MATTHEWS v. BUSH et al
ORDER ADOPTING in part 5 Report and Recommendations. The findings and conclusions in the Order and Recommendation are hereby INCORPORATED and MADE THE ORDER OF THE COURT with the exception of the Magistrate Judge's recommendation to dismiss D efendant Bush without prejudice. Accordingly, Plaintiff's claims against Defendants Barrow and Chutkin are DISMISSED without prejudice. To the extent Plaintiff's Complaint alleges a claim for monetary damages against any individually-name d Defendant in his official capacity, that claim is also DISMISSED. Plaintiffs Objection [Doc. 8] is CONSTRUED, in part, as a Motion to Amend the Complaint, which is GRANTED in part and DENIED in part. If Plaintiff intends to pursue his claims agai nst Defendant Bush, he must file an Amended Complaint as directed within FOURTEEN (14) DAYS after being served with a copy of this Order. If Plaintiff fails to respond to this Order in a timely manner, the Court will dismiss Plaintiffs claims against Defendant Bush without prejudice. There will be no service of process until further order from the Court. Ordered by U.S. District Judge C ASHLEY ROYAL on 5/6/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MARK WEYMAN MATTHEWS,
Nurse Practitioner LISA BUSH, et al.,
Case No. 5:13‐cv‐327‐CAR‐MSH
ORDER ON RECOMMENDATION
Before the Court is the United States Magistrate Judge’s Order and
Recommendation [Doc. 5] to dismiss Defendants Bush, Chutkin, and Barrow from the
above‐captioned case. Plaintiff Mark Weyman Matthews filed a timely Objection to the
Recommendation. Having considered Plaintiff’s objections and investigated these
matters de novo, the Recommendation [Doc. 5] is hereby ADOPTED IN PART in light
of Plaintiff’s new factual allegations against Defendant Bush. Each of Plaintiff’s
objections is addressed below.
In his Objection, Plaintiff reasserts his deliberate indifference claim against
Defendant Barrow based on Barrow’s denial of Plaintiff’s grievance and failure to take
appropriate action thereafter. The Magistrate Judge recommended that Plaintiff’s
claims against Barrow be dismissed without prejudice because Plaintiff failed to allege
that Barrow “personally participated in the alleged constitutional violation or that there
is a causal connection between the actions of the supervising official and the alleged
constitutional deprivation.”1 The Court agrees. As stated in the Order and
Recommendation, the mere fact that a prison official denies a grievance or otherwise
fails to investigate a prisoner’s allegations is not enough to establish “personal
involvement” in the alleged constitutional violation.2 Thus, Plaintiff’s first objection is
Monetary damages against Defendants in their official capacities
Plaintiff also contends the Magistrate Judge erred in concluding that he intended
to pursue monetary damages against Defendants in their official capacities. The Order
and Recommendation states, “to the extent that Plaintiff has attempted to state claims
for monetary damages against any individually named defendant in his ‘official
capacity,’ it is RECOMMENDED that these claims be DISMISSED.”3 Now, Plaintiff
asserts that he only intended to state claims for monetary damages against Defendants
in their individual capacities and claims for injunctive relief against Defendants in their
official capacities. Plaintiff did not make this distinction in his Complaint. Regardless,
the Order and Recommendation did not recommend dismissal of his intended claims.
1 H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086‐87 (11th Cir. 1986).
2 See Larson v. Meek, 240 F. App’x 777, 780 (10th Cir. 2007); Wright v. City of Ozark, 715 F.2d 1513,
1516 (11th Cir. 1983) (“the failure to investigate an accident/incident, without more, does not
violate any constitutional rights”).
3 [Doc. 5, p. 5]
Thus, Plaintiff’s objection is moot.
Next, Plaintiff objects to the dismissal of his claims against Defendant Bush as
time‐barred. In the Order and Recommendation, the Magistrate Judge found that
Plaintiff’s claims accrued in January 2011, when Bush last treated Plaintiff during a
follow‐up evaluation. In his Objection, Plaintiff alleges for the first time that he then
sent “numerous medical requests” to medical staff, including Bush, “over a period of
months” in 2011.
In Newsome v. Chatham County Detention Center, the Eleventh Circuit held that a
district court must treat new factual allegations in an objection to a magistrate judge’s
recommendation as a motion to amend the complaint to include additional allegations.4
If the underlying facts or circumstances relied on by the plaintiff may be a proper
subject of relief, leave to amend “should be freely given.”5 However, “a district court
may properly deny leave to amend under Rule 15(a) is such amendment ‘would be
The Court construes Plaintiff’s Objection, in part, as a Motion to Amend the
Complaint, and GRANTS his request. Reading Plaintiff’s allegations liberally, Bush’s
failure to respond to Plaintiff’s repeated medical requests could constitute a continuing
4 256 Fed. Appx. 342, 344‐45 (11th Cir. 2007).
5 Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004); see also Fed. R. Civ. P. 15(a)(2).
6 Stringer v. Jackson, 392 Fed. Appx. 759, 760 (11th Cir. 2010) (quoting Hall, 367 F.3d at 1262‐63).
tort, which, in turn, would extend the statute of limitations in this case.7 If Plaintiff
wishes to pursue this argument, however, he must file an Amended Complaint
containing the specific dates he sent medical requests to Defendant Bush. Plaintiff
must file his Amended Complaint within FOURTEEN (14) DAYS after being served
with a copy of this Order or his claims against Defendant Bush will be dismissed
Plaintiff also objects to the dismissal of his claims against Defendant Chutkin as
time‐barred. Based on the Complaint, the Magistrate Judge found that Chutkin refused
to provide Plaintiff with necessary surgery in December of 2010. However, Plaintiff did
not file the instant action until September 4, 2013. Accordingly, the Magistrate Judge
concluded that Plaintiff’s claims against Chutkin were barred by the two year statute of
limitations in Georgia.8 Now, Plaintiff asserts that he filed grievances against Chutkin
in February and March of 2012, extending the statute of limitations to 2014.
In light of these new allegations, the Court construes this portion of the Objection
as a Motion to Amend the Complaint, but DENIES Plaintiff’s request as futile. The
Court acknowledges that a grievance, if properly filed, tolls the statute of limitations for
a § 1983 claim while a prisoner exhausts his administrative remedies.9 However,
7 Baker v. Sanford, 484 F. App’x 291 (11th Cir. 2012).
8 See Owens v. Okure, 488 U.S 235, 236 (1989); O.C.G.A. § 9‐3‐33 (1982).
9 See Leal v. Ga. Dep’t of Corr., 254 F.3d 1276 (11th Cir. 2001).
Plaintiff’s grievances—filed more than one year after his diagnosis—were grossly
belated. Plaintiff offers no explanation for his lengthy delay in pursuing his
administrative remedies against Chutkin. Thus, it “appear[s] beyond a doubt” that
Plaintiff “can prove no set of facts which would avoid a statute of limitations bar.”10
Therefore, Plaintiff’s objection is overruled.
Statement of Fact
Finally, Plaintiff objects to the fact that the Magistrate Judge only references his
diagnosis with spondylolisthesis but not spondylolysis. This is not relevant to the
findings in the Order and Recommendation. Thus, this objection is moot.
Based on the foregoing, the Order and Recommendation [Doc. 5] is ADOPTED
in part. The findings and conclusions in the Order and Recommendation are hereby
INCORPORATED and MADE THE ORDER OF THE COURT with the exception of
the Magistrate Judge’s recommendation to dismiss Defendant Bush without prejudice.
Accordingly, Plaintiff’s claims against Defendants Barrow and Chutkin are
DISMISSED without prejudice. To the extent Plaintiff’s Complaint alleges a claim for
monetary damages against any individually‐named Defendant in his official capacity,
that claim is also DISMISSED.
Finally, Plaintiff’s Objection [Doc. 8] is CONSTRUED, in part, as a Motion to
10 Id. at 1280.
Amend the Complaint, which is GRANTED in part and DENIED in part. If Plaintiff
intends to pursue his claims against Defendant Bush, he must file an Amended
Complaint as directed within FOURTEEN (14) DAYS after being served with a copy of
this Order. If Plaintiff fails to respond to this Order in a timely manner, the Court will
dismiss Plaintiff’s claims against Defendant Bush without prejudice. There will be no
service of process until further order from the Court.
SO ORDERED, this 6th day of May, 2014.
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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