Opinion
CASE NO. CV304-19.
August 17, 2007
ORDER
After a careful de novo review of the record in this case, the Court concurs with the Magistrate Judge's Report and Recommendation, to which objections have been filed.
Magistrate Judge W. Leon Barfield recommended granting Defendants' Motion for Summary Judgment because Plaintiff failed to properly exhaust administrative remedies. Plaintiff objects, stating that although his grievance regarding the alleged excessive use of force was not timely, he was in lock-down isolation following the incident and was not able to file a timely grievance. He did, however, file two untimely grievances regarding the excessive use of force. These grievances were denied as untimely.
As explained in the Report and Recommendation, Plaintiff did not appeal either of these grievances, nor did he request permission to file an out-of-time grievance regarding the incident. To properly exhaust administrative remedies under the Prison Litigation Reform Act, a prisoner must use all steps that the agency holds out and appeal to the highest level of the administrative process. Woodford v. Ngo, 548 U.S. ___, 126 S. Ct. 2378, 2385, 165 L. Ed. 2d 368 (2006). A prisoner must exhaust these steps before filing suit even if it can be shown that the grievance process is futile or inadequate. Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir. 1998).
In this case, it is undisputed that Plaintiff did not appeal the denial of his grievances. Therefore, he failed to exhaust his administrative remedies. Accordingly, it is unnecessary for the Court to consider whether he was prevented from filing a grievance while in lock-down isolation.
The Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Defendants' Motion for Summary Judgment is GRANTED. (Doc. 57.) The Clerk of Court is DIRECTED to CLOSE this case.
SO ORDERED.