Sublett v. Bryant
Filing
65
MEMORANDUM OPINION AND ORDER: (1) Motions for Summary Judgment filed by Defendants Adams, Moreland, Long, and Bryant 26 , 27 , 28 , and 29 are GRANTED; (2) Plaintiff's Motion to Strike Affidavit of Brad Adams 35 is GRANTED and the relief sought is GRANTED IN PART and DENIED IN PART; and (3) Plaintiff's Motion to Dismiss Defendant Bryant, Adams, Moreland, and Long's Motions for Summary Judgment 41 , is DENIED. Signed by Judge Joseph M. Hood on 6/22/2016. (STC)cc: COR,Plt
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DAMIEN A. SUBLETT,
)
)
)
)
)
)
)
)
)
Plaintiff,
V.
SGT. JUSTIN T. BRYANT, et al.
Defendants.
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Civil Action No. 15-016-JMH
MEMORANDUM OPINION AND ORDER
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**
This matter is before the Court on the defendants’ Motions
for Summary Judgment [DE 26, 27, 28, and 29).
The plaintiff has
responded to each motion and the defendants have each replied, and
these motions are now ripe for decision.
The allegations in the
Complaint relate to one fact pattern and the legal issues regarding
each Defendant’s Motion for Summary Judgment are substantially
similar, therefore, the Court will rule on all four motions, as
well as Plaintiff’s Motion to Strike Affidavit of Brad Adams [DE
35] and Motion to Dismiss the Defendants’ Motions for Summary
Judgment [DE 41], in this Memorandum Opinion and Order.
I.
Factual Background
Plaintiff Damien A. Sublett is an inmate at the Northpoint
Training Center (“NTC”) in Burgin, Kentucky.
He appears pro se in
this action, claiming that each of the defendants unlawfully
retaliated against him for exercising his First Amendment Rights
as related to grievances he filed against correctional officers,
all in violation of 42 U.S.C. § 1983.
On
January
8,
2015,
Plaintiff
alleged
that
Correctional
Officer Tonya Parrett “stared at him for approximately 30 seconds
while
he
was
in
the
bathroom
urinating,
making
uncomfortable and violating his privacy rights.”
him
feel
[DE 29, Def.
Justin Bryant’s Mem. in Supp. Mot. Summ. J., Ex. A, Extraordinary
Occurrence Report.]
An investigation commenced.
It is undisputed
that Defendant refused to provide a written statement as to the
nature of his allegations.
[Id.]
Correctional Sergeant Justin
Bryant, one of the defendants in this matter, was the Prison Rape
Elimination Act (“PREA”) contact at that time.
reviewed
camera
footage,
interviewed
Defendant Bryant
Officer
Parrett,
and
questioned Plaintiff about the incident. The camera footage showed
Officer Parrett in the doorway to the bathroom for approximately
two or three seconds.
Plaintiff refused a medical exam, and when
asked by a nurse to describe the incident, Plaintiff “refused,
stating there was no story to tell.”
[Id.]
As a result of the
investigation, Defendant Bryant prepared an NTC Informational
Report as well as a summary of the incident to support possible
disciplinary action against Plaintiff for lying to staff.
These
reports became the basis of a disciplinary action against Plaintiff
that resulted in Plaintiff being found guilty of the charge of
“obtaining money/goods/privileges/services with false pretenses.”
2
Plaintiff received 45 days in disciplinary segregation (suspended
for 90 days) as a punishment.
Plaintiff alleges that Defendant Bryant’s involvement in
investigating
and
documenting
the
incident
on
the
NTC
Informational Report and the disciplinary summary violated his
First Amendment right to file a grievance.
Approximately
two
months
later,
Plaintiff
accused
Correctional Officer Dusty McKinney of approaching his bed area
and staring at his crotch while he was lying in bed wearing only
boxer shorts. [DE 28, Def. Michael Long’s Mem. in Supp. Mot. Summ.
J., Ex. A, Extraordinary Occurrence Report, “EOR”.]
this
incident
to
Lieutenant
Michael
Long
In reporting
(Defendant
in
this
lawsuit) and Correctional Officer Anthony Hall (not a party to
this lawsuit), the situation escalated.
Plaintiff
in
handcuffs
at
the
direction
Officer Hall placed
of
Defendant
Long.
Defendant Long escorted Plaintiff to the medical center, where he
stated he wanted to file a PREA report.
