Smith v. Carosone et al

Filing 49

MEMORANDUM OPINION & ORDER: 1) The Clerk of the Court shall update the docket to reflect plaintiff Warren Smith's current mailing address: Warren Davis Smith, DOC # 301061, Roederer Correctional Complex, P.O. Box 69, LaGrange, Kentucky 40031. 2) The Clerk of the Court shall send to Smith a copy of: a. the current docket sheet; b. the Court's September 24, 2018, Order 39 ; and c. the Court's October 9, 2018, Order 44 . 3) Counsel for the defendants shall send to Smith a copy of: a. his Entry of Appearance on behalf of Defendant Peter Carusone 41 ; b. his Amended Answer on behalf of Peter Carusone 42 ; and c. his Motion for Summary Judgment and its attachments 43 . 4) The motion of defendant Peter Carusone for summary judgment 43 is GRANTED. 5) The motion of defendants Michael Kleier, Jerome Sye, Carrie Ray, and Jason Russell for summary judgment 35 is GRANTED. 6) Plaintiff Warren Smith's complaint 3 is DISMISSED. 7) The Court will enter an appropriate judgment. 8) This matter is STRICKEN from the active docket. Signed by Judge William O. Bertelsman on 12/4/2018.(ECO)cc: COR w/copy of Order and documents listed in MO&O for Clerk to send Plaintiff, Warren Smith, pro se, at Roederer Correctional Complex address.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
COVINGTON
WARREN SMITH,
Plaintiff,
V.
PETER CARUSONE, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Civil No. 2: 18-101-WOB

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
This matter is before the Court upon the motions for summary judgment filed by defendants
Michael Kleier, Jerome Sye, Carrie Ray, and Jason Russell [R. 35] as well as Peter Carusone
[R. 43]. The deadline for plaintiff Warren Smith to file a response to these motions has come and
gone. See [R. 36, 39, 44] These motions are therefore ripe for decision.
Plaintiff Smith filed his complaint in this action pursuant to 42 U.S.C. § 1983 in June 2018.
At the time, he was a pretrial detainee confined at the Kenton County Detention Center (“KCDC”)
in Covington, Kentucky. Smith alleged that on October 5-6, 2017 Deputy Carusone had “molested,
groped and fondled my body in a sexual manner,” and that deputies Sye and Russell and sergeants
Kleier and Ray had later directly or impliedly threatened him when he complained about it. [R. 3
at 5; R. 3-2 at 2-4] Smith asserted that he undertook efforts to file an inmate grievance about these
matters. [R. 3 at 7-8] Carusone’s employment at KCDC was terminated in November 2017 for this
and other conduct. [R. 35-4 at 5-7]
Upon initial screening the Court dismissed the § 1983 claims against these defendants in
their official capacities, as well as all claims against Col. Dietz, Jailer Terry Carl, and Major
Grigsby. [R. 8] Once the plaintiff properly identified the remaining defendants and federal

marshals served them with process, all but Carusone moved for summary judgment on September
4, 2018. [R. 35] The Court, both upon its own motion and in response to Smith’s request, granted
the plaintiff six additional weeks (until November 9, 2018) to file his response. [R. 36, 38, 39]
Once Carusone filed his own motion for summary judgment [R. 43], the Court directed Smith to
file a response to it by the same deadline, November 9, 2018 [R. 44].
At the outset of this case Smith was advised, as are all pro se plaintiffs, that:
If your mailing address or telephone number changes, you must immediately file
a written Notice of Change of Address form. If you don’t, the Court might rule
against you on a motion or dismiss your case because it cannot contact you.
[R. 6 at 2 (emphasis in original)] In his September request for “time to get a lawyer...” Smith
indicated that he expected to be “released on parole in the next month or two.” [R. 38]
Notwithstanding his anticipated release, Smith did not file any written notice of change of address
with the Court. The Court’s most recent orders were thus returned as undeliverable because, it
appears, he was released from KCDC in October 2018. [R. 45, 46] Counsel for the defendants also
filed notices into the record which show that service copies of his most recent motions were
returned to him as undeliverable. [R. 47, 48] Handwriting on the envelopes returned to counsel
stated that Smith was “released to Grant Co. Jail.” [R. 47 at 1]
In an effort to locate the plaintiff, the Court searched the Grant County Jail’s online roster
of inmates, but Smith was not among them. See https://omsweb.public-safety-cloud.com/jtclient
web/(S(pjok5rvavm3jhd52pfya5uly))/jailtracker/index/Grant_County_Ky

(last

visited

on

November 30, 2018). However, the Court also searched the Kentucky Department of Corrections
online database, which indicates that a “Warren Davis Smith” was convicted in Kenton County of
various drug offenses in August 2018. See http://kool.corrections.ky.gov/KOOL/Details /485087
(last visited on November 30, 2018). Smith did not state his middle name in his complaint or in

2

any other motion, but the KCDC inmate account statement he filed in support of his motion to
proceed in forma pauperis identifies him as “Smith, Warren Davis.” [R. 2] See also [R. 35-4 at 3]
It thus appearing that Smith is now confined at the Roederer Correctional Complex in LaGrange,
Kentucky, the Clerk of the Court will be directed to update Smith’s address and to send him copies
of the prior orders that were returned as undeliverable. Defense counsel will be directed to do the
same.
The Court will not, however, further defer consideration of the defendants’ dispositive
motions. It is the obligation of every party to keep the Court apprised of his current mailing
address, and the failure to do so may constitute adequate grounds to dismiss the complaint without
prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). While pro se
parties are given additional latitude in some respects, following simple directions and court
procedures are not among them. Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991).
But the Court does not find Smith’s conduct sufficient to infer an intent to abandon his
claims to warrant dismissal under Rule 41(b). See Humphrey v. U.S. Attorney Gen. Office, 279 F.
App’x 328, 331 (6th Cir. 2008) (“if a plaintiff fails to respond or to otherwise oppose a defendant’s
motion [to dismiss], then the district court may deem the plaintiff to have waived opposition to the
motion.”). Rather, when (as here) the nonmoving party fails to file a timely response, the Court
still holds “the moving party to the burden established by the plain language of [Civil] Rule 56.”
Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 410 (6th Cir. 1992). In other words, the Court
cannot “grant summary judgment in favor of the movant simply because the adverse party has not
responded.” Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991). Instead the Court is required “to
examine the movant’s motion for summary judgment to ensure that he has discharged [his]
burden.” Id. In performing its task the Court may, however, “rely on the moving party’s unrebutted

3

recitation of the evidence, or pertinent portions thereof, in reaching a conclusion that certain
evidence and inferences from evidence demonstrate facts which are ‘uncontroverted.’” Guarino,
980 F.2d at 410. It need not “comb the record from the partisan perspective of an advocate for the
[nonmoving] party.” Id.
Smith’s complaint could be liberally construed to assert a Fourteenth Amendment claim
against Carusone for his alleged sexual harassment of Smith, 1 and a First Amendment retaliation
claim against Kleier, Sye, Ray, and Russell for allegedly threatening him after he complained about
it. 2 Before discussing the substance of Smith’s claims, the defendants contend that Smith failed to
exhaust his administrative remedies prior to filing suit, although their arguments differ from one
another.
Federal law requires a prisoner to fully utilize the prison’s inmate grievance system before
filing suit to assert a civil claim regarding the conditions of his confinement. 42 U.S.C. § 1997e(a);
Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that exhaustion is mandatory under
the PLRA and that unexhausted claims cannot be brought in court.”). Because “[p]roper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules ...”, Woodford

1

The defendants suggest that Smith’s claim against Carusone would arise under the Eighth
Amendment. [R. 35-1 at 2] But Smith was confined at KCDC as a pretrial detainee, not a convicted
prisoner, and hence such a claim would arise under the Fourteenth Amendment. Cf. Leary v.
Livingston Co., 528 F.3d 438, 443 (6th Cir. 2008).
2

Smith also made a passing reference to the Prison Rape Elimination Act, 42 U.S.C. § 15601 et
seq. in his complaint, but PREA is primarily a funding statute: it does not create rights enforceable
by a private party in a civil action. Montgomery v. Harper, No. 5:14CV-P38-R, 2014 WL 4104163,
at *2 (W.D. Ky. Aug. 19, 2014) (“the PREA does not create a private cause of action which can
be brought by an individual plaintiff.”) (collecting cases); Hodge v. Burkhart, No. 15-CV-105GFVT, 2016 WL 2986262, at *5 (E.D. Ky. May 20, 2016); Chapman v. Willis, No. 7:12-CV-389,
2013 WL 2322947, at *4 (W.D. Va. May 28, 2013) (“There is no basis in law for a private cause
of action to enforce a PREA violation.”).
4

v. Ngo, 548 U.S. 81, 90 (2006), a prisoner must file an initial grievance and any appeals within the
time frames required by the prison’s grievance procedure.
For his part, Carusone argues that Smith filed his inmate grievance one day too late, and
did not appeal to the final level after it was addressed. Smith alleged that Carusone “molested,
groped and fondled” him on October 5-6, 2017. [R. 3-2 at 5] KCDC’s “Offender Grievance
Procedure” requires an inmate to file a written grievance regarding jail conditions or staff conduct
within 30 days after “the problem has occurred.” [R. 35-15 at 5] Smith filed his grievance on
November 6, 2017 [R. 35-3 at 1], which is 31 days after the latest of the two days. Smith’s
grievance was therefore untimely by one to two days. LCDC’s grievance procedure also requires
that an appeal be taken within five working days if the grievance is not resolved. [R. 35-15 at 6-7]
Smith did not file any appeal to Level IV or V after his grievance was addressed at Level III under
LCDC’s grievance procedure. [R. 35-3 at 2] The documents filed into the record therefore establish
that Smith’s grievance was both untimely and not fully and completely exhausted. Cohron v. City
of Louisville, Ky., 530 F. App’x 534, 536 (6th Cir. 2013). Carusone is therefore entitled to summary
judgment on the claim against him.
For their part, defendants Kleier, Sye, Ray, and Russell contend that Smith did not exhaust
his administrative remedies because none of his inmate grievances identified any of them by name.
[R. 35-1 at 4-7] These defendants reach the right result but for the wrong reason. The defendants
rely upon the Sixth Circuit’s holding in Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006)
that “... in order to satisfy the administrative exhaustion requirement, the content of the grievances
... must identify each defendant eventually sued.” They also rely upon its decision in Burton v.
Jones, 321 F.3d 569, 575 (6th Cir. 2003), which held that “a prisoner must have alleged
mistreatment or misconduct on the part of the defendant” eventually sued. However, the United

5

States Supreme Court squarely rejected these holdings in Jones v. Bock, 549 U.S. 199, 217 (2007).
See Grinter v. Knight, 532 F.3d 567, 578 n.8 (6th Cir. 2008).
Instead, “[t]he level of detail necessary in a grievance to comply with the grievance
procedures will vary from system to system and claim to claim, but it is the prison’s requirements,
and not the PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. With
respect to the contents of an inmate grievance, KCDC’s grievance procedure requires that “[t]he
problem should be stated clearly and include such information as dates, times, names, places,
references to inmate rules, and other data which helps to fully explain the problem.” Also, “[t]he
inmate should also explain on the form exactly what relief or remedy he/she expects to receive.”
[R. 35-15 at 5] While the grievance procedure states that the inmate should include “such
information” as names, the types of information described are merely illustrative rather than
categorically required. The procedure primarily requires that “[t]he problem should be stated
clearly ...” In the absence of more specific requirements established by the grievance policy, “a
grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.”
Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009). See also Johnson v. Testman, 380 F.3d
691, 697 (2d Cir. 2004) (“Inmates must provide enough information about the conduct of which
they complain to allow prison officials to take appropriate responsive measures.”).
In this case, Smith’s initial grievance stated in its entirety: “I was [inappropriately] touched
by a staff member of KCDC and an [obscene] [gesture] was made [toward] me from (illegible)
[Carusone].” [R. 35-3 at 1] None of the other grievances filed by Smith allege that he was
threatened by any officer for filing grievances regarding Carusone’s conduct. [R. 35-4 at 1-4; 355 through 35-13] These defendants are only mentioned in a May 2018 open records request where
Smith requests their first names. [R. 35-9] Thus, Smith’s grievances do not even mention the

6

conduct which forms the basis for his First Amendment retaliation claim against Kleier, Sye, Ray,
and Russell. That omission deprived prison officials of notice of the problem and a first opportunity
to correct it. See Johnson v. Woodford, No. CV 04-05995-GHK, 2010 WL 4007308, at *4 (C.D.
Cal. April 20, 2010) (“Where one set of facts and circumstances gives rise to more than one
potential claim, the plaintiff cannot exhaust all of the potential claims by merely exhausting one
such claim.”). Smith thus failed to exhaust his administrative remedies with respect to this claim.
E.g., Rodgers v. Tilton, No. CIV S-07-2269, 2009 WL 3781075, at *8 (E.D. Cal. Nov. 10, 2009)
(exhaustion of grievance arising out of alleged incident of excessive force by one guard did not
exhaust administrative remedies for claims against other officers arising out of subsequent medical
care or harassment by guards). These defendants are therefore entitled to summary judgment on
the claims against them. 3
Accordingly, it is ORDERED as follows:
1.

The Clerk of the Court shall update the docket to reflect plaintiff Warren Smith’s

current mailing address:
Warren Davis Smith, DOC # 301061
Roederer Correctional Complex
P.O. Box 69
LaGrange, Kentucky 40031
2.

The Clerk of the Court shall send to Smith a copy of:
a.
b.
c.

the current docket sheet;
the Court’s September 24, 2018, Order [R. 39]; and
the Court’s October 9, 2018, Order [R. 44].

3

These defendants also state that Smith is asserting a claim that he was denied access to the courts
on the ground that “he was denied his right to have his grievance against Carusone reviewed and
possibly investigated by Kentucky State Police.” [R. 35-1 at 8] While Smith filed a grievance
seeking to have KSP investigate Carusone’s conduct [R. 35-13], his complaint does not assert any
claim that he was denied access to the courts.
7

3.

Counsel for the defendants shall send to Smith a copy of:
a.
b.
c.

4.

his Entry of Appearance on behalf of Defendant Peter Carusone [R. 41];
his Amended Answer on behalf of Peter Carusone [R. 42]; and
his Motion for Summary Judgment and its attachments [R. 43].

The motion of defendant Peter Carusone for summary judgment [R. 43] is

GRANTED.
5.

The motion of defendants Michael Kleier, Jerome Sye, Carrie Ray, and Jason

Russell for summary judgment [R. 35] is GRANTED.
6.

Plaintiff Warren Smith’s complaint [R. 3] is DISMISSED.

7.

The Court will enter an appropriate judgment.

8.

This matter is STRICKEN from the active docket.

This 4th day of December, 2018.

8