IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION

CHRISTOPHER D. COBB,

Plaintiff, CIVIL ACTION NO.: 2:20-cv-84

v.

WARDEN FNU GETER, et al.,

Defendants.

O RDE R This matter comes before the Court on Plaintiff’s Motion to Compel and its associated Motion to Stay. Docs. 43, 44. For the following reasons I DENY the Motion to Compel. Doc. 43. Since I have denied the underlying Motion, I also DENY as moot the Motion to Stay. Doc. 44. BACKGROUND On August 11, 2020, Plaintiff, an inmate at the Federal Correctional Institution in Jesup, Georgia (“FCI Jesup”), brought this suit, asserting claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

(1971). Doc. 1. Plaintiff amended his Complaint, and the Court determined his Complaint survived frivolity review. Docs. 17, 18. Plaintiff previously filed a motion to compel discovery response on January 21, 2021, prior to any Defendant being served with process. Doc. 22; see also Doc. 26 at 1–2. Defendants filed a motion to dismiss and motion to stay on February 18, 2021. Docs. 24, 25. Plaintiff did not respond to the motion to stay, so the Court granted the motion as unopposed. Doc. 32. The Court also denied Plaintiff’s motion to compel as moot.

After the motion to dismiss was fully briefed, the undersigned recommended the Court grant the motion to dismiss based on Plaintiff’s failure to exhaust his administrative remedies. Doc. 39. Plaintiff filed objections to this Report. Doc. 40. The Court overruled those Objections and adopted the undersigned’s Report and Recommendation as the opinion of the Court. Doc. 45.

DISCUSSION Plaintiff now moves to compel the production of records. Doc. 43. Specifically, he seeks the production of “all documents associated with the list of administrative remedies” filed at page 29 of Docket Number 24-1. Id. at 1. The item at Docket Number 24-1 is a list of administrative remedies returned from September 1, 2020 to November 18, 2020. Doc. 24-1 at 29. Plaintiff asserts the production of the records will reveal administrative remedies were not available to him and, thus, the motion to dismiss should be denied. Doc. 43 at 3. Plaintiff’s Motion is due to be denied for several reasons. As an initial matter, this Motion is untimely. The undersigned has already issued a Report recommending dismissal for failure to exhaust, and the District Judge has issued a final Order adopting the recommendation

of dismissal. The matter has already been decided. If Plaintiff required discovery prior to the consideration of the motion to dismiss, he should have responded in opposition to the motion to stay. Plaintiff failed to do so, and the Court determined Plaintiff did not oppose staying discovery deadlines while the motion to dismiss was pending. Doc. 32. Plaintiff cannot now reverse course and seek discovery to defend against Defendants’ motion to dismiss. See McNeil v. United States,

(1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”). Additionally, the Court cannot excuse Plaintiff’s untimeliness because Plaintiff has not demonstrated either a clear need for the requested materials or that these materials would change the disposition of this case. While Plaintiff states the documents are necessary to determine if administrative remedies are available to him, the undersigned concluded administrative remedies were available for reasons beyond the one list Plaintiff contends is objectionable and misleading. Doc. 39 at 11-12. Furthermore, the District Judge agreed with the undersigned’s conclusions and ordered dismissal of Plaintiff's claims. Doc. 45 at 2. Allowing Plaintiff to obtain the requested documents would not change the outcome. Thus, I DENY Plaintiff's Motion to Compel. CONCLUSION For the foregoing reasons, I DENY the Motion to Compel. Doc. 43. Since I have denied the underlying Motion, I also DENY as moot the Motion to Stay. Doc. 44. SO ORDERED, this 26th day of May, 2023.

Bo BENIAMIN W. CHEESBRO| UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA