HORRY v. TRIPLETT

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
DARREL HORRY, 	:
:
Plaintiff, 	:
:
v. 	: 	Case No. 4:23-cv-123-CDL-AGH
:
CERT Officer TRIPLETT, et al., 	:
:
Defendants. 	:
REPORT & RECOMMENDATION
Plaintiff brought this pro se action pursuant to 42 U.S.C. § 1983 on May 31,
2023 (ECF No. 1). 	Defendants filed a motion for summary judgment (ECF No. 79).
For the reasons explained below, Defendants’ motion should be treated as a motion
to dismiss, it should be granted, and Plaintiff’s complaint should be dismissed for
failure to exhaust.
BACKGROUND
The procedural history of this action is complex. To simplify this complicated
matter, the Court addresses only the relevant claims and procedural history.
Plaintiff alleges that, on March 31, 2023, following Plaintiff’s return from outside
detail at Muscogee County Prison (MCP) in Columbus, Georgia, Defendant CERT
Officer Triplett sexually harassed him by conducting a strip search in front of other
prisoners and a video camera that could be viewed on a monitor visible by other
inmates and officers in the main hallway. Recast Compl. Attach. 1, at 8, ECF No. 8-1.
Plaintiff also contends that Defendant Thomas, Deputy Warden of Muscogee County
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Prison, knew that strip searches like the one Plaintiff allegedly endured were filmed
and displayed on the monitor, had ordered prison officials to conduct such searches
with multiple inmates and officers in one strip-down room, and had been doing so for
twenty years. Pl.’s Obj. 1, Oct. 15, 2024, ECF No. 46; Mot. to Am., ECF No. 49; Order
& R. 6-8, Apr. 10, 2025, ECF No. 51. Thus, at this time, the only pending claims are
Plaintiff’s Fourth Amendment claims against Defendants Triplett and Thomas, who
are the only Defendants in this case.
DISCUSSION
Defendants filed a motion for summary judgment arguing that they are
entitled to judgment as a matter of law because (1) Plaintiff’s Fourth Amendment
claims fail because the strip search in question was reasonable, Defendant Triplett is
entitled to qualified immunity, and because Defendant Thomas did not commit a
constitutional violation; and (2) Plaintiff’s claims are barred by the Prison Litigation
Reform Act (“PLRA”) due to Plaintiff’s failure to exhaust his administrative remedies.
Defs.’ Br. Supp. MSJ 3-11, ECF No. 79-4. As discussed below, the Court recommends
that the motion for summary judgment be granted based on Plaintiff’s failure to
exhaust. 	Because exhaustion disposes of Plaintiff’s complaint in its entirety, the
Court declines to address Defendants’ alternative arguments.
I. 	Exhaustion Standards
The 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
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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) (emphasis
added). Exhaustion of administrative remedies requires compliance with an agency’s
procedural rules. 	Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). 	“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). 	“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
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judgment.”1 	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 version
of the facts as true.” Id. If, taking the 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 district court did
not clearly err in determining 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
1 Such is the case here. Although Defendants argue exhaustion in a summary judgment motion, this
defense will be treated as if raised in a motion to dismiss. Defendants specifically raised exhaustion
as a defense in their answer, so it is not waived. Answer 2, ECF No. 62; see Black v. Camon, No. 7:06-
cv-75(HL), 2008 WL 2119914, at *2 (M.D. Ga. May 19, 2008) (finding exhaustion was not waived and
could be asserted in a motion for summary judgment because defendants raised it as a defense in their
answer); see also Gomez v. Jackson, No. 1:18-cv-963, 2020 WL 4048061, at *9 n.9 (N.D. Ga. July 20,
2020) (citing cases to illustrate that “the Eleventh Circuit routinely affirms orders granting
post-answer motions to dismiss (styled as motions for summary judgment) for lack of exhaustion”).
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(11th Cir. 2018) (upholding district court’s weighing of the evidence and credibility
determination to find that one of the inmate’s grievances was not filed).
II. 	TURNER Step One
Defendants do not address whether Plaintiff’s Recast Complaint is subject to
dismissal under Turner Step One. However, having considered Plaintiff’s allegations
regarding exhaustion in his recast complaint (Recast Compl. Attach. 1, at 3-4), and
finding that he sufficiently alleges exhaustion of his remedies, the Court proceeds to
the second Turner step, makes specific findings based upon the evidence submitted
by the parties, and resolves the disputed factual issues related to exhaustion.
III. 	TURNER Step Two: Specific Findings
In support of their motion, Defendants submitted the declaration of Defendant
Thomas, who, as part of his duties as a former deputy warden of MCP, was familiar
with MCP’s grievance practices and procedures. 	Thomas Decl. 2, ECF No. 79-2.
Attached to Defendant Thomas’ declaration are copies of Plaintiff’s grievance history
and grievances. 	Thomas Decl. Ex. A, at 6-14, ECF No. 79-2. 	In reply, Defendants
also submitted copies of the Georgia Department of Corrections’ (GDC) statewide
Prison Rape Elimination Act Sexually Abusive Behavior Prevention and Intervention
Program and the GDC’s grievance procedures. 	Defs.’ MSJ Reply Exs. A & B (Defs.’
