RODRIGUEZ v. CHATMAN et al

Filing 183

ORDER ADOPTING as modified 134 Report and Recommendations; DENYING 96 Motion for Reconsideration; GRANTING in part and DENYING in part 115 Motion for Leave to File; GRANTING in part and DENYING in part [11 7] Motion to Strike; DENYING 120 Motion to Dismiss Complaint; DENYING 127 Motion for Reconsideration; GRANTING in part and DENYING in part 133 Amended Motion; and GRANTING 160 Motion to Dismiss. The Plaintiff may proceed with his Eighth Ame ndment excessive force claim against Defendant Clupper; his First Amendment retaliation claims against Defendants Clupper, Kyles, Powell, and Logan; and his Fourteenth Amendment Due Process claims against Defendants Bishop, Chatman, Humphrey, Logan, McMillian, and Powell. The Plaintiffs recovery for his Due Process claims and his First Amendment retaliation claims is limited to nominal damages. The Plaintiffs Eighth Amendment medical care claims against Defendants Kyles and Gore are DISMISSED without prejudice for failure to exhaust. The Plaintiffs Eighth Amendment denial of recreation claims are also DISMISSED without prejudice for failure to exhaust. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/6/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

HJALMAR RODRIGUEZ,
Plaintiff,
v.
Warden BRUCE CHATMAN, et al.,

Defendants.

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CIVIL ACTION NO. 5:15-CV-2(MTT)

ORDER
The Plaintiff has moved for leave to amend his complaint, moved for
reconsideration of two of the Magistrate Judge’s orders, and moved to dismiss his own
claims relating to a 2016 shoulder incident separate from the other incidents underlying
this suit. Docs. 96; 115; 127; 133; 160. The Defendants have moved to strike or, in the
alternative, dismiss the Plaintiff’s complaint on various grounds. Doc. 117. Defendant
Burnside has separately moved to dismiss for failure to exhaust. Doc. 120. The
Magistrate Judge recommends granting in part and denying in part the Defendants’
motion to strike and the Plaintiff’s motions to amend. Doc. 134. Specifically, the
Magistrate Judge recommends dismissing the following claims for failure to exhaust
administrative remedies: (1) First Amendment Retaliation claims against Defendants
Clupper, Kyles, Logan, and Powell; (2) Eighth Amendment medical care claims against
Defendants Gore and Kyles; (3) Eighth Amendment conditions of confinement claims
against Defendants Bishop, Chatman, Logan, and Powell; and (4) Eighth Amendment
deliberate indifference claims against Defendant Burnside. The Magistrate Judge

recommends allowing the Plaintiff’s Eighth Amendment claims against Defendant
Clupper and Fourteenth Amendment Due Process claims against Defendants Bishop,
Chatman, Humphrey, Logan, McMillian, and Powell to proceed. But the Magistrate
Judge recommends limiting the Plaintiff’s recovery on his Due Process claims to
nominal damages because the Plaintiff has failed to allege a more than de minimis
injury as required by the Prison Litigation Reform Act. Finally, the Magistrate Judge
recommends granting in part the Plaintiff’s motions for leave to file an amended
complaint (Docs. 115; 133) to allow the Plaintiff to add allegations regarding violation of
his rights under the Fourteenth Amendment Due Process Clause, but he recommends
denying the Plaintiff’s other requested amendments. Separately, the Plaintiff has
moved for reconsideration of the Magistrate Judge’s order denying him an extension of
time to respond to a previous order of the Court, and he has also moved for
reconsideration of the Magistrate Judge’s order granting Defendant Burnside’s motion
to vacate an entry of default against Defendant Burnside. Docs. 96; 127.
The Plaintiff objected to the Recommendation, but he does not oppose
dismissing his claim for deliberate indifference to medical needs against Defendant
Kyles. Doc. 141 at 7. The Defendants did not object. Pursuant to 28 U.S.C. §
636(b)(1), the Court has considered the Plaintiff’s objection and made a de novo
determination of the portions of the Recommendation to which he objects.
As discussed below, the Recommendation is ADOPTED as modified.
Defendant Burnside’s motion to dismiss for failure to exhaust (Doc. 120) is DENIED.
The Defendants’ motion to strike (Doc. 117) and the Plaintiff’s motions to amend (Docs.
115; 133) are each DENIED IN PART and GRANTED IN PART, so that the Plaintiff

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may proceed with the following claims: his Eighth Amendment excessive force claim
against Defendant Clupper; his Eighth Amendment deliberate indifference to medical
needs claim against Defendant Burnside; his First Amendment retaliation claims against
Defendants Clupper, Kyles, Powell, and Logan; and his Fourteenth Amendment Due
Process claims against Defendants Bishop, Chatman, Humphrey, Logan, McMillian,
and Powell. The Defendants’ motion to limit the Plaintiff’s recovery to nominal damages
is DENIED. However, the Plaintiff’s Eighth Amendment medical care claims against
Defendants Kyles and Gore and the Plaintiff’s Eighth Amendment denial of recreation
claims are DISMISSED for failure to exhaust. Further, the Plaintiff’s motion to dismiss
his claims related to his alleged 2016 shoulder injury (Doc. 160) is GRANTED, and the
Plaintiff’s motions for reconsideration (Docs. 96; 127) are DENIED.
I. BACKGROUND
This case arises from the Plaintiff’s claims that his First Amendment, Eighth
Amendment, and Fourteenth Amendment rights have been violated in multiple ways
during his confinement. See generally Doc. 133-1. The case is one of eleven that has
been filed by inmates in Tier III of the Special Management Unit of Georgia Diagnostic
and Classification Prison in Jackson, Georgia. See, e.g., Doc. 147 at 1. Because
“[e]ach case presents similar claims and fact patterns alleging constitutional violations of
Eighth and Fourteenth Amendment rights,” the Magistrate Judge has consolidated
discovery in the cases and has stayed discovery in all except one of the cases. See,
e.g., id. at 1-2.

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II. DISCUSSION
The Court agrees with many of the Magistrate Judge’s recommendations on the
myriad motions and issues before the Court. The Court also finds that the Plaintiff’s
motions for reconsideration (Docs. 96; 127) must be denied because he has not shown
that the Magistrate Judge’s orders were clearly erroneous or contrary to law. However,
the Court modifies the Recommendation’s findings as to the issue of exhaustion of
several of the Plaintiff’s claims, and more discussion is merited as to the issue of
damages.
A.

Motions for Reconsideration
The Plaintiff has moved for reconsideration of the Magistrate Judge’s order

denying the Plaintiff’s motion for an extension of time to respond and request for
documents (Doc. 92) and the Magistrate Judge’s order vacating the clerk’s entry of
default against Defendant Burnside (Doc. 118). Docs. 96; 127. Pursuant to 28 U.S.C. §
636(b)(1)(A), the Court may reconsider the Magistrate Judge’s order on “any pretrial
matter . . . where it has been shown that the [M]agistrate [J]udge’s order is clearly
erroneous or contrary to law.” Moreover:
A party may serve and file objections to the [Magistrate
Judge’s] order within 14 days after being served with a copy.
A party may not assign as error a defect in the order not
timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part
of the order that is clearly erroneous or is contrary to law.
Federal Rule of Civil Procedure 72(a).
The Plaintiff has not shown, and the Court does not find, that either of the
Magistrate Judge’s orders was “clearly erroneous or . . . contrary to law.” As to the
Plaintiff’s motion for reconsideration of the Magistrate Judge’s order setting aside the

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clerk’s entry of default, in the alternative the Plaintiff’s motion appears to be untimely.
Compare Doc. 127 (Plaintiff’s objection dated June 10, 2016, and received by the Court
on June 16), with Doc. 118 (Magistrate Judge’s order issued on April 25). Accordingly,
the Plaintiff’s motions for reconsideration (Docs. 96; 127) must be denied.
B.

Exhaustion
The Court agrees with the Recommendation that the Plaintiff has failed to

exhaust his administrative remedies as to several of his claims. But the Court disagrees
with the Magistrate Judge’s recommendation to dismiss the Plaintiff’s First Amendment
retaliation claims against Defendants Clupper, Kyles, Logan, and Powell and his Eighth
Amendment deliberate indifference to medical needs claim against Defendant Burnside
on these grounds.
“No action shall be brought with respect to prison conditions under section 1983
of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
“[W]hen a state provides a grievance procedure for its prisoners, as Georgia does here,
an inmate alleging harm suffered from prison conditions must file a grievance and
exhaust the remedies available under that procedure before pursuing a § 1983 lawsuit.”
Johnson v. Meadows¸418 F.3d 1152, 1156 (11th Cir. 2005) (internal quotation marks
and citation omitted). The Magistrate Judge recommends finding that the Plaintiff has
failed to exhaust these grounds because the Plaintiff failed to file timely grievances.
Doc. 134 at 10, 18.
But, as the Plaintiff notes in his objection, “the Central Office did not object to
timeliness and answeared [sic] the grievance on its merits.” Doc. 141 at 6; see also

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Doc. 1-25 at 4 (denying the Plaintiff’s First Amendment grievance on the merits but not
for untimeliness); Docs. 113-1 at 12, 114-2 at 11 (same as to the Plaintiff’s deliberate
indifference claim against Defendant Burnside). When a prison does not enforce a
procedural bar to a prisoner’s grievance, a district court may not apply that procedural
bar to find that the prisoner failed to exhaust his administrative remedies. See Whatley
v. Warden, 802 F.3d 1205, 1213-14 (11th Cir. 2015) (“We join our sister circuits in
holding that district courts may not find a lack of exhaustion by enforcing procedural
bars that the prison declined to enforce.”); Johnson v. Holt, 2015 WL 6453151, at *2
(M.D. Ga.) (citing Whatley and finding the defendants did not prove the plaintiff failed to
exhaust his claims with a “bare assertion that the grievance was untimely filed” absent
evidence that the grievance was rejected as untimely at screening); Robinson v. Gielow,
2015 WL 7820605, at *5 (N.D. Fla.), adopted by 2015 WL 7863166 (concluding that the
district court could not enforce either of two procedural bars to find exhaustion when the
prison had failed during the administrative process to enforce the procedural rules with
which the plaintiff had failed to comply). Indeed, the Recommendation notes that the
Plaintiff’s Eighth Amendment claim against Defendant Clupper for excessive force
should not be dismissed because the record fails to suggest that untimeliness was a
reason the prison rejected the grievance. See Doc. 134 at 9 (“Nowhere in the
administrative record of Grievance 164579 is Plaintiff’s grievance rejected on the
grounds of timeliness.”).
The Defendants argue that the Court should find an exception to the rule
articulated in Whatley when prison officials have no reason to know of the administrative
bar. See Doc. 149 at 4. The Defendants argue that, because the Plaintiff omitted the

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date of the allegedly false disciplinary report and the deliberate indifference to his
medical needs, “prison officials could not possibly have known that Plaintiff failed to
comply with the 10-day deadline and, hence, would not have known to deny Plaintiff’s
grievance on this procedural basis.” Id. at 4-5, 7. The Court disagrees. Prison officials
investigating a grievance should know the dates on which incidents at issue in that
grievance took place; as the Plaintiff points out in his reply brief, the Defendants’
investigation into the Plaintiff’s grievances could not have been thorough if they did not
know the dates of the incidents at issue. See Doc. 156 at 5 (“By this suggestion being
impl[e]mented only supports Plaintiff testimony . . . that prison officials do not conduct
‘any’ investigation into Plaintiff’s complaints.”). The Defendants cite no legal authority,
and the Court finds no legal authority, for their desired exception to Whatley.
Accordingly, the Court cannot enforce procedural bars the prison declined to enforce,
and the Court cannot bar these claims for failure to exhaust.
C.

Damages
Finally, the Magistrate Judge recommends limiting the Plaintiff’s recovery for his

Due Process claims to nominal damages. Doc. 134 at 27. The Defendants also move
that the Plaintiff’s recovery for his retaliation claims be limited to nominal damages.
Doc. 117 at 19-20. The Magistrate Judge did not consider that alternative motion,
because he recommended denying the Plaintiff’s retaliation claims for failure to exhaust
administrative remedies.
In the Eleventh Circuit, “an incarcerated plaintiff cannot recover either
compensatory or punitive damages for constitutional violations unless he can
demonstrate a (more than de minimis) physical injury.” Brooks v. Warden, 800 F.3d

