CLARK v. FYE, et al
Filing
56
ORDER GRANTING in part and DENYING in part 39 Motion to Dismiss; and ADOPTING as modified and REJECTING in part 51 Report and Recommendations. Parties TONY HOWERTON (Smith State Prison), STEPHEN ROBERTS (W ashington State Prison), DERRICK SCHOFIELD (Georgia Diagnostic & Classification Prison/Jackson State Prison), RANDY TILLMAN (Ware State Prison), DENNIS BROWN (Augusta State Medical Prison) and HILTON HALL (Augusta State Medical Prison) are terminated. The remaining claims are against Defendants Fye, for damages and injunctive relief, and McLaughlin, for injunctive relief only. The stay on discovery is lifted. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/26/2019 (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ROBERT L. CLARK,
Plaintiff,
v.
CHIQUITA A. FYE, et al.,
Defendants.
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CIVIL ACTION NO. 5:18-cv-71 (MTT)
ORDER
United States Magistrate Judge Stephen Hyles recommends granting the
Defendants’ motion to dismiss. Doc. 51. The Plaintiff has objected to the
Recommendation, and pursuant to 28 U.S.C. § 636(b)(1), the Court has reviewed the
Recommendation de novo. For the following reasons, that Recommendation (Doc. 51)
is ADOPTED as modified in part and REJECTED in part, and the Defendants’ motion
to dismiss (Doc. 39) is GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiff Robert Clark brought this 42 U.S.C. § 1983 suit alleging that “[p]rison
officials have refused to treat [him] for Hepatitis B and for bi-polar disorder . . . going on
15 years.” Doc. 1 at 5. Liberally construing his complaint, he claims he arrived at
Macon State Prison around May 14, 2013, and immediately (i) requested a transfer for
medical reasons, and (ii) informed Defendant Fye, a doctor, of his conditions. Id.
Although “the Georgia Department of Corrections” apparently “took blood samples” at
some point, the Plaintiff claims he has not been treated. Id. He believes he is dying of
liver failure and alleges he suffers severe pain, among other alleged symptoms. Id. In
an amendment to the complaint, 1 the Plaintiff added as defendants all wardens of the
prisons where he had been incarcerated between 2004 and 2018, alleging that all “were
served with a copy of the [P]laintiff’s grievances” but did not intervene in his treatment.
Doc. 12 at 1. After screening, the remaining claims were Eighth Amendment deliberate
indifference to serious medical needs claims against Dr. Fye, Warden Howerton,
Warden Brown, Warden Hall, Warden Roberts, Warden Tillman, Warden Schofield, and
Warden McLaughlin. Doc. 15 at 4.
The Defendants moved to dismiss, arguing that the claims are time-barred, that
the Plaintiff fails to state a claim against the Defendant wardens, and that the claim for
injunctive relief against Defendant Fye is moot. See generally Doc. 39-1.
II. DISCUSSION
A. Standard
The Federal Rules of Civil Procedure require that a pleading contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must
contain sufficient factual matter to “‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “At the motion to dismiss stage, all well-pleaded facts are
accepted as true, and the reasonable inferences therefrom are construed in the light
1 The Court recognizes that an amended complaint generally supersedes the original complaint. Fritz v.
Standard Sec. Life Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982). The Court has, however,
determined that construing this pro se plaintiff’s original and amended complaint together will result in the
“orderly and expeditious disposition of” this case. In re Novak, 932 F.2d 1397, 1406 (11th Cir. 1991)
(quotations omitted). Thus, the Plaintiff’s original complaint is amended to include the additional content
shown in his amended complaint.
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most favorable to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261
(11th Cir. 2006) (internal quotation marks and citation omitted). However, “where the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[C]onclusory
allegations, unwarranted deductions of facts or legal conclusions masquerading as facts
will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002). Where there are dispositive issues of law, a court may dismiss a claim
regardless of the alleged facts. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist.,
992 F.2d 1171, 1174 (11th Cir. 1993).
B. Analysis
1. Claims for Damages against the Wardens
The Magistrate Judge recommends granting the motion to dismiss because the
claims are untimely. Doc. 51 at 7. The statute of limitations is an affirmative defense.
