Butts v. Biggs

Filing 48

REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that this case be dismissed without prejudice for failure to exhaust administrative remedies. Alternatively, if exhaustion is found the Magistrate Judge rec ommends the case be dismissed in its entirety for failure to state a cause of action under rule 12(b)6). Signed by Magistrate Judge Joe Brown on 12/11/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT BUTTS,

)
)
)
)
)
)
)
)
)

Plaintiff
v.
GARY BIGGS, II,
Defendant
TO:

No. 3:15-0277
Judge Trauger/Brown
Jury Demand

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION WITH COSTS
For

the

reason

stated

below,

the

Magistrate

Judge

recommends that the Defendant’s motion to dismiss (Docket Entry 36)
be granted and this case be dismissed without prejudice for failure
to exhaust administrative remedies.
BACKGROUND
This case has been somewhat convoluted since the original
complaint was filed in March 2015 (Docket Entry 1). The original
complaint

involved

a

claim

that

the

Plaintiff

had

received

disciplinary action for following his spiritual order in communing
with God in erect form (i.e. by standing in is cell praying). He
alleges he was sent to the hole for 10 days without a disciplinary
hearing. Officer Rumsey wanted him to stop praying and get in his
bunk. She then called Officer Goodale and Plaintiff was handcuffed
and

taken

to

the

hole.

He

alleges

the

following

Monday

he

complained to Chaplin Helms. He was taken before a disciplinary
board over his refusal to obey orders and Chaplin Helms, who should
have assisted him was not present. He states that the disciplinary

board refused to explain the procedure to him and sent him to the
hole for 10 days. He also complained that in March 2015 he received
a partial serving of meat and that when he complained to the
correctional officers they ignored his complaint.

He waited until

the completion of the meal without getting a full portion. At that
time he was ordered by Lieutenant Lovell and two other correctional
officers to either eat the food on the tray or go to his cell. They
did not inspect the tray. He elected to go back to his cell. He was
written

up

because

of

this

incident

and

again

sent

to

the

disciplinary board. He states that Ms. Hindley again did not call
witnesses or question him and that he was again sent to the hole
without a fair hearing.
Subsequent to the initial documents, the Plaintiff sent
the Court a letter on May 8, 2015, complaining that the jail
officials had refused to assist him in preparing his documents so
he could proceed in forma pauperis. He also complained that his
grievances were not being responded to (Docket Entry 9). He
provided some additional details concerning his original complaint
and stated that he did not have access to adequate legal materials.
On May 21, 2015, the Court directed the Clerk to send the
Plaintiff a form to file a 1983 civil rights action and directed
the Plaintiff to return it to the Court within 30 days. He was
advised that a properly completed complaint would enable the Court
to conduct the screening required by the Prison Litigation Reform

2

Act. (Docket Entry 12). On July 7, 2015, the Plaintiff returned two
documents entitle “amended complaint” (Docket Entries 17 and 18).
Docket Entry 17 appears to be primarily a typed version
of

his

original

complaint

in

the

matter

with

an

additional

allegation that on May 14, 2015, he was placed in a 24-hour lock
down because his cell mate had left water running while everyone
else was asleep. Rather than punishing the inmate who left the
water running, Lieutenant Walker decided to punish the entire cell.
He also alleged that on June 1, 2015, he was given 30 days’
lockdown by the disciplinary hearing board that only had one
member, rather than the required three members. He further alleged
he injured his left hand on May 28, 2015, and was not given proper
medical treatment for a fracture of the hand.
The amended complaint contained in Docket Entry 18 was on
the normal form for a 1983 complaint. It actually appears to be
more in the form of a motion to consider his amended complaint
(Docket Entry 17).
On initial review of these documents, the Court granted
the Plaintiff’s motion to proceed
accordance

with

the

Prison

in forma pauperis, and in

Litigation

Reform

Act

the

Court

dismissed his action in its entirety (Docket Entry 21). The
Plaintiff then filed an additional pleading with the Court on July
24, 2015 (Docket Entry 23), calling the Court’s attention to an
additional complaint of retaliation and requesting injunctive
relief. In this pleading he alleged that on July 8, 2015, Officer

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Biggs approached his cell and spoke harshly to him but allowed him
to take a shower. He states that after returning from the shower he
found that in his absence Officer Biggs searched his cell and
confiscated the support rods for his wrist brace. He stated that
despite telling Officer Biggs that the wrist brace was from the
hospital

and

approved

by

the

medical

staff,

Officer

Biggs

nevertheless single handedly searched his cell and made his wrist
brace dysfunctional.1 Plaintiff sent in the disciplinary report
filed against him by Briggs and his grievance about the matter
(Docket Entry 23, p. 4-9).
As a result of this filing, the District Court entered an
order on August 8, 2015 (Docket Entry 25) allowing the filing to be
construed as an amended complaint (Docket Entry 23). Based on this,
the Court liberally construed the matter and allowed the case to
proceed against Officer Biggs only, based on the theory that
Officer

Biggs

took

adverse

actions

against

the

Plaintiff

by

searching the cell, confiscating his metal support device, and
filing a false charge against him. The Court cautioned that this
was a preliminary finding only, but that Officer Biggs would be
required to respond to the Plaintiff’s allegations of retaliation.
Officer Biggs has now filed a motion to dismiss (Docket
Entry 36) supported by a memorandum of law (Docket Entry 37). The

1

Apparently Officer Biggs removed the metal stays from the wrist
brace because he considered them potential weapons.

4

Plaintiff has filed a response (Docket Entry 41). There has been no
reply. The matter is now ready for resolution.
The essence of the Defendant motion to dismiss is that
the Plaintiff has been allowed to amend his original complaint of
March 19, 2015, and at the time he filed his original complaint he
had not exhausted his administrative grievances to his claims
against

Officer

Biggs.

In

fact,

Officer

Biggs

was

not

even

mentioned in the first complaint. They ague this present case
should be dismissed for failure to exhaust administrative remedies.
From a review of this rather convoluted case, it appears
that Officer Biggs’s motion is well-taken. The complaint against
Officer Biggs (Docket Entry 23) was signed by the Plaintiff on July
20, 2015, and received by the Court on July 24, 2015. There are no
factual allegations in the amended complaint that Officer Biggs was
aware of the fact that the Plaintiff had filed a lawsuit or
grievances

against

any

anyone

at

the

jail.

The

Plaintiff’s

statement in the amended complaint about Officer Biggs’s conduct
does

not

recite

any

statement

by

Officer

Biggs

that

could

reasonably be related to retaliation for any earlier lawsuit or
grievance. Likewise in his grievance, which he filed the next day,
he complains about the search and confiscation of the brace and the
failure to provide grievance forms when first requested, but he
does not mention any threat of retaliation by Biggs. At best he
mentions a general fear of retaliation in his request for an
injunction (Docket Entry 230.

5

As the Defendant points out, no service of process had
been issued to anyone. The Plaintiff’s statement that Officer Biggs
actions were retaliation appear to be mere conclusions without
factual support. As the Supreme Court has held in Ashcroft v.
Iqbal, 556 U.S. 663, 678 (2009), the complaint must contain
sufficient factual matters to state a claim for relief that is
plausible on its face. The Plaintiff has offered no factual basis
for a claim that Officer Biggs had knowledge of any of the
Plaintiff’s earlier complaints. Without some allegations of actual
knowledge by Officer Biggs, retaliation is not plausible.
The Defendant argues that this is an improper amendment
to the original complaint, and is an unrelated charge which should
have been considered separately. In support of this they cite the
recent district court case of Ward v. Thompson, 215 WL 2948190
(W.D. Mich. June 29, 2015) (Docket Entry 37-7). Where the District
Judge pointed out that the practice of joining
not compatible under

claims which are

Rule 18 and Rule 20 of the Federal Rules of

Civil Procedure would thwart the fee payments and three strikes
provisions of the Prison Litigation Reform Act. Ward at *3. The
alleged actions of Officer Biggs took place some four months after
the original complaint was filed. Although the Plaintiff attempts
to tie Officer Biggs’s actions to the earlier complaint there is
simply no factual basis in the records or in his complaint for such
a conclusion. None of the statements made by Officer Biggs in any
way appear to relate to earlier grievances the Plaintiff has filed

6

and Officer Biggs’s statements, which are quoted by the Plaintiff,
do not refer in any way to any earlier actions by the Plaintiff.

ANALYSIS
It appears to the Magistrate Judge that the Plaintiff is
simply attempting to add a new defendant and a new complaint
without paying the required fees for a new case. At the time he
filed

his

original

case

in

March

he

had

not

exhausted

his

administrative remedies as to Officer Biggs. In fact, since Officer
Biggs’s actions had not even occurred at that time, he could not
have.
Since

it

appears

that

the

Plaintiff

may

well

have

exhausted his administrative remedies against Officer Biggs at this
point, the dismissal of this case with the ability to file a new
case

may

seem

somewhat

bureaucratic.

Nevertheless

to

allow

amendments to the complaint would defeat the purpose of separate
fees and separate assessments for frivolity under the Prison
Litigation Reform Act.
The Magistrate Judge therefore recommends that this case
be dismissed for failure to exhaust administrative remedies as to
Officer

Biggs

at

the

time

the

Plaintiff

filed

his

original

complaint in March of 2015. Alternatively, if the Court were to
rule on the merits of the amended complaint, after careful review
the

Magistrate

Judge

believes

that

the

complaint

should

be

dismissed with prejudice inasmuch as it fails to state a cause of

7

action against Officer Biggs. As noted above, there is simply no
factual allegations that Officer Biggs acted in retaliation for
earlier activities and lawsuits by the Plaintiff. Even if it is
true that Officer Biggs did not provide the Plaintiff a grievance
form when first requested, he gave the plaintiff one late that
night and the plaintiff filed a grievance the next day.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that this case be dismissed without prejudice for
failure to exhaust administrative remedies.2 Alternatively, if
exhaustion is found the Magistrate Judge recommends the case be
dismissed in its entirety for failure to state a cause of action
under rule 12(b)6).
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).

2

If the case is dismissed for failure to exhaust as recommended the
plaintiff will have the opportunity to file a new law suit against Biggs
provided he can show a proper factual basis.

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ENTER this 11th day of December, 2015.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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