BIVINS v. DEREISBAIL et al
ORDER finding as moot 32 Motion for Hearing; finding as moot 33 Motion to Compel; finding as moot 34 Motion to Amend/Correct; finding as moot 43 Motion to Set Aside ; finding as moot 53 Motion to Compel; finding as moot 54 Motion to Amend/Correct; finding as moot 55 Motion to Compel; finding as moot 57 Motion to Compel; finding as moot 62 Motion to Compel; finding as moot 67 Motion to Compel; finding as moot 74 Motion for Summary Judgment; finding as moot 76 M otion to Amend/Correct; finding as moot 77 Motion to Amend/Correct; finding as moot 89 Motion to Compel; finding as moot 95 Motion to Strike ; finding as moot 96 Motion to Strike ; finding as moot 99 Motion for Leave to File Excess Pag es; granting 105 Motion for Summary Judgment; granting 106 Motion for Summary Judgment; finding as moot 108 Motion ; finding as moot 109 Motion ; finding as moot 110 Motion to Compel; finding as moot 111 Motion to Compel; finding as moot 114 Motion for Extension of Time to File Response/Reply re 149 REPORT AND RECOMMENDATION re 29 MOTION for Permanent InjunctionMOTION for Preliminary InjunctionMOTION to Amend/Correct 21 MOTION to Order Defendants to Provide Adequ ate Medical Care for PlaintiffMOTION To Dismiss re 17 MOTION to Order Defe ; finding as moot 116 Motion ; finding as moot 125 Motion for Discovery; finding as moot 141 Motion for Leave to Proceed in forma pauperis; finding as moot 146 Motion ; adopting Report and Recommendations re 149 Report and Recommendations.; finding as moot 16 Motion to Amend/Correct; finding as moot 17 Motion ; finding as moot 21 Motion ; finding as moot 23 Motion ; finding as moot 24 Mo tion ; finding as moot 29 Motion for Permanent Injunction; finding as moot 29 Motion for Preliminary Injunction; finding as moot 29 Motion to Amend/Correct; finding as moot 29 Motion. Plaintiff's Complaint is dismissed for failure to exhaust administrative remedies. Ordered by Judge W. Louis Sands on 9/23/2013 (bcl)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WILLIE SAM BIVINS,
Dr. DEREISBAIL, Sheriff SPROUL,
Col. OSTRANDER, Major HAGGERTY, :
Lt. PARKS, Nurse LYNN CRENSHAW, :
and Lt. LONTARGARD,
CASE NO.: 1:12-CV-138 (WLS)
Before the Court is a Report and Recommendation from United States Magistrate
Judge Stephen Hyles, filed September 3, 2013. (Doc. 149.) It is recommended that
Defendants’ Motions for Summary Judgment (Docs. 105, 106) be granted and Plaintiff’s
Complaint (Docs. 1, 4, 7, 10, and 42) dismissed for failure to exhaust administrative
remedies. It is also consequently recommended that Plaintiff’s Motion for Summary
Judgment (Doc. 74) be denied and that Plaintiff’s other miscellaneous motions (Docs.
16, 17, 21, 23, 24, 29, 32, 33, 34, 43, 53, 54, 55, 57, 62, 67, 77, 89, 99, 108, 109, 110, 111,
114, 116, 125, 141, 146) and Defendants’ two motions to strike (Docs. 95, 96) be denied as
Plaintiff timely filed an Objection to Judge Hyles’ Report and Recommendation
on September 16, 2013.
In his Objection, although Plaintiff provides
voluminous documents (over 300 pages) to support his objections, Plaintiff fails to
provide any evidence to show that he exhausted administrative remedies with regard to
the only claims properly before the Court—that Defendants were deliberately indifferent
in treating Plaintiff’s left hip/leg and eyes and that Defendants subjected Plaintiff to
cruel and unusual punishment through solitary confinement. Judge Hyles made clear
that he was recommending dismissal of Plaintiff’s Complaint because of Plaintiff’s
failure to fully avail himself of the two-step grievance procedure used by Dougherty
County Jail for the aforementioned claims. (See generally Doc. 149 at 6-9.) The
documents Plaintiff submitted along with his Objection do not negate this finding.
In an apparent attempt to avoid the consequences of his failure to exhaust,
Plaintiff alleges that “Defendants unlawfully w[ith] evil intent pre-meditated . . .
disposed, destroyed Plaintiff Grievance Forms during the month of July/2012 and
Aug./2012,” and this “no doubt hinder [sic] Plaintiff from demonstrating that he has
fully exhausted DCJ’s admin[istrative] remedies.” (Doc. 152 at 5.) This statement is,
however, conclusory and wholly without any accompanying evidence, and does not
provide a basis for avoiding summary judgment for failure to exhaust administrative
Plaintiff also contends that he was not of “sane mind at the time . . . of preparing
to file his claim in this hon[orable] court.” (Id. at 10.) To the extent this statement is
meant to excuse Plaintiff’s failure to exhaust, the Court finds this statement insufficient
to avoid summary judgment due to Plaintiff’s failure to present any evidence to
substantiate this assertion. Moreover, because Plaintiff continued filing grievances for
other issues around the time he failed to appeal the denial of Grievance Nos. 14866 and
12501—the grievances that concern the claims currently before the Court—the Court
does not find Plaintiff’s reference to his alleged mental state to provide grounds for
excusing his failure to exhaust.
