 15, 2021, the undersigned recommended granting Defendants' Motion to Dismiss as Plaintiff did not exhaust his administrative remedies. (Doc. 29). Specifically, the undersigned found that Plaintiff's grievance concerning his deliberate indifference claims, grievance no. 306882, could not satisfy the exhaustion requirement as it was untimely and did not satisfy the good cause standard. Id. at 3-4. On June 3, 2021, the district judge remanded the Recommendation for further consideration of Plaintiff's arguments concerning exhaustion. (Doc. 33). Specifically, Plaintiff's arguments that he was in the hospital for five days following the incident that was the subject of the grievance, was placed in the medical unit upon his return to Baldwin State Prison, and was transferred to Hays State Prison shortly thereafter. (Docs. 27, 28, 33).
The Georgia Department of Corrections' grievance procedure allows the grievance coordinator to waive the untimeliness of a complaint for good cause. (Doc. 21-3, p. 9). While Plaintiff has provided the Court with explanations for his untimely grievance, he did not present these explanations in either his initial grievance or his grievance appeal in an attempt to receive a good cause waiver through the grievance procedure. (Docs. 21-8, pp. 1, 3). As Plaintiff did not seek or receive such a waiver through the grievance procedure, the Court cannot excuse his failure to file the grievance on time. See Williams v. Barrow, 559 Fed.Appx. 979, 988 n.8 (11th Cir. 2014) (noting that the court cannot excuse a plaintiff's failure to file a grievance on time, despite the plaintiff's contentions that his health problems provided him with good cause for failing to file a timely grievance, because the plaintiff did not seek or receive a good cause waiver from the grievance coordinator as specified in Georgia's grievance procedure). Accordingly, the undersigned again RECOMMENDS that Defendants' Motion to Dismiss (Doc. 21) be GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to these recommendations, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The district judge shall make a de novo determination as to those portions of the Recommendation to which objection is made; all other portions of the Recommendation may be reviewed by the district judge for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.