According to the EOR dated
March 3, 2015, Plaintiff became “belligerent” and “aggressive.”
[Id.]
Upon arrival at the medical center, Plaintiff was released
from handcuffs and allowed to complete the PREA report.
Defendant
Long notified the PREA Compliance Manager, Brad Adams (another
Defendant to this lawsuit) of the situation.
NTC
Deputy
Warden
Gary
Prestigiacomo
conducted
the
PREA
investigation, which included interviewing the involved parties,
3
two witnesses, and footage from seven video cameras.
Based on the
investigation, particularly the camera footage, Deputy Warden
Prestigiacomo concluded “there is no way Office McKinney can be in
a position to see his crotch” and the “incident is unfounded.” [DE
28, Def. Michael Long’s Mem. in Supp. Mot. Summ. J., Ex. B, PREA
Investigation Report.]
in
an
incident
findings.
Defendant Adams documented the situation
report,
which
summarized
the
Deputy
Warden’s
This was the extent of Defendant Adams’ involvement in
the pertinent facts giving rising to this lawsuit.1
Based on the
investigation and decisions of other BOP personnel (not parties to
this
lawsuit),
Plaintiff
was
subject
to
disciplinary
action
arising from the incident and the report by Defendant Adams.
The events described above ultimately resulted in Plaintiff
being found guilty of five disciplinary violations between January
and March, 2015: “(1) obtaining money/goods/privileges/services
with false pretenses, (2) refusing or failing to obey an order,
(3) tampering with physical evidence or hindering investigation,
(4)
indecent
exposure,
and
(5)
disrespectful
1 Plaintiff alleges Defendant Adams approached him on March 12, 2015,
and stated “every PREA Grievance you file no matter how substantiated
in [sic] may be, I’ll have it investigated and determined unfounded
and write you up, I break you [sic] from all this Grievance’s [sic]
and PREA’s and Law Suit [sic].” [DE 10, Amended Compliant, ¶ 9.] In
his sworn Affidavit, Defendant Adams stated to the best of his
knowledge he has never spoken to Plaintiff and, according to the Staff
Entry/Exit Log for March 12, 2015, he was not within the secure
perimeter of the institution on that date.
[DE 26, Def. Brad Adams’
Mem. in Supp. Mot. Summ. J. Ex. D, Aff. Brad Adams, ¶ 8; DE 44, Reply
in Supp. Def.’s Mot. Summ. J., Ex. A.]
4
language/gestures/actions towards non-inmate.”
[DE 27, Def. Jamie
Moreland’s Mem. in Supp. Mot. Summ. J., Ex. A, Aff. Jamie Moreland,
¶
4.]
Classification
(Defendant
in
this
and
Treatment
lawsuit)
was
Officer
tasked
Jamie
with
Moreland
completing
a
“reclassification” for Plaintiff based on the five disciplinary
violations in such a short period of time.
It is undisputed that
Plaintiff refused to attend his Classification Committee meeting
on April 9, 2015. [Id. at ¶ 1., Am. Comp. ¶¶ 12-15.]
Moreland
prepared
an
incident
report
refusal to attend the meeting.
explaining
Defendant
Plaintiff’s
This resulted in yet another
disciplinary action against Plaintiff for failure to attend the
meeting.
Plaintiff
avers
that
Defendant
Moreland
drafted
the
incident report in retaliation for filing the PREA grievance
against Officer McKinney.
II.
The
issues.
Adams
Court
will
PROCEDURAL ISSUES
first
address
the
outstanding
procedural
Plaintiff moves the Court to strike the Affidavit of Brad
[DE
35]
based
upon
Defendant
Adams’
lack
of
personal
knowledge of the events he testifies to in the Affidavit.
An
affidavit supporting a motion for summary judgment must satisfy
three formal requirements: (1) it “must be made on personal
knowledge”;
(2)
“set
out
facts
that
would
be
admissible
in
evidence”; and (3) it “show that the affiant or declarant is
competent to testify on the matters stated.” Fed. R. Civ. P.
5
56(c)).
“The rule requires a scalpel, not a butcher knife,” and
the court “should disregard only those portions of an affidavit
that are inadequate and consider the rest.”
Perez v. Volvo Car
Corp., 247 F.3d 303, 315 (1st Cir. 2001)(quoting Akin v. Q-L Invs.,
Inc., 959 F.2d 521, 531(5th Cir. 1992).
