Grant v. Wisener et al

Filing 60

MEMORANDUM ADOPTING 49 Report and Recommendation of the Magistrate Judge. It is ordered that the Defendants' 39 Motion for Summary Judgment is GRANTED as to Defendant Warden John Wisener and DENIED as to Defendant Corbett Randall. It is OR DERED that the claims against Warden Wisener are DISMISSED with prejudice for failure to exhaust administrative remedies. The dismissal against Warden Wisener has no effect upon any of the claims or defendants remaining in the lawsuit. Signed by Judge Michael H. Schneider on 7/24/2012. (leh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
TIMOTHY GRANT

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v.

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JOHN WISENER, ET AL.

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CIVIL ACTION NO. 6:11cv372

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Timothy Grant, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court ordered that the case
be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the
Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States
Magistrate Judges. As Defendants, Grant named John Wisener, Danny Taliaferro, Corbett Randall,
Cheryl Lawson, and Dan Gannon, of whom Lawson and Gannon have previously been dismissed.
Grant complains of an incident which took place on July 14, 2009, in which he was required
to undergo a strip search upon leaving the law library. The Defendants Wisener and Randall filed
a motion to dismiss the claims against them for failure to exhaust administrative remedies. On June
14, 2012, the Magistrate Judge issued a Report recommending that the motion be granted as to the
claims against Wisener and denied as to the claims against Randall. Grant has filed objections to
the Report, although Wisener and Randall have not objected.
In his objections, Grant says that the Defendants’ answer did not raise the issue of exhaustion
and therefore waived it, and that his claim that Warden Wisener failed to properly train his
subordinates can reasonably be discerned from his grievances. He points out that his grievance refers
to “a training exercise gone awry,” stating that this provides a basis for a failure to train claim.

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Grant’s objections are without merit. As the Magistrate Judge said, a grievance must provide
prison administrators with a fair opportunity under the circumstances to address the problem that will
later form the basis of the lawsuit. See Johnson v. Johnson, 385 F.3d 503, 523 (5th Cir. 2004).
Grant’s oblique, parenthetical reference to “a training exercise gone awry” does not provide prison
administrators with a fair opportunity to address a claim of inadequate training on the part of the
warden; indeed; Grant’s grievance refers to “security’s unwarranted action” as the training exercise
which went awry, indicating that the fault lay with Captain Taliaferro, the ranking security officer
on the scene, rather than Warden Wisener. Grant has failed to show any basis upon which to reject
the Magistrate Judge’s Report.
The Court has conducted a careful de novo review of the pleadings in this case, including the
Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de novo review,
the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiff’s
objections are without merit. It is accordingly
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 49) is ADOPTED as the opinion of the District Court. It is further
.

ORDERED that the Defendants’ motion for summary judgment (docket no. 39) be and

hereby is GRANTED as to the Defendant Warden John Wisener, and DENIED as to the Defendant
Corbett Randall. It is further
ORDERED that the claims against Warden Wisener are hereby DISMISSED with prejudice
for failure to exhaust administrative remedies. The dismissal of the claims against Warden Wisener
shall have no effect upon any of the claims or defendants remaining in the lawsuit.
It is SO ORDERED.
SIGNED this 24th day of July, 2012.

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____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE