Opinion
No. 2:02-CV-0253.
August 4, 2004
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On this day came for consideration defendants' First Amended Motion for Summary Judgment with supporting Memorandum and Appendix filed February 10, 2004. Plaintiff filed his "Responce to Defendants First Amended Motion for Summary Judgment" on November 21, 2003.
The Court notes that an amended pleading replaces and supersedes any preceding version of that pleading and, therefore the Court does not look to defendants' original Motion for Summary Judgment or pleadings responsive thereto.
Plaintiff filed his response soon after service of a copy by defendants but before the Court granted defendants' motion for leave to file.
As determined by the Court in the Order Granting Motion to Amend issued September 25, 2003, plaintiff's complaint is comprised of his original complaint and his October 31, 2002 and November 8, 2002 motions to amend.
UNDISPUTED FACTS
Plaintiff, appearing pro se, filed this suit while a prisoner in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), and was incarcerated at the Clements Unit during the time relevant to this cause. Similarly, at all times relevant to this cause, defendants were employed by TDCJ-CID. At all times relevant to this lawsuit, the defendants acted under color of state law. Plaintiff is no longer being held at the Clements Unit and is presently housed at the Polunsky Unit in Livingston, Texas.
PLAINTIFF'S CLAIM
Plaintiff alleges that, in December of 2001, after an incident between himself and Officers Harris and Johnson, Harris and Johnson "instigated the black inmates against [him]." Plaintiff says he told "security" Harris and Johnson were engaged in illegal activity and alleges he was later threatened by a black inmate for naming that inmate. Plaintiff states he requested protective custody but, during a unit classification committee meeting defendants POHLMEIER and GUERRO found there was insufficient evidence and returned plaintiff to general population.
Plaintiff says he suffered many verbal threats of harm between December 2001 and February 2002. Plaintiff alleges that, on February 14, 2002, there was another "incident' between himself and Officers Harris and Johnson. He states a Sgt. Snyder then threatened him, and he submitted a statement to an Officer Fairfield. Plaintiff alleges that, on February 20, 2002, he was warned by another inmate that the Crips were talking about attacking him because he had informed on Harris, Johnson, and Snyder. Plaintiff submitted another written statement to all wardens and was later told by an inmate that defendant Capt. MOORE had instructed the inmate to "make sure Armstrong don't get beat up."
Plaintiff alleges he submitted a written statement to defendant MOORE the next day who read it and told him he didn't have enough evidence. Defendant GUERRO later interviewed plaintiff concerning his letter to all wardens and told him the same thing.
Plaintiff states that, on March 17th, he was informed by an inmate that a contract was out on his life and he wrote yet another request for protective custody. Plaintiff says he was moved to another location across the unit and, on March 31st, was interviewed by defendant MOORE again. He says MOORE persuaded him to sign a waiver of protective custody, and, on or about April 7, 2002, plaintiff was attacked by another inmate, suffering a broken jaw in three places.
After his return from the hospital, he again requested protective custody to avoid return to general population and, four days later, was transferred to another unit.
By his October 31, 2002 amendment, read in conjunction with the original complaint, plaintiff states he sues the defendants in both their official and individual capacities. He requests injunctive relief in the form of "a court order to have [him] placed in protective custody so no retaliation from other officials may occur", as well as compensatory and punitive damages totaling $12,000,000.00.
By his November 8, 2002, supplementation, plaintiff adds defendant STUBBLEFIELD and alleges the defendant failed to provide the security needed to prevent the attack on plaintiff.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
As to plaintiff's claims against them in their official capacities, defendants contend they are shielded by the Eleventh Amendment from his request for monetary relief; plaintiff's request for protective custody is moot due to his subsequent transfer; the alleged basis is speculative and unsupported by any factual allegation; and that plaintiff lacks standing to request injunctive relief.Defendants also contend plaintiff has not exhausted administrative remedies with respect to his claims of a failure to protect him before the incident and, for this reason, all of his claims except those for injunctive relief, are barred. Defendants further plead qualified immunity and contend plaintiff has failed to adduce evidence to defeat their entitlement to this defense.
By his November 21, 2003 response, plaintiff objects that he did not receive his copy of defendants' motion until November 12th. Plaintiff says his response was due twelve days from that date. Plaintiff also argues neither of the defendants' two initial disclosures contained a copy of "appendix nos; 2" and, therefore, the document should not be considered in support of defendants' motion. Plaintiff contends the step 2 grievance submitted by defendants does not contain a copy of the back of the page and asks "where is the reverse side explaining in deteal [sic] the allegations off [sic] the plaintiff." For this reason as well, plaintiff requests the exhibit be barred.
Plaintiff further argues the evidence before the Court is sufficient to show personal involvement by the defendants and defeat their claims to qualified immunity.
THE STANDARD OF SUMMARY JUDGMENT REVIEW
Summary judgment may be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). Consequently, after adequate time for discovery and upon motion, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).Because the consequences of summary judgment are so severe, the court must be careful to avoid premature termination of legitimate lawsuits merely because of unskilled presentations. Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980). In determining a movant's request for summary judgment, all reasonable inferences must be made in favor of the party opposing the motion. Phillip's Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987). Only disputes of facts that could affect the outcome of the suit at trial will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A complete failure of proof concerning an essential element of the nonmoving party's case is fatal and entitles the moving party to judgment as a matter of law. Celotex v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Upon such a showing, the burden of production shifts to the nonmovant to delineate specific facts which demonstrate the presence of a genuine issue of material fact. Id.; Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir. 1992). A motion for judgment as a matter of law is properly granted when the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict. If there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors might reach a different conclusion, then the motion for judgment as a matter of law should be denied. Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir. 1996).
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF QUALIFIED IMMUNITY
Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether the plaintiff has asserted a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Analysis at this stage is performed under the "currently applicable constitutional standards." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).
If the initial inquiry is satisfied, the second prong of the qualified immunity test must be considered: whether the constitutional right alleged to have been violated was clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of contemporaneous clearly-established law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998). Although analysis under the first prong requires the court to consider currently applicable constitutional standards, analysis under the second prong requires a court to measure the objective reasonableness of an official's conduct with reference to the law as it existed at the time of the conduct in question. Id. (citing Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993).
Although it may be "difficult to imagine factual circumstances in which a trier of fact could find deliberate indifference as defined by Farmer and nevertheless conclude that a reasonable person in defendant's position was not chargeable with knowledge that his or her actions violated the plaintiff's clearly established constitutional rights," in analyzing a claim of qualified immunity, the test is objective reasonableness, not subjective deliberate indifference. Hare v. City of Corinth, 135 F.3d 320, 328 (1998) (quoting Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328 at 6 (N.D.N.Y.Dec. 16, 1994). Consequently, at the qualified immunity stage, the deliberate indifference standard only allows an examination of whether, under the standard not to be deliberately indifferent, the acts or omissions of the defendant were objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998).
Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994).
ANALYSIS OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Official Capacity Claims
The Eleventh Amendment bars suit against a state or a state official unless the State has waived its immunity, Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989); and grants the States an immunity from retroactive monetary relief, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). A suit against an official in his or her official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). Consequently, any claim for monetary relief against defendants in their official capacities is barred by the Eleventh Amendment.
An exception to this general principle was created in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that a suit for prospective injunctive relief, challenging the constitutionality of a state official's action in enforcing state law, is not one against the State. Id., at 159-160, 28 S.Ct. at 453-54. See, also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (the Eleventh Amendment grants the States an immunity from retroactive monetary relief, but state officers are not immune from prospective injunctive relief).
Defendants also argue plaintiff's claims for injunctive relief have been rendered moot by his transfer and contend that plaintiff has not alleged any facts indicating he would suffer the same type of harm at his new unit of assignment. In response, plaintiff alleged many incidents of harassment and unsuccessful life endangerment requests for protective custody at the Eastham Unit, concluding, "I'm scared to death because so much is going on because of this lawsuit." Nevertheless, since plaintiff's transfer to the Polunsky Unit, he has not named anyone as a defendant other than Clements Unit defendants and has not alleged continued danger. Consequently, plaintiff's claims against defendants in their official capacities for injunctive relief appears to be MOOT. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).
Defendant STUBBLEFIELD — Exhaustion of Administrative Remedies and Negligence
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."
Defendants present "Appendix Nos. 2" entitled, "Relevant portion of Plaintiff's TDCJ Grievance file with business records affidavit" which consists of the front page of a step 2 grievance apparently submitted by plaintiff on June 12, 2002. Defendants argue the grievance evinces only an exhaustion of the failure to place plaintiff in protective custody after the attack.
By his response, plaintiff states the defendants only offer side one of the step 2 grievance and asks, "where is the reverse side explaining in deteal [sic] the allegations off [sic] the plaintiff." Plaintiff asks that the Court refuse to consider the exhibit.
The Court notes plaintiff, himself, submitted a copy of the step 2 grievance stapled to his August 27, 2002, original complaint and accompanying a document entitled "Exhaustion of Grievance Procedure Unsworn Declaration." Plaintiff provided a copy of the back of the grievance as well and review reveals there is nothing on the back except plaintiff's signature, his TDCJ-CID number, and the date "05-30-02." Thus, plaintiff's argument that the grievance should not be considered by the Court because the reverse side is missing and contains a detailed account of his grievance statement is not persuasive. For this same reason, that is, plaintiff's prior submission of the same document to the Court, plaintiff's objection to consideration of the grievance based on defendants' failure to produce it to plaintiff during the course of discovery, is OVERRULED. Nevertheless, plaintiff indicates in the grievance he is grieving the failure to heed his requests for protective custody by the three defendant Wardens, "Classification," Captain MOORE, and Lt. GUERRO.
It appears the only defendant not named or indicated by the vague reference in the grievance to "Classification" is defendant STUBBLEFIELD. "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
It appears plaintiff has failed to exhaust administrative remedies concerning any claim against defendant STUBBLEFIELD. By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, these claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Moreover, the only allegations plaintiff has made concerning STUBBLEFIELD are that he failed to provide the security needed to prevent the attack on plaintiff. At best, this is a claim of negligence; however, section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986). For this reason as well, plaintiff's claim against STUBBLEFIELD lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Defendants HOLLIGAN, HASKINS and SHIPP
Liability for an Eighth Amendment deprivation requires the same delinquency in denial of protection against harm from other inmates as it does for denial of medical care, Johnston v. Lucas, 786 F.2d 1254, 1259 (5th Cir. 1986); thus, there must be an allegation of facts which will support deliberate indifference on the part of jail officials, Wilson v. Seiter, 504 U.S. 962, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Not every injury suffered by a prisoner at the hands of another rises to the level of a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811, 823 (1994). The plaintiff prisoner must prove: (1) he is incarcerated under conditions "posing a substantial risk of serious harm," and (2) that the defendant prison official's state of mind is one of "deliberate indifference" to the prisoner's health or safety. Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995); Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause of commendation, cannot under our cases be condemned as infliction of punishment." Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811, 823 (1994).
The appropriate definition of "deliberate indifference" under the Eighth Amendment is "subjective recklessness as used in the criminal law." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994); Reeves v. Collins, 27 F.3d. 174 (5th Cir. 1994). In this regard the Supreme Court has cautioned:
[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Farmer v. Brennan, 511 U.S. at 837-38, 114 S.Ct. at 1979
Plaintiff claims defendant HOLLIGAN is the Chief of Classification, defendants HASKINS and SHIPP are classification officers, and all have access to his classification file with his requests for protective custody. Further, plaintiff argues, all are charged with the responsibility of general classification. The only act alleged by plaintiff against any of these defendants is that defendant SHIPP served on the May 2002, post-attack, Unit Classification Committee with POHLMEIER and MOORE by which plaintiff was transferred to another unit.
