Toenniges v. Georgia Department of Corrections

Filing 148

ORDER adopting 117 Report and Recommendations. The Court's March 14, 2011 Order (Doc. 96) and June 2, 2011 Order (Doc. 99) are Vacated. Also, the Judgment entered on April 26, 2012 (Doc. 106) is Vacated. All motions to dismiss entered prior to the Eleventh Circuit's remand (Docs. 35, 64, 93) are Denied as Moot.Ordered by U.S. District Judge W. Louis Sands on 12/16/13 (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
DONALD W. TOENNIGES,
Plaintiff,
v.
WARDEN AMMONS, et al.,
Defendants.

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CASE NO.: 1:09-CV-165 (WLS)

ORDER
Presently pending before the Court is an Order and Recommendation from
United States Magistrate Judge Thomas Q. Langstaff filed April 10, 2013. (Doc. 117.)
Pursuant to 28 U.S.C. § 1915A, Judge Langstaff conducted a review of Plaintiff’s
Amended Complaint, which alleged violations of 42 U.S.C. § 1983. (Doc. 20-1.) No
objections have been filed to the Recommendation currently under review.
generally Docket.)

(See

Due to the lengthy and involved nature of Plaintiff’s Amended

Complaint (Docs. 20-1 & 115), and to ensure that all of his claims have been addressed,
the Court addresses his allegations in turn and uses the headings used by Plaintiff in his
Amended Complaint (Doc. 20-1).
ANALYSIS
I.

Ground One: Cruel and Unusual Punishment
A. Denial of medical treatment
Plaintiff alleges that he had an appointment with Defendant Saad on January 20,

2006, but was not allowed to speak. (Doc. 20-1 at 10.) He filed informal and formal
grievances based on his encounter with Defendant Saad, but both were denied by

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Defendant Nelson. (Id.) Plaintiff filed an appeal, which was denied on February 14,
2007 by Defendant Sittnick. (Id. at 10-11.) Following visits with Dr. Gardner and a
radiologist, Emory Sports Medicine made a recommendation that Plaintiff have surgery.
(Id. at 11.) On February 22, 2009, Plaintiff requested replacement shoes, but that
request was denied. (Id. at 12.) Plaintiff asserts that he also requested evaluations from
physicians and chiropractors, and offered to pay for such evaluations himself, but those
requests were denied by Defendant Ayers. (Id.) Plaintiff claims that this alleged denial
of medical treatment has resulted in ongoing pain, decreased quality of life, and a
diminished capacity to produce income. (Id.)
The Court construes the above-referenced allegations to be (1) a claim against
Defendant Saad for medical malpractice, negligence, or deliberate indifference, (2)
claims against Defendants Nelson and Sittnick for hindering the grievance process, (3) a
claim against Defendant Ayers for failure to respond to a letter, and (4) a claim against
Defendant Ayers for failure to render adequate medical care.
Judge Langstaff recommends dismissing Plaintiff’s claim against Defendant Saad
because the applicable statute of limitations has passed. (Doc. 117 at 2.) The Court
agrees. See Acoff v. Abston, 762 F.2d 1543, 1546 (11th Cir. 1985); GA. CODE ANN. § 9-333.

Because this is the only claim against Defendant Saad, Defendant Saad is

DISMISSED.
Judge Langstaff recommends dismissing the claims against Defendants Nelson,
Sittnick, and Ayers as they relate to the grievance process and failure to respond to
letters. (Doc. 117 at 4.) The Court agrees because such claims are not actionable. See
Dunn v. Martin, 178 F. App’x 876, 878 (11th Cir. 2006) (“[A] prisoner does not have a
constitutionally protected liberty interest in an inmate grievance procedure.”);

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Wildberger v. Bracknell, 869 F.2d 1467 (11th Cir. 1989) (per curiam) (holding that a
prison’s failure to follow grievance procedures is not actionable). Accordingly, the
above-referenced claims against Defendants Nelson, Sittnick, and Ayers are
DISMISSED.
The Court notes that Plaintiff may have intended to assert a claim against
Defendant Ayers for denial of medical care. In relation to the above-referenced claim,
Plaintiff does not allege that Defendant Ayers acted with deliberate indifference.
Because negligence and medical malpractice, without more, is not actionable under §
1983, see Simpson v. Holder, 200 F. App’x 836, 839 (11th Cir. 2006), the claim against
Defendant Ayers for denial of medical care is DISMISSED.
B. Delay of medical treatment
i.

Issues with shoulders

On February 7, 2008, Plaintiff claims that he visited with Defendant Smith in
reference to ongoing pain, but there were no changes to his medical treatment. (Doc.
20-1 at 13.) Plaintiff wrote a letter to Defendant Cross on December 17, 2008, seeking
help for his medical issues but received no response. (Id.) On the same date, Plaintiff
filed “sick call” concerning his loss of the use of his right shoulder, and Defendant
Brown ordered a new shoulder x-ray. (Id.) As a result of the x-ray, Plaintiff was sent to
an orthopedic surgeon, Dr. Baggett. (Id.) Dr. Baggett ordered an MRI of Plaintiff’s right
shoulder.

