Teasley v. Correctional Medical Services et al

Filing 85

REPORT AND RECOMMENDATION: For the reasons stated, the Magistrate Judge recommends that the Plaintiff claims against the remaining Defendant Adelman be DISMISSED with prejudice for failure to exhaust administrative remedies, for failure to obey Court orders, and to prosecute his case. Signed by Magistrate Judge Joe Brown on 2/2/12. (xc:Pro se party by regular and certified mail.)(af)

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 this case be DISMISSED for failure to exhaust
administrative remedies and for failure to obey Court orders
(Docket Entries 79 and 82).
BACKGROUND
The complaint in this matter alleges that the Plaintiff
was sexually assaulted by Dr. Adelman, a dentist, while the
Plaintiff was a prisoner in the Tennessee Department of Corrections
(TDOC) sometime before the end of May 2010.

It appears that

Plaintiff did not file grievances concerning this incident until
September 28, 2010, some four months after the incident.

The

Plaintiff did process that grievance through the final stages and
his grievance was denied because he did not comply with the
grievance procedures set forth in TDOC Policy 501.01 (Docket Entry
1-1, p. 1, Feb. 15, 2011).

All of the Defendants except Dr. Adelman previously filed
motions to dismiss on the grounds that the Plaintiff had failed to
properly exhaust his administrative remedies (Docket Entries 43,
66, 59).

The Magistrate Judge issued a Report and Recommendation

concerning those motions, as well as recommending dismissal for
failure to obey Court orders and keep a current address on file
with the Court (Docket Entry 71).

The Plaintiff failed to respond

to that Report and Recommendation and it was approved by the
District Judge (Docket Entry 73) and all of the Plaintiff’s
complaint filed against Defendants, except Defendant Adelman, were
DISMISSED.
Because of the Plaintiff’s failure to respond to any of
the pleadings in the matter, the Magistrate Judge issued a show
cause order on December 27, 2011 (Docket Entry 79), directing the
Plaintiff to show cause on or before January 18, 2012, why the
Magistrate should not recommend dismissal of his case for failure
to obey Court orders and to prosecute.
On December 28, 2011, Defendant Adelman filed a motion to
dismiss for failure to exhaust administrative remedies (Docket
Entry 82).

In his memorandum in support of the motion (Docket

Entry 82-1) he set out the time line concerning the alleged
grievance and the proceedings in this case.
The Plaintiff has failed to respond to either the show
cause order or to the motion to dismiss.

2

LEGAL DISCUSSION
The Magistrate Judge adopts the previous recommendation
(Docket Entry 71) concerning the basis for recommending dismissal
for failure to obey Court orders and to prosecute his case.

It is

clear in this case that the Plaintiff has totally lost contact with
the Court.

It appears that all regular and certified mail sent to

him have been unanswered and/or returned since mid-October 2011.
The

motion

to

dismiss

for

failure

to

exhaust

administrative remedies (Docket Entry 82) is well-taken.

The

exhaustion of administrative remedies must be done properly.
Woodford

v.

Ngo,

126

S.

Ct.

2378

(2006)

the

Supreme

In

Court

specifically held:
This case presents a question whether a prisoner can
satisfy the Prison Litigation Reform Act exhausting
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 at 2382.
To hold otherwise would allow a prisoner to bypass the entire
grievance

procedure

simply

by

a

filing

a

grievance

providing any reason for failing to file on time.
Plaintiff

filed

his

grievance

four

months

without

In this case the

after

the

alleged

incident took place. In his complaint he provided no grounds as to
why the grievance was filed late and has failed to file any
response to the motion to dismiss in which he could have offered an
explanation for the delay in filing.
3

Under these circumstances, the Magistrate Judge believes
that

the

Plaintiff

has

failed

to

exhaust

his

administrative

remedies and he has shown no grounds whatever for his delay in
filing a grievance.

Thus, Defendant Adelman is entitled to a

dismissal of the charges against him.
RECOMMENDATION
For
recommends

the

that

reasons
the

stated

Plaintiff

above,

claims

the

Magistrate

against

the

Judge

remaining

Defendant Adelman be DISMISSED with prejudice for failure to
exhaust administrative remedies, for failure to obey Court orders,
and to prosecute his case.
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).
ENTERED this 2nd day of February, 2012
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
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