Miles v. Kentucky Department of Corrections et al

Filing 89

MEMORANDUM OPINION AND ORDER: Defendants' 79 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 7/6/2017. (STC)cc: COR,PLT

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DARRELL L. MILES,

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Plaintiff,
V.
DON BOTTOM, Warden, et al.,
Defendants.
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Civil No. 5: 15-CV-126-JMH

MEMORANDUM OPINION AND ORDER

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This matter is before the Court on Defendants’ Motion for

Summary Judgment [DE 79].

Plaintiff filed a Response, styled a as

a “Reply” [DE 82], Defendants filed a Reply [DE 87], and this
matter

is

ripe

for

ruling.

For

the

reasons

stated

herein,

Defendants’ motion will be GRANTED.
BACKGROUND
The Court set forth the factual and procedural background of
this case in its Memorandum Opinion and Order dated May 3, 2016
[DE 36] and those details need not be repeated here.

The gist of

Plaintiff’s claims is that prison staff retaliated against him for
filing a grievance and failed to protect him from attacks by other
inmates.

The Court screened the complaint pursuant to 28 U.S.C.

§§ 1915(e)(2) and 1915(A) and dismissed a number of Plaintiff’s
claims

[DE

36

at

16-17].

Plaintiff’s

remaining

claims

are

deliberate indifference and retaliation claims against each of the
following

in

their

individual

capacities:
1

Brad

Adams,

Rick

Rowlette, Gary Prestigiacomo, Craig Hughes, Earl Walls, Mendalyn
Cochran, Jack Godbey, Stephanie Hughes, and Lieutenant Crain.
STANDARD
Summary judgment is appropriate when citation to facts in the
court

record,

including

depositions,

documents,

affidavits,

admissions, and other material, demonstrate there are no genuine
issues of material fact. Fed. R. Civ. P. 56 (c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1987). The party moving for summary
judgment

bears

the

initial

responsibility

of

informing

the

district court of the basis for its motion and identifying those
portions of the record it believes demonstrates the absence of a
genuine issue of material fact.

See Celotex Corp., 477 U.S. at

323. However, “[o]nce the moving party shows that there is an
absence of evidence to support the nonmoving party’s case, the
nonmoving party must present significant probative evidence to
demonstrate that there is more than some metaphysical doubt as to
the material facts.” ACLU v. Mercer County, 240 F. Supp.2d 623,
624 (E.D.Ky. 2003) (citing Moore v. Philip Morris Cos., 8 F.3d
335, 340 (6th Cir. 1993) (emphasis added) (internal punctuation
removed)). The non-moving party may not “rely on subjective beliefs
to show a genuine dispute” nor may they “defeat summary judgment
by conclusory responses.” ACLU, 240 F. Supp. 2d at 625. Moreover,
“[t]he mere existence of a scintilla of evidence in support of the

2

plaintiff’s position will be insufficient.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
ANALYSIS
Retaliation
To prove a retaliation claim, a plaintiff must show that each
defendant’s actions fulfill all of the elements of retaliation. “A
retaliation claim essentially entails three elements: (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.” Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999). Plaintiff has the burden of proof
regarding all three elements. Additionally, Plaintiff must prove
that the exercise of the protected right was a substantial or
motivating factor in the defendant’s alleged retaliatory conduct.
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977); Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001).
If Plaintiff makes such a showing, the defendants may still avoid
liability by showing “that [they] would have taken the same action
in the absence of the protected activity.” Thaddeus-X, 175 F.3d at
399); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000).

3

Plaintiff,

proceeding

pro

se,

has

set

forth

allegations, many of which are difficult to parse out.

numerous
Defendants

do not contest that Plaintiff engaged in protected activity in
lodging

a

complaint

against

Officer

Sarah

Buckingham,

satisfying the first element of a retaliation claim.

thus

There is

absolutely no evidence, however, that an adverse action was taken
against Plaintiff by anyone as a result of his complaint.

Thus,

Plaintiff’s claim for retaliation cannot stand against any of the
defendants to this lawsuit and will be dismissed.
Plaintiff appears to argue, at times, that the initial event
which led to this lawsuit—allegation that he showed a note to
Officer Buckingham on May 1, 2014, offering her $500—was fabricated
and that was retaliation against him [DE 82, p. 2]; however, he
does not offer any evidence of protected conduct that precede this
alleged retaliation, therefore failing on the first element of a
retaliation claim.

Furthermore, there is no evidence to support

the May 1, 2014 note allegation was fabricated in retaliation for
some

unspecified

protected

conduct,

because

there

is

ample

evidence in the record the event was not fabricated; Plaintiff was
afforded a hearing and an opportunity to defend himself; and the
charge of bribery was ultimately reduced to a charge of “pursuing
a non-correctional relationship with a non-inmate.”

[DE 79-1].

At other points in the record Plaintiff argues he suffered
retaliation

in

response

to

a

grievance
4

he

filed

after

the

disciplinary action against him resulting from the May 1, 2014
note to Officer Buckingham.

In the grievance he complained that

Officer Buckingham was working in his dorm, and he did not feel
safe.

At

the

Informal

Resolution

Stage,

Defendant

Bridgette

Gillihand, Senior Captain, found no conflict in Officer Buckingham
working her assigned shift in the dorm where Plaintiff was housed
[DE 28, p. 32].

Plaintiff filed an appeal of that decision to the

Department of Corrections Commissioner, who found there was “no
evidence that the officer is question [was] harassing [Plaintiff].
There [was] every indication that she [was] performing her job
duties as required by policy and post orders.”

[DE 28, p. 33].

The Commissioner further found “no evidence” Plaintiff was in any
danger in the presence of Officer Buckingham, and, therefore, no
reason to change Officer Buckingham’s duty assignment.

[Id.]

Refusing to change staff placement is not evidence of retaliation,
particularly where there was “no evidence” that any of the events
cited by the inmate actually occurred.
According to Plaintiff, “[s]hortly after the Commissioner's
response August 1, 2014, the attacks with feces began and has
continued to this date.”

[DE 28, p. 6].

These nighttime attacks

included someone touching Plaintiff’s anus and putting feces in
his mouth while he slept. Plaintiff argues these nighttime attacks
were part of the retaliation he suffered as a result of complaining
about the May 1, 2014 incident involving Officer Buckingham and
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the subsequent appeal.

There is absolutely no evidence these

nighttime attacks occurred.

Prison officials reviewed videotape

of Plaintiff sleeping and found no evidence of anyone bothering
Plaintiff in his sleep [DE 87, Ex. 2 and 3 Affidavits of Epperson
and Hughes].

Plaintiff further argues part of the retaliation

against him included the prison staff’s failure to respond to his
safety and medical concerns resulting from the alleged nighttime
attacks.

Plaintiff was examined by medical staff on numerous

occasions who also found no evidence that Plaintiff had been
sexually assaulted or had feces or other foreign objects in his
mouth or throat

[DE 87, Ex 4, Affidavit of Crain][DE 28, p. 36-

41]. Plaintiff complains he was charged for these sick calls;
however, those charges are typical institutional charges for sick
calls and not retaliatory in any manner [Id.].

Additionally,

Plaintiff was placed in protective custody in response to his
complaints, and, at other times, refused protective custody when
it was offered.

[DE 28, p. 31][DE 13, Ex. 7-9].

To prove his claim of retaliation, Plaintiff must show that
an adverse action was taken against him because he filed the
grievance against Officer Buckingham.

Plaintiff cannot put forth

any evidence to show that any of the alleged acts of retaliation
occurred,

and

Defendants

have

submitted

proving the alleged acts did not occur.

significant

evidence

Accordingly, there is no

genuine issue of material fact on the second element of Plaintiff’s
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retaliation claim, and all Defendants are entitled to judgment as
a matter of law on Plaintiff’s retaliation claims.1
Deliberate Indifference
Plaintiff

claims

prison

officials

were

deliberately

indifferent to his safety concerns and his serious medical needs.
“To demonstrate deliberate indifference [to an inmate’s safety],
an inmate must present evidence from which a trier of fact could
conclude that the official was subjectively aware of the risk and
disregard[ed] that risk by failing to take reasonable measures to
abate it.”

Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004).

The record indicates Plaintiff was placed in protective custody
immediately upon reporting the alleged nighttime attacks on one
occasion, and was offered protective custody but refused it upon
his other reports of attacks and assaults.
Ex.

7-9].

Defendant

Lynn

Crain

[DE 28, p. 31][DE 13,

investigated

Plaintiff’s

allegations, found “nothing at all to support Inmate Miles’ reports
of others approaching him or placing substances in his mouth while
he slept.”
also

[DE 87, Ex. 4, Affidavit of Crain]. Defendant Crain

recommended

Plaintiff

be

seen

by

a

psychologist,

which

indicates not indifference, but concern for Plaintiff’s well-being

1
 The Court notes Plaintiff has been involved in other lawsuits related to the
same allegations at other penal institutions. In WDKY 5:16-cv-73 the plaintiff
claimed he suffered nighttime sexual assaults and had feces placed in his mouth
at a different institution. In that case, the Court dismissed the majority of
Plaintiff’s claims as frivolous, likely the result of the delusions Plaintiff
suffers from, as noted in his mental health records. This Court agrees. 

7

[Id.]. Furthermore, the Commissioner found no evidence of a threat
to

Plaintiff’s

Buckingham.

safety

[DE

28,

from
p.

being

33].

in

Because

proximity
the

to

record

Officer
reflects

consistent, meaningful responses to Plaintiff’s safety concerns,
the Court finds no indifference on the part of any defendant.
“To prove a violation of the Eighth Amendment based on
deliberate indifference [to a medical need], a plaintiff must prove
both that, objectively, he had ‘a serious medical need,’ and that,
subjectively, the defendant or defendants had ‘a sufficiently
culpable state of mind’ with respect to his condition.

Gunther v.

Castineta, 561 F. App'x 497, 499 (6th Cir. 2014). Plaintiff cannot
prove either in this case.
Plaintiff initially complained about nighttime acts against
him on November 29, 2014, when he submitted a sick call request
[DE 28, p. 30].

Thereafter, Plaintiff was repeatedly seen by

medical staff but the medical staff did not find any evidence of
assaults or attacks on Plaintiff [DE 28, p. 36-41].

The record

shows medical staff examined and evaluated Plaintiff during each
sick call, for example, by taking his temperature, his blood
pressure, and examining his mouth and throat. Plaintiff was tested
for harmful bacteria in his esophagus/stomach and the results were
negative (although this same test showed chronic inflammation of
the esophagus consistent with reflux) [DE 20].

This test was

conducted in May 2015 at a facility outside of the prison system,
8

and included an endoscopy and a biopsy [DE 20].

The Court notes

the physician at Northpoint Training Center (where Plaintiff was
incarcerated

and

where

he

allegedly

experienced

deliberate

indifference to his medical needs) referred him for the procedure.
Plaintiff cannot show that he had a serious medical need as a
result of feces in his throat because all the evidence in the
record indicates the nighttime feces attacks occurred only in the
plaintiff’s mind.

Furthermore, even if Plaintiff had a serious

medical need, Plaintiff cannot show any culpability on the part of
any of the defendants, as he was repeatedly seen for sick calls
related to the alleged assaults and mouth or throat complaints,
and he was referred for an endoscopy to be performed at a facility
outside the prison by a physician not employed by the prison.
There is no genuine issue of material fact upon which the trier of
fact could find that any of the defendants were deliberately
indifferent to Plaintiff.
Conclusion
Accordingly, and for the reasons stated above, IT IS ORDERED
that Defendants’ Motion for Summary Judgment is GRANTED.
This the 6th day of July, 2017.

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