SMITH v. HUMPHREY et al

Filing 132

ORDER ADOPTING 118 Report and Recommendations; GRANTING in part and DENYING in part 38 Motion to Dismiss Complaint; GRANTING in part and DENYING in part 94 Motion to Dismiss. Ordered by Judge Marc Thomas Treadwell on 2/22/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LESTER J. SMITH,
Plaintiff,
v.
CARL HUMPHREY, et al.,
Defendants.

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CIVIL ACTION NO. 5:12-CV-15 (MTT)

ORDER
Before the Court is the Report and Recommendation of Magistrate Judge
Charles H. Weigle. (Doc. 118). The Magistrate Judge recommends granting in part
and denying in part the Defendants’ Motions to Dismiss (Docs. 38, 94).
Specifically, Judge Weigle recommends the Plaintiff’s claims against Defendants
in their official capacities, the Plaintiff’s claims related to his telephone deprivation, the
Plaintiff’s substantive due process claims, and the Plaintiff’s Eighth Amendment claims
related to his failure to receive dental and eye care be dismissed. However, the
Magistrate Judge also recommends the Plaintiff be allowed to proceed with his
procedural due process claims against Defendants Humphrey, Powell, Murphy, and
Foskey; retaliation claims against Defendants Humphrey, Powell, Goodman, and Mintz;
access to court claim regarding the obstruction of his legal mail against Defendants
Powell, Goodman, and Mintz; and Eighth Amendment claims against Defendants Dr.
Burnside and Gore regarding the failure to treat his hepatitis C. Both the Plaintiff and
the Defendants object to the Recommendation. (Docs. 121, 122).

The Plaintiff objects to the recommended dismissal of his substantive due
process claim, arguing it should be construed as a “conditions of confinement” claim.
This objection is without merit. As the Magistrate Judge observed, the Plaintiff cannot
rely on the generalized notion of “substantive due process” because the Eighth
Amendment provides an explicit right to relief from cruel and unusual punishment
imposed by prison conditions. See Rhodes v. Chapman, 452 U.S. 337, 346 (1981).
Therefore, he would have to plead facts alleging the “condition of his confinement poses
an unreasonable risk of serious damage to his future health or safety.” Chandler v.
Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). He did not do so. Further, the Court
declines to construe a condition of confinement claim using the Plaintiff’s denial of
medical care allegations, as he suggests, because those facts more appropriately
support his deliberate indifference claim, which is being allowed to proceed. Therefore,
the Magistrate Judge is correct in recommending the Plaintiff’s substantive due process
claims be DISMISSED.
The Defendants object to the recommendation that the Plaintiff’s procedural due
process claim be allowed to go forward, arguing the Plaintiff has not stated sufficient
factual allegations to support his claim and, even if he had, that the Defendants are
entitled to qualified immunity. This objection is not unreasonable. To state a liberty
interest that is protected by procedural due process, the Plaintiff must allege that he
experienced hardships while confined in the SMU that were a significant and atypical
departure from general prison conditions. See Sandin v. Conner, 515 U.S. 472, 484
(1995). He did not do so. But the Magistrate Judge recommends this claim proceed
because pending before this Court are other plaintiffs’ due process challenges that

allege facts regarding the same area of the same prison where the Plaintiff was
confined, and which this Court has found sufficient to survive motions to dismiss. See,
e.g., Turner v. Upton, 5:10-cv-502 (MTT). Admittedly, to presume this Plaintiff was
subject to the same policies and conditions as these other plaintiffs is appealing from a
common-sense perspective. But without more facts that specifically relate to this
Plaintiff, it’s not a presumption this Court can make. As the Defendants argue, the
Plaintiff cannot rely on facts alleged in “other lawsuits filed by other inmates,” and to
allow him to do so would be to cure “his deficient pleading … by judicial rewriting.”
(Doc. 122 at 6, 11).
Further, the Court is not persuaded the Plaintiff could cure his deficiency in this
area if he was given a chance to amend the Complaint. Since objecting to the
Recommendation, the Plaintiff has filed at least two additional responses that purport to
address his due process claims. (Docs. 125, 128). Yet neither filing offers factual
allegations that could be construed to state a liberty interest, and the Plaintiff will not be
offered an additional opportunity to delay the inevitable dismissal of this claim.
Accordingly, the Court rejects the Magistrate Judge’s recommendation that the
Plaintiff’s procedural due process claim be allowed to proceed. As to this claim, the
Defendants’ motions to dismiss are GRANTED. No objections to the remaining portions
of the Report and Recommendation were filed. After reviewing those portions of the
Recommendation, they are adopted and made the ORDER of this Court.
In sum, the Plaintiff’s claims against Defendants in their official capacities, the
Plaintiff’s claims related to his telephone deprivation, the Plaintiff’s substantive due
process claims, and the Plaintiff’s Eighth Amendment claims related to his failure to

receive dental and eye care are DISMISSED. Further, despite the Magistrate Judge’s
recommendation, the Plaintiff’s procedural due process claim is also DISMISSED.
The Plaintiff’s retaliation claims against Defendants Humphrey, Powell,
Goodman, and Mintz, his access to court claim regarding the obstruction of his legal
mail against Defendants Powell, Goodman, and Mintz, and his Eighth Amendment
claims against Defendants Dr. Burnside and Gore regarding the failure to treat his
hepatitis C will all go forward. As to those claims, the Defendants’ motions to dismiss
are DENIED.
SO ORDERED, this 22nd day of February, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT