Applegate v. Wood et al

Filing 28

MEMORANDUM OPINION AND ORDER: The Court GRANTS IN PART Dft's 18 Motion for Summary Judgment. The Court GRANTS the motion as to all claims except Pla's Eighth Amendment claims against Dfts Wood and Wilson. Neither Wood nor Wilson is prote cted by the doctrine of qualified immunity. The Court GRANTS the 19 Motion to Dismiss for Failure to State a Claim. This action remains pending only as to Dfts Wood and Wilson. Signed by Magistrate Judge Robert E. Wier on September 24, 2015. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON

CHRISTOPHER APPLEGATE,
Plaintiff,
v.
CORRECTIONAL OFFICER WOOD, et
al.,

)
)
)
)
)
)
)
)
)
)

No. 5:13-CV-267-REW
MEMORANDUM OPINION AND
ORDER

Defendants.
*** *** *** ***
The Court considers Defendants’ motion for summary judgment (DE #18) and
motion to dismiss (DE #19). Plaintiff, Christopher Applegate, responded (DE #24), and
Defendants replied. DE #26 (Reply). 1 The motions are ripe for consideration.
For the following reasons, the Court GRANTS IN PART Defendant’s motion for
summary judgment (DE #18). Defendants Hoeck and Epperson have effectively shown
the absence of a genuine dispute as to any material fact and are entitled to judgment as a
matter of law. Plaintiff concedes any claim against Nitzel, so the Court includes Nitzel
within the grant of DE #18. The Court further GRANTS Defendants’ motion to dismiss
as unopposed (DE #19) and DISMISSES Defendants John and Jane Does as parties to
this action. The action remains pending only as to Defendants Wood and Wilson and

1

The Court notes that, pursuant to the deadlines contained within Local Rule 7.1(c) and
Federal Rule of Civil Procedure 6(d), Defendants’ reply was due within 17 days of
Plaintiff’s March 13, 2015 Response. Defendants replied on April 3, 2015, or after 21
days. As Plaintiff has not sought to strike the filing, and seeing no prejudice, the Court
considers it as part of the overall briefing and decisional record.
1

limited to Plaintiff’s Eighth Amendment deliberate indifference claim regarding the
assault by inmate Waugh.
I. Relevant Factual and Procedural Background 2
Applegate’s complaint stems from alleged mistreatment at Kentucky correctional
facilities, namely at Northpoint Training Center, during a period of incarceration
following a conviction for possession of child pornography. 3 The record does not contain
the underlying judgment, which has allegedly since been vacated. 4 Generally, Applegate
contends that correctional officers subjected him to cruel and unusual punishment (via
deliberate indifference analysis) under the 8th Amendment and 42 U.S.C. § 1983, that
correctional officers conspired to deprive Plaintiff of his civil rights under 42 U.S.C. §
1983, that correctional officers acted negligently in their care of Plaintiff, and that
correctional officers violated Kentucky Administrative Regulation, Chapter 501, 3:110,

2

The Court spends no time on analysis of allegations concerning a) locations other than
Northpoint or b) persons other than named Defendants. In this action, Applegate makes a
broad range of assertions involving several facilities and several persons that are not
before the Court. Under § 1983, the Court will assess the liability of the individual
defendants and not unsued persons. See Rizzo v. Goode, 96 S. Ct. 598, 606 (1976)
(holding that a showing of “direct responsibility” for actions on the part of the individual
named in the complaint is necessary for recovery under § 1983). Lt. Humfleet is not a
party. Officer Bray is not a party. Though both feature centrally in part of Applegate’s
tale, neither is a defendant subject to claim analysis.
3
The parties do not specifically identify the conviction. Defendants refer to it only as a
felony offense, and Plaintiff acknowledges that it was a conviction “stemming from
charges of possession of child pornography.” DE #24 at 1-2. In a letter penned by
Plaintiff, he admits a conviction under KRS § 531.335, or possession of child
pornography. DE #18-1 at 4.
4
The record is conflicting as to which Kentucky court actually granted Applegate’s
habeas petition and vacated his conviction. Plaintiff’s affidavit indicates that the Kenton
Circuit Court ultimately vacated his conviction, DE #24-1 ¶ 2, but his response cites the
Muhlenburg Circuit Court. DE #24 at 5. The discrepancy is not significant to the
decision.
2

by failing to properly classify Plaintiff under the Kentucky inmate classification system.
Applegate seeks actual and punitive damages in unspecified amounts.
In July 2012, the Kentucky Department of Corrections transferred Plaintiff from
the Otter Creek Correctional Center to the Northpoint Training Center. DE #18-6 at 2.
Upon his arrival, the facility housed Applegate in a dormitory in the general population.
On August 22, correctional officers discovered Applegate in possession of images
containing child pornography. DE #18-8 (Disciplinary Report Form). 5 On that date,
Plaintiff was in administrative segregation. DE# 18-6 at 2. Officers filed a disciplinary
report form concerning the contraband. DE #18-8. An administrative hearing officer
found Applegate guilty of possession of child pornography on September 13, 2012. DE
#18-8 at 3. As a result, Applegate lost 180 days good time credit and received 90 days
disciplinary segregation.
The chronology and events that led to Applegate’s initial segregation placement
are unclear if not disputed. Defendants suggest the photo discoveries prompted
segregation. Plaintiff claims he was there for protection. Certainly, even the photo-related
discipline report says that the discovery occurred in segregation, DE #18-8 (listing
offense in “Segregation Unit”), so he had to have been there already when the discovery
occurred. Indeed, Applegate says the paper search occurred because he entered the
segregation unit. DE #24-1 (Applegate Affidavit) ¶ 8. This seems more plausible on the
record. Resolving this issues does not matter in the analysis of the current motion.

5

Applegate alleges that he received the pictures as part of his underlying case file, which
his defense attorney sent him to review for potential appeal. DE #24 (Response) at 1-2.
Plaintiff alleges that he was unaware that the photographs were included in the file. DE
#24-1 (Affidavit).
3

On August 25, 2012, inmate Dwayne Mitchell threw feces from his cell through
his food tray slot or “bean flap” at Applegate while he (Applegate) walked back to his
cell. DE #18-9. Mitchell also yelled out at Applegate, “Get off the walk chomo.”
Officers ultimately found feces on 5 different cells and “in the cracks, on the walls and
floors around these cells.” Id. A hearing officer adjudicated Mitchell guilty of creating or
causing a health hazard and disciplined Mitchell. Officers reassigned Plaintiff to another
bed in the segregation unit the same day. DE #18-6. Applegate was not disciplined in
conjunction with the incident.
Plaintiff alleges that, when moved to his new cell, Officer Hoeck left the bean flap
to his cell open. DE #24-1 (Applegate Affidavit) at 2, ¶ 19. Applegate alleges that another
inmate subsequently “repeatedly filled Styrofoam cups full of urine and paper towels and
threw them through the bean flap into my cell.” Id. at ¶ 20. Applegate contends that, in
response to his request that officers close the bean flap, correctional officers, including
Officer Hoeck, who allegedly knew of the precipitating reason for Plaintiff’s cell transfer
(inmate Mitchell’s feces attack) laughed and refused. Id. at ¶¶ 21, 22. Plaintiff passed a
sealed note to Officer Bray (not here named as a Defendant) pertaining to the urine
assaults. The letter requested cleaning supplies and blankets, asking further that officers
close the bean flap. Id. at ¶¶ 24, 25. Applegate alleges that officers did not respond to the
note and that other inmates gained possession of it, ultimately prompting a physical
attack on Applegate by another inmate on August 28. Id. at ¶¶ 27, 28. Plaintiff did
receive a blanket within a day of requesting bedding; he also received a scheduled cell
cleaning. Id.

4

On August 28, while being placed in Applegate’s cell, inmate Terry Waugh
physically assaulted him. DE #18-10 (“When inmate Waugh was uncuffed, Waugh
attacked inmate Applegate.”). Applegate here submits an affidavit by Victor Downs,
indicating that Downs warned Sergeant Wilson against placing another inmate in
Applegate’s cell. DE #24-2 (Downs Affidavit). Downs alleges that Sgt. Wilson
“dismissed” his concerns. Id. Per Downs, Waugh yelled out several times in advance of
and during the move that he would assault Applegate if moved into his cell. Downs
allegedly expressed concern again to Sgt. Wilson, stating it “‘would not turn out right.’”
Id. Wilson allegedly responded, “‘I don’t give a shit.’” Id.
Downs indicates that Waugh continued to threaten violence against Plaintiff
during the move. Other inmates also made calls for violence against Applegate. While
Applegate was handcuffed, Wilson placed Waugh into Applegate‘s cell and uncuffed
him. “Immediately after the handcuffs were removed, inmate Waugh began to assault
inmate Applegate while inmate Applegate was still handcuffed.” Id.
Officer Wood called for back-up, and Waugh ultimately ceased fighting. 6
Following a hearing, officials convicted Waugh of physical action/force against another
inmate and disciplined him. Id. Waugh made a statement in connection with the attack,
alleging: “They didn’t have to tell me to stop fighting I only threw three punches.” Id. at
5. Correctional officers did not discipline Applegate in relation to the incident.
As a result of Waugh’s attack, Applegate alleges that he suffered a laceration
under his left eye, his right eye swelled shut, and he experienced dizziness, nausea, and

6

Plaintiff and Downs both allege that Sgt. Wilson countermanded Officer Wood’s
directive to open the cell door after the fight began. DE #24-1 (Applegate Affidavit) at ¶
37; DE #24-2 (Downs Affidavit).
5

pain. DE #24-1 (Applegate Affidavit) at 4, ¶ 40. Applegate also indicates that,
approximately 7 days after the attack, he received a letter from Waugh. (Downs alleges
that he facilitated delivery of the note from Waugh to Applegate. DE #24-2 (Downs
Affidavit) at 2. Downs has no knowledge of the note’s content.) Per Plaintiff, the
correspondence indicated that Waugh was paid to attack Applegate. Id. at ¶ 42. There is
no competent proof of the note’s substance—the note is not in the record and Waugh is
not an affiant.
The Kentucky Department of Corrections transferred Plaintiff from Northpoint
Training Center to Eastern Kentucky Correctional Complex on November 20, 2012. He
remained at that facility until January 2013, at which time he was transferred to Green
River Correctional Complex. DE #18-6 at 2. Officials released Applegate because of state
court action in April 2013. He filed this case in August 2013.
Although the precise claims are not crystal clear, Applegate essentially premises
the complaint, against various involved guards, on 8th Amendment deliberate
indifference principles (as to the Mitchell incident, the cell conditions post-relocation,
and the Waugh incident). He includes civil conspiracy, a claim related to proper
classification under Kentucky’s system, and state law negligence theories.
II. Standard of Review
A court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all
reasonable inferences from the underlying facts in favor of the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986);

6

Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not
“weigh the evidence and determine the truth of the matter” at the summary judgment
stage. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact
initially rests with the moving party. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553
(1986) (requiring the moving party to set forth “the basis for its motion, and identify[]
those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate an absence of a
genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for
summary judgment bears the initial burden of showing that there is no material issue in
dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving
party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106.
S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule
56(c) mandates the entry of summary judgment . . . 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 will bear the burden of proof at trial.” Celotex Corp., 106 S. Ct.
at 2552; see also id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial
would be on the non-moving party, the party moving for summary judgment may satisfy
Rule 56’s burden of production in either of two ways. First, the moving party may submit
affirmative evidence that negates an essential element of the nonmoving party’s claim.
Second, the moving party may demonstrate to the Court that the nonmoving party’s
evidence is insufficient to establish an essential element of the nonmoving party’s claim.”
(emphasis in original)).

7

A fact is “material” if the underlying substantive law identifies the fact, or the
element it concerns, as critical. Anderson, 106 S. Ct. at 2510. Thus, “[o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at
2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 (“Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’”) (citation omitted). Such evidence must be suitable for
admission into evidence at trial. Salt Lick Bancorp. v. FDIC, 187 F. App’x 428, 444-45
(6th Cir. 2006). That is, the Court only considers information if a litigant could properly
present it in a form that would be admissible at trial.
III. Analysis
A. The exhaustion requirement of the PLRA does not apply to Applegate.
Defendants contend that summary judgment is appropriate because Plaintiff did
not exhaust administrative remedies as required by the Prison Litigation Reform Act
(PLRA). DE #18 (Motion) at 15-21. See 42 U.S.C. § 1997e(a) (“No action shall be
brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”). Specifically, Defendants,
who detail a long list of administrative grievance by Applegate, allege that Plaintiff did
not exhaust as to the claims at issue. DE #18 (Motion) at 15-21.

8

Plaintiff asserts that the PLRA does not here apply because he filed the complaint
after being released from custody. Per Applegate, the state circuit court granted his
habeas petition on April 18, 2013, see supra, n.4, and the Kentucky Department of
Corrections released him. Defendants agree that Applegate gained release in April 2013.
Thus, when he filed the instant Complaint on August 21, 2013, Plaintiff was not in
custody. DE #24 (Response) at 5-6. Alternatively, Applegate contends that he could not
access the grievance process and that the Court should excuse him from the exhaustion
requirement. Id. at 6-7. Defendants’ reply, unburdened with law, does not substantively
further their position. DE #26.
The PLRA defines “prisoner” as “any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole, probation, pretrial
release, or diversionary program.” § 1997e(h). Thus, the plain language of the PLRA,
which examines a litigant’s status at the time of filing, supports Plaintiff’s position.
Norton v. The City of Marietta, OK, 432 F.3d 1145, 1150 (10th Cir. 2005) (collecting
cases). Additionally, “[e]very circuit court to consider this issue has held that the PLRA’s
exhaustion provision does not apply to individuals who had already been released at the
time of filing.” Caddell v. Livingston, No. 4:14-CV-3323, 2015 WL 1247003, at *2 (S.D.
Tex. March 17, 2015) (collecting cases); see also Bell v. Zuercher, No. 10-72-ART, 2011
WL 5191800, at *2 (E.D. Ky. Oct. 31, 2011) (“Thus, as this Court has held before, ‘the
PLRA does not apply to former prisoners, even though the claim may have arisen while
the Plaintiff was previously incarcerated.’ Because Bell was no longer a prisoner when he
started his lawsuit, the exhaustion requirements of the PLRA do not apply to him.”

9

(quoting Dishman v. Corr. Corp. of Am., 2010 WL 3294679, at *5 (E.D. Ky. Aug. 20,
2010))); Smith v. Franklin Cnty., 227 F. Supp. 2d 667, 675 (E.D. Ky. 2002) (holding the
PLRA’s exhaustion requirement inapplicable when plaintiff was not incarcerated when
she filed her complaint).
Accordingly, based on the strong authority, to which Defendants make no
effective counter, the Court does not apply the exhaustion requirements within the PLRA
to bar Plaintiff’s claims. He was not a prisoner, as defined by § 1997e(h), at the time of
filing. Thus, even if Applegate did not strictly adhere to prison grievance procedures, his
failure to do so does not impact the Complaint.
B. Plaintiff does not present prima facie evidence of a civil conspiracy claim
under 42 U.S.C. § 1983. Defendants are entitled to summary judgment.
Plaintiff alleges that Defendants conspired under 42 U.S.C. § 1983 to subject him
to cruel and unusual punishment in violation of the Eighth Amendment. DE #1
(Complaint) at 13 (Count II). The Sixth Circuit has succinctly stated the standard for a §
1983 civil conspiracy claim:
A civil conspiracy is an agreement between two or more persons to injure
another by unlawful action. Express agreement among all the conspirators
is not necessary to find the existence of a civil conspiracy. Each
conspirator need not have known all of the details of the illegal plan or all
of the participants involved. All that must be shown is that there was a
single plan, that the alleged coconspirator shared in the general
conspiratorial objective, and that an overt act was committed in
furtherance of the conspiracy that caused injury to the complainant.
Womack v. Conley, 595 Fed. App’x 489, 493-94 (6th Cir. 2014). “‘It is well-settled that
conspiracy claims must be pled with some degree of specificity and that vague and
conclusory allegations unsupported by material facts will not be sufficient to state such a
claim under § 1983.’” Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (quoting

10

Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987)); see also Pulliam v. Dept’ of
Veteran Affairs and Veterans Hosp., No. 3:14-CV-P411, 2014 WL 7004484, at *5 (W.D.
Ky. Dec. 10, 2014) (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) for
proposition that party must allege conspiracy by factual allegations to support “plausible
suggestion of conspiracy”). A party may rely on circumstantial evidence to prove the
existence of a conspiracy. Spadafore, 330 F.3d at 854 (citing Weberg v. Franks, 229 F.3d
514, 528 (6th Cir. 2000)).
Applegate alleges that Defendants Woods, Wilson, and Hoeck conspired to
deprive him of safety, to wit, “Defendants deprived Mr. Applegate of his right to be free
from attack in order to coerce him or punish him.” DE #24 (Response) at 15, 16. Plaintiff
generally premises his theory on the idea that correctional officers conspired regarding
the timing of disciplinary reports in order to claim that Plaintiff was not in protective
custody but in segregation. Id. at 17. Specifically, Applegate asserts (without supplying
the logic of the argument) that officers waited to file a disciplinary report against inmate
Waugh for an attack on Applegate until after reporting adversely on Applegate.
Additionally, he alleges that officers worked to deprive him of safety by requiring him to
walk back to his cell alone on August 25.
Officers discovered the child pornography materials on August 22, 2012,
evidently after the facility transferred Applegate to protective custody on the same date.
The disciplinary report form reflects a reporting date and time of August 28, 2012 at
6:29:52 p.m. See DE #18-8 at 1. Applegate now alleges that correctional officials told
him to “play down the reason he was really placed in protective custody,” which related
to a prior assault. DE #24 (Response) at 16. After this August 25 meeting, Plaintiff states

11

that he was left to walk back to his bunk unescorted, and ultimately endured having feces
thrown at him by inmate Mitchell. He calls the lack of an escort counter to protocol, yet
cites no protocol.
On August 28, 2012, at approximately 6:56 p.m., Officers moved inmate Terry
Waugh into the same cell as Applegate. Waugh attacked Applegate after being uncuffed.
Officer Wood called for back-up, and Sergeant Wilson and Officer Moreland arrived on
scene. Waugh subsequently stopped his attack. See DE #18-10 (Disciplinary Report).
Applegate’s argument, in part, is that Wood authored his report approximately 45
minutes prior to Waugh’s attack, suggesting a civil conspiracy.
The disciplinary violation report indicates that the incident occurred on August
28, 2012 at 6:56 p.m. (The handwritten reports corroborate this time. See DE #18-10 at 23.) Under the Violation Documentation section, the time prepared reflects “6:12:43 p.m.,”
or approximately 46 minutes prior to the alleged incident. Id. at 4. The report reflects a
signed date of August 29, 2012 at 9:47:35 p.m.
Where Applegate sees a coordinated effort to punish or coerce him, the Court sees
unexplained (or perhaps even sloppy) paperwork practices. All forms reflect
approximated timing. Plaintiff persists in claims only against Wood, Wilson, Hoeck, and
Epperson. He points to no connection between any of these as to the Mitchell incident,
which allegedly involved Lt. Humfleet, who is not a party. Although Applegate does
contend that Wood and Wilson were each involved in the Waugh relocation, he does not
provide any factual support, other than the contemporaneous presence of each, that would
indicate a coordinated plan. Presence is not agreement. Epperson had no evident role in
either incident, certainly nothing to contribute toward a conspiracy analysis. Hoeck’s

12

placement in the “bean flap” claim again is without a bridge, of fact or logic, to the other
defendants. Applegate’s “‘web of inference[s] is too weak’ on the alleged facts to permit
a finding, ‘absent sheer speculation,’ that [Defendants] shared . . . [an] unlawful
objective.” Harris v. Dept. of Cmmty. Based Servs., No. 5:14-CV-14, 2014 WL 2600073,
at *7 (W.D. Ky. June 10, 2014) (quoting Bazzi v. City of Dearborn, 658 F.3d 598, 603
(6th Cir. 2011)). Defendants are entitled to summary judgment as to civil conspiracy.
C. Defendant Hoeck is entitled to summary judgment on Plaintiff’s deliberate
indifference claim; the record shows that, as to Defendant Hoeck, he was not
aware of and disregarded any risk to Applegate’s safety. Defendants Wilson
and Wood are not entitled to summary judgment because there is a genuine
dispute of material fact as to the case key: that Wilson and Wood knew of and
deliberately disregarded a sufficient risk to Plaintiff’s safety on August 28,
2012.
Although the Constitution does not “mandate comfortable prisons,” prison
officials “have a duty . . . to protect prisoners from violence at the hands of other
prisoners.” Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994) (citations and quotation
marks omitted). As such, prison officials must take “reasonable measures to guarantee the
safety of inmates.” Id. (citations and quotation marks omitted). Not all prison injuries are
actionable, however, and in order to succeed on an Eighth Amendment failure to protect
claim, Applegate must establish both an objective and a subjective component. The
objective component requires Applegate to allege a “sufficiently serious” deprivation, id.
at 1977, or, more specifically, for a failure to protect/prevent harm claim, Applegate must
demonstrate that he was “incarcerated under conditions posing a substantial risk of
serious harm.” Applegate must satisfy the subjective component by demonstrating that
(1) the “official knows of and disregards an excessive risk to inmate health or safety” and
that (2) the official is “aware of facts from which the inference could be drawn that a

13

substantial risk of serious harm exists” and the official “must also draw the inference.” Id.
at 1979. If an official fails to alleviate a significant risk “that he should have perceived
but did not, while no cause for commendation, [this] cannot . . . be condemned as the
infliction of punishment.” Id.; see also Amick v. Ohio Dep’t of Rehabilitation &
Correction, 521 Fed. App’x 354, 357-58 (6th Cir. 2013) (citing Farmer); Derksen v.
Causey, No. 1:13CV-P194-R, 2014 WL 1330193, at *3 (W.D. Ky. April 2, 2014).
1. Defendant Hoeck is entitled to summary judgment on Plaintiff’s allegations
surrounding the events of August 25, 2012.
With respect to Defendant Hoeck, Applegate fails to satisfy the subjective
component of the test. Citing Taylor v. Larson, 505 Fed. App’x 475, 477 (6th Cir. 2012),
Plaintiff alleges that he satisfies the objective component, to wit, that he was incarcerated
in conditions posing a substantial risk of harm. However, Taylor concerned an inmate
placed in a cell covered in fresh fecal matter for three days because he questioned why he
was being required to submit a DNA sample. Taylor, 505 Fed. App’x at 477.
Per Plaintiff, the precipitating feces attack occurred after other inmates learned
that Applegate was incarcerated pursuant to a sex offense conviction. Officers then
relocated Plaintiff to a different cell. Applegate now alleges that “Hoeck was aware that
failing to close the bean flap to Mr. Applegate’s cell would lead to continued assaults and
relished in the punishment being inflicted upon Mr. Applegate.” DE #24 (Response) at 9.
Applegate filed an inmate grievance in response to alleged August 25, 2012 events. DE
#18-13 (9/23/12 Inmate Grievance Form). However, the grievance does not name
Defendant Hoeck. In his affidavit, Applegate indicates that he asked Officer Hoeck to
close the bean flap on his new cell but that Hoeck laughed and refused. DE #24-1 at 3, ¶
21.

14

Again, the Court is only assessing allegations against Hoeck. Hoeck was not
involved in the August 25 Mitchell incident until the cell relocation. Officers (non-party
Humfleet, primarily) immediately had assisted Applegate to get cleaned up, and they also
immediately arranged transfer. Hoeck assisted with that transfer. Plaintiff’s complaints
against Hoeck involve him leaving the bean flap open on the new cell and then later
allegedly laughing at Plaintiff, and refusing to take action, regarding urine being thrown
through that bean flap. 7
First, there is no evidence to support that Hoeck knew any attack would occur
against Applegate via his open bean flap. Officers had promptly moved Plaintiff from the
walk where he had prior trouble. Nothing suggests notice to Hoeck or a perception that
someone might use Applegate’s bean flap to victimize Plaintiff. If Hoeck laughed at
Applegate after the first incident, that rude or irresponsible reaction would not be of
constitutional moment. In the sometimes rough and tumble of prison, Applegate did get
fresh bedding, had running water, and had a reasonably prompt cleaning of his cell. He
moved to 113 on August 25. Per the affidavit, Hoeck allegedly refused to close the bean
flap after the first incident, but the timing of later alleged assaults is not reflected in the
record or provided by averment. Applegate made his request for a blanket and cleaning
supplies to Officer Bray (again, a non-party) on August 26, and Plaintiff received both by
some point on August 27. There is no proof that Hoeck denied these things to Plaintiff.
The record does not show Hoeck actionably depriving Plaintiff or knowingly exposing
him to qualifying risk as an act of punishment.

7

Applegate makes some suggestion that Hoeck allowed an inmate to handle his property
unsupervised pending the relocation. That claim, certainly disputed, is not part of the
constitutional matters under analysis.
15

While Applegate’s conditions of confinement were unquestionably unpleasant
and unsanitary, on a temporary basis, he fails to create a submissible Eighth Amendment
violation as to Hoeck. See Anthony v. Werner, No. 07-15138, 2008 WL 2447328, at *5
(E.D. Mich. June 18, 2008) (collecting cases and finding no Eighth Amendment violation
even after Plaintiff informed guards that he “feared being assaulted” by another inmate);
see also id. (citing Zimmerman v. Seyfert, No. 9:03-CV-1389 (TJM), 2007 WL 2080517,
*29 (N.D.N.Y. July 19, 2007) (no Eighth Amendment violation where officer delayed
letting plaintiff shower for approximately one-half hour after feces and urine had been
thrown on him by another inmate); Hayes v. Waite, No. 2:06-cv-101-FtM-29DNF, 2007
WL 2827730, *7 (M.D. Fla. Sept.27, 2007) (no Eighth Amendment violation where other
inmates created the unsanitary conditions by throwing feces and urine and where there
was no allegation that Defendants failed to clean up after such incidents); Sterling v.
Smith, No. CV606-103, 2007 WL 781274, *4 (S.D. Ga. Mar.8, 2007) (no Eighth
Amendment violation where there was no allegation that “prison officials condone such
behavior [throwing fecal matter] or force [inmates] to remain in filthy conditions” and
where plaintiff did not “allege that prison officials allow[ed] an unsanitary condition to
persist by failing to clean the prison or refusing to provide him with cleaning supplies”);
Snyder v. McGinnis, No. 03-CV-0902E, 2004 WL 1949472, *9-10 (W.D.N.Y. Sept.2,
2004) (no Eighth Amendment violation where prison officials moved inmate next to
plaintiff despite knowledge that they were enemies because risk that feces would be
thrown at inmate did not rise to level necessary to sustain claim); McNatt v. Unit
Manager Parker, No. 3:99CV1397 AHN, 2000 WL 307000, *4 (D. Conn. Jan.18,
2000) (where plaintiff deprived of toilet paper and cleaning supplies for one day, the

16

court held that although the conditions were not pleasant, “the brief duration of the
deprivation causes the court to conclude that the conditions did not constitute an Eighth
Amendment violation”).
Applegate does not allege that he was not permitted to clean his cell after the
attacks, and the purported one day delay in receiving cleaning supplies and a blanket does
not, on this record, rise to an Eighth Amendment violation. This is particularly so because
Hoeck must be the focus. Plaintiff avers only limited involvement by Hoeck, temporally
or otherwise, and none at a level of constitutional concern. Plaintiff articulates no basis
for perceiving Hoeck’s knowledge that attacks would continue absent closure of
Applegate’s bean flap. Applegate fails to meet the standard for § 1983 relief.
2. Defendants Wilson and Wood are not entitled to summary judgment on
Plaintiff’s allegations concerning the August 28 assault by inmate Waugh. 8
Applegate contends that Defendants Wilson and Wood knew of (or at least
appreciated) the risk of harm to Applegate on August 28, 2012. DE #24 (Response) at 10.
Per Plaintiff, inmate Downs “warned Sergeant Wilson that no one should be bunked with
Mr. Applegate because of rumors that he was a sex offender and was being repeatedly
threatened by other inmates on the ‘100 walk.’” Id. Plaintiff and Downs allege that
Wilson dismissed the concerns. Id.; see also DE #24-2 (Downs Aff.) at 1. In his affidavit,
Downs asserts that officers instructed inmate Waugh to pack his property for a move, and
8

The Court notes that the PLRA, as relevant, requires a prisoner to show a physical
injury or the commission of a sexual act to sustain a claim for mental or emotional injury
suffered while in custody. See 42 U.S.C. § 1997e(e). The Waugh attack includes such a
claim, but even as to the earlier event, the statutory requirement is inapplicable to a filing
by a non-prisoner. See, e.g., Harris v. Garner, 216 F.3d 970, 975 (11th Cir. 2000) (en
banc) (“It is confinement status at the time the lawsuit is ‘brought,’ i.e., filed, that
matters.”); Ojo v. Hillsborough County, 2014 WL 1803309, at *3-4 (D.N.H. 2014) (“The
plain language of the relevant statutory provision indicates that the restriction applies to
inmates who are confined at the time they filed suit.”).
17

that Waugh yelled out multiple times that he would attack Applegate if placed into a cell
with him. DE #24-2 (Downs Aff.) at 1. Downs allegedly again voiced his concerns to the
involved guards, stating that things “would not turn out right.” Id. Wilson then
supposedly responded, “I don’t give a shit.” Id.
Officers cuffed Plaintiff and instructed him to move to the back of his cell. During
these events, “[o]ther inmates were calling out encouraging an assault against inmate
Applegate.” Id. Wilson and Wood then placed Waugh into Applegate’s cell. Wilson
allegedly then walked to the end of the walk while Wood removed Waugh’s handcuffs.
Once free, Waugh began assaulting the still-cuffed Applegate. Wood commanded Waugh
to stop and radioed to have the cell door opened. Although the door opened, Wilson
allegedly ordered the door closed. Following the arrival of other officers, Waugh stopped
his assault, and officers removed him from the cell. Id. Downs further alleges that,
“[a]bout a week later, inmate Waugh gave me a letter to give to inmate Applegate while I
was working on the 400 walk.” Id. at 2. Downs passed the letter to Plaintiff.
Defendants claim that they “provided a safe environment to protect Plaintiff
during the physical assault . . . by inmate Waugh.” DE #18 (Motion) at 24. Specifically,
Wood allegedly radioed for assistance, and both Wood and Wilson filed incident reports
for review and investigation. Defendants also note that Waugh was disciplined for the
incident. Applegate received medical attention following the assault. Id.
Pursuant to Rule 56(c)(4), Applegate presents 2 affidavits “made on personal
knowledge” that set forth otherwise admissible facts. See DE #24-1 (Applegate Aff.); DE
#24-2 (Downs Aff.). On this record, the Court finds that—in the summary judgment
context—Plaintiff meets both objective and subjective components of his Eighth

18

Amendment claim. Downs allegedly advised officers of the risk of placing another
inmate in a cell with Applegate. Wilson responded that he “d[idn’t] give a shit,” and
continued with relocating Waugh into Applegate’s cell. This is so, despite Waugh—the
assaulting actor—allegedly yelling out during transfer and to these Defendants that he
would harm or assault Applegate if the men were confined together. Waugh allegedly
continued to threaten violence even immediately outside Applegate’s cell, and other
inmates called out for an attack. DE #24-2 (Downs Aff.). While the Officers’ response to
the assault itself may have been reasonable, see Morris v. Ward¸ 2007 WL 951433, at *6
(W.D. Mich. March 27, 2007) (“The federal courts have consistently held that no Eighth
Amendment violation occurs [when, upon encountering fighting inmates, officers
summon help and assist in restraining and disarming prisoners].”), the issue here is that
Officers arguably enabled the situation by moving Waugh into the cell, despite his overt
warnings and threats of violence. The content of the affidavits create triable issues of fact.
Further, Applegate satisfies the objective component of his claim. “A physical
fight between two adult men in a locked cell clearly pose[s] a substantial risk of serious
harm.” Amick, 521 Fed. App’x at *8; Kennedy v. Wilson, No. 10-CV-299-HRW, 2013
WL 5234435, at *5 (E.D. Ky. Sept. 17, 2013) (citing Amick).
The Court must view the record and draw inferences in Applegate’s favor. 9 Both
Plaintiff and Downs aver, by affidavits in proper form, that Wilson and Wood heard
direct, overt, and contemporaneous threats from and about Waugh as they executed the
transfer of Waugh into Applegate’s cell. While cross-examination may well weaken the
force of these accounts, the Court must here deny summary judgment as to these
9

Defendants essentially act as if the Downs affidavit does not exist and do not address
the effect of his averments.
19

Defendants. Knowingly placing a person threatening immediate assault into the cell of a
cuffed inmate under the particulars here alleged creates a triable scenario under the
Eighth Amendment. See Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011) (citing
Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004)) (“[A] prison official may be held to
be deliberately indifferent to a substantial risk to inmate safety if he is aware that an
inmate is vulnerable to assault and fails to protect him.”).
D. Defendants are entitled to summary judgment on Plaintiff’s claim regarding
his classification under 501 KAR 3:110.
Plaintiff alleges that Defendants’ override of the inmate classification system, as
established by 501 KAR 3:110, deprived him of the protections afforded by the
classification system. DE #1 (Complaint) at 14 (Count IV). Specifically, Applegate
contends that the override placed him in a higher risk group, which ultimately increased
the likelihood of violence. DE #24 (Response) at 13. Defendants respond that Applegate
is not entitled to and may not premise a claim on any particular classification.
The record reflects that Kentucky originally classified Applegate at Roederer
Assessment Center on October 28, 2011. DE #18-2. Although Applegate’s original
custody level was minimum security, or level 2, the classification official overrode that
based on the “nature of severity of [the] crime.” DE #18-2. This ultimately resulted in
Applegate being a final custody level of 3, or medium security. Staff at the Northpoint
Training Center re-classified Applegate at an annual review on November 14, 2012.
Applegate’s custody level did not change, and the re-classification does not reflect any
override.

20

Plaintiff fails to avoid summary judgment because 10 none of the Defendants were
involved in (1) the initial classification and resultant override or (2) the re-classification
in 2012. Staff member Felicia Webster conducted the initial 2011 classification, which
was approved by Chairperson Sharon M. Veech. DE #18-2. Jamie Moreland conducted
the re-classification in 2012, and Chairperson Craig Hughes approved the final
determination. DE #18-5. In short, the Court need not assess the merits of Plaintiff’s
claim because he fails to show or allege that any of the named Defendants were involved
in the classification events.
E. Qualified Immunity 11
The Sixth Circuit has summarized the qualified immunity analysis:
Qualified immunity is an affirmative defense that shields government
officials from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known. There are two steps in the analysis:
(1) whether, considering the allegations in a light most favorable to the
party injured, a constitutional right has been violated, and (2) whether that
right was clearly established. . . . When considering a claim of qualified
immunity, ‘[t]he relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted.’
King v. Ambs, 519 F.3d 607, 610 (6th Cir. 2008) (quoting Saucier v. Katz, 121 S. Ct.
2151 (2001)). 12 The defense allows “‘ample room for mistaken judgments,’ protecting

10

The Court doubts but does not analyze whether there is any right to classification. The
individual defendants did not classify Applegate; the claim thus is not properly before the
Court.
11
Plaintiff made no response to the state immunity argument under Yanero v. Davis, 65
S.W.3d 510 (Ky. 2001). The Court treats this as a concession by Applegate. In context,
this has little effect. The Court has found no basis for the regulatory/classification claim
or any claim against Hoeck or Epperson. The Court will permit the deliberate
indifference claim against Wilson and Wood relative to the Waugh assault. To the extent
the Complaint attempts any further state law theory under the negligence rubric, the
Court finds that the unopposed Yanero argument disposes of such claim.
21