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1295, 1307 (11th Cir. 2015) (citations omitted). As with his Due Process claims, the
Plaintiff has failed to allege a “(more than de minimis) physical injury” arising from his
retaliation claims. Accordingly, the Plaintiff’s recovery for his First Amendment
retaliation claims is also due to be limited to nominal damages. See id. at 1307-08
(holding that nominal damages for constitutional violations are available to incarcerated
plaintiffs even without a showing of physical injury).
III. CONCLUSION
The Recommendation is ADOPTED as modified and made the Order of this
Court. Accordingly, the Defendants’ motion to strike (Doc. 117) and the Plaintiff’s
motions to amend (Docs. 115; 133) are each DENIED IN PART and GRANTED IN
PART. The Plaintiff may proceed with his Eighth Amendment excessive force claim
against Defendant Clupper; his First Amendment retaliation claims against Defendants
Clupper, Kyles, Powell, and Logan; and his Fourteenth Amendment Due Process claims
against Defendants Bishop, Chatman, Humphrey, Logan, McMillian, and Powell.1 The
Plaintiff’s recovery for his Due Process claims and his First Amendment retaliation
claims is limited to nominal damages. Defendant Burnside’s motion to dismiss for
failure to exhaust (Doc. 120) is DENIED. The Plaintiff’s Eighth Amendment medical
care claims against Defendants Kyles and Gore are DISMISSED without prejudice for

1

The Court notes a typographical error in the Recommendation on this point. Compare Doc. 134 at 23
(“Taking the conditions of general population inmates as a baseline from which to measure the ordinary
incidents of prison life, the conditions allegedly imposed upon Plaintiff do not make out plausible [sic]
claim of atypical and significant hardship.”), with id. at 23-24 (“Plaintiff’s . . . allegations . . . are sufficient
to indicate atypical and significant hardship.”). The Court clarifies that the Plaintiff’s complaint sufficiently
states a claim of atypical and significant hardship. Similarly, the Recommendation declares in its
introduction that “because Plaintiff has not alleged a protected liberty interest, his Complaint, and this
case, must be dismissed.” Id. at 1. That statement is wrong. As the Recommendation observes in the
next sentence, several of the Plaintiff’s claims must proceed. Id.

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failure to exhaust.2 The Plaintiff’s Eighth Amendment denial of recreation claims are
also DISMISSED without prejudice for failure to exhaust.3 The Plaintiff’s motion to
dismiss his claims related to his alleged 2016 shoulder injury (Doc. 160) is GRANTED.
And the Plaintiff’s motions for reconsideration (Docs. 96; 127) are DENIED.
SO ORDERED, this 6th day of October, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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The Court agrees with the Magistrate Judge that the Plaintiff’s claims against Defendant Gore must fail
at Step Two of the Turner v. Broadside analysis. Doc. 134 at 11-13. But the Court modifies the
Recommendation’s reading of the Plaintiff’s exhibit list. The Magistrate Judge writes that the “Plaintiff’s
exhibit list notes that his grievance regarding Defendant Gore’s alleged deliberate indifference was ‘not
filed’” and extrapolates “[t]hus, Plaintiff’s own complaint admits that he never filed his grievance regarding
Nurse Gore.” Id. at 12. The Court reads the Plaintiff’s exhibit list as stating that prison officials never filed
his grievance; this reading better comports with the Plaintiff’s full argument. See Doc. 141 at 9
(“Grievance against Gore [was] pre-screen[ed], not filed.”). Nevertheless, because, for the reasons
stated in the Recommendation, the Plaintiff’s evidence regarding exhaustion of his administrative
remedies for his claim against Defendant Gore is not credible in light of the Defendants’ evidence, the
Court agrees with the Recommendation’s specific findings of fact: the Plaintiff failed to exhaust that claim.
See Doc. 134 at 11-13.
3

The Court agrees that as a separate Eighth Amendment claim, the Plaintiff failed to exhaust his claim
that he was denied recreation. On the other hand, in his objection to the Recommendation and in his
grievances, the Plaintiff often treats this claim together with his due process claims. See Doc. 141 at 10
(“”Furthermore deprivation of yard time imposes enough of a hardship to qualify as a constitutional [sic]
protected liberty intrest [sic].”). The Plaintiff’s grievances put the Defendants on notice of his due process
claims, including denial of recreation. See, e.g., Doc. 1-23 at 1 (listing “yard call” as one of the “Due
Process & Liberty rights” being denied by his administrative segregation). Accordingly, the Plaintiff’s
assertion that the Defendants denied him recreation is cognizable as part of his due process claims.

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