VOSBURGH v. OLIVER et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MATTHEW BRYAN VOSBURGH, 	:
:
Plaintiff, 	:
v. 	: 	Case No. 5:24-cv-439-TES-AGH
:
TYRONE OLIVER, et al. 	:
:
Defendant. 	:
________________________________ 	:
ORDER AND RECOMMENDATION
The Court received Plaintiff’s complaint pursuant to 42 U.S.C. § 1983 against
Defendants Tyrone Oliver, Don Richardson, Officer Cambria Sapp, and Brandon
Alexander Covin1 on November 26, 2024 (ECF No. 1). 	Defendants Richardson and
Sapp subsequently filed motions to dismiss, alleging that Plaintiff’s claim is barred
by 	the 	applicable 	statute 	of 	limitations 	and 	that 	Plaintiff 	failed 	to 	exhaust
administrative remedies (ECF Nos. 12, 31). 	For the reasons explained below, it is
recommended that Defendants’ motions to dismiss (ECF Nos. 12, 31) be granted.
BACKGROUND
Plaintiff’s claims arise from a car accident that occurred while he was an
inmate at Macon State Prison (“MSP”). 	Compl. 5, ECF No. 1. 	On September 19,
2022, two officers with the Georgia Department of Corrections (“GDC”)—Defendants
Richardson and Sapp—placed Plaintiff in a GDC van for transportation from MSP to
an unspecified location. Id. Plaintiff was “fully handcuffed, with a belt chain, to waist
1 Defendants Oliver and Covin were subsequently terminated from the case on March 5, 2025 (ECF
No. 8).
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 1 of 17

2
to leg cuffs,” but he was not buckled in with a seatbelt. Id. While they were traveling
through Americus, Georgia, Brandon Covin rear-ended the van “at 30 mph to 45
mph.” 	Id. 	Plaintiff “was thrown into an unprotected steel metal prisoner cage . . .
headfirst,” bounced off the cage, and struck his head again on the bars covering the
windows. Id. Four minutes after the collision, Plaintiff had a grand mal seizure. Id.
He experienced several more in the back of the van and while being moved from the
van to an ambulance. 	Compl. 5. 	In addition, Plaintiff’s pupils were markedly
different sizes. 	Id. at 6. 	The EMTs on the scene told Richardson and Sapp that
Plaintiff “needed to be Life Flighted now due to head trauma,” but they refused. Id.
Plaintiff was instead transported by ambulance to Phoebe Putney hospital for
medical treatment. Id. at 5, 7.
Plaintiff states he was treated poorly at the hospital due to his status as an
inmate. Id. at 7. In addition to his head injury, he contends he suffered a broken jaw
in the accident “that went untreated by ER at time of crash and ever since then by
prison medical” staff at MSP and Dooly State Prison. Id. at 8. He further states he
still suffers from panic attacks; “very bad headaches with blurry vision”; nausea;
ringing in his ears; back and neck pain; numbness in his jaw, lip, feet, and hands;
and grand mal seizures, among other things. 	Compl. 7-8. 	At least one medical
professional also told Plaintiff he would likely “becom[e] 100% disabled” if [he] don’t
have back surgery[.]” 	Id. at 8. 	Plaintiff contends Defendants’ action and inaction
with 	respect 	to 	the 	car 	accident 	and 	his 	subsequent 	treatment 	violated 	his
constitutional rights, and as a result he primarily seeks monetary damages. Id. at 10.
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 2 of 17

3
Plaintiff filed his complaint on November 8, 2024. Compl. 10, ECF No. 1. On
February 7, 2025, Plaintiff’s claims for deliberate indifference to his serious medical
needs against Richardson and Sapp (“Defendants”) were allowed to proceed for
further factual development.2 	Order & R. 1, 15, ECF No. 5. 	On May 9, 2025,
Richardson filed a motion to dismiss, alleging that Plaintiff’s claim is barred by the
applicable 	statute 	of 	limitations 	and 	that 	Plaintiff 	failed 	to 	exhaust 	his
administrative remedies. Richardson Mot. to Dismiss 1, ECF No. 12. On October 20,
2025, Sapp filed a motion to dismiss adopting Defendant Richardson’s arguments.
Sapp Mot. to Dismiss 1, ECF No. 31. 	On November 3, 2025, Plaintiff responded,
contending that correctional officers threatened him with bodily harm and attempts
to block his mail should he file administrative grievances. 	Pl.’s Resp. to Mot. to
Dismiss 1-2, ECF No. 33.3 Defendants’ motions to dismiss are now ripe for review.
DISCUSSION
As explained below, the Court finds that Plaintiff’s complaint is time-barred
based upon the applicable two-year statute of limitations. Furthermore, there are no
grounds under which Plaintiff’s claims could have been tolled. 	Additionally, the
2 Plaintiff’s remaining claims were dismissed. 	Order & R. 1, 15; Order, Mar. 5, 2025, ECF No. 8
(adopting recommendation).
3 Plaintiff’s response is labeled as a “Motion to Add to the Complaint and Response to the Alleged
Failure to Exhaust Available Administrative Remedies.” Pl.’s Resp. to Mot. to Dismiss 1, ECF No. 33.
It is not exactly clear what aspect of Plaintiff’s filing is intended to respond to the motion to dismiss
as opposed to adding to the complaint, but in addition to Plaintiff’s allegation that prison officials
attempted to thwart his efforts to exhaust, he also includes a discussion of Defendants’ tort liability
under Georgia law. Pl.’s Resp. to Mot. to Dismiss 2. The court does not construe Plaintiff’s filing as
one to amend his complaint such that it supersedes his complaint but at most, one to supplement his
complaint. To that extent, Plaintiff’s motion to add to his complaint (ECF No. 33) is GRANTED.
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 3 of 17

4
Court finds that Plaintiff failed to exhaust administrative remedies before filing his
complaint. Thus, his claims must be dismissed.
I. 	Statute of Limitations
“A prisoner’s complaint may be dismissed . . . as time-barred if it ‘appears
beyond a doubt from the complaint itself that the prisoner can prove no set of facts
which would avoid a statute of limitations bar.’” 	Zamudio v. Haskins, 775 F. App’x
614, 615 (11th Cir. 2019) (quoting Hughes v. Lott, 350 F.3d 1157, 1163 (11th Cir.
2003)). 	“In section 1983 actions, federal courts refer typically to state law to
determine the applicable statute of limitations and tolling rules.” Id. at 615-16 (citing
Wallace v. Kato, 549 U.S. 384, 394 (2007)). 	The Georgia statute of limitations for
personal injury is two years. O.C.G.A. § 9-3-33; see also Bell v. Metro. Atlanta Rapid
Transit Auth., 521 F. App’x 862, 864 (11th Cir. 2013) (“The forum state’s statute of
limitations for personal injury actions applies to § 1983 claims, which in Georgia is
two years.”). A statute of limitations begins to run when a cause of action accrues—
in other words, when “the facts which would support a cause of action are apparent
or should be apparent to a person with a reasonably prudent regard for his rights.”
Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (internal quotation marks
omitted).
Plaintiff’s claims against Defendants accrued on September 9, 2022, when
Plaintiff sustained injuries as a result of Defendants’ alleged negligence. 	Compl. 5.
To 	comply 	with 	the 	two-year 	statute 	of 	limitations, 	Plaintiff 	thus 	had 	until
September 9, 2024, to file suit against Defendants. See O.C.G.A. § 9-3-33. However,
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 4 of 17

