BROOKS v. HOUSTON COUNTY GEORGIA

Filing 46

ORDER ADOPTING in part 40 and 45 Report and Recommendations; GRANTING in part and DENYING in part 30 Motion to Dismiss Complaint; and GRANTING 41 Motion to Dismiss. Brooks's claims against Defenda nts Carson, Rogers, and Rumph are DISMISSED without prejudice. Brooks's claims against Defendant Gary in his individual capacity are allowed to proceed. Defendant Perry's motion to dismiss is GRANTED, and Brooks's claims against him are DISMISSED without prejudice. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 1/19/2017. (tlh)

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

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Plaintiff,
v.
Warden CLINTON PERRY, et al.,
Defendants.

CIVIL ACTION NO. 5:15-CV-408 (MTT)

ORDER
Defendants Carson, Gary, Rogers, and Rumph filed a motion to dismiss
asserting that Brooks failed to exhaust his administrative remedies and Brooks cannot
bring a 42 U.S.C. § 1983 claim against them in their official capacities. Doc. 30. This
motion was adopted by Defendant Perry. Doc. 41. United States Magistrate Judge
Stephen Hyles recommends granting the motions. Docs. 40; 45. Brooks has not
objected.
According to the Recommendation,
Plaintiff’s Complaint arises from events that occurred while
he was incarcerated at the McEver Probation Detention
Center in Perry, Georgia. According to the Complaint, on
September 28, 2015, Plaintiff found himself “surrounded by
gang members” who threatened to cause him harm in the DDorm. Compl. 5, ECF No. 4. Plaintiff sought help from
Defendant Carson, a prison official. Defendant Carson
advised Plaintiff to “handle [the threat] the best way [he]
could” and ordered corrections officers Defendants Rump
and Rogers to “force” Plaintiff back into the D-Dorm living
area, “placing [Plaintiff’s] life in a hostile and harmful
environment” where “razors, locks, and shanks awaiting
[him] by those gang members.” Id. The next day, Plaintiff
complained again to Defendant Gary, who advised the DDorm inmates that another inmate was “complaining about
some gang members threatening him.” Id. Defendant Gary
then apparently placed Plaintiff back into the D-Dorm, where
“the gang members again jumped” Plaintiff. Id. After this
second attack, Defendant Perry (the warden of McEver
Probation Detention Center) placed Plaintiff in administrative
protective custody for safety reasons. Id. Plaintiff seeks

“punitive and monetary relief” for Defendants’ actions, which
he contends endangered his life. Id. at 6.
....
Plaintiff filed one grievance within ten days after the
events which occurred on September 28, 2015. On October
5, 2015, Plaintiff filed grievance 205674 in which he
complains that “Lt. Dale [Gary] did place my life in a harmful
and hostile environment[.]” Baymon Ex. A-3 at 6. Plaintiff
states that on September 24, 2015, he complained to
Defendant [Gary] that there was gang activity in the D-dorm.
Id. Defendant [Gary] then went to the D-dorm and informed
Plaintiff’s fellow detainees about Plaintiff’s complaint which
resulted in “threatening name calling” and Plaintiff having to
“get volliate [sic] in nature to keep from being harmed.” Id.
The response from this grievance was due on October 16,
2015, but it was administratively closed because Plaintiff left
the facility on October 20, 2015. Baymon ¶ 16. For
purposes of this Recommendation, the Court finds that the
administrative closure of the grievance constitutes
exhaustion of Plaintiff’s grievance.
This, however, does not end the inquiry. Defendants
contend that the grievance does not address Plaintiff’s
claims for failure to protect. Specifically, that Plaintiff’s
grievance fails to reference any Defendant other than
Defendant [Gary] and that it fails to state that Plaintiff was
attacked. Defs.’ Br. in Supp. 6-7. While “exhaustion does
not necessarily require an inmate to file a new grievance for
each harmful incident in a string of related occurrences,” it
does require that the grievance “provide[] the institution with
notice of a problem such that they have an opportunity to
address the problem internally.” Toennings v. Ga. Dep’t of
Corr., 600 F. App’x 645, 649 (11th Cir. 2015). Plaintiff’s
grievance stating that Defendant [Gary] put Plaintiff in a
“harmful and hostile environment” does not provide McEver
Probation Detention Facility with notice that Plaintiff was
physically assaulted. It also fails to provide any notice
regarding the alleged behavior of any Defendant other than
Defendant [Gary].
Plaintiff has consequently failed to
exhaust his failure to protect claims. It is recommended that
Defendants’ motion to dismiss be granted for failure to
exhaust.
Doc. 40 at 1-2, 5-6.1 The Magistrate Judge adopted this analysis as to Defendant
Perry. Doc. 45 at 2.