(Id.)

After review of the MRI results, Dr. Baggett ordered an MRI of

Plaintiff’s left shoulder and referred Plaintiff to a shoulder replacement doctor for
consultation regarding Plaintiff’s right shoulder. (Id.) Plaintiff claims that the MRI of
his left shoulder was never conducted. (Id.)

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On September 28, 2009, Plaintiff saw an orthopedic specialist, Dr. Keating, in
Atlanta. (Id.) Dr. Keating told Plaintiff that his options were shoulder reconstruction or
replacement. (Id.) Dr. Keating said that he would have to speak with Calhoun State
Prison to determine the course of action. (Id.) On October 5, 2009, Plaintiff spoke with
Defendant Edwards, and asserted his desire to have surgery. (Id. at 14.) Plaintiff claims
that Defendant Edwards told him that only one medical operation could be done at a
time. (Id.) On October 27, 2009, Plaintiff had a consultation with P.A. Tatum who
conducted “the most rigorous exam [Plaintiff] has had since his incarceration.” (Id.)
The Court construes the above-referenced allegations to be (1) a claim against
Defendant Smith for deliberate indifference, (2) a claim against Defendant Edwards for
failure to render adequate medical care, and (3) a claim against Defendant Cross for
failure to respond to a letter.
The claim referenced above against Defendant Edwards does not allege any
degree of fault or state of mind attributable to Defendant Edwards.

Accordingly,

Plaintiff has failed to state a claim against Defendant Edwards and that claim is
DISMISSED.

See Simpson, 200 F. App’x at 839.

Judge Langstaff recommends

dismissing Plaintiff’s claim against Defendant Cross for failure to respond to a letter.
(Doc. 117 at 4.) The Court agrees and that claim is DISMISSED. See Wildberger, 869
F.2d 1467. The Court agrees with Judge Langstaff that the deliberate indifference claim
against Defendant Smith should be permitted to proceed.
ii.

Issues with replacement shoes

In March 2008, the specially-made shoes that Plaintiff had been wearing for two
weeks began to come apart. (Doc. 20-1 at 14.) Plaintiff wrote a letter to Defendant
Hutto, who forwarded the letter to Defendant Jones. (Id. at 14-15.) Plaintiff never

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received a response. (Id. at 15.) Plaintiff claims that the shoes became a tripping
hazard, and he was shipped to Calhoun State Prison on July 31, 2008, without
replacement shoes. (Id.)
On September 8, 2008, Defendant Edwards noted Plaintiff’s worn shoes and
requested a replacement. (Id.) After Plaintiff did not receive the shoes, he wrote a letter
to Defendant Thompson but received no response. (Id.)

On December 17, 2008,

Plaintiff wrote a letter to Defendant Cross regarding his letter to Defendant Thompson,
but received no response. (Id.) On the same date, Plaintiff filed his fourth “sick call” for
shoes but was told that shoes must last one year. (Id.) Plaintiff noted that a request for
replacement shoes had previously been denied by Defendant Christian.

(Id.)

On

February 22, 2009, Plaintiff filed “sick call” for shoes since it had been thirteen months
since he received the pair of shoes he had at that time. (Id.) Plaintiff was told by
Defendant Brown that the request was denied. (Id. at 16.) Plaintiff alleges that his
grievances on this matter were denied. (Id.) Plaintiff received the replacement shoes in
June 2009. (Id.) Plaintiff claims that, but for the negligence and delay caused by
Defendants Satterfield and the Medical College of Georgia, he would have received
replacement shoes. (Id.)
The Court construes the above-referenced allegations to be (1) a claim against
Defendant Hutto for failure to respond to a letter, (2) a claim that Plaintiff was
wrongfully transferred to Calhoun State Prison, (3) a claim against Defendant
Thompson for failure to respond to a letter, (4) a claim against Defendant Cross for
failure to respond to a letter, (5) a claim against Defendant Christian for denying his
request for replacement shoes, (6) a claim against Defendant Brown for denying a
grievance related to his request for replacement shoes, (7) a claim against Defendant

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Satterfield for deliberate indifference, and (8) a claim against the Medical College of
Georgia.
To the extent Plaintiff seeks to assert claims against Defendants Hutto,
Thompson, Cross, Christian, and Brown for failure to respond to his letters or properly
process his grievances, the Court agrees with Judge Langstaff’s recommendation (Doc.
117 at 4) and those claims are DISMISSED.

See Wildberger, 869 F.2d 1467. The

Court also agrees with Judge Langstaff’s recommendation to dismiss the Medical
College of Georgia because that entity is not capable of being sued. See Gunn v. Jarriel,
No. CV 306-039, 2007 WL 2317384, *4 (S.D. Ga. Aug. 10, 2007).

Accordingly,

Plaintiff’s claim against the Medical College of Georgia is DISMISSED and the Medical
College of Georgia is DISMISSED.
To the extent Plaintiff seeks to assert claims against Defendant Christian for
denial of replacement shoes on the basis of the above-referenced facts, that claim is
DISMISSED. Plaintiff alleges that Defendant Christian denied him replacement shoes
and stated “there were no problems.” (Doc. 20-1 at 15.) Because Plaintiff failed to allege
that Defendant Christian acted with the requisite state of mind, he has not properly
stated a claim. See Simpson, 200 F. App’x at 839. To the extent Plaintiff seeks to assert
a claim based on being transferred to Calhoun State Prison wrongfully or improperly,
such a claim is DISMISSED because it is not actionable. See Meachcum v. Fano, 427
U.S. 215, 223-24 (1976). The Court agrees with Judge Langstaff that the claim against
Defendant Satterfield for deliberate indifference should be permitted to proceed.
C. Medical Negligence
Plaintiff claims that Defendant Smith’s negligence resulted in the delay of his
medical treatment by three and one-half years. (Id. at 16-17.) On December 17, 2009,

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Plaintiff claims that he filed “sick call” regarding a change in the condition of his right
shoulder and arm, but was ignored by Defendant Brown. (Id. at 17.) Plaintiff alleges
that Defendant Brown refused to request an x-ray on his shoulder. (Id.) Plaintiff asserts
that he was not properly treated until he saw Dr. Baggett. (Id.) Plaintiff claims that
Defendant Brown had acted similarly during a physical exam on June 30, 2009, and
refused to review Plaintiff’s health survey. (Id.)
The Court construes these allegations to assert claims against Defendants Smith
and Nurse Brown for medical negligence. To the extent that Plaintiff asserts claims of
medical negligence against Defendants Smith or Nurse Brown, those claims are
DISMISSED because a negligence claim, without more, is not actionable under § 1983.
See Simpson, 200 F. App’x at 839.
D. Deliberate Indifference1
On March 16, 2008, Plaintiff wrote a letter to Defendant Hutto regarding the
deteriorating condition of his new shoes. (Doc. 20-1 at 18.) Although Defendant Hutto
forwarded the letter to Defendant Jones, Plaintiff received no response. (Id.) On June
29, 2009, Plaintiff visited with Defendant Brown, and Plaintiff claims that his concerns
regarding his medical condition were ignored.

(Id.)

On July 12, 2009, Plaintiff

requested “bed rest profile,” but the request was ignored. (Id. at 19.) On July 14, 2009,
Plaintiff requested to be evaluated by his doctors and volunteered to pay for it, but that
request was denied. (Id.) On that same date, Plaintiff requested chiropractic care, but
that request was denied. (Id.) On July 24, 2009, Plaintiff wrote Defendant Ayers a
letter raising concerns regarding the medical treatment he was receiving, but the letter
was returned because Plaintiff had not followed the proper procedural avenue. (Id.)
The Court notes that many of the allegations set forth under this heading were previously alleged by
Plaintiff. The Court discusses them to ensure that all of Plaintiff’s claims have been addressed.

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On August 11 and 17, 2009, Plaintiff sent letters to Defendant Ayers, but never
received a response. (Id.) Plaintiff asked Defendant Edwards if Defendant Ayers had
received the letter, but Plaintiff was allegedly told to ask Defendant Ayers himself. (Id.)
Plaintiff claims that it took three years for the first x-ray to be conducted. (Id. at 20.)
Plaintiff claims that this is due, at least in part, to the negligence of the Medical College
of Georgia and Defendant Brown. (Id.)
On October 27, 2009, Plaintiff alleges that P.A. Tatum at Coffee Correctional
Facility had him shipped back to Johnson State Prison. (Id. at 21.) On November 14,
2009, Plaintiff had an appointment with Defendant Henderson.

(Id.)

Defendant

Henderson disagreed with the notes and orders by Dr. Keating. (Id.) On November 19,
2009, Plaintiff was evaluated by Dr. Martel of the Medical College of Georgia. (Id. at
22.) At that time, Dr. Martel told Plaintiff to continue with physical therapy. (Id.) On
December 6, 2009, Plaintiff wrote Defendant Henderson a letter regarding physical
therapy, but Plaintiff received no response. (Id.)
The Court construes the above-referenced allegations to constitute (1) a claim
against Defendant Hutto for failure to respond to a letter, (2) a claim against Defendant
Jones for failing to respond to a letter, (3) a claim against Defendant Brown for
deliberate indifference, (4) a claim that his request for a “bed rest profile” was
wrongfully denied, (5) a claim that his request to be evaluated by his doctors was
wrongfully denied, (6) claims against Defendant Ayers for failure to respond to letters,
(7) a claim against Defendant Edwards for failure to respond to a letter, (8) a claim
against the Medical College of Georgia and Defendant Brown for negligence, (9) a claim
that he was wrongfully transferred to Johnson State Prison, (10) a claim against

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Defendant Henderson for deliberate indifference, and (11) a claim against Defendant
Henderson for failure to respond to a letter.
Judge Langstaff recommends dismissal of Plaintiff’s claims against Defendants
Hutto, Jones, Ayers, Edwards, and Henderson for failure to respond to letters and
facilitate the grievance process. (Doc. 117 at 4-5.) The Court agrees and those claims are
DISMISSED. See Wildberger, 869 F.2d 1467. Because no further claims remain
against Defendant Ayers, Defendant Ayers is DISMISSED. Plaintiff’s claims related to
the denial of his requests for a “bed rest profile” and evaluations by his own doctors are
also DISMISSED for failure to state a claim. As to those claims, Plaintiff failed to
allege that those requests were denied with the requisite mental state, or that such
denials resulted in actual injury. See Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). For
the reasons stated previously, Plaintiff’s claims related to the alleged negligence of the
Medical College of Georgia and Defendant Brown and his transfer to Johnson State
Prison are DISMISSED as none of those allegations are actionable. The Court agrees
with Judge Langstaff’s recommendation that the claims against Defendants Brown and
Henderson for deliberate indifference should be permitted to proceed. (Doc. 117 at 16.)
E. Denial of Visitation
In February 2006, Plaintiff claims that he was not allowed to visit with his family.
(Doc. 20-1 at 23.) Plaintiff wrote a letter to Defendant Nobles, who informed him that
certain family members were not on the list of approved visitors. (Id.) On the next visit,
his children were not allowed to visit. (Id.) In September or October of 2006, Plaintiff’s
daughter and grandson were not allowed to visit. (Id.) Defendant Nobles told Plaintiff
that his children should never have been on the list due to the crime for which he was
incarcerated, and that he could not visit with them without a court order. (Id.) Plaintiff

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caused his divorce decree to be sent to Defendant Keith Jones. (Id. at 23-24.) However,
on February 22, 2008, Defendant Keith Jones told Plaintiff that the decree was
insufficient documentation. (Id. at 24.) Plaintiff replied to Defendant Keith Jones, but
Plaintiff never received a response. (Id.) Plaintiff claims that the problem continued
until July 2009, and “Ms. D. Edwards continued that stance.” (Id.) On December 6,
2009, Plaintiff wrote another letter to Defendant Keith Jones but received no response.
(Id. at 24-25.)

On January 3, 2009, Plaintiff wrote a letter to the new warden,

Defendant Morales, but received no response. (Id. at 25.)
The Court construes the above-referenced allegations to constitute (1) a claim
against Defendant Nobles for wrongfully failing to permit visitation, (2) a claim against
Defendant Keith Jones for wrongfully failing to permit visitation, (3) claims against
Defendant Keith Jones for failing to respond to letters, (4) a claim against Defendant
Edwards for wrongfully failing to permit visitation, and (5) a claim against Defendant
Morales for failure to respond to a letter.
Judge Langstaff recommends dismissal of Plaintiff’s claim against Defendant
Nobles because the applicable statute of limitations has run. (Doc. 117 at 2.) The Court
agrees.

Because this is the only claim asserted against Defendant Nobles, she is

DISMISSED. To the extent Plaintiff seeks to assert claims against Defendants Jones,
Edwards, and Morales for failing to respond to letters, the Court agrees with Judge
Langstaff’s recommendation (Doc. 117 at 4-5) and those claims are DISMISSED. See
Wildberger, 869 F.2d 1467.

Judge Langstaff recommends that the claims against

Defendants Keith Jones and Edwards be permitted to proceed. (Id. at 13.) The Court
agrees because it is conceivable, although by no means certain, that Plaintiff had a

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liberty interest in visitation. See Carabello-Sandoval v. Honsted, 35 F.3d 521, 525 (11th
Cir. 1994).
F. Overcrowding
Plaintiff claims that, during the summer of 2008, Defendants Donaldson and
Owens began “triple bunking” certain rooms in the “D building.” (Id.) Plaintiff alleges
that three inmates were housed in 96 square foot rooms. (Doc. 20-1 at 25.) Plaintiff
claims that a new dormitory was constructed in 2007, and there has been a 30%
increase in the inmate population without corresponding accommodations to living
space. (Id.)
Plaintiff claims that, due to the overcrowding, inmates are allowed an average of
seven minutes to eat meals. (Id. at 26.) Plaintiff asserts that another inmate filed a
grievance, but was told by Defendant Edwards that there is no policy concerning eating
times but Defendant Morales would nonetheless address the issue. (Id.) Plaintiff claims
that the problem was not addressed. (Id.) Also, Plaintiff alleges that lunch is not served
Friday through Sunday, and the food is often burned and inedible. (Id.) Plaintiff claims
that the Georgia Parole Board, “by abusing its broad discretionary powers[] by holding
prisoners who have served their grid time, simply aggravates the overcrowded and
stressed environment.” (Id.) Plaintiff also alleges that the laundry is often returned
soiled and wet. (Id.) Plaintiff claims that the library is overcrowded and noisy such that
legal research is not possible. (Id. at 26-27.)
The Court construes the above-referenced allegations to assert (1) claims against
Defendants Donaldson and Owens related to prison conditions, (2) a claim that the
amount of time permitted for eating is unconstitutionally short in duration, (3) claims
against Defendants Edwards and Morales for failure to facilitate the grievance process,

