Rivers v. Karpells et al
REPORT AND RECOMMENDATION re 74 Motion to Dismiss. It is recommended that Defendants' motion be granted. Signed by Magistrate Judge John S. Bryant on 2/23/2015. (xc: Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.) (ds)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
STERLING R. RIVERS,
EDWARD KARPELLS, et al.,
THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Henson, Steely, Warren, Weikal, White, Wright, and the Metropolitan
Government have filed their motion to dismiss the claims against
them based upon Plaintiff’s failure to exhaust administrative
remedies, failure to state a claim upon which relief can be
granted, and qualified immunity (Docket Entry No. 74). Plaintiff
Rivers has not responded in opposition.
For the reasons stated below, the undersigned Magistrate
complaint against them dismissed.
STATEMENT OF THE CASE
Plaintiff Sterling Rivers, a prisoner proceeding pro se
and in forma pauperis, has filed this civil rights action alleging
that the individual Defendants and their employer, Davidson County
Sheriff’s Office (“DCSO”), have violated his constitutional rights
in multiple ways while he was confined in the custody of the DCSO
in Nashville, Tennessee.
Defendants have filed this motion to dismiss.
SUMMARY OF PERTINENT ALLEGATIONS IN THE COMPLAINT
In his 70-page complaint (Docket Entries Nos. 1 and 1-1),
Plaintiff Rivers alleges a multitude of wrongful acts by Defendant
from December 2011 through April 2012, including but not limited
to, use of excessive force against him on December 17, 2011, and
April 21, 2012. The factual allegations in the complaint have
previously been summarized by the Court (Docket Entry No. 15 at 14).
STANDARD OF REVIEW
Although Defendants have entitled their motion as a
motion to dismiss, they have filed matters outside the pleadings in
the declaration of Tom Davis (Docket Entry No. 76). Therefore, as
provided in Rule 12(d) of the Federal Rules of Civil Procedure,
Defendants’ motion must be treated as a motion for summary judgment
under Rule 56.
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914
(6th Cir. 2000). The moving party bears the initial burden of
satisfying the court that the standards of Rule 56 have been met.
See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any
genuine dispute of material fact. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary
judgment is inappropriate.
judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.
party does not so respond, summary judgment will be entered if
appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of
providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party
shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in its favor. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving Defendants argue that the claims against them
must be dismissed based upon several different defenses. First,
Defendants state that many of Plaintiff Rivers’s claims are subject
to dismissal for his failure to exhaust administrative remedies.
The Supreme Court has held that no unexhausted claim by a prisoner
may be considered by the courts, and that proper exhaustion of a
claim requires that prisoners must complete the administrative
review process in accordance with the applicable procedural rules
defined by the prison grievance process. Jones v. Bock, 549 U.S.
199, 218-20 (2007); Woodford v. Ngo, 548 U.S. 81, 88 (2006).
According to DCSO policy number 1-3.540, a prisoner’s complaint
about a specific incident must be grieved within seven days of the
incident, and complaints about policies or practices must be filed
days of the most recent time the inmate was affected
(Docket Entry No. 76-1 at 2). If the prisoner is dissatisfied with
the grievance response, he may appeal it within five working days
to the facility administrator or appropriate chief (Id. at 4). If
the inmate introduces new grievances within an appeal, the appeal
authority may choose to answer only issues which appeared in the
initial grievance (Docket Entry No. 76-2).
The April 21, 2012, excessive force incident. Plaintiff
claims that on April 21, 2012, Defendants Allen, Frawley, Henson
and Wright used excessive force against Plaintiff after he refused
to allow Frawley to pat him down (Docket Entry No. 1-1 at 17-20).
Plaintiff Rivers filed a grievance over this incident, which was
found to be unsustained on May 7, 2012 (Docket Entry No. 76 at 2).
Plaintiff Rivers never appealed the findings of this grievance
administrative claims under the Prison Litigation Reform Act.
Accordingly, this claim must be dismissed against Defendants Allen,
Frawley, Henson and Wright.
Plaintiff Rivers also alleges that Defendants Allen,
Frawley, Henson and Wright falsified reports and falsely claimed
that Plaintiff refused medical care after the April 21, 2012,
incident (Docket Entry No. 1-1 at 20). However, Plaintiff Rivers
never filed a grievance related to a claim that these Defendants
falsified reports or falsified a claim that Plaintiff Rivers
refused medical care (Docket Entry No. 76 at 2). Therefore, these
claims have not been properly exhausted administratively and must
be dismissed as well.
The complaint contains no additional allegations against
Defendants Wright, Allen, and Henson, so they should be dismissed
from this case.
Remaining claims against Defendant Frawley. Plaintiff
Rivers claims that on January 5, 2012, Defendant Frawley threw away
evidence of a leaf found in Rivers’s food (Docket Entry No. 1-1 at
8). Plaintiff Rivers never filed a grievance against Defendant
Frawley or anyone else regarding a leaf found in his food (Docket
Entry No. 76 at 2). Since Plaintiff Rivers failed to exhaust his
administrative remedies, he may not maintain a claim in this action
for disposing of a leaf allegedly found in his food.
Plaintiff Rivers also alleges that on January 12, 2012,
he reported to Defendant Frawley that another inmate had touched
Rivers’s buttocks twice. He also told Frawley that if it happened
again “I will have to protect myself” (Docket Entry 1-1 at 13).
Rivers claims that Frawley then wrote a disciplinary charge against
Rivers for threatening the other inmate. On the following day,
Rivers was interviewed by an Internal Affairs Investigator, who
dismissed charges against Rivers. According to the complaint,
Rivers told this investigator that he “was satisfied with being
moved out of the same cell as the other inmate.” (Id.) Rivers
alleges that Frawley wrote him up in retaliation for Rivers’s
naming fellow officers in a civil rights complaint. (Id. at 13-14).
Rivers also claims that Frawley retaliated against him
again on March 9, 2012, by writing him up on a disciplinary
infraction after Rivers refused to leave his legal paperwork in his
cell while he was being searched (Docket Entry No. 1-1 at 14-16).
Rivers claims that he was given a verbal warning by Officer
Hindsley but was not otherwise disciplined following this incident.
In order establish a First Amendment inmate retaliation
claim, a plaintiff must show (1) that he was engaged in protected
conduct; (2) that an adverse action was taken against him that
would deter a person of ordinary firmness from engaging in that
conduct; and (3) that the adverse action was motivated, at least in
part, by the protected conduct. Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999). The undersigned Magistrate Judge finds
that Plaintiff’s claims of retaliation against Defendant Frawley
here fail to state a claim upon which relief can be granted because
in both instances the adverse action taken against him would not
deter a person of ordinary firmness in engaging in the subject
writeup in January 2012 was dismissed on the following morning by
an Internal Affairs Investigator and that he was “satisfied” with
being moved to another cell separate from the inmate that had
allegedly touched his buttocks. Similarly, following the March 2012
writeup Rivers admits that he received a verbal warning and
otherwise received no discipline at all. The undersigned finds that
these two events are insufficient to state a constitutional claim
against Defendant Frawley.
Since the complaint contains no other allegations of
wrongdoing against Defendant Frawley, the undersigned finds that
Defendant Frawley should be dismissed from this case.
Claim against Defendant Gentry. Plaintiff Rivers alleges
that Defendant Gentry falsely imprisoned him by leaving him in the
Special Management Unit for two extra days in early January 2012
(Docket Entry No. 1-1 at 7-8, 49). The complaint contains no other
claim against Defendant Gentry.
The only grievance Plaintiff Rivers filed related to his
confinement segregation was a misclassification grievance filed on
February 12, 2012 (Docket Entry No. 76 at 2-3). This grievance was
found to be unsustained on February 17, 2012, and Rivers did not
file an appeal (Id.).
Since the record is clear that Plaintiff Rivers was
released from confinement segregation on January 5, 2012, his
grievance filed on February 12, 2012, is untimely under the DCSO
grievance policy. In addition, Rivers’s failure to appeal this
grievance amounts to a failure to exhaust his administrative
remedies. Accordingly, Plaintiff’s claim against Defendant Gentry
must be dismissed.
Claims against Defendant Weikal. Plaintiff Rivers alleges
that Defendant Weikal, identified in the complaint as the Criminal
Justice Center Administrator, “showed wanton by disregarding my
complaint about a violation of the Constitution . . . .” (Docket
Entry No. 1-1 at 31). Although most of Plaintiff’s complaints
directed to Defendant Weikal are largely conclusory, it appears
that Plaintiff Rivers complains that Defendant Weikal failed to
intervene in response to Plaintiff’s grievances alleging that jail
employees were violating DCSO policies. Rivers never filed a
grievance against Defendant Weikal for matters raised in the
complaint (Docket Entry No. 76 at 3). Therefore, the undersigned
administrative remedies regarding any claims against Defendant
Weikal, and that Plaintiff therefore may not maintain those claims
in this action.
Claims against Defendant Denton. Plaintiff Rivers alleges
that on March 27, 2012, Defendant Denton refused to allow Plaintiff
to see his case manager (Docket Entry No. 1-1 at 29-30). Plaintiff
never filed a grievance against Defendant Denton based upon this
allegation (Docket Entry No. 76 at 3). Therefore, this claim
against Defendant Denton must be dismissed for failure to exhaust
Plaintiff Rivers further claims that Defendant Denton
wrote a “poor response” and performed an inadequate investigation
of Plaintiff’s grievance against Defendant Frawley (Docket Entry
No. 1-1 at 23). Although Rivers did write a grievance against
Defendant Frawley, he wrote no grievance against Defendant Denton
concerning Denton’s response to Plaintiff’s grievance against
Frawley, and only mentioned this in an improperly filed appeal of
Plaintiff’s grievance against Defendant Frawley (Docket Entry No.
76 at 3). Accordingly, Plaintiff Rivers has failed to exhaust his
administrative remedies regarding Defendant Denton’s handling of
Plaintiff’s grievance against Defendant Frawley, so such claims
must be dismissed.
Plaintiff Rivers also alleges that Defendant Denton
complained of finding contamination in his food (Docket Entry No.
1-1 at 38-39). Rivers claims that this instruction amounts to
contaminated food. However, Rivers never wrote a grievance against
Rivers’s complaint of his contaminated food (