‘all but the plainly incompetent or those who knowingly violate the law.’” Essex v. Cnty.
of Livingston, 518 Fed. App’x 351, 356-57 (6th Cir. 2013) (quoting Chappell v. City of
Cleveland, 585 F.3d 901, 907 (2009)). Once raised as a defense, a plaintiff must show
“‘specific, non-conclusory allegations of fact that will enable the district court to
determine that those facts, if proved, will overcome the defense of qualified immunity.’”
Goad v. Mitchell, 297 F.3d 497, 501 (6th Cir. 2002) (quoting Veney v. Hogan, 70 F.3d
917, 922 (6th Cir. 1995)).
“The Eighth Amendment ‘encompasses an inmate’s right to be protected from
harm by fellow inmates,’ but ‘prison officials violate this right only when they exhibit a
deliberate or callous indifference to an inmate’s safety.’” Edwards v. South Dakota, No.
10-4176-KES, 2014 WL 575726, at *3 (D.S.D. Feb. 11, 2014) (quoting Tucker v. Evans,
276 F.3d 999 (8th Cir. 2002)). Prison officers are not “expected to prevent all inmate-oninmate violence.” Francisco v. Hebert, No. 05-1850, 2007 WL 1805772, at *4 (W.D. La.
June 21, 2007) (internal quotation marks and citation omitted). An officer may be entitled
to qualified immunity if an inmate suffers injury by a surprise attack from another
inmate. See Morris v. Ward, 2007 WL 951433, at *1 (W.D. Mich. Mar. 27, 2007) (citing
Tucker, 276 F.3d at 1001 and stating: “We have held in several cases that qualified

12

“In interpreting the Supreme Court’s test for qualified immunity, Sixth Circuit panels
vary in using either a two-part or three-part approach, both of which ‘can be said to
capture the holding’ of Saucier.” Zulock v. Shures, 441 Fed. App’x 294, 301 (6th Cir.
2010) (citing Estate of Carter v. City of Detroit, 408 F.3d 305, 311 n.2 (6th Cir. 2005)).
The occasional third prong increases analytical clarity by examining whether “‘the
plaintiff has offered sufficient evidence to indicate that what the official allegedly did
was objectively unreasonable in light of the clearly established constitutional rights.’” Id.
at 302 n.2 (quoting Sample v. Bailey, 409 F.3d 689, 695-96 (6th Cir. 2005)). As the Sixth
Circuit has also noted, however, “‘the fact that a right is ‘clearly established’ sufficiently
implies that its violation is objectively unreasonable.’” Id. (quoting Estate of Carter, 408
F.3d at 311 n.2).
22

immunity for prison officials is appropriate when an Eighth Amendment failure-toprotect claim arises from inmate injuries resulting from a surprise attack by another
inmate.”); see also Tucker, 276 F.3d at 1001 (collecting cases). Prison officials may also
avoid liability if “‘they knew the underlying facts but believed (albeit unsoundly) that the
risk to which the facts gave rise was unsubstantial or nonexistent. A prison official’s duty
under the Eighth Amendment is to ensure “reasonable safety,” not absolute safety.’”
Bates v. Elwood, No. 6:06-CV-539-KKC, 2008 WL 2783190, at *9 (E.D. Ky. July 16,
2008) (quoting Savocchio v. Crabtree, No. CV-97-1698-ST, 1999 WL 562692, at *5 (D.
Or. July 12, 1999) (quoting Farmer)).
The Court has carefully parsed the proof. The Court would here award Defendant
Hoeck, as to whom there was no constitutional violation, qualified immunity. However,
and viewing the facts in Applegate’s favor, the sworn statements that Plaintiff adduces
provide sufficient evidence to implicate a substantial risk of harm to Plaintiff (known to
and ignored by both Wood and Wilson). Here, Downs allegedly warned officers about
the potential risk of rehoming Waugh in Applegate’s cell. Waugh allegedly expressed
repeated threats toward Applegate in the time immediately prior to the move, and at the
time of the move. Indeed, other near-by prisoners encouraged an attack. (The prior
trouble on walk 300 and at Plaintiff’s new cell validate the gravity or credibility of the
risk.) This is sufficient to raise a factual question about a cognizable but disregarded
threat under the Eighth Amendment.
The Court does view the right at issue – to be free from violence from other
inmates – as clearly established. See Bishop, 636 F.3d at 766 (“Furthermore, on several
occasions we have recognized an inmate’s right to be free from prison violence as clearly

23

established.”). The facts on this record support a right violation only as to Defendants
Wood and Wilson. Waugh expressed overt threats of harm toward Applegate, and the
record reflects that both Wood and Wilson participated in the move with the threats and
risk starkly before them. Neither is entitled to qualified immunity.
IV. Conclusion
For the reasons discussed above, the Court GRANTS IN PART Defendant’s
motion for summary judgment (DE #18). 13 The Court GRANTS the motion as to all
claims except Plaintiff’s Eighth Amendment claim against Defendants Wood and Wilson.
Further, neither Wood nor Wilson is protected by the doctrine of qualified immunity.
The Court GRANTS (as unopposed by Plaintiff) the motion to dismiss (DE #19).
The action remains pending only as to Defendants Wood and Wilson.14
This the 24th day of September, 2015.

13

Plaintiff included Epperson in the Complaint but did not make allegations or averments
in support of claims against him in the summary judgment context. The Complaint itself
offers no direct criticisms of or assertions against Epperson that would suggest liability.
As such, and because the Court here must evaluate whether any individual defendant may
have liability based on the acts of that individual, the Court grants summary judgment to
Epperson.
14
See DE #29 concerning the status of unserved Defendant Mandell.
24