LAWRENCE v. KEMP

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

ROOSEVELT LAWRENCE, ) ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 5:21-CV-73 (MTT) ) GOVERNOR BRIAN KEMP, et al., ) ) ) Defendants. ) __________________ )

ORDER United States Magistrate Judge Charles Weigle recommends granting the defendants’ motions to dismiss (Docs. 29; 44) Plaintiff Roosevelt Lawrence’s 42 U.S.C. § 1983 action on exhaustion grounds. Doc. 47. The Magistrate Judge also recommends dismissal of Defendant Nurse Green, who has yet to be served due to an administrative error by the Clerk of Court. Id. at 2. The Magistrate Judge reasoned that because Lawrence’s claims against Nurse Green would also be subject to dismissal for failure to exhaust, Nurse Green should also be dismissed from this case. Id. Lawrence objected, so pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo the portions of the Recommendation to which Lawrence objects, and the remaining portions for clear error. In his objection, Lawrence concedes he “was unable to complete the exhaustion process in the timeframe required,” but nonetheless contends the COVID-19 pandemic constitutes a “special circumstance” such that his failure to exhaust should be excused. Doc. 50 at 1-2. But as the Magistrate Judge already noted, the “court is not permitted to excuse exhaustion because of special circumstances[.]” Doc. 47 at 6 (citing Garcia v. Obasi, 2022 WL 669611, at *3 (11th Cir. Mar. 7, 2022). Simply put, Lawrence admits he did not exhaust, and the COVID-19 pandemic does not excuse his failure to do so. Nurse Green, who Lawrence makes no mention of in his objection, is also

entitled to dismissal because service would be futile. Lawrence raised the same Eighth Amendment conditions of confinement and medical treatment claims against Nurse Green that he raised against Defendants Jackson, Roosevelt Green, Wooten, King, Bowens, and Lofton. Docs. 18, 19, 28. As stated above, he failed to exhaust those claims prior to filing this 42 U.S.C. § 1983 action. Thus, dismissal for failure to exhaust would apply to the claims against Nurse Green as well. After review, the Court accepts and adopts the findings, conclusions, and recommendations of the Magistrate Judge. The Recommendation (Doc. 47) is ADOPTED and made the Order of the Court. Accordingly, the defendants’ motions to dismiss (Docs. 29; 44) are GRANTED, and Lawrence’s claims are DISMISSED without

prejudice. Because service on Nurse Green would be futile, Lawrence’s claims against Nurse Green are similarly DISMISSED without prejudice. SO ORDERED, this 6th day of February, 2023. S/ Marc T. Treadwell MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT