Dunn v. Hart et al
Filing
78
ORDER ADOPTING the Magistrate Judge's 70 Report and Recommendations, and Granting in part and Denying in part Defendants' 27 Motion to Dismiss. Plaintiff's failure to protect claims against all Defendants and all claims against D efendant Edwards are Dismissed without prejudice for failure to exhaust administrative remedies. The parties' Objection to the Magistrate Judge's Report and Recommendation are OVERRULED. Plaintiff's monetary damage claims against Def endants in their official capacities and his deliberate indifference claims against Defendants Owens, Sittnick, and Vaughn are Dismissed. Plaintiff's deliberate indifference claims against Defendant Moore, Ferra, and Hart remain pending. Signed by Chief Judge Lisa G. Wood on 3/9/2015. (csr)
N the Mutteb Statto Otfitrftt Court
for the 6outbern 1DitrIct of Otorgia
Vaptr000 flthicion
CLEVELAND D. DUNN,
Plaintiff,
V.
DARRELL HART, Warden, Ware
State Prison; BARBARA J. MOORE,
LPN, Ware State Prison; MARY GAIL
FERRA, NP, Ware State Prison;
H. VAUGHN, Director of Nursing,
Ware State Prison; LARRY EDWARDS,
Physician's Assistant, Calhoun State
Prison; BRIAN OWENS, Commissioner;
and THOMAS E. SITTNICK, Director
of Health Services, Georgia
Department of Corrections,
Defendants.
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CIVIL ACTION NO.: CV513-131
ORDER
Presently before the Court are Defendants' and Plaintiff's
Objections to the Magistrate Judge's Report and Recommendation,
dkt. no. 70, and Defendants' Response to Plaintiff's Objections.
After an independent and de novo review of the entire record,
the undersigned OVERRULES the parties' Objections, concurs with
the Magistrate Judge's Report and Recommendation, and ADOPTS the
Report and Recommendation, as supplemented below, as the opinion
of the Court.
AO 72A
(Rev. 8/82)
BACKGROUND
Plaintiff, through counsel, filed this cause of action
pursuant to 42 U.S.C. § 1983. Dkt. No. 1. The Magistrate Judge
conducted the requisite frivolity review and ordered service of
Plaintiff's Complaint upon the captioned Defendants and
recommended the dismissal of Plaintiff's claims against certain
entities. Dkt. Nos. 16, 18. The undersigned adopted this
recommendation as the opinion of the Court, and dismissed
Plaintiff's claims against Lt. FNU Adams, Georgia Correctional
Healthcare, Robert Bradford, Bill Nichols, the Georgia
Department of Corrections, and John Doe. Dkt. No. 45. Those
Defendants upon whom the Magistrate Judge ordered service of
Plaintiff's Complaint 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. No. 54, 69.
After the parties responded to the Magistrate Judge's
directives, he entered the Report and Recommendation, dkt.
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no. 70, to which the parties have now objected. In that Report
and Recommendation, the Magistrate Judge recommended that
Defendants' Motion to Dismiss should be granted in part and
denied in part. Specifically, the Magistrate recommended
Plaintiff's claims against Defendant Edwards, as well as his
claims against all Defendants for failure to protect, should be
dismissed without prejudice for failure to exhaust
administrative remedies. The Magistrate also recommended
dismissal of all claims against Defendants in their official
capacity on Eleventh Amendment immunity grounds. Additionally,
the Magistrate concluded that Plaintiff's claims against
Defendants Vaughn, Owens, and Sittnick should be dismissed for
failure to state a claim. However, the Magistrate concluded
that Defendants' Motion on statute of limitations grounds should
be denied and that Plaintiff had stated facially plausible
claims against Defendants Moore, Ferra, and Hart for deliberate
indifference to Plaintiff's medical needs. The undersigned
addresses the parties' Objections to the Magistrate's Report and
Recommendation as follows.
DISCUSSION
I. Defendants' Objections
Defendants do not object to the Magistrate Judge's
conclusion that Plaintiff exhausted his administrative remedies
as to his deliberate indifference claims against Defendants
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Moore, Ferra, and Hart. However, Defendants do object to the
recommendation that Plaintiff filed his claims within the
applicable statute of limitations period. In addition,
Defendants contest the Magistrate Judge's conclusion that
Plaintiff has stated cognizable claims against Defendants Moore,
Ferra, and Hart and that these Defendants are not entitled to
qualified immunity. The Court addresses these lines of argument
in turn.
