WRIGHT v. CHATMAN et al
ORDER VACATING 55 Order adopting 29 Report and Recommendations; adopting in part and rejecting in part 29 Report and Recommendations; granting in part and denying in part 20 Motion to Dismiss; granting in part and denying in part 24 Motion to Amend; denying 25 Motion to Appoint Counsel; granting 56 Motion for Leave to File. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 11/14/2017 (lap)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
TAMARKUS LAKEITH WRIGHT,
No. 5:16‐cv‐490 (CAR)
Warden BRUCE CHATMAN, et al.,
ORDER ON PLAINTIFF’S OBJECTION TO THE RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
On October 12, 2107, the Court adopted [Doc. 55] the Order and
Recommendation of United States Magistrate Judge [Doc. 29]. A day later, on October
13, 2017, the Court received Plaintiff’s untimely Objection [Doc. 56]. The Court
CONSTRUES Plaintiff’s Objection as a Motion to File an Out of Time Objection [Doc.
56], which is hereby GRANTED. The Court has now fully considered Plaintiff’s
Objection and the record in this case, and has investigated de novo those portions of the
Order and Recommendation to which Plaintiff objects.
For the reasons explained below, the Court’s Order [Doc. 55] on October 12, 2017,
adopting the Order and Recommendation is hereby VACATED; the Order and
Recommendation [Doc. 29] is ADOPTED‐IN‐PART and REJECTED‐IN‐PART;
Defendants’ Motion to Dismiss [Doc. 20] is GRANTED‐IN‐PART AND DENIED‐IN‐
PART; Plaintiff’s Motion to Amend [Doc. 24] is GRANTED‐IN‐PART AND DENIED‐
IN‐PART; and Plaintiff’s Motion to Appoint Counsel [Doc. 25] is DENIED.
As explained below, only Plaintiff’s procedural due process claims arising after
October 28, 2015, against Defendants Bruce Chatman, June Bishop William Powell,
William McMillian,1 Rufus Logan, Rodney McCloud, Michael Cannon, Caldwell, Betty
Dean, Homer Bryson, Victor Walker, Timothy Ward, and Rick Jacob, in their individual
capacities and official capacities may go forward. All other claims against all other
Defendants must be DISMISSED.
On October 28, 2016, Plaintiff Tarmarkus Lakeith Wright, filed a Complaint
under 42 U.S.C § 1983 alleging Defendants violated his procedural due process rights
by confining him to long‐term administrative segregation without sufficient procedural
protections. Plaintiff named as Defendants Warden Bruce Chatman; Deputy Wardens
June Bishop and William Powell; Unit Managers William McMillian and Rufus Logan;
and Superintendent Rodney McCloud. Plaintiff seeks punitive and compensatory
damages, and declaratory and injunctive relief from Defendants in their individual and
official capacities. The Court conducted a frivolity review of Plaintiff’s Complaint
It appears that William McMillian and James McMillian may be the same person. This should
become clear through discovery.
pursuant to 28 U.S.C. § 1915A(a) and, construing the allegations liberally in favor of
Plaintiff, determined that Plaintiff’s due process claims were not entirely frivolous and
thus allowed to go forward.
On March 14, 2017, Defendants filed a Motion to Dismiss Plaintiff’s claims.
Plaintiff did not file a response to Defendants’ Motion to Dismiss. Instead, Plaintiff
submitted an Amended Complaint attempting to add claims for excessive force,
deliberate indifference to medical needs, and violation of his due process rights relating
to a 2012 prison riot. Plaintiff also attempts to add a federal deliberate indifference to
medical needs claim, and a state law tort claim relating to a slip and fall incident;
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claims; and access to
the courts claims. Plaintiff asks for a temporary restraining order and adds new facts
and Defendants to his original due process claims.
Thereafter, the United States Magistrate Judge issued the Order and
Recommendation currently before the Court in which he conducted a preliminary
frivolity review of Plaintiff’s Amended Complaint pursuant to 28 U.S.C. § 1915A and
addressed Defendant’s Motion to Dismiss.
The Court will now conduct a de novo review of the Order and Recommendation
to which Plaintiff objects.
1. Plaintiff’s Claims Newly Raised in his Amended Complaint
Pursuant to its frivolity review under 28 U.S.C. § 1915A, the Order and
Recommendation recommends that (1) Plaintiff’s excessive force, deliberate indifference
to medical needs, and due process claims relating to the 2012 prison riot be dismissed as
time‐barred; (2) Plaintiff’s tort law and deliberate indifference claims relating to the slip
and fall incident, his RLUIPA claims, and his access to the courts claims be dismissed as
unrelated his original due process claims; and (3) Plaintiff’s proposed temporary
restraining order be denied.
a. New Claims Relating to 2012 Prison Riot
The Court is unconvinced by Plaintiff’s objection that his excessive force,
deliberate indifference to medical needs, and due process claims relating to a 2012
prison riot are not time‐barred because they are continuing violations. The continuing
violation doctrine allows a plaintiff to sue on a claim that would otherwise be time‐
barred when the violation has continued into the statutory period. The doctrine does
not extend the statute of limitations for the continuing effects of a discrete violation.2
Additionally, the Eleventh Circuit has limited the continuing violation doctrine “to
situations in which a reasonably prudent plaintiff would have been unable to determine
Lee v. Eleventh Judicial Circuit of Florida, No. 17‐10764, 2017 WL 3774525, at *1 (11th Cir. Aug. 31,
2017) (citing Ctr. For Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006)
(affirming the district court’s the dismissal of prisoner’s § 1983 suit under 28 U.S.C. § 1915A as
that a violation occurred. If an event should have alerted a reasonable plaintiff to assert
his rights, then the plaintiff cannot rely on the continuing violation doctrine.”3
Here, Plaintiff’s claims are all based on discrete occurrences which should have
alerted him to assert his rights at the time they occurred in 2012. Therefore, Plaintiff
cannot use the continuing violation doctrine to save these time‐barred claims. “[T]he
fact that he may continue to feel their effects does not extend the statute of limitations.”4
As explained in the Recommendation, although Plaintiff can use facts from this
time period to support his original procedural due process claims, he cannot bring these
new causes of action because they are barred by the statute of limitations.5 Thus,
Plaintiff’s Objection is OVERRULED.
b. New Unrelated Claims
The Court is also unconvinced by Plaintiff’s objection that his tort law and
deliberate indifference claims relating to the slip and fall incident, his RLUIPA claims,
and his access to the courts claims are related to and arise out of the same transaction or
occurrence as his original due process claims. As the Recommendation explains, these
claims arose from different transactions than his original due process claims and are
Omanwa v. Catoosa Cty., Georgia, No. 17‐11041, 2017 WL 4535856, at *3 (11th Cir. Oct. 11, 2017).
5 Bell v. Metro. Atlanta Rapid Transit Auth. (MARTA), 521 F. Appʹx 862, 864 (11th Cir. 2013) (“The
forum stateʹs statute of limitations for personal injury actions applies to § 1983 claims, which in
Georgia is two years.”).
not sufficiently related to be brought in the same case.6 Thus, Plaintiff’s Objection to the
dismissal of his tort law and deliberate indifference claims, his RLUIPA claims, and his
access to the courts claims is OVERRULED, and these claims are DISMISSED.
Finally, the Court agrees with the findings and conclusions of the Order and
Recommendation that Plaintiff’s proposed temporary restraining order be DENIED.
2. Original Procedural Due Process Claims
Having disposed of Plaintiff’s newly‐raised claims in his Amended Complaint,
the Court must now address Plaintiff’s original procedural due process claims as
amended by his Amended Complaint. Defendants seek to dismiss Plaintiff’s due
process claims for the following reasons: (1) a portion of Plaintiff’s claim is barred by
the statute of limitations; (2) Plaintiff is not entitled to the relief requested for lack of
physical injury; (3) Plaintiff’s claims against Defendants Chatman and McCloud fail
because they are based on supervisory liability; (4) Defendants are entitled to qualified
immunity; (5) Plaintiff’s claims against Defendants in their official capacities for
monetary damages are barred by the Eleventh Amendment; and (6) Plaintiff failed to
exhaust his administrative remedies for 13 out of 14 housing classification hearings.
Smith v. Owens, 625 F. Appʹx 924, 928 (11th Cir. 2015) (affirming the district court’s dismissal of
prisoner’s § 1983 complaint “because Rule 20(a) of the Federal Rules of Civil Procedure
precludes a plaintiff from joining unrelated claims against various defendants unless the claims
arose out of the same transaction.”).
a. Claims Arising Before October 28, 2015
The Court agrees Plaintiff’s due process claims arising from before October 28,
2015, should be dismissed as being time‐barred.
b. Lack of Physical Injury
Defendants argue Plaintiff is not entitled to his requested relief for monetary
damages because he lacks the requisite physical injury and because his request for an
injunction is improper. However, Plaintiff alleges in his Amended Complaint that he
has suffered physical damages as a result of his confinement, and thus his claims for
monetary damages can go forward. Moreover, at this point in the proceedings,
construing all allegations liberally in favor of the Plaintiff, the Court is unable to say
that Plaintiff’s request for injunctive relief is entirely frivolous, and will not dismiss it at
c. Respondeat Superior and Qualified Immunity
The Court agrees with the recommendation to allow Plaintiff’s claims against
Defendants Chatman and McCloud to continue, as Plaintiff asserts new allegations in
his Amended Complaint regarding these Defendants. Similarly, the Court agrees with
the recommendation to allow Plaintiff’s individual capacity claims to continue due to
Plaintiff’s new allegations. Therefore, the portions of Defendants’ Motion to Dismiss
seeking dismissal of Plaintiff’s claims against Defendants Chatman and McCloud under
a respondeat superior theory, and seeking dismissal of Plaintiff’s individual capacity
claims as barred by qualified immunity are denied without prejudice. Defendants may
reassert these defenses against Plaintiff’s Amended Complaint.
d. Official Capacity
Plaintiff objects to the recommendation to dismiss his official capacity claims as
barred by the Eleventh Amendment. Plaintiff argues the Court should allow him to
keep all Defendants through discovery so he may determine who is proper. Plaintiff
also argues he has sought injunctive and declaratory relief within his Amended
Complaint. As fully explained in the Order and Recommendation, claims for monetary
damages under Section 1983 against officials in their official capacities are barred by the
Eleventh Amendment.7 To the extent that Plaintiff is seeking monetary damages from
Defendants in their official capacities, those claims are DISMISSED.
However, Plaintiff also seeks injunctive and declaratory relief relating to his due
process claims. The Eleventh Amendment does not always prevent injunctive and
declaratory relief against officials in their official capacity. 8 “Prospective relief against a
state official in his official capacity to prevent future federal constitutional or federal
Ferguson v. Georgia Depʹt of Corr., 428 F. Supp. 2d 1339, 1352 (M.D. Ga. 2006) (dismissing claims
for damages under § 1983 against defendants in their official capacities as barred by the
8 Wells v. Columbus Tech. Coll., No. 4:11‐CV‐79 CDL, 2012 WL 1300276, at *4 (M.D. Ga. Apr. 16,
2012), affʹd, 510 F. Appʹx 893 (11th Cir. 2013).
statutory violations is not treated as an action against the state, and such relief is thus
not barred by the Eleventh Amendment.”9 In order to determine whether an official
capacity suit avoids an Eleventh Amendment bar, the “court need only conduct a
‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective.’” 10 Here, Plaintiff
alleges an ongoing violation of his constitutional rights11 and seeks prospective relief to
remedy this violation. To the extent that Plaintiff is seeking injunctive relief from
Defendants in their official capacities, those claims can go forward.
e. Exhaustion of Administrative Remedies
Finally, Plaintiff objects to the recommendation to dismiss all of his due process
claims for failure to exhaust his administrative remedies, except for claims arising from
his October 4, 2016 Classification Committee appeal. The Order and Recommendation
made factual findings on Plaintiff’s exhaustion of his administrative remedies using the
Standard Operating Procedure (“SOP”) for Tier II Administrative Segregation. As
Plaintiff points out, however, he was housed in Tier III, and thus the Tier III SOP
Id. (citing Ex parte Young, 209 U.S. 123 (1908)); see also Kentucky v. Graham, 473 U.S. 159, 167 n.
10 Verizon Md., Inc. v. Pub. Serv. Commʹn of Md., 535 U.S. 635, 645 (2002) (alteration in original)
(quoting Idaho v. Coeur dʹAlene Tribe of Idaho, 521 U.S. 261, 296 (1997) (OʹConnor, J., concurring)).
11 Although Plaintiff’s claims are not ongoing for purposes of extending the statute of
limitations, they are ongoing in the sense that he is still currently being housed in
administrative segregation allegedly without sufficient procedural protections.
applies to him. It is clear from the forms that Defendants attached to their Motion to
Dismiss regarding Plaintiff’s Classification Committee Reports that Plaintiff was housed
in Tier III, at least since March 11, 2014,12 and SOP IIB09‐0004 governs Tier III not the
Tier II SOP that Defendants attached. Without the correct SOP, the Court cannot make
the specific factual findings necessary to determine whether Plaintiff failed to exhaust
his administrative remedies. Thus, Defendants have failed to carry their burden under
Turner v. Burnside, and Plaintiff’s Objection regarding the dismissal of his procedural
due process claims for failure to exhaust is SUSTAINED. Defendants’ Motion to
Dismiss Plaintiff’s due process claims for failure to exhaust his housing classification
appeals is DENIED.
The Court CONSTRUED Plaintiff’s Objection as a Motion to File an Out of Time
Objection [Doc. 56], which is hereby GRANTED. For the reasons explained above, the
Court’s Order [Doc. 55] on October 12, 2017, adopting the Order and Recommendation
is hereby VACATED; the Order and Recommendation [Doc. 29] is ADOPTED‐IN‐
PART and REJECTED‐IN‐PART; Defendants’ Motion to Dismiss [Doc. 20] is
On March 11, 2014 the Classification Committee Report states “SMU Policy change to Tier III
program. Advised inmate Tier III Protocols and Procedures.” Motion to Dismiss [Doc. 20‐10] at
p. 25. From this date, the heading of the forms is Special Management Unit: Tier III Program,
and in the top right‐hand corner of these forms they list the SOP as IIB09‐0004. See generally,
Motion to Dismiss [Doc. 20‐10].
GRANTED‐IN‐PART AND DENIED‐IN‐PART; Plaintiff’s Motion to Amend [Doc. 24]
is GRANTED‐IN‐PART AND DENIED‐IN‐PART; and Plaintiff’s Motion to Appoint
Counsel [Doc. 25] is DENIED.
As a result of the rulings set forth above, only Plaintiff’s procedural due process
claims arising after October 28, 2015, against Defendants Bruce Chatman, June Bishop
William Powell, William McMillian, Rufus Logan, Rodney McCloud, Michael Cannon,
Caldwell, Betty Dean, Homer Bryson, Victor Walker, Timothy Ward, and Rick Jacob, in
their individual and official capacities—to the extent Plaintiff seeks equitable relief –
may go forward. All other claims against all other Defendants must be DISMISSED.
SO ORDERED, this 14th day of November, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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