Opinion
5:19-cv-422-MTT-CHW
07-22-2021
CALVIN MCCLAIN, Plaintiff, v. Warden CLINTON PERRY, et al., Defendants.
Proceedings Under 42 U.S.C. § 1983 Before the U.S. Magistrate Judge
ORDER AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge.
Before the Court are ten motions filed by Plaintiff Calvin McClain. For the reasons discussed below, Plaintiff's motions for subpoena (Docs. 75-81), motions for the appointment of counsel (Docs. 63, 88) and motion to amend (Doc. 87) all are DENIED.
Also before the Court is a motion to dismiss filed by Defendant Linder, alleging failure to exhaust administrative remedies. (Doc. 64). Because Plaintiff's mere failure to reference Defendant Linder by name in a prison grievance did not preclude Plaintiff's exhaustion of his Eighth Amendment claim against Linder, it is RECOMMENDED that the Defendant's motion to dismiss be DENIED.
No Recommendation is now given regarding a pending motion for summary judgment filed by Defendants King, Perry, Prince, Smith and Spikes. (Doc. 84).
BACKGROUND
Plaintiff, a state prisoner, alleges that he awoke with chest pains early on the morning of June 7, 2018, that he was escorted to the door of a prison medical building, and that he then remained sitting outside on the steps of that building while waiting for the arrival of prison medical staff. (Doc. 1, p. 5). When Defendant Linder, a nurse, arrived, Plaintiff alleges that he reported suffering from chest pains and difficulty breathing, but that Linder and other medical staff declined to treat Plaintiff due to a prison practice requiring the presence of a security officer. (Pl.'s Dep.; Doc. 64-1, p. 6) (“there was no officer and they tell them they can't do nothing for none of us if ain't no officer present”). Since no officer was present, Linder could neither admit Plaintiff to the medical building nor give Plaintiff formal medical treatment where he sat. Instead, Linder instructed Plaintiff to perform breathing exercises. (Doc. 1, p. 5) (“just remember to breathe through your nose”). Later in the day, Plaintiff claims he was transported to a hospital where medical authorities diagnosed him with a heart attack or some form of heart damage that eventually necessitated the installation of a pacemaker device. (Doc. 1, p. 6; Doc. 64-1, pp. 12-13).
In part, Plaintiff's claims in this action relate to earlier delays in his receipt of medication, which delays Plaintiff claims culminated in the events of June 7. Plaintiff also sues Defendant Linder and other prison medical staff for “not render[ing] or assist[ing] in emergency medical treatment on the morning of June 7, 2018, by leaving me on the stairs locked out of medical for almost two hours, causing me pain, suffering, and physical injury, clearly violating my [Eighth] amendment rights.” (Doc. 1, p. 7). Defendant Linder has now moved for a dismissal on the basis that Plaintiff failed to exhaust his administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act or PLRA. 42 U.S.C. § 1997e(a).
PLAINTIFF'S MOTIONS
In addition to the Defendant's motion to dismiss, Plaintiff has filed several motions that remain pending before the Court. In two of those motions, Plaintiff lodges successive requests for the appointment of legal counsel. (Docs. 63, 88). For reasons previously explained in a prior order of denial, see (Doc. 43, pp. 1-2), Plaintiff's current requests for counsel are DENIED.
Plaintiff has additionally filed several motions requesting the issuance of subpoenas. (Docs. 75-81). Because Plaintiff is proceeding pro se in this action, the Court bears a duty to supervise Plaintiff's subpoena requests to prevent an abuse of the subpoena power. See, e.g., Brown v. Johnson, 2016 WL 5387640 at *2 (S.D. Ga. 2016).
In effect, Plaintiff's subpoena requests seek to depose by written questions a series of nonparty witnesses. Plaintiff has failed, however, to pose questions with sufficient specificity. Instead, Plaintiff simply asks for “testimony and or [a] written affidavit” relating to “the facts involving Calvin McClain ... on 06/07/2018 [pertaining to] chest pains and shortness of breath.” (Doc. 75, p. 1). Moreover, there is no indication that Plaintiff has retained an officer to take the testimony of any witness as required by Federal Rule of Civil Procedure 31(b). See, e.g., Ruiz v. Wing, 2017 WL 11496937 at *1 (S.D. Fla. 2017). Accordingly, for both these reasons-lack of specificity and failure to retain a deposition officer-Plaintiff's motions for subpoenas are at present DENIED.
Finally, Plaintiff has filed what he styles as a supplemental complaint, although the pleading in fact appears to be a superseding amendment in which Plaintiff seeks to rephrase all of his claims. In significant part, the pleading additionally serves as a response to Defendant Linder's motion to dismiss. See (Doc. 87, p. 15) (“Exhaustion of Legal Remedies”). This Recommendation has considered Plaintiff's exhaustion arguments for purposes of analyzing Linder's motion.
As a formal matter, Plaintiff's request for leave to amend is DENIED. Plaintiff's proposed pleading suffers from at least three significant deficiencies. First, Plaintiff does not clearly identify what, if any, substantive changes he seeks to make. Second, a close review of the proposed amendment reveals several possible changes, but those new allegations ultimately fail to state a claim. For example, Plaintiff names Warden Tracy Jefferson as a defendant, but Plaintiff's effort to add this defendant appears to be futile as Plaintiff fails to describe any wrongs that Jefferson personally committed, and the Warden cannot be sued under a theory of supervisory liability. Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1047 (11th Cir. 2014) (“supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability”). Similarly, Plaintiff seeks to rename Deputy Warden Michael Thomas as a defendant, but the Court previously rejected Plaintiff's prior effort to sue Thomas, see (Doc. 11, pp. 10-11), and Plaintiff offers no new argument warranting a different ruling.
Third, Plaintiff offers no explanation for his delay in seeking to amend at this late juncture when, for the bulk of defendants at least, (a) the discovery period has already expired, and (b) a potentially dispositive summary judgment motion is pending before the Court. Further, reopening discovery now, nearly two years after the commencement of this action, could well result in prejudice to the current defendants, including in the form of further delays in the ultimate resolution of this action. Accordingly, for all of these reasons-futility, undue delay, and prejudice, Foman v. Davis, 371 U.S. 178, 182 (1962)-Plaintiff's motion to amend is DENIED.
THE DEFENDANT'S MOTION TO DISMISS
Also pending before the Court is Defendant Linder's motion to dismiss. (Doc. 64). It is RECOMMENDED that this motion be DENIED.
Defendant Linder seeks a dismissal on the sole ground that Plaintiff failed to exhaust his available administrative remedies as required by the PLRA. 42 U.S.C. § 1997e(a). Linder acknowledges that Plaintiff filed and properly exhausted a grievance relating to his heart condition, but Linder argues that the grievance did not pertain to her.
In the grievance in question, grievance number 268835, Plaintiff complained that he “suffered a medical emergency (heart attack) as a direct result of” medical non-compliance taking the form of “not providing medication refills, follow[-]up [appointments], urgent surgeries, treatments & equipment, supplies, and los[s] of medication records.” (Doc. 64-2, p. 5). Plaintiff named, in the grievance, certain prison staff-Deputy Warden Thomas, Administrative Director Smith, and a prison physician, Dr. Nwabueze-but did not name Defendant Linder. Plaintiff did, however, reference Linder in a separate “witness statement” attached to his grievance. The witness statement reads, in relevant part:
Close to 6:00 .. a male officer escort[ed] me to medical at the top of the stairs the gate was locked .... When the officer that escorted me to the medical entrance and I saw the nurses coming . I told him that I would be okay the nurses were here. The officer reported to [the] control room [but] the nurses did not see the officer at the bottom of the stairs on his way to security. There were three nurses, they asked why was I there?? I said I can't breath[e] and my chest is tight, one of the nurses said remember to breath[e] through your nose, and no one is here that can do anything anyway. [They] continued on to [the] pill/insulin room. Over an hour or so later Officer Clark came out of medical [and] found me at [the] gate.(Doc. 64-2, p. 8)
Linder advances three arguments in support of her request for a dismissal on the ground of failure to exhaust: (i) that Plaintiff failed to name Linder in his grievance, (ii) that Plaintiff admitted, during a deposition, that his grievance did not pertain to Linder, and (iii) that Plaintiff's grievance proper, which excludes the witness statement, concerns medication refills rather than Plaintiff's June 7, 2018, collapse on the stairs to the prison medical building. These arguments by Linder fail for two straightforward reasons. First, Linder has failed to produce and discuss information relating to the prison grievance process; and, second, a body of caselaw precludes Linder's argument that exhaustion requires the naming of specific defendants in prison grievances.
As a general matter, failure to exhaust administrative remedies is an affirmative defense, meaning that Linder bears the burdens of both production and persuasion. Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). Regarding Linder's first argument, that Plaintiff's mere failure to name Linder in his grievance was a dispositive oversight, Linder has failed to produce the relevant prison grievance policy for inspection or to offer a discussion of that grievance policy. Furthermore, clear caselaw establishes that under the statutory terms of the PLRA, “exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances.” Jones v. Bock, 549 U.S. 199, 219 (2007). Eleventh Circuit caselaw related to the naming of specific defendants in grievances is summarized in Toenninges v. Ga. Dep't of Corrs., 600 Fed.Appx. 645, 649 (11th Cir. 2015):
Exhaustion of the grievance procedure does not require that every single defendant be identified by name. Parzyck v. Prison Health Servs. Inc., 627 F.3d 1215, 1218 (11th Cir.2010); Brown [v. Sikes, 212 F.3d 1205, 1209-10 (11th Cir. 2000)] (holding that a defendant need only provide all the information he has or could reasonably obtain). Further, exhaustion does not necessarily require an inmate to file a new grievance for each harmful incident in a string of related occurrences. Parzyck, 627 F.3d at 1218. Parzyck held that an inmate did not fail to exhaust administrative remedies against a prison doctor by failing to name him, where the inmate filed a grievance before the specific doctor began treating him, and exhausted the process during the doctor's treatment. Id. The critical function of the grievance process is that it provides the institution with notice of a problem such that they have an opportunity to address the problem internally.
In this case, Plaintiff's grievance, with its accompanying witness statement, was sufficient to provide the institution with notice about the entire string of occurrences related to Plaintiff's heart attack, including the alleged involvement of nurse Linder, and to give the institution an opportunity to address the problem internally. The PLRA's exhaustion requirement calls for no more.
Linder's second argument highlights Plaintiff's affirmative answer during a deposition to the question, “that grievance didn't make a claim against Nurse Linder, correct?” (Doc. 64-1, p. 14). Because there is no dispute of fact regarding whether Plaintiff made the statement, no judicial fact finding is required. Eleventh Circuit caselaw suggests, however, that Plaintiff's statement must be construed in the light most favorable to him. See Turner v. Burnside, 541 F.3d 1077, 1083 (11th Cir. 2008) (referencing Rule 56, which in turn requires the Court to construe the record in favor of the non-moving party, and to draw reasonable inferences in his favor). Viewed in this light, Plaintiff's statement is reasonably read as simply acknowledging that Linder was not expressly named either in the grievance proper or in the accompanying witness statement. Plaintiff's mere acknowledgement that he did not expressly name Linder in the grievance does not support the conclusion that Plaintiff failed to exhaust his claims against Linder in grievance number 268835.
Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008) (“Where exhaustion ... is treated as a matter in abatement . . . it is proper for a judge to . . . resolve factual disputes so long as [they] do not decide the merits”).
Finally, Linder's third argument is that this Court should limit its consideration, during the exhaustion inquiry, to the face of Plaintiff's grievance, which does not contain any reference to Linder or her conduct on June 7, 2018. Again, Linder failed to produce the relevant grievance policy, whereas Plaintiff in his response to Linder's motion to dismiss has provided a copy of the grievance procedures (Doc. 86-16) that does not appear to contain any rules governing witness statements. In the absence of such production, the Court must draw the inference in Plaintiff's favor that Plaintiff's witness statement (including the pertinent part, block-quoted above), which clearly alludes to Defendant Linder, is a component of the grievance.
Even if the Court could exclude consideration of Plaintiff's witness statement and limit its consideration only to the face of the grievance, it is still not clear that Plaintiff failed to exhaust his claim against Defendant Linder. Plaintiff's grievance references a “medical emergency (heart attack), ” it lists a time and date, “06/07/18 [at] 04:00 AM, ” and it asks as relief that the prison “medical section be investigated by outside agencies or internal affairs.” (Doc. 64-2, p. 5). These statements themselves were sufficient to give adequate notice of a “string of related occurrences” culminating in Plaintiff's June 7, 2018 cardiac incident, during which Linder allegedly exhibited deliberate indifference to Plaintiff's medical condition. Toenninges, 600 Fed.Appx. at 649.
Accordingly, Defendant Linder has failed to satisfy her burdens of production and persuasion to show that Plaintiff failed to exhaust his administrative remedies through grievance number 268835. This conclusion is dictated both by Linder's failure to produce or discuss the relevant prison grievance policy and by the longstanding rule that “exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances.” Jones v. Bock, 549 U.S. 199, 219 (2007). As a result, Linder is not entitled to a dismissal on the ground that Plaintiff failed to exhaust.
CONCLUSION
For the reasons discussed herein, it is RECOMMENDED that Defendant Linder's motion to dismiss (Doc. 64) be DENIED. It is further ORDERED that Plaintiff's motions for appointment of counsel (Docs. 63, 88), motions for subpoena (Docs. 75-81), and motion to amend (Doc. 87) are DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED and RECOMMENDED.