Gangl v. Campbell et al (INMATE2)

Filing 28

RECOMMENDATION of the Magistrate Judge that: (1) defendants Allen and Campbell's 12 motion for summary judgment be granted; (2) plaintiff's claims against defendants Allen and Campbell be dismissed with prejudice; (3) the 21 motion to dismiss filed by defendant Peasant be granted as further set out; (4) the claims against defendant Peasant be dismissed without prejudice as further set out. Objections to R&R due by 7/16/2009. Signed by Honorable Wallace Capel, Jr on 7/2/09. (sl, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION ____________________________ N O R M A N CLARK GANGL, #149 515 * P l a in tif f , v. C O M M IS S IO N E R [ S ] CAMPBELL, e t al., D e f e n d a n ts . _____________________________ * * * * 2:07-CV-350-MHT (WO)

R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Norman Gangl ["Gangl], a state inmate, challenges th e medical treatment provided to him at the Ventress Correctional Facility ["Ventress"] and f u rth e r contends that overcrowding at the facility violates his constitutional rights. Gangl n a m e s Dr. John Peasant, Commissioner Richard Allen, and former Commissioner Donal C a m p b e ll as defendants in this cause of action.1 Gangl seeks payment of his medical costs u p o n his release from prison, extra jail credit, and monetary damages. Defendants filed sp ec ial reports and supporting evidentiary materials addressing Gangl's claims for relief. In thes e documents, Defendant Allen and Campbell argue that they are entitled to summary

Plaintiff also named as defendants to his complaint the Alabama Department of Corrections, former President George Bush, and Barbour County, Alabama. By order entered July 9, 2007 the court dismissed Plaintiff's claims against these defendants. The court's July 9 order also dismissed those claims barred by the statute of limitations. (See Doc. Nos. 10, 16.)

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ju d g m e n t because they are/were not involved with the prison conditions about which Gangl c o m p la in s . Dr. Peasant asserts that the medical claims presented against him are due to be d is m is s e d because Gangl failed to exhaust an administrative remedy available to him at V e n t re s s . The court provided Plaintiff an opportunity to file a response to the arguments p re s e n te d by Defendants. Pursuant to the orders entered in this case and governing case law, the court deems it appropriate to treat Defendants Allen and Campbell's written report as a motion for s u m m a ry judgment and Defendant Peasant's report as a motion to dismiss. While the motion to dismiss is supported by affidavits and other documents, since the action against Dr. P e a sa n t is being decided on the basis of exhaustion and not on the merits, the motion will not b e construed as a motion for summary judgment. Bryant v. Rich, 530 F.3d 1368, 1375 (11th C ir. 2008) (citations omitted) ("Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is n o t ordinarily the proper subject for a summary judgment; instead, it `should be raised in a m o tio n to dismiss, or be treated as such if raised in a motion for summary judgment.' ") (f o o tn o te and citations omitted), cert. denied, 129 S.Ct. 733 (Dec.8, 2008). Thus, this case i s now pending on Defendants Allen and Campbell's motion for summary judgment and D e f en d a n t Peasant's motion to dismiss. Upon consideration of these motions, the

e v id e n tia ry materials filed in support thereof, and Gangl's responses thereto (Doc. Nos. 12,

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2 1 , 24, 26, 27), the court concludes that Defendants' motions are due to be granted. I . SUMMARY JUDGMENT STANDARD "S u m m a ry judgment is appropriate 'if the pleadings, depositions, answers to in te rro g a to rie s, and admissions on file, together with the affidavits, if any, show there is no g e n u i n e issue as to any material fact and that the moving party is entitled to judgment as a m a tte r of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2 0 0 7 ) (per curiam) (citation to former rule omitted); Fed.R.Civ.P. Rule 56(c) (Summary ju d g m e n t "should be rendered if the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and that the m o v an t is entitled to judgment as a matter of law.").2 The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis fo r its motion, and identifying those portions of the [record, including pleadings, discovery m a te ria ls and affidavits], which it believes demonstrate the absence of a genuine issue of m a te r ia l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence indicating there is no dispute of material fact or by s h o w in g that the nonmoving party has failed to present evidence in support of some element

Effective December 1, 2007, "[t]he language of Rule 56 [was] amended ... to make the rule[] more ea sily understood and to make style and terminology consistent throughout the rules. These changes ... are stylistic only." Fed.R.Civ.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic ch an g es, its substance remains the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule.

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o f its case on which it bears the ultimate burden of proof. Id. at 322-324. Defendants Allen and Campbell have met their evidentiary burden and demonstrated th e absence of any genuine issue of material fact with respect to the claims lodged against h im . Thus, the burden shifts to Plaintiff to establish, with appropriate evidence beyond the p le a d in g s , that a genuine issue material to his case exists. Clark v. Coats & Clark, Inc., 929 F .2 d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(2) ("When a m o tio n for summary judgment is properly made and supported, an opposing party may not re ly merely on allegations or denials in its own pleading; rather, its response must ... set out sp e c if ic facts showing a genuine issue for trial."). A genuine issue of material fact exists w h e n the nonmoving party produces evidence that would allow a reasonable fact-finder to re tu rn a verdict in its favor. Greenberg, 498 F.3d at 1263. In civil actions filed by inmates, federal courts must distinguish between evidence of disputed facts and disputed matters of p rof essio n al judgment. In respect to the latter, our inferences must accord d e f e re n c e to the views of prison authorities. Unless a prisoner can point to su f f icie n t evidence regarding such issues of judgment to allow him to prevail o n the merits, he cannot prevail at the summary judgment stage. B e a r d v. Banks, 549 U.S. 521, 530 (2006) (internal citation omitted). Consequently, to su rv iv e Defendant Allen and Campbell's properly supported motion for summary judgment, G a n g l is required to produce "sufficient evidence" which would be admissible at trial s u p p o rtin g his claim of a constitutional violation. Anderson v. Liberty Lobby, Inc., 477 U.S.

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2 4 2 , 249 (1986); Rule 56(e)(1), Federal Rules of Civil Procedure. "If the evidence [on w h ic h the nonmoving party relies] is merely colorable ... or is not significantly probative ... s u m m a r y judgment may be granted." Anderson, 477 U.S. at 249-250. "A mere 'scintilla' of e v id e n c e supporting the opposing party's position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party. Anderson v. Liberty L o b b y , 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)." Walker v. Darby, 911 F .2 d 1573, 1576-1577 (11th Cir. 1990). Conclusory allegations based on subjective beliefs a re likewise insufficient to create a genuine issue of material fact and, therefore, do not s u f f ic e to oppose a motion for summary judgment. Waddell v. Valley Forge Dental A s s o c ia te s, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001); Holifield v. Reno, 115 F.3d 1555, 1 5 6 4 n.6 (11th Cir. 1997) (plaintiff's "conclusory assertions ..., in the absence of [admissible] su p p o rtin g evidence, are insufficient to withstand summary judgment."); Harris v. Ostrout, 6 5 F.3d 912, 916 (11th Cir. 1995) (grant of summary judgment appropriate where inmate p r o d u c es nothing beyond "his own conclusory allegations" challenging actions of the d e f e n d a n ts); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) ("mere verification o f party's own conclusory allegations is not sufficient to oppose summary judgment...."). H e n c e, when a plaintiff fails to set forth specific facts supported by requisite evidence s u f f ic ie n t to establish the existence of an element essential to his case and on which the p lain tiff will bear the burden of proof at trial, summary judgment is due to be granted in

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f a v o r of the moving parties. Celotex, 477 U.S. at 322 ("[F]ailure of proof concerning an e ss e n tial element of the nonmoving party's case necessarily renders all other facts im m a ter ial.") ; Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1 9 8 7 ) (if on any part of the prima facie case the plaintiff presents insufficient evidence to re q u ir e submission of the case to the trier of fact, granting of summary judgment is a p p r o p r ia t e ) . F o r summary judgment purposes, only disputes involving material facts are relevant. U n ited States v. One Piece of Real Property Located at 5800 SW 74 th Avenue, Miami, F lo r id a , 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the s u b s ta n tiv e law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the D e p a r t m e n t of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004) ("Only f a ctu a l disputes that are material under the substantive law governing the case will preclude e n try of summary judgment."). "The mere existence of some factual dispute will not defeat s u m m a ry judgment unless that factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citatio n omitted). To demonstrate a genuine issue of material fact, the party opposing s u m m a ry judgment "must do more than simply show that there is some metaphysical doubt a s to the material facts. . . Where the record taken as a whole could not lead a rational trier o f fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec.

