Ferguson v. Macomson et al

Filing 45

ORDER granting 40 Motion to Dismiss. Ordered by Judge Hugh Lawson on 10/8/2010. (nbp)

Ferguson v. Macomson

Doc. 45

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF GEORGIA M A C O N DIVISION R A M O N FERGUSON, : : P la in t if f , : : v. : : E D W A R D H. BURNSIDE, et al., : : D e fe n d a n ts . : _______________________________ :

C iv il Action No. 5 :0 8 -c v -3 8 1 (HL)

ORDER B e fo re the Court is Defendant Dr. Samuel Macomson's ("Macomson") Motion to Dismiss (Doc. 40). For the following reasons, the motion is granted. I. A L L E G A T IO N S IN THE COMPLAINT AND PROCEDURAL BACKGROUND A. P r o c e d u ra l Background

P ro se Plaintiff, Ramon Ferguson ("Ferguson") filed a second amended c o m p la in t on July 29, 2008, alleging Defendant Dr. Edward Burnside ("Burnside") a n d Macomson violated his federal constitutional rights and state law.1 He sought d e c la ra to ry relief and damages under 42 U.S.C. § 1983 and Georgia tort law. O n January 9, 2009, Burnside filed a motion to dismiss Ferguson's complaint (D o c . 19). Macomson did not join Burnside's motion to dismiss. On July 28, 2009, th e magistrate judge recommended that Burnside's motion to dismiss be granted b e c a u s e Ferguson failed to show he exhausted his administrative remedies (Doc.

The magistrate judge ordered that Ferguson's second amended complaint was to supersede Ferguson's previous complaints (Doc. 9).

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31). This Court later adopted the magistrate judge's recommendation and dismissed F e rg u s o n 's complaint against Burnside (Doc. 36). O n March 11, 2010, Macomson filed a motion to avoid default and to file an o u t of time motion to dismiss (Doc. 37). Ferguson did not respond. The Court g ra n te d Macomson leave to file an out of time motion to dismiss and directed the c le rk 's office not to enter default against Macomson (Doc. 39). M a c o m s o n subsequently filed a motion to dismiss (Doc. 40). The motion is n o w ripe for ruling. B. A lle g a tio n s Against Macomson in the Complaint

F e rg u s o n asserts in his complaint he suffered a spine injury during a b a s k e tb a ll game while he was incarcerated at Wilcox State Prison. (Doc. 10, Compl. ¶ 8). After noninvasive treatments failed, the complaint alleges that Ferguson re c e iv e d back surgery attended by Macomson to remove two herniated discs from F e rg u s o n 's spine. (Id. ¶ 11). Ferguson asserts that Macomson, instead of removing th e discs, left the discs in place and merely shaved the discs.(Id. ¶ ¶ 15-16). The s h a v in g , according to Ferguson, most probably caused a nick to his spinal cord. (Id. ¶ 16). Ferguson states he would not have consented to the shaving of his discs if th e option had been presented to him. (Id. ¶ 16). Ferguson alleges that Macomson o ffe re d to perform a second surgery on Ferguson's back, but Ferguson declined. (Id. ¶ 18). He further alleges that he was denied pain medication because he refused a n o th e r surgery to be performed by Macomson. (Id. ¶ 19). Ferguson asserts he was 2

denied the same treatment given to similarly situated white inmates. (Id. ¶ 22). F e rg u s o n believes Macomson's actions constitute violations of the Eighth A m e n d m e n t, Equal Protection Clause, and state law (Id. ¶ 5). He states in his c o m p la in t that he has exhausted his administrative remedies. (Id. ¶ 6). II. D IS C U S S IO N A. M o tio n to Dismiss Legal Standard for Failure to Exhaust A d m in is tr a tiv e Remedies

T h e Prison Litigation Reform Act of 1995 ("PLRA") mandates that before an in c a rc e ra te d plaintiff can bring any action under § 1983, he must exhaust all of the a d m in is tra tiv e remedies available to him. 42 U.S.C. § 1997e(a). The Eleventh Circuit h a s also made it clear that exhaustion of available administrative remedies is a p re c u rs o r to a prisoner's filing a civil rights action, even when the administrative p ro c e d u re s set forth by the prison are futile or inadequate. Alexander v. Hawk, 159 F .3 d 1321, 1326 (11th Cir.1998). "A defense for failure to properly exhaust administrative remedies under the P L R A is treated like a defense for lack of jurisdiction." Turner v. Burnside, 541 F.3d 1 0 7 7 , 1082 (11th Cir. 2008). The court engages a two-step process when

d e te rm in in g if a complaint should be dismissed for failure to exhaust administrative re m e d ie s . Id. "First, the court looks to the factual allegations in the defendant's m o tio n to dismiss and those in the plaintiff's response, and if they conflict, takes the p la in tiff's version of the facts as true. If, in that light, the defendant is entitled to have

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the complaint dismissed for failure to exhaust administrative remedies, it must be d is m is s e d ." Id. (citations omitted). "If the complaint is not subject to dismissal at the firs t step, where the plaintiff's allegations are assumed to be true, the court then p ro c e e d s to make specific findings in order to resolve the disputed factual issues re la te d to exhaustion." Id. The defendants bear the burden of proving that the a d m in is tra tiv e remedies have not been exhausted. Id. "Once the court makes fin d in g s on the disputed issues of fact, it then decides whether under those findings th e prisoner has exhausted his available administrative remedies." Id. at 1083. B. W h e th e r Ferguson Exhausted His Administrative Remedies

M a c o m s o n included as part of his motion to dismiss the affidavit of Richard G ra b le ("Grable"), Chief Counselor and Grievance Coordinator at Men's State P ris o n . (Doc. 19-4, Ex. 2-A, ¶ 3). Grable averred that Ferguson did not exhaust the a v a ila b le grievance procedures because Ferguson filed an untimely grievance c o m p la in in g about his back surgery. (Id. ¶ 16). Ferguson also did not file any g rie v a n c e complaining that he was refused pain medication or treated differently fro m white inmates. (Id. ¶ 17). Grable further averred that inmates receive written re c e ip ts from their counselors when they file informal grievances. (Id. ¶ 8). Ferguson alleged in his response briefs that he "has responded to satisfy all th e State Administration Remedies as were available in the interest of justice." He e x p la in e d that his "remedies [were] withheld to complete, because the filing p a p e rw o rk was not returned on a timely basis." In his surreply brief Ferguson wrote 4

that he "has signed documents signed by the Chief Counselor Richard Grable, of the re q u ire d grievances sent from his office which would contradict [Grable's] s ta te m e n ts ." In the alternative, he wrote that "he has exhausted all the remedies as p o s s ib le , there was never a reply from the state [sic]." The Court takes Ferguson's allegations as true. Because Ferguson's and M a c o m s o n 's versions of the events conflict, the Court will not dismiss Ferguson's c o m p la in t at the first step of the two-step process. The Court will make specific fin d in g s of fact as part of the second step. Macomson has met his burden of establishing that Ferguson has not e x h a u s te d his available administrative remedies. Although Ferguson claims that he h a s documents signed by Grable that contradict Grable's affidavit, Ferguson failed to present to the Court any of the documents. Ferguson does not argue that the p ris o n 's policy of providing receipts to inmates for informal grievances was not p ro p e rly applied to him. As a result, the Court concludes that Ferguson received a receipt each time he filed a grievance. The problem is that Ferguson has not p ro v id e d to the Court his receipts or any paperwork returned to him by prison o ffic ia ls to support his assertion that his paperwork was not returned on a timely b a s is . Ferguson has also presented no evidence rebutting the assertion that his

g rie v a n c e complaining about his back surgery was untimely. Finally, in the absence o f receipts or other paperwork, Ferguson cannot rebut Grable's averment that F e rg u s o n did not file any grievances complaining of race discrimination or lack of 5

medication. F e rg u s o n 's self-serving and conclusory statements do not overcome the e v id e n c e presented by Macomson. The Court is the factfinder. The Court

c o n c lu d e s that Ferguson failed to exhaust his administrative remedies because his b a c k surgery grievance was untimely and he did not file a grievance alleging that he w a s refused pain medication or treated differently because of his race. Because he fa ile d to exhaust his available administrative remedies, Ferguson's complaint must b e dismissed. III. C O N C L U S IO N F o r the explained reasons, Ferguson's complaint against Macomson is d is m is s e d . SO ORDERED, this the 8 th day of October, 2010.

s / Hugh Lawson HUGH LAWSON, SENIOR JUDGE lm c

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