Sublett v. White et al

Filing 85

MEMORANDUM OPINION & ORDER granting 54 Motion for Summary Judgment; granting in part and denying in part 55 Motion for Summary Judgment; granting 56 Motion for Summary Judgment; granting in part and denying in part 58 Motion for Summary Judgment; denying 66 Motion for Summary Judgment; denying 82 Motion for Summary Judgment. Signed by Senior Judge Thomas B. Russell on 2/26/2014. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:12-CV-180-R
DAMIEN A. SUBLETT

Plaintiff

v.
RANDY WHITE, et al.

Defendants

MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants Amy Fisher, Chris Wilson,
Jamie Caraway, James Beavers, Duke Pettit, Daniel Smith, Garth Thompson, Bruce Von
Dwingelo, Randy White, and Earnest William’s Motions for Summary Judgment.
(Docket Nos. 54, 55, 56, 58.) Plaintiff Damien A. Sublett has responded. (Docket Nos.
61, 62, 71.) Defendants have replied. (Docket Nos. 63, 69, 76.) This matter is now
fully briefed and ripe for adjudication. For the following reasons and consistent with
the below opinion, the Court will GRANT in part and DENY in part Defendants’
Motions for Summary Judgment. The only remaining claims are the failure to protect
claims premised on the failure to place Plaintiff in protective custody as against
Defendant Chris Wilson and Defendants James Beavers, Duke Pettit, Daniel Smith,
Garth Thompson, Bruce Von Dwingelo, Randy White, and Earnest William.
Plaintiff Damien A. Sublett has also filed a Motion for Summary Judgment.
(Docket No. 66.) Defendants Jamie Caraway, Amy Fisher, and Chris Wilson have
responded. (Docket No. 71.) Plaintiff has replied. (Docket No. 78.) Plaintiff also filed
additional declarations and an additional motion for summary judgment, (Docket Nos.
Page 1 of 18

79, 80, 81, 82), to which Defendants have responded. (Docket No. 84.) This matter is
now fully briefed and ripe for adjudication. For the following reasons, the Court will
DENY Plaintiff Sublett’s Motion for Summary Judgment. (Docket Nos. 66, 82.)
STANDARD
Summary judgment is appropriate where “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 determining whether summary judgment is
appropriate, a court must resolve all ambiguities and draw all reasonable inferences
against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of
material fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The
test is whether the party bearing the burden of proof has presented a jury question as to
each element in the case. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The
plaintiff must present more than a mere scintilla of evidence in support of his position;
the plaintiff must present evidence on which the trier of fact could reasonably find for
the plaintiff. See id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
The plaintiff may accomplish this by “citing to particular parts of materials in the
record” or by “showing that the materials cited do not establish the absence . . . of a
genuine dispute . . . .” Fed. R. Civ. P. 56(c)(1). Mere speculation will not suffice to
defeat a motion for summary judgment; “the mere existence of a colorable factual
dispute will not defeat a properly supported motion for summary judgment. A genuine
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dispute between the parties on an issue of material fact must exist to render summary
judgment inappropriate.” Moinette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th
Cir. 1996).
DISCUSSION
Defendants Amy Fisher and Jamie Caraway
Plaintiff appears to claim Defendant Fisher verified his legal mail pursuant to
Kentucky State Penitentiary (KSP) Policy 14-04-01 and also read his legal mail in
violation of KSP Policy 14-04-01, both in violation of his Constitutional rights.
(Docket No. 25.) Plaintiff also claims Defendant Caraway read his mail on June 4,
2013.1 Defendants Fisher and Caraway argue that even accepting Plaintiff’s version of
the facts, they should be granted summary judgment on these claims. Specifically,
Defendants argue that: (1) the Prison Litigation Reform Act (PLRA) bars these claims;
(2) any review of mail was not a violation of Plaintiff’s Constitutional Rights; and (3)
they are entitled to qualified immunity.
I.

Prison Litigation Reform Act (PLRA)
The PLRA requires that a prisoner bringing an action with respect to prison

conditions under 42 U.S.C. § 1983 first exhaust his available administrative remedies.
See Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of administrative remedies
is mandatory under the PLRA and unexhausted claims cannot be brought in courts.
Jones v. Bock, 549 U.S. 199, 211 (2007). The Supreme Court has previously held that a
1

It appears that Plaintiff’s allegations concerning verification and reading of his legal mail involved legal
mail to courts, as opposed to mail to his attorneys.

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requirement that that all defendants be named in a grievance “lacks a textual basis in the
PLRA.” Id. at 217. However, the Court also made clear that “[t]he level of detail
necessary in a grievance to comply with the grievance procedures will vary from system
to system and claim to claim, but it is the prison's requirements, and not the PLRA, that
define the boundaries of proper exhaustion.” Id. at 218. "To exhaust his administrative
remedies, a prisoner must adhere to the institutional grievance policy . . . ." Risher v.
Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (citing Woodford v. Ngo, 548 U.S. 91, 90-91
(2006)). ‘“This court requires an inmate to make 'affirmative efforts to comply with the
administrative procedures,’ and analyzes whether those ‘efforts to exhaust were
sufficient under the circumstances.’” Id. (quoting Napier v. Laurel Cnty., Ky., 636 F.3d
1218, 224-25 (6th Cir. 2011)).
II.

Plaintiff’s Grievance Concerning Kentucky State Penitentiary Policy 14-04-01
Kentucky State Penitentiary Policy 14-04-01 states in relevant part:
H. POSTAGE
1. The inmate shall pay postage for outgoing legal mail to
attorneys and the courts, unless the inmate is certified as
indigent.
a. Legal postage to attorneys and the courts shall be
paid for indigent inmates.
b. The requesting inmate, regardless of indigency shall
pay for certified or insured mail.
2. Indigent inmates requesting postage for outgoing mail to
attorneys and the courts shall bring the mail to the mailroom.
The material shall be unsealed at the time it is presented to the
mailroom for indigency verification.
a. When indigency has been verified, the Program Director
or his designee shall:
(1) Verify that the materials to be mailed are legal
pleadings or correspondence qualified in Paragraph 1 of
this section, and that they pertain to the indigent inmate.
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(2) Staff, when verifying indigency and legal materials,
shall not read or censor the contents. If the material may
not readily be recognized as legal material, the inmate
shall be required to qualify the material.
(3) Outgoing mail not meeting the criteria for indigent
postage shall be returned to the inmate.
Plaintiff has filed a grievance on the issue of his mail being verified, but did not claim
specifically that Amy Fisher read his mail.2 (Docket No. 32-1.) Defendants allege this
grievance was a generalized attack on KSP Policy 14-04-01 regarding outgoing indigent
mail and the process of verifying that the mail is in fact legal mail. Plaintiff’s “Brief
Statement of the Problem” in his grievance states:
On 2-8-2013 C.T.O. V. Lynn informed me that because I am an
indigent inmate, I am required pursuant to policy to leave my
outgoing legal mail un-sealed, to enable the mailroom or her self,
to verify that it is legal mail. Or it will be sent back without
verification.
(Docket No. 56-4, Page 7.) The Court agrees with Defendants that this grievance was a
generalized attack on KSP Policy 14-04-01.3
III.

Defendants’ Argument Concerning Plaintiff’s Failure to Specifically Mention
Fisher or Caraway in the Grievance
Defendants argue that because Plaintiff’s grievance makes no mention of Fisher

or Caraway, Plaintiff failed to comply with CPP 14.6. CPP 14.6 requires inmates to
include “all aspects of the issue and identify all individuals in the ‘Brief Statement of
the Problem’ section of the written grievance so that all problems concerning the issue

2

With respect to this particular grievance, Defendants do not contest Plaintiff fulfilled the requirements in
the Kentucky Corrections Policies and Procedures (CPP) requiring an attempt to resolve the grievance
through informal means, a written request to the Grievance Coordinator for a hearing, an appeal to the
warden, and an appeal to the Commissioner of the Kentucky Department of Corrections.
3
The Court notes that at no point during Plaintiff’s extensive briefing, including filing multiple motions
to amend, did he claim that this grievance was anything other than an attack on KSP Policy 14-04-01 and
its application to him.

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or individuals may be dealt with during step 1.” (Docket No. 54-3.) However, despite
the fact there was no identification of the individuals involved—other than C.T.O. V.
Lynn who is not a party to this action—the prison addressed the grievance on the
merits, upholding the policy.
The Sixth Circuit addressed a similar scenario in Reed-Bey v. Pramstaller,
holding that “[w]hen prison officials decline to enforce their own procedural
requirements and opt to consider an otherwise-defaulted claim on the merits, so as a
general rule will we.” 603 F.3d 322, 325 (6th Cir. 2010). In Reed-Bey, a prisoner
injured his shoulder during a prison basketball game and filed a grievance complaining
about the lack of follow-up care for the injury. Id. at 323. The policy required that the
prisoner identify the “names of all those involved in the issue being grieved.” Id. at
324. However, despite the prisoner’s failure to specifically name those involved, the
prison addressed the grievance on the merits.

Id. at 324-25.

The Sixth Circuit

acknowledged that an inmate must “follow[] the ‘critical procedural rules’ of the
prison’s grievance process,” which the inmate there had failed to do by not naming all
the individuals involved as the relevant policy required. Id. at 324. But, the Sixth
Circuit found, “for reasons of their own, [prison officials] overlooked (or perhaps
forgave) this procedural failing and chose to address [the inmate’s] grievance on the
merits.” Id.
Therefore, the Sixth Circuit declined to enforce a procedural bar that prison
officials had not, concluding that the inmate properly exhausted his claim by proceeding
through a complete round of grievance procedures and receiving a response on the
merits at each step. Id. at 326. However, the facts in this case are arguably distinct
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from Reed-Bey because here the alleged actions of Defendants Fisher and Caraway had
not yet taken place at the time of the filing of the grievance. 4 Furthermore, Plaintiff’s
grievance specified an action separate and apart from any action by Fisher and
Caraway, which was not the case in Reed-Bey.
In any event, Plaintiff argues that CPP 14.6(II)(E)—which essentially bars the
filing of repetitious grievances during a six month period—would prohibit him from
subsequently filing another grievance alleging Fisher and Caraway verified and read his
legal mail for a period of six months following the filing of Grievance 13-02-018-G on
February 8, 2013.5 Defendants argue that even accepting that a grievance regarding
allegations that Fisher and Caraway read his legal mail would have been deemed
repetitious, it does not excuse Plaintiff’s failure to comply with the exhaustion
requirement under the PLRA by first filing a grievance alleging Fisher and/or Caraway
read his mail because exhaustion is required even if the prisoner believes “the procedure

4

Grievance 13-02-018-G was filed on February 8, 2013. With respect to Jamie Caraway, the alleged
reading of Plaintiff’s mail occurred on June 4, 2013. As to Amy Fisher, the alleged reading occurred on
May 7, 2013, and May 24, 2013. Thus, it appears it would have been impossible for Plaintiff to
specifically mention Fisher and/or Caraway in his grievance because their alleged actions would have not
yet occurred at the time of the filing of the grievance. Plaintiff also alleges Fisher read his motion to
amend at some unspecified date.
5
CPP 14.6(II)(E) states:
E. Repetitious Grievances
1. An inmate shall not regrieve an issue that has been personally grieved
within the past six (6) months.
2. If an inmate files a grievance that is essentially identical to a grievance of
another inmate that has been filed and processed through the grievance steps
within the past six (6) months, the Grievance Coordinator may provide the
grievant with a copy of the Commissioner’s previous decision instead of
allowing the repetitive grievance to proceed through the normal process. If
the grievant is not satisfied with the previous decision, he may appeal directly
to the Commissioner. The grievant shall have three (3) working days from
the date of the receipt of the Commissioner’s previous decision to file the
appeal.

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to be ineffectual or futile.” Napier v. Laurel County, 636 F.3d 218, 222 (6th Cir. 2011)
(quoting Pack v. Martin, 174 F. App’x. 256, 262 (6th Cir. 2006)).
The Court notes the question as to whether Plaintiff exhausted his administrative
remedies with respect to the individual claims against Defendants regarding his legal
mail would be a close call. This is because Reed-Bey is arguably distinguishable from
the case at hand—because the behavior of Fisher and Caraway occurred after the filing
of the grievance—and because on its face Napier would appear to require Plaintiff to
file a separate grievance, although it would be arguably “futile” based on CPP
14.6(II)(E). However, as will be discussed below, the Court need not decide this issue
because two of Plaintiff’s claims were not exhausted for separate reasons and the
remaining, exhausted claim involving verification of legal mail in the indigent inmate’s
presence has already been held by this Court to be Constitutional. (See, e.g., Docket
Nos. 47, 48.)
IV.

Plaintiff’s Claims and the PLRA
When reviewing Plaintiff’s lengthy and numerous briefings, it appears Plaintiff

was attempting to make three claims regarding his legal mail. These claims are: (1)
Plaintiff’s legal mail was verified pursuant to KSP Policy 14-04-01—the subject of
Plaintiff’s grievance; (2) Plaintiff’s legal mail was verified outside his presence; and (3)
Plaintiff’s legal mail was read. As the Court held above, Plaintiff’s Grievance 13-02018-G is a generalized attack on KSP Policy 14-04-01. This is significant with respect
to claim (3) because a generalized attack on KSP Policy 14-04-01 is distinct from a
claim that Defendants read, as opposed to verified, his legal mail. Additionally, the
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responses Plaintiff received through the grievance process are significant with respect to
claim (2) because they demonstrate the prison’s practice of requiring verification and
sealing of legal mail in an indigent inmate’s presence and the prison’s belief that the
verification of Plaintiff’s mail occurred in his presence. As will be discussed below, the
Court will hold claims (2) and (3) are separate from the one made in Grievance 13-02018-G for purposes of evaluating whether the requirement of exhaustion under the
PLRA has been met.
Inspection policies concerning outgoing mail must “‘further an important or
substantial government interest unrelated to the suppression of expression,’ and must
not limit First Amendment freedoms ‘greater than is necessary or essential to the
protection of the particular governmental interest involved.’”6 Bell-Bey, 87 F.3d at 838
(citing Procunier v. Martinez, 416 U.S. 396, 413 (1974)). However, this standard does
not require a “least restrictive alternative” analysis of the prison regulation. Id. When
previously ruling KSP Policy 14-04-01was Constitutional, the Court stated:
The Court finds that the KSP policy at issue here is similar to the
policy in Bell-Bey v. Williams, 87 F.3d 832 (6th Cir. 1996), in that
its aim is not to suppress free expression but to minimize postage
costs incurred by the prison. It also puts limitations on the prison
official’s inspection in that the policy explicitly prohibits the
prison official from reading or censuring the mail material. The
prison also requires the mail material to be read in the
inmate’s presence and permits the prisoner to seal the envelope
once the mail is inspected. Therefore, the policy itself does not
violate the First Amendment.

6

A different standard applies to the evaluation of regulations governing outgoing mail, as opposed to
incoming mail. See, e.g., Martucci v. Johnson, 944 F.2d 291, 296 (6th Cir. 1991).

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(Docket No. 47, Page 6) (emphasis added.) 7 Upon further review, the Court may have
erred in stating that the policy requires the mail material be read in the inmate’s
presence and permits the prisoner to seal the envelope once the mail is inspected.8 On
the face of the policy, neither is a requirement. The Court incorrectly confused the
requirements of the policy itself from the statements made by the prison during the
grievance procedure. During the grievance procedure Plaintiff received the following
responses to his grievance:
Ms. Lynn is correct. You are to present legal mail to unsealed
(only if you are indigent), she is to scan it, then you are to seal it
in her presence, hand it back to her, and she is to directly handdeliver it to the mailroom.
***
I have reviewed your grievance. As stated at all levels of the
grievance, inmates who are indigent in segregation shall present
the outgoing legal mail unsealed to their CTO. The CTO then
verifies that the materials are in fact legal mail. The mail is
7

The cases relied upon by Plaintiff are mainly concerned with the reading of legal mail and do not appear
to involve indigent inmates who are seeking postage from a prison. Admittedly, Plaintiff cites an
unpublished case that may shed some doubt on the constitutionality of a policy of verifying outgoing
legal mail for which an indigent inmate is requesting postage. Miller v. Jones, 483 F. App’x. 202 (6th
Cir. 2012) (unpublished case) (considering a claim involving reading of outgoing mail when an indigent
prisoner is involved). Miller involved a standing issue and contained some broad language in dicta that
could be construed as stating that a mere verification procedure would violate an indigent inmate’s First
Amendment rights. Id. However, this Court believes such a holding would be contrary to Sixth Circuit
published precedent and that prison systems have a substantial interest in conserving economic resources
by ensuring postage given to indigent inmates is in fact being used for legal mail.
In any event, the Court notes that Plaintiff never pleaded that he requested the
verification/reading of his mail take place in his presence, although it is not clear whether the statement in
Sallier that the opening of incoming legal mail outside a prisoner’s presence is constitutionally
concerning when there has been a request that it be verified/opened in their presence would apply in the
situation here involving an indigent prisoner who needs postage for outgoing legal mail. See Sallier v.
Brooks, 343 F.3d 868, 874 (6th Cir. 2003). The gist of Plaintiff’s claims has always been that he takes
issue with any verification/reading of his legal mail, without any indication he would prefer or asked for
it to be read in his presence.
8
The Court’s prior holding may have been too broad because the policy—on its face—does not appear to
require the mail to be read in the prisoner’s physical presence. While the Court declines to comment
determinatively on the issue because it is not before it, the Court notes that the lack of such a requirement
could be potentially constitutionally problematic under some circumstances. However, as discussed
below, assuming that Plaintiff is making a claim that mail was verified outside his physical presence, that
is a separate claim that would need to be separately grieved and administratively exhausted.

Page 10 of 18

then sealed in front of the inmate before being taken to the
mail room. If you will follow this procedure legal mail will be
sent. Since this is outlined in policy I concur with the facility on
this subject matter. No further response necessary.
(Docket No. 56-4, at 4, 7) (emphasis added.) As a result, it would have been clear that
the prison’s practice was to verify in the inmate’s presence and give an opportunity to
the inmate to seal the mail. If Plaintiff had experienced verification outside of his
presence, he should have raised that issue during the appeal process, particularly when
it became clear the prison believed verification occurred in his presence. Plaintiff also
could have filed a separate grievance on that issue if he subsequently experienced
verification outside his presence. Clearly, the prison’s denial of his grievance was
based in large part—if not primarily—on the notion the verification was occurring in
Plaintiff’s presence. As a result, a subsequent grievance would not have been deemed
repetitive under CPP 14.6. In any event, exhaustion is required even if the prisoner
believes “the procedure to be ineffectual or futile.” Napier v. Laurel County, 636 F.3d
218, 222 (6th Cir. 2011) (quoting Pack v. Martin, 174 F. App’x. 256, 262 (6th Cir.
2006)).
Accordingly, Plaintiff’s claims that Defendants verified legal mail outside his
presence and read his legal mail are distinct, separate claims which would need to be
administratively exhausted separately under the PLRA. The only claim that Plaintiff
properly exhausted is verification of his legal mail in his presence and with the
opportunity to seal the mail. As the Court previously stated, the application of the KSP
Policy with the verification taking place in Plaintiff’s presence and permitting either

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Plaintiff to seal the mail or it be sealed in front of him is Constitutional.9 As a result,
the Court will DISMISS all of Plaintiff’s claims regarding his legal mail10 requiring
postage because the verification procedure which takes place in his presence and
permits Plaintiff to either seal the mail or it to be sealed in front of him is Constitutional
and Plaintiff’s other claims were not exhausted.11 Because the Court finds that Plaintiff
Sublett failed to exhaust administrative remedies with respect to these claims, it need
not address Defendants’ alternative arguments that any review of mail was not a
violation of Plaintiff’s Constitutional Rights and they are entitled to qualified immunity.
Defendant Chris Wilson
Plaintiff claims that Defendant Chris Wilson failed to protect him. Specifically,
Plaintiff alleges on or about October 2012 he informed Wilson that a level five (5)
inmate who was in a white supremacist gang threatened to kill him with a “shank”
should he come out for recreation and that all Wilson did was inform his supervisor.
(Docket No. 59, at 3.) Plaintiff argues Wilson should have taken further action, such as
searching the inmate for weapons, placing him in protective custody, ensuring they did
not have recreation together, speaking with the inmate, and/or issuing a disciplinary
report.
9

Again, the Court notes that its apparent holding that the policy as a whole is Constitutional may have
been overly broad because on its face it does not appear to require verification in the prisoner’s presence
or the opportunity to seal the mail. However, since any potential error does not impact the Court’s
ultimate holding, the Court need not explore this issue further.
10
It appears in subsequent documents submitted to the Court, Plaintiff may be attempting to make
similar claims of reading/verifying legal mail against other Defendants. (See Docket No. 80.) To the
extent Plaintiff was making similar claims of reading/verifying his legal mail against other Defendants,
the Court would also dismiss those claims.
11
The Court notes Defendants Fisher, Caraway, and Wilson have filed a certification of why discovery
was not necessary before filing their pending motions for summary judgment. (Docket No. 57.) These
Defendants primarily rely on the PLRA and the requirement that a prisoner bringing an action with
respect to prison conditions under 42 U.S.C. § 1983 first exhaust his available administrative remedies.
The Court agrees that further discovery prior to the filing of these motions is unnecessary.

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Failure to Protect Claim - Exhaustion Under the PLRA

I.

Although different from the set of facts concerning Defendants Fisher and
Caraway, the same exhaustion of remedies requirement under the PLRA is applicable to
claims made against Chris Wilson. Jones, 549 U.S. 199, 211 (2007). The process for
filing a grievance is outlined in CPP 14.6. Plaintiff has not produced or alleged that he
submitted a grievance related to this particular incident or even one that generally
addressed officers failing to protect him. However, Plaintiff recently filed declarations
arguing: “Plaintiff[‘s] failure to protect claim is predicated on defendants failure to
provide protective custody which is a non-grievable issue” pursuant to CPP 10.2, 14.6,
and 18.15. (See Docket No. 81, 82.)
CPP 14.6 lists as a non-grievable issue: “Classification decision or appeal of a
classification decision including transfer denial, recommendation, or approval.”
(Docket No. 81-2, at 2.) CPP 18.5 states: “Inmates shall be placed in protective custody
status as the result of a decision by the Classification Committee.” (Docket No. 81-1, at
1.) Thus, it appears Plaintiff’s claim that Wilson failed to protect him, at least with
respect to the failure to place him in protective custody, was a non-grievable issue under
the CPP.
Defendants’ argue that Plaintiff’s contention that this was a non-grievable issue
contradicts Plaintiff’s earlier assertions that he did not necessarily want a change in his
cell assignment, but rather wanted protection. (Docket No. 84, at 1.) While Plaintiff
has not always been entirely clear on what basis he claims Defendants failed to protect
him, the Court has always understood at least one basis as being the failure to place him

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in protective custody—a classification decision under the CPP that is “non-grievable.”12
Therefore, the PLRA does not preclude this claim from proceeding.
However, to the extent Plaintiff makes failure to protect claims based on actions
other than the failure to place him in protective custody, the Court agrees with
Defendant that those claims were grievable as a “conditions-of-confinement.”
Accordingly, those claims were required to be exhausted under the PLRA. Plaintiff did
not exhaust those claims.

Therefore, the Court will GRANT in part Defendant

Wilson’s motion for summary judgment, as to the failure to protect claims based on
anything other than the failure to place Plaintiff in protective custody.
II.

Defendants’ Substantive Arguments Regarding the Failure to Protect Claim
Notwithstanding the Court’s holding that a claim based on a failure to place

Plaintiff in protective custody was non-grievable and therefore the PLRA exhaustion
requirements did not apply, 13 Defendants argue that claim should still be dismissed
because “inmates do not have a constitutional right to a particular security classification
or to be housed in a particular institution.” (Docket No. 84, at 2.) Defendants’ citations
for this proposition are not applicable.

Marksberry analyzed the collateral

consequences of being housed in segregation. Marksberry v. Chandler, 126 S.W.3d
747, 751 (Ky. Ct. App. 2003). Beard involved the reclassification of a prisoner from
minimum to medium security. Beard v. Livesay, 798 F.2d 874 (6th Cir. 1986). Neither
case involved an allegation that a failure to place a prisoner in protective custody
amounted to an Eighth Amendment violation because it was a failure to protect.
12

Defendants appear to concede that, assuming the Court finds Plaintiff has made a failure to protect
claim based on their refusal to put him in protective custody, such a claim was non-grievable under the
CPP. (Docket No. 84, at 1-2.)
13
Notably, Defendants appear to concede that this claim was non-grievable. (Docket No. 84, at 1-2.)

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A prison official's “deliberate indifference” to a substantial risk of serious harm
to an inmate violates the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 828-29
(1994). However, “prison officials who actually knew of a substantial risk to inmate
health or safety may be found free from liability if they responded reasonably to the risk
even if the harm ultimately was not averted. A prison official’s duty under the Eighth
Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for
prison officials’ ‘unenviable task of keeping dangerous men in safe custody under
humane conditions.’” Farmer v. Brennan, 511 U.S. 825, 844 (1994) (citations omitted).
Defendant Wilson argues he acted “reasonably” because he was (1) was without
authority to change Plaintiff’s cell assignment; and (2) informed his supervisors of
Plaintiff’s concerns and his request to be moved. However, no discovery has occurred
beyond that related to exhaustion of administrative remedies under the PLRA.
Accordingly, it would be premature to dismiss this claim without permitting it to
proceed for further development. Therefore, the Court will DENY in part Defendant
Chris Wilson’s motion for summary judgment and will let the claim against Defendant
Wilson for “failure to protect” Plaintiff based on the failure to place him in protective
custody proceed for further development. In permitting this claim to proceed, the Court
passes no judgment on the ultimate outcome of the action.
Defendants James Beavers, Duke Pettit, Daniel Smith, Garth Thompson, Bruce Von
Dwingelo, Randy White, and Earnest William
I.

Plaintiff’s Injunctive Relief Claim
Plaintiff requests injunctive relief regarding the enforcement of the KSP indigent

inmate legal mail policy, as well as relief regarding cell assignment at KSP. When the
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Complaint was filed, Plaintiff was incarcerated at KSP in Eddyville, Kentucky. Plaintiff
has since been transferred to Little Sandy Correctional complex in Sandy Hook,
Kentucky. (See Docket No. 50, Plaintiff’s Notice of Change of Address.) As a result of
this transfer to a different prison, Plaintiff’s claims for injunctive relief are moot. See
Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Kensu v. Haigh, 87 F.3d
172, 175 (6th Cir. 1996)). Accordingly, the Court will GRANT summary judgment to
Defendants on these claims.14
Exhaustion Under the PLRA and Plaintiff’s Failure to Protect Claim

II.

Plaintiff has not produced or alleged that he submitted a grievance claiming
Defendants failed to protect him. However, Plaintiff recently filed declarations arguing
that “Plaintiff[‘s] failure to protect claim is predicated on defendants failure to provide
protective custody which is a non-grievable issue” pursuant to CPP 10.2, 14.6, and
18.15. (See Docket No. 81, 82.) As discussed above, the Court agrees that it appears
Plaintiff would not have been able to grieve this issue under the CPP. Thus, it would
appear the exhaustion requirements of the PLRA would not apply to this particular
grievance.
Defendants argue that because Plaintiff admits any request for change in his cell
assignment was granted, any other failure to protect claim being made would be based
on “prison conditions” and, therefore, grievable. However, the Court finds that the
decision to place or not place a prisoner in “protective custody” would be classification
decision under the CPP. Accordingly, it is “non-grievable” and the PLRA will not bar
this claim from proceeding.
14

Plaintiff has conceded that his request for injunctive relief is moot. (Docket No. 82, at 1.)

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Distinct from Defendant Chris Wilson, these Defendants did not argue they are
entitled to summary judgment based on the merits of Plaintiff’s Eighth Amendment
claim. Instead, they relied completely on their argument that Plaintiff’s failure to
exhaust required dismissal. Having found that the exhaustion requirements of the
PLRA are not applicable because this was a non-grievable issue, the Court will DENY
Defendants’ Motion for Summary Judgment. 15
Plaintiff Damien A. Sublett’s Motion for Summary Judgment Against Defendants Amy
Fisher, Chris Wilson, and Jamie Caraway
With respect to the claims the Court granted Defendants’ summary judgment on,
the Court will DENY Plaintiff’s Motions for Summary Judgment for the same reasons.
With respect to the remaining failure to protect claims premised on Defendants’ failure
to place Plaintiff in protective custody, further discovery is necessary to determine
whether summary judgment is appropriate.

Therefore, the Court will also DENY

Plaintiff’s Motions for Summary Judgment on those claims.
CONCLUSION
For these reasons, and consistent with the Court’s conclusions above,
IT IS HEREBY ORDERED as follows:
(1)

IT IS HEREBY ORDERED that Defendants Jamie Caraway and
Amy Fisher’s motions for summary judgment, (Docket Nos. 54, 56),
are GRANTED.

15

As with Defendant Chris Wilson, the Court notes that any failure to protect claim based on anything
other than a failure to place Plaintiff in protective custody—a classification decision under the CPP—
would be grievable and barred under the PLRA.
As discussed above, to the extent Plaintiff was making any claims concerning reading or
verification of his legal mail against these Defendants, the Court will dismiss those claims for the same
reasons it dismissed those claims against Defendants Amy Fisher and Jamie Caraway.

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(2)

IT IS HEREBY ORDERED that Defendant Chris Wilson’s motion
for summary judgment, (Docket No. 55), is GRANTED in part and
DENIED in part. The only remaining claim against Defendant Chris
Wilson is the failure to protect claim premised on the failure to place
Plaintiff in protective custody.

(3)

IT IS HEREBY ORDERED that Defendants James Beavers, Duke
Pettit, Daniel Smith, Garth Thompson, Bruce Von Dwingelo, Randy
White and Earnest William’s motion for summary judgment, (Docket
No. 58), is GRANTED in part and DENIED in part. The only
remaining claim against these Defendants is the failure to protect claim
premised on the failure to place Plaintiff in protective custody.

(4)

IT IS HEREBY ORDERED that Plaintiff Damien A. Sublett’s
motions for summary judgment, (Docket Nos. 66, 82), are DENIED.

(5)

The only remaining claims in this action are the failure to protect
claims premised on the failure to place Plaintiff in protective custody
against Defendant Chris Wilson and Defendants James Beavers, Duke
Pettit, Daniel Smith, Garth Thompson, Bruce Von Dwingelo, Randy
White, and Earnest William.

IT IS SO ORDERED.

Date:
cc:

February 26, 2014

Counsel
Plaintiff Damien A. Sublett, pro se (#134575)
Little Sandy Correctional Complex
Route 5, Box 1000
Sandy Hook, KY 41171

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