Bailey v. Ingram et al
Filing
59
MEMORANDUM OPINION & ORDER: 1. Motion to Dismiss filed by Dft's Bugg, Ingram, & Tomlinson 46 is GRANTED; 2. Pla's claims against Dft's Bugg, Ingram, Tomlinson, & NTC Warden Bottom are DISMISSED; 3. Bailey's Motion for Summary J udgment 56 is DENIED; 4. Bailey's Motion to Amend Complaint 57 is DENIED; 5. Action is DISMISSED, without prejudice, and STRICKEN from Court's docket. Signed by Judge Danny C. Reeves on 11/4/2016.(KM)cc: COR, sent via US mail to Pro Se Bailey
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
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DAVID WAYNE BAILEY,
Plaintiff,
V.
RANDY INGRAM, et al.
Defendants.
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Civil Action No. 5: 14-279-DCR
MEMORANUM OPINION
AND ORDER
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In July 2014, Bailey filed this civil rights action in which he asserted various
constitutional claims arising from his participation in a religious retreat and subsequent loss
of his kitchen job at the Northpoint Training Center (“NTC”).1 [Record No. 1; amended at
Record No. 14] He demanded monetary, declaratory and injunctive relief. On October 24,
2014, the Court screened Bailey’s original § 1983 Complaint and his numerous Amended
Complaints, and dismissed all of them for failure to state a claim pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A. [Record Nos. 13, 15] Bailey appealed.
On October 28, 2015, the United States Court of Appeals for the Sixth Circuit
affirmed the dismissal of Bailey’s claims except his First Amendment retaliation claims
Bailey was confined at the Northpoint Training Center in Burgin, Kentucky, when he filed this
§ 1983 proceeding. He is now confined at the Green River Correctional Complex (“GRCC”) in
Central City, Kentucky. Bailey originally named several NTC officials as defendants, but many
have been dismissed, leaving the following four individual defendants: (1) Randy Ingram, NTC
Food Production Supervisor; (2) Kevin Bugg, NTC Food Production Manager; (2) Lonnitta
Tomlinson, NTC Food Production Manager/Inmate Work Scheduler; and (4) Don Bottom, NTC
Warden.
1
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against the four remaining NTC defendants.
development. [See Record Nos. 29, 32.]
Those claims were remanded for further
The following motions are now pending for
consideration: the motion to dismiss filed by Defendants Kevin Bugg, Randy Ingram, and
Lonnitta Tomlinson [Record No. 46]; and Plaintiff David Bailey’s pro se motion for
summary judgment [Record No. 56] and his motion for leave to amend his Complaint
[Record No. 57]. For the reasons explained below, the motion to dismiss will be granted; the
motion for summary judgment will be denied; the motion for leave to amend the Complaint
will be denied; and this 42 U.S.C. § 1983 civil rights action will be dismissed because Bailey
failed to exhaust his administrative remedies.
I.
Defendants Bugg, Ingram, and Tomlinson (all of whom were employed in various
capacities in the NTC “kitchen”) have filed a motion to dismiss Bailey’s retaliation claims
against them. [Record No. 46] These defendants assert various arguments in support of their
motion. Because it is outcome-determinative, however, the Court focuses on the defendants’
argument Bailey has failed to administratively exhaust his retaliation claims against them.
In his Answer to Bailey’s Fourth Amended Complaint [Record No. 14], Defendant Don
Bottom asserted that Bailey “has failed to exhaust his administrative remedies as required by
42 U.S.C. §1997e and/or KRS § 454.415.” [Record No. 53, p. 3] Defendant Tomlinson
further alleges that she has not been properly served under Rule 4 of the Federal Rules of
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Civil Procedure.2 The defendants contend that Bailey has failed to effectively counter their
arguments in any substantive manner. [Record No. 48] Further, the Defendants assert that
Bailey essentially admits that he did not fully and completely exhaust his First Amendment
retaliation claim, and that Tomlinson has not been properly served with process.
II.
When evaluating a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must determine whether the complaint alleges “sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id.; see also Kreipke v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015). The
Court must “construe the complaint in the light most favorable to the nonmoving party,
accept the well-pled factual allegations as true, and determine whether the moving party is
entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co.,
508 F.3d 327, 336 (6th Cir. 2007).
The Court “need not accept the plaintiff’s legal
conclusions or unwarranted factual inferences as true.” Id. at 336.
III.
Because Bailey failed to exhaust his claims pursuant to the Kentucky Department of
Correction’s (“KDOC”) administrative process, his claims against the remaining defendants
In response to the Defendants’ argument that Tomlinson has not been properly served, Bailey
proposes that this Court ask Tomlinson’s mother, a “nurse at NTC,” where Tomlinson can be
located for service of process.
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must be dismissed. The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a),
provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.
§ 1983], 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.”
Exhaustion is mandatory, see Jones v. Bock, 549 U.S. 199, 211 (2007), and applies to any
claim that arises out of any aspect of prison life, whether it involves general circumstances or
particular episodes, and whether it alleges excessive force or some other wrong. See Booth v.
Churner, 532 U.S. 731, 741 (2001); Porter v. Nussle, 534 U.S. 516, 532 (2002).
In Woodford v. Ngo, 548 U.S. 81, 90 (2006), the Supreme Court explained that
exhaustion of administrative remedies must be done “properly,” which means going through
all steps that the agency holds out, obeying all directions, and adhering to all deadlines set by
the administrative rules. Exhaustion is required even if the prisoner subjectively believes the
remedy is not available, even when the state cannot grant the particular relief requested, and
even where the prisoner believes the procedure to be ineffectual or futile. Napier v. Laurel
Cnty., Ky., 636 F.3d 218, 222 (6th Cir. 2011).
Although inmates are not required to specially plead or demonstrate exhaustion in
their complaints, Jones, 549 U.S. at 216, Bailey affirmatively raised the issue in his
Complaint, claiming that he had complied with the grievance process. That being the case,
the defendants have properly asserted the defense of failure to exhaust in their motion to
dismiss. See Anderson v. Jutzy, No. 15-11727, 2016 WL 1211747, at *3 (E. D. Mich. Mar.
29, 2016) (“In the rare case in which the plaintiff includes allegations in his complaint that
permit adjudication of an exhaustion defense, a defendant may resort to a motion to dismiss
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under Rule 12(b)(6)). See also Rembisz v. Lew, 590 F. App’x 501, 504 (6th Cir. 2014)
(acknowledging that the exhaustion defense may be “susceptible to resolution on a motion to
dismiss if a plaintiff affirmatively pleads himself out of court”); Mann v. United States, No.
14-13439, 2016 WL 344559 (E.D. Mich. Jan. 27, 2016) (construing the motion to dismiss or,
alternatively, for summary judgment, in which the defendants argued that the plaintiff had
failed to administratively exhaust his Bivens claims, as an un-enumerated motion under Fed.
R. Civ. P. 12(b), and recommending the dismissal) (Report and Recommendation adopted at
Mann v. United States, No. 14-13439, 2016 WL 1253267, at *1 (E.D. Mich. Mar. 31, 2016).3
The KDOC’s administrative regulations, known as Corrections Policies and
Procedures (“CPP”), contain the grievance procedures for KDOC prisoners. See K.R.S. §
454.415(1); 501 K.A.R. 6:020. Specifically, CPP § 14.6, “Inmate Grievance Procedure,”
(effective Aug. 5, 2016) identifies the four precise administrative steps which KDOC inmates
must
follow
to
exhaust
their
claims
prior
to
filing
suit.
See
http://corrections.ky.gov/communityinfo/Policies%20and%20Procedures/Documents/CH14/
CPP%2014-6%20Grievances%20-%20Eff%208-5-16.pdf, at pp. 7-14 (last visited on
November 2, 2016).
A number of courts have characterized a request to dismiss for failure to exhaust administrative
remedies as subject to an unenumerated Rule 12(b) motion rather than a motion for summary
judgment. See, e.g., Neal v. Raddatz, No. 09-13169, 2012 WL 488827, at *2 (E.D. Mich. Jan.
12, 2012) (quoting Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003)).
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Pursuant to CPP 14.6, a KDOC inmate must file a written grievance and seek an
Informal Resolution. See id., § II (J)(1)-(4), (“Step 1”).4 If not satisfied at that level, the
inmate must submit a written request to the Grievance Committee requesting a hearing to
consider his grievance. See id., § II (J)(2) (“Step 2”). If not satisfied with the Grievance
Committee’s disposition, the inmate must then appeal to the Warden. See id., § II (J)(3)
(“Step 3”). Finally, if dissatisfied with the Warden's decision, the inmate must file an appeal
to the Commissioner of the KDOC. See id., § II (J)(4) (“Step 4”). Time frames for appeals
and responses are established within the regulation.
As a KDOC prisoner, Bailey was required to have pursued and completed all four
steps of the KDOC’s administrative remedy process before filing this § 1983 action.
The
Defendants acknowledge that Bailey pursued the first three steps of the grievance process,
[see Record No. 46, p. 4] but they contend that Bailey did not pursue or complete the fourth
and final step necessary to exhaust his administrative remedies, which was submitting an
appeal to the KDOC Commissioner. [Id.]
Bailey alleges in his response that he “made reasonably [sic] attempts to file and
prosecute a grievance; similar in nature grievance said to be attached to informal resolution
found not grievable, not attached.” [Record No. 47, p. 1] But as the Defendants correctly
note, Bailey does not state that he completed the grievance process as to any of his claims by
submitting a final appeal to the KDOC Commissioner and receiving the Commissioner’s
4
Grievances concerning heath care claims must be pursued through the steps set forth in CPP
14.6, § II (K)(1)-(3).
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response. In his original Complaint [Record No. 1] and his Fourth Amended Complaint
[Record No. 14], Bailey listed the steps he took to exhaust his claims:
EXHAUSTION OF ADMINISTRATIVE REMEDIE(S)
1. Plaintiff Bailey did file Grievance regarding these Fact(s) under Kentucky
Department of Correction’s CPP 14.6, and filed an Appeal of a Disciplinary
Decision to Warden under CPP 15.6.
2. On April 20th 2014 Plaintiff Bailey did file Grievance under CPP 14.6
against the Matter of job Assignment.
3. On April 22nd Plaintiff’s Grievance was DISMISSED.
4. On June 23rd 2014 Plaintiff’s Appeal was DENIED.
[Record No. 1, p. 5; Record No. 14, p. 8]
Bailey’s argument, broadly construed, appears to be that his substantial compliance
with the KDOC administrative remedy process was sufficient. As discussed above, however,
a prisoner must strictly comply with an institution’s administrative remedy process.
Woodford, 548 U.S. at 90. Here, the record reflects that Bailey ignored the final step of CPP
§ 14.6 and instead prematurely filed suit on his § 1983 claims.
Further, Bailey’s vague insinuation that his First Amendment retaliation claim is
“non-grievable” lacks merit.
Section 14.6 §(C)(1)-(10) lists the subjects that are not
grievable within a KDOC prison facility; claims of First Amendment retaliation against
prison staff members are not included in that ten-item list. See CPP § (C) (1)-(10), p. 2.
Bailey’s assertion that it would have been futile for him to fully exhaust his claims is not
persuasive. The Sixth Circuit has held that “an inmate cannot simply fail to file a grievance
or abandon the process before completion and claim that he has exhausted his remedies or
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that it is futile for him to do so because his grievance is now time-barred under the
regulations.” Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999). See Booth, 532 U.S. at
741 n.6 (“[W]e will not read futility or other exceptions into statutory exhaustion
requirements where Congress has provided otherwise.”).
Based on Bailey’s description of his exhaustion efforts in his original Complaint and
in his Fourth Amended Complaint, and his de facto admission in his Response [Record No.
47] that he did not comply with the final step of the applicable administrative process by
submitting an appeal to the KDOC Commissioner, Bailey’s First Amendment retaliation
claims against Defendants Bugg, Ingram, Tomlinson,5 and Bottom6 will be dismissed for
failure to exhaust.7
IV.
Bailey has filed a two-page motion for summary judgment [Record No. 56], in which
he broadly seeks relief on his retaliation claims in the form of money damages. Bailey’s
allegations are confined to the first page of the submission; the second page of the
Dismissal of Bailey’s claims against Tomlinson is also appropriate based on lack of service. See
Fed. R. Civ. P. 12(b)(5). In a § 1983 action, it is the inmate’s responsibility to provide the proper
addresses of the defendants for service of process. See Fitts v. Sicker, 232 F. App’x 436, 443
(6th Cir. 2007)
5
6
Although Bottom did not join in the motion to dismiss, he raised failure to exhaust as an
affirmative defense in his Answer to Bailey’s Fourth Amended Complaint. [Record No. 53]
Further, Bailey was put on notice of the exhaustion argument by the other defendants’ motion to
dismiss. See Brown v. University of Kentucky Comprehensive Assessment & Training Services,
No. 12-CV-123-KSF, 2013 WL 990423, at *8 (E.D. Ky. Mar. 13, 2013).
7
A dismissal for failure to exhaust non-judicial remedies under the PLRA is without prejudice.
Boyd v. Corrections Corp. of America, 380 F.3d 989, 994 (6th Cir. 2006) (citing Knuckles El v.
Toombs, 215 F.3d 640 (6th Cir. 2000)); McCloy v. Corr. Med. Servs., 794 F.Supp.2d 743, 751
(E.D. Mich. 2011).
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submission consists solely of Bailey’s certificate of service on the Defendants.
The
Defendants argue that Bailey is not entitled to summary judgment, having submitted no
arguments or evidence in support of his motion.
Summary judgment is appropriate when the court is satisfied “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). The burden of showing the absence of any such “genuine issue”
rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, which it believes
demonstrates the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed. R. Civ. P. 56(c)). A fact is
“material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A district court will view the summary judgment
motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment should be granted
if a party who bears the burden of proof at trial does not establish an essential element of
their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995).
Here, Bailey has not carried his burden of showing the absence of any genuine issue.
On the contrary, his sparse, bare-bones motion for summary judgment is one in label only; it
contains no substantive grounds which would warrant summary judgment in his favor. As
the defendants correctly assert in their Response [Record No. 58], Bailey’s motion contains
no sworn evidence, no discussion of the facts, and no reference to any of the defendants.
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Bailey does nothing more than broadly allege that summary judgment should be entered in
his favor, and that he is entitled to monetary relief on his claims. Bailey’s motion for
summary judgment, therefore, will be denied.
V.
On September 22, 2016, Bailey filed a motion for leave to amend his Complaint.
[Record No. 57] The motion for leave to amend is difficult to read and comprehend, but
based upon the exhibits attached to the motion, it appears that Bailey wishes to amend his
original Complaint to assert claims concerning his special diet at the Green River
Correctional Complex (“GRCC”), claiming that the GRCC food service staff has failed to
comply with this specific dietary demands. A response from the defendants is not necessary
because the claims which Bailey raises do not concern the alleged events at the NTC in May
2014, see Fed. R. Civ. P. 15(c), and are not alleged to have occurred within this Court’s
territorial jurisdiction. See 28 U.S.C. § 1391(b). Bailey’s motion for leave to amend his
Complaint [Record No. 57] will be denied.
VI.
Based on the foregoing analysis, it is hereby
ORDERED as follows:
(1)
The Motion to Dismiss filed by Defendants Bugg, Ingram, and Tomlinson
[Record No. 46] is GRANTED.
(2)
Plaintiff David Wayne Bailey’s First Amendment retaliation claims asserted
under 42 U.S.C. § 1983 against Defendants Bugg, Ingram, Tomlinson, and NTC Warden
Bottom are DISMISSED.
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(3)
Bailey’s Motion for Summary Judgment [Record No. 56] is DENIED.
(4)
Bailey’s Motion to Amend Complaint [Record No. 57] is DENIED.
(5)
This action is DISMISSED, without prejudice, and STRICKEN from the
Court’s docket.
This 4th day of November, 2016.
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