“Because [a] statute of limitations bar is an affirmative defense . . . plaintiff[s] [are] not
required to negate the affirmative defense in their complaint.” Alvarez v. U.S.
Immigration and Customs Enf’t, 818 F.3d 1194, 1229 (11th Cir. 2016) (quotation marks
and citation omitted). Rather, “[a] complaint is subject to dismissal for failure to state a
claim when its allegations, on their face, show that an affirmative defense bars recovery
on the claim.” Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (quotation marks
and citation omitted); see Lindley v. City of Birmingham, Ala., 515 F. App'x 813, 815
(11th Cir. 2013) (“[a]t the motion-to-dismiss stage, a complaint may be dismissed on the
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basis of a statute-of-limitations defense only if it appears beyond a doubt that Plaintiff[]
can prove no set of facts that toll the statute.” (quotation marks and citation omitted)).
The statute of limitations for the Plaintiff’s claims is two years, and the statute
begins to run when “‘the facts which would support a cause of action are apparent or
should be apparent to a person with a reasonably prudent regard for his rights.’” Doc.
51 at 5 (quoting Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003)).
The Defendants simply assert, conclusorily, that the “Plaintiff’s complaint and
amended complaint show that his claims are time-barred, especially as to the defendant
wardens,” because none of the Wardens, with the “possibl[e]” exception of McLaughlin,
comes within the two-year statute of limitations. Doc. 39-1 at 3. As to McLaughlin and
Fye, the doctor, the Defendants argue their failure to treat the Plaintiff in May 2013 was
apparent “almost five years before this matter was filed.” Id.
The Magistrate Judge recommends granting the motion to dismiss because the
Defendants have made out a statute of limitations defense. 2 Doc. 51. The Plaintiff
objects. In the objection, the Plaintiff claims that he filed “4 grievances against medical
over the course of 4+ years” and filed this suit after the fourth grievance had gone
unanswered for nine months. Doc. 53 at 1. 3 Because time taken to pursue
administrative remedies can toll the statute of limitations, Doc. 51 at 6, the Plaintiff’s four
2
The Recommendation addressed the possibility of tolling, but only in the context of the “continuing
violation doctrine[.]” Doc. 51 at 6.
3 Although Doc. 53 is an objection, the Court, where appropriate, construes pro se objections containing
new allegations as motions for leave to amend. See Newsome v. Chatham Cty. Det. Ctr., 256 F. App’x
342, 344 (11th Cir. 2007); Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). Because the
Plaintiff’s new allegations are in response to the Defendant’s statute of limitations defense, that motion
(Doc. 53) is GRANTED.
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years and nine months may well have tolled any claims accruing in May 2013.
Accordingly, it is possible that not all of the claims are time-barred. Doc. 12 at 1.
As to the wardens, however, the question of tolling need not be resolved.
Regardless of whether the claims are timely, they fail to state a claim against the
wardens. A supervisory official is not liable under § 1983 solely on the basis of
respondeat superior or vicarious liability. Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990). Instead, there must be an affirmative link between the defendant’s action
and the alleged constitutional deprivation. Gilmere v. City of Atlanta, 774 F.2d 1495,
1504 (11th Cir. 1985). A plaintiff must show one of the following: (1) personal
participation; (2) “a history of widespread abuse [that] puts the responsible supervisor
on notice of the need to correct the alleged deprivation, and he fails to do so;” (3) “a
supervisor’s custom or policy [that] results in deliberate indifference to constitutional
rights;” or (4) the “facts support an inference that the supervisor directed the
subordinates to act unlawfully or knew that the subordinates would act unlawfully and
failed to stop them from doing so.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.
2003) (quotation marks and citation omitted). Further, “to be sufficient to notify the
supervisor, the deprivations must not only be widespread, they also must be obvious,
flagrant, rampant and of continued duration, rather than isolated occurrences.” Gray v.
Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006).
The Plaintiff argues the Defendant Wardens violated his rights because all were
“served with a copy of the plaintiff’s grievances” while the plaintiff was incarcerated, but
“they all refused to act.” Doc. 12 at 1. One inmate’s grievances over a dispute with a
doctor, however, do not demonstrate a “history of widespread abuse” or “support an
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inference that the supervisor . . . knew the subordinates would act unlawfully.” Cottone,
326 F.3d at 1360. The grievances may have alerted the Warden that the inmate
disagreed with the doctor, but the Warden was entitled to rely on Defendant Fye’s
professional medical judgment. The Plaintiff, therefore, has failed to state a claim for
supervisory liability against the Defendant Wardens. The Recommendation is
ADOPTED as modified with regard to the claims for damages against the wardens,
and the motion to dismiss is GRANTED as to those claims.
2. Claims for Damages against Doctor Fye
The Defendants argue that the claims against Defendant Fye are barred by the
statute of limitations. They argue that according to the Plaintiff, he informed Fye of his
medical needs in May 2013, when he first requested treatment. Doc. 39-1 at 3. The
Defendants argue that because the Plaintiff had this conversation in May 2013, his
claims must have been apparent (that is, it must have been apparent that Fye would not
ever treat him) sometime before February 2016, two years before the suit was filed. Id.
They argue that as a consequence, all of his claims against her are barred. Id. at 4.
The Plaintiff, however, alleges that he has continued to seek medical care “for
going on 14 years” and that the staff “keep telling [him] that [he] do[es]n’t have Hep B.”
Doc. 1-1 at 1. The Defendants appear to argue that even the Plaintiff’s claims for Fye’s
failure to treat him within the two years prior to filing his complaint, which otherwise fall
within the statute of limitations, should be barred simply because Fye failed to treat him
in 2013, too. Doc. 39-1 at 2-3. The Defendants argue the 2013 deprivation gave the
Plaintiff notice of the Defendants’ conduct, so the statute of limitations on any claims for
those deprivations began running in 2013 (or not long thereafter), with the result that
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every claim for damages, whether it arose in 2013 or 2017, is time-barred. Id. at 3-4.
By that logic, even a claim for the refusal of medical care in 2017 would be barred,
because the statute of limitations began to run in 2013 and expired in 2015. The
Defendants cite no authority for the proposition that a claim can accrue, run, and expire
before the facts the claim is based on even occur. That argument is meritless. 4
Because the statute of limitations is two years, the Plaintiff can sue for
constitutional violations which occurred within two years of the complaint being filed.
See Knight v. Columbus, Ga., 19 F.3d 579, 582 (1994) (“Because each new violation
gives rise to a new cause of action, each [violation] begins a new statute of limitations
as to that particular event.”); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114,
(2002) (“Discrete acts such as termination, failure to promote, denial of transfer, or
refusal to hire are easy to identify. Each incident . . . constitutes a separate actionable
[violation]”). 5 The Plaintiff alleges Defendant Fye has refused to provide him medical
4 The Defendants’ counsel recently made this same argument in Sterling v. Sellers, 5:16-cv-13, arguing
the Plaintiff could not sue over the prison’s forbidding his observance of a Muslim holiday in 2014 and
2015, because the prison had also forbidden it in 2012, so the claim for the 2015 denial was time-barred
a year before it even happened. Sterling, Doc. 59-1 at 14. The Court rejected that argument in Sterling,
see Doc. 78 at 12-13. It is no more convincing here.
If the Court were to extend the rule of liberal construction to the Defendants’ brief, it could be arguing
that all of Defendant Fye’s refusals to treat the Plaintiff were merely consequences of a one-time refusal,
sometime between 2013 and February 2016 (the Defendants do not say when), to treat the Plaintiff. See,
e.g., Knox v. Davis, 260 F.3d 1009, 1015 (9th Cir. 2001). But Defendant Fye’s subsequent refusals to
treat the Plaintiff were, assuming she medically evaluated him more than once, a new decision not to
treat the Plaintiff and, thus, the basis for a new claim. Further, even if the one-time violation
characterization were plausible on these facts, the Defendants still have not carried their burden of
establishing a statute of limitations defense on that basis. And finally, the Defendants do not actually
argue that, at least not with any clarity.
5
The Plaintiff’s reply to the Defendants’ response to the objection cites this case as part of a “continuing
violation” argument. Doc. 55 at 4. In the cited case, the court uses the label of a continuing violation to
describe the general principle that claims outside the statute of limitations are time-barred and claims
within the statute of limitations are not. 19 F.3d at 580-82 (“[T]he plaintiffs can recover for any violations
for which the statute of limitations has not expired.”) (citation omitted). That phrase appears in different
cases as a label for a narrow doctrine which allows plaintiffs to bring claims based on events outside the
statute of limitations. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002).
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treatment in violation of the Eighth Amendment, and construing his complaint liberally,
he alleges she refused him medical care up until the time the complaint was filed.
Docs. 1 at 5; 1-1 at 1. The Defendants have not met their burden of establishing as a
matter of law that the claims are time-barred.
Claims arising outside the two-year limitations window—in this case, claims
based on acts which occurred before February 2016—are time-barred unless tolling
applies. Meyer v. Gwinnett County, 636 F. Appx. 487 (11th Cir. 2016). Tolling may
apply here for two reasons: first, the Plaintiff has spent time exhausting his remedies,
which may toll the statute of limitations. Docs. 1 at 3-4 (describing his grievance and
grievance appeal); 12 at 3 (referring to his grievances); see Leal v. Georgia Department
of Corrections, 254 F.3d 1276 (11th Cir. 2001) (vacating district court’s dismissal of a §
1983 suit on statute of limitations grounds because it was possible the Plaintiff’s
exhaustion of administrative remedies had tolled the statute of limitations).
Second, the Plaintiff argues that his mental incapacity tolls the statute of
limitations. Doc. 53 at 3 (citing Meyer, 636 F. Appx. 487 (reversing district court’s
dismissal on statute of limitations grounds)). 6 In Meyer, the court applied a Georgia-law
tolling provision for mental incapacity to a prisoner’s § 1983 claims. According to the
court, “[T]he test to be applied is whether the one claiming the disability has such
unsoundness of mind . . . as to incapacitate one from managing the ordinary business
of life.” Id. at 489 (quotation marks and citation omitted). Further, “the standard for
Inasmuch as the Plaintiff argues he can bring otherwise time-barred claims on the basis of a
“continuing violation” theory in this case, that argument is rejected. Where, as here, the Plaintiff alleges
discrete violations, the rule is that violations outside the statute of limitations are time-barred, while
violations within the statute of limitations are not time-barred. Id.
6
Although the Plaintiff did not allege mental incapacity in the complaint, “plaintiff[s] [are] not required to
negate the affirmative defense in their complaint.” Alvarez, 818 F.3d at 1229.
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alleging mental incapacity so as to invoke the tolling provision for mental incapacity and
withstand a motion to dismiss is not so onerous.” Id. The Plaintiff meets that standard
here: he alleges he is “suffering from mental incapacity.” Doc. 53 at 3. That is a terse
allegation, but at the motion to dismiss stage—and in a suit for failure to provide bipolar
medication—it is enough. See Doc. 1 at 5, 6.
The Defendants challenge the Plaintiff’s argument for mental incapacity in a
response to the Plaintiff’s objection. Doc. 54 at 2-3. The Defendants argue that
Plaintiff’s filings made in his voluminous litigational history demonstrate
that although he may not be a legal scholar capable of presenting many
valid legal claims, he is not and was never “legally incompetent because
of intellectual disability or mental illness.” O.C.G.A. § 9-3-90.
The Defendants appear to argue the quantity and quality of the Plaintiff’s lawsuits
demonstrate he is not legally incompetent. But the fact he is capable of filing
complaints does necessarily demonstrate, on a motion to dismiss, that he is capable of
“managing the ordinary business of life.” Meyer, 636 F. Appx. At 489. The filing of a
lawsuit, in other words, is not proof of soundness of mind. And notably absent from the
Defendants’ cursory argument is authority suggesting otherwise. The Defendants also
appear to imply the Plaintiff’s relatively clear briefing demonstrates he is not “legally
incompetent.” But again, the Defendants make no attempt to tie that argument to any
legal standard. It is, perhaps, an attempt at appeal to common sense, but it fails even
by that test; the fact one might be capable, in a moment of lucidity, of making a good
argument is not inconsistent with legal incompetence. 7 In any event, the Court cannot
7 Part of the Defendants’ argument seems semantic, relying on an implicit confusion between “legally
incompetent” meaning mentally incompetent as judged by a legal standard, and “legally incompetent”
meaning unskilled at the practice of law. Needless to say, if, as the Defendants appear to argue, the
ability to file a complaint and to argue mental incompetence are sufficient to disprove mental
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say that the Defendants have met their burden of establishing as a matter of law that
the Plaintiff is legally competent.
As to the claims against Fye, therefore, the claims based on facts which
happened within two years of the complaint are not time-barred, and the claims based
on facts which happened outside the two-year limitations period may or may not be
time-barred, depending on tolling. The Defendants, therefore, have not demonstrated
that the “allegations, on their face, show that an affirmative defense bars recovery on
the claim” or that the “Plaintiff[] can prove no set of facts that toll the statute.” Douglas,
535 F.3d at 1321 (quotation marks and citation omitted); Robinson, 327 F. App'x at 818.
The Defendants’ argument that the doctrine of laches bars the claims for injunctive relief
fails for the same reasons. See Doc. 39-1 at 4. For the claims arising within two years
of the date of the complaint, there was no delay in asserting the claim; for claims arising
before then, the Defendants have failed to establish that the Plaintiff’s delay was not
excusable—again, the Plaintiff spent time exhausting remedies and also alleges mental
incapacity—or that the Defendants suffered prejudice. 8 Id.; see United States v.
Barfield, 396 F.3d 1144, 1150 (11th Cir. 2005).
The Defendants do not raise any other grounds for dismissing the claims for
damages against Fye. Accordingly, the Recommendation (Doc. 51) is REJECTED as
to those claims, and the motion to dismiss (Doc. 39) is DENIED as to those claims.
incompetence, it is difficult to see how any pro se plaintiff could successfully argue they were entitled to
tolling for mental incompetence.
8
The statement that “in the intervening years, memories have almost certainly been lost” does not show
undue prejudice. Doc. 39-1. Nor are the Defendants entitled to the “presumption of prejudice” when the
statute of limitations has run (citing Watz v. Zapata Off-Shore Co., 500 F.2d 628, 633 (5th Cir.
1974); McMahon v. Pan American World Airways, Inc., 297 F.2d 268, 270 (5th Cir.
1962)), because they have not shown the statute of limitations has run.
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3. Claims for Injunctive Relief
The Defendants also move to dismiss the Plaintiff’s claims for injunctive relief.
The Report and Recommendation did not consider the claims for injunctive relief, no
doubt because it found the whole complaint was subject to dismissal on statute of
limitations grounds. The Court, therefore, considers that motion for the first time here.
In their brief in support of the motion to dismiss, the Defendants argue, based on
a hyperlink to a media article, that Fye retired, so the Plaintiff cannot bring claims for
injunctive relief against her. Doc. 39-1 at 8 (citing “Prison Doctor Resigns After Lawsuit
with Amputee is Settled,” Atlanta Journal-Constitution, https://www.ajc.com/news/state-regional-govt--politics/prison-doctor-resigns-after-lawsuit-with-amputeesettled/HvkqgYtJ3ygoX45kaApGlJ/). Warden McLaughlin, the Defendants argue, lacks
the medical training to treat the Plaintiff. Id. Accordingly, “[n]one of the Defendants . . .
is in any position to prove Plaintiff [sic] with any relief.” Id.