5
Plaintiff filed suit on November 8, 2024, 4 almost two months after expiration of the
statute of limitations. 	Therefore, Plaintiff’s claims are time-barred by the two-year
statute of limitations.
A. 	Tolling
Plaintiff fails to articulate grounds for tolling. 	However, since Plaintiff is
proceeding pro se, and out of an abundance of caution, the Court analyzes whether
the statute of limitations should be equitably tolled. The Court finds that there are
no grounds for tolling the statute of limitations in this case. Thus, Plaintiff’s claims
should be dismissed.
The Court initially looks to Georgia law to determine if the statute of
limitations has been tolled. Zamudio, 775 F. App’x at 615-16. Georgia has statutory
provisions providing for tolling in certain situations. See O.C.G.A. §§ 9-3-90 – 9-3-99.
However, in Plaintiff’s response to Defendants’ motion to dismiss, he does not explain
how any of these provisions might be applicable to his situation, nor do any appear
to be relevant to this case. 	See generally Pl.’s Resp. to Mot. to Dismiss; see also
Zamudio, 775 F. App’x at 616 (noting that none of Georgia’s statutory tolling
provisions applied to the plaintiff’s assertion that the statute of limitations period
was tolled while he exhausted his prison grievance procedures). 	Further, Georgia
4 Defendants contend that Plaintiff filed his complaint on November 26, 2024, the date on which the
Clerk received Plaintiff’s complaint. Richardson Br. in Supp. of Mot. to Dismiss (“Richardson Br. Supp.
MTD”) 3, ECF No. 12-1. However, 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. . . . [A]bsent evidence to the
contrary, [the court assumes that the] prisoner delivered a filing to prison authorities on the date that
he signed it.” Daniels v. United States, 809 F.3d 588, 589 (11th Cir. 2015) (internal citations omitted).
Here, Plaintiff signed his complaint on November 8, 2024. 	Compl. 10. 	Thus, the Court considers
Plaintiff’s complaint to be filed on that date.
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 5 of 17

6
has no equitable tolling doctrine that would apply to Plaintiff’s claims. Id. (“Nor have
we found a case in which a Georgia court has applied an equitable tolling doctrine.”);
see Ballard v. Kesner, No. CV421-005, 2023 WL 2450175, at *9 (S.D. Ga. Jan. 6, 2023)
(noting 	that 	Georgia’s 	equitable 	tolling 	doctrine 	was 	“extremely 	narrow” 	and
declining to apply it to § 1983 claims), recommendation adopted by 2023 WL 1794804
(S.D. Ga. Feb. 7, 2023), appeal dismissed, No. 23-10972-C, 2023 WL 6166555 (11th
Cir. June 28, 2023). 	Therefore, Georgia law provides no tolling of the statute of
limitations for Plaintiff’s claims.
B. 	Federal equitable tolling
“Under the federal doctrine of equitable tolling, the party seeking to toll the
limitations period must show ‘(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented timely
filing.’” 	Zamudio, 775 F. App’x at 616 (quoting Villarreal v. R.J. Reynolds Tobacco
Co., 839 F.3d 958, 971 (11th Cir. 2016)). 	“The Supreme Court has made clear that
tolling is an extraordinary remedy which should be extended only sparingly.” Justice
v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993) (citing Irwin v. Veterans Admin.,
498 U.S. 89, 96 (1990)). 	“Generally speaking, equitable tolling is reserved for cases
involving some affirmative misconduct or deception on the part of the adverse party.”
Zamudio, 775 F. App’x at 616 (first citing Lawrence v. Florida, 421 F.3d 1221, 1226
(11th Cir. 2005); then citing Irwin, 498 U.S. at 96).
Plaintiff has not articulated any grounds for equitable tolling. However, some
district courts, including this one, have noted that the time a plaintiff spends
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 6 of 17

