United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND GRANTING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF
GILSTAP, UNITED STATES DISTRICT JUDGE.
Plaintiff Tommy Lee Yates, 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, Plaintiff named Telford Unit Practice Manager
Cathy McPeak, Nurse Steven Roberts, Nurse T. Fowler, Nurse
Practitioner J. Martin, and four unknown defendants
identified as policymakers. This Order concerns the motion
for summary judgment limited to the issue of exhaustion of
administrative remedies filed by the identified Defendants
and also addresses the unknown Defendants.
asserts on December 24, 2015, he slipped in a puddle of water
and broke his right hand. He took a shower and discovered he
could not use his hand, so after he showered, he told Officer
Mathis he had fallen and needed to go to the medical
department. He complains of the treatment he received from
Nurse Roberts, Nurse Fowler, and Nurse Practitioner Martin
and states Practice Manager Cathy McPeak denied his
Defendants' Motion for Summary Judgment on the Issue of
Defendants filed a motion for summary judgment on the issue
of exhaustion stating that Plaintiff was injured on December
24, 2015, but did not file his Step One grievance on the
incident until April 17, 2016. Because the grievance was not
filed within 15 days of the incident, the Defendants argues
that it was untimely and thus did not serve to exhaust
Plaintiff's administrative remedies. Plaintiff did not
file a response to the motion for summary judgment.
The Report of the Magistrate Judge
review of the pleadings, the Magistrate Judge issued a Report
recommending the motion for summary judgment be granted with
regard to Practice Manager McPeak, but denied as to the other
named Defendants. The Magistrate Judge also recommended
summary judgment be granted in favor of the unknown parties.
the Defendants argued Plaintiff's grievance was untimely,
the Magistrate Judge observed the grievance was not rejected
as untimely, but was answered on the merits. Consequently,
the Defendants cannot now claim failure to exhaust based upon
untimeliness. Gates v. Cook, 376 F.3d 323, 331 and
n. 6 (5th Cir. 2004).
the Magistrate Judge went on to state Plaintiff did not file
any Step One grievances complaining about Practice Manager
McPeak or about any unknown policymakers. While he did
mention Practice Manager McPeak in three of his Step Two
grievance appeals, complaining about her responses to his
Step One grievances, the Magistrate Judge concluded this did
not exhaust Plaintiff's administrative remedies against
Practice Manager McPeak or the unknown defendants because in
order to exhaust, the prisoner must pursue his claims through
both steps of the grievance procedure. Johnson v.
Johnson, 385 F.3d 503, 515 (5th Cir. 2004). Although the
unknown defendants did not join in the motion for summary
judgment, the Magistrate Judge determined they were entitled
to benefit from the motion. Lewis v. Lynn, 236 F.3d
766, 768 (5th Cir. 2001).
Defendants did not file objections to the Report;
accordingly, they are barred from appealing the factual
findings and legal conclusions of the Magistrate Judge which
are accepted and adopted by the district court except upon
grounds of plain error. Douglass v. United Services
Automobile Association, 79 F.3d 1415, 1430 (5th Cir.
1996) (en banc).
objections, Plaintiff appears to contend he made his need for
medical care known to the medical staff in various ways,
including through the grievance he filed. He argues he should
have a trial on his deliberate indifference claims, but
overlooks the fact the Magistrate Judge did not recommend
dismissal of his deliberate indifference claims against the
nurses or the nurse practitioner. Plaintiff complains neither
the unit grievance officer nor Practice Manager McPeak
contacted him to ascertain and clarify his complaint or
perfect a true investigation.
contends Practice Manager McPeak “fails in duty,
responsibility, and obligation while acting under color of
state law, ” but he does not address the fact he did
not file any Step One grievances complaining about the
actions of Practice ...