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(4) a claim related to the prison’s failure to serve lunch Friday through Sunday, (5) a
claim related to the prison serving burned and inedible food, (6) a claim against the
Georgia Parole Board for not observing the “grid,” (7) a claim related to the laundry
being returned soiled and wet, and (8) a claim related to the law library conditions.
“No static ‘test’ can exist by which courts determine whether conditions of
confinement are cruel and unusual, for the Eighth Amendment ‘must draw its meaning
from the evolving standards of decency that mark the progress of a maturing society.’ ”
Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citing Trop v. Dulles, 356 U.S. 86, 101
(1958)). Prisons need not be comfortable places, but they must be humane. Farmer v.
Brennan, 511 U.S. 825, 832 (1994). For prison conditions to be violative of the Eighth
Amendment, they must be “sufficiently serious” and the officials involved must have
acted with “deliberate indifference to prisoner health or safety.” Collins v. Homestead
Correctional Inst., 452 F. App’x 848, 850 (11th Cir.) (citation omitted).
Judge Langstaff recommends that the claims against Defendants Donaldson and
Owens be dismissed because Plaintiff failed to allege that they had personal knowledge
of the prison conditions. (Doc. 117 at 8.)

The Court agrees.

The claims against

Defendants Donaldson and Owens are therefore DISMISSED and Defendant
Donaldson is DISMISSED because no other claims remain against him. To the extent
Plaintiff seeks to assert an overcrowding claim, the Court agrees with Judge Langstaff
that Plaintiff has failed to state a claim. (Id.) Short meal periods, skipped meals,
unpalatable meals, subpar laundry service, and a loud library, without more, do not
constitute a violation of the Eighth Amendment. See Chandler v. Crosby, 379 F.3d
1278, 1295 (11th Cir. 2004). Because Plaintiff has failed to allege that any of these
conditions at the prison caused him actual harm, Plaintiff’s claims related to short meal

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periods, the prison’s failure to serve lunch several days each week, burned and inedible
meals, laundry, and the insufficiency of the library are DISMISSED. See Hudson, 503
U.S. at 8-9 (noting that prison condition claims that do not allege actual injury fail to
state a claim); Cline v. Tolliver, 434 F. App’x 823, 824-25 (11th Cir. 2011) (noting that
access to the courts claims that do not allege actual injury fail to state a claim).
For the reasons discussed previously, Plaintiff’s claims against Defendants
Edwards and Morales for failure to respond to his letters are DISMISSED. Likewise,
Plaintiff’s claim against the Georgia Parole Board is DISMISSED. See Fuller v. Ga.
State Bd. of Pardons & Paroles, 851 F.2d 1307, 1309 (11th Cir. 1988) (noting that
Georgia Parole Board is incapable of being sued).
G. Retaliation
On January 11, 2008, Plaintiff claims that Defendant Johnson told him and his
bunkmate, “I will get the dorm to punish you.” (Doc. 20-1 at 27.) Defendant Johnson
allegedly began throwing Plaintiff’s belongings from his locker onto the bed, and said to
expect “a repeat performance at 3:00 a.m.”

(Id.)

Plaintiff claims that Defendant

Johnson did the same thing at 3:00 a.m. (Id.) Defendant Johnson told Plaintiff that he
was going to return in 15 minutes “to hit 4 more boxes … knowing those were the boxes
of known gang members.” (Id.) Plaintiff alleges that, once Defendant Johnson left,
those gang members walked into his cell and demanded that he leave. (Id.)
Plaintiff claims that Lieutenant Delrosi came to the building and was informed of
what had happened.

(Id. at 27-28.)

Plaintiff asserts that Lieutenant Delrosi

reprimanded Defendant Johnson as a result. (Id. at 28.) Because no other beds were
available, Plaintiff and his bunkmate were taken “to the showers in segregation to sleep
on the floor without mattresses.”

(Id.)

Plaintiff was returned to “same building,

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different pod,” and was “not allow[ed] to unpack [until the other inmates] gather[ed]
the real situation and let Plaintiff settle.” (Id.) Plaintiff asserts that he filed an informal
grievance against Defendant Johnson on January 16, 2008, which was denied by
Defendants Ammons and Allen on January 27, 2008. (Id.) Plaintiff alleges that he filed
an appeal on February 21, 2008. (Id.) The appeal was denied on April 7, 2008, because
Plaintiff failed to provide any evidence. (Id.)
On August 28, 2009, during supper, Defendant Tarver2 instructed Plaintiff to
leave. (Id.) Plaintiff looked at his watch to confirm that only a short period of time had
passed, and Defendant Tarver slammed his hands on the table, yelled at Plaintiff, and
instructed Plaintiff to finish his meal in a corner. (Id. at 28-29.) Plaintiff claims that he
filed a “grievance on the retaliation and eating time problem,” but “the camp defaulted
in their response time.” (Id. at 29.) Plaintiff claims that Defendant Morales fabricated
log sheets that were prepared to track times given for eating. (Id.) On September 13
and 20, 2009, Plaintiff wrote Defendant Henderson and asked for paperwork for an
appeal. (Id.) Plaintiff did not receive a response. (Id.)
On September 28, 2009, Plaintiff was taken to Atlanta for a medical appointment
by Defendant Clyde. (Id.) He was not returned to Calhoun State Prison until 2:30 a.m.
on September 29, 2009, and had not been permitted to eat since 5:30 p.m. on
September 27, 2009. (See id.) Plaintiff wrote Defendants Tatum, Perdue, Baker, and
Owens, but did not receive a response. (Id. at 30.) On October 1, 2009, Plaintiff filed an
informal grievance but “[t]he camp defaulted.” (Id.)

Although Plaintiff named this Defendant as Defendant Talbert, Defendant Tarver responded. Judge
Langstaff found that Plaintiff intended to name Defendant Tarver, not Defendant Talbert. (See Doc. 117 at
14 n. 3.)

2

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Plaintiff was told by Defendant Tillman that he could not photograph his shoes.
(Id.) On October 4, 2009, Plaintiff wrote a letter to Defendant Tatum asking for the
ability to photograph his shoes, but did not receive a reply. (Id.) Plaintiff wrote another
letter on October 6, 2009, “to explain the reasons [Plaintiff] had made his request in his
prior letter [and] was shipped the following day.” (Id.) Plaintiff claims that these
actions by Defendant Tatum constituted retaliation. (Id.)
The Court construes the above-referenced allegations to assert (1) a claim against
Defendant Johnson for retaliation, (2) claims against Defendants Ammons and Allen for
denial of grievances, (3) a claim against Defendant Tarver for retaliation, (4) a claim
against Defendant Morales for fabricating log sheets, (5) a claim against Defendant
Henderson for failing to facilitate the grievance process, (6) a claim against Defendant
Clyde for failing to provide Plaintiff with food September 27-29, 2009, (7) claims against
Defendants Tatum, Perdue, Baker, and Owens for failure to respond to letters, (8)
Defendant Tillman for failure to permit Plaintiff to photograph his shoes, and (9) a
claim against Defendant Tatum for retaliation.
Judge Langstaff recommends dismissal of Plaintiff’s claims against Defendants
Ammons, Allen, Henderson, Tatum, Perdue, Baker, and Owens for failing to respond to
his letters and failing to facilitate the proper grievance process. (Doc. 117 at 4-5.) The
Court agrees and those claims are DISMISSED because they are not actionable.
Because no further claims remain against Defendants Ammons, Allen, Perdue, Baker,
and Owens, those Defendants are DISMISSED.
To the extent Plaintiff seeks to assert claims against Defendants Morales, Clyde,
and Tillman, those claims are DISMISSED. The allegations against those Defendants
do not state a claim because Plaintiff failed to allege that he was harmed. See Harris v.

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McKinnley, No. 5:06-CV-238, 2007 WL 114082 (M.D. Ga. Jan. 10, 2007) (finding that
isolated incidents of deprivation of food do not give rise to a § 1983 claim). Because no
other claims remain against Defendants Clyde, he is DISMISSED. The Court agrees
with Judge Langstaff’s recommendation that the retaliation claim against Defendants
Johnson, Tarver, and Tatum should be permitted to proceed. (Doc. 117 at 14.)
II.

Ground Two: Denial of Due Process
A. Denial of parole
Plaintiff claims the Georgia Department of Pardons and Parole “abandoned the

grid” and gave Plaintiff a parole date 32 months longer than the maximum that his score
required. (Id. at 31.)

Plaintiff claims that the Georgia Department of Corrections

prejudiced him by not housing him at a prison that offered the classes necessary for an
inmate to be granted parole. (Id.) Plaintiff argues that the Board violated his due
process rights when it did not grant him parole after he met the criteria. (Id. at 34.)
The Court agrees with Judge Langstaff that these claims are not actionable
because there is no cognizable right to parole. See Sultenfuss v. Snow, 35 F.3d 1494,
1501 (11th Cir. 1994) (finding that the Georgia parole system leaves Parole Board with
significant amount of discretion and therefore prisoners do not have a liberty interest in
parole). Accordingly, Plaintiff’s denial of parole claim is DISMISSED. Thus, the
Georgia Parole Board is DISMISSED.

Because Plaintiff has not alleged that

Defendants Buckner, Keller, Hammonds, Nix, and Hunt have engaged in any
wrongdoing, those Defendants are DISMISSED.
B. Withholding exhibits and case law
Plaintiff claims that his family mailed him cases and exhibits to assist him in
preparing for his habeas case that had to be filed by June 15, 2009. (Id.) Plaintiff was

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told that any envelope with more than 25 pages was required to “go through legal mail.”
(Id.) Plaintiff successfully received mail without incident January 21, 2009 and March
26, 2009. (Id. at 35.) On March 16, 2009, however, the mail staff at the prison where
Plaintiff was housed denied Plaintiff access to his mail. (Id.) Plaintiff claims that
Defendant Morales discovered the material and asked Defendant Edwards to review it.
(Id.) On April 18, 2009, Plaintiff met with Defendant Thompson to discuss his mail,
and was told about the investigation of the material. (Id.) On May 13, 2009, Plaintiff
filed an emergency grievance to gain access to the case law and exhibits, but it was
denied by Defendants Tillman and Cross. (Id. at 36.) On May 19, 2009, Plaintiff filed
another emergency grievance, and it was denied by Defendant Christian who asserted
that there was no emergency. (Id.)
On June 2, 2009, Plaintiff wrote Defendant Edwards regarding the mail. (Id.)
On June 3, 2009, Defendant Morales told Plaintiff that the case law was contraband and
Plaintiff could only get research materials from the law library. (Id. at 37.) Although
Defendant Morales told Plaintiff that they could speak about it more the following day,
that meeting did not take place. (Id.) On June 6, 2009, Plaintiff wrote Defendant
Morales another letter, but received no response. (Id.) On July 15, 2009, Plaintiff wrote
a letter to the new warden, Defendant Tatum, and Defendant Morales. (Id.) Defendant
Tatum responded on July 27, 2009, and agreed with Defendant Thompson’s policy.
(Id.) The appeal was denied by Defendant Sittnick on September 21, 2009. (Id.)
The Court construes the above allegations as intended assertions of (1) claims
against Defendants Morales and Edwards for wrongfully refusing to allow Plaintiff
access to his mail, (2) a claim against Defendant Thompson for failure to properly
address his grievance, (3) claims against Defendants Tillman and Cross for denying a

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grievance, (4) a claim against Defendant Christian for denial of a grievance, (5) a claim
against Defendants Morales and Edwards for failing to respond to letters, (6) a claim
against Defendant Tatum for wrongfully refusing to allow Plaintiff access to his mail,
and (7) a claim against Defendant Sittnick for denial of an appeal.
Plaintiff’s claims against Defendants Morales, Edwards, and Tatum amount to
claims of denial of access to the courts because the materials at issue were legal mail
allegedly intended to aid Plaintiff in a court proceeding. However, Plaintiff fails to state
a claim because he did not allege that he suffered an actual injury due to the actions of
those Defendants. See Cline v. Tolliver, 434 F. App’x 823, 824-25 (11th Cir. 2011)
(noting that access to the courts claims that do not allege actual injury fail to state a
claim). Accordingly, those claims are DISMISSED.
Also, Judge Langstaff recommends dismissal of Plaintiff’s above-referenced
claims against Defendants Thompson, Tillman, Cross, Christian, Morales, Edwards, and
Sittnick because claims related to the grievance process are not actionable. (Doc. 117 at
4-5.) The Court agrees and those claims are DISMISSED. Because no further claims
remain against Defendants Thompson, Morales, Cross, and Christian, those Defendants
are DISMISSED.
C. Holding mail, delaying mail
On April 29, 2009, Plaintiff left an envelope with Defendant Jackson to mail to
his mother. (Id. at 38-39.) After a few days, Plaintiff called his mother to see if she
received the package. (Id. at 39.) Plaintiff’s mother had not yet received the package,
and called the post office. (Id.) The post office told her that they had not received the
package from the prison. (Id.) On May 6, 2009, Plaintiff wrote a letter to the mailroom
to check on the status of the delivery. (Id.) On May 11, 2009, Mrs. Favors told Plaintiff

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that the package was sent earlier that morning. (Id.) On May 12, 2009, Plaintiff filed an
informal grievance requesting that mail personnel be trained properly. (Id.) Defendant
Hatcher denied the grievance. (Id.) On May 25, 2009, Plaintiff filed a formal grievance,
which was also denied. (Id.) Plaintiff’s appeal, which was filed on July 15, 2009, was
denied by Defendant Sittnick on September 21, 2009. (Id. at 40.)
The Court construes the above allegations to assert (1) a claim against Defendant
Jackson for failing to deliver legal mail, (2) Defendant Hatcher for denying a grievance,
and (3) Defendant Sittnick for denying an appeal. Plaintiff’s claims against Defendants
Hatcher and Sittnick fail to state a claim because claims related to the grievance process
are not actionable. Thus, those claims are DISMISSED. Because no other claims
remain against Defendant Hatcher, Defendant Hatcher is DISMISSED.

Because

Plaintiff has not alleged any actual injury, his claim regarding Defendant Jackson’s
interference with his legal mail is DISMISSED for failure to state a claim. See Cline,
434 F. App’x at 824-25. Because the Court has dismissed all claims against Defendant
Jackson, he is DISMISSED.
D. Inadequate access to inadequate law library
Plaintiff asserts that the policy of the prison only allows two hours of research per
week unless a court order dictates otherwise or if the research is to be conducted within
30 days of a hearing. (Id. at 41.) On August 24, 2009, Plaintiff wrote Defendant
Edwards requesting additional library time. (Id.) Plaintiff’s request was denied. (Id.)
Plaintiff alleges he lost library time because of a transfer to Coffee Correctional Facility,
time in segregation, and medical appointments. (Id. at 42.)
Further, Plaintiff alleges that there are no Shepherd citation resources,
typewriters, or copy services in the library.

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(Id.)

He claims that law books are

considered contraband and are confiscated if outside of the library. (Id.) Plaintiff
claims that he wrote letters to Defendants Tillman and Christian, but received no
response. (Id.) Plaintiff also wrote to Defendant Tatum, but received no response. (Id.
at 42-43.)
The Court construes the above allegations as intended to assert (1) a claim that
Plaintiff was denied proper access to the courts by being denied proper research
facilities, (2) a claim that Plaintiff was improperly transferred, and (3) claims against
Defendants Tillman, Christian, and Tatum for failure to respond to his letters. For
reasons discussed at length above and in Judge Langstaff’s Recommendation, those
claims are DISMISSED.

Because no further claims remain against Defendants

Tillman and Christian, those Defendants are DISMISSED.
III.

Conclusion
The Court agrees with Judge Langstaff’s recommendations regarding the

procedural posture of this case. Accordingly, the Court’s March 14, 2011 Order (Doc.
96) and June 2, 2011 Order (Doc. 99) are VACATED. Also, the Judgment entered on
April 26, 2012 (Doc. 106) is VACATED. All Motions to Dismiss entered prior to the
Eleventh Circuit’s remand (Docs. 35, 64, 93) are DENIED AS MOOT. Additionally,
the Court reviewed the additional complaints submitted by Plaintiff on January 29,
2013. (See Doc. 115.) The issues raised therein have been properly addressed and
dispensed of by the Court.
“[W]here a more carefully drafted pro se complaint might state a claim the
‘plaintiff must be given at least one chance to amend the complaint before the district
court dismisses the action with prejudice.’ ” See Bettencourt v. Owens, No. 11-15036,
2013 WL 5450978, *4 (11th Cir. Oct. 2, 2013) (citing Bank v. Pitt, 928 F.3d 1108, 1112

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(11th Cir. 1991)). The Eleventh Circuit “place[s] a heavy thumb on the scale in favor of”
giving pro se litigants the opportunity to amend. Id. The decision should be made in
light of “the purpose of pleading[, which] is to facilitate a proper decision on the merits.”
Id. (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991).
Based on the foregoing, the Court finds the following Defendants should be
DISMISSED WITH PREJUDICE:

Defendants Ammons (grievances), Perdue

(letters), Baker (letters), Thompson (grievances), Georgia Board of Parons and Paroles
(denial of parole), Buckner (denial of parole), Keller (denial of parole), Hammonds
(denial of parole), Nix (denial of parole), Hunt (denial of parole), Allen (grievances),
Nobles (visitation), Nelson (grievances), Cross (grievances), Christian (grievances),
Medical College of Georgia (inadequate medical care), Tim Jones (letters), Sittnick
(grievances), Saad (inadequate medical care), Hutto (letters), Counselor Brown
(grievances), Tillman (grievances), Clyde (denial of food), and Hatcher (grievances).
The Court dismisses these claims with prejudice because Plaintiff has not asserted any
facts that would suggest any conceivable possibility that amendment to his complaint
would result in the proper statement of a claim against those Defendants. The Court
finds the following Defendants should be DISMISSED WITHOUT PREJUDICE:
Defendants Owens (prison conditions), Donaldson (prison conditions), Morales (access
to courts, etc.), Ayers (inadequate medical care), and Jackson (access to courts).
The following claims remain: (1) Retaliation claim against Defendant Tatum, (2)
Denial of visitation claim against Defendant Keith Jones, (3) Deliberate indifference
claim against Defendant Smith, (4) Deliberate indifference claim against Defendant
Nurse Brown, (5) Deliberate indifference claim against Defendant Satterfield, (6) Denial
of visitation claim against Defendant Dedra Edwards, (7) Deliberate indifference claim

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against Defendant Henderson, (8) Retaliation claim against Defendant Johnson, and (9)
Retaliation claim against Defendant Tarver.
United States Magistrate Judge Thomas Q. Langstaff’s April 10, 2013 Order and
Recommendation (Doc. 117) is ACCEPTED, ADOPTED and made the Order of this
Court for reason of the findings made and reasons stated therein, together with the
reasons stated and conclusions reached herein.
SO ORDERED, this 16th day of December, 2013.

/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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