7
exhausting administrative remedies “may toll the statute of limitations.” 	Clark v.
Fye (“Clark I”), No. 5:18-cv-71-MTT, 2019 WL 1354405, at *4 (M.D. Ga. Mar. 26, 2019)
(citing Leal v. Ga. Dep’t of Corr., 254 F.3d 1276 (11th Cir. 2001)). 	At the frivolity
review 	or 	motion 	to 	dismiss 	stage, 	the 	possibility 	that 	a 	plaintiff 	pursued
administrative remedies may foreclose dismissal because it may “not appear beyond
a doubt from the complaint itself that [the plaintiff] can prove no set of facts which
would avoid a statute of limitations bar.” 	See Leal, 254 F.3d at 1280; Clark v. Fye
(“Clark II”), No. 5:18-cv-71-MTT, 2020 WL 996452, at *2 (M.D. Ga. Mar. 2, 2020)
(granting summary judgment based on expiration of the statute of limitations and
distinguishing Clark I where the allegations in plaintiff’s complaint were liberally
construed at the motion to dismiss stage).
The Eleventh Circuit has “expressly declined to address the question of
whether the statute of limitations can be tolled while a prisoner is in the process of
exhausting his administrative remedies as a mandatory prerequisite for filing a
federal lawsuit.” Rager v. Augustine, 760 F. App’x 947, 950-51 (11th Cir. 2019) (citing
Leal, 254 F.3d at 1280 (“[W]e decline to decide in the first instance the legal issue of
whether the mandatory exhaustion requirement of 42 U.S.C. § 1997e(a) and the
actual exhaustion of remedies by a prisoner will operate to toll the statute of
limitations.”)). 	However, 	a 	“plaintiff 	bears 	the 	burden 	of 	demonstrating 	that
equitable tolling is warranted.” Zamudio, 775 F. App’x at 615 (citing Justice, 6 F.3d
at 1479).
Here, Plaintiff has not met his burden of showing entitlement to equitable
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 7 of 17

8
tolling. In his response to the motion to dismiss, he does not argue that the statute
of limitations was tolled during the time he pursued his administrative remedies. See
generally Pl.’s Resp. to Mot. to Dismiss. He also does not set out the dates in which
he pursued his administrative remedies, including exactly when he filed his grievance
and when the administrative process concluded.5 Thus, this case is distinguishable
from Clark I, where the plaintiff alleged that he had filed four grievances over the
course of four years and that his last had gone unanswered for nine months before he
filed suit. Clark I, 2019 WL 1354405, at *2; see Hughes, 350 F.3d at 1163 (affirming
dismissal of claim without prejudice based on the expiration of the statute of
limitations, distinguishing Leal by noting that the appellant pointed the court “to no
particular reason why the statute of limitations might be tolled in his case, and [the
court could] discern none from the record”). 	Therefore, Plaintiff fails to meet his
burden 	of 	showing 	entitlement 	to 	equitable 	tolling 	and 	his 	claims 	should 	be
dismissed.
5 Plaintiff asserts that the grievance system was not available to him because “2-cert officers
[threatened him] with 100% bodily harm + even take my life if they see fit to do so.” Pl.’s Resp. to Mot.
to Dismiss 1. Additionally, he claims the officers told him that “a grievance on this case or another
wouldn’t ever make it to the counselor’s office.” 	Id. 	However, contrary to Plaintiff’s assertions,
Defendants show that Plaintiff “submitted 29 grievances while in GDC custody, including three during
the year of the incident which is the subject matter of this lawsuit.” 	Defs.’ Reply 3, ECF No. 35;
Grievance History, ECF No. 12-5. 	Plaintiff’s grievance record indicates that he had access to the
administrative grievance system; therefore, he could have provided the Court with timelines for his
grievances if he wished to make a tolling argument. However, he failed to do so.
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 8 of 17

9
II. 	Exhaustion
A. 	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). 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). “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
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 9 of 17

10
opportunity to address the problem internally.” Toenniges v. Ga. Dep’t of Corr., 600
F. App’x 645, 649 (11th Cir. 2015).
“[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 “must 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); Black v. Rayburn, No. 22-1082, 2024 WL 64291, at *1 (11th
Cir. Jan. 5, 2024) (“Further, in resolving a factual dispute, the court may make
credibility determinations.”). 	At both steps, the Court can resolve factual disputes
using evidence from outside the pleadings since dismissal for failure to exhaust is not
an adjudication on the merits. See Bryant, 530 F.3d at 1376.
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 10 of 17

11
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
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”).
B. 	MSP Administrative Procedures
Defendant submitted the declaration of Anna Walker—Chief Counselor and
Grievance Coordinator at MSP—to establish that administrative remedies were
available to Plaintiff. 	Walker Decl. ¶ 1-2, ECF No. 12-2. 	Walker’s responsibilities
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 11 of 17

