Sublett v. McAlister

Filing 59

OPINION & ORDER by Senior Judge Thomas B. Russell on 11/5/2018. re 54 MOTION for Summary Judgment filed by Timothy Grimes. Defendant, Timothy Grimes, is hereby granted leave to supplement his Motion forSummary Judgment (R. 54) with p roper authentication of Exhibit 3 attached to the Defendants' Response to Motion to Supplement Complaint filed on May 5, 2017 (R. 16-3). Defendant, shall have twenty-one (21) days from the date of this Opinion and Order to furnish the authenti cation. Plaintiff, DamienSublett, shall have twenty-one (21) days thereafter to respond.If no such authentication is timely submitted, the Court shall rule on the Defendant's Motion for Summary Judgment (R. 54) as it is before Court.cc:counsel, plaintiff pro se (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:16-CV-00138-TBR

DAMIEN ANTHONY SUBLETT,

PLAINTIFF

V
MIKE McALISTER et al.,

DEFENDANT

OPINION AND ORDER
This matter comes before the Court on Defendant’s, Timothy Grimes, Motion for
Summary Judgment (R. 54). Plaintiff, Damien Anthony Sublett, has responded. (R. 56). Before
the Court decides this matter, it grants Grimes leave to properly support his Motion for Summary
Judgment pursuant to Federal Rule of Civil Procedure 56(e)(1).

Background
In April of 2017, Damien Sublett, an inmate at the Kentucky State Penitentiary,
supplemented an existing complaint against Corrections Officer, Mike McAlister, to add a First
Amendment retaliation claim against Timothy Grimes, Corrections Captain at Kentucky State
Penitentiary. In his Supplemental Complaint (R. 13), Sublett alleges that Grimes retaliated
against him by filing a false disciplinary report in response to Sublett filing a verbal grievance
with his Unit Administrator, Jacob Bruce. (R. 13). Grimes contends Sublett was disciplined for
filing a frivolous Prison Rape Elimination Act (PREA) claim—not a verbal grievance. (R. 54-1
ID # 371). Grimes now moves the Court for summary judgment, asserting that Sublett’s
retaliation claim must fail because Sublett was not engaged in constitutionally protected conduct

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when filling the frivolous claim. (R. 54-1 ID # 377-380).

Discussion
Grimes’s fails to properly support a fact material to his position. Grimes takes the
position that Sublett’s retaliation claims fails because he was not engaged in constitutionally
protected conduct when filing a frivolous PREA complaint. (R. 54-1 ID # 377-380). While filing
prison grievances constitutes constitutionally protected conduct, filing frivolous PREA claims
does not. Sublett v. Bryant, Civil Action No. 15-016-JMH, 2015 U.S. Dist. LEXIS 65779, at *9
(E.D. Ky. May 20, 2015) (citing Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (“The
filing of non-frivolous grievances is protected conduct under the First Amendment.)); Sublett v.
Bryant, Civil Action No. 15-016-JMH, 2016 U.S. Dist. LEXIS 81043, at *9 (E.D. Ky. June 22,
2016) (quoting Lewis v. Casey, 518 U.S. 343, 353, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996)
(“Depriving someone of a frivolous claim . . . deprives him of nothing at all, except perhaps the
punishment of Federal Rule of Civil Procedure 11 sanctions.”)). To prove Sublett filed a PREA
claim instead of making a verbal grievance, Grimes points to Exhibit 3 attached to his Response
to Sublett’s Supplemental Complaint filed on May 5, 2017. (R. 54-1 ID # 379). Exhibit 3 appears
to be an appeal from Sublett’s Kentucky State Penitentiary disciplinary proceedings. (R. 16-3 ID
# 117). In the appeal, Sublett admits to filling a PREA complaint—not making a verbal
grievance (R. 16-3 ID # 117).
However, the Court may not consider Exhibit 3. Grimes does not properly authenticate
the document; the document is not certified to be authentic and Grimes offers no affidavits to
prove as much. “The failure to authenticate a document properly precludes its consideration on a
motion for summary judgment.” Robinson v. Bodoff, 355 F. Supp. 2d 578, 582 (D. Mass. 2005);

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accord, Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993) (noting that unauthenticated prison
records were precluded from consideration during summary judgment because they failed to
meet the requirements of Federal Rule of Civil Procedure 56). Therefore, this Court cannot take
Exhibit 3 into account while considering Grimes’s Motion for Summary Judgment.
But pursuant to Rule 56(e)(1), at the summary judgment stage, the Court may grant a
party the opportunity to properly support or address a fact when that party has otherwise failed to
do so. Fed. R. Civ. P. 56(e)(1). Leese v. Martin, No. 11-5091 (JBS/AMD), 2013 U.S. Dist.
LEXIS 140566, at *40 (D.N.J. Sep. 30, 2013); accord, Mulrooney v. Corp. Serv. Co., Civil
Action No. 12-163-SLR-CJB, 2013 U.S. Dist. LEXIS 42876, at *53 (D. Del. Mar. 27, 2013)
(compiling cases in which, pursuant to Rule 56, other district courts have granted a party the
opportunity to support or address a fact when that party has failed to do so). The Court concludes
that justice so dictates granting such an opportunity here. Therefore, the Court grants Grimes
leave to supplement his Motion for Summary Judgment to properly authenticate Exhibit 3.

Conclusion
Defendant, Timothy Grimes, is hereby granted leave to supplement his Motion for
Summary Judgment (R. 54) with proper authentication of Exhibit 3 attached to the Defendants’
Response to Motion to Supplement Complaint filed on May 5, 2017 (R. 16-3).
Defendant, Timothy Grimes shall have twenty-one (21) days from the date of this
Opinion and Order to furnish the authentication.
If Defendant, Timothy Grimes, timely submits such authentication, Plaintiff, Damien
Sublett, shall have twenty-one (21) days thereafter to respond.
If no such authentication is timely submitted, the Court shall rule on the Defendant’s

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Motion for Summary Judgment (R. 54) as it is before Court.
IT IS SO ORDERED.

November 5, 2018

cc. Damien Sublett
134575
LITTLE SANDY CORRECTIONAL COMPLEX
505 Prison Connector
Sandy Hook, KY 41171
PRO SE

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