HOUSTON v. KING et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BRADLEY MANDELA HOUSTON, 	:
:
Plaintiff, 	:
:
v. 	: 	Case No. 5:23-cv-438-MTT-AGH
:
CAPTAIN TAVARES KING, et al., 	:
:
Defendants. 	:
________________________________
REPORT AND RECOMMENDATION
Before the Court is Defendants’ motion to dismiss (ECF No. 52) and Plaintiff’s
amended 	complaint 	(ECF 	No. 	44-2). 	For 	the 	reasons 	stated 	below, 	it 	is
recommended that Defendants’ motion to dismiss be granted.
PROCEDURAL BACKGROUND
Plaintiff’s claims arise out of his incarceration at Wilcox State Prison (“WSP”)
in Abbeville, Georgia. 	Am. Compl. 4, ECF No. 44-2. 	Plaintiff alleges that on
September 30, 2022, he was tied up, beaten, stabbed, and kicked by his cellmate. 	Id.
He contends that despite both Defendants seeing Plaintiff’s injuries and being aware
of the ongoing assault, they failed to remove Plaintiff from the cell, resulting in his
cellmate 	inflicting 	further 	injury 	upon 	him. 	Id. 	Plaintiff 	filed 	his 	original
complaint on October 23, 2023.1 	Compl. 6, ECF No. 1. 	On December 8, 2023, the
1 Although the Court received Plaintiff’s original complaint on October 30, 2023, it was signed on
October 23, 2023. 	Compl. 6. 	“Under the prison mailbox rule, a pro se prisoner’s court filing is deemed
filed on the date it is delivered to prison authorities for mailing.” 	United States v. Glover, 686 F.3d
1203, 1205 (11th Cir. 2012) (internal quotation marks omitted). 	“Unless there is evidence to the
contrary, like prison logs or other records, we assume that a prisoner’s motion was delivered to prison
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 1 of 16

2
Court allowed Plaintiff’s deliberate indifference to safety claims against Defendants
to proceed for further factual development. 	Order 7, ECF No. 4.
On May 13, 2024, Defendant King filed a timely answer (ECF No. 22), and—
after the Court granted his motion to set aside default (ECF Nos. 29, 23)—Defendant
Krause filed an answer on July 3, 2024 (ECF No. 30). 	On March 11, 2025,
Defendants 	moved 	to 	dismiss 	Plaintiff’s 	complaint 	for 	failure 	to 	exhaust 	his
administrative remedies. 	Defs.’ Mot. to Dismiss 1, ECF No. 41. 	On March 25, 2025,
Plaintiff filed a motion to amend his complaint (ECF No. 44) and attached a proposed
amended complaint (ECF No. 44-2). 	The Court granted Plaintiff’s motion to amend,
and Defendants’ motion to dismiss was terminated as moot. 	Order & R. 4, Sept. 12,
2025, ECF No. 50; Order, Oct. 22, 2025, ECF No. 54 (adopting recommendation).
On September 26, 2025, Defendants moved to dismiss (ECF No. 52) Plaintiff’s
amended complaint for failure to exhaust his administrative remedies. 	Plaintiff
filed a response to the motion to dismiss (ECF No. 55), and Defendants’ filed a reply
(ECF No. 56). 	Defendants’ motion is ripe for review.
DISCUSSION
I. 	Exhaustion Standard
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title . . . by a
prisoner 	confined 	in 	any 	jail, 	prison, 	or 	other 	correctional 	facility 	until 	such
administrative remedies as are available are exhausted.” 	42 U.S.C. § 1997e(a).
authorities on the day he signed it.” 	Id.
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 2 of 16

3
When a grievance procedure is provided for prisoners, “an inmate alleging harm
suffered from prison conditions must file a grievance and exhaust the remedies
available under that procedure before pursuing a § 1983 lawsuit.” 	Brown v. Sikes,
212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added). 	“To exhaust administrative
remedies in accordance with the PLRA, prisoners must properly take each step within
the administrative process. 	If their initial grievance is denied, prisoners must then
file a timely appeal.” 	Bryant v. Rich, 530 F.3d 1368, 1378 (11th Cir. 2008) (internal
citation and quotation marks omitted). 	“Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules because no adjudicative
system can function effectively without imposing some orderly structure on the course
of its proceedings.” 	Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
“The level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim, but it is the prison’s
requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Jones v. Bock, 549 U.S. 199, 218 (2007). 	“The critical function of the grievance
process is that it provides the institution with notice of a problem such that they have
an opportunity to address the problem internally.” 	Toenniges v. Ga. Dep’t of Corr.,
600 F. App’x 645, 649 (11th Cir. 2015).
“Because exhaustion of administrative remedies is a matter in abatement and
not generally an adjudication on the merits, an exhaustion defense . . . is not
ordinarily the proper subject for a summary judgment; instead, it should be raised in
a motion to dismiss, or be treated as such if raised in a motion for summary
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 3 of 16

