Cox v. Von Dwingelo et al

Filing 28

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers denying 17 Plaintiff's Motion for Summary Judgment; denying 18 Plaintiff's Motion for Summary Judgment; and granting 19 Defendants' Motion for Summary Judgment. cc: Plaintiff, pro se; Counsel (RR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH

CLAUDE COX A/K/A CANDY LEE
v.

PLAINTIFF
CIVIL ACTION NO. 5:14-CV-212-GNS

BRUCE VON DWINGELO, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
These matters are before the Court upon two motions for summary judgment (DN 17 &
18) by Plaintiff, who is proceeding pro se, and a cross-motion for summary judgment (DN 19)
by Defendants. Fully briefed, these matters are ripe for decision. For the following reasons,
Plaintiff’s motions for summary judgment will be DENIED and Defendants’ cross-motion for
summary judgment will be GRANTED.
I. PROCEDURAL HISTORY
Plaintiff Claude Cox a/k/a Candy Lee was a prisoner at Kentucky State Penitentiary
(KSP) when he filed a civil-rights complaint under 42 U.S.C. § 1983 on November 25, 2014.1 In
his complaint, Plaintiff alleged that when he “checked into the whole” he told Defendants Von
Dwingelo, Peek, and Spendler that he needed to go “back up to protective custody and they
refused to grant me protective custody.” He further stated this his “life is in danger on this yard
and I told them five names of inmates were charging me yard taxes so I was actually forced to
check back into protective custody and they have refused it.” As relief, he asked for monetary
and punitive damages and an emergency transfer. Defendants filed a Motion to Dismiss (DN 13)
for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and it was denied by
Memorandum and Opinion (DN 21) of this Court on September 1, 2015.
1

Plaintiff was transferred to Green River Correctional Complex on September 24, 2015 (DN 24, Ex. A) but has
since returned to KSP (DN 27).

II. FACTS
Defendant Bruce Von Dwingelo is a unit administrator at KSP. In his affidavit, he states
that Plaintiff requested protective custody on October 18, 2014, because he was being pressured
to pay “yard tax” by five inmates (Defs.’ Br., Ex. C, Von Dwingelo Affidavit, p. 1). Plaintiff
gave Defendant Von Dwingelo the names of those five inmates. (Id.) In accordance with KSP
policy, Plaintiff was immediately placed in administrative segregation and isolated pending the
investigation of allegations and request. (Id.) The KSP Internal Affairs Department began their
investigation on October 20, 2014, and determined that it could not substantiate Plaintiff’s
allegations. (Id.) Based on this finding, on November 10, 2014, KSP’s Prison Classification
Committee determined that Plaintiff would not be assigned to protective custody at that time.
Plaintiff appealed the committee’s decision to the Warden’s Office. (Id.) The Warden’s Office
reviewed the Prison Classification Committee’s decision on November 30, 2014, and upheld
their recommendation based upon its finding that Plaintiff’s claims could not be established as
“credible or factual.” (Id.) Plaintiffs’ request for protective custody was then forwarded to the
Kentucky Department of Corrections’ (KDOC) Classification Committee. KDOC’s
Classification Committee upheld the decision of the KSP Classification Committee. (Id., p. 2).
After Plaintiff was released to the general population, Defendant Von Dwingelo saw Plaintiff in
the yard and asked him how he was doing. According to Defendant Von Dwingelo, Plaintiff told
him that he was “okay.” (Id.)
Plaintiff made two subsequent requests for protective custody at KSP – one on
December 3, 2014, and another on February 20, 2015 – after he filed his complaint. (Id., p. 2;
Defs.’ Br., Ex. B, Protective Custody Form). In Plaintiff’s December 3, 2014, request, he
reported that three inmates were pressuring him to buy commissary items and pay a “yard tax.”
(Id.) This request for protective custody followed a trajectory similar to his October 18, 2014,
2

request and the KDOC Classification Committee ultimately determined that Plaintiff should not
be placed in protective custody. Plaintiff was informed of this decision on January 9, 2015. (Id.)
On February 20, 2015, Plaintiff again requested protective custody stating that two
inmates were requiring him to pay a “yard tax.” During the investigation, one of the inmates was
transferred and Plaintiff stated that he was no longer having problems with the second. (Defs.’
Br., Ex. B., Protective Custody Form). On June 2, 2015, Plaintiff signed a form stating that he
had been offered protective custody but refused it. (Defs.’ Br., Ex. A, Protective Custody
Waiver).
On September 24, 2015, Plaintiff was transferred to Green River Correctional Complex
so that he could participate in its substance abuse program. (Defs.’ Reply, Ex. A, Miller
Affidavit). By letter filed on November 4, 2015, Plaintiff notified the Court that he had returned
to KSP. (DN 27, Notice of Change of Address).
III. LEGAL STANDARD
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U .S. 242,
247-48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
3

Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving party to present specific facts showing that a genuine factual issue exists 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). “The mere existence
of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient;
there must be evidence on which the jury could reasonably find for the [non-moving party].”
Anderson, 477 U.S. at 252.
IV. ANALYSIS
A. Plaintiff’s Motions for Summary Judgment
In his first motion for summary judgment, Plaintiff argues that summary judgment should
be granted to him because Defendants “have failed to reply to his last motion.” In his second
motion for summary judgment, he states that he is entitled to summary judgment because
Defendants have “not sent any discovery” and have denied him “all copies of documents and all
letters and depositions of all transcripts and any affidavits and declarations on dealing with this
civil rights case.” Plaintiff contends that Defendants’ failure to provide discovery violates Fed.
R. Civ. P. 56(f). The Court will consider each of these arguments in turn.
First, the Court can find no motion by Plaintiff in the record to which Defendants have
failed to respond. Second, if Plaintiff is actually referring to the fact that Defendants have not
yet filed an answer to his complaint, the Court notes that when Plaintiff filed his first motion for
summary judgment, Defendant’s motion to dismiss was pending. Because Defendants are not
required to file a responsive pleading while a motion to dismiss is pending, Plaintiff is not
entitled to summary judgment on this ground. See, e.g., Lauter v. Anoufrieva, 642 F. Supp. 2d
1060 (C. D. Cal. 2008); Rivera v. AuthorHouse, No. 3:07cv268, 2008 U.S. Dist. LEXIS 2164, at

4

*33-34 (N. D. Ind. Jan. 10, 2008). Thus, the Court will deny Plaintiff’s first motion for summary
judgment.
With regard to Plaintiff’s second motion for summary judgment, the Court first notes that
in its Scheduling Order (DN 7), entered on December 5, 2014, it required Defendants to produce
to Plaintiff “all records or documentation which are relevant to the claim(s) set forth in this
complaint and have survived initial review” by April 24, 2015, and to certify to the Court that
“production is complete.” In their response to this motion, Defendants state that Plaintiff has
not only not made any discovery requests but that Plaintiff already has copies of all documents
relevant to this action. Thus, the Court will deny Plaintiff’s second motion for granting summary
judgment because he has not set forth a basis for granting such – specifically, that is he entitled
to judgment as a matter of law. However, the Court will consider Plaintiff’s argument that he
has not received relevant discovery under Fed. R. Civ. P. 56(f) in its analysis of Defendants’
cross-motion for summary judgment.
B. Defendants’ Cross-Motion for Summary Judgment
In their cross-motion, Defendants argue that they are entitled to summary judgment
because Plaintiff has not shown that he suffered any harm as a result of Defendants’ decision not
to place him in protective custody after he told them that “his life [was] in danger” in the yard
and that five inmates were charging him “yard taxes.” Defendants also argue that they are
entitled to summary judgment because Plaintiff does not have a constitutional right to be placed
in protective custody and that Defendants are entitled to summary judgment based upon qualified
immunity. In addition, Defendants attach three exhibits to their motion for summary judgment
which establish how Defendants responded to Plaintiff’s request for protective custody.

5

In his response to Defendants’ motion for summary judgment, Plaintiff reiterates that his
life is in danger and asks the Court to grant him an emergency transfer.2 Plaintiff, however,
attaches no exhibits to his response.3 In their reply, Defendants state that Plaintiff’s claim for
injunctive relief in the form of an emergency transfer is moot because, on September 24, 2015,
Plaintiff was “transferred from the Kentucky State Penitentiary to the Green River Correctional
Complex, due to treatment needs that could be better met at that institution.” (DN 24, Def.’s
Reply, p. 1).4 Defendants also argue that Plaintiff’s demand for monetary damages must fail
because he has failed to show that he suffered actual harm.
The Court will first consider whether Plaintiff’s contention that Defendants have not
provided him with discovery precludes the Court from granting Defendants summary judgment
and then determine whether Defendants are entitled to summary judgment.
1. Plaintiff’s Fed. R. Civ. P. 56(f) Argument
As set forth above, Plaintiff contended, in his first motion for summary judgment
(DN 18), that Defendants have “not sent any discovery” and have denied him “all copies of
documents and all letters and depositions of all transcripts and any affidavits and declarations on
dealing with this civil rights case.” (Pl.’s Br., p. 1). In their response to that motion, Defendants
stated that Plaintiff has not only not made any discovery requests but that Plaintiff already has
copies of all documents relevant to this action.
Plaintiff’s argument is governed by the summary judgment standard set forth in Federal
Rule of Civil Procedure 56. Under Rule 56(b), “a party against whom relief is sought may move
2

Because Plaintiff failed to file a timely response to Defendants’ cross-motion for summary judgment, the Court
issued an Order on September 1, 2015, giving him 21 days to respond. On September 21, 2015, Plaintiff filed a
“Motion Concerning Legal Case Facts” (DN 23). The Court is construing this as Plaintiff’s response to Defendants’
cross-motion for summary judgment.
3
This argument is no longer pertinent since Plaintiff returned to KSP no later than October 30, 2015 (DN 27, Notice
of Change of Address).

6

at any time for summary judgment, with or without supporting affidavits, for summary judgment
on all or part of a claim.” Fed. R. Civ. P. 56(b). However, Rule 56(f), entitles the Court to deny
a motion for summary judgment or order a continuance to enable further discovery when “a
party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts
essential to justify its opposition.” Fed. R. Civ. P. 56(f).
Under this standard, Plaintiff’s motion regarding discovery does not preclude the Court
from granting summary judgment for Defendants because Plaintiff’s motion does not constitute
an affidavit, and, even if it did, the motion does not set forth the specific reasons that Plaintiff
cannot present facts essential to supporting its opposition to summary judgment. See, e.g., Short
v. Oaks Corr. Facility, 129 F. App’x 278, 281-82 (6th Cir. 2005) (applying Rule 56(f)
requirements to pro se plaintiff where no discovery had been conducted). In Caevic v. City of
Hazel Park, the Sixth Circuit held that a party’s Rule 56(f) affidavit must “indicate to the district
court its need for discovery [and] what material facts it hopes to uncover.” 226 F.3d 483, 488
(6th Cir. 2000) (emphasis added). The Sixth Circuit has held that “a district court acts well
within its discretion in denying a Rule 56(f) affidavit or motion when the document ‘lacks any
details or specificity.’” Farah v. Wellington, 295 F. App’x 743, 747 (6th Cir. 2008) (quoting
Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir. 2004)). Here, the Court finds that
Plaintiff has failed to point to any specific evidence that discovery could uncover which would
bear on Defendants’ entitlement to summary judgment.
2. Defendants Are Entitled to Judgment as a Matter of Law
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v.

7

Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for
vindicating federal rights, not a source of substantive rights itself, the first step in an action under
§ 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver, 510
U.S. 266, 271 (1994). The Court has construed Plaintiff’s allegations as a “failure to protect”
claim under the Eighth Amendment.
The Eighth Amendment requires prison officials to “take reasonable measures to
guarantee the safety of the inmates” in their care. Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(quoting Hudson v. Palmer, 468 U.S. 517, 526-527 (1984)). In order to establish liability under
the Eighth Amendment, Plaintiff must demonstrate that Defendants were deliberately indifferent
to “a substantial risk of serious harm.” Farmer, 511 U.S. at 828; Greene v. Bowles, 361 F.3d
290, 294 (6th Cir. 2004). “To demonstrate deliberate indifference, 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.’” Bowles,
361 F.3d at 294.
Here, the evidence shows that with regard to his request for protective custody on
October 18, 2014 – the handling of which he specifically objects to in his complaint - he was
placed in administrative segregation, in accordance with KSP policy, as soon as he notified KSP
officials that he sought protective custody. The evidence also shows that KSP Internal Affairs
Department then conducted a timely investigation into Plaintiff’s allegations regarding the five
named inmates who were supposedly charging him a “yard tax” and causing him to fear that his
life was in danger. Ultimately, the KSP Internal Affairs Department could not substantiate
Plaintiff’s allegations. Accordingly, the KSP Classification Committee determined that Plaintiff
should not be assigned to protective custody at that time. Plaintiff appealed this decision to both

8

the KSP Warden’s Office and KDOC Classification Committee – both determined that Plaintiff
should be released to the general population because his allegations could not be established as
“credible or factual.” In addition, there is no evidence that Plaintiff suffered harm as a result of
Defendants’ failure to place him in protective custody.
The evidence also shows that Defendants acted similarly when Plaintiff filed subsequent
requests for protective custody on December 3, 2014, and February 20, 2015. The evidence
further establishes that Plaintiff refused an offer of protective custody after he made a request for
such.
Based on the above, the Court concludes that there is no genuine dispute as to any
material fact and holds that Defendants are entitled to judgment as a matter of law. Plaintiff has
failed to establish either the objective or subjective element required to succeed on an Eighth
Amendment claim. He has not established that he was “incarcerated under conditions posing a
substantial risk of serious harm,” Farmer v. Brennan, 511 U.S. at 834, or that Defendants were
deliberately indifferent to his safety. Id. Rather, the evidence submitted by Defendants shows
that officials acted reasonably when informed by Plaintiff about his fear of possible harm and did
not disregard a risk to Plaintiff’s life “by failing to take reasonable measures to abate it.” Id. at
858.
Thus, the Court will grant Defendants’ cross-motion for summary judgment.

9

V. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motions for
summary judgment (DN 17 & 18) are DENIED and Defendants’ cross-motion for summary
judgment is (DN 19) GRANTED.
Date:

cc:

February 4, 2016

Greg N. Stivers, Judge
United States District Court

Plaintiff, pro se
Counsel of Record

4416.011

10