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I n d u s . Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence b ef o re the court which is admissible on its face or which can be reduced to admissible form in d ic a te s that there is no genuine issue of material fact and that the party moving for s u m m a ry judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 4 7 7 U.S. at 323-324 (summary judgment appropriate where pleadings, evidentiary materials an d affidavits before the court show there is no genuine issue as to a requisite material fact); W a d d e ll, 276 F.3d at 1279 (to establish a genuine issue of material fact, the nonmoving party m u st produce evidence such that a reasonable trier of fact could return a verdict in his favor). A l t h o u g h factual inferences must be viewed in a light most favorable to the n o n m o v in g party and pro se complaints are entitled to liberal interpretation by the courts, a p r o se litigant does not escape the burden of establishing by sufficient evidence a genuine is s u e of material fact. Beard, 548 U.S. at 525, 126 S.Ct. at 2576; Brown v. Crawford, 906 F .2 d 667, 670 (11th Cir. 1990). Thus, Gangl's pro se status alone does not mandate this c o u rt's disregard of elementary principles of production and proof in a civil case. In this c a se , Gangl fails to demonstrate a requisite genuine issue of material fact in order to preclude s u m m a ry judgment. Matsushita, supra. II. STANDARD OF REVIEW FOR DELIBERATE INDIFFERENCE T h e Constitution proscribes those conditions of confinement which involve the w a n to n and unnecessary infliction of pain. Rhodes v. Chapman, 452 U.S. 337 (1981). Only

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a c tio n s which deny inmates "the minimal civilized measure of life's necessities" are grave e n o u g h to establish constitutional violations. Id. at 347; see also Wilson v. Seiter, 501 U.S. 2 9 4 (1991) (overcrowding, without more, does not rise to the level of a constitutional v io latio n ). The Constitution "does not mandate comfortable prisons, but neither does it p e rm it inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes, 452 U .S . at 349). Thus, it is well-settled that the treatment a prisoner receives and the conditions u n d e r which he is confined are subject to constitutional scrutiny. Helling v. McKinney, 509 U .S . 25 (1993). A prison official has a duty under the Eight Amendment to "provide humane c o n d itio n s of confinement; prison officials must ensure that inmates receive adequate food, c lo th in g , shelter, and medical care, and must `take reasonable measures to guarantee the s a f ety of the inmates.'" Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 5 2 6 -2 7 (1984)); Helling, 509 U.S. at 33. In order to prevail in a § 1983 action on an Eighth A m e n d m e n t violation with respect to conditions of confinement, a prisoner must satisfy both a n objective and a subjective inquiry. Farmer, 511 U.S. at 834. The objective component req u ires an inmate to prove the he was denied the "minimal civilized measure of life's n e c es s itie s." Id. The challenged prison condition must be "extreme" and must pose "an u n re a so n a b le risk of serious damage to his future health." Chandler v. Crosby, 379 F.3d 1 2 7 8 , 1289-90 (11 th Cir. 2004). The subjective component requires a prisoner to prove that

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th e prison official acted with "deliberate indifference" in disregarding that risk by showing th a t an official knew the inmate faced a "substantial risk of serious harm" and with such k n o w le d g e , disregarded that risk by failing to take reasonable measures to abate it. Farmer, 5 1 1 U.S. at 828, 834, 837. To be deliberately indifferent, Defendants must have been "subjectively aware o f the substantial risk of serious harm in order to have had a '"sufficiently c u lp a b le state of mind."'" Farmer, 511 U.S. at 834-38, 114 S.Ct. at 1977-80; W ils o n v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d 271 (1 9 9 1 ).... Even assuming the existence of a serious risk of harm and causation, t h e prison official must be aware of specific facts from which an inference c o u ld be drawn that a substantial risk of serious harm exists--and the prison o f f ic ia l must also "draw that inference." Farmer, 511 U.S. at 837, 114 S.Ct. a t 1979. Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2001). Thus, for Gangl to survive s u m m a ry judgment on his conditions claim, he is "required to produce sufficient evidence o f (1) a substantial risk of serious harm; (2) Defendants' deliberate indifference to that risk; a n d (3) causation." Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995). III. DISCUSSION A . The Claims Against Allen and Campbell G a n g l argues that Defendant Campbell failed to comply with a court order to relieve o v e rc ro w d in g in Alabama prisons and that Defendant Allen knew at the time he became C o m m is s io n e r that the State's penal institutions were overcrowded. Gangl has not produced a n y evidence, however, to show that Defendants Allen and Campbell are/were directly re sp o n s ib le for or personally participated in establishing the conditions about which he

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c o m p lain s. The law in this circuit is well settled that "supervisory officials are not liable u n d e r § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat s u p e rio r or vicarious liability." Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.2003) (in ter n a l quotation marks and citation omitted). Thus, supervisory defendants are liable only if they personally participated in the allegedly unconstitutional conduct or if there is "a causal c o n n e ctio n between [their] actions ... and the alleged constitutional deprivation." Id. See also W e st v. Tillman, 496 F.3d 1321, 1328 (11th Cir.2007). Gangl must present sufficient e v id e n c e of either (1) a "custom or policy [that] result[s] in deliberate indifference to c o n stitu tio n a l rights or ... facts [that] support an inference that the supervisor[s] directed the s u b o rd in a te s to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so;" or (2) "a history of widespread abuse [that] put[ ] the re sp o n sib le supervisor on notice of the need to correct the alleged deprivation, and he fails to do so." Cottone, 326 F.3d at 1360 (internal quotation marks and citations omitted) (second a lte ra tio n in original). "The deprivations that constitute widespread abuse sufficient to notify th e supervising official must be obvious, flagrant, rampant and of continued duration, rather th a n isolated occurrences." Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.1999) (internal q u o tation marks and citation omitted). G a n g l has presented no evidence to create a genuine issue of disputed fact that D e f en d a n ts Allen and Campbell implemented an affirmative custom or policy of o v e rc ro w d in g or that they directed subordinates to act unlawfully with respect to prison

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c o n d itio n s . The only remaining issue, therefore, is whether the overcrowding and other c o n d i tio n s about which Gangl complains constitute widespread abuses which were "obvious, flag ran t, rampant and of continued duration" so that Defendants Allen and Campbell were p u t on notice that the conditions needed correction and they failed to do so. There is nothing before the court which indicates that Defendants Allen or Campbell p e rs o n a lly participated in or had any direct involvement with the conditions under which G a n g l was housed. Gangl complains in conclusory terms that Ventress is overcrowded, has in a d e q u ate bathroom facilities, and unsanitary bed mattresses. Plaintiff maintains that he c o n tra c te d health problems as a result of these conditions including tuberculosis, staph, and h e p a titis.3 Gangl has failed to produce evidence, however, which shows that Defendants A lle n or Campbell knew of an obvious risk of serious harm to him and disregarded that risk, F a r m e r 511 U.S. at 837, or that these Defendants' actions resulted in the denial of the m in i m a l civilized measure of life's necessities.4 Rhodes, 452 U.S. at 347.

Gangl's assertion that he contracted infectious diseases due to overcrowded conditions at Ventress is general and conclusory and, thus, insufficient for summary judgment purposes to demonstrate that the conditions of confinement were so unsanitary as to violate the Eighth Amendment. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) ( "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion"). Although Gangl maintains that Defendant Allen knew when he assumed his role as Commissioner of the Department of Corrections that the agency was operating facilities at more than double their maximum capacity and that Ventress had been under quarantine in 2005 due to a TB epidemic, Gangl does not say how he knows what Defendant Allen knows, and that failure on his part means the court cannot consider it on summary jugment. See Fed.R.Civ.P. 56(e)(1) (Requiring that an opposing affidavit "be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated ...")
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N o doubt, the conditions about which Gangl complains are an unfortunate part of p r is o n life in general. While the Constitution does not mandate comfortable prisons, c o n d itio n s under which inmates are housed must not be inhumane. Mathews v. Crosby, 480 F . 3 d 1265, 1269 (11th Cir. 2007). The existence of the problems identified by Gangl, h o w e v e r, cannot be characterized as "abuses" nor is the fact of their existence sufficient to s h o w a constitutional violation. Further, Gangl fails to produce evidence that either

D e f e n d a n ts Allen and Campbell or prison officials at Ventress have ignored the problems ab o u t which he complains or displayed deliberated indifference to them or that there are o b v io u s , flagrant and rampant abuses of continued duration sufficient to put Defendants A l le n and Campbell on notice of deficiencies so serious that their intervention was c o n stitu tio n a lly required. Consequently, Defendants Allen and Campbell's motion for s u m m a ry judgment on Plaintiff's claims challenging the conditions of confinement at V e n tre ss is due to be granted. B . The Claims Against Dr. Peasant G an g l challenges the constitutionality of medical treatment provided to him by Dr. P e a sa n t . Specifically, Gangl contends that Dr. Peasant treated and medicated him for tu b e rc u lo s is even though he was not contagious and the risk of damage to his liver was e x t re m e . In response to the complaint, Dr. Peasant denies Gangl's allegations and likewise m a in tain s that Gangl's complaint against him is subject to dismissal because he has failed to ex h au st an administrative remedy available to him at Ventress which is a mandatory

