Glover v. Haynes et al

Filing 41

ORDER ADOPTING 37 Report and Recommendations of the Magistrate Judge. Plaintiff's objections are overruled. Defendants' 26 Motion for Summary Judgment is granted in part. Defendants' 20 Motion to Dismiss is granted in part. Plaintiff's "motion for summary judgment" is denied. The Clerk is directed to enter the appropriate Judgment of Dismissal. Signed by Chief Judge Lisa G. Wood on 4/9/2012. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

NATHAN GLOVER,
Plaintiff,
vs.

CIVIL ACTION NO.: CV2II-114

ANTHONY HAYNES, Warden,
and MARVIN SLUSSER,
Defendants.
ORDER
Plaintiff filed Objections to the Magistrate Judge's Report dated March 21, 2012,
which recommended that Defendants' Motion to Dismiss be granted in part, that
Defendants' Motion for Summary Judgment be granted, and that Plaintiffs "motion for
summary judgment" be denied. Plaintiff has brought some general objections as well as
objections to several of the specific recommendations made by the Magistrate Judge.
After an independent and de nova review of the record, the undersigned concurs with
the Magistrate Judge's Report and Recommendation.
I. Plaintiff's general objections
Plaintiff states that he first objects to the Magistrate Judge's Report pursuant to
Crawford-El v. Britton, 523 U.S. 574 (1998), wherein the Supreme Court decided that a
plaintiff bringing a constitutional action against a government official for damages, for
which the official's improper motive is a necessary element, does not have to adduce
clear and convincing evidence of that official's improper motive in order to defeat the

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official's motion for summary judgment. The Magistrate Judge's recommendations are
premised upon, in most instances, Plaintiffs failure to state a claim for relief; upon, in
one instance, Plaintiff's failure to exhaust administrative remedies; and upon, in one
instance, Plaintiffs inability to show a genuine dispute as to any material fact. None of
the Magistrate Judge's recommendations were premised upon Plaintiffs inability to
adduce clear and convincing evidence.
Next, Plaintiff states that the Magistrate Judge continually overlooked facts by
construing everything Plaintiff stated as conclüsory allegations. Plaintiff lists five "facts"
supposedly overlooked by the Magistrate Judge. Upon review of the Magistrate
Judge's Report, it appears that all of these statements were accepted as facts as a
result of their inclusion in Plaintiff's several Affidavits. 1 But these facts do not
necessarily support the causes of action brought in Plaintiffs Complaint, as discussed in
the Magistrate Judge's Report and below.
Plaintiff asserts that "the Court prejudiced the record by denying 'Discovery' by
Interrogatories and by ignoring Rule 56 requirement that affidavits be refuted by
affidavit." (Doc. No. 39, p. 2). It should be noted that Plaintiff's objection regarding
interrogatories is an objection to the Magistrate Judge's Order dated February 27, 2012,
wherein discovery was stayed and Defendants were protected from any requirement to
respond to the interrogatories served by Plaintiff. The undersigned agrees with the
Magistrate Judge's stay of discovery due to the Defendants' assertion of the defense of
qualified immunity, which is pending before the Court. See Ashcroft v. lcibal, 556 U.S.
1

The Magistrate Judge stated that "[t]he Court has accepted as evidence portions of the "affidavits" that
arguably state facts as opposed to coriclusory allegations." (Doc. No. 37, p. 2). It is unclear whether
Plaintiffs second statement, that "Plaintiff was denied camp while white inmates with greater criminal
history were sent," (Doc. No. 39, p. 2), meets the requirements for affidavits set out in Federal Rule of
Civil Procedure 56(c)(4); however, the Court has accepted this statement as a fact.
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662, 129 S. Ct. 1937, 1953 (2009) ("The basic thrust of the qualified-immunity doctrine
is to free officials from the concerns of litigation, including avoidance of disruptive
discovery.") (internal quotations and citation omitted). As to Plaintiffs objection relating
to affidavits, there is no requirement in Federal Rule of Civil Procedure 56 that affidavits
be refuted by affidavits. In pertinent part, the Rule states:
(c) PROCEDURES
(1) Supporting Factual Positions. A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
FED. R. Civ. P. 56(c)(1). Defendants were not required to refute Plaintiffs Affidavits with
affidavits of their own. Instead, Defendants permissibly relied on Plaintiffs failure to
state claims in their Motion to Dismiss and on Plaintiffs medical records in their Motion
for Summary Judgment.
Finally, Plaintiff states that "as stated in Affidavit the leaking in white inmates'
room in BI Upper (214 room) and (215 room) required their removal from such
conditions, but this Plaintiff being a black inmate was treated different from the white
inmate." (Doc. No. 39, p. 3). Plaintiff did not allege an equal protection violation in
relation to the mold in his cell in his Complaint. To the extent Plaintiff attempts to use
his Objections to the Magistrate Judge's Report and Recommendation to raise new
claims, such an attempt is improper. See Thomas v. Kem p , 2010 WL 4860614, *1 n.1
(S.D. Ga. Nov. 23, 2010) (noting that "Objections to a Report and Recommendation are
not the proper vehicle in which to attempt to raise additional claims"). Plaintiffs attempt

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to raise an equal protection claim in relation to the mold in his cell at this stage is
Improper.
II. Plaintiff's objections to specific recommendations
A. Plaintiff's objections to the Magistrate Judge's recommendation of
granting Defendants' Motion for Summary Judgment2
The Magistrate Judge determined that summary judgment is appropriate on
Plaintiffs Eighth Amendment deliberate indifference claim against Defendant Haynes.
The Magistrate Judge found that "Plaintiff has not shown that his medical problems
were attributed to mold in his cell; therefore, he cannot prove that Defendant Haynes
knew that the alleged mold created a risk of serious harm. Without that causal
connection, Plaintiff cannot succeed on a claim for deliberate indifference against
Defendant Haynes." (Doc. No. 37, p. 15) (footnote omitted).
Plaintiff avers that he "has proven more than causal connection that illness
occurred during the time of leak and mold and no medical test shows that illness wasn't
caused by this. For it is asserted that the medical records fail to show that Plaintiff still
suffers from the respiratory illness and the skin rash hinders his ability to grow his hair
back in certain spots." (Doc. No. 39, p. 2). The Court does not dispute Plaintiffs
assertion that he still suffers from respiratory illness and the effects of his skin rashes.
But Plaintiff has not shown that his health issues were caused by the mold in his cell.
The only "evidence" Plaintiff has presented to support his contention that his health
issues are caused by the mold in his cell is his own assertion of causation. As the

2

Defendants moved for summary judgment on Plaintiffs Eighth Amendment deliberate indifference
claims against both Defendant Haynes and Defendant Slusser. They had previously moved for dismissal
of Plaintiffs Eighth Amendment claims. The Magistrate Judge recommended dismissal of Plaintiffs claim
against Defendant Slusser and summary judgment on Plaintiffs claim against Defendant Haynes.
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Magistrate Judge noted, "Plaintiff has not been qualified as an expert to provide an
opinion as to the cause of his medical problems under Federal Rule of Evidence 702."
(Doc. No. 37, p. 15 n.2). Plaintiff's assertions of causation cannot be construed as
evidence for the purpose of defeating Defendants' Motion for Summary Judgment.
Because Plaintiff has presented no evidence of causation between his medical
problems and the mold in his cell, Plaintiff cannot prove that Defendant Haynes knew
that the alleged mold created a risk of serious harm. As a result, Plaintiff cannot prove
that Defendant Haynes "acted with deliberate indifference to [Plaintiffs] serious medical
need." Goebert v. Lee Cnty ., 510 F.3d 1312, 1326 (11th Cir. 2007).

B. Plaintiffs objections to the Magistrate Judge's recommendation of
dismissal of Plaintiffs claim against Defendant Slusser for retaliation in relation
to the doll incident3.
The Magistrate Judge determined that Plaintiffs claim against Defendant Slusser
for retaliation in relation to the doll incident should be dismissed. The Magistrate Judge
found that "Plaintiff has not shown that Defendant Slusser's alleged hanging of a black
doll was directed at him. . . . Plaintiff has provided no facts showing that there is a
causal connection between his filing of grievances and Defendant Slusser's alleged
hanging of a black doll." (Doc. No.. 37, pp. 10—I1).
Plaintiff correctly states that he "does not have to prove by clear and convincing
evidence the motive was improper by Martin Slusser." (Doc. No. 39, p. 3). But in order
to state a claim for retaliation, Plaintiff must provide some facts showing that "there is a
causal relationship between the retaliatory action and the protected speech." Smith v.

a

Defendants did not move for dismissal of this claim because it was not clearly brought in Plaintiffs
Complaint

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Mosley, 532 F3d 1270, .1276 (11th Cir. 2008) (citation omitted). As the Magistrate
Judge determined, Plaintiff provided no facts showing a causal relationship between
Defendant Slusser's hanging of a black doll and Plaintiff's filing of grievances against
Defendant Slusser. Plaintiff has not provided any evidence showing that Defendant
Slusser's hanging of a black doll was a result of Plaintiffs grievances. See O'Brvant v.
Finch, 637 F.3d 1207, 1212 (11th Cir. 2011) ("An inmate may maintain a cause of action
for retaliation . . . by showing that a prison official's actions were the result of [the
inmate's] having filed a grievance.]") (emphasis and first alteration in original) (internal
quotations and citation omitted).
C. Plaintiff's objections to the Magistrate Judge's recommendation of
granting Defendants' Motion to Dismiss Plaintiffs claim against Defendant
Slusser for retaliation in relation to Plaintiffs cell condition and Plaintiff's claim
against Defendant Slusser for deliberate indifference
The Magistrate Judge determined that Plaintiffs claim against Defendant Slusser
for retaliation in relation to Plaintiff's cell condition and Plaintiffs claim against
Defendant Slusser for deliberate indifference should be dismissed. With regard to
Plaintiffs retaliation claim, the Magistrate Judge found that "Plaintiff has not alleged that
Defendant Slusser had any decision-making authority regarding his cell." (Doc. No. 37,
p. 9). With regard to Plaintiff's deliberate indifference claim, the Magistrate Judge found
that Plaintiff did not allege in his Complaint that Defendant Slusser was aware of the
presence of mold in his cell, and, to the extent that Plaintiff made such an allegation in
his Response to Defendants' Motion for Summary Judgment, Defendant Slusser would

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be entitled to summary judgment for the same reason as Defendant Haynes, as
discussed above. (Doc. No. 37, pp. 13-14).
Plaintiff "asserts that the Magistrate is wrong by stating that he has not shown
that Defendant Slusser was not involved in denying his room change, for Plaintiff has
provided by Affidavit that Slusser with Counselor Mallard let him know they won't move
him[]" (Doc. No. 39, p. 3). Even accepting as fact Plaintiffs assertion that Defendant
Slusser told Plaintiff that Plaintiff would not be moved to a new cell, Plaintiff still has not
shown that he can prove his claims. As the Magistrate Judge noted, Plaintiff has not
alleged that Defendant Slusser had any decision-making authority regarding his cell. As
a result, Plaintiff has not alleged that Defendant Slusser took any adverse action against
him relating to his cell or that Defendant Slusser had a duty to act and failed to do so.
Consequently, Plaintiff has not stated a claim against Defendant Slusser for retaliation
with regard to his cell conditions. Additionally, to the extent that Defendant Slusser
knew of the mold in Plaintiffs cell, Defendant Slusser is entitled to summary judgment
on Plaintiffs deliberate indifference claim for the same reason Defendant Haynes is
entitled to summary judgment, as discussed above.
D. Plaintiff's objections to the Magistrate Judge's recommendation of
granting Defendants' Motion to Dismiss Plaintiff's claim against Defendant
Slusser for retaliation in relation to Defendant Slusser's alleged verbal threat of
transfer to a different prison
The Magistrate Judge determined that Plaintiff failed to exhaust his
administrative remedies with respect to his claim against Defendant Slusser for
retaliation in relation to Defendant Slusser's alleged verbal threat of transfer to a

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different prison. Plaintiff asserts that this claim was exhausted because Administrative
Remedy Number 627433-Fl, the institutional grievance, encompassed several verbal
attacks. Upon review of all three levels of Administrative Remedy 627433, it is clear
that this particular grievance first appears in Administrative Remedy Number 627433R1, an appellate level of the administrative remedy process for Administrative Remedy
627433. (Doc. No. 26-1, pp.1, 3). Plaintiff avers that he could not state his grievances
with specificity at the institutional level because those grievances go to Defendant
Slusser. However, in his institutional grievance, Plaintiff felt comfortable detailing other
verbal threats allegedly made. Plaintiffs argument does not persuade the Court to
excuse his failure to properly exhaust his administrative remedies with regard to his
claim against Defendant Slusser for retaliation in relation to Defendant Slussers alleged
verbal threat of transfer to a different prison.
III. Conclusion

Plaintiffs Objections to the Magistrate Judge's Report and Recommendation are
without merit and are overruled. The Report and Recommendation of the Magistrate
Judge is adopted as the Opinion of the Court.
Defendants' Motion to Dismiss is GRANTED in part. Plaintiffs claims for
violation of his equal protection rights against Defendants Slusser and Haynes are
DISMISSED. Plaintiffs claims for retaliation against Defendant Slusser with regard to

Plaintiffs cell condition and Defendant Slusser's alleged verbal threat of transfer to a
different prison are DISMISSED. Plaintiffs claim for retaliation against Defendant
Haynes is DISMISSED. Plaintiffs claim for deliberate indifference against Defendant

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II

Slusser is DISMISSED. Plaintiffs claims for punitive damages against Defendants
Haynes and Slusser are DISMISSED.
Plaintiffs claim for retaliation against Defendant Slusser with regard to the doll
incident, which Defendants did not move to dismiss, 4 is DISMISSED.
Defendants' Motion for Summary Judgment is GRANTED in part. 5 Summary
judgment in favor of Defendant Haynes is GRANTED on Plaintiffs claim for deliberate
indifference.
Plaintiffs "motion for summary judgment" is DENIED. The Clerk is directed to
enter the appropriate Judgment of Dismissal.
SO ORDERED, this Aday of/

2012.

LISA 1J YWOOD,CHGE
ICT COURT
UNIT )STA
SOy ERN DISTRICT OF GEORGIA

As previously noted, Defendants did not move for dismissal of this claim because it was not clearly
brought in Plaintiffs Complaint. However, Plaintiff has failed to allege facts sufficient to state a claim
upon which relief can be granted.
The remaining portion of Defendants' Motion for Summary Judgment, wherein Defendants seek
summary judgment in favor of Defendant Slusser on Plaintiffs claim for deliberate indifference against
Defendant Slusser, need not be addressed because that claim has been dismissed.
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