Dunn v. Hart et al
Filing
115
ORDER denying Plaintiff's 85 Motion for Reconsideration. The Court's Order dated March 9, 2015, remains the Order of the Court. Signed by Chief Judge Lisa G. Wood on 2/29/2016. (csr)
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CLEVELAND D. DUNN,
Plaintiff,
V.
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CIVIL ACTION NO.: 5:13-cv-131
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DARRELL HART, Warden, Ware State *
Prison; BARBARA J. MOORE, LPN, Ware *
State Prison; and MARY GAIL FERRÁ, NP, *
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Ware State Prison,
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Defendants.
ORDER
Presently before the Court is Plaintiff Cleveland Dunn's
Motion for Reconsideration, dkt. no. 85, to which Defendants
filed a Response, dkt. no. 86. Through this Motion, Plaintiff
requests that the Court reconsider and reverse its Order
granting Defendants' Motion to Dismiss in Part, dkt. no. 78.
For the reasons which follow, the Court DENIES Plaintiff's
Motion.
Background
Plaintiff, through counsel, filed this cause of action
pursuant to 42 U.S.C. § 1983. Dkt. No. 1. Plaintiff's action
centers on an attack he suffered at the hands of another inmate
while he was incarcerated at Ware State Prison in Waycross,
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Georgia. Plaintiff levied allegations that various prison
personnel failed to prevent the attack and others failed to
appropriately respond to the attack. Dkt. No. 1.
The Magistrate Judge conducted the requisite frivolity
review and ordered service of Plaintiff's Complaint upon some
Defendants and recommended the dismissal of Plaintiff's claims
against other Defendants. Dkt. Nos. 16, 18. The Court adopted
this recommendation as the opinion of the Court and dismissed
Plaintiff's claims against six Defendants. Dkt. No. 45.
The other Defendants upon whom the Magistrate Judge ordered
service of Plaintiff's Complaint then filed a Motion to Dismiss.
Dkt. No. 27. The Magistrate Judge initially recommended that
Defendants' Motion to Dismiss be granted based on Plaintiff's
failure to exhaust his administrative remedies prior to filing
this cause of action. Dkt. No. 46. However, based on
Plaintiff's Objections to that recommendation, the Magistrate
Judge vacated his Report and Recommendation and directed the
parties to offer explanations of several items bearing on the
issue of whether Plaintiff exhausted his administrative remedies
and to file any desired additional documentation. Dkt. Nos. 54,
69.
In his second Report and Recommendation, the Magistrate
Judge recommended that Defendants' Motion to Dismiss be granted
in part and denied in part. Dkt. No. 70. Pertinently, the
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Magistrate Judge recommended that the Court should dismiss
Plaintiff's claims against Defendant Edwards, as well as claims
against all Defendants for failure to protect, without prejudice
for failure to exhaust administrative remedies.' Id.
Plaintiff objected to the Report and Recommendation, and
Defendants responded. Dkt. Nos. 75, 76. The Court overruled
Defendants' Objections to the Report and Recommendation, as well
as Plaintiff's Objections. Dkt. No. 78. Among other things,
the Court's Order discussed at length Plaintiff's Objections
regarding his failure to exhaust his administrative remedies as
to his claims against Defendant Edwards and his failure to
protect claims. Id. at pp. 13-21. Ultimately, the Court
adopted the Magistrate Judge's Report and Recommendation as the
opinion of the Court. Plaintiff now seeks the Court's
reconsideration of its dismissal of Plaintiff's claims against
Defendant Edwards and his failure to protect claims. Dkt.
No. 85.
' The Magistrate Judge also recommended dismissal of all claims
against Defendants in their official capacities on Eleventh Amendment
immunity grounds. Additionally, the Magistrate Judge concluded that
Plaintiff's claims against Defendants Vaughn, Owens, and Sittnick
should be dismissed for failure to state a claim. However, the
Magistrate Judge recommended that the Court should deny Defendants'
Motion on statute of limitations grounds and that Plaintiff had stated
facially plausible claims against Defendants Moore, Ferra, and Hart
for deliberate indifference to Plaintiff's medical needs. Dkt. No.
70. Plaintiff does not challenge those issues in the instant Motion.
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DISCUSSION
In his Motion, Plaintiff asserts that he filed his
grievances about his medical care and failure to protect after
his transfer from Ware State Prison to Calhoun State Prison.
Dkt. No. 85, p. 2. Thus, Plaintiff maintains, his references to
Ware State Prison should not be read to the exclusion of Calhoun
State Prison. Id. Plaintiff contends he was grieving about the
deficient care he claims to have received at both institutions,
including the treatment by Defendant Edwards, based on his
request to be transferred to Augusta State Medical Prison
immediately. Id.
Plaintiff also avers his "request for treatment and
protection from retaliation," and "the indication of its
urgency" would not have been necessary had he been receiving
adequate treatment at Calhoun State Prison. Id. In addition,
Plaintiff notes the response he received to his grievance, in
which it was determined Ware State Prison's security staff
followed proper procedure. According to Plaintiff, this finding
is inconsistent with the Court's finding that Plaintiff's
grievance failed to set forth any facts putting officials on
notice of his failure to protect claim. Plaintiff further
asserts he was informed by a counselor that it was not necessary
to grieve each and every issue relating to his medical care
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since it was an ongoing issue which had already been grieved.
I. at p. 4.
In their Response, Defendants note that Plaintiff has made
some of these same contentions on previous occasions.
Specially, they contend that Plaintiff rehashes arguments that
the Court already rejected regarding his exhaustion attempts
relating to Defendant Edwards. Dkt. No. 86, p. 2.
Defendants
also note that the Court viewed the allegations contained in
Plaintiff's grievances in the light most favorable to him. Id.
at pp. 2-3.
Defendants point out that Plaintiff recognizes
there is no argument with the law applied in this case. Yet,
they contend, he requests the Court reconsider its previous
rulings, despite Plaintiff having presented these arguments on
previous occasions or failing to show he could not previously
raise his assertions prior to the present Motion.
A motion for reconsideration, or a Federal Rule of Civil
Procedure 59(e) motion, is "an extraordinary remedy, to be
employed sparingly." Smith ex rel. Smith v.
Augusta-Richmond
Cty., No. CV 110-126, 2012 WL 1355575, at *1 (S.D. Ga. Apr. 18,
2012) (internal citation omitted) . "A movant must set forth
facts or law of a strongly convincing nature to induce the court
to reverse its prior decision." Id. (internal citation
omitted). "The only grounds for granting a Rule 59 motion are
newly-discovered evidence or manifest errors of law or fact."
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Jacobs v. Tempur-Pedic Intern., Inc., 626 F. 3d 1327, 1344 (11th
Cir. 2010) (quoting In re Kellogg, 197 F.3d 1116, 1119 (11th
Cir. 1999) (internal punctuation omitted)). "A Rule 59(e)
motion cannot be used to relitigate old matters, raise argument
or present evidence that could have been raised prior to the
entry of judgment." Id. (quoting Michael Linet, Inc. v.
Village of Wellington, Fla., 408 F.3d 757, 763 (11th dr. 2005)
(alterations omitted).
A review of Plaintiff's Motion reveals nothing more than a
request for the undersigned to re-examine the Court's March 9,
2015, ruling. Dkt. No. 78. Plaintiff has made these same
arguments on previous occasions, and they were rejected after a
thorough discussion in the Report and Recommendation and Order.
The Court will not allow Plaintiff to have what will amount to
at least his third bite at the exhaustion apple. Plaintiff
asserts for the first time in his Motion that he was told he did
not need to grieve each and every issue relating to his medical
care since it was an ongoing issue which had already been
grieved. However, Plaintiff fails to cite anything in the
record supporting this assertion. 2 In addition, Plaintiff fails
to show that his deliberate indifference claims stemming from
one prison carried over to the transferee prison as an ongoing
2
On this point, it is important to note that the Magistrate Judge, and
hence, this Court, proceeded to the second exhaustion step pursuant to Turner
v. Burnside, 541 F.3d 1097 (11th Cir. 2008), and resolved disputes regarding
exhaustion by examining evidence outside the pleadings. Dkt. No. 70, p. 9.
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issue which need not have been grieved at the second prison.
Moreover, Plaintiff provides no rationale for his failure to
present this assertion on a previous occasion, particularly in
light of Plaintiff having several opportunities to do so.
CONCLUSION
Put succinctly, Plaintiff fails to show that the Court made
a manifest error of law or fact warranting reconsideration.
Consequently, Plaintiff's Motion for Reconsideration is DENIED.
The Court's Order dated March 9, 2015, remains the Order of the
Court.
SO ORDERED,
this
/( o f
LISA J,GODBEY WOOD, CHIEF JUDGE
UNIT/ED STATES DISTRICT COURT
OtYtHERN DISTRICT OF GEORGIA
.\O 72\
7
, 2016.
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