In his November 21, 2003, response to defendant's amended motion for summary judgment, plaintiff argues that, since his claims of life endangerment are sent to classification personnel for investigation, these three defendants may be charged with personal knowledge of his need for protective custody. Further, he contends, no investigation occurred. This contention is rebutted by plaintiff's own allegations of interviews by defendants MOORE and GUERRO in response to his letters to the defendant Wardens requesting protective custody. Nevertheless, assuming no investigation occurred with respect to one or more of plaintiff's complaints and further assuming that defendants are responsible for this failure, plaintiff has only alleged facts showing negligence, not deliberate indifference to his safety. However, section 1983 is not a general tort statute, and mere negligence does not meet the standard for liability under section 1983. Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986). Further, the mere fact that plaintiff's written letters for protective custody were forwarded to these defendants does not show they had personal knowledge of their contents or the truthfulness of them. Consequently, plaintiff's claims against defendants HOLLIGAN, HASKINS, and SHIPP lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Defendants PRICE, WALKER, and WESTON
Plaintiff claims he sent letters to the defendants setting forth why he felt he was in danger and requesting protective custody. The defendants have submitted a sworn Affidavit by Warden Duke of the Robertson Unit stating that, "[a]s a general practice, Wardens do not review life endangerment claims that they receive from inmates either by a letter or an official claim. These claims are sent to classification personnel for investigation." Warden Duke goes on to state that sometimes the claims are routed to classification personnel by the Warden's secretary without the Warden ever seeing the letters, etc.
Plaintiff does not offer evidence rebutting this description of the procedure for processing inmate letters claiming life endangerment nor does he argue use of this procedure by any one or more of the Warden defendants was unreasonable or did not occur. Further, plaintiff does not argue or point to any evidence to support a contention that any one or more of the defendant Wardens had personal knowledge of facts indicating he was in substantial risk of serious harm or that one or more of them ignored such facts.
For this reason, plaintiff has failed to present evidence showing the existence of a material question of fact sufficient to defeat defendants' motion for summary judgment as to his claims against any one or all of the defendants PRICE, WALKER, and WESTON and, further, has failed to defeat their entitlement to the defense of qualified immunity.
Defendant MOORE
Plaintiff claims defendant MOORE investigated one or more of his life endangerment complaints but made a finding of not enough evidence. He further contends that, at a March 31, 2002 interview with MOORE, he was coerced into signing a waiver of request for protective custody.
Defendants respond that defendant MOORE could not assign plaintiff to protective custody and plaintiff does not show any deliberate indifference by his allegations that defendant MOORE interviewed him.
Plaintiff's naked allegation of coercion is fleshed out in his original complaint as follows:
Capt. MOORE stated "Armstrong theres not enough evidence." I asked him, "What do I do because I was telling the truth but everyone kept saying "not enough evidence." Capt. Moore began writing and then gave me a piece of paper and told me, "You sign a waiver for protective custody, and if they are out to get you, and you don't catch P.C., maybe they'll forget about you." So under considerable stress and uncertainly I signed the form. [sic et passim.]
The Court notes plaintiff's claim of coercion is amply rebutted by his own account of the interview. Clearly plaintiff now regrets having signed the waiver, and in hindsight he probably should not have done so; however, his account of the events surrounding that signing rebuts any coercion in that it contains no indication of threats, intimidation, or over-reaching by defendant MOORE.
Plaintiff has alleged no other act or omission against defendant MOORE and has presented no evidence to support his claim of coercion. He has, therefore, failed to present evidence showing the existence of a disputed issue of material fact sufficient to defeat defendants' motion for summary judgment as to his claims against this defendant and has failed to defeat his claim of entitlement to qualified immunity.
Defendants POHLMEIER and GUERRO
Defendants POHLMEIER and GUERRO admit to having served on the Classification Committee and voting to deny one or more of plaintiff's requests for protective custody. Defendants argue plaintiff never supported his requests with sufficient information to justify the grant of protective custody. They contend plaintiff complained that gang members were going to attack him, but state the Clements Unit has many gangs and that many offenders are members of the Crips. Plaintiff makes no response to this argument in his "Responce [sic] to Defendants' Amended Motion for Summary Judgment" except to contend that the record reflects there was never an investigation prior to the assault or immediately after the assault. Nevertheless, plaintiff does not attach to his "Responce" or point to summary judgment evidence in the record to support this contention or his claim that he gave both names and dates to these defendants when interviewed by them. The Court notes that plaintiff's own allegations of having been interviewed by these defendants or by defendant MOORE refutes his present argument that there was no investigation at all of his claims of life endangerment. At any rate, once defendants point to an element on which plaintiff has not sustained his burden of proof, the task of producing such evidence or of pointing to its location in the record falls to plaintiff. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). By his failure to present evidence showing that he provided sufficient facts to support his requests for protective custody, plaintiff has failed to show the existence of a material issue of fact sufficient to defeat defendants' motion for summary judgment as to plaintiff's claims against defendants POHLMEIER and GUERRO and has failed to defeat their claims of entitlement to qualified immunity.
Moreover, the Court notes that the final interview with plaintiff was that conducted by defendant MOORE on March 31, 2002, a few days before the attack, at which time plaintiff executed a waiver of his request for protective custody. This waiver appears to break the causal chain, as plaintiff could then have complained to prison officials had he been placed in protective custody despite his waiver.
CONCLUSION
Claims of a failure to protect are particularly troubling. Prisons are dangerous places and assaults upon inmates by other inmates do occur. To protect prisoners from one another, prison authorities have set up procedures to deal with this aspect of prison life, and inmates are placed in protective custody or otherwise classified when such is found to be appropriate. Not everyone who requests protective custody obtains it, and an administrative decision is involved in each case. In this case, hindsight shows plaintiff's concerns were not frivolous. There is nothing, however, to indicate the procedures used in evaluating plaintiff's request, and the classification decisions which were made, were done with deliberate indifference toward plaintiff's safety. Clearly, plaintiff's withdrawal of his request for protective custody occurred prior to the assault upon him. The facts of this case simply do not reach the level of cruel and unusual punishment by the named defendants.
Therefore, for the reasons set forth above, it is clear that, drawing all reasonable inferences in favor of the nonmoving party, there is no material issue of disputed fact which precludes entry of summary judgment for defendants PRICE, WALKER, WESTON, MOORE, POHLMEIER and GUERRO, who are entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). Further, drawing all reasonable inferences in favor of the nonmoving party, the Magistrate Judge finds plaintiff has failed to defeat the entitlement of defendants PRICE, WALKER, WESTON, MOORE, POHLMEIER and GUERRO to qualified immunity. The Magistrate Judge also finds plaintiff's claims against defendants STUBBLEFIELD, HOLLIGAN, HASKINS, and SHIPP lack an arguable basis in law and are frivolous and, moreover, that plaintiff's claims against defendant STUBBLEFIELD are barred by plaintiff's failure to exhaust administrative remedies before filing suit. Lastly, the Magistrate Judge finds plaintiff's claims against defendants in their official capacities lack an arguable basis in law and are frivolous, or have become moot.
It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that defendants' motion for summary judgment be GRANTED and that plaintiff MICHAEL RAY ARMSTRONG's claims against all defendants in their official capacities be DISMISSED WITH PREJUDICE as FRIVOLOUS and as MOOT; that plaintiff's claims against defendants STUBBLEFIELD, HOLLIGAN, HASKINS, and SHIPP in their individual capacities be DISMISSED WITH PREJUDICE as FRIVOLOUS; that plaintiff's claims against defendant STUBBLEFIELD also be DISMISSED as BARRED BY PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE FILING SUIT; and that plaintiff's claims against defendants PRICE, WALKER, WESTON, MOORE, POHLMEIER and GUERRO be DISMISSED WITH PREJUDICE.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested.
IT IS SO RECOMMENDED.