Moore v. Harris et al

Filing 137

ORDER granting 67 Motion to Dismiss for Failure to Exhaust Administrative Remedies; granting 67 Motion for Summary Judgment; adopting Report and Recommendations re 86 Report and Recommendations as to 67 Motion to Dismiss,,, Motion for Summary Judgment,, filed by Jimmy Love. Dismissing all Claims against defendant Love. Signed by Judge Patricia A. Seitz on 8/31/2011. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-227S4-CIV -SEITZIWHITE
ANTHONY L. MOORE,
Plaintiff,

v.
W ALTER A. McNEIL, et at,
Defendants.
/

ORDER AFFIRMING AND ADOPTING REPORT OF MAGISTRATE JUDGE
THIS MATTER is before the Court upon the Report of Magistrate Judge issued by the
Honorable Patrick A. White, United States Magistrate Judge [DE-86]. In the Report, Magistrate
Judge White recommends that Defendant Love's Motion to Dismiss for Failure to Exhaust
Administrative Remedies and Motion for Summary Judgment [DE-67] should be construed as a
motion for summary judgment l and that the motion should be granted. Plaintiffs civil rights
complaint, filed pursuant to 42 U.S.C. § 1983, alleges two claims against Love: (1) that Love failed
to protect Plaintiff from attack and (2) that Love was deliberately indifferent to Plaintiff s serious
medical needs. The Magistrate Judge recommends: (1) granting summary judgment on Plaintiffs
failure to protect claim because there is no genuine issue of material fact and the record evidence
does not support Plaintiffs claim and (2) granting summary judgment on Plaintiffs deliberate
indifference to medical needs claim because Plaintiff failed to exhaust his administrative remedies.

IOn November 22,2010, the Magistrate Judge issued an Order notifying Plaintiff that the
motion would be treated as one for summary judgment.

Plaintiffhas filed Objections2to the Magistrate Judge's Report. Because Plaintiff has failed to raise
any valid objections, Love's Motion is granted.
Failure to Protect
The Report recommends granting summary judgment on Plaintiffs failure to protect claim
because the undisputed facts show that Love, the unit supervisor, did not know of any excessive risk
to Plaintiff s safety and that the yard where Plaintiff was allegedly attacked was adequately staffed
at the time of Plaintiff s attack. Thus, the Report concludes that Love cannot be liable under § 1983
because he did not know of and disregard an excessive risk to Plaintiff s health or safety. See Brown
v Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (holding that mere negligence will not justify
liability under § 1983 and that § 1983 liability will only arise where prison officials have been
deliberately indifferent to a known danger).
While Plaintiffs Objections generally state that there is a genuine issue of material fact,
Plaintiff has failed to point to any record evidence that would indicate that there is an actual issue
as to a specific fact. Plaintiff has not pointed to any evidence that would indicate that Love was
aware of any excessive risk to Plaintiff s safety. Thus, if Love did not know of any risk, he could
not have been deliberately indifferent to it. Further, Plaintiff has not shown that, even if Love knew
of the risk, Love's actions were deliberately indifferent to the risk. Love has established that the yard
where Plaintiff was attacked was adequately staffed at the time of the attack. Plaintiff has not shown
otherwise. Consequently, Love's motion for summary judgment is granted as to Plaintiffs failure
to protect claim.

2Many of Plaintiffs Objections are simply verbatim restatements of the arguments
Plaintiff raised in his Declaration in Opposition to Motion for Summary Judgment [DE-79].
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Deliberate Indifference to Plaintiff's Serious Medical Needs

The Report recommends dismissing Plaintiff s claim of deliberate indifference to serious
medical needs because Plaintiff failed to exhaust his administrative remedies prior to filing this suit.
After review of the record, including the grievances filed by Plaintiff, the Magistrate Judge found
that in his administrative grievances Plaintiff failed to raise a claim of deliberate indifference by
Love, despite the fact that Plaintiff had all of the relevant information available to him at the time
he filed his grievances. In his Objections, Plaintiff argues that if a grievance has been investigated
then a plaintiff has exhausted his remedies. However, Plaintiff misses the point. The Magistrate
Judge did not find that Plaintiffs grievances had not been investigated; he found that none of the
grievances raised the issue of Love' s deliberate indifference to Plaintiff s medical needs. Thus, even
if all of Plaintiff s grievances were investigated, Plaintiff did not exhaust his administrative remedies
as to his claim of deliberate indifference by Love because he never raised such a claim in his
grievances. 3 Plaintiff also argues that his grievances do not have to satisfy a demanding pleading
standard. Regardless of the pleading standard, Plaintiff s grievances never once raised the issue,
directly or indirectly, that Love was deliberately indifferent to Plaintiffs serious medical needs.
Thus, Plaintiff has failed to exhaust his administrative remedies as to this claim and Love's motion
for summary judgment is granted.
Having carefully reviewed, de novo, Magistrate Judge White's thorough Report, the
objections, and the record, it is hereby

3A review of the grievances, submitted as Exhibit G to Defendant Love's Motion [DE-678], indicates that Plaintiff s grievances complain of indifference to his medical needs by the
medical staff, not by Love. While other officers are mentioned in relation to Plaintiff s medical
needs, Love is not.

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ORDERED that:
(1) The above-mentioned Report of Magistrate Judge [DE-86] is AFFIRMED and
ADOPTED.
(1) Defendant Love's Motion to Dismiss for Failure to Exhaust Administrative Remedies and
Motion for Summary Judgment [DE-67] is GRANTED. All claims against Defendant Love are
DISMISSED.
DONE and ORDERED in Miami, Florida, this 3IP'day of August, 2011.

PATRr~ETZ
UNITED STATES DISTRICT JUDGE

cc:

Magistrate Judge White
All counsel of record!Pro se party

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