Cox v. Riley
MEMORANDUM AND OPINION by Chief Judge Thomas B. Russell on 8/3/2011: re DN 31 ; an appropriate judgment enteredcc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 5:10CV-P121-R
OFFICER JOHNATHAN RILEY
Defendant has filed a motion for summary judgment (DN 31). Plaintiff’s response was
due on July 5, 2010. As of August 3, 2011, no response has been filed.
Defendant first states that Plaintiff has failed to exhaust his administrative remedies for
the majority of his claims. Failure to exhaust administrative remedies is an affirmative defense.
Grinter v. Knight, 532 F.3d 567, 578 (6th Cir. 2008). A plaintiff is not required to specially
plead or demonstrate exhaustion of administrative remedies. Id. Accordingly, defendants must
assert the defense of failure to exhaust administrative remedies and bear the initial burden of
proof. Bruce v. Corr. Med. Servs., Inc., 389 Fed. Appx.462, 467 (6th Cir. 2010). Defendant
states that Plaintiff has filed only one relevant grievance.1 Defendant contends that any other
activity is irrelevant because a grievance was not filed. Plaintiff has failed to respond to
Defendant’s initial burden of proof. Accordingly, summary judgment is GRANTED for all
claims not involved in the grievance filed by Plaintiff.
Defendant concedes, however, that Plaintiff did exhaust his administrative remedies in
regards to one claim.2 Plaintiff filed a grievance stating:
On 6-7-10 Officer Johnathan Riley made sexual remarks towards me and this was also
around pill call and said something sexual remark about my private part on my body and this was
said in the presence of the nurse and other officer and other inmates. [some edits made for
Grievance, DN 31-3, pg. 3. For the purposes of summary judgment, it is therefore only
appropriate to consider the above allegations.
a. Fourth Amendment
Plaintiff does not refer to a search or seizure in his grievance. Accordingly, summary
judgment on the Fourth Amendment claim is GRANTED.
b. Eighth Amendment
The Eighth Amendment “has applied to barbarous physical punishments. . . . [and]
punishments which, although not physically barbarous, involve the unnecessary and wanton
infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (internal quotations and
citations omitted). One set of alleged sexual remarks made do not amount to the “unnecessary
and wanton infliction of pain.” Accordingly, there is no constitutional deprivation under the
Eighth Amendment and summary judgment is GRANTED. Accord Papaioan v. Riley, No. 10CV-88-KKC, 2010 WL 1234992 (E.D.Ky. March 23, 2010) (Verbal sexual abuse and
harassment does not rise to level of Eighth Amendment) (citations to additional cases holding the
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.
Defendant does state that the civil action was filed prior to the final ruling from the
Commissioner. However, the issue is irrelevant and this Court does not reach the issue of
whether a premature action has failed to exhaust administrative remedies.
An appropriate order shall issue.
August 3, 2011
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