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Yates v. McPeak

United States District Court, E.D. Texas, Texarkana Division

November 4, 2019

TOMMY LEE YATES
v.
CATHY McPEAK, ET AL.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF ADMINISTRATIVE REMEDIES

          RODNEY GILSTAP, UNITED STATES DISTRICT JUDGE.

         The 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.

         I. Background

         Plaintiff 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 grievances.

         II. The Defendants' Motion for Summary Judgment on the Issue of Exhaustion

         The 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.

         III. The Report of the Magistrate Judge

         After 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.

         Although 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).

         However, 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).

         IV. The Plaintiff's Objections

         The 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).

         In his 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.

         Plaintiff 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 ...


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