Jones v. Whaley et al

Filing 15

MEMORANDUM AND ORDER Signed by District Judge Harry S Mattice, Jr on 3/20/15. (mailed to Timothy Jones)(GRE, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at GREENEVILLE
TIMOTHY W. JONES,
Plaintiff,
v.
HAYDEN WHALEY and DON PARTON,
Defendants.

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Case No. 3:13-CV-327
Judge Mattice
Magistrate Judge Lee

MEMORANDUM AND ORDER
This is a pro se prisoner’s civil rights complaint under 42 U.S.C. § 1983. Before
the Court is defendants’ unopposed motion for summary judgment. As plaintiff has not
filed a response to the motion for summary judgment, the Court deems plaintiff has
waived his opposition to the dispositive motion. Elmore v. Evans, 449 F. Supp. 2, 3
(E.D. Tenn. 1976), aff’d mem. 577 F.2d 740 (6th Cir. 1978); E.D. TN. LR 7.2. For the
following reasons, the motion for summary judgment will be GRANTED IN PART as
to defendant Parton and defendant Parton will be DISMISSED as a defendant. The
motion for summary judgment will be DENIED IN PART as to defendant Whaley.
Defendant Whaley’s motion for summary judgment based upon the assertion that
plaintiff has not fully exhausted his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”) will be DENIED WITHOUT PREJUDICE.
I.

BACKGROUND
Plaintiff filed this lawsuit as an inmate at Sevier County Jail in Sevierville,

Tennessee (Doc. 1, p. 1, 3). The remaining defendants are corrections officer Hayden
Whaley and Captain Don Parton (Doc. 1 p. 1, 3; Doc. 14). In his complaint, plaintiff

alleges that on May 4, 2013, four inmates assaulted him in the shower in the annex jail
after defendant Whaley gave another inmate “the go ahead” (Doc. 1 p. 3). Plaintiff
asserts that after the assault, he showed defendant Whaley his face and that defendant
Whaley said he “knew what happen[e]d [and] did[] [not] care” (Id. at 4). Plaintiff states
that he later notified defendant Parton that he wanted to press charges against
defendant Whaley, and defendant Parton responded “oh well” (Id.).
Plaintiff states that he was later moved to the county jail, where he was put in a
holding cell for sixteen hours with no mat or blanket (Id. at 4–5). Plaintiff states that on
May 10, he was moved to “max” while other unnamed inmates, presumably those he
alleges assaulted him, went to general population, and that he still got his hour out but
could not use the phone (Id. at 5). Plaintiff further alleges that inmate Philip Wright told
plaintiff that defendant Whaley paid Wright in tobacco for “hits on people he did[] [not]
like or want in the pod” (Id.). Plaintiff acknowledges that Sevier County Jail has a
grievance procedure and that he did not use it, explaining that he “told [corrections
officers] to give [him] a grievance several times just never got one” (Doc. 1 p. 2).
II.

SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall

grant summary judgment if 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.” In ruling on a
motion for summary judgment, the court must draw all reasonable inferences in favor of
the nonmoving party. McLean v. 988011 Ontario Ltd, 224 F.3d 797, 800 (6th Cir.
2000). Summary judgment is proper if the evidence, taken in the light most favorable to
the nonmoving party, shows that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law.” Hartman v. Great Seneca
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Fin. Corp., 569 F.3d 606, 611 (6th Cir. 2009) (internal quotation marks omitted). The
moving party has the burden of conclusively showing the lack of any genuine issue of
material fact. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979).
Summary judgment is an integral tool for securing the “just, speedy[,] and
inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986). The moving party is entitled to judgment as a matter of law “against a party who
fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of truth at trial.” Id. at
322.
III.

ANALYSIS
A. Defendant Parton
Defendant Parton alleges that he is entitled to judgment as a matter of law on the

basis that he cannot be held liable for plaintiff’s claims under a theory of “supervisory
liability” (Doc. 12 p. 8). Plaintiff’s only direct factual assertion as to defendant Parton is
that he notified defendant Parton that he wanted to press charges against defendant
Whaley, and defendant Parton responded “oh well” (Doc. 1 p. 4). In order to state a
claim under 42 U.S.C. § 1983, a plaintiff must allege that he was deprived of a federal
right by a person acting under color of state law. Wolutsky v. Huhn, 960 F. 2d 1331,
1335 (6th Cir. 1992). See also Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir.
1990) (stating that “Section 1983 does not itself create any constitutional rights; it
creates a right of action for the vindication of constitutional guarantees found
elsewhere”). Plaintiff’s assertion that defendant Parton was unmoved by plaintiff’s
potential pursuit of legal action against defendant Whaley fails to state a claim under §
1983.
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As there are no other factual allegations directed against defendant Parton in the
complaint, it appears that plaintiff is attempting to hold defendant Parton liable for the
remaining acts and omissions in the complaint based upon a theory of supervisory
liability. In a suit brought under § 1983, liability cannot be imposed solely on the basis
of respondeat superior. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Rather, plaintiff must allege a defendant
official was personally involved in the unconstitutional activity of a subordinate in order
to state a claim against that defendant. Dunn v. State of Tennessee, 697 F.2d 121, 128
(6th Cir. 1982). “[L]iability cannot be based solely on the right to control employees.”
Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989). Likewise, a
supervisor cannot be held liable for a mere failure to act. Greene v. Barber, 310 F.3d
889, 899 (6th Cir. 2002) (stating that “[s]upervisory liability under § 1983 does not
attach when it is premised on a mere failure to act; it ‘must be based on active
unconstitutional behavior’” (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.
1999)). See also Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (holding that
supervisory personnel’s knowledge of and failure to respond to a prisoner’s grievance
and allegations of impropriety were insufficient to impose liability on supervisory
personnel under § 1983).
Accordingly, defendant Parton is entitled to judgment as a matter of law on all
claims set forth in the complaint.
B. Exhaustion of Remedies
Defendant Whaley first alleges that he is entitled to judgment as a matter of law
due to the fact that plaintiff did not utilize the prisoner grievance procedure at Sevier
County Jail. Under the PLRA, a prisoner must exhaust all available administrative
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remedies prior to bringing a civil rights action pursuant to 42 U.S.C. § 1983. 42 U.S.C. §
1997e. Failure to exhaust administrative remedies is an affirmative defense which
defendants must raise and prove. Bruce v. Corr. Med. Servs., Inc., 389 Fed. App’x 462,
467 (2010). “Summary judgment is appropriate only if defendants establish the absence
of a ‘genuine issue of material fact’ regarding non-exhaustion.” Risher v. Lappin, 639
F.3d 236, 240 (6th Cir. 2010). An administrative remedy is not “available” for purposes
of § 1997e where a plaintiff makes affirmative efforts to comply with the administrative
procedure and prison officials improperly prevent him from using it. Brock v. Kenton
Cnty., 93 Fed. App’x 793, 798 (6th Cir. 2004).
Defendant Whaley has not established the absence of a genuine issue of material
fact as to whether plaintiff exhausted his administrative remedies. Plaintiff alleges that
he “told [corrections officers] to give [him] a grievance several times just never got one”
(Doc. 1 p. 2).1 Defendant Whaley has not set forth any proof regarding the availability of
the grievance procedure at Sevier County. Accordingly, the Court is unable to determine
whether plaintiff’s requests for grievances from corrections officers were sufficient
affirmative efforts to pursue the grievance process under the circumstances or whether
the officers’ acts of ignoring plaintiff’s requests would “‘deter a person of ordinary
firmness from’” completing the grievance process. Risher, 639 F.3d at 240;
Himmelreich v. Fed. Bureau of Prisions, 766 F.3d 576 (6th Cir. 2014). See also Surles v.
Andison, 678 F.3d 452, 457 (6th Cir. 2012) (finding that where plaintiff alleged that he
had attempted to file grievances and a prison official refused to file or process those
grievances and defendants presented no contrary proof, defendants had not met their
1

Plaintiff also states that he wrote and signed “statements” against defendant Whaley and a
person named Murphy, but that a chief told him that he “[cannot] sign one on everybody” (Doc. 1 p. 1–2,
4, 5). Defendants have not addressed these assertions, and the nature and purpose of these alleged
“statements” are unclear.
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burden of production and persuasion on this issue for purposes of summary judgment).
As such, defendant Whaley is not entitled to summary judgment on this issue at this
time.
C. Qualified Immunity
Defendant Whaley next alleges that he is entitled to judgment as a matter of law
under the doctrine of qualified immunity. Qualified immunity shields government
officials performing discretionary functions “from civil damages liability as long as their
actions could have reasonably been thought consistent with the rights they are alleged to
have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). In order to evaluate
whether an officer is entitled to qualified immunity, courts generally perform a two-step
inquiry. Saucier v. Katz, 533 U.S. 194, 201–02 (2001).2 First, the court determines
whether the facts alleged by plaintiff “show the officer’s conduct violated a constitutional
right.” Id. at 201. If plaintiff’s factual allegations are insufficient to establish violation of
any constitutional right, the court need not inquire further. Id. If plaintiff does allege a
constitutional violation, the court next determines whether that the right allegedly
violated was clearly established. Id. The relevant question for the Court regarding
whether the right was clearly established is not the subjective intent of the defendant,
but whether a reasonable officer would have believed the defendant’s conduct to be
lawful, in light of the clearly established law and information possessed by the
defendant. Anderson, 43 U.S. at 641.

2
While the Court notes that the Supreme Court has held that the two-step sequence set forth in
Saucier “should not be regarded as an inflexible requirement” and that courts are not required to first
determine whether the facts plaintiff alleges establish a violation of a constitutional right, Pearson v.
Callahan, 555 U.S. 223, 236 (2009), the Court finds that addressing both elements is appropriate here.

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The Cruel and Unusual Punishment provision of the Eighth Amendment3
protects prisoners from the infliction of “unnecessary and wanton infliction of pain.”
Whitley v. Albers, 475 U.S. 312, 319 (1986). When prison officials are accused of using
excessive force, “the core judicial inquiry . . . [is] whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).
Drawing all reasonable inferences in favor of plaintiff, the complaint alleges that
defendant Whaley maliciously directed or, at a minimum, authorized inmates to assault
plaintiff due to the fact that defendant Whaley did not like plaintiff and/or did not want
him in his pod. Accepting these factual allegations as true, no reasonable officer would
believe that defendant Whaley’s alleged conduct was lawful under the circumstances.
Accordingly, plaintiff has sufficiently alleged that defendant Whaley violated his Eighth
Amendment right, and defendant Whaley is not entitled to qualified immunity.4
D.

CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment (Doc. 12)

will be GRANTED IN PART as to defendant Parton and defendant Parton will be
DISMISSED as a defendant. The motion for summary judgment (Doc. 12) will be
DENIED IN PART as to defendant Whaley. Defendant Whaley’s motion for summary
judgment based upon the assertion that plaintiff has not fully exhausted his
3

Defendants analyzed plaintiff’s excessive force claim pursuant to the Eighth Amendment, and
plaintiff did not file any response. While a pretrial detainee is protected from excessive force through the
Due Process clauses of the Fourteenth Amendment, the Eighth Amendment provides a convicted
prisoner with the same protection. Claims of excessive force under both these Amendments “are
analyzed under the same rubric.” Villegas v. Metro. Gov’t of Nashville, 709 F. 3d 563, 568 (6th Cir. 2013).
4
Defendant Whaley also seeks summary judgment on any remaining claims (Doc. 12 p. 14). As
the Court finds that the complaint does not set forth any other claims “showing that [plaintiff] is entitled to
relief against either defendant” pursuant to Rule 8 (a)(2) of the Federal Rules of Civil Procedure, this
argument is moot.

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administrative remedies as required by the PLRA will be DENIED WITHOUT
PREJUDICE.
A separate judgment will enter.
SO ORDERED.
/s/ Harry S. Mattice, Jr._______
HARRY S. MATTICE, JR.
UNITED STATES DISTRICT JUDGE

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