Hale v. Murray et al

Filing 18

ORDER ADOPTING 13 Report and Recommendations AS AMENDED HEREIN. Plaintiff is denied leave to proceed in forma pauperis on appeal. This case stands closed. Signed by Chief Judge J. Randal Hall on 07/25/2017. (pts)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION KEMONIE DENARD HALE, Plaintiff, CIVIL ACTION NO.: 6:16-cv-155 LT. MURRAY; SGT. ROWN; CO. II BUNCH; CO. II MCDONALD; CO. II SHELBY; and SMITH STATE PRISON, Defendants. ORDER Presently before the Court are Plaintiffs Objections to the Magistrate Judge's Report and Recommendation. (Doc. 17.) After an independent and de novo review of the entire record, the undersigned concurs in part with the Magistrate Judge's Report and Recommendation, (doc. 13). Accordingly, the Court SUSTAINS Plaintiffs Objections and REJECTS IN PART the Magistrate Judge's Report and Recommendation. The Court ADOPTS the Magistrate Judge's Report and Recommendation, as amended herein, as the opinion of the Court. BACKGROUND Plaintiff filed this case pursuant to 42 U.S.C ยง 1983 contending that Defendants violated his constitutional rights by placing him on an illegal third bunk. (Doc. 1.) Plaintiff alleges that in 2011 he fell from his bunk and broke his left femur bone in two places. As a result, he had to have a titanium rod implanted into his leg. (Id at p. 5.) The Court conducted the requisite frivolity review and the Magistrate Judge recommended dismissing Plaintiffs claims for failure to exhaust. In his Objections, Plaintiff claims that he was unable to exhaust his claims because prison officials would not allow him to file a grievance until after he had been released from the hospital. (Doc. 17, p. 2.) DISCUSSION Plaintiffs Objections raise questions as to whether |the prison's administrative remedies were available for him to exhaust. If the prison's administrative remedy process was in fact unavailable to Plaintiff, then he would not be required to exhaust prior to filing suit. See Ross v. Blake, U.S. , 136 S. Ct. 1850, 1855 (2016) ("A prisoner need not exhaust remedies if they are not 'available.'"). Thus, the Court does not adopt the Magistrate Judge's recommendation that the Complaint be dismissed for Plaintiffs failure to exhaust his administrative remedies. However, even if the prison's administrative remedy process was unavailable to him, Plaintiffs Complaint still fails to state a claim. As an initial matter, Plaintiff failed to allege that Defendants were in any way responsible for his placement in a third bunk or resulting fall. While a plaintiff need not provide detailed factual allegations, a complaint is insufficient if it offers no more than "labels and conclusions," or "an unadorned, the defendant-unlawfully- harmed-me accusation." Iqbal 556 U.S. at 678 (citations omitted). Here, even construing Plaintiffs Complaint liberally, he has failed to state a clkim against Defendants. Plaintiffs Complaint contains no allegations of facts against the above-named Defendants. See Anderson v. Fulton Ctv. Gov't, 485 F. App'x 394 (11th Cir. 2012) (dismissal proper where plaintiff failed to describe any specific allegations against defendant). Additionally, in order to state a claim for relief under Section 1983, a plaintiff must satisfytwo elements. First, a plaintiff must allege that an act or omission deprived him "of some right, privilege, or immunity secured by the Constitution or laws of the United States." Hale v. Tallapoosa Ctv.. 50 F.3d 1579, 1582 (11th Cir. 1995). Second, a plaintiff must allege that the act or omission was committed by "a person acting under color of state law." Id Plaintiff has not made any allegation that Defendants deprived him of some constitutional right, privilege, or immunity. While Plaintiff argues that he was illegally placed on a third bunk, he does not make any allegation that this policy violation also violates the Constitution or any statute. Moreover, after a careful review of Plaintiff s pleadings, the Court does not see any constitutional provision or statute that his allegations implicate. Any claim that Defendants were negligent in placing him on a third bunk are more properly brought under Georgia tort law. 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."). Consequently, Plaintiff fails to state a plausible claim upon which this Court can grant him any relief. CONCLUSION The Court SUSTAINS Plaintiffs Objections and REJECTS IN PART the Magistrate Judge's Report and Recommendation. However, the Court ADOPTS the Magistrate Judge's Report and Recommendation, as amended above, as the opinion of the Court. Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiffs Complaint for failure to state a claim and DENIES Plaintiff leave to proceed in forma pauperis on appeal. The Court DIRECTS the Clerk of Court to enter an appropriate judgment of dismissal and to CLOSE this case. SO ORDERED, this d?Sclav ofJuly, 2017. J. RAND^LEALL, CHIEF JUDGE UNITED^JATES DISTRICT COURT JOUTHEtfN DISTRICT OF GEORGIA

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