Curney v. Blakely et al
Filing
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ORDER adopting 33 Report and Recommendations and granting 24 Motion to Dismiss. Ordered by Judge C. Ashley Royal on 6/11/12 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DARIUS J. CURNEY,
:
:
Plaintiff,
:
Civil Action No. 5:11‐cv‐239
:
v.
:
PROCEEDINGS UNDER
:
42 U.S.C. § 1983
DAN BLAKELY and SPENCER
:
ALSTON,
:
:
:
Defendants.
___________________________________
ORDER ON UNITED STATES MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION
Before the Court is the United States Magistrate Judge’s Order and
Recommendation [Doc. 33] to grant Defendants’ Motion to Dismiss [Doc. 24] and
dismiss Plaintiff’s case. Plaintiff has filed an Objection [Doc. 34] to the
Recommendation. Having considered Plaintiff’s objections and having investigated
those matters de novo, this Court agrees that Defendants’ Motion should be granted.
Specifically, this Court agrees that Plaintiff’s claims for compensatory damages against
Defendants in their official capacity must be dismissed with prejudice because they are
barred under the Eleventh Amendment, and Plaintiff’s claims against Defendants in
their individual capacity must be dismissed without prejudice for Plaintiff’s failure to
exhaust administrative remedies. Thus, the Recommendation that Plaintiff’s claims be
dismissed for those reasons is HEREBY ADOPTED AND MADE THE ORDER OF
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THE COURT.1
Plaintiff’s claims in this case stem from a physical attack made by certain Muslim
inmates while Plaintiff was incarcerated at Macon State Prison (“MSP”). After a 28
U.S.C. § 1915(e)(2) frivolity review, the Court narrowed Plaintiff’s claims to those
currently under review against Defendants for their alleged failure to protect Plaintiff
from these attacks.
Plaintiff brings claims against Defendants in both their official and individual
capacities. Plaintiff does not object to the Recommendation to dismiss the claims
against Defendants in their official capacity. This Court agrees with the reasoning and
conclusion of the Magistrate Judge that these claims must be dismissed as barred by the
Eleventh Amendment.
Plaintiff, however, does object to the Recommendation that his claims should be
This Court does not agree with the Recommendation to dismiss Plaintiff’s claims against Defendants in
their individual capacities based on Defendants’ qualified immunity; therefore the Court declines to
adopt that portion of the Recommendation. Accepting Plaintiff’s facts as true, as this Court must at this
stage of the proceeding, the Court finds Plaintiff sufficiently states facts to show that Defendants’ conduct
(or lack thereof) violated Plaintiff’s clearly established right to be protected from Defendants’ deliberate
indifference to a known, substantial risk of serious harm from other prisoners. Plaintiff alleges that
Defendants were aware of a substantial risk of serious harm, and, accepting Plaintiff’s allegations as true,
this Court cannot find at this early stage of the proceeding that Defendants responded reasonably to the
known risk. Moreover, this Court cannot accept the reasoning that Plaintiff’s failure “to identify any
specific attacker . . . could not have put [Defendant] Blakely on notice of the source of any potential
threat, much less the identity of those who might attack Plaintiff.” [Doc. 33, p. 8]. See Rodriguez v.
Secretary for the Dep. of Corrections, 508 F.3d 611, 617, 619‐20 (11th Cir. 2007) (finding that “gang‐related
threats made on plaintiff’s life, which were explicitly reported to prison officials, present a substantial
enough risk of harm to trigger a prison official’s duty to act,” and specifically rejecting defendant’s
“challenges to the sufficiency of [plaintiff’s] declaration on the ground that it does not furnish any
specifics as to who was posing the alleged threats.”)
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dismissed for failure to exhaust his administrative remedies. Despite Plaintiff’s
contention otherwise, the uncontroverted evidence on Plaintiff’s grievance history
establishes that Plaintiff has not exhausted his administrative remedies. The affidavit
testimony filed in support of Defendants’ motion to dismiss establishes both the
presence of a grievance system at MSP and that Plaintiff filed numerous grievances
while housed there. Defendants also provided the Court with copies of the grievances
filed by Plaintiff.
Plaintiff filed two grievances related to the alleged events giving rise to this
action. On March 23, 2011, Plaintiff filed informal grievance GR 82243 alleging that on
March 22, 2011, he was assaulted and stabbed 23 times in the neck, back, and arm and
that Defendant Alston failed to protect him, that he went to the hospital, and upon his
return, his personal property was missing, and he was placed in the shower for 7 hours.
That grievance was rejected because Plaintiff grieved too many issues.
Thus, on March 31, 2011, Plaintiff filed informal grievance number GR 84261
alleging that on March 23, 2011, he was stabbed 23 times and that Defendant Alston
failed to protect him. Plaintiff’s informal grievance was not resolved, so on April 15,
2011, Plaintiff filed a formal grievance regarding this claim. After investigation and
review, the warden’s office denied the formal grievance. On May 18, 2011, Plaintiff
appealed to the Commissioner’s Office. On July 19, 2011, approximately one month
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after Plaintiff initiated this lawsuit, the Commissioner timely denied Plaintiff’s appeal,
and, at that time, Plaintiff exhausted grievance number GR 84261.
Complete administrative exhaustion is a precondition to filing a lawsuit.
Woodford v. Ngo, 548 U.S. 81, 88 (2006). To remedy a prison complaint, Plaintiff must
complete the three step grievance process consisting of an informal grievance, a formal
grievance, and an appeal. Administrative remedies must be exhausted at the time the
legal action is brought. Goebert v. Lee County, 510 F.3d 1312, 1324 (11th Cir. 2007).
Plaintiff was administratively required to wait until a decision had been made
regarding his grievance before filing this lawsuit. See Williams v. Dansforth, 2011
WL5836992, *3 (M.D. Ga., Nov. 14, 2011); Sewell v. Ramsey, 2007 WL 201269, *4 (S.D.
Ga., Jan. 24, 2007) (holding that if a “plaintiff is still awaiting a response from the
warden regarding his grievance, he remains in the process of exhausting his
administrative remedies.”).
Plaintiff filed this lawsuit on June 20, 2011, which was one month prior to
complete exhaustion. To comply with the procedures in place, Plaintiff was required to
wait to file this lawsuit until a decision on his appeal was made or the 90 days in which
the Commissioner had to respond expired. See Bryant v. Duffey, 2011 WL6699800, *3
(M.D. Ga., Nov. 16, 2011); Sewell, 2007 WL 201269, *4; Callaway v. McRae, 2008 WL
3200728 (M.D. Ga., Aug. 5, 2008). Plaintiff did not wait until he received the timely
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response from the Commissioner before filing this lawsuit. Thus, at the time Plaintiff
filed this action, he had not exhausted the administrative remedies available to him.
See Goebert, 510 F.3d at 1324; McDaniel v. Crosby, 194 Fed. Appx. 610, 613 (11th Cir.
2006) (a plaintiff cannot rely on grievances exhausted after filing his initial complaint
because exhaustion is a precondition to filing a lawsuit).
Despite his contention that he has, in fact, exhausted all administrative remedies,
Plaintiff provides no credible evidence to contradict the evidence provided by
Defendants showing Plaintiff failed to fully exhaust his administrative remedies prior to
filing this action. Defendants have conclusively established that Plaintiff has not
properly exhausted the administrative remedies available for the claims at issue in this
case. Thus, Plaintiff’s claims must be DISMISSED.
SO ORDERED, this 11th day of June, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
SSH
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