Ashley v. Shumake et al

Filing 44

ORDER overruling objections; adopting 36 Report and Recommendations; granting in part and denying in part 29 Motion to Dismiss; dismissing as moot 23 Motion to Dismiss. The Court dismisses Plaintiff's claims as to the Fourteenth Amendm ent due process claims, excessive force claims against Defendants Shuemake and Watkins, failure to intervene claims against Defendant Murphy, and all deliberate indifference claims. The Court also dismisses without prejudice Plaintiff's claims f or compensatory and punitive damages. The Court denies Defendants' Motion to Dismiss as to Plaintiff's First Amendment retaliation claims, failure to intervene claims against Defendants Shuemake and Watkins, supervisor liability claim against Defendant Shuemake, and Defendants' qualified immunity arguments. Signed by Judge J. Randal Hall on 10/25/2016. (thb)

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

JUSTIN S. ASHLEY,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-53

v.

RONNIE SHUEMAKE; CARLTON
MURPHY; and CALO WATKINS,
Defendants.

ORDER

Presently before the Court are the parties' Objections to the Magistrate Judge's Report
and Recommendation. (Docs. 38, 40). After an independent and de novo review of the entire

record, the undersigned concurs with the July 20, 2016, Report and Recommendation, (doc. 36).

Accordingly, the Court OVERRULES the parties' Objections and ADOPTS the Magistrate

Judge's Report and Recommendation, as supplemented herein, as the opinion of the Court.
BACKGROUND

Plaintiff filed this case pursuant to 42 U.S.C. § 1983 contending that Defendants violated

his constitutional rights when they sprayed him with pepper spray.

(Doc. 1.) The Court

conducted the requisite frivolity review, (doc. 16), and Defendants subsequently filed a Motion
to Dismiss, (doc. 23). Plaintiff then filed an Amended Complaint, (doc. 27), and Defendants also
filed a Motion to Dismiss the Amended Complaint, (doc. 29).

The Magistrate Judge

recommended granting in part and denying in part Defendants' Motion to Dismiss the Amended

Complaint.1 (Doc. 36.)
1 The July 20, 2016, Report and Recommendation never directly addressed Defendants' First Motion to
Dismiss, (doc. 23). The Court now DISMISSES as moot Defendants' First Motion to Dismiss,

DISCUSSION

Each of the parties filed Objections to the Magistrate Judge's Report and
Recommendation. (Docs. 38, 40.) Plaintiff objects that the Magistrate Judge dismissed his

compensatory and punitive damages claims. (Doc. 40, p. 1.) However, Plaintiffs Objection
simply re-alleges the same facts found in his Amended Complaint, and Plaintiff does not provide
any other information to indicate he suffered more than a de minimis injury at the hands of
Defendants.

Accordingly, the Court OVERRULES Plaintiffs Objections for the reasons

already set forth in the Magistrate Judge's Report and Recommendation.
Defendants object to the Magistrate Judge's recommendation that Plaintiff be allowed to

proceed on his First Amendment retaliation claim against all Defendants, his Eighth Amendment
failure-to-intervene claims against Defendants Watkins and Shuemake, and his supervisory

liability claims against Defendant Shuemake.

(Doc. 38, p. 2.)

The bulk of Defendants'

Objections relate to the "Magistrate Judge's interpretation of Plaintiffs allegations" as more than

just conclusory statements. (Id at p. 7.) However, the Court reminds Defendants that, at this
Motion to Dismiss stage of the litigation, Plaintiffs claims are held to the lighter "plausibility"

pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must "accept[ ] the

allegations in the complaint as true and constru[e] them in the light most favorable to the

plaintiff." Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). Furthermore, as
this Court stated in its initial frivolity review, "the Court will abide by the long-standing

principle that the pleadings of unrepresented parties are held to a less stringent standard than

(doc. 23), due to the filing of Plaintiffs Amended Complaint, (doc. 27). Perkins v. Kushla Water Dist,
No. CIV.A. 13-00286-KD-B, 2013 WL 4511329, at *1 (S.D. Ala. Aug. 23, 2013) ("Because Plaintiffs

amended complaint is now the operative pleading in this action; Defendants' motion [to dismiss] is
moot") (citing Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007); DeSisto
College v. Line, 888 F.2d 755, 757 (11th Cir. 1983); Meterlogic, Inc. v. Copier Solutions. Inc., 185 F.
Supp. 2d 1292, 1297 (S.D. Fla. 2002)).

those drafted by attorneys, and therefore, must be liberally construed." (Doc. 16, p. 3.) Under

these standards, Plaintiffs allegations provide sufficient detail to overcome the plausibility
standard.

The Court also specifically addresses Defendants' contentions that Plaintiff failed to
exhaust his administrative remedies.

Defendants argue that Plaintiff has not exhausted his

available administrative remedies as to his First Amendment retaliation claims because Plaintiff

does not specifically allege in his grievance that "force was used in retaliation for his exercise of

protected speech." (Doc. 38, p. 5.) However, the very first sentence in Plaintiffs grievance is,
"[AJfter exercising my First Amendment rights to 'Freedom of Speech' . . . [Defendants] called
me to the front of my cell . . . and sprayed me with an extended burst/s of O.C." (Doc. 23-2,

p. 29.) Although Plaintiff may not have used the word "retaliation," the sequence of events

makes it clear that Plaintiff is describing a scenario where he was allegedly retaliated against for
exercising his "Freedom of Speech" rights.
Furthermore, "it is the prison's requirements, and not the PLRA ["Prison Litigation
Reform Act"], that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199,

218 (2007). As the Magistrate Judge explained, Plaintiff clearly met the specificity requirements

laid out by the grievance policy of Georgia State Prison ("GSP"). (Doc. 36, p. 6.) Defendants
argue that Plaintiff did not use the same level of specificity in describing his First Amendment
claim as the other claims in the grievance form. However, GSP's grievance policy does not

require prisoners to maintain a consistent level of specificity throughout their grievance filings.
(Doc. 38, pp. 4-5.) As the Eleventh Circuit stated, "[t]he exhaustion requirement, allowing

prison officials to address complaints in the first instance, is satisfied as long as the inmate's

grievance provides sufficient detail to allow prison officials to investigate the alleged incident."

Maldonado v. Unnamed Defendant. 648 F. App'x 939, 953 (11th Cir. 2016), petition for cert

filed, No. 16-6172,

U.S.

(Sept. 26, 2016).

Plaintiff not only provided enough

information to allow prison officials to investigate the incident, Plaintiff also satisfied the

specificity requirements of GSP's grievance policy.
Defendants also make the argument that the portion of their Motion to Dismiss dealing

with exhaustion should be "treated as unopposed" and granted because Plaintiff did not address
their specific argument in his Response. (Doc. 38, p. 6.) However, the Federal Rules of Civil

Procedure and this Court's Local Rules,2 do not state that the Court must consider a portion of a
motion to dismiss as unopposed when the non-moving party does not specifically address that

portion.3 Moreover, Plaintiff stated in his response that he opposed the Motion to Dismiss in its
entirety. (Doc. 32, pp. 1, 19.) Therefore, in this case, particularly taking into consideration
Plaintiffs pro se status, the Court finds it prudent to address the merits of Defendant's

exhaustion arguments rather than treating those arguments as unopposed.

Furthermore, the

Court concurs with the Magistrate Judge's analysis of Plaintiff s exhaustion efforts.
Thus, for the reasons stated in the Magistrate Judge's Report and Recommendation and
set forth above, the Court OVERRULES Defendants' Objections.

2 Local Rule 7.5—to which Defendants cite—simply states that, "[E]ach party opposing a motion shall
serve and file a response .... Failure to respond within the applicable time period shall indicate that there
is no opposition to a motion." This Local Rule does not provide that a plaintiff must respond to each
portion of the Motion to Dismiss to indicate that he opposes it.

3The case citation that Defendants provide in support of their argument is less than helpful. Defendants
cite to Sampson v. Fulton Ctv. Jaih 157 F. App'x 242 (11th Cir. 2005), for the proposition that the
Eleventh Circuit upheld "dismissal of certain claims as unopposed" and "constru[ed] a failure to respond
as indicating the argument is unopposed." (Doc. 38, p. 6.) However, in that case, there were two separate
motions to dismiss, each filed by a different defendant. Sampson, 157 F. App'x at 242. The plaintiff in
that case filed no response at all to either motion, but the Eleventh Circuit upheld dismissal of just the
second motion because the pro se plaintiff had not been notified that he was required to respond to show
opposition to the first motion. This case does not support the idea that a plaintiff must include an
itemized rebuttal response to each of the arguments he opposes in a motion to dismiss.

CONCLUSION

The Court OVERRULES the parties' Objections and ADOPTS the Magistrate Judge's

Report and Recommendation, as supplemented herein, as the opinion of the Court. Accordingly,
Defendants' Motion to Dismiss, (doc. 29), is GRANTED IN PART and DENIED IN PART.
The Court GRANTS Defendants' Motion and DISMISSES Plaintiffs claims as to the

Fourteenth Amendment due process claims, excessive force claims against Defendants

Shuemake and Watkins, failure to intervene claims against Defendant Murphy, and all deliberate
indifference claims. The Court also DISMISSES WITHOUT PREJUDICE Plaintiffs claims

for compensatory and punitive damages. However, the Court DENIES Defendants' Motion to
Dismiss as to Plaintiffs First Amendment retaliation claims, failure to intervene claims against

Defendants Shuemake and Watkins, supervisor liability claim against Defendant Shuemake, and

Defendants' qualified immunity arguments.

SO ORDERED, this ^?Sday of

^~

^>V^7<g^c

, 2016.

RANDAl/HALL

UNlfFXJ^TATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA