Green v. USA et al

Filing 26

MEMORANDUM OPINION & ORDER: Case Terminated. 1. Plaintiff John Green's motion for reconsideration of the denial of the appointment of counsel [D. E. No. 25] is DENIED. 2. The Motionto Dismiss, or inthe Alternative, for Summary Judgment [D.E. N o. 20 ] filed by Defendants Jimmy Pittman and the United States is GRANTED. 3. The Court will enter an appropriate judgment. 4. This matter is STRICKEN from the active docket. Signed by Judge Henry R. Wilhoit, Jr on 1/17/2013.(RBB)cc: COR, paper copy to pro se filer via US Mail

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

SOUTHERN DIVISION AT LONDON

JOHN GREEN,

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Plaintiff,

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V.

Civil Action No. 11-59-HRW

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UNITED STATES OF AMERICA, et
ai.,

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MEMORANDUM OPINION
AND ORDER

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Defendants.

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John Green is an inmate confined at the United States Penitentiary - McCreary
in Pine Knot, Kentucky. Proceeding without an attorney, Green filed this civil rights
complaint under the doctrine announced in Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971), challenging the conditions of his confinement at the

prison, which he alleges that he experienced in early 2010. The defendants have filed
a motion to dismiss the complaint, or in the alternative, for summary judgment.
Green has not filed a response opposing the defendants' motion, but instead has asked
the Court to reconsider its prior Order denying his request to appoint counsel to
represent him in this case. For the reasons explained below, the Court will deny
Green's motion and will grant the defendants' motion for summary judgment.

BACKGROUND

In his complaint Green alleged that in March 2010, his cellmate at the prison
(Manuel Raul Reyes-Pefia) threatened him; that prison officials would not relocate
either of them; and that two months later, on May 24, 2010, Reyes- Pefia assaulted
him. Green claimed that the defendants' failure to prevent the assault constituted
negligence and a violation of his constitutional rights. [D. E. No.2, pp. 4-5, 8]
On June 11,2012, the Court screened Green's complaintpursuantto 28 U.S.C.
§§ 1915 and 1915A, dismissed Green's individual capacity Eighth Amendment
claims against the other defendants without prejudice, but directed Unit Manager
Jimmy Pittman to respond to Green's Fifth and Eighth Amendment claims and the
United States to respond to Green's negligence claims. [D. E. No. 14]
On September 17, 2012, Pittman and the United States moved to dismiss the
complaint, or in the alternative, moved for summary judgment. [D. E. No. 20] Out
ofan abundance ofcaution and to preserve Green's rights, the Court entered an Order
on September 18, 2012, directing Green to file a response to the defendants'
dispositive motion within 21 days. [D. E. No. 21] That Order notified Green that his
failure to file a response could be deemed an admission of the contents of the
defendants' motion, a waiver of his opposition to it, and result in the dismissal ofhis
case. Id.
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Green did not file a response to the defendants' motion, but instead filed a
motion requesting that the Court appoint counsel to represent him, as well as an
extension oftime to respond to the defendants' motion. [D. E. No. 22] On November
14,2012, the Court denied Green's request for the appointment of counsel, finding
that he had adequately articulated his allegations and that his claims did not involve
the kind of extraordinary circumstances warranting the appointment of counsel. [D.
E. No. 23] However, the Court granted Green's request for additional time to respond
to the defendants' dispositive motion, and directed him to do so within 28 days.
Instead of filing a substantive response to the defendants' motion for summary
judgment as directed by the Court, on November 28,2012, Green simply reiterated
his request for the appointment ofcounsel in the form ofa motion for reconsideration.
[D. E. No. 25] In his motion, Green argues that he needs appointed counsel because
(1) he has limited knowledge of the English language; (2) he has limited knowledge

ofthe law; (3) another USP-McCreary inmate, who has since been transferred, helped
him prepare his complaint; and (4) the Warden ofUSP - McCreary has the "the power
and influence to have any Inmate that assists the plaintiff transferred to another
facility to stop that assistance...." [D. E. No. 25, p. 1]
DISCUSSION
The appointment of counsel in a civil proceeding is not a constitutional right
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and is justified only in exceptional circumstances. Lavado v. Keohane, 992 F.2d 601,
605-06 (6th Cir. 1993). To determine whether these exceptional circumstances exist,
courts evaluate "the likelihood of success on the merits and the ability of the
petitioner to articulate his claims pro se in light of the complexity of the legal issues
involved." Terrell v. Brewer, 935 F. 2d 1015, 1017 (9th Cir. 1991) (citing Wilborn
v. Escalderon, 789 F. 2d 1328, 1331 (9th Cir 1986); see also Archie v. Christian, 812
F. 2d 250, 253 (5th Cir. 1987). Applying these criteria, for the same reasons
previously stated the Court will again deny Green's request for appointed counsel.
The defendants' motion for summary judgment has now been pending for
nearly four months, and despite repeated orders to do so, Green has failed or refused
to respond to it. Green has stated that he is unable to respond for himself, having
chosen in the past to rely upon assistance from "jail-house lawyers" to submit filings
on his behalf. Notably, when Green filed his first motion requesting the appointment
of counsel on October 2,2012, he did not mention this consideration, nor any of his
current assertions that lacks a command of the English language or any knowledge
of the law. At that time, he stated only that he was not a lawyer, had never been to
law school, and did not know his "remedy." [D. E. No. 22]
Regardless, none of Green's new arguments necessitate the appointment of
counsel: neither illiteracy, unfamiliarity with the English language, nor lack of
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education relieves a non-moving party from showing that a genuine issue ofmaterial
fact exists at the summary judgment stage. Gray v. First Century Bank, 547 F. Supp.
2d 815,823 (N. D. Ohio 2008); see also Cobas v. Burgess, 306 F.3d 441,444 (6th
Cir. 2002), cert. denied, 538 U.S. 984 (2003) (inmate's lack of legal training, poor
education and even illiteracy does not provide reason to toll the applicable statute of
limitations for filing a habeas corpus petition under 28 U.S.C. § 2254).
If Green intended his motion for reconsideration to substitute as either a
substantive response to the defendants' motion for summary judgment, or as another
motion for extension of time, his expectations were unreasonable. Just two weeks
before, on November 14, 2012, the Court denied his request for appointed counsel.
Green knew from the Court's prior Order that it considered his ability to represent
himself to be sufficient. .[D. E. No. 23-1, p. 2] Green was therefore required to file
a substantive response to the defendants' motion within the time permitted. Forthese
reasons, Green's motion will be denied.
Even so, a district court can not grant summary judgment pursuant to Federal
Rule ofCivil Procedure 41 solely because the non-moving party has failed to respond
to the motion within the applicable time limit. Miller v. Shore Financial Services,
Inc., 141 F. App'x 417,419 (6th Cir. 2005) (citing Stough v. Mayville Cmty. Sch., 138

F.3d 612,614 (6th Cir. 1998); Carver v. Bunch, 946 F.2d 451,455 (6th Cir. 1991)).
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If a district court's local rules require a non-moving party to respond to a motion
within a certain time, the Federal Rules of Civil Procedure still require the moving
party to demonstrate the absence of a disputed question of material fact and grounds
that would entitle it to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); Stough, 138
F.3d at 614; Carver, 946 F.2d at 454-55. When a non-moving party fails to respond,
the district court must, at a minimum, examine the moving party's motion for
summary judgment to ensure that it has discharged its initial burden. See Stough, 138
F.3d at 614. The Court will examine the defendants' motion for summary judgment
to determine if they have carried their burden.
The sworn declarations which the defendants have submitted demonstrate that
no genuine issue of material fact exists as to any of Green's claims.

In his

declaration, Phillip Resch, Green's Correctional Counselor during the relevant time
period, states that once he learned in March 2010 that both Green and Reyes-Peiia
had lower bunk medical passes for the same cell, he located another cell with a lower
bunk for Green in the same unit, but that Green refused to move there, citing potential
"affiliation and/or background" conflicts with the occupant of that cell. [D. E. No.
20-4, ,-r 3]

Resch notes that neither Green nor Reyes-Peiia were classified as

"separatee" inmates, and that the prison staffpossessed no information indicating that
either of them had any pre-existing problems or security issues. [Id.,,-r 4]
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Resch states that for the next two and a half months, neither Green nor Reyes­
Pena complained ofproblems between them, showed signs of animosity or violence,
or otherwise gave the prison staff any reason to suspect that two and a half months
later, they would become involved in a physical altercation. [Id.] Pittman testifies
similarly, stating that once Green notified the staff that both he and Reyes-Pena had
been assigned the lower bunk in the same cell, Pena had apparently agreed to accept
the top bunk, and that the prison staff had received no complaints from either inmate
during the two and one-half months prior to the altercation on May 24,2010. [D. E.
No. 20-3, ~~ 4-5]
Other than the broad and condusory allegations contained in his complaint,
Green offers nothing to dispute Resch's and Pittman's detailed account of the facts
relating to his cell assignment. Speculative and condusory allegations, even those
contained in a verified complaint, are not sufficient to withstand a motion for
summary judgment. See, e.g., Saleh v. City o/Warren, Ohio, 86 F. App'x 866,868
(6th Cir. 2004) (citing Emmons v. McLaughlin, 874 F.2d 351,358 (6th Cir. 1989)
("affidavits [that] merely repeated the [plaintiff s] vague and condusory allegations
... were insufficient to generate a genuine issue of material fact.")); Hamilton v.
Roberts, No. 97-1696, 1998 WL 639158, at *4 (6th Cir. Sept. 10, 1998); Woods v.
Hamilton County Jail, No. 1:09-CV-137, 2010 WL 1882113, at *5 (E.D. Tenn. May
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10,2010).

The sworn testimony of Resch and Pittman substantiates that before May 24,
2010, the staff at USP - McCreary had no reason to believe that allowing Green and
Reyes-Pefia to share a cell presented any heightened risk of an altercation between
them. While Green's conclusory allegations ofnegligence and deliberate indifference
to his safety sufficed at the initial screening stage to avoid sua sponte dismissal, they
are inadequate to overcome the defendants' motion for summaryjudgment, supported
by sworn declarations, as to either his negligence claims or his claims of deliberate
indifference to his safety. The defendants' motion for summary judgment as to
Green's FTCA and Eighth Amendment claims will be granted.
Green's remaining claim - that Pittman violated his Fifth Amendment rights­
suffers from the same defect.

In his complaint, Green alleged in vague and

conclusory terms that Pittman violated his Fifth Amendment rights, but he offered no
other details in support of this claim. The defendants contend that Green's broad
allegation on this issue lacks specificity, and Green's failure to respond or provide
any clarification of the factual or legal basis for this claim is not sufficient to
withstand a motion for summary judgment.

Emmons, 874 F.2d at 358.

The

defendants' motion for summaryjudgment as to Green's Fifth Amendment claim will
also be granted.
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CONCLUSION
Accordingly, IT IS ORDERED that:
1.

Plaintiff John Green's motion for reconsideration of the denial of the

appointment of counsel [D. E. No. 25] is DENIED.
2.

The Motion to Dismiss, or in the Alternative, for Summary Judgment [D.

E. No. 20] filed by Defendants Jimmy Pittman and the United States is GRANTED.
3.

The Court will enter an appropriate judgment.

4.

This matter is STRICKEN from the active docket.

This January 17,2013.

SlQnedSyI

tiD!y R. WIIot Jr.
United States DIstnct JIrJge

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