A. Defendants' Statute of Limitations Objections
Defendants assert that, while the Magistrate Judge
recognizes that Georgia law does not permit tolling of the
applicable statute of limitations period, he did not apply
Georgia law to this case. Defendants contend that the cases
from other Circuits the Magistrate Judge cited in reaching his
conclusion that Plaintiff is entitled to tolling were based on
those courts' reliance on the laws of the states in those
Circuits. Defendants assert that Georgia law should be applied,
and Georgia law reveals that tolling of the limitations period
is inapplicable to the time period during which Plaintiff was
pursuing his administrative remedies. Defendants also assert
that Plaintiff's cause of action is time barred because his
deliberate indifference claims accrued no later than October 24,
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2011, when outside doctors informed him that he needed facial
surgery.' Dkt. No. 72, pp. 4-7.
Constitutional claims brought pursuant to Section 1983 "are
tort actions, subject to the statute of limitations governing
personal injury actions in the state where the § 1983 action has
been brought." Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir.
2011) . Georgia has a two-year statute of limitations for
personal injury actions. O.C.G.A. § 9-3-33. Although state law
determines the applicable statute of limitations, "[f]ederal law
determines when the statute of limitations begins to run."
Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003). As a
general rule, "the statute of limitations does not begin to run
until 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." Id.
In addition to complying with the statute of limitations,
prisoners seeking relief for alleged constitutional violations
must first exhaust inmate grievance procedures before filing
suit in federal court. See Porter v. Nussle, 534 U.S. 516, 524
(2002). 42 U.S.C. § 1997e(a) states, "No action shall be
brought with respect to prison conditions under section 1983 of
1
Because Defendants do not object to the Magistrate Judge's conclusion that
Plaintiff exhausted his administrative remedies as to his deliberate
indifference claims against the Ware State Prison Defendants, the undersigned
addresses exhaustion only to the extent it has a bearing on the Magistrate
Judge's conclusions regarding tolling of the statute of limitations, to which
Defendants do object.
AO 72A
(Rev. 8/82)
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this title, or any other Federal law . . . until such
administrative remedies as are available are exhausted." In
Porter, the United States Supreme Court held that exhaustion of
available administrative remedies is mandatory. Porter, 534
U.S. at 523. The Supreme Court has noted exhaustion must be
"proper." Woodford v. Ngo, 541 U.S. 81, 92 (2006). "Proper
exhaustion demands compliance with an 'agency's deadlines and
other critical procedural rules because no adjudicative system
can function effectively without imposing some orderly structure
on the course of its proceedings." Id. at 90-91. In other
words, an institution's requirements define what is considered
exhaustion. Jones v. Bock, 549 U.S. 199, 218 (2007).
Plaintiff submitted his final appeal of the denial of his
grievance on December 8, 2011, and it was received by Alexander
Jordan, who is a counselor at Calhoun State Prison. Dkt.
No. 56-1, p. 5. Plaintiff exhausted his administrative remedies
while in prison. Because exhaustion of Plaintiff's
administrative grievance was a mandatory precondition of filing
suit in federal court, the issue is whether the limitations
period should be tolled due to Plaintiff's compliance with the
Prison Litigation Reform Act's ("PLRA") provisions.
Tolling is governed by state law. Because the events
giving rise to Plaintiff's cause of action allegedly occurred in
Georgia, Georgia's laws regarding tolling apply. Georgia law
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does not permit tolling of the limitations period based on a
litigant's incarceration status. O.C.G.A. § 9-3-90(b). Though
Plaintiff contends that his claims arose while he was
incarcerated, he does not argue that the limitations period
should be tolled merely due to that incarceration. Rather, he
posits that, because he was prevented from bringing this cause
of action until he exhausted his administrative remedies, the
statute of limitations was tolled while he pursued those
remedies. Dkt. No. 40, p. 7. In support of this position,
Plaintiff cites to the Court's decision in Watkins v.
Haynes, 2:12-CV-50 (S.D. Ga. Mar. 27, 2013) (Wood, J.).
In Watkins, the Court noted that Georgia has not recognized
an "administrative exhaustion" tolling doctrine separate and
apart from equitable tolling. However, this Court applied the
policies and rationale from Georgia case law and found that the
plaintiff was entitled to equitable tolling of the limitations
period for the time in which he was required to pursue
administrative remedies. Watkins, 2:12-CV-50, Dkt. No. 44,
pp. 17-27, (citing Leal v. Ga. Dept. of Corr., 254 F.3d 1276,
1279 (11th Cir. 2001) ("[TJhe plain language of th[e] statute
makes exhaustion a precondition to filing an action in federal
court.") (citation omitted); Priester v. Rich, 457 F. Supp.2d
1369, 1373 (S.D. Ga. 2006),
AO 72A
(Rev. 8/82)
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aff'd sub nom., Bryant v. Rich, 530
7
F.3d 1368 (11th Cir. 2008) ("Administrative grievance procedures
must be exhausted prior to suit.")
Georgia has no statutory tolling provision which addresses
Plaintiff's assertion that the statute of limitations period
applicable to Section 1983 actions should have tolled while he
exhausted his administrative remedies. Moreover, as explained
in Watkins, the Supreme Court of Georgia has not addressed
"whether the limitations period is equitably tolled while a
plaintiff exhausts the PLRA's administrative review process."
Watkins, 2:12-CV-50, Dkt. No. 44, p. 18. Consequently, the
limitations period was not explicitly tolled by Georgia statute
or case law.
However, the Court found equitable tolling warranted based
on Georgia case law outlining the purposes of limitations
periods and establishing equitable tolling in other contexts.
The Court need not restate its analysis from Watkins at length
herein. However, the Court's discussion of Georgia equitable
tolling cases including opinions that had addressed tolling in
the contexts of class actions, worker's compensation claims, and
arbitration remedies is instructive. Watkins, 2:12-CV-50, Dkt.
No. 44, pp. 19-23 (citing, inter alia, State v. Private Truck
Council of Am., 371 S.E.2d 378 (Ga. 1998); Antinoro v. Browner,
478 S.E.2d 392, 395 (Ga. App. 1996); Butler v. Glenn Oak's Turf
Inc., 395 S.E.2d 277 (Ga. Ct. App. 1990)). Throughout these
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cases, Georgia courts emphasized that the purpose of a statute
of limitations is to put defendants on notice of adverse claims
and to prevent plaintiffs from sleeping on their rights[.]"
Crown, Cork & Seal Co., Inc.
V.
Parker, 462 U.S. 345, 352 (1983)
(citations omitted). Based on this premise, Georgia courts
frequently find equitable tolling when an earlier proceeding—be
it a class action suit, administrative claim, or arbitration—has
provided a defendant with sufficient notice of the plaintiff's
claim so that the defendant can "prepare a defense while the
facts are fresh." Antinoro, 478 S.E.2d at 395. In addition,
Georgia courts employ equitable tolling to prevent requiring a
plaintiff to file a claim that will be mooted by an ongoing
dispute resolution mechanism.
Applying these rationales from Georgia equitable tolling
precedent, the Court finds, as it did in Watkins, that the
statute of limitations was tolled while Plaintiff complied with
the PLRA and pursued administrative remedies prior to filing
suit. Those Defendants against whom Plaintiff filed a grievance
were placed on notice of Plaintiff's claims such that they could
prepare a defense at a time while the facts were still fresh.
Moreover, if Plaintiff had filed suit before administrative
exhaustion, his action would have been dismissed for failure to
comply with the PLRA's exhaustion requirements. Additionally,
Plaintiff should receive the benefit of equitable tolling where
AO 72A
(Rev. 8/82)
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he was complying with federal law by pursuing alternatives to
filing suit.
As the Magistrate Judge concluded in his Report and
Recommendation, Plaintiff exhausted the PLRA's mandatory
administrative review process, at the earliest, on December 8,
2011.2 Dkt. No. 70, p. 15. The two-year statute of limitations
was tolled until this date. Therefore, Plaintiff's Complaint,
filed on December 9, 2013, was timely. 3 For these reasons,
Defendants' objections to the Magistrate Judge's findings
regarding the statute of limitations are OVERRULED, and this
portion of Defendants' Motion to Dismiss is DENIED.