Finally, Plaintiff also appears to argue that, in concluding that Plaintiff failed to
exhaust administrative remedies, Judge Hyles disregarded the Request Forms and
letters that Plaintiff provided in support of his claims. (Id. at 7.) The Dougherty County
Jail Inmate Handbook outlines the grievance procedure that inmates must follow to
pursue any grievances. (Doc. 105-7 at 4-5.) Specifically, the Handbook states that
inmates must “complete an inmate Grievance Form.”
(Id. at 4.)
Letters do not
constitute grievance forms. Inmate request forms are also not grievance forms and are
described in a separate section of the Inmate Handbook.
(Id. at 5.)
Handbook makes clear that the Inmate Request Form and Inmate Grievance Form are
separate and distinct documents, not to be confused. Plaintiff has not alleged that he
was confused about the process by which to appeal a grievance, and the record reflects
that Plaintiff availed himself to the appeal procedure for other unrelated grievances.
Accordingly, Plaintiff has failed to present evidence to demonstrate that he exhausted
Simply put, because neither the aforementioned allegations nor any of the other
allegations that can be loosely gleaned from Plaintiff’s lengthy objection provide any
basis for refuting Judge Hyles’ conclusion that Plaintiff failed to exhaust administrative
remedies related to his deliberate indifference (left hip/leg and eye) and cruel and
unusual punishment claims, Plaintiff’s objection to the dismissal of his Complaint is
Plaintiff also objects to Judge Hyles’ denial of his motions to appoint counsel. In
the Report and Recommendation, Judge Hyles correctly noted that there is no
automatic right to counsel and that Plaintiff failed to allege exceptional circumstances
justifying appointment of counsel under the factors enumerated in Holt v. Ford, 862
F.2d 850, 853 (11th Cir. 1989) (“In determining whether to appoint counsel, the district
court typically considers, among other factors, the merits of the plaintiff's claim and
whether the claim is factually or legally so complex as to warrant the assistance of
(Doc. 149 at 4.)
In his Objection, Plaintiff states that his “handicap
justif[ies] appointment of counsel,” in accordance with the Americans With Disabilities
Act (“ADA”). (Doc. 152 at 8.) This Court disagrees. Plaintiff has not brought an ADA
claim under the ADA1, and even if he did, not even an ADA plaintiff has an absolute
right to appointed counsel. See Donahue v. Food Lion Stores, Inc., 253 F. Supp. 2d
1319, 1321 (N.D. Ga. 2003) (“An ADA plaintiff has no absolute right to an appointed
counsel. Rather, the decision of whether to provide counsel lies solely within the
discretion of the court.”) Moreover, and most importantly, a review of the record
reflects that Plaintiff has vigorously litigated his case since its inception, a fact that
seriously belies Plaintiff’s claims of being physically or mentally hindered from pursuing
his claims. Accordingly, Plaintiff’s objection to Judge Hyles’ denial of his Motions to
Appoint Counsel is overruled.
Finally, the Court will not consider the allegations contained in Plaintiff’s
Objection relating to being 1) put on suicide watch and denied access to his legal
documents, showers, or food, in retaliation for filing this lawsuit and 2) denied a
mattress.2 (Doc. 152 at 2.) Judge Hyles denied Plaintiff’s attempts to amend his current
complaint to include the “suicide watch” retaliation and “mattress deprivation” claims
because they are unrelated to the deliberate indifference and cruel and unusual
In his Objection, Plaintiff also alleges discrimination in violation of the ADA. (Doc. 152 at 2.) A plaintiff
may not seek to amend a complaint to include a new cause of action via an objection to the Magistrate
Judge’s Report and Recommendation. As such, the Court will not consider any allegations of
discrimination under the ADA.
2 To be clear, though Plaintiff contends that the lack of mattress exacerbates his left hip/leg problems, the
deliberate indifference claim properly before the Court is that Plaintiff has been denied adequate medical
care for his left hip/leg. As such, contending that the lack of a mattress exacerbates the medical issues
does not make the mattress claim a “related” claim.
punishment claims in this action. (Doc. 149 at 2-3.) This Court concurs in this finding,
and likewise rejects Plaintiff’s attempt to include a retaliation claim related to the denial
of access to his legal documents, showers, and food, because this claim is also not
related to the claims in this action.
Therefore, upon full review and consideration upon the record, the Court finds
that said Report and Recommendation (Doc. 149) should be, and hereby 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. Accordingly, Defendants’ Motions for Summary Judgment (Docs. 105,
106) are GRANTED, Plaintiff’s Motion for Summary Judgment (Doc. 74) is DENIED
and his Complaint (Docs. 1, 4, 7, 10, and 42) is DISMISSED for failure to exhaust
administrative remedies. All other pending motions (Docs. 16, 17, 21, 23, 24, 29, 32, 33,
34, 43, 53, 54, 55, 57, 62, 67, 76, 77, 89, 95, 96, 99, 108, 109, 110, 111, 114, 116, 125, 141,
146, and 1513) are DENIED AS MOOT.
SO ORDERED, this 23rd day of September, 2013.
/s/ W. Louis Sands
THE HONORABLE W. LOUIS SANDS,
UNITED STATES DISTRICT COURT
Document 151, styled as a Motion to Compel Defendants to Give Plaintiff’s [sic] His Statioery [sic], Legal
Documents, E.T.C.” was filed after Judge Hyles issued his Report and Recommendation. A review of this
Motion reveals that it is part of Plaintiff’s complaint that he is being denied access to his legal documents
while in segregation. The Court has already concluded that such allegations are not properly before the
Court by virtue of their lack of relation to Plaintiff’s deliberate indifference and cruel and unusual
punishment claims. See supra pp. 4-5. Accordingly, the Court denies this motion as moot.
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