The Court finds that only ¶ 5 of Defendant Adams’ Affidavit
contains inadmissible hearsay, in his descriptions of the actions
of Deputy Warden Prestigiacomo in investigating the PREA grievance
against Officer McKinney.
Defendant Adams admits he did “nothing
more than summarize the findings of Deputy Warden Prestigiacomo’s
PREA investigation.”
pg. 7.]
[DE 26, Def.’s Mem. in Supp. Mot. Summ. J.,
While Defendant Adams has personal knowledge of the
content of the forms he summarized, the Court agrees with the
plaintiff that Defendant Adams does not have personal knowledge of
the
actions
investigation.
Deputy
Warden
Pretigiacomo
took
during
his
Thus, the following portion of Defendant Adams’
Affidavit will be stricken from the record and not considered in
deciding these dispositive motions:
Deputy Warden Pretigiacomo interviewed Inmate
Sublett, two additional inmate witness, and
Officer McKinney. He also reviewed available
camera footage from seven (7) security
cameras.
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[DE 26, Affidavit of Brad Adams, ¶ 5.]
Defendant
Adams’
Affidavit
will
remain
in
The remainder of
the
record
for
consideration in deciding the motions at issue.
Plaintiff also filed a Motion to Dismiss the defendants’
motions for summary judgment [DE 41].
Based on the content of the
Motion, the Court construes this Motion as a supplemental Response
to defendants’ motions for summary judgment [DE 26, 27, 28, and
29]. For the reasons stated below, the Court will deny Plaintiff’s
motion and grant each of the defendants’ motions.
III. STANDARD OF REVIEW
Summary judgment is appropriate if there is no genuine issue
of material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). The movant must show the district
court that no genuine issue of material fact exists, and the Court
must view all evidence in the light most favorable to the nonmoving
party, drawing all justifiable inferences in the nonmoving party's
favor. Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.
2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)). There is a genuine issue of material fact
only if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
Thus,
the
Court
considers
“whether
the
evidence
presents
a
sufficient disagreement to require submission to a jury or whether
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it is so one-sided that one party must prevail as a matter of law.”
Id. at 251–52.
IV.
ANALYSIS
To succeed on a claim under 42 U.S.C. § 1983, a plaintiff
must establish “two elements: 1) the defendant acted under color
of state law; and 2) the defendant's conduct deprived the plaintiff
of rights secured under federal law.” Fritz v. Charter Tp. of
Comstock, 592 F.3d 718, 722 (6th Cir.2010).
Plaintiff claims that each of the defendants in this lawsuit
retaliated against him for exercising him First Amendment right to
file a grievance by filing a disciplinary report against him.
“[R]etaliation for the exercise of constitutional rights is itself
a violation of the Constitution.”
378, 394 (6th Cir. 1999).
Thaddeus-X v. Blatter, 175 F.3d
A retaliation claim includes three
elements, all of which must be satisfied: “(1) the plaintiff
engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) there
is a causal connection between elements one and two—that is, the
adverse action was motivated at least in part by the plaintiff's
protected conduct.”
Id.
Plaintiff’s retaliation claim against
each defendant fails on the first and third elements, as discussed
below.
A. Plaintiff was Not Engaged in Protected Conduct
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An inmate’s First Amendment right to file grievances against
prison officials is protected only if the grievances are not
frivolous.
Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2010).
“Depriving someone of a frivolous claim . . . deprives him of
nothing at all, except perhaps the punishment of Federal Rule of
Civil Procedure 11 sanctions.”
Lewis v. Casey, 518 U.S. 343, 353
(1996).
In
two
months’
time,
Plaintiff
twice
alleged
that
different correctional officers stared at his genitals.
two
On both
occasions, prison officials investigated the incident through
interviews and viewing the security camera footage.
incidents,
prison
Plaintiff’s claims.
officials
found
no
evidence
In both
to
support
In both instances, it is undisputed that when
Plaintiff realized his verbal complaints were being treated as
formal
grievances,
he
refused
to
cooperate
with
the
investigations, even indicating at some point he did not wish to
pursue the matters.
(“I just would like to forget this.” DE 26,
Def.’s Memm. Supp. Summ. J., Ex. A.; “[T]here [is] no story to
tell.” DE 29, Def. Justin Bryant’s Mem. in Supp. Mot. Summ. J.,
Ex. A.]
Plaintiff has presented no facts to support his allegations
in the Complaint and Amended Compliant, whereas Defendants have
presented significant facts and evidence in support of their
motions for summary judgment; facts and evidence Plaintiff has not
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disputed.
