1

This section provides that “[n]o action shall be brought with respect to prison conditions under section

1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility

until such administrative remedies as are available are exhausted.” Defendants assert that Plaintiff failed to pursue

the administrative remedies available to him at the Elmore County Jail with respect to the claims presented in the

instant complaint. (Doc. No. 16 at pgs. 7-11; Doc. No. 56 at pgs. 8-12; Doc. No. 57 at pgs. 8-12.) Although

Defendant assert that Plaintiff likewise has a remedy before the State Board of Adjustment, (Doc. No. 16 at pg.8;

Doc. No. 56 at pg. 9; Doc. No. 57 at pg. 9), it is unclear at this stage of the proceedings whether such remedy is

actually available as it exists only where no court has jurisdiction to hear the claims for relief. See Ex parte Dale,

581 So.2d 479 (Ala. 1991). Thus, Plaintiff would have an available administrative remedy before the State Board

of Adjustment if Defendants are entitled to immunity in both their official and individual capacities.

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

 _____________________________

JEREMIAH W. GREEN *

Plaintiff, *

 v. * 2:06-CV-667-WKW

 (WO)

AJA ROBERTS, et al., *

Defendants. *

 _____________________________

ORDER

The Magistrate Judge has reviewed the written reports and supporting evidentiary

materials filed by Defendants and determined that Plaintiff should file a response addressing

each of the arguments and defenses contained in these reports. In filing his response,

Plaintiff shall specifically address Defendants’ argument that he has failed to exhaust his

available administrative remedies as required by 42 U.S.C. § 1997e(a) of the Prison

Litigation Reform Act (“PLRA”).1 Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819,

1825 n.6 (2001) (“Congress has provided in § 1997(e)(a) that an inmate must exhaust

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2

irrespective of the forms of relief sought and offered through administrative remedies.”);

Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies

to all inmate suits about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong.”); Woodford v. Ngo,

___ U.S. ___, 126 S.Ct. 2378, 2387 (2006) (“[T]he PLRA exhaustion requirement requires

proper exhaustion.”). “Proper exhaustion demands compliance with an agency’s deadlines

and other critical procedural rules [as a precondition to filing suit in federal court] because

no adjudicative system can function effectively without imposing some orderly structure on

the courts of its proceedings.... Construing § 1997e(a) to require proper exhaustion ... fits

with the general scheme of the PLRA, whereas [a contrary] interpretation [allowing an

inmate to bring suit in federal court once administrative remedies are no longer available]

would turn that provision into a largely useless appendage.” Id. at 2386.

Accordingly, it is

ORDERED that on or before May 29, 2007 Plaintiff shall file a response to

Defendants' written reports. If Plaintiff fails to file a response as required by this order,

the court will treat this failure to respond as an abandonment of the claims set forth in

the complaint and as a failure to prosecute this action. Moreover, Plaintiff is

specifically cautioned that if he fails to file a response in compliance with the directives

of this order the undersigned will recommend that this case be dismissed for such

failure. In addition, if Plaintiff fails to respond to the written reports with respect to

each of the claims raised in his complaint, the court will treat this failure as an

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2

Thus, in preparing a response to the special reports filed by Defendants Plaintiff should refer to the

requirements of Rule 56, Federal Rules of Civil Procedure.

3

An affidavit is a sworn statement in writing made under oath or on affirmation before a notary public

or other authorized officer. The affidavit must be made on personal knowledge, set forth such facts as would

be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated

in the affidavit.

4

If Plaintiff is unable to present, by affidavit, facts essential to justify his opposition to Defendants'

reports, then Plaintiff must file a sworn statement as to why he or she is unable to do so.

3

abandonment of these claims and shall proceed as justice requires.

As indicated herein, at some time in the future the court may treat Defendants' reports

and Plaintiff's response(s) as a dispositive motion and response.2

 Thus, in filing a response

to Defendants' reports Plaintiff should not rely only on his or her unsworn pleadings but

should respond by filing sworn affidavits,3

 or other evidentiary materials developed through

discovery or other appropriate means and which set forth specific facts demonstrating there

is a genuine issue of material fact for trial in this case. Failure to file sworn affidavits or

other evidentiary materials may result in this court accepting Defendants’ evidence as the

truth.4

 If documents are referred to in the opposing affidavits and have not been previously

filed with the court, sworn or certified copies of those papers must be attached to the

affidavits or served with them. 

The parties are hereby notified that, unless within ten (10) days from the date of this

order a party files a response in opposition which presents sufficient legal cause why such

action should not be undertaken, upon the expiration of the time for the plaintiff to file a

response as allowed by this order, the court may at any time thereafter and without further

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4

notice to the parties (1) treat the special reports and any supporting evidentiary materials as

a motion for summary judgment and (2) after considering any response as allowed by this

order, rule on the motion for summary judgment in accordance with the law. 

Failure to follow the requirements of this order about the proper way to respond to

Defendants' reports may result in a recommendation of the Magistrate Judge that final

judgment be entered in favor of Defendants without there being an evidentiary hearing.

Plaintiff is advised that if he asserts compliance with the jail’s grievance procedures he

must submit relevant evidentiary materials in support of this assertion showing that he has

complied with each step of the grievance procedure. His mere conclusory allegation of

exhaustion will be insufficient to defeat Defendants' argument. 

Done, this 8th day of May 2007.

 /s/ Wallace Capel, Jr. 

WALLACE CAPEL, JR.

UNITED STATES MAGISTRATE JUDGE

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