COSTLOW v. DEPARTMENT OF CORRECTIONS et al

Filing 41

ORDER ADOPTING as clarified 37 Report and Recommendations; DENYING 26 Lockett's Motion to Dismiss; and GRANTING 19 McLaughlin's Motion to Dismiss. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 12/22/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES A. COSTLOW,
Plaintiff,
v.
DEPARTMENT OF CORRECTIONS, et
al.,
Defendants.

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CIVIL ACTION NO. 5:15-CV-268 (MTT)

ORDER
Defendants McLaughlin and Lockett filed motions to dismiss asserting that
Plaintiff Costlow failed to exhaust his administrative remedies as to his claims against
them in this action. Docs. 19; 26. Magistrate Judge Charles H. Weigle recommends
allowing Costlow’s claims against Lockett to proceed and dismissing the claims against
McLaughlin for failure to exhaust administrative remedies. Doc. 37 at 10-11. Costlow
objected, arguing he exhausted his administrative remedies as to his claims against
McLaughlin (Doc. 38), McLaughlin responded (Doc. 39), and Costlow replied (Doc. 40).
Pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed Costlow’s objection and has
made a de novo determination of the portions of the Recommendation to which he
objects.
The Magistrate Judge recommends allowing Costlow to pursue his claim against
Lockett because Costlow timely filed Grievance 193961 and pursued it on appeal,
despite Warden McLaughlin’s improper refusal to consider the grievance. Doc. 37 at 710, 11. (Grievance 193961 and follow-up Grievance 195131 asserted that Lockett was
deliberately indifferent to Costlow’s warnings of threats against him by fellow inmate
McCrimmon. Docs. 23-1 at 2; 23-4 at 2) Lockett did not object, and the Court sees no

error in the Magistrate Judge’s findings, conclusions, and recommendations as to
Lockett.
The Magistrate Judge recommends dismissing Costlow’s claim against
McLaughlin because:
Plaintiff acknowledges that Warden McLaughlin was not
identified in either of his grievances and offers no
explanation for the omission. Doc. 29, p. 2. In both of
Plaintiff’s grievances, Plaintiff specifically names Lockett as
the responsible party. Doc. 23-1, p. 2; Doc. 23-4, p. 2.
Absent from either grievance is any mention of McLaughlin
or any description of his participation in the matter.
McLaughlin is first named in Plaintiff’s complaint. Doc. 1,
p. 5. . . . . Plaintiff thus failed to inform prison officials of
McLaughlin’s participation in the matter, although
McLaughlin’s identity was known and reasonably available to
Plaintiff at the time of his grievances. Because Plaintiff did
not pursue administrative remedies as to any claims against
McLaughlin, his claims against Defendant McLaughlin are
subject to dismissal.
Doc. 37 at 8.1 The Court agrees. Costlow failed to grieve in his complaint “as much
relevant information about his claims, including the identity of those directly involved in
the alleged deprivations, as [he] reasonably [could] provide,” in regard to McClaughlin.
See Brown v. Sikes, 212 F.3d 1205, 1210 (11th Cir. 2000). From the face of Grievance
193961 (as well as Grievance 195131), it appears that Costlow’s claims are solely
against Lockett. See Doc. 23-1; see also Doc. 23-4. Costlow’s statements make clear
1

According to the Recommendation, “The complaint states that Warden McLaughlin was informed via
‘in house mail’ that SOPs were ‘being violated by orderlies being allowed to serve trays’ improperly.” Id.
The Recommendation continues: “[t]hese allegations are not raised in either grievance number 193961 or
195131[,]” (see id.), arguably implying that Costlow’s alleged letter to McLaughlin had no clear link to
Grievances 193961 and 195131. However, in his complaint, Costlow alleges that his letter(s) specifically
notified McLaughlin about McCrimmon’s threats (which, as noted above, were the subject matter of
Grievances 193961 and 195131). Doc. 1 at 4 (“I wrote Warden McClaughlin on 03/24/15 + addressed
threats”), 5 (“I notified Warden McClaughlin via in house mail that S.O.P. was being violated by orderlies
being allowed to serve trays in the H-1 (SHU) + that orderly D McCrimmon was threatening me + spitting
in my food.”). This does not lead the Court to a different conclusion. As explained more fully hereinafter,
Costlow failed to exhaust his administrative remedies because he chose not to identify McClaughlin in his
grievances.

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that he could have, but chose not to, include his deliberate indifference claim against
McClaughlin in his grievances against Lockett, and that he only decided to pursue
action against McClaughlin after McClaughlin denied his grievances against Lockett.
Doc. 40 at 2.
Costlow argues that McClaughlin’s wrongful refusal to consider his grievances
against Lockett excuse his need to exhaust his administrative remedies as to
McClaughlin. Id. at 2-4. As noted above, the Magistrate Judge correctly concluded that
McClaughlin’s refusal to consider Grievance 193961 was wrong (and accordingly
Costlow exhausted his remedies as to Lockett). Doc. 37 at 7-10, 11. But McClaughlin’s
wrongful refusal to consider Grievance 193961 has no bearing on whether Costlow
exhausted his remedies as to McClaughlin. No amount of McClaughlin’s mishandling of
grievances against Lockett can help Costlow satisfy or excuse his obligation to pursue
administrative remedies as to his claims against McClaughlin.
Accordingly, the Court ADOPTS as clarified the findings, conclusions, and
recommendations of the Magistrate Judge. McLaughlin’s Motion to Dismiss (Doc. 19) is
GRANTED, and Lockett’s Motion to Dismiss (Doc. 26) is DENIED. The Plaintiff is
reminded of his duty to keep the clerk of court and all opposing attorneys advised of his
current address, his duty to prosecute this action, and the provisions regarding
discovery in the Magistrate Judge’s order.
SO ORDERED, this 22nd day of December, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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