Ex. A or Defs.’ Ex. B), ECF Nos. 107-1, 107-2.2
2 Although the policies upon which Defendants rely to show Plaintiff failed to exhaust were only
submitted in reply, the Court nevertheless considered them for purposes of determining exhaustion
for two reasons. First, Plaintiff did not assert that he could not adequately respond to Defendants’
summary judgment or move for further discovery under Federal Rule of Civil Procedure 56(d) when
he filed his response. See Pl.’s MSJ Resp., ECF No. 106. Second, Plaintiff relies on these same policies
to argue that he was not required to exhaust his administrative remedies. Pl’s Mem. Supp. MSJ Resp.
6-7, ECF No. 106-1; Pl.’s Suppl. MSJ Resp. 2-3, ECF No. 108.
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The GDC’s grievance policy applies to all offenders committed to the GDC.
Defs.’ Ex. B, at 1. 	The policy requires an offender to complete a two-step process
consisting of first filing an original grievance and then filing a central office appeal.
Id. at 8. 	At the first step, the offender’s grievance may be submitted electronically
through a kiosk or tablet, or it may be submitted on paper on the GDC’s required
Grievance Form. Id. An offender must submit a grievance within ten (10) calendar
days from the date the offender knew, or should have known, of the facts giving rise
to the grievance. 	Id. 	Grievances filed later than ten (10) days are only considered
upon a showing of “Good Cause.” Id.
The GDC’s grievance policy lists several “non-grievable” issues. Relevant here,
sexual abuse and sexual harassment grievances “shall be forwarded to” a response
team “and processed according to SOP 208.6, Prison Rape Elimination Act: Sexually
Abusive Behavior Prevention and Intervention Program[.]” Defs.’ Ex. B, at 5. Under
the sexual abuse SOP, however, sexual abuse grievances are processed in accordance
with the statewide grievance policy. Defs.’ Ex. A, at 20. Specifically, GDC facilities
“shall allow inmates a full and fair opportunity to file grievances regarding sexual
abuse so as to preserve their ability to seek judicial redress after exhausting
administrative remedies.” 	Id. 	That grievance process is “conducted in accordance
with” the GDC’s grievance policy. Id.
The Warden has forty (40) calendar days from the date of submission to
respond to a grievance, although a ten (10) calendar day extension may be granted
under certain circumstances. Defs.’ Ex. B, at 11. After the Warden responds or the
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time to respond expires, the offender must file an appeal within seven days. Id. at 14.
The Commissioner then has 120 calendar days to respond. Id. at 15.
IV. 	TURNER Step Two: Resolving Disputed Factual Issues
The 	parties 	have 	alleged 	three 	different 	factual 	versions 	of 	potential
exhaustion 	in 	this 	case: 	Plaintiff 	alleges 	two 	slightly 	different 	scenarios, 	and
Defendants allege their own version. Under any of these factual scenarios, the Court
finds that Plaintiff failed to exhaust his administrative remedies.
According to Plaintiff’s recast complaint, he was told to follow the appeals
process regarding his “invasion of privacy” claims, which the Court presumes to mean
Plaintiff’s Fourth Amendment claims for the allegedly improper strip search. Recast
Compl. Attach. 1, at 3-4. 	Plaintiff alleged that he appealed his grievance to the
Georgia Department of Corrections’ “Inmate Affairs Unit[,]” and that he “never
received a response from [the] Affairs Unit[.]” 	Id. at 4. 	However, the strip search
occurred on March 31, 2023. 	Id. at 8. 	The Court received Plaintiff’s original
complaint on May 30, 2023, although it was marked filed on May 31, 2023 by the
Court’s Case Management system. Compl. 1, ECF No. 2 (file stamped May 30, 2023).
In other words, Plaintiff alleges in his recast complaint that he submitted a grievance
about the strip search that occurred on March 31, 2023, and that by the time the
Court received his federal complaint on May 30, 2023, he had not received a response
to his grievance appeal. 	Under this factual scenario, Plaintiff did not exhaust his
administrative remedies for two reasons.
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First, grievances are not appealed to the GDC’s “Inmate Affairs Unit.” 	They
are appealed to the Commissioner at the Central Office. Defs.’ Ex. B, at 14. Second,
even assuming the Inmate Affairs Unit was the appropriate place to appeal to, the
time for a response to Plaintiff’s grievance appeal had not expired when the Court
received Plaintiff’s original complaint on May 30, 2023. The Commissioner has 120
days to decide grievance appeals. 	Thus, even if Plaintiff filed an appeal of a denied
grievance on the date of the strip search on March 31, 2023, only sixty days had
elapsed without an appeal response before the Court received Plaintiff’s original
complaint. 	Consequently, under the facts alleged in the recast complaint, Plaintiff
did not exhaust his administrative remedies.3
Plaintiff’s response to the summary judgment motion also shows that he did
not exhaust his administrative remedies. There, Plaintiff again argues that he was
told to follow the appeals process two weeks after he filed his grievance, and that he
sent “another grievance” to “the Inmate Affairs Unit[,]” and that he “never heard
anything back or received any paperwork back[.]” 	Pl.’s Mem. Supp. MSJ Resp. 6,
ECF No. 106-1. 	He also argues that the strip search grievance is a “non-grievable
issue” because it was about “sexual assault or abuse, so he did not need to file a
grievance to bring a lawsuit later on anyway.” Id. at 6-7; Pl.’s Suppl. MSJ Resp. 2-3,
3 Even if the Court considered the date on which Plaintiff filed his recast complaint, which was July
20, 2023, Recast Compl. 11, ECF No. 8, Plaintiff still failed to exhaust his administrative remedies
because the time for the Commissioner to file an appeal response had not passed. Even assuming
Plaintiff’s appeal period began on March 31, 2023, the very same day the strip search occurred, the
Commissioner would have had until July 29, 2023 to decide the appeal.
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ECF No. 108. Again, for three reasons, Plaintiff has not exhausted his administrative
remedies under this factual scenario.
First, as noted above, the Inmate Affairs Unit is not the proper party to which
to appeal a denied grievance. 	Even if it was, Plaintiff sent “another grievance”
instead of submitting an appeal of a denied grievance. 	See Defs.’ Ex. B, at 14-15
(discussing grievance appeal process). 	Second, as discussed above, again, the time
for a response to the appeal had not expired before Plaintiff had not yet run before
Plaintiff received a response to any alleged grievance appeal. 	Indeed, under this
version of Plaintiff’s facts, the time for the Commissioner’s response would be
extended by another two weeks.
Third, 	to 	the 	extent 	Plaintiff 	argues 	that 	the 	strip 	search 	was 	sexual
harassment and exempt from the grievance procedures, the Court disagrees for two
reasons. 	As an initial matter, the claim which Plaintiff was grieving is a Fourth
Amendment unreasonable search claim. Order & R. 4-5, Sept. 20, 2023, ECF No. 14.
Further, even assuming Plaintiff’s claim involved sexual harassment, under the
sexual abuse SOP, sexual abuse grievances are processed under the GDC’s grievance
policy. 	Defs.’ Ex. A, at 20. 	The sexual abuse SOP explicitly recognizes that
exhaustion is a prerequisite to filing a federal complaint and it permits exhaustion of
administrative remedies to ensure inmates can seek such relief in federal courts. Id.
Thus, Plaintiff was required to exhaust his claim regarding the strip search. 	As a
result, under the facts alleged in his responses to the summary judgment motion,
Plaintiff did not exhaust his administrative remedies.
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Finally, under the facts alleged by Defendants, Plaintiff failed to exhaust.
Defendants submit Plaintiff’s grievance history showing that Plaintiff filed seven
grievances while detained at MCP, as well as copies of documents related to those
grievances. Thomas Decl. Ex. A, at 7-14. None of the grievances relate to the alleged
strip search. 	See id. 	Thus, under Defendants version of the facts, Plaintiff did not
exhaust his administrative remedies.
Plaintiff’s argument that Defendants have not rebutted the evidence of a
grievance receipt that Plaintiff has submitted, which receipt shows that a grievance
was received on April 3, 2023 by a grievance coordinator with the last name Chester,
Pl.’s Suppl. MSJ Resp. 2-3, does not alter the Court’s conclusion. See also Pl.’s MSJ
Resp. Ex. B, ECF No. 106-4. 	That is because the Court assumed that Plaintiff
submitted a grievance about the alleged strip search when it considered Plaintiff’s
version of the facts, and the Court still found that Plaintiff failed to exhaust.4
Consequently, under any version of the facts alleged, the Court finds that Plaintiff
failed to exhaust his administrative remedies and it recommends that Defendants’
motion be granted on this basis.
CONCLUSION
It is RECOMMENDED that Defendants’ motions for summary judgment
(ECF 	No. 	79) 	be 	GRANTED 	as 	to 	exhaustion, 	and 	Plaintiff’s 	complaint 	be
4 As discussed previously, even under the most generous version of the first factual scenario that
Plaintiff alleges, the Commissioner still had nine days to respond to Plaintiff’s appeal. Under the most
generous version of these facts, where the grievance coordinator received Plaintiff’s grievance on April
3, 2023, assuming Plaintiff filed an appeal the very same day that he submitted his grievance, the
Commissioner would have had until August 1, 2023. In other words, the Commissioner would have
still had eleven days to respond to the appeal when Plaintiff filed his recast complaint on July 20,
2023.
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DISMISSED without prejudice. 	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
thereof. 	The district judge shall make a de novo determination as to those portions
of this Recommendation to which objection is made; all other portions of this
Recommendation may be reviewed by the district judge for clear error. Any objection
is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4.
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 4th day of August, 2026.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
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