JOHNSON
v.
MCKINNEY
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The court held that the plaintiff's claim of fear of retaliation may make administrative remedies unavailable, requiring an evidentiary hearing.
Plaintiff sued, alleging abuse and failure to exhaust administrative remedies under the PLRA. Plaintiff claimed fear of retaliation prevented him from…
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This Court has considered, without hearing, the Magistrate Judge's Report and Recommendation, ECF No. 77, and has also reviewed de novo Plaintiff’s objections, ECF No. 79. The Magistrate Judge recommends dismissal for Plaintiff’s failure to exhaust his administrative remedies under the PLRA. Plaintiff concedes he filed his federal claim before fully exhausting his administrative remedies, but he asserts he delayed in filing any grievances concerning the events giving rise to this case because he was in fear of Defendants, who were threatening to kill him for reporting their abuse. See ECF No. 79 at 2. Plaintiff minimizes the fact that he filed multiple, unrelated grievances during the time when he could have timely filed grievances related to the underlying allegations. But he argues that the grievances that he did file were for “non-officer abuse issues,” with which he was “testing the waters.” Id. In short, Plaintiff argues that administrative remedies for his complaints of abuse were unavailable to him, or at least delayed, due to “machination, misrepresentation, or intimidation.” See Gipson v. Renninger, 750 F. App’x 948, 951 (11th Cir. 2018) (citing Ross v. Blake, 136 S. Ct. 1850, 1859–60 (2016)).
In light of Plaintiff’s objections, this Court REJECTS the report and recommendation, ECF No. 77, and REMANDS this case to the Magistrate Judge to conduct an evidentiary hearing to determine whether the alleged threats of retaliation against Plaintiff for filing abuse-related grievances made the administrative process
“unavailable” to him during the relevant time period. See Turner v. Burnside, 541 F. 3d 1077, 1086 (11th Cir. 2008). Finally, the Clerk shall TERMINATE ECF No. 73.
SO ORDERED on December 28, 2023.
s/Mark E. Walker ____ Chief United States District Judge