Teasley v. Correctional Medical Services et al

Filing 71

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that claims against all defts, except Edward Adelman, be DISMISSED, either for failure to exhaust administrative remedies, immunity, or failure to state a cause of action. Signed by Magistrate Judge Joe Brown on 10/27/11. (xc:Pro se party by regular and certified mail.)(rd)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RON TEASLEY,
Plaintiff
v.
CORRECTIONAL MEDICAL SERVICES,
et al.,
Defendants

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No. 3:11-0484
Judge Campbell/Brown
Jury Demand

TO: THE HONORABLE TODD J. CAMPBELL
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the motions to dismiss for failure to exhaust
administrative remedies filed on behalf of the Defendants Davis,
Elks, Gipson, Hodge, Jobe, McGee, Rhodes, Tidwell (Docket Entry
40), Lyboldt,(Docket Entry 43), and Bilbrey (Docket Entry 66), and
Sgt. Sheila Howard (Docket Entry 59), be GRANTED.
Additionally, the Magistrate Judge recommends claims
again all TDOC State Defendants in their official capacity be
dismissed due to immunity, that all claims against CMS, and its
employees other than Adelman and all TDOC employees be dismissed
for failure to state a claim under Rule 12(b)(6).
Finally, it appears that the Plaintiff has lost contact
with the court as mail sent to his last known address has been
returned (Docket Entry 70).

He was warned that failure to keep

contact with the court could lead to dismissal of his case (Docket

Entry 53, p. 2).

The Plaintiff has not responded to the motion to

dismiss (Docket Entries 40, 43 and 59) within the time allowed.
BACKGROUND
The Plaintiff sued Correctional Medical Services (CMS)
Richard Curry, Executive Vice President; Dr. Adelman, a dentist
employed by CMS; and a large number of Tennessee Department of
Correction (TDOC) employees. All Defendants have now filed motions
to dismiss for failure to exhaust administrative remedies (Docket
Entries 40, 43, 59 and 66), with the exception of Sgt. Wendell
Howard who was only finally served by the United States Marshal on
September 28, 2011 (Docket Entry 61), CMS, Adelman, and Carter.
The motions to dismiss (Docket Entries 40 and 43) were filed on
August 15, 2011, and the Plaintiff has failed to respond to either
of them.

It appears that during the course of this litigation the

Plaintiff has been released from custody and provided a notice of
change of address on

September 20, 2011 (Docket Entry 51).

Unfortunately, it appears that some certified mail to the Plaintiff
is being returned as unclaimed (see Docket Entries 69 and 70).
Regular mail is not being returned.
LEGAL DISCUSSION
The complaint alleges that he was sexually assaulted by
a dentist while he was a prisoner in the custody of TDOC, which
occurred at the latest by the end of May 2010.

It appears that

grievances concerning this incident were not filed until September
2

28, 2010, some four months after the incident. It appears that the
Plaintiff did process this grievance through the final stages and
his grievance was denied because he had not complied with the
grievance procedure, as set forth in TDOC Policy 501.01 (Docket
Entry 1-1, p. 1) as of February 15, 2011.

As to all Defendants who

have filed motions to dismiss for failure to exhaust administrative
remedies, the Magistrate Judge believes that their motions on these
grounds are well taken.

As some of the Defendants point out in

their memorandum in support (Docket Entry 41 and 43-1), the
exhaustion of administrative remedies must be done properly.
Woodford v. Ngo, 126 S. Ct. 2378 (2006).

The Supreme Court

specifically held:
This case presents the question whether a prisoner can
satisfy the Prison Litigation Reform Acts exhaustion
requirements, 42 U.S.C. 1997(e)(a), by filing an untimely
or otherwise procedurally defective administrative
grievance or appeal. We hold that proper exhaustion of
administrative remedies is necessary.
Woodford v. Ngo, at 2382.
As the Supreme Court points out, to hold otherwise would
allow a prisoner to bypass the entire grievance procedure simply by
filing a late grievance without providing any reason for failing to
file on time.
four

months

In this case the Plaintiff filed his grievance some
after

the

alleged

incident

took

place.

In

his

complaint he provided no grounds as to why the grievance was filed
late and he has failed to file any response to the motion to
dismiss in which he offered any explanation for the delay in filing
3

his administrative grievance.

Under these circumstances, the

Magistrate Judge believes that the Plaintiff has failed to properly
exhaust his administrative remedies, he has shown no grounds
whatever

for

his

delay

in

filing

his

grievance.

Thus,

the

Defendants who have moved for dismissal on these grounds are
entitled to a dismissal of the charges against them.
The Defendants CMS, Adelman, and Carter have not raised
an exhaustion defense at this point. Since failure to exhaust
administrative remedies is an affirmative defense, the Magistrate
Judge cannot recommend dismissal of the claims at this point as to
these three Defendants on exhaustion grounds.
The Magistrate Judge believes the TDOC Defendants are
correct

in

liability.

their

contention

there

is

no

respondeat

They have summarized this argument in their memorandum

(Docket Entry 41, p. 3; Docket Entry 63, pp. 3-4).
Court

has

superior

clearly

indicated

that

the

doctrine

The Supreme

of

respondeat

superior is only a basis for a liability under 42 U.S.C. 1983, if
there are allegations and proof of complicity.

Monell v. New York

City

U.S.

Department

of

Social

Services,

436

658

(1978).

Plaintiff’s complaint is viewed in the light most favorable to the
Plaintiff.

He only alleges personal activity against him by the

Defendant Adelman. The allegations against the TDOC Defendants and
CMS Defendants are all for failure to investigate, failure to
properly process his grievance, and other supervisory violations.

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Since the Plaintiff is proceeding in forma pauperis, the Magistrate
Judge may also recommend dismissal at any time under 28 U.S.C.
1915(A), if it is apparent that the complaint is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune
from such relief.
Even though Sgt. Wendell Howard has not filed pleadings
in the matter, the Magistrate Judge believes that he is also
entitled to dismissal inasmuch as the Plaintiff’s complaint does
not state a cause of action against him, since the complaint only
alleges supervisory responsibility.

There is no allegation that

Sgt. Wendell Howard directly participated in the alleged sexual
assault

on

the

Plaintiff.

Under

these

circumstances,

the

Magistrate Judge believes that all TDOC and CMS Defendants, except
Adelman, are entitled to dismissal under 28 U.S.C. § 1915A as well.
Additionally, TDOC and TDOC Defendants are correct that
claims against them in their official capacity must be DISMISSED
inasmuch as the State is immune under the Eleventh Amendment.
Berndt v. Tennessee, 796 F.2d 879 (6th Cir. 1986).
The Magistrate Judge believes that the only Defendant
remaining should be Edward Adelman, who is alleged to have directly
participated

in

acts

which

could

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constitute

a

constitutional

violation and who has not filed a motion to dismiss for failure to
exhaust administrative remedies.1
RECOMMENDATION
For
recommends

the

that

reasons

claims

stated

against

above,

all

the

Magistrate

Defendants,

except

Judge
Edward

Adelman, be DISMISSED, either for failure to exhaust administrative
remedies, immunity, or failure to state a cause of action.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.

Thomas v. Arn, 474 U.S. 140 106 S.

Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 27th day of October, 2011.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

1

Should the Plaintiff remain out of contact with the court, his case
may well be subject to dismissal for failure to prosecute and obey court
orders. Tetro v. Elliott Popham Pontiac, 173 F.3d 988 (6th Cir. 1999).

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