12
include ensuring compliance with the Grievance Standard Operating Procedures
(“SOP”), coordinating timely investigations and responses to inmate grievances, and
maintaining 	information 	and 	records 	regarding 	inmate 	grievances. 	Id. 	¶ 	2.
According to Walker, MSP follows the Georgia Department of Corrections (“GDC”)
SOP 227.02 to manage their grievance process. Id. ¶ 3.
The SOP mandates that an inmate must follow a two-step process to exhaust
his remedies: (1) file an original grievance no later than ten calendar 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. 	Walker Attach. 1, at 8, ECF No. 12-3.
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. 	If 	a 	grievance 	is 	accepted, 	the
Warden/Superintendent has forty calendar days from the date the offender submitted
the grievance to respond, though a one-time ten-day extension may be granted. 	Id.
at 	11. 	An 	inmate 	may 	file 	an 	appeal 	within 	seven 	days 	after 	the
Warden/Superintendent issues a decision or after the time allowed for the Warden to
decide expires. Id. at 14. The Commissioner has one hundred and twenty days within
which to respond to a grievance appeal. Id. at 15.
Pursuant to the SOP, GDC provides inmates with an oral explanation of the
grievance process upon entering custody. Walker Decl. ¶ 4. Therefore, inmates are
instructed that they “may file a grievance about any condition, policy, procedure, or
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 12 of 17

13
action or lack thereof that personally affects the Offender.” 	Walker Attach. 1, at 4.
Furthermore, 	retaliation 	against 	an Offender for filing 	a grievance 	is 	strictly
prohibited. Id. The SOP specifically provides that “[an] Offender may file a grievance
alleging retaliation or harassment, regardless of the form of the alleged retaliation or
harassment.” Id. at 5.
C. 	Plaintiff’s Grievance History
Plaintiff was confined at MSP from June 20, 2019, though January 12, 2023.
Walker Attach. 2, at 2, ECF No. 12-4. The vehicle accident giving rise to his complaint
occurred on September 19, 2022, at which time Plaintiff was confined at MSP.
Compl. 5. According to Walker, Plaintiff filed no grievances at MSP or at any other
prison after July 29, 2022. 	Walker Decl. ¶ 14. 	In support, she attaches Plaintiff’s
grievance history showing that while Plaintiff filed twenty-nine total grievances in
GDC custody, including six at MSP, he filed none after the accident. Walker Attach.
3, ECF No. 12-5.
D. 	Parties’ Arguments
Defendants 	contend 	that 	Plaintiff 	failed 	to 	exhaust 	his 	administrative
remedies because he did not file any grievances related to the vehicle accident.
Richardson Br. Supp. MTD 3-9. 	Plaintiff claims that he filed three grievances, but
that prison officials claimed they never received them. 	Compl. 3-4. 	He further
contends 	that 	the 	grievance 	system 	was 	unavailable 	to 	him 	because 	officers
“threatened [him] with 100% bodily harm + even taken my Life if they see fit to do
so.” 	Pl.’s Resp. to Mot. to Dismiss 1, ECF No. 33. He states that “[the officers] told
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 13 of 17

14
[him] a grievance on this case or any other wouldn’t ever make it to the counselor’s
office and [the officers] would also block all mail even my legal mail . . . or throw it
away!” Id. Finally, Plaintiff claims the officers sexually harassed him by encouraging
other inmates to engage in sexual violence against Plaintiff. Id. at 1-2.
E. 	Plaintiff’s Failure to Exhaust
Initially, the Court notes that the parties do not dispute that Plaintiff did not
properly complete the grievance process. 	Under Plaintiff’s competing explanations,
he either submitted grievance that prison officials claimed they did not receive or he
was threatened into not submitted grievances. Either version yields the same result:
failure to complete the grievance process. Thus, the Court concludes at the first step
of Turner that Plaintiff failed to exhaust his administrative remedies. Further, even
if Plaintiff’s allegations were somehow sufficient to survive the first step, the Court
concludes that Plaintiff failed to exhaust based on the evidence submitted by Walker
that no grievances were submitted after the accident. Walker Attach. 3, ECF No. 12-
5.
The Court also concludes that Plaintiff had available administrative remedies.
As outlined above, Plaintiff asserts that administrative remedies were unavailable
due to fear of retaliation. Thus, the Court proceeds to the second step of the Turner
analysis and “make[s] specific findings in order to resolve the disputed factual issues
related to exhaustion.” 	Turner, 541 F.3d at 1082. “In terms of a defendant’s initial
showing, Turner only requires a defendant to show a remedy is ‘generally available.’”
Daker v. Owens, No. 6:14-cv-47, 2021 WL 725668, at *5 (S.D. Ga. Feb. 22, 2021)
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 14 of 17

15
(quoting Wright v. Ga. Dep’t of Corr., 820 F. App’x 841, 845 (11th Cir. 2020)),
recommendation adopted by 2021 WL 1175213 (S.D. Ga. Mar. 26, 2021). A defendant
need not show that “a remedy was available to [a plaintiff] practically speaking.”
Wright, 820 F. App’x at 845. 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, the Court concludes that
Defendants have shown that an administrative remedy was generally available to
inmates at MSP—including Plaintiff—through Ms. Walker’s declaration (ECF No.
12-2) and Plaintiff’s own grievance history (ECF No. 12-5). See Wright, 820 F. App’x
at 845.
Second, the Court finds that Plaintiff fails to meet his burden of showing the
remedy was subjectively or objectively unavailable to him. Plaintiff argues that the
grievance system was unavailable to him because he feared retaliation from prison
officials should he file a grievance. 	Pl.’s Resp. to Mot. to Dismiss 1-2. 	Plaintiff is
correct 	in 	his 	assertion 	that 	fear 	of 	retaliation 	falls 	under 	the 	category 	of
unavailability 	through 	intimidation. 	See 	Ross, 	578 	U.S. 	at 	644 	(holding 	that
“threaten[ing] individual inmates so as to prevent their use of otherwise proper
procedures” 	is 	“such 	interference” 	that 	“renders 	the 	administrative 	process
unavailable”). 	However, the Court finds Plaintiff’s contention not credible.6
6 Plaintiff did not request an evidentiary hearing on Defendants’ motion to dismiss.
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 15 of 17

16
In his original complaint, Plaintiff alleged that he filed three grievances, none
of which MSP administration received. Compl. 3-4. But in his response to the motion
to dismiss, Plaintiff claims that the fear of retaliation rendered the grievance system
unavailable. 	Pl.’s Resp. to Mot. to Dismiss 1-2. These arguments are contradictory:
either Plaintiff attempted to file grievances or he did not attempt to file grievances
out of fear of retaliation. Further, Plaintiff does not identify the officers who allegedly
threatened 	him. 	Thus, 	the 	Court 	concludes 	that 	Plaintiff 	had 	an 	available
administrative remedy and that he failed to timely utilize it. Therefore, his complaint
should be dismissed for failure to exhaust.
CONCLUSION
For the reasons explained above, it is recommended that Defendants’ motions
to dismiss (ECF Nos. 12, 31) be GRANTED based on the expiration of the statute of
limitations and failure to exhaust administrative remedies.7 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 judge shall make a de novo determination of those
portions of the Recommendation to which objection is made. All other portions of the
7 Also pending are Plaintiff’s motion to amend his complaint (ECF No. 16) and second motion to appoint
counsel (ECF No. 17). Nothing in Plaintiff’s motion to amend would cure the expiration of the statute
of limitations or his failure to exhaust. 	Therefore, his motion is DENIED AS MOOT. Regarding
Plaintiff’s motion for appointed counsel, the Court denied Plaintiff’s previous request (ECF No. 2). For
the reasons stated in its previous denial, Plaintiff’s second motion to appoint counsel (ECF No. 17) is
also DENIED.
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 16 of 17

17
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 ORDERED and RECOMMENDED, this 3rd day of December, 2025.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
Case 5:24-cv-00439-TES-AGH Document 36 Filed 12/03/25 Page 17 of 17