Eddins v. Powell et al
Filing
51
MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 5/1/2019; re 49 MOTION for Summary Judgment filed by Kevin Horton, Molly Niemi, Carie Powell. A separate order and judgment shall enter. cc:counsel, plaintiff pro se (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
CIVIL ACTION NO. 5:17-CV-40-TBR
ANTHONY ANTONIO EDDINS
PLAINTIFF
v.
CARRIE POWELL, MOLLY NIEMI,
AND KEVIN HORTON
MEMORANDUM OPINION
DEFENDANTS
This matter is before the Court On motion by Defendants, Carrie Powell, Molly Niemi, and
Kevin Horton, for summary judgment. (R. 49). Plaintiff, Anthony Antonio Eddins, has not
responded and the time to do so has passed. This matter is ripe for review, and for the following
reasons, Defendants’ motion for summary judgment is GRANTED.
BACKGROUND
Plaintiff Eddins brings this action concerning his previous incarceration at Fulton County
Detention Center (“FCDC”) pursuant to 42 U.S.C. § 1983. Plaintiff claims that his constitutional
rights were violated when FCDC employees failed to perform their supervisory duties. More
specifically, Plaintiff alleges that FCDC employees allowed other inmates to assault him and failed
to provide a safe and secure monitored environment.
Plaintiff claims that he was assaulted by other inmates on March 3, 2017. (R. 10). Plaintiff
further alleges that it was Kevin Horton’s responsibility to do hourly safety checks during the time
period the assault occurred, that it was Molly Niemi’s responsibility to make sure Horton
performed his checks, and that it was Carrie Powell’s duty to ensure that Niemi fulfills her
responsibilities. (Id.) Plaintiff claims that:
finally around 2:00 am deputy [Horton] finally arrived to do a safety check finding
3 assaulted inmates, very destraut, brusied, and bleeding after being removed from
the cell we where placed in the hall way by deputy [Horton] until the supervisor Ms
Niemi arrived. When Ms. Niemi arrived she tried to force us into the joining cell
#205. We refused to go and where threatened with being placed in isolation until
we started complaining about our injuries ounce shift supervisor Niemi realized
that inmate Allen was bleeding from an open wond above his eye, we was taken off
the 200 block to the deputy station between 100 block and 200 block where our
injuries where photo graphed on deputy [Horton’s] body camera. They took inmate
Allen to the hospital and when I asked for medical assistance they refused to take
me to the hospital with inmate Allen (I also feel that my constitutional rights where
violated for failer to receive adaguate medical attention (which is directly both
deputy [Horton] and also shift supervisor Niemi fault). . . .
(Id.). Plaintiff alleges that Defendants did not provide him with medical attention or investigate
the incident. (Id.).
FCDC policy provides inmates with an internal administrative grievance process. (R. 4913). The policy provides:
Any inmate shall be allowed to file a grievance at such time as the inmate believes
he or she has been subject to abuse, harassment, abridgement of civil rights, or
denied privileges specified in the posted rules (Grievance must be restricted to
incidents which occur while the prisoner is in the custody of the facility). No
prisoner shall fear against reprisal for initiating grievance procedures in an attempt
to resolve legitimate complaints.
(R. 49-13 at 1). The FCDC policy and procedures also provide rules for how a grievance must be
made, grievance content requirements, and provides for an internal administrative appeals process.
(Id.). Plaintiff signed his civil complaint on March 9, 2017. Plaintiff alleges that he filed grievances
on March 4 and March 9, 2017. (R. 10 at 7). There is no evidence on the record that Plaintiff
completed FCDC’s internal administrative appeals process.
Defendants filed their motion for summary judgment on October 12, 2018. (R. 49). On
March 19, 2019, this Court issued an order pursuant to United States v. Ninety-Three Firearms,
330 F.3d 414 (6th Cir. 2003) providing Plaintiff with guidance in responding to a motion for
summary judgment under Rule 56 of the Federal Rules of Civil Procedure and granted Plaintiff an
additional thirty days to respond. Those thirty days have now passed and Plaintiff has chosen not
to respond.
STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the
movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986). The Court “may not make credibility determinations nor weigh the
evidence when determining whether an issue of fact remains for trial.” Laster v. City of Kalamazoo,
746 F.3d 714, 726 (6th Cir. 2014) (citing Logan v. Denny’s, Inc., 259 F.3d 558, 556 (6th Cir.
2001); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Back v. Nestle USA, Inc., 694 F. 3d 571,
575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251-52).
As the party moving for summary judgment, Defendants must shoulder the burden of
showing the absence of a genuine dispute of material fact, as to at least one essential element of
Plaintiff’s claim. Fed. R. Civ. P. 56(c); see Laster, 746 F.3d at 726 (citing Celotex Corp. v. Catrett,
477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). If Defendants satisfy their burden
of production, Plaintiff “must—by deposition, answers to interrogatories, affidavits, and
admissions on file—show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at
726 (citing Celotex Corp., 477 U.S. at 324). Although Plaintiff has not opposed the motion for
summary judgment, a verified complaint “carries the same weight as would an affidavit for the
purposes of summary judgment.” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008).
DISCUSSION
Plaintiff has not responded to Defendants’ motion for summary judgment and the time to
do so has passed. In fact, the Court issued an order explaining the consequences of failure to
respond to the motion and providing Plaintiff with guidance on how to respond. (R. 50).
Furthermore, the Court granted Plaintiff additional time to respond to Defendants’ motion for
summary judgment. (Id.). Even after being warned and granted additional time, Plaintiff has
chosen not to respond to the motion for summary judgment. Pursuant to Joint Local Rule of Civil
Practice 7.1(c), “[f]ailure to timely respond to a motion may be grounds for granting the motion.”
See also Humphrey v. U.S. Attorney General’s Office, 279 F. App’x 328, 331 (6th Cir. 2008)
(recognizing that a party’s lack of response to a motion or argument therein is grounds for the
district court’s grant of an unopposed motion to dismiss and noting that “if a plaintiff fails to
respond or to otherwise oppose a defendant’s motion, then the district court may deem the plaintiff
to have waived opposition to the motion”); Paulmann v. Hodgdon Powder Co., Inc., No. 3:13-CV0021-CRS-DW, 2014 WL 4102354, *1-2 (W.D. Ky. Aug. 18, 2014) (holding that plaintiffs failure
to respond or otherwise oppose defendant’s motion to dismiss established that the plaintiff had
waived opposition to the motion). Because Plaintiff has failed to oppose Defendants’ motion for
summary judgment, he waives opposition to the motion.
Nevertheless, the Court must determine whether Defendants have satisfied their burden
under Federal Rule of Civil Procedure 56, which requires the moving party to demonstrate that
there is no genuine dispute of material fact and that the moving party is therefore entitled to
judgment as a matter of law. See Miller v. Shore Fin. Servs., Inc., 141 Fed. App’x 417, 419 (6th
Cir. 2005). Defendants have informed the Court that there is no genuine dispute of material fact
regarding whether Plaintiff completed the jail’s internal grievance procedure—including
appeals—prior to filing his complaint with this Court. (R. 49-1 at 9). 42 U.S.C. § 1997e(a) provides
that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” Proper exhaustion requires the
exhaustion of available intermediate reviewing authority and final administrative review
procedures. See Booth v. Churner, 532 U.S. 731, 734-35 (2001). FCDC’s grievance procedures
state that:
If not satisfied with the disposition of the grievance by the Jailer, the inmate shall
be furnished paper, pencil, and an envelope in order to set forth his grievance in
writing and his objection to the disposition of the grievance. The inmate’s appeal
letter will then be forwarded to the Department of Corrections.
(R. 49-13 at 2). Plaintiff must have completed this administrative appeal process prior to filing his
civil suit to comply with the PLRA. It is undisputed from the record that Plaintiff filed his civil
action before completing FCDC’s administrative appeals procedure.
Because Defendants have cited to specific evidence on the record indicating that there are
no disputed facts regarding whether the Prison Litigation Reform Act’s (“PLRA”) exhaustion
requirement, Plaintiff “may not ‘rely on the hope that the trier of fact will disbelieve the movant’s
denial of a disputed fact’ but must make an affirmative showing with proper evidence in order to
defeat the motion.” Alexander v. Caresource, 576 F.3de 551, 558 (6th Cir. 2009) (quoting Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). Plaintiff has offered no evidence—
such as affidavits, depositions, answers to interrogatories, or statements made in his verified
complaint—to counter Defendants’ well supported motion for summary judgment on this issue.
Even if contradictory evidence were on the record, it is Plaintiff’s burden to identify it. Rutherford
v. Lake Michigan Contractors, Inc., 28 Fed. Appx 395, 399-400 (6th Cir. 2001) (“The nonmoving
party has the burden of directing the Court’s attention to specific portions of the record upon which
it seeks to rely to create a genuine issue of material fact.”) (citing In re Morris, 260 F.3d 654, 655
(6th Cir. 2001)). Because Plaintiff has not identified any such evidence, Defendants are entitled to
summary judgment.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED. The Court
will enter a separate Order and Judgment consistent with this Memorandum Opinion.
May 1, 2019
cc:
Counsel of Record.
cc:
Anthony Antonio Eddins, Pro Se
217288
Kentucky State Penitentiary
Eddyville, KY 42038
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