4
judgment.” 	Bryant, 	530 F.3d at 	1374-75 	(internal 	quotation 	marks 	omitted).
Further, since dismissal for failure to exhaust is not an adjudication on the merits,
the Court can resolve factual disputes using evidence from outside the pleadings. 	Id.
at 1376.
“[D]eciding a motion to dismiss for failure to exhaust administrative remedies
is a two-step process.” 	Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008).
“First, the court looks to the factual allegations in the defendant’s motion to dismiss
and those in the plaintiff’s response, and if they conflict, takes the plaintiff’s versions
of the facts as true.” 	Id. 	If, taking plaintiff’s facts as being true, the defendant is
entitled to dismissal for failure to exhaust, then the complaint should be dismissed.
Id. 	“If the complaint is not subject to dismissal at the first step . . . the court then
proceeds to make specific findings in order to resolve the disputed factual issues
related to exhaustion.” 	Id. 	The defendant bears the burden of proof during this
second step. 	Id. 	In resolving the factual dispute, a Court is authorized to make
credibility determinations. 	See Bryant, 530 F.3d at 1377-78 (finding that district
court did not clearly err in determining that plaintiff’s allegation that he was denied
access to grievance forms was not credible); see also Whatley v. Smith, 898 F.3d 1072,
1082-83 (11th Cir. 2018) (upholding district court finding that one of inmate’s
grievances was not filed).
A prisoner need only exhaust administrative remedies that are available.
Ross v. Blake, 578 U.S. 632, 642 (2016). 	In Ross, the Supreme Court held that an
administrative procedure is unavailable under the PLRA when either (1) “it operates
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 4 of 16

5
as a simple dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates,” (2) it is “so opaque that it becomes, practically speaking,
incapable 	of 	use,” 	or 	(3) 	“prison 	administrators 	thwart 	inmates 	from 	taking
advantage 	of 	a 	grievance 	process 	through 	machination, 	misrepresentation, 	or
intimidation.” 	Id. at 643-44. 	For a remedy to be available, it “must be capable of
use for the accomplishment of its purpose.” 	Turner, 541 F.3d at 1084 (quotation
marks omitted). 	The burden is on the defendant to show that an administrative
remedy is available, but “once that burden has been met, the burden of going forward
shifts to the plaintiff, who . . . must demonstrate that the grievance procedure was
subjectively and objectively unavailable to him.” 	Geter v. Baldwin State Prison, 974
F.3d 1348, 1356 (11th Cir. 2020) (internal quotation marks omitted) (citing Turner,
541 F.3d at 1085). 	District courts must use the two-step Turner analysis when
addressing the availability of the grievance process. 	See Jenkins v. Sloan, 826 F.
App’x 833, 839 (11th Cir. 2020) (directing district courts to apply “the two-step Turner
test when addressing the question of exhaustion and the availability of the grievance
process”).
II. 	WSP Grievance Procedures
Defendants 	submitted the 	declaration 	of 	Charles 	Mims—the 	Warden 	at
WSP—to establish that administrative remedies were available to Plaintiff at WSP.
Mims Decl. ¶ 2, ECF No. 52-2. 	Mims’s responsibilities include responding to
grievances 	and 	understanding 	and 	ensuring 	compliance 	with 	the 	grievance
procedures. 	Id. According to Mims, WSP follows the Georgia Department of
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 5 of 16