Plaintiff does not dispute Defendants’ assertions that
videos of the January incident does not show Parrett improperly
staring at his genitals.
Plaintiff weakly disputes Defendants’
claim that the seven security cameras which captured the March
incident show no wrongdoing on the part of Officer McKinney.
He
claims Deputy Warden Prestigiacomo told him that “it was to [sic]
dark in the bed area to see exactly what occurred as to where c/o
McKinney was exactly looking.”
[DE 37, Pl.’s Response to Def.
Brad Adams’ Mot. Summ. J., pg. 3.]
however,
the
content
of
the
Plaintiff does not dispute,
video
as
described
in
the
PREA
Investigation Summary [DE 26, Ex. A].
A claim is legally frivolous when it lacks an arguable basis
either in law or in fact.
Neitzke v. Williams, 490 U.S. 319, 325
(1989). Plaintiff instituted two grievances based on two different
prison officers staring at his genitals within a short time frame;
both were determined to be “unfounded” by prison officials after
thorough
investigation.
The
Court
notes
Plaintiff
filed
a
similarly frivolous grievance again in August 2015, accusing yet
a third correctional officer of staring at his genitals. Plaintiff
subsequently filed a lawsuit in the Western District of Kentucky
for retaliation after receiving disciplinary action for filing
that frivolous grievance.
See Sublett v. Sheets, No. 5:15-cv-
P199-TBR, 2015 WL 9236028 (W.D. Ky. Dec. 16, 2015).
The Court
dismissed that action pursuant to 28 U.S.C. § 1915A(b)(1).
10
The Court finds Plaintiff’s grievances lacked an arguable
basis
in
officials,
fact,
and
were
are
determined
to
substantially
be
“unfounded”
similar
to
other
Plaintiff has made in the past, which also failed.
by
prison
complaints
Because an
inmate has no constitutional right to file frivolous grievances,
the Court holds that Plaintiff was not engaged in protected
conduct, and, thus, cannot sustain a claim for retaliation against
any of the defendants.
B. The Disciplinary Actions were not Motivated by Protected
Conduct
Having found that the Plaintiff cannot prove the first element
of a claim for retaliation, the Court does not need to move on the
other two elements; however, the Court would like to briefly
address the third element of Plaintiff’s retaliation claim because
of the similarities between this case and Plaintiff’s 2015 case in
the Western District, Sublett v. Sheets.
Id.
As in Sheets,
Plaintiff does not allege herein that the disciplinary reports
filed against him for belligerent and aggressive behavior were
false.
He admits he did not stop speaking when told to do so.
[DE 10, Am. Compl., ¶ 8.]
He further admits that he refused to
attend the reclassification meeting in April, which ultimately led
to further disciplinary action.
[DE 10, Am. Compl., ¶¶ 12-15.]
As the Court stated in Sheets:
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Significantly, however, the Sixth Circuit has
specifically held that a plaintiff who
complains that the adverse action taken
against him was a substantiated misconduct
charge fails to state a retaliation claim.
Jackson v. Madery, 158 F. App'x 656, 662 (6th
Cir. 2005). This is because “a finding of
guilt upon some evidence of a violation of
prison rules ‘essentially checkmates [a]
retaliation claim.’ ” Id. (citing Henderson v.
Baird, 29 F.3d 464, 469 (8th Cir. 1994)).
Sublett v. Sheets, No. 5:15-cv-P199-TBR, 2015 WL 9236028, at
*3 (W.D. Ky. Dec. 16, 2015).
V. CONCLUSION
“[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party. If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)
(internal citations omitted).
The Court finds that Plaintiff’s
claims of retaliation are not supported by sufficient evidence to
withstand Defendants’ Rule 56 motions and summary judgment in favor
of the defendants is appropriate.
(1)
Accordingly, IT IS ORDERED:
The Motions for Summary Judgment filed by Defendants
Adams, Moreland, Long, and Bryant [DE 26, 27, 28, and
29] are GRANTED;
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(2)
Plaintiff’s Motion to Strike Affidavit of Brad Adams
[DE 35] is GRANTED and the relief sought is GRANTED IN
PART and DENIED IN PART; and
(3)
Plaintiff’s Motion to Dismiss Defendant Bryant, Adams,
Moreland, and Long’s Motions for Summary Judgment [DE
41], is DENIED.
This the 22nd day of June, 2016.
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