Opinion
5:21-cv-00032-TES-CHW
10-31-2023
DAVID TIMOTHY MOORE, Plaintiff, v. Warden AIMEE SMITH, Defendant.
Proceedings Under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge
NOTICE
Charles H. Weigle United States Magistrate Judge
This matter was appealed and reversed in part by the Eleventh Circuit Court of Appeals because this Court, in finding that Plaintiff had failed to exhaust his administrative remedies, accepted Defendant's assertion that Plaintiff had not labeled Grievance No. 318920 as an emergency grievance. Following the Eleventh Circuit's remand of the case, the Court set a hearing for November 14, 2023, at 10 a.m., on the issue of exhaustion and directed Defendant to file a copy of the handwritten version of the disputed grievance, Grievance No. 318920, prior to the hearing. (Doc. 42). Pursuant to that order, Defendant has filed a copy of the handwritten grievance, which supports Plaintiff's assertion that he labeled the grievance as an emergency grievance. (Doc. 44). The handwritten grievance contradicts the declaration of Tracey Jackson, which Defendant offered in support of her motion to dismiss. (Docs. 12; 12-2, p. 5, ¶ 17). Based upon the production of the handwritten grievance, Defendant now moves to withdraw her exhaustion defense and to be allowed to answer Plaintiff's complaint. (Doc. 44).
Although Defendant now concedes that Plaintiff has exhausted his administrative remedies, questions remain regarding the failure to produce a true copy of the grievance and possible misrepresentations in Defendant's filings. Accordingly, the evidentiary hearing will proceed as previously scheduled, on November 14, 2023. Defendant is DIRECTED to have Tracey Jackson, the author of the declaration made in support of Defendant's motion to dismiss (Doc. 12-2) appear and be prepared to testify at the hearing, along with any other witnesses Defendant may consider necessary.
SO ORDERED.