6
Corrections (“GDC”) Standard Operating Procedure 227.02 (the “SOP”) regarding
grievances. 	Id. ¶ 3.
The SOP mandates that an inmate must follow a two-step process in order to
exhaust his remedies: (1) file an original grievance no later than ten days from the
date the inmate knew or should have known of the facts giving rise to the grievance;
and (2) file an appeal to the Central Office. 	Mims Attach. 1, at 8, ECF No. 52-3.
Pursuant to the SOP, an inmate “may file a grievance about any condition, policy,
procedure, or action or lack thereof that personally affects the Offender.” 	Id. at 4.
This includes grievances alleging harassment. 	Id. at 5. 	After a grievance is filed,
the grievance coordinator will screen the grievance and accept it for processing or
recommend rejection of the grievance for one of the reasons enumerated in the SOP,
including raising a non-grievable issue, untimeliness, or raising more than one issue.
Id. at 9. 	A warden “should reject” a grievance “if it . . . [i]s not timely filed; however,
the Grievance Coordinator may waive the time limit for Good Cause[.]” 	Id. 	The
SOP defines “good cause” as “[a] legitimate reason involving unusual circumstances
that prevented the Offender from timely filing a grievance . . . . Examples include:
serious illness, being housed away from a facility covered by this procedure (such as
being out on a court production order or for medical treatment).” 	Id. at 2.
The warden has forty calendar days from the date an offender submits a
grievance to respond, though a one-time ten-day extension may be granted. 	Mims
Attach. 1, at 11. 	An inmate may file an appeal within seven days after the warden
issues a decision or after the time allowed for the warden to decide expires. 	Id. at 14.
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 6 of 16

7
An inmate may appeal a rejected grievance. 	Id. at 10. 	The Commissioner has one
hundred and twenty days within which to respond to a grievance appeal. 	Id. at 15.
The SOP also includes an emergency grievance procedure. 	Id. 	The SOP
defines an emergency grievance as “[a]n unforeseen combination of circumstances,
urgent need, or the resulting state that calls for immediate action or relief through
the grievance process.” 	Id. at 2. 	It gives as an example “a situation involving a
significant threat to the health, safety or welfare of an [inmate] that requires prompt
action[.]” 	Mims Attach. 1, at 2. 	Under emergency grievance procedures, a duty
officer must determine if the grievance fits the definition of an emergency grievance,
and if so, take immediate action and provide an initial response to the inmate within
forty-eight hours and written response within five days. 	Id. at 16. 	If the officer
determines the grievance is not an emergency, he must notify the offender within five
days, at which time the offender can file a new grievance within ten days of
notification. 	Id.
III. 	Plaintiff’s Grievance
Mims provided a copy of Grievance Number 357416, which he identifies as the
grievance Plaintiff filed related to his allegations in this complaint. 	Mims Decl. ¶
13; Mims Attach. 3, at 7, ECF No. 52-2. 	Plaintiff signed the grievance on August 23,
2023,2 and it alleges generally that on September 30, 2022, he was attacked and
badly injured by his cellmate, and that despite being made aware of the attack and
2 Although the grievance was signed on August 23, 2023, it does not appear that it was submitted to
prison officials until August 29, 2023. 	Mims Attach. 3, at 7.
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 7 of 16

8
his injuries, Defendants refused to remove him from the cell, resulting in his cellmate
inflicting additional injuries. 	Mims Attach. 3, at 7. 	Plaintiff’s requested resolution
was that he be transferred to another prison, that criminal charges be pressed against
the inmate who attacked him, and that he receive better treatment and compensation
from all GDC staff involved. 	Id.
At the top left hand corner of the grievance is a written notation stating,
“Emergency Grievance.” 	Id. 	The bottom of the grievance form includes a pre-
printed question asking if the grievance is being submitted within the ten-day time
limit, and if not, for the inmate to explain why. 	Id. 	In response, Plaintiff admitted
the grievance was not filed within the ten-day time limit and stated the reason was
“[b]ecause [he] was scared of harassment from Captain King and Lt. Krause.” 	Id.
On 	September 21, 2023, the 	Warden 	signed a 	response 	indicating 	that
Plaintiff’s grievance was rejected for untimeliness. 	Id. at 2, 6. 	Plaintiff was notified
of the grievance response on October 18, 2023. 	Id. 	Plaintiff submitted his appeal
on October 20, 2023. 	Id. at 2, 5; Mims Decl. ¶ 13. 	The stated basis of his appeal did
not address untimeliness or failure to treat his grievance as an emergency grievance
but instead argued that his appeal should be granted because he had had witnesses
both to the incident and to his resulting injuries. 	Mims Attach. 3, at 5. 	On
December 19, 2023, the Central Office upheld the Warden’s rejection of the grievance
as untimely.3 	Mims. Attach. 3, at 4.
3 According to Plaintiff’s original complaint, he was transferred from WSP to Calhoun State Prison on
October 6, 2023, so that would explain why his appeal form contains a notation at the top for it to be
forwarded to WSP. 	Compl. 4, ECF No. 1; Mims Attach. 3, at 5.
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 8 of 16

9
IV. 	Defendants’ Motion to Dismiss and Plaintiff’s Response
Defendants argue that Plaintiff failed to properly exhaust his administrative
remedies in two respects. 	First, he failed to timely file his grievance within ten days
of the incident as required by the SOP. 	Defs.’ Mem. in Supp. of Mot. to Dismiss 5-6.
Second, he filed this action prior to receiving a response to his appeal and prior to
expiration of the time for the Commissioner’s office to respond to the appeal. 	Id.
at 6.
In his response to the motion to dismiss, Plaintiff raises three arguments.
First, he argues that “he was harassed away from the grievance procedure.” 	Pl.’s
Resp. to Mot. to Dismiss 1, ECF No. 55. 	He notes that the grievance he filed
specifically 	mentions 	the 	harassment, 	and 	he 	cites 	other 	grievances 	he 	filed,
presumably to corroborate his contention that the harassment prevented timely filing
of his grievance. 	Id. 	Second Plaintiff argues that his grievance was an emergency
grievance and that Defendants failed to respond to his emergency grievance as
required by the SOP. 	Id. at 2. 	Third, he argues that “[a] motion to dismiss is only
suppose[d] to deal with the adequacy of the complaint” and that “every allegation
inside the complaint is suppose[d] to be taken as true.” 	Id. 	Therefore, he asserts
that the Court should not consider matters outside of the pleadings.4 	Id.
4 Plaintiff’s third argument conflates the standard for dismissal of a complaint for failure to state a
claim, where a plaintiff’s factual assertions are presumed to be true, and the first Turner step where
a district court considering exhaustion takes a plaintiff’s statements regarding exhaustion as true
prior to moving on to the second step. 	Turner, 541 F.3d at 1082. 	Contrary to Plaintiff’s assertion, a
district court resolving factual disputes at the second step may consider evidence outside of the
pleadings. 	Bryant, 530 F.3d at 1376.
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 9 of 16

10
V. 	Application of Two-Step Turner Test
Whether 	viewed 	as 	an 	argument 	that 	he 	properly 	exhausted 	the
administrative procedures through the good-cause exception for late-filed grievances
or an argument that the administrative remedy was rendered unavailable due to
harassment, 	Plaintiff’s 	allegations—assuming 	they 	are 	true—are 	sufficient 	to
survive the first step of the Turner analysis. 	Therefore, the Court proceeds to the
second step and makes the following factual findings.
A. 	Plaintiff’s Failure to Exhaust Under the SOP
The 	Court 	concludes 	that 	Plaintiff 	failed 	to 	properly 	exhaust 	his
administrative remedies as required by the SOP. 	First, Plaintiff failed to file his
grievance within ten days of the incident, and instead waited approximately eleven
months before submitting his grievance. 	Mims Attach. 3, at 7. 	Further, although
Plaintiff invoked the good cause exception for untimeliness by claiming he had been
“scared of harassment” from Defendants, the Warden apparently found no good cause
because he rejected the grievance as untimely. 	Mims Attach. 3, at 6-7. 	And while
the Warden’s rejection did not explain why he found the good cause exception
inapplicable, the Court cannot conclude the rejection was arbitrary. 	Plaintiff’s
grievance provided no details about why he was scared of harassment. 	In addition,
when he appealed the grievance rejection to the Central Office, Plaintiff did not
mention the fact that the grievance had been rejected for untimeliness or argue that
the Warden had erred in failing to find good cause. 	Mims Attach. 3, at 5.
Second, even if Plaintiff did properly invoke the good cause exception and his
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 10 of 16

