Sosebee v. Graves et al

Filing 98

MEMORANDUM OPINION Signed by District Judge Harry S Mattice, Jr on 2/13/09. (JGM, )

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF TENNESSEE A T WINCHESTER

T IM O T H Y SOSEBEE, P l a in tif f , v.

S H E R IF F STEVE GRAVES, et al., D e f e n d a n ts .

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4 :0 5 -c v -8 1 M a ttic e

M E M O R A N D U M OPINION

T h is is a pro se prisoner's civil rights action pursuant to 42 U.S.C. § 1983. The matter is before the court on the motions to reconsider, to alter and amend answer, and to alter and a m e n d summary judgment filed by defendant David Florence and plaintiff's responses th e re to , and plaintiff's cross motion for summary judgment. For the following reasons, the d ef en d an t's motions to alter and amend answer and to alter amend summary judgment [Court F ile Nos. 90 & 91, respectively] will be GRANTED; defendant's motion to reconsider the d e n ia l of summary judgment [Court File No. 89] will be GRANTED to the extent this action w ill be DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative re m e d i e s ; and plaintiff's cross motion for summary judgment [Court File No. 93] will be D E N IE D .

P lain tiff brought this action during his confinement in the Coffee County Jail; he is n o w in the Wheeler Corrections Facility in Alamo, Georgia. As defendants, plaintiff named C o f f ee County Sheriff Steve Graves and numerous jail officers and medical personnel, and D r. David Florence, the contract doctor for the jail. The motion for summary judgment filed b y Sheriff Graves and the county jail officers and medical personnel was granted based upon p la in tif f 's failure to exhaust administrative remedies as required by the Prison Litigation R e f o rm Act, 42 U.S.C. §1997e. Failure to exhaust administrative remedies is an affirmative defense, Jones v. Bock, 1 2 7 S. Ct. 910, 921 (2007), which was not raised by defendant Florence in his original a n s w e r or motion for summary judgment. Instead, defendant Florence contended he was e n title d to summary judgment on the merits of the case. In support of the motion for s u m m a ry judgment, defendant Florence submitted his affidavit, which he stated was based u p o n personal knowledge together with a review of plaintiff's medical records. Defendant F lo re n c e also stated that a copy of plaintiff's medical records were attached to his affidavit. P la in tif f 's medical records were not attached, however, to defendant Florence's a f f id a v it. Although the court gave defendant Florence additional time within which to file p la in t if f 's medical records, defendant Florence failed to file plaintiff's medical records or o th e rw is e respond to the court's order. The court determined that plaintiff's medical records w ere relevant to defendant's claim that plaintiff received proper care from defendant Florence a n d thus denied the motion for summary judgment filed by defendant Florence.

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D e f en d a n t Florence now moves to alter and amend his answer to include the a f f irm a tiv e defense of failure to exhaust administrative remedies, and to alter and amend his m o tio n for summary judgment to include the ground of failure to exhaust administrative re m e d ie s. In his motion to reconsider, defendant Florence attempts to explain the reason p la in tif f 's medical records were not timely filed; the medical records have now been filed as a n attachment to the motion to alter and amend the motion for summary judgment. D e f en d a n t Florence's motions to alter and amend his answer and to alter and amend th e motion for summary judgment will be GRANTED. As previously noted, the motion for s u m m a ry judgment filed by the remaining defendants was granted based upon plaintiff's f a ilu re to exhaust administrative remedies. Based upon the court's reasoning in that

M e m o ra n d u m Opinion [Court File No. 58] and incorporating said reasoning by reference h e re in , plaintiff's action should be DISMISSED WITHOUT PREJUDICE for failure to e x h a u st administrative remedies. Accordingly, defendant Florence's motion to reconsider th e denial of summary judgment will be GRANTED to that extent. Plaintiff's cross motion f o r summary judgment will be DENIED. The court will CERTIFY that any appeal from th is action would not be taken in good faith and would be totally frivolous. See Rule 24 of th e Federal Rules of Appellate Procedure.

A N APPROPRIATE ORDER WILL ENTER. /s/Harry S. Mattice, Jr. HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

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