B. Defendants' Eighth Amendment/Qualified Immunity
Objections
Defendants object to the Magistrate Judge's finding that
Plaintiff has stated a cognizable claim against Defendants
Moore, Ferra, and Hart for deliberate indifference to
Plaintiff's medical needs. They further object to the
recommendation that these Defendants are not entitled to
qualified immunity at this time.
2
As the Magistrate Judge pointed out, Defendant's exhaustion date could be
as late as March 7, 2012. Defendants have not objected to the Magistrate
Judge's conclusion regarding the date that Plaintiff exhausted his
administrative remedies.
December 8, 2013 was a Sunday. Thus, the following Monday, December 9,
2013, would be the proper date to use as the expiration of the limitations
period. FED. R. Civ. P. 6(a)(1)(c).
AO 72A
(Rev. 8/82)
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Defendants note that they do not dispute that Plaintiff's
Complaint includes allegations that Defendants Moore, Ferra, and
Hart saw Plaintiff after he was assaulted and were made aware of
his pre-existing medical conditions. Dkt. No. 72,
p. 7.
However, Defendants disagree that Plaintiff's allegations permit
an inference that Defendants Moore, Ferra, and Hart did nothing
to provide him with medical treatment. They contend that
Defendants Moore, Ferra, and Hart took "some action" to treat
Plaintiff's injuries, (id.), even if their actions were not the
actions Plaintiff desired. Defendants further object to the
Magistrate Judge's recommendation regarding Defendant Hart, who
was the warden at the time of the events giving rise to
Plaintiff's Complaint because he was not a member of the medical
staff. Defendants assert that Plaintiff's contentions reveal
that Defendant Hart's alleged failure to make sure Plaintiff
received a particular medical treatment for his injuries was
nothing more than mere negligence, as Defendant Hart "was
presumably relying upon the medical staff at Ware State Prison
to appropriately treat Plaintiff[.]" (Id. at p. 8) (emphasis
supplied.) Defendants also assert that, because Plaintiff fails
to set forth a viable constitutional violation, they are
entitled to qualified immunity.
Defendants' Objections are a reiteration of the contentions
initially advanced in their Motion to Dismiss. As the
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Magistrate Judge correctly concluded, Defendants overlook the
entirety of Plaintiff's allegations against Defendants Moore,
Ferra, and Hart, and the relatively low burden of plausibility
Plaintiff must overcome in a motion to dismiss. Defendants wish
for the Court to act as a factfinder, which is not proper on a
motion to dismiss. This is not the stage for the Court to test
the sufficiency of the evidence supporting Plaintiff's claims.
Rather—and as the Magistrate Judge observed—such a determination
can only be made on a motion for summary judgment or at trial.
Therefore, the Court OVERRULES Defendants' Objections to
the Magistrate Judge's conclusions regarding the substance of
Plaintiff's claims against Defendants Moore, Ferra, and Hart.
Plaintiff has set forth a cognizable claim that these Defendants
were deliberately indifferent to Plaintiff's serious medical
needs, and these Defendants are not entitled to qualified
immunity. These portions of Defendants' Motion to Dismiss are
DENIED.
II. Plaintiff's Objections
Plaintiff objects to several of the Magistrate Judge's
recommendations. He contends the Magistrate Judge erred in
finding that Plaintiff failed to exhaust his administrative
remedies as to his failure to protect claims and all his claims
against Defendant Edwards. He also objects to the
recommendation that the Court dismiss all Defendants in their
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official capacity on Eleventh Amendment immunity grounds.
Lastly, he maintains the Magistrate incorrectly concluded that
he had failed to state a cognizable claim against Defendants
Vaughn, Owens, and Sittnick. The Court will address each of
these areas of objection below.
A. Plaintiff's Objections Regarding Exhaustion of
Administrative Remedies
In support of his objections regarding exhaustion,
Plaintiff primarily contends that the grievance process does not
require an inmate to name in a grievance each and every
individual involved in an event. Plaintiff asserts that
Standard Operating Procedure ("SOP") 11B05-0001 provides that
the inmate's complaint must fit in the space provided, which is
only four (4) blank lines. Plaintiff also asserts that the
language the Magistrate Judge quoted in his Report is from his
(Plaintiff's) formal grievance, and his informal grievance set
forth claims of breach of the duty of care, staff negligence,
and violations of the SOP and included information about the
assault, his injuries, and need for continuing medical
treatment. According to Plaintiff, his grievance set forth
sufficient facts to put Defendant Edwards on notice that his
grievance included claims against him and to put all Defendants
on notice of a failure to protect/deliberate indifference to
safety claim. Dkt. No. 75, pp. 3-6.
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The requirement that the exhaustion of remedies occur
"first in an agency setting allows 'the agency [to] develop the
necessary factual background upon which decisions should be
based' and giv[es] 'the agency a chance to discover and correct
its own errors.'" Green v. Sec'y for Dep't of Corr., 212 F.
App'x 869, 871 (11th Cir. 2006) (quoting Alexander v. Hawk, 159
F.3d 1321, 1327 (11th Cir. 1998) (first alteration in
original)). "However, 'while § 1997e(a) requires that a
prisoner provide as much relevant information as he reasonably
can in the administrative grievance process, it does not require
more.'" Id. (quoting Brown v. Sikes, 212 F.3d 1205, 1207 (11th
Cir. 2000)). In Brown, the Eleventh Circuit held "that 42
U.S.C. § 1997e(a) requires a prisoner to provide in his
administrative grievance as much relevant information about his
claims, including the identity of those directly involved in the
alleged deprivations, as the prisoner reasonably can provide."
212 F.3d at 1210. Nevertheless, the purpose of section 1997e(a)
is not that "fact-intensive litigation" result over whether
every fact relevant to the cause of action was included in the
grievance. Hooks v. Rich, CV605-65, 2006 WL 565909, at *5 (S.D.
Ga. Mar. 7, 2006) (Edenfield, J.) (internal citation omitted).
"'As long as the basic purposes of exhaustion are fulfilled,
there does not appear to be any reason to require a prisoner
plaintiff to present fully developed legal and factual claims at
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the administrative level.'" Id. (quoting Irvin v. Zamora, 161
F. Supp.2d 1125, 1135 (S.D. Cal. 2001)). Rather, Section
1997e(a) is intended to force inmates to give state prison
authorities a chance to correct constitutional violations in
their prisons before resorting to federal suit and to prevent
patently frivolous lawsuits. Id. "The exhaustion requirement
is a gatekeeper, not a 'gotcha' meant to trap unsophisticated
prisoners who must navigate the administrative process pro
Se."
Id.
In his informal grievance numbered 99010, Plaintiff
asserted that: "On 9-9-11 I was brutally beaten, sustaining
multiple head/face injuries. Chronic brain illness and injuries
required x-rays and treatment at A.S.M.P. immediately. Instead
I was transferred to Calhoun, unable to maintain in G.P.,
unhealthy." Dkt. No. 27-6, p. 2. Plaintiff's requested
resolution was "To be seen by my neurosurgeon, Dr. Yancey. To be
transferred to A.S.M.P. for permanent, consistent medical
treatment immediately. To not receive any form of retaliation
from institutional staff." (Id.) As the Magistrate Judge
recounted, Plaintiff's formal grievance states:
On Sept. 9, 2011[,] I was beaten with [a] wooden mop
handle multiple times in the face and stabbed in the
arm at Ware S.P. I requested immediate outside
medical attention because many blows were inflicted on
my head, too. Lt. Adams tried to send me out, but
Ware S.P. medical staff denied his request—in spite of
video evidence. I was not treated but transferred to
AO 72A
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Calhoun. On October 24, 2011, A.S.M.P. medical staff
ordered reconstructive surgery on my face and head.
Dkt. No. 56-1, P. 5.
Plaintiff fails to mention Defendant Edwards in his
informal or formal grievance by name, but Plaintiff was not
required to do so. However, in viewing the allegations
contained in Plaintiff's informal and formal grievances in the
light most favorable to him, the allegations contained in
Plaintiff's informal and formal grievance reveal his displeasure
with medical staff at Ware State Prison, not Calhoun State
Prison. Plaintiff asserts that he should have been provided
with medical treatment at Augusta State Medical Prison as a
result of events which allegedly occurred at Ware State Prison.
Instead, Plaintiff avers, he was transferred to Calhoun State
Prison.
In addition, Plaintiff fails to set forth any facts which
could reasonably put Defendants on notice that Plaintiff wished
to pursue a failure to protect or deliberate indifference to
safety claim against prison officials. Although Plaintiff
contends in both of these documents that he was assaulted, he
makes no assertion that this alleged assault was the result of
prison staff's deliberate indifference to his safety.
Plaintiff's conclusory statement of "breach of duty of care,
staff negligence, violation of SOP" in his informal grievance,
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dkt. no. 27-6, P. 2, is not enough to set forth a deliberate
indifference to safety claim. At best, such a statement sets
forth an alleged state tort law violation, which is an
insufficient basis of liability in a 42 U.S.C. § 1983 suit.
Baker v. McCollan, 443 U.S. 137, 146 (1979) ("Section 1983
imposes liability for violations of rights protected by the
Constitution, not for violations of duties of care arising out
of tort law.").
For these reasons, Plaintiff's Objections to the Magistrate
Judge's conclusions on administrative exhaustion are OVERRULED,
and Plaintiff's failure to protect claims against all Defendants
and all claims against Defendant Edwards are DISMISSED WITHOUT
PREJUDICE for failure to exhaust administrative remedies.
B. Plaintiff's Objections Regarding Eleventh amendment
Immunity
In objecting to the Magistrate's conclusion that Defendants
are immune from suit in their official capacities, Plaintiff
asserts that he is seeking an injunction and protective order to
prevent irreparable injury and that he seeks this relief against
Defendants in their official capacities. Dkt. No. 75, p. 6.
The Magistrate Judge recommended that Plaintiff's monetary
damages claims against Defendants in their official capacities
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be dismissed. Dkt. No. 70, pp. 15-16.
While such a
recommendation, if adopted, would ordinarily only dispose of a
plaintiff's monetary damages claims against defendants in their
official capacities, this is not true here. As Defendants
correctly note, this Court already dismissed Plaintiff's
injunctive relief claims on a previous occasion. Dkt. No. 16,
45. Consequently, Plaintiff's Objections on this front are
OVERRULED, and all claims against Defendants in their official
capacities are DISMISSED.
C. Plaintiff's Objection to Recommended Dismissal of
Defendants Owens and Sittnick
The Magistrate Judge recommended dismissal of Plaintiff's
claims against Defendants Owens and Sittnick because there is no
allegation that they were aware of Plaintiff's serious medical
needs or were deliberately indifferent to his serious medical
needs. Plaintiff contends that Defendants Owens and Sittnick
were aware of the investigation of Plaintiff's assault,
injuries, and grievances, as demonstrated by the referral of
Plaintiff's grievance to the Internal Investigations Division.
Plaintiff asserts that Defendants Owens and Sittnick are liable
because "the denial of adequate medical treatment can also be
attributable to the promulgation of policy(ies), custom(s)
and/or systemic practices that are to be implemented by their
Plaintiff has not disputed that Defendants are immune from claims seeking
monetary relief against them in their official capacities.
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employees." Dkt. No. 75, pp. 7-8. Plaintiff also asserts that
medical staff's failure to respond to injuries as severe as his,
especially in light of his medical history, cannot be
attributable to compliance with the applicable SOPs. Plaintiff
contends that consideration of Defendants Owens' and Sittnick's
knowledge of Plaintiff's injuries and lack of treatment should
not be relevant. Rather, Plaintiff contends that Defendants
Owens' and Sittnick's failure to address his injuries
demonstrate deliberate indifference to adequate training and/or
staff shortages, which created an atmosphere encouraging a
failure to follow policy in favor of economic considerations and
other factors. Plaintiff avers that "[a]y deficiency in the
Complaint with respect to the allegations surrounding these
Defendants [Owens and Sittnick] can be cured by amendment."
(Id. at p. 9.)
Contrary to Plaintiff's assertions in his Objections, he
has failed to set forth any facts which reveal that he intended
to hold Defendants Owens and Sittnick liable based on anything
more than their supervisory positions with the Georgia
Department of Corrections. Plaintiff fails to make a causal
connection between any policies which may be in place which were
promulgated by Defendants Owens and Sittnick and which resulted
in Defendants Owens and Sittnick being deliberately indifferent
to Plaintiff's medical needs.
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In addition, to the extent Plaintiff wishes to amend his
Complaint to include additional allegations against Defendants
Owens and Sittnick in an effort to establish liability on their
part, any attempt to do so must fail. See Erb v. Advantage
Sales & Marketing, LLC, No. 6:11-cv-2629, 2012 WL 3260446, *3
(N.D. Ala. Aug. 3, 2012) (quoting Cherry v. City of
Philadelphia, No. 04-1393, 2004 WL 2600684,
*3 (E.D. Pa. Nov.
15, 2004) (quotations and citations omitted) ("Motions to
dismiss brought pursuant to Rule 12(b) (6) test the sufficiency
of the factual allegations contained in the complaint, and 'a
party may not rely on new facts in submissions in response to a
motion to dismiss to defeat the motion.'"); accord Commonwealth
of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d
Cir. 1988)
("'[lIt is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.")
(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,
1107 (7th Cir. 1984)). By extension, the inability to amend a
complaint in response to a defendant's motion to dismiss applies
equally, if not more so, to allegations contained in objections
to a report recommending the dismissal of claims and/or
defendants based on the insufficiencies contained in a
complaint.
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Therefore, Plaintiff's Objections are OVERRULED, and
Plaintiff's claims against Defendants Owens and Sittnick are
DISMISSED WITH PREJUDICE.
D. Plaintiff's Objection to the Recommended Dismissal of
Defendant Vaughn
Next, Plaintiff avers that the "substance of the claims
against Defendant Vaughn are not implausible and are at the very
least sufficient to raise a 'reasonable expectation that
discovery will reveal evidence,' that supports the plaintiff's
claim." Dkt. No. 75, p. 9 (citation omitted). Plaintiff
contends that Defendant Vaughn's contact with him was as a
member of the prison medical staff, just as is true for
Defendants Moore and Ferra. Plaintiff also contends that
Defendant Vaughn's deliberate indifference to his serious
medical needs was demonstrated by her failure to train and
supervise her staff, as well as through her personal
participation in withholding or failing to provide timely
medical treatment to him. Plaintiff further contends that
Defendant Vaughn provided a statement during the investigation
into Plaintiff's grievances, which suggests a level of
involvement beyond supervision.
As the Magistrate Judge noted, the entirety of Plaintiff's
claim against Defendant Vaughn contained in his Complaint is
that she, as the head of nursing, "was responsible for the
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training and supervision of medical personnel and failed to
provide Plaintiff with proper medical treatment." Dkt. No. 70,
p. 3. The Magistrate Judge correctly noted that Plaintiff
cannot survive a Motion to Dismiss with such a conclusory
allegation. Defendant Vaughn should be dismissed as a named
Defendant because Plaintiff failed to make sufficient factual
allegations against her and Plaintiff's theory of liability
against Defendant Vaughn has to be more than a showing of
respondeat superior. In addition, as with Plaintiff's
Objections concerning Defendants Owens and Sittnick, Plaintiff
cannot amend his Complaint at this stage in an effort to set
forth a sufficient basis of liability against Defendant Vaughn.
See § C, supra.
Consequently, this Objection is OVERRULED, and Plaintiff's
claims against Defendant Vaughn are DISMISSED.
CONCLUSION
For the reasons and in the manner set forth above, the
parties' Objections to the Magistrate Judge's Report and
Recommendation are OVERRULED.
The Magistrate Judge's Report and
Recommendation, as supplemented herein, is adopted as the
opinion of the Court. Defendants' Motion to Dismiss is GRANTED
in part and DENIED in part. Plaintiff's claims against
Defendant Edwards and Plaintiff's failure to protect claims are
DISMISSED, without prejudice, based on Plaintiff's failure to
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exhaust his administrative remedies. Plaintiff's monetary
damages claims against Defendants in their official capacities
and his deliberate indifference claims against Defendants Owens,
Sittnick, and Vaughn are DISMISSED.
Plaintiff's deliberate
indifference claims against Defendants Moore, Ferra, and Hart
remain pending.
SO ORDERED, this
day of
-
, 2015.
LISA GQ,&-OOD, CHIEF JUDGE
UNITED ST TES DISTRICT COURT
SOUTHERWDISTRICT OF GEORGIA
AO 72A
(Rev.
(Rev. 8/82)
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23
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