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p re c o n d i t i o n to filing this cause of action. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2 0 0 6 ). The Prison Litigation Reform Act compels exhaustion of available administrative re m e d ies before a prisoner can seek relief in federal court on a § 1983 complaint. S p e c if ica lly, 42 U.S.C. § 1997e(a) states that "[n]o action shall be brought with respect to p r i s o n conditions under section 1983 of this title, or any other Federal law, by a prisoner c o n f in e d in any jail, prison, or other correctional facility until such administrative remedies a s are available are exhausted." "Congress has provided in § 1997(e)(a) that an inmate must e x h a u s t irrespective of the forms of relief sought and offered through administrative r e m e d i e s ." Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion r e q u ire m e n t applies to all inmate suits about prison life, whether they involve general c irc u m s ta n c es or particular episodes, and whether they allege excessive force or some other w rong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of all available

a d m in is tra tiv e remedies is a precondition to litigation and a federal court cannot waive the e x h a u s tio n requirement. Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325 (1 1 th Cir. 1998); Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Moreover, "the P L R A exhaustion requirement requires proper exhaustion." Woodford, 548 U.S. at 93, 126 S .C t. at 2387 (emphasis added). "Proper exhaustion demands compliance with an agency's d e a d lin e s and other critical procedural rules [as a precondition to filing suit in federal court] b e c a u se no adjudicative system can function effectively without imposing some orderly

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s tru c tu re on the courts of its proceedings.... Construing § 1997e(a) to require proper e x h a u stio n ... fits with the general scheme of the PLRA, whereas [a contrary] interpretation [ a llo w in g an inmate to bring suit in federal court once administrative remedies are no longer a v a ila b le ] would turn that provision into a largely useless appendage." 548 U.S. at 90-91, 9 3 , 126 S.Ct. at 2386-2387. The Court reasoned that because proper exhaustion of

ad m inistrat iv e remedies is necessary an inmate cannot "satisfy the Prison Litigation Reform A c t's exhaustion requirement ... by filing an untimely or otherwise procedurally defective a d m in i str a tiv e grievance or appeal[,]" or by effectively bypassing the administrative process s im p ly by waiting until the grievance procedure is no longer available to him. 548 U.S. at 8 3 -8 4 , 126 S.Ct. at 2382; Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (inmate w h o files an untimely grievance or simply spurns the administrative process until it is no lo n g e r available fails to satisfy the exhaustion requirement of the PLRA). Federal law directs this court to treat the medical defendant's response as a motion to d is m is s for failure to exhaust an administrative remedy and allows the court to look beyond th e pleadings to relevant evidentiary materials in deciding the issue of proper exhaustion. B r y a n t, 530 F.3d at 1374, 1375. The record in this case is undisputed that the health care p ro v id e r for the Alabama Department of Corrections provides a grievance procedure for in m a te complaints related to the provision of medical treatment. (Doc. No. 21, Exh. C-D; D o c . No. 26, Exh. A.) The evidentiary materials submitted by Defendant Peasant

d e m o n s tra te that Gangl failed to file the requisite grievance with respect to the actions about

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w h i c h he complains in the instant complaint. Gangl does not dispute his failure to exhaust th e administrative remedy available in the prison system prior to filing this case. The court, th e re f o re , concludes that the claims presented in this cause of action against the medical d e f e n d a n t is subject to summary dismissal without prejudice as Gangl failed to properly e x h a u st an administrative remedy available to him which is a precondition to proceeding in th is court on such claims. Ngo, 548 U.S. at 87-94, 126 S.Ct. at 2384-2388; Bryant, 530 F.3d a t 1374-1375 (dismissal for failure to exhaust an administrative remedy when the remedy re m a in s available is not an adjudication of the merits and is without prejudice). IV. CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Defendants Allen and Campbell's motion for summary judgment (Doc. No. 12) be G RA N TED . 2 . Plaintiff's claims against Defendants Allen and Campbell be DISMISSED with p r e ju d ic e . 3 . The motion to dismiss filed by Defendant Peasant (Doc. No. 21) be GRANTED to the extent this defendant seeks dismissal of this case due to Plaintiff's failure to properly e x h a u s t an administrative remedy available to him at the Ventress Correctional Facility. 4 . The claims against Defendant Peasant be DISMISSED without prejudice pursuant to the provisions of 42 U.S.C. § 1997e(a) for Plaintiff's failure to exhaust an administrative re m e d y available to him at the Ventress Correctional Facility.

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It is further ORDERED that on or before July 16, 2009 the parties may file objections to the R e c o m m e n d a ti o n . Any objections filed must specifically identify the findings in the

M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D i s tric t Court of issues covered in the Recommendation and shall bar the party from a tt a c k i n g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon the grounds of plain error or manifest injustice. Nettles v. W a in w r ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 2nd day of July, 2009.

/s / Wallace Capel, Jr. W A L L A C E CAPEL, JR U N IT E D STATES MAGISTRATE JUDGE

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