ANDREW v. BRYSON et al
Filing
52
ORDER adopting 45 Report and Recommendations; granting 28 Motion to Dismiss for Failure to State a Claim; denying as moot 14 Motion to Dismiss Party; granting 20 Motion to Dismiss for Failure to State a Claim; and, denying Plaintiff's request for appointment of counsel. Plaintiff's claims against Defendant Dumas may go forward. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 9/13/16 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TODD ANDREW
Plaintiff,
v.
:
:
:
:
:
:
:
:
No. 5:15‐CV‐307 (CAR)
Proceedings Under 42 U.S.C. § 1983
HOMER BRYSON, et al.,
Defendants.
ORDER ON UNITED STATES MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the Court is the United States Magistrate Judge’s Report and
Recommendation to grant Defendants Kirk, Eutsey, Chatman, and Brown’s Motions to
Dismiss and deny as moot Plaintiff’s Motion to Dismiss. Plaintiff has filed an Objection
to the Recommendation to grant the Defendants’ Motions to Dismiss. Having fully
considered the record in this case and investigated de novo those portions of the Report
and Recommendation to which Plaintiff objects, the Court agrees with the findings and
conclusions in the Report and Recommendation.
In this action pursuant to 42 U.S.C. § 1983, Plaintiff asserts Defendants violated
his Eighth Amendment rights by allowing another inmate to beat him with a broom
handle. The Report and Recommendation concludes Plaintiff failed to exhaust his
available administrative remedies before filing his Complaint. This Court agrees. In his
Objection, Plaintiff argues he did exhaust his available administrative remedies, and he
1
requests an attorney.
I.
Exhaustion of Administrative Remedies
Plaintiff appears to argue he exhausted his administrative remedies because
prison officials failed to timely respond to his grievance, rendering those remedies
unavailable. As Plaintiff notes, some courts have held “failure to respond to a
prisoner’s grievance amounts to an indefinite delay that renders administrative
remedies unavailable.”1 However, Plaintiff does not specify which of his many
grievances regarding the incident did not receive a timely response. Instead, he
vaguely alleges “[w]hat prison officials at G.D.C.P. Jackson do is just not respond to
your Grievances, not give you a copy of the Wardens [sic] decision, not give you a copy
of appeal to do.”2 The Court need not accept Plaintiff’s conclusory allegations in lieu of
specific factual allegations as to why and how the grievance procedure was unavailable
to Plaintiff.3
Although Plaintiff filed multiple grievances regarding the incident, only in
Grievance Number 205233 did Plaintiff allege a prison official failed to protect him from
the attack. Accordingly, only if prison officials failed to respond to this grievance
would administrative remedies have been unavailable. Yet even if the Court construes
Plaintiff’s unavailability argument as referring to Grievance Number 205233, the
Milton v. Fleckenstein, No. 6:10‐cv‐377‐Orl‐31DAB, 2011 WL 208310, at *2 (M.D. Fla. Jan. 21, 2011) (citing
Brengettcy v. Horton, 423 F.3d 674, 682 (7th Cir. 2005)).
2 Pl.’s Obj. [Doc. 51] at 3.
3 Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (noting “[f]rivolous, conclusive, or general
objections need not be considered by the district court”).
1
2
undisputed facts show Plaintiff received timely responses from both the Warden and
the Central Office. The applicable Georgia Department of Corrections’ grievance
procedures specified the time within which a prisoner must receive a response to a
grievance. At the first level of review, the Warden must deliver the decision within
forty calendar days of the date the prisoner filed the grievance, subject to a ten‐day
extension.4 On appeal, the Central Office must deliver the decision within one hundred
days of receipt of the appeal.5
Here, Plaintiff filed Grievance Number 205233 on September 30, 2015.6 The
Warden denied the grievance on October 2, well before the required forty‐day period
expired.7 On October 6, Plaintiff appealed the denial to the Central Office.8 Finally, the
Central Office denied Plaintiff’s appeal on November 24, also well within the required
one hundred‐day period.9 Thus, as to the only grievance in which Plaintiff alleged a
prison official failed to protect him from the attack, Plaintiff received timely responses.
A prisoner “may not bypass the established administrative remedies procedure simply
because he does not receive responses to his grievances as quickly as he would
prefer.”10 Consequently, administrative remedies were available to Plaintiff, and the
Court agrees with the conclusion in the Report and Recommendation that Plaintiff
Georgia Dep’t. of Corrections SOP IIB05‐0001 § VI(D)(7); [Doc. 21‐3, p. 10].
Georgia Dep’t. of Corrections SOP IIB05‐0001 § VI(E)(7); [Doc. 21‐3, p. 13].
6 [Doc. 21‐6] at 6.
7 [Doc. 21‐6] at 3.
8 [Doc. 21‐6] at 1‐2.
9 [Doc. 21‐2] at 8‐9.
10 Mathis v. Chatman, 6:15‐cv‐122, 2016 WL 3920255, at *5 (S.D. Ga. July 15, 2016).
4
5
3
failed to exhaust those remedies before filing his Complaint. Thus, Plaintiff’s Objection
is OVERRULED.
II.
Appointment of Counsel
In his Objection, Plaintiff also requests the Court appoint him an attorney to
assist him in this matter. Pursuant to 28 U.S.C. § 1915(e)(1), a district court may appoint
counsel for an indigent plaintiff.11 However, a prisoner raising civil rights claims has
“no constitutional right to counsel.”12 Rather, appointment of counsel requires
“exceptional circumstances such as the presence of facts and legal issues which are so
novel or complex as to require the assistance of a trained practitioner.”13 Such
circumstances do not exist at this time. Should it later become apparent that legal
assistance is required in order to avoid prejudice to Plaintiff’s rights, the Court, on its
own motion, will consider assisting him in securing legal counsel at that time.
Consequently, there is no need for Plaintiff to file additional requests for counsel.
Plaintiff’s request for appointment of counsel is DENIED.
CONCLUSION
For the reasons set forth above, the Report and Recommendation [Doc. 45] is
HEREBY ADOPTED AND MADE THE ORDER OF THIS COURT; Defendants Kirk,
Eutsey, Chatman, and Brown’s Motions to Dismiss [Docs. 20 and 28] are GRANTED,
German v. Broward County Sheriff’s Office, 315 F. App’x 773, 777 (11th Cir. 2009) (unpublished decision).
Id. (quoting Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993)).
13 Id. (quoting Kilgo, 983 F.2d at 193).
11
12
4
and Defendants KIRK, EUTSEY, CHATMAN, and BROWN are DISMISSED from this
action; Plaintiff’s Motion to Dismiss [Doc. 14] is DENIED as MOOT; and Plaintiff’s
request for appointment of counsel is DENIED. Plaintiff’s claims against Defendant
DUMAS may go forward.
SO ORDERED, this 13th day of September, 2016.
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?