TILMAN v. SELLERS et al

Filing 40

ORDER ADOPTING in part and REJECTING in part 7 Report and Recommendations and GRANTING in part and DENYING in part 37 Motion to Amend/Correct. The Eighth Amendment failure-to-protect claim against Trimble a nd Ivey and the Fourteenth Amendment due process claim against Warden Sellers are allowed to go forward. All other claims addressed in the Recommendation are DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 10/15/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DAVORIC PENTEZ TILMAN,
Plaintiff,
v.
Warden ERIC SELLERS, et al.,
Defendants.

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CIVIL ACTION NO. 5:15-CV-85 (MTT)

ORDER
After screening the Plaintiff’s recast complaint (Doc. 6) pursuant to 28 U.S.C.
§ 1915A, United States Magistrate Judge Charles H. Weigle ordered the following
claims to go forward: (1) the Eighth Amendment claims against Defendants Lieutenant
Woodson, Sergeant Johnson, and Officer Jackson for excessive force; (2) the Eighth
Amendment claim against Woodson for deliberate indifference; (3) the First Amendment
retaliation claim and Fourteenth Amendment due process claim against Defendant Unit
Manager Trimble; and (4) the First Amendment claim against Defendant Deputy
Warden Ivey. (Doc. 7). The Magistrate Judge recommends dismissing (1) the Eighth
Amendment claim for denial of medical care against Woodson, Johnson, Jackson, and
the Jane Doe nurses; (2) the Eighth Amendment failure-to-protect claim against Trimble
and Ivey; and (3) the First Amendment retaliation claim and Fourteenth Amendment due
process claim against Defendants Deputy Warden Hill and Warden Sellers. The
Plaintiff has filed a motion for reconsideration, which the Court construes as an
objection to the Recommendation. (Doc. 10). The Plaintiff has also moved to amend
his complaint. (Doc. 37).

I.

The Plaintiff’s Objection to the Recommendation

Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered the Plaintiff’s
objection and has made a de novo determination of the portions of the
Recommendation to which the Plaintiff objects. In his objection, the Plaintiff has
asserted additional facts to address some of the deficiencies in his amended complaint
described in the Recommendation. Therefore, the Court will construe these portions of
the objection as a motion to amend the complaint. See Newsome v. Chatham Cty. Det.
Ctr., 256 F. App’x 342, 344 (11th Cir. 2007) (“Although the form of those additional
allegations were objections to the recommendation of dismissal, the collective
substance of them was an attempt to amend the complaint. Because courts must
construe pro se pleadings liberally, the district court should … consider[ the plaintiff’s]
additional allegations in the objection as a motion to amend his complaint and grant[ ]
it.”). Accordingly, this motion is GRANTED.
The Plaintiff objects to the dismissal of his claims regarding the denial of medical
care against Woodson, Johnson, Jackson, and the Jane Doe nurses. The Magistrate
Judge recommends dismissing these claims because the Plaintiff has failed to
sufficiently allege a serious medical need from the effects of the pepper spray and the
Defendants’ subjective awareness of his continued medical complaints. The Court
acknowledges that while the immediate effects of pepper spray may not necessarily be
a serious medical need, “the effects of prolonged exposure to pepper spray with
inadequate decontamination and poor ventilation” can be. See Danley v. Allen, 540
F.3d 1298, 1311 (11th Cir. 2008), overruled on other grounds by Ashcroft v. Iqbal, 556
U.S. 662 (2009). Here, the Plaintiff alleges that in addition to the immediate effects of

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pepper spray, he experienced prolonged and persistent eye irritation, but medical care
was delayed. However, in his complaint and objection, the Plaintiff has failed to
sufficiently allege that Woodson, Johnson, Jackson, and the Jane Doe nurses were
aware of the Plaintiff’s continued medical complaints or otherwise responsible for the
delay and denial of care. Cf. id. at 1312 (“The jailers allegedly did nothing when the
inadequacy of the decontamination shower became apparent from [the plaintiff’s] and
the other inmates’ continuing complaints.”). Accordingly, these claims are DISMISSED
without prejudice.
The Plaintiff objects to the dismissal of his failure-to-protect claim against Trimble
and Ivey. The Magistrate Judge recommends dismissing this claim because the
Plaintiff’s allegation that his cellmate was “noted to be [a] threat to the safety and
security of the institution” was insufficient to establish the Defendants’ subjective
awareness of a substantial risk of harm. (Doc. 7 at 7). In his objection, the Plaintiff
adds “that he verbally informed Unit Manager Trimble and Deputy Warden Ivey of a
threat made on his life and requested to be placed in a cell by himself.” (Doc. 10 at 3).
Construed liberally, the Plaintiff has alleged that Trimble and Ivey were aware a known
violent inmate threatened the Plaintiff’s life but failed to move him. Therefore, the claim
may proceed.
The Plaintiff has objected to the dismissal of his Fourteenth Amendment claim
against Hill because he was not permitted a “face-to-face” classification hearing as
provided by the prison’s standard operating procedure. The Court agrees this claim
should be dismissed for the reasons stated in the Recommendation. The Plaintiff has
not objected to the dismissal of the First Amendment retaliation claim against Hill. The

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Court has reviewed the recommendation to dismiss this claim and accepts the findings,
conclusions, and recommendations of the Magistrate Judge.
The Plaintiff has objected to the dismissal of his First and Fourteenth
Amendment claims against Warden Sellers. As to the First Amendment claim, the
Court agrees the claim should be dismissed for the reasons stated in the
Recommendation. As to the Fourteenth Amendment claim, the Magistrate Judge
recommends dismissing the claim because “[t]here is nothing in the Complaint to
suggest that Warden Sellers was personally aware that Trimble did not move Plaintiff or
thereafter denied him due process.” (Doc. 7 at 10). The Plaintiff adds in his objection:
After Sellers told Plaintiff that he spoke with Trimble and that he was going
to move him and Trimble didn’t move him, Plaintiff wrote several letters
advising Sellers that Trimble had not moved him. Plaintiff also filed
several grievances which were all denied by Warden Sellers. After Sellers
was made aware of Plaintiff’s problem, Sellers refused … to rectify the
problem.
(Doc. 10, ¶ 5). Thus, the Plaintiff has alleged Warden Sellers was aware of Trimble’s
continued failure to move the Plaintiff. Therefore, the claim may proceed.
The Court has reviewed the Recommendation, and the Recommendation is
ADOPTED in part and REJECTED in part. The Eighth Amendment failure-to-protect
claim against Trimble and Ivey and the Fourteenth Amendment due process claim
against Warden Sellers are allowed to go forward. All other claims addressed in the
Recommendation are DISMISSED without prejudice.
It is therefore ORDERED that service be made on Defendants Trimble, Ivey, and
Sellers and that they file an answer or such other response as may be appropriate
under Fed. R. Civ. P. 12, 28 U.S.C. § 1915, and the Prison Litigation Reform Act. The
Defendants are also reminded of the duty to avoid unnecessary service expenses and
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of the possible imposition of expenses for failure to waive service. The Plaintiff is
reminded of his duty to keep the clerk of court and all opposing attorneys advised of his
current address, duty to prosecute this action, and the provisions regarding discovery in
the Magistrate Judge’s order.
II.

The Plaintiff’s Motion to Amend the Complaint

After filing his objection, the Plaintiff moved to amend his complaint. (Doc. 37).
Leave to amend should be “freely give[n] ... when justice so requires.” Fed. R. Civ. P.
15(a)(2). The Court “need not, however, allow an amendment (1) where there has been
undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by
amendments previously allowed; (2) where allowing amendment would cause undue
prejudice to the opposing party; or (3) where amendment would be futile.” Bryant v.
Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (citing Foman v. Davis, 371 U.S. 178,
182 (1962)). “[D]enial of leave to amend is justified by futility when the complaint as
amended is still subject to dismissal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255,
1263 (11th Cir. 2004) (internal quotation marks and citation omitted).
In his motion to amend, the Plaintiff adds various allegations regarding previous
lawsuits, exhaustion, damages, suing the Defendants in their individual and official
capacities, and the pepper spray incident. (Doc. 37, ¶¶ 1-6, 9-14). The motion is
GRANTED as to these allegations. (Id.). The Plaintiff also seeks “to elucidate” his
Fourteenth Amendment claim against Defendant Hill. (Id. at ¶¶ 7-8). However, the
Plaintiff reiterates the same allegations against Hill in his objection and does not provide
any additional facts to state a plausible Fourteenth Amendment claim against Hill.
Accordingly, the Plaintiff’s motion to amend as to these allegations is DENIED as futile.

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SO ORDERED, this 15th day of October, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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