MAJOR v. TOOLE et al

Filing 70

ORDER ADOPTING in part and REJECTING in part 67 Report and Recommendations; GRANTING 56 Defendants Davis and Shumake's Motion to Dismiss; GRANTING 57 Defendants' Motion to Sever; and DENYING Pla intiff's 66 Motion for Injunctive Relief. The only remaining claims are the sexual assault and retaliation claims against Defendant Johnson and potentially the failure to intervene claims against Smith and DeLoach, pending a proper screening. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/28/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TROY MAJOR,
Plaintiff,
v.
ROBERT TOOLE, Warden, et al.,
Defendants.

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CIVIL ACTION NO. 5:15-CV-483 (MTT)

ORDER
Before the Court is the Recommendation (Doc. 67) of Magistrate Judge Stephen
Hyles regarding Defendants Sergeant Davis and Sergeant Shumake’s motion to
dismiss Plaintiff Troy Major’s excessive force claims for failure to exhaust his
administrative remedies (Doc. 56); the Defendants’ Motion to Sever Major’s due
process claims against Defendants Warden Stanley Williams, Bruce Chatman, Rodney
McCloud, June Bishop, Warden Robert Toole, John Paul, Deputy Warden Powell,
Rufus Logan, Commissioner Homer Bryson, Steve Upton, Rick Jacobs, Linton
DeLoach, and Betty Dean for misjoinder (Doc. 57); and Major’s Motion for Injunctive
Relief (Doc. 66). The Magistrate Judge recommends dismissing the excessive force
claims against Davis and Shumake for failure to exhaust administrative remedies. Doc.
67 at 9. The Magistrate Judge also recommends granting the Defendants’ motion to
sever and thus dismissing the claims against Defendants Williams, Chatman, McCloud,
Bishop, Toole, Paul, Powell, Logan, Bryson, Upton, Jacobs, DeLoach, and Dean. Id. at
11. Finally, the Magistrate Judge recommends denying Major’s motion for injunctive
relief. Id. at 5. Neither party has objected to the Recommendation. Nevertheless, in an

abundance of caution, the Court has conducted a de novo review and the
Recommendation is ADOPTED in part and REJECTED in part.
The Recommendation states this Court’s Order (Doc. 62) concluded that the
failure to intervene claims against Defendants Smith and DeLoach should proceed.
Doc. 67 at 2. However, this is not the case. In response to the Magistrate Judge’s
recommendation that those claims be dismissed, this Court ordered that those claims
be remanded to the Magistrate Judge for consideration of new allegations stated in
Major’s Objection (Doc. 55). Doc. 62 at 2 (“The failure to intervene claims against
Defendants DeLoach and Smith are REMANDED . . . .”). After this, the Magistrate
Judge never clarified whether those claims would be allowed to proceed. Therefore, as
it stands, Major’s failure to intervene claims against Defendants Smith and DeLoach
have not yet been properly screened. Moreover, from the record, it does not appear
that Smith has ever been served with process. Thus, Smith did not take part in the
motion to sever and DeLoach did so only as to the due process claim against him.
Therefore, to the extent it pertains to the failure to intervene claims against Smith
and DeLoach, the Recommendation is REJECTED. The Recommendation is
ADOPTED only insofar as it relates to Davis and Shumake’s motion to dismiss for
failure to exhaust; the Defendants’, including DeLoach, motion to sever the due process
claims; and Major’s motion for injunctive relief. Accordingly, Defendants Davis and
Shumake’s motion to dismiss (Doc. 56) is GRANTED. The claims against Defendants
Davis and Shumake are DISMISSED for failure to exhaust administrative remedies.1
The Defendants’ Motion to Sever is GRANTED. The due process claims against

1

Any amendment to the complaint would be futile because, according to GDOC standard procedures,
Plaintiff cannot now exhaust his administrative remedies. See Doc. 56-2.

2

Defendants Williams, Chatman, McCloud, Bishop, Toole, Paul, Powell, Logan, Bryson,
Upton, Jacobs, DeLoach, and Dean are DISMISSED without prejudice allowing Major
to re-file.2 Major’s Motion for Injunctive Relief is DENIED. The only remaining claims
are the sexual assault and retaliation claims against Defendant Johnson and potentially
the failure to intervene claims against Smith and DeLoach, pending a proper screening.
SO ORDERED, this the 28th day of March, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

2

As the Magistrate Judge notes, Plaintiff’s claims against Defendants Williams, Chatman, McCloud,
Bishop, Toole, Paul, Powell, Logan, Bryson, Upton, Jacobs, DeLoach, and Dean relate to his continued
confinement in Tier II/SMU and are continuing in nature. Thus, the claims would not be barred by any
applicable statute of limitations.

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