Payne v. Louisville Metro Dept of Corrections et al

Filing 94

MEMORANDUM OPINION AND ORDER by Judge David J. Hale on 9/16/2016: Defendants' motion for summary judgment 62 is GRANTED. By separate Judgment, the Court will dismiss this action. cc: counsel, Plaintiff (pro se) (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
TYRONE RICHARD PAYNE,

Plaintiff,

v.

Civil Action No. 3:14-cv-P600-DJH

LOUISVILLE METRO DEPT. OF CORRECTIONS et al.,

Defendants.

* * * * *
MEMORANDUM OPINION AND ORDER
Plaintiff, Tyrone Richard Payne, proceeding pro se, filed a civil-rights complaint under
42 U.S.C. § 1983 alleging a number of constitutional violations while incarcerated at Louisville
Metro Department of Corrections (LMDC) as a pretrial detainee. Before the Court is the motion
for summary judgment (DN 62) filed by Defendants Cline, Green, and Puckett, through counsel.
Plaintiff has responded (DN 65 and 67).1 Defendants have replied (DN 68). For the following
reasons, the Court will grant the motion for summary judgment.2
I.
In his original complaint (DN 1), Plaintiff alleged that Defendant Puckett assigned him to
an unsanitary open-wing dorm without a bottom bunk which caused him injury. He alleged that
he informed Defendant Puckett of his concerns about being housed in an open dorm because his
“blood could infect other inmates.” (Elsewhere in his complaint, he explains that he suffers from
a compromised immune system, staph infections, boils, a rash, bleeding ulcers and hemorrhoids,
syncope, and neuropathy in his feet.) He alleged that Defendant Puckett “blantly denied the
requests.” To his complaint he attached two “Action Requests.”
1

Plaintiff’s two responses (DNs 65 and 67) are virtually identical. However, his response at DN 67 is signed under
penalty of perjury.
2
Other Defendants have been granted summary judgment. Defendants Cline, Green, and Puckett are the only
remaining Defendants.

In the first one, dated July 18, 2014, Plaintiff requested “administrative alert” status due
to “incidents of assaults in open wing dorm and more importantly for medical condition that has
blood-borne pathogens coming out of my physical body daily. I have continuous bleeding that
can cause harm to other inmates and could affect other inmates health!” In response, Defendant
Puckett wrote that Plaintiff would “no longer be considered for admin seg housing or any other
housing placement except population. Each [action request] you send you inform me of some
new medical or mental health condition, in which you have been dx by mental/medical staff.”
The second Action Request is dated July 23, 2014, and stated that it was an attempt to
exhaust his administrate remedies before filing a § 1983 suit. In it, Plaintiff requested to be put
back on administrative segregation for his and other inmates’ protection. In response, Defendant
Puckett stated that this was the third time he had answered this request or one similar to it.
Defendant Puckett stated that he would be informing the counselor to no longer grant Plaintiff
“an A/R concerning this matter.” Defendant Puckett also stated that “having a blood-borne
pathogen does not justify placement in S/C.”
According to the complaint, after Defendant Puckett “ignored” his housing requests,
Plaintiff voluntarily “agreed to remain in segregation a single-cell simply because I am ‘49’ year
old male, with a cane to walk, had several accidents during the night due to chronic diarrhea that
contained blood, so I had to constantly change soiled linens and mattress.” Plaintiff further
stated that after 10 days in disciplinary segregation he was moved from the single-cell
segregation unit to the third floor where c/o Lynch could not find him a bottom bunk. Because
his medical condition required a bottom bunk, c/o Lynch placed him on the floor. The next night
Plaintiff was given a mattress and “boat” to sleep in.

2

Plaintiff states that then his staph infections “began to bleed excessively due to bending
up and down on the floor, my leg ruptured and wombs begin bleeding.” He states that his wound
was rebandaged and he was moved to the medical department “in a single cell as [he] was being
treated.” His complaint catalogues additional moves to and from single cells and the open wing
dorm. Defendant Puckett is not mentioned in the complaint with regard to any of Plaintiff’s
moves.
Plaintiff amended his complaint to add claims against Defendants Green and Cline in
their individual capacities alleging that they retaliated against him for filing a § 1983 complaint
by denying him access to call his attorney (DN 24). Plaintiff alleged that “several times I have
pleaded with the Correction Officer c/o Green and c/o Cline to put my door slab down so that I
can enjoy (privileges) such as be able to use the phone to call my attorney . . . .” He further
alleged that that “this issue/concern of being deliberately discriminated against shows that
Defendants LMDC in my own opinion are retaliating against [me] just because [I] exercised
[my] rights to pursue a 1983 civil action against Defendants LMDC.”
II.
Summary judgment is proper “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). In evaluating a motion for summary judgment, first, “a party seeking summary
judgment . . . bears the initial responsibility of informing the district court of the basis for its
motion[] and identifying those portions of [the record] which it believes demonstrate the absence
of a genuine issue of material fact[.]” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citation omitted); see also LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378
(6th Cir. 1993). The movant may do so by merely identifying that the non-moving party lacks

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evidence to support an essential element of his case for which he has the burden of proof. See
Celotex Corp., 477 U.S. at 323; Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d
1382, 1389 (6th Cir. 1993) (per curiam).
The nonmoving party must do more than raise some doubt as to the existence of a fact;
the nonmoving party must produce evidence that would be sufficient to require submission of the
issue to the jury. Carpenter v. Norfolk & W. Ry. Co., No. 96-3871, 1998 WL 199723, at *3 (6th
Cir. Apr. 16, 1998) (“Once the moving party has proved that no material facts exist, the
nonmoving party must do more than raise a metaphysical or conjectural doubt about issues
requiring resolution at trial.”) (internal quotation marks and citation omitted); Freeman v. Unisys
Corp., 898 F. Supp. 485, 489 (E.D. Mich. 1995) (citing Lucas v. Leaseway Multi Transp. Serv.,
Inc., 738 F. Supp. 214, 217 (E.D. Mich. 1990)). If the nonmoving party fails to do so, summary
judgment is appropriate. See Freeman, 898 F. Supp. at 490 (concluding that summary judgment
was appropriate where nonmovant failed to raise a triable issue of fact).
Claim against Defendant Puckett regarding cell assignment
In the motion for summary judgment, Defendant Puckett argues that Plaintiff has failed to
produce any support for his claim relating to his cell assignment. He asserts that according to the
inmate classification form submitted by counsel for LMDC attached to DN 14, Plaintiff
repeatedly has been moved to different dorms for a variety of reasons. He asserts that “there is
no evidence in the record as to how exactly Defendant Puckett intended to harm” Plaintiff by
“having anything to do with his housing classification.” Defendant Puckett also argues that
Plaintiff has provided no basis in law as to why he is entitled to be housed in a single-cell dorm.
He further argues that there is no evidence that Plaintiff was “injured in any way from

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occasionally being housed in an open-wing dorm. Therefore, Plaintiff has failed to prove the
requisite elements of a claim for deliberate indifference regarding this allegation[.]”
The inmate classification overview document (referenced in the summary-judgment
motion and attached to DN 14) indicates that between May 23, 2014, and October 10, 2014,
Plaintiff was moved at least ten times. Most of the reasons for the moves are redacted, although
the latest move on this list is given as “for [redacted] medical conditions.”
Plaintiff responds that “his simple request to be housed in a single-cell is the same reason
LMDC has him housed in a single-cell currently which is due to medical. He only sought to
prevent infections to other human beings (i.e. inmates), and get care for his documented medical
needs.” He further states:
[Plaintiff] being housed in an open-wing dorm, without a bottom bunk
(due to over crowdness) he had to sleep on a floor, then on or in a boat on the
floor and up and down from the floor cause wombs to bleed and then being
housed in unsanitary cells caused illnesses and disease he never had to endure
(i.e., boil, staph, MARSA, shillnelges, infections, and rectum infection) to name a
few. He has medical documentation from legal medical authorities from also
having underwent rectum operation he was sent to an outside doctor then returned
to LMDC, placed into a single-cell dorm. He is correctly housed on medical floor
again due to medical condition and currently housed in a single-cell dorm. He
simply wanted to have his legal-documented medical condition and no infection
to other people be addressed correctly as prescribed by medical authorities.
In reply, Defendants argue that Plaintiff has provided no basis in law as to why he is
entitled to single-cell housing nor is there any evidence that Plaintiff was injured from
occasionally being housed in an open-wing dorm.
To establish an Eighth Amendment violation premised on inadequate medical care, a
prisoner must demonstrate that the defendant acted, or failed to act, with “deliberate indifference
to serious medical needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)); Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d

5

834, 843 (6th Cir. 2002). Indications of a serious medical need include “the presence of a
medical condition that significantly affects an individual’s daily activities.” Sarah v. Thompson,
109 F. Appx 770, 771 (6th Cir. 2004) (internal quotation marks and citation omitted). Thus, to
state a cognizable claim, a prisoner must show that the official “acted or failed to act despite his
knowledge of a substantial risk of serious harm” to the inmate. Terrance, 286 F.3d at 843
(quoting Farmer, 511 U.S. at 842). Less flagrant conduct, however, may still evince deliberate
indifference where there is “a showing of grossly inadequate care as well as a decision to take an
easier but less efficacious course of treatment.” Id. (quoting McElligott v. Foley, 182 F.3d 1248,
1255 (11th Cir. 1999)). Such grossly inadequate care is “medical treatment ‘so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.’” Id. at 844 (quoting Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.
1989)). Deliberate indifference is “a state of mind more blameworthy than negligence” and
“requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’” Farmer,
511 U.S. at 835 (quotation omitted).
The argument that Plaintiff presented to Defendant Puckett in his Action Requests and he
presents in his complaint was that he required a single cell to protect other inmates from his
blood-borne ailments. He cites to no authority that he has a right to a single cell for the
protection of other inmates.
With regard to his allegations concerning his medical needs, in Harrison v. Burt, the
Eastern District of Michigan considered a claim of deliberate indifference by a plaintiff who
alleged that he needed a single cell because he suffered from a condition requiring frequent
enema and bathroom use. No. 07-CV-11412, 2008 WL 4450286, at *13-14 (E.D. Mich. Sept.
29, 2008). That court found that:

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Plaintiff is unable to establish that defendants were deliberately indifferent to his
medical needs. At the outset, it is questionable whether a serious medical need is
involved at all. Although plaintiff was required to frequently use the bathroom as
a result of his condition and to give himself enemas, he does not allege that he
was denied the ability to do either by prison officials. Rather, plaintiff was denied
only the right to do so in a single occupant cell. Although plaintiff was at times
given a medical detail for a single cell, there is no evidence in the record that a
single cell was medically necessary to treat his condition.
Id. at *13.
In Winburn v. Davis, No. 08-14996, 2009 WL 3004555, at *3 (E.D. Mich. Sept. 16,
2009), the plaintiff alleged deliberate indifference when “the supervisory nurses did not
authorize a single inmate cell for him to facilitate self-catheterization without offending or
annoying his cellmates.” The district court found that “Plaintiff’s belief that Defendants should
have chosen a different course of treatment with respect to his housing assignment amounts to a
mere difference of opinion,” and because “[m]ere differences of opinion between a prisoner and
prison medical staff as to proper medical care do not give rise to a § 1983 claim. . . . Plaintiff
failed to allege a series of facts which, if proven, ‘would rise to the level of the serious
deprivation and deliberate indifference.’” Id. (quoting Umbarger v. Corr. Med. Servs., 93 F.
App’x 734, 736 (6th Cir. 2004)).
For the same reasons, the Court finds that here Plaintiff has not shown more than a
disagreement with his housing assignment. The Court will not second guess the medical
judgments made concerning Plaintiff’s cell assignment for his medical needs. See Westlake v.
Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Moreover, Plaintiff has not offered any evidence
that his injuries were caused by being housed temporarily in an open-wing dorm. Plaintiff has
not shown that Defendant Puckett was responsible for the instances in which he was housed in a
bottom bunk, which is the only circumstance of the open-wing housing assignment which

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Plaintiff links to causing his wounds to bleed. Therefore, Defendant Puckett is entitled to
summary judgment on this claim.
Claim against Defendants Cline and Green regarding retaliation
Defendants Cline and Green argue that they are entitled to summary judgment in their
favor on the only claim that Plaintiff alleged against them, i.e., his claim that they prevented him
from calling his attorney as retaliation for having filed a § 1983 claim. They state that Plaintiff’s
pretrial memorandum does not reference or indicate any evidentiary support for this retaliation
claim. They also assert that Plaintiff has refused to respond to Defendants’ written discovery
requests seeking information regarding this claim. They further argue that “it would be
impossible for either Officer Green or Officer Cline to deny Payne access to his attorney.
Phones are accessible to inmates in the jail on a virtually continuous basis.”
In response, Plaintiff stated that the “majority of the times, excluding weekends, his hour
recreation time out was 2:00 am to 3:00 am on third shift.” Plaintiff further asserts, “their is no
one, especially an attorney’s office [open] during those third shift hours.” He further asserts that
he is housed in a single cell due to medical concerns (shingles) on the medical floor at LMDC.
He states that an inmate housed in a single cell on the medical unit must first ask the on-duty
correctional officer “and the phone is then with a long cord attached put into the Inmates cells or
used through an opened food-tray slot in their single cell. So phones are not accessible to
inmates in jail on a virtually continuous basis.”
That response also states that, because Plaintiff is pro se, “in order to research and
shepardize law cases and include cited-law cases, he has to sign up threw a caseworker to get put
on a list that is available only twice a week of ‘1’ hour for each inmate on the list.” He further
explains that:

8

[t]his service is for the kiosk, a small computer that suppose to have on it current
law, but it is available on third-shift during the hours of 2:00 am to 4:00 am. If
your name is on the list, and the list is not full, then you may get called out of
your sleep approximately 2:00 am to 4:00 am for one “1” hour to spend on the
computer to research law.
In reply (DN 68), Defendants Cline, Green, and Puckett state that Plaintiff admits in his
response to their summary-judgment motion that he was given phone access during his
recreation hour. Citing DN 65-7.
In order to succeed on a retaliation claim, Plaintiff must establish 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) (en banc).
Filing a civil-rights complaint is protected conduct. See Reynolds-Bey v. Harris, 428 F.
App’x 493, 503 (6th Cir. 2011). With regard to the second prong, Plaintiff does not allege that
he is unable to contact his attorney at all or that his attorney is unable to call, mail, or visit him.
However, assuming without deciding for purposes of this Memorandum Opinion that not
allowing Plaintiff, a pretrial detainee, to call his attorney (presumably his criminal defense
attorney) is an adverse action for purposes of a retaliation claim, Plaintiff has not shown
sufficient evidence that it occurred to require submission of this issue to the jury.
Plaintiff has given no facts about how Defendants Cline and Green denied him access to
the phone, how many times that occurred, or how he was harmed by it. He explains that in the
medical unit an inmate must ask the on-duty correctional officer who then brings the phone on a
long cord. He does not state that he made requests for the phone which were refused by either

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Defendant Green or Cline or that during those times he was not housed in a single cell he was
unable to use the phone.
Furthermore, Plaintiff concedes that he was able to use the phone during his one-hour of
recreation time per day. It appears from his summary-judgment response that the reason his
recreational hour occurred in the early morning hours was because he chose to request to use the
computer kiosk, which apparently was only available during those hours. Defendants cannot be
faulted if Plaintiff chose to use his recreation hour this way. Moreover, in Plaintiff’s response,
he concedes that this recreational time did not always occur during the early morning hours, but
only the “majority of the times.”
Finally, Plaintiff has offered no evidence that the alleged conduct by Defendants Green
and Cline was motivated by Plaintiff filing a § 1983 complaint. In short, Plaintiff has not
presented evidence to support a triable issue of fact on this claim.
For these reasons, the Court finds that Defendants are entitled to summary judgment on
this claim.
III.
For the foregoing reasons,
IT IS ORDERED that Defendants’ motion for summary judgment (DN 62) is
GRANTED.
By separate Judgment, the Court will dismiss this action.
Date:

September 16, 2016

David J. Hale, Judge
United States District Court
cc:

Plaintiff, pro se
Counsel of record
4415.009

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