1
As the Magistrate Judge noted in its order dismissing the claims against Defendant Perry, “[t]here is a
scrivener’s error in [the Recommendation] identifying Defendant Dale Gary as Defendant ‘Dale Gale.’”
Doc. 40 at 1, n.1.

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The Court agrees that Brooks has failed to exhaust his administrative remedies
as to Defendants Carson, Rogers, and Rumph. Brooks has not offered any reason why
he failed to name these individuals in his grievance, and accordingly it appears that he
has failed to provide “as much relevant information about his claims, including the
identity of those directly involved in the alleged deprivations, as [he] reasonably [could]
provide.” See Brown v. Sikes, 212 F.3d 1205, 1210 (11th Cir. 2000). Brooks’s failureto-protect claim against Defendant Perry similarly should be dismissed because, though
the grievance names Defendant Perry—“Warden Perry removed me to involuntary P.C.
punishment or protections”—the grievance, read as a whole, only asserts a complaint
against Defendant Gary. See Doc. 30-5 at 6-7. The grievance did not put McEver
Probation Detention Facility on sufficient notice that Brooks was pursuing a failure-toprotect claim against Defendant Perry. In sum, Brooks could have included his failureto-protect claims against Defendants Carson, Rogers, Rumph, and Perry in his
grievance but chose not to; accordingly, he has failed to exhaust his administrative
remedies as to his claims against these defendants.
However, the Court disagrees with the Magistrate Judge’s conclusions as to
Defendant Gary. Unlike the Magistrate Judge, the Court finds that Brooks’s grievance
did “provide McEver Probation Detention Facility with notice that Plaintiff was physically
assaulted.” The grievance states that in response to Brooks’s complaints about gang
activity in the D-dorm, Gary returned Brooks to the D-Dorm and informed D-Dorm of
Brooks’s complaint, resulting in Brooks “having to get volliate [sic] in nature to keep from
being harmed” and being “removed . . . to involuntary P.C. punishment or protections.”
See Doc. 30-5 at 6-7. This would have put McEver Probation Detention Facility on
notice that Defendant Gary’s actions resulted in Brooks being physically assaulted.
Brooks was put in “P.C.” because there had been a physical altercation. Brooks had to
get violent to keep from being harmed because he was physically assaulted.

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Accordingly, Brooks exhausted his administrative remedies as to his failure-to-protect
claim against Defendant Gary.
For these reasons, the Recommendations are ADOPTED in part and
REJECTED in part. The motion to dismiss filed by Defendants Carson, Gary, Rogers,
and Rumph (Doc. 30) is GRANTED in part and DENIED in part. Brooks’s claims
against Defendants Carson, Rogers, and Rumph are DISMISSED without prejudice.
Brooks’s claims against Defendant Gary in his individual capacity are allowed to
proceed.2 Further, Defendant Perry’s motion to dismiss (Doc. 41) is GRANTED, and
Brooks’s claims against him are DISMISSED without prejudice.
SO ORDERED, this 19th day of January, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

2
For the reasons given in Defendant Gary’s motion, the Court GRANTS Gary’s motion seeking
dismissal of any claims against him in his official capacity and hereby DISMISSES such claims.

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