If Fye wishes to establish her retirement with appropriate evidence and raise the
issue in an appropriate way, she may attempt to do so. But a hyperlink to a newspaper
article is not enough to establish that Fye should be dismissed because she retired.
See Marous Bros. Const., LLC v. Alabama State Univ., 2008 WL 370903, at *3 (M.D.
Ala. Feb. 11, 2008) (applying the hearsay rule to exclude newspaper articles); Daniel E.
Feld, Admissibility of Newspaper Article as Evidence of the Truth of the Facts Stated
Therein, 55 A.L.R.3d 663, § 2[a]. The motion to dismiss the claims for injunctive relief
against Fye (Doc. 39) is DENIED.
As to McLaughlin, the Defendants argue only that the Warden is not competent
to personally provide the Plaintiff with medical treatment. Doc. 39-1 at 8. Liberally
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construed, however, the Plaintiff’s complaint is not seeking medical attention directly
from the Warden. See generally Doc. 12. Instead, the Plaintiff seeks an injunction for
the Warden to perform his duty of providing the Plaintiff with medical care consistent
with the Eighth Amendment. The Defendants’ argument—that Warden McLaughlin is
not a doctor—does not really address the Plaintiff’s claim, much less establish the
Defendants’ entitlement to have that claim dismissed. If the Plaintiff’s allegations that
he is systemically being denied constitutionally adequate medical care are true, Warden
McLaughlin may have a duty to remedy that, whether he is a doctor or not. The motion
to dismiss the claim for injunctive relief against Warden McLaughlin (Doc. 39) is
DENIED.
The claims for injunctive relief against the other Wardens are moot because the
Plaintiff is no longer incarcerated in their prisons. Zatler v. Wainwright, 802 F.2d 397,
399 (11th Cir. 1986). Surprisingly, the Defendants do not make that argument,
apparently relying more on those wardens’ lack of medical training. Doc. 39-1 at 8.
However, the Plaintiff’s complaint, as amended, identifies the Defendant Wardens only
as wardens of prisons where he used to be incarcerated. See generally Doc. 12. He
provides no basis for seeking injunctive relief against any of the wardens at prisons
where he is no longer incarcerated. Accordingly, the motion to dismiss the claims for
injunctive relief against Wardens Howerton, Roberts, Schofield, Brown, Tillman, and
Hall (Doc. 39) is GRANTED.
III. CONCLUSION
For the reasons stated, the Report and Recommendation (Doc. 51) is ADOPTED
as modified in part and REJECTED in part. It is ADOPTED as modified as to the
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claims for damages against Defendants Howerton, Roberts, Schofield, Brown, Tillman,
Hall, and McLaughlin, and the Defendants’ motion to dismiss (Doc. 39) is GRANTED as
to those claims. Those claims are DISMISSED with prejudice. The Report and
Recommendation is REJECTED as to the claim for damages against Defendant Fye,
and Fye’s motion to dismiss (Doc. 39) is DENIED as to that claim. Additionally,
although the Report and Recommendation did not address the claims for injunctive
relief, the Defendants’ motion to dismiss (Doc. 39) is GRANTED as to the claims for
injunctive relief against Defendants Howerton, Roberts, Schofield, Brown, Tillman, and
Hall, and those claims are DISMISSED with prejudice. It is DENIED as to the claims for
injunctive relief against Defendants Fye and McLaughlin. The remaining claims are
against Defendants Fye, for damages and injunctive relief, and McLaughlin, for
injunctive relief only. Because this Order resolves the motion to dismiss, the stay on
discovery (Doc. 42) is lifted.
SO ORDERED, this 26th day of March, 2019.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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