To v. Elston et al
MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 3/31/2014. (KAM, )
2014 Mar-31 AM 09:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CONGHAU HUU TO,
WILLIAM ELSTON, et al.,
) Case No. 1:10-cv-02401-KOB-TMP
MEMORANDUM OF OPINION
The magistrate judge filed a report and recommendation on January 14, 2014,
recommending that the court dismiss plaintiff’s complaint without prejudice for
failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). (Doc.
36). The magistrate judge recommended that, in the alternative, defendants’ motion
for summary judgment be granted and plaintiff’s Eighth Amendment and conspiracy
claims be dismissed with prejudice. Id. The magistrate judge further recommended
that plaintiff’s state law negligence claims be dismissed without prejudice pursuant
to 28 U.S.C. § 1367(c)(3). Id. Plaintiff filed objections on March 10, 2014. (Doc.
In his objections, plaintiff asserts that he was diligent in his attempts to exhaust
his administrative remedies. However, plaintiff does not dispute that he failed to
resubmit a BP-11 in Administrative Remedy # 554976 in which he claimed officers
used excessive measures to force him into a cell with another inmate because “the
issues raised were resolved.” (Doc. 22 at 3). Plaintiff argues that he did not resubmit
a BP-11 in Administrative Remedy # 568833 in which he complained that he was
forced to share a cell with another inmate because he did not receive a response to his
BP-10 from the Regional Office. Plaintiff does not dispute that pursuant to the
Administrative Remedy Program, an inmate who does not receive a response within
the allotted time period may consider the absence of a response to be a denial at that
level. As a result, plaintiff could have resubmitted his BP-11 form to the Central
Office concerning Administrative Remedy # 568833 for a determination.1
In his objections, plaintiff merely restates his claims that defendants are liable
for the injuries he sustained after his cellmate assaulted him. The undisputed facts
show no specific threat or prior incident from which defendants could a substantial
risk that plaintiff’s cellmate would injure him. Moreover, plaintiff concedes that on
August 6, 2009, he disobeyed a direct order to move to another cell. The undisputed
Plaintiff contends that defendants attempted to exclude from the record a BP-10 he
submitted on July 10, 2009, and that the magistrate judge did not consider the same in the report and
recommendation. (Doc. 39 at 2.) Plaintiff’s claim is without merit. Citing plaintiff’s exhibits, the
magistrate judge found that plaintiff filed a BP-10 on July 10, 2009, in which he complained that
SMU inmates were being forced to cell with other inmates and that the practice would lead to inmate
assaults and killings. (Doc. 36 at 13; Doc. 33, Ex. 1.) The magistrate judge noted that the Regional
Office rejected plaintiff’s BP-10 because he failed to first file a BP-9 through the institution for the
Warden’s review and response before filing an appeal. Id. Plaintiff does not dispute that he failed
to follow administrative procedures in submitting this particular grievance.
evidence shows that the amount of force used by prison officials to remove plaintiff
from his cell was not so unreasonable or extraordinary to indicate anything but an
attempt to compel plaintiff to comply with lawful orders. Lastly, plaintiff continues
to make only conclusory statements without any supporting operative facts for his
claims that defendants conspired to violate his constitutional rights.
The court has carefully reviewed and considered de novo all the materials in
the court file, including the report and recommendation and plaintiff’s objections.
The court ADOPTS the magistrate judge’s report and ACCEPTS his
recommendation. The court EXPRESSLY FINDS that plaintiff’s complaint is due
to be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative
remedies pursuant to 42 U.S.C. § 1997e(a). In the alternative, defendants’ motion for
summary judgment as to plaintiff’s Eighth Amendment and conspiracy claims is due
to be GRANTED and those claims are due to be DISMISSED WITH PREJUDICE,
and plaintiff’s state law negligence claims are due to be DISMISSED WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).
The court will enter a separate Final Order.
DONE and ORDERED this 31st day of March, 2014.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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