11
grievance 	was 	otherwise 	sufficient 	for 	exhaustion, 	he 	failed 	to 	complete 	the
administrative process prior to filing suit. 	The record shows that he submitted his
grievance appeal just a few days prior to filing his complaint. 	Mims Attach. 3, at 2,
5; Compl. 6. 	He did not wait for a response to the appeal or for the time to respond
to the appeal to expire prior to filing suit. 	“[A]n inmate alleging harm suffered from
prison conditions must file a grievance and exhaust the remedies available under
that procedure before pursuing a § 1983 lawsuit.” 	Brown, 212 F.3d at 1207
(emphasis added); see Wright v. Ga. Dep’t of Corr., 820 F. App’x 841, 844 (11th Cir.
2020) (“Because [the plaintiff] did not wait until the GDC Commissioner responded
to his appeal or the 100 days elapsed, he failed to fully exhaust his administrative
remedies before filing his complaint.”).
Third, the Court rejects Plaintiff’s contention that simply writing “Emergency
Grievance” at the top of his grievance form somehow created an exemption to the
SOP’s timeliness requirement. 	Initially, the Court notes that other than labeling it
as an emergency grievance, Plaintiff’s grievance does not state anything that “calls
for immediate action or relief through the grievance process.” 	Mims Attach. 3, at 7;
Mims Attach. 1, at 2. 	Again, his grievance was about something that had happened
approximately eleven months earlier. 	Moreover, even if the grievance somehow
qualified as an emergency grievance, the emergency grievance procedures provide no
exception to the ten-day time submission requirement. 	Mims Attach. 1, at 15-16.
Finally, when Plaintiff appealed the Warden’s grievance rejection, he did not mention
anything about the failure to follow the emergency grievance procedures. 	Mims
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 11 of 16

12
Attach. 3, at 5. 	Thus, the Court finds that Plaintiff failed to properly exhaust his
administrative remedies under the SOP.
B. 	Plaintiff Had Available Administrative Remedies
The Court also concludes that Plaintiff had an available administrative
remedy. 	While a defendant must “initially establish” that an administrative remedy
was available to a plaintiff, the defendant is only required to show that a remedy was
“generally available.” 	Wright, 820 F. App’x at 845. 	A defendant need not show that
“a remedy was available to [a plaintiff] practically speaking.” 	Id. 	Once the
defendant’s burden is met, “the burden of going forward shifts to the plaintiff, who
. . . must demonstrate that the grievance procedure was subjectively and objectively
unavailable to him.” 	Geter, 974 F.3d at 1356 (internal quotation marks and citation
omitted).
Here, Defendants have met their initial burden of establishing that an
administrative remedy was generally available to Plaintiff. 	As observed by the
Eleventh Circuit, “it is difficult to conceive of how a defendant could show that a
plaintiff failed to exhaust his remedies without showing that there was a remedy to
be exhausted.” 	Wright, 820 F. App’x at 845. 	Defendants have shown the existence
of remedies here through Mims’s declaration outlining the grievance procedures
utilized at WSP, Plaintiff’s grievance history, and Plaintiff’s use of the grievance
procedures. 	Mims Decl. ¶¶ 3-4, 13; Mims Attach. 2, ECF No. 52-4; Mims Attach. 3,
at 5, 7.
Therefore, the burden shifts to Plaintiff to show that the grievance procedures
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 12 of 16

13
at WSP were “subjectively and objectively unavailable to him.” 	Geter, 974 F.3d at
1356. 	Plaintiff declares that administrative remedies were unavailable because he
“was harassed away from filing a grievance about being stabbed and tied up by
another inmate.” 	Pl.’s Decl., ECF No. 55-2. He states he “was harassed by Officer
Krause and other staff and officers.” 	Id. 	Presumably, Plaintiff is invoking the third
circumstance of unavailability outlined in Ross where inmates are prevented from
exhausting their administrative grievances through “intimidation.” 	Ross, 578 U.S.
at 643-44. 	“‘A prison official’s serious threats of substantial retaliation against an
inmate for lodging or pursuing in good faith a grievance make the administrative
remedy “unavailable,” and thus lift the exhaustion requirement’ if the threat: (1)
actually deterred the prisoner from filing a grievance or using the grievance process;
and (2) would deter a reasonable prisoner from filing a grievance or using the
grievance process.” 	Harris v. Goodwin, No. 24-10317, 2025 WL 2652082, at *3 (11th
Cir. Sept. 16, 2025) (quoting Turner, 541 F.3d at 1085).
But Plaintiff’s vague allegations about harassment are insufficient to meet his
burden of showing unavailability. 	He fails to provide any detail about what
constituted harassment or what specifically Defendants or any other officers said to
him that prevented him from filing a timely grievance. 	Plaintiff refers the Court to
three other grievances he filed at WSP, which he seems to believe are evidence that
harassment prevented him from filing a timely grievance about the September 30,
2022, incident. 	Pl.’s Decl. 	However, Defendants attached those grievances to their
reply brief, and they provide no support to his argument. 	If anything, the grievances
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 13 of 16

14
undermine it.
In a March 2023 grievance, Plaintiff complained about a unit manager “being
rude” to him after he asked if she could take his uniform request form. 	Morgan Ex.
1, at 4, ECF No. 56-2. 	The grievance did not claim that Plaintiff was threatened in
any way or mention anything about either Defendant or the incident at issue here.
In a June 2023 grievance, Plaintiff complained about trying to return his vegan
meal because it was spoiled and being told he was not on the vegan plan when he
tried to get another meal. 	Morgan Ex. 2, at 7, ECF No. 56-3. 	The grievance briefly
referred to Defendant Krause, but only to mention that the kitchen relayed through
him that Plaintiff was not on the vegan plan. 	Id. 	The grievance did not mention
anything about Defendants harassing or threatening him. 	In his appeal of the
grievance, he expressed suspicion that his issues with getting vegan meals was “some
form of harassment or retaliation,” but he provided no specifics and again failed to
mention Defendants. 	Id. at 5.
Finally, in an August 20, 2023, grievance, Plaintiff claimed that he was “being
harassed by other prison officials by lack of clothing, constant food issues[,] and my
legal mail also being opened and signed for out of my presence.” 	Morgan Ex. 3, at 5,
ECF No. 56-4. 	At the top of the form is written, “Harassment by Warden Mims.”
Id. 	However, Plaintiff did not mention Defendants or any threats or intimidation.
Further, Plaintiff cannot show that these purported acts of harassment actually
deterred him from using the grievance process or would deter a reasonable prisoner
from filing a grievance. 	See Harris, 2025 WL 2652082, at *3. 	In fact, it was only
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 14 of 16

15
nine days later that Plaintiff filed the grievance related to the incident in this case.
Mims Attach. 3, at 7. 	Further, between the time of the incident on September 30,
2022, and when he finally filed his grievance, Plaintiff filed seven other grievances at
WSP, 	which 	is 	evidence 	that 	any 	alleged 	harassment 	did 	not 	render 	the
administrative procedures unavailable. 	Mims Attach. 2, at 2. 	Thus, the Court
concludes that Plaintiff failed to meet his burden of showing that administrative
remedies were unavailable.
CONCLUSION
In summary, the Court concludes that Plaintiff had available administrative
remedies 	at 	WSP 	which 	he 	failed 	to 	properly 	exhaust 	prior 	to 	filing 	suit.
Accordingly, it is recommended that Defendants’ motion to dismiss (ECF No. 52) be
granted and that Plaintiff’s complaint be dismissed for failure to exhaust his
administrative remedies.5 	Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve
and file written objections to this Recommendation, or seek an extension of time to
file objections, within FOURTEEN (14) DAYS after being served with a copy hereof.
Any objection should be no longer than TWENTY (20) PAGES in length. 	The district
5 Dismissal for failure to exhaust is generally without prejudice, and that is what the Court is
recommending here regarding Plaintiff’s failure to exhaust. 	See Garcia v. Obasi, No. 21-12919, 2022
WL 669611, at *4 (11th Cir. Mar. 7, 2022) (citing Bryant, 530 F.3d at 1374-75 & n.12). 	Nevertheless,
it is likely that the statute of limitations has expired in this case, and thus, dismissal without prejudice
for failure to exhaust is effectively a dismissal with prejudice. 	See Stephenson v. Warden, Doe, 554 F.
App’x 835, 837 (11th Cir. 2014) (“[W]here a dismissal without prejudice has the effect of precluding
the plaintiff from re-filing his claim due to the running of the statute of limitations, it is tantamount
to a dismissal with prejudice.” 	(citing Justice v. United States, 6 F.3d 1474, 1482 & n.15 (11th Cir.
1993))); see also Massengale v. Ford, No. 5:17-CV-99-MTT, 2019 WL 728971, at *1 n.1 (M.D. Ga. Feb.
20, 2019) (noting that even if the dismissal for failure to exhaust was effectively with prejudice,
dismissal was “nonetheless appropriate because the Plaintiff had ample opportunity to exhaust his
administrative remedies before filing suit but failed to do so”).
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 15 of 16

16
judge shall make a de novo determination of those portions of the Recommendation
to which objection is made. 	All other portions of the Recommendation may be
reviewed 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, this 11th day of February, 2026.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
Case 5:23-cv-00438-MTT-AGH Document 59 Filed 02/11/26 Page 16 of 16