Massey v. Weatherford et al
OPINION AND ORDER OF THE COURT: The Report and Recommendation (Dkt. 25 ) is ADOPTED IN PART. Defendants Shaffer and Southern Health Partners, Inc.'s motion for summary judgment (Dkt. 9 ) is GRANTED, and plaintiff's complaint (Dkt. 1 ) is DISMISSED WITHOUT PREJUDICE. Signed by Judge Judith E. Levy on 8/24/2017.(xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
Civil Action No. 17-CV-168
Hon. Judith E. Levy
Sonny Weatherford et al.,
OPINION AND ORDER ADOPTING IN PART REPORT AND
RECOMMENDATION  AND GRANTING DEFENDANTS
SHAFFER AND SOUTHERN HEALTH PARTNERS, INC.’S
MOTION FOR SUMMARY JUDGMENT 
This is a civil rights suit filed by pro se plaintiff Raymond Massey
pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants Sheriff
Sonny Weatherford, Jail Administrator Sonya Troutt, Cheryl Shaffer,1
and Southern Health Partners, Inc., refused to provide medical
treatment at the Sumner County jail in violation of his constitutional
rights. (Dkt. 1.)
Plaintiff referred to Cheryl Shaffer as “Cheryl” in the complaint, stating she was
“Director of Medical for Sumner Co Jail” and did not know her last name. (Dkt. 1 at
Before the Court is defendants Shaffer and Southern Health
Partners, Inc.’s motion to dismiss or, in the alternative, motion for
summary judgment. (Dkt. 9.) The Magistrate Judge submitted a Report
and Recommendation (“R&R”) that recommends treating the motion to
dismiss as a motion for summary judgment, granting the motion, and
dismissing the complaint with prejudice. (Dkt. 25.) No objections were
For the reasons set forth below, the R&R is adopted in part and
defendants’ motion for summary judgment is granted.
Plaintiff was incarcerated in Lexington, Kentucky, and transferred
to Sumner County Jail on January 14, 2016.
Once transferred, he
informed jail staff that he had Hepatitis C and needed ongoing medical
He alleges that despite making multiple requests for
treatment, the staff refused. (Dkt. 1 at 7–8.)
Plaintiff alleges that in October 2016, he filed a formal grievance
based on his inability to obtain medical care.
(Dkt. 1 at 8.)
grievances, which he alleges were filed through a kiosk, were then
allegedly rejected by jail staff, and plaintiff was told the treatment
decisions were “up to the Medical Department.” (Id. at 5–6, 8.)
On January 14, 2017, plaintiff filed a complaint, alleging the jail’s
alleged refusal to provide medical care violated his “rights to Due
Process, Discrimination, Lack of Medical Attention, Medical Malpractice,
and Cruel and Unusual Punishment.” (Dkt. 1 at 8.)
On January 27, 2017, Chief Judge Sharp issued an order dismissing
the claims against Sheriff Weatherford and Sonya Troutt. (Dkt. 3.)
On March 9, 2017, the remaining defendants, Cheryl Shaffer and
Southern Health Partners, Inc., filed a motion to dismiss, or in the
alternative, motion for summary judgment.
plaintiff failed to exhaust his administrative remedies or to allege his
injury resulted from a policy, practice or custom or failure to train by
Southern Health Partners. (Dkt. 10 at 3–6.)
On March 11, 2017, the Magistrate Judge issued an order informing
plaintiff that “failure to exhaust remedies has been raised” as a defense
and that “he may not just rely on his complaint,” but “must come forward
with some admissible evidence that he has in fact filed a grievance.”
The Magistrate Judge indicated that if plaintiff required
additional time, he must request it by April 10, 2017. (Id.) Defendants
were also informed that if they wanted the motion to be considered as one
for summary judgment, they must comply with Fed. R. Civ. P. 56 and
L.R. 56. (Id.)
Defendants then submitted a statement of undisputed facts and a
memorandum in support of the motion for summary judgment. (Dkts.
On April 3, 2017, plaintiff requested additional time to obtain
documents related to his case. (Dkt. 21.) The Court granted the request
on April 8, 2017, giving plaintiff until April 24, 2017 to obtain the
requisite documentation related to defendants’ argument that he failed
to exhaust administrative remedies.
On May 4, 2017, the Magistrate Judge issued an R&R
recommending that the motion be treated as one for summary judgment,
and that the motion be granted on the ground that plaintiff failed to
exhaust administrative remedies.
The R&R then recommended
dismissing the complaint with prejudice, and stated that the parties had
fourteen days in which to file objections.
No party filed
Additional procedural and factual background is recounted in detail
in the R&R (Dkt. 25) and is adopted here.
A magistrate judge’s Report and Recommendation is made
pursuant to 28 U.S.C. § 636(b)(1).
“[T]his recommendation has no
presumptive weight,” and the district judge “has the responsibility of
making the final determination.” Patrick Collins, Inc. v. John Does 1-21,
286 F.R.D. 319, 320 (E.D. Mich. 2012). If a party objects to part or all of
the R&R, the district judge must review de novo those parts to which the
party has objected. Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D.
Mich. 2002); Fed. R. Civ. P. 72(b)(3). De novo review “entails at least a
review of the evidence that faced the Magistrate Judge.” Lardie, 221 F.
Supp. 2d at 807. After reviewing an R&R, a court may “accept, reject, or
modify the findings or recommendations.” Id.
The Magistrate Judge recommends treating the motion to dismiss
as a motion for summary judgment, and recommends granting
defendants’ motion for summary judgment on the grounds that plaintiff
failed to provide any documentation to demonstrate that he filed a
grievance about the conduct at issue in this complaint.
Converting Motion to Dismiss to Motion for Summary
A motion to dismiss may be converted to a motion for summary
judgment if notice is given to the parties. “Whether a district court must
provide actual notice . . . depends on the facts and circumstances of each
case,” but if “one party is likely to be surprised by the proceedings, notice
Shelby Cty. Health Care Corp. v. S. Council of Indus.
Workers Health and Welfare Trust Fund, 203 F.3d 926, 931 (6th Cir.
2000) (citing Fed. R. Civ. P. 12(d)).
Here, the Magistrate Judge issued an order after defendants filed
a motion to dismiss, or in the alternative for summary judgment,
indicating that because the affirmative defense of failure to exhaust had
been raised, documents outside the complaint and pleadings “may be
considered.” (Dkt. 13.) Plaintiff was advised he must submit additional
documentation to show he exhausted the administrative remedies, and
defendant must comply with Fed. R. Civ. P. 56 and L.R. 56. (Id.) As this
order makes clear, the parties were given actual notice that the Court
may convert defendants’ motion to dismiss to one for summary judgment.
Accordingly, the Court adopts the recommendation to treat the motion as
one for summary judgment and will apply the applicable legal standard
in assessing the merits.
Summary judgment is proper when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court may not
grant summary judgment if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The court “views the evidence, all
facts, and any inferences that may be drawn from the facts in the light
most favorable to the nonmoving party.” Pure Tech Sys., Inc. v. Mt.
Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing Skousen v.
Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
Plaintiff Failed to Exhaust His Administrative Remedies
The Magistrate Judge recommended finding that there was no
question of material fact that plaintiff failed to exhaust administrative
remedies because the record showed plaintiff filed fifty-four (54)
grievances, and mentioned failure to treat his Hepatitis C. Thus, the
Magistrate Judge recommended granting defendants’ motion for
summary judgment and dismissing the complaint with prejudice. (Dkt.
25.) No objections were filed to the R&R by the parties. Accordingly, and
on review of the R&R and evidence submitted by the parties,
The R&R is adopted in part. Defendants’ motion for summary
judgment is granted on the ground that plaintiff failed to exhaust his
administrative remedies. However, “[i]t is well established . . . that the
appropriate disposition of an unexhausted claim under the PLRA is
dismissal without prejudice.” Bell v. Konteh, 450 F.3d 651, 653 n.4 (6th
Accordingly, the R&R is not adopted as to the
recommendation to dismiss the complaint with prejudice.
For the reasons set forth above, the R&R (Dkt. 25) is ADOPTED IN
Defendants Shaffer and Southern Health Partners, Inc.’s motion
for summary judgment (Dkt. 9) is GRANTED, and plaintiff’s complaint
(Dkt. 1) is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: August 24, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
Sitting By Special Designation
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