MCILWAIN v. BURNSIDE et al

Filing 71

ORDER ADOPTING 68 Report and Recommendations; and GRANTING in part and DENYING in part 49 Motion to Dismiss Complaint. McIlwain's retaliation claims against Adair and Uglee and his deliberate indifference claims against Adair and Burnside arising from failure to treat the symptoms of his medication are DISMISSED without prejudice. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 8/17/2021. (kat)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARCO MCILWAIN,
Plaintiff,
v.
DR. EDWARD BURNSIDE, et al.,
Defendants.
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CIVIL ACTION NO. 5:17-cv-363 (MTT)

ORDER
United States Magistrate Judge Stephen Hyles recommends granting in part and
denying in part the Defendants’ renewed motion to dismiss. Doc. 68. Plaintiff Marco
McIlwain did not object 1, so the Court reviews for clear error the recommendation to
grant in part the motion to dismiss. After review, the Court accepts and adopts the
findings, conclusions, and recommendations of the Magistrate Judge. That portion of
the Recommendation (Doc. 68) is ADOPTED and made the Order of the Court, the
Defendants’ motion to dismiss (Doc. 49) is GRANTED in part, and McIlwain’s
retaliation claims against Adair and Uglee and his deliberate indifference claims against

McIlwain did file a motion for appointment of counsel, primarily to aid in discovery. Doc. 70. The only
part of that document relevant to the issues raised by the Defendants’ renewed motion to dismiss is
McIlwain’s statement that he “will need assistance with depositions, interrogatories production, and
inspection of Grievance 227745.” Id. at 2. Whatever the relevance of that evidence will be to other
issues that may develop in the case, Grievance 227745 is relevant here only to the issue of whether
McIlwain exhausted his deliberate indifference claims related to his stab-wounds. Because the
Magistrate Judge recommended that the Court rule in McIlwain’s favor on that issue, the motion for
appointment of counsel does not affect the Court’s analysis of the Recommendation.
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Adair and Burnside arising from failure to treat the symptoms of his medication are
DISMISSED without prejudice.
The Defendants objected to the Magistrate Judge’s recommendation to deny
their motion to dismiss McIlwain’s deliberate indifference claims against Adair and
Burnside arising from their denial of medical treatment for injuries from his stab-wounds.
Doc. 69. Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo the
recommendation to deny in part the motion to dismiss. The parties do not dispute that
in Grievance 227745, McIlwain raised the issue of Adair’s and Burnside’s denial of
medical treatment for his stab-wounds. In their first motion to dismiss, the Defendants
claimed that grievance was untimely because it was filed September 2, 2016. Doc. 171 at 8-9. McIlwain filed a grievance receipt, purportedly for Grievance 227745, dated
August 26, 2016. The Defendants contended that receipt was a forgery. McIlwain
asked the Court to test that contention by examining tear-lines between his purported
grievance receipt and the copy of the grievance the Defendants submitted. The
Magistrate Judge recommended a finding of fact, at step two of the Turner v. Burnside
framework, that the grievance was filed September 2; the Court adopted that
recommendation. Docs. 27 at 6; 31. A panel of the Eleventh Circuit Court of Appeals
reversed after concluding that (i) the Recommendation’s factual findings at step two of
Turner were not sufficiently detailed to enable the panel to engage in “meaningful
review”, (ii) Grievance 227745 “alleged an ongoing failure to treat his injuries as of the
day he signed the grievance,” and (iii) the Court should have construed McIlwain’s

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argument about the tear-lines as a request for an evidentiary hearing and granted that
request. McIlwain v. Burnside, 830 F. App'x 606, 611 (11th Cir. 2020). 2
On remand, the Defendants filed a renewed motion to dismiss, and the
Magistrate Judge held an evidentiary hearing. In his second Recommendation, the
Magistrate Judge agreed with the panel that Grievance 227745 alleged an ongoing
failure to treat. Doc. 68 at 12. On that basis, he concluded that factfinding was
unnecessary because even if Grievance 227745 were filed on September 2, it would
still be timely. The Defendants objected, arguing that “Plaintiff never contended that he
was grieving anything beyond a denial of medical care on August 18 and 19, 2016.”
Doc. 69 at 3. They note that McIlwain himself described it as “‘the grievance for the
August 18, incident.’” Id. (quoting Doc. 1-1 at 15). But again, the panel clearly
interpreted the grievance to allege “an ongoing failure to treat his injuries as of the day
he signed the grievance,” and the Court agrees with that interpretation. 3 McIlwain, 830
F. App’x. at 611. For example, McIlwain claims in the grievance that he was told a
doctor would see him the “following morning,” but “that was not the case and I still have
yet to see any doctor regarding my pain.” Doc. 61-3 at 2.
The Defendants also argue that the Magistrate Judge erred by not making a
specific factual finding on the date the grievance was filed. Id. at 7. Certainly the
evidentiary hearing was helpful, and the Magistrate Judge is fully equipped, if it
becomes necessary, to make a specific finding as to the date the grievance was filed.

2 The panel also found other issues with the Recommendation and the Court’s order adopting it, but the
second Recommendation adequately addressed those issues, and neither party objected to those
portions of the second Recommendation.

As the Defendants note, is not clear that McIlwain agrees with that interpretation. See generally Doc.
69. Still, the grievance can fairly be interpreted that way.
3

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But in light of the grievance’s allegation of an ongoing injury, it is not necessary to make
such a finding to decide the Defendants’ motion. 4 For those reasons, the Court accepts
and adopts the findings, conclusions, and recommendations of the Magistrate Judge.
That portion of the Recommendation (Doc. 68) is ADOPTED and made the Order of the
Court, and the Defendants’ motion to dismiss is DENIED in part as to the deliberate
indifference claims arising from their denial of medical treatment for injuries stemming
from McIlwain’s stab-wounds.
SO ORDERED, this 17th day of August, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

4 The Defendants make much of their argument that “[o]n September 2, Plaintiff could not have been
complaining of a continuing failure to treat when the facts as alleged by Plaintiff show that he was seen
and treated in the days leading up to September 2, 2016.” Doc. 63 at 4. But McIlwain appears to have
dated his grievance August 24, 2016, which renders pointless any speculation about what date he might
or might not have drafted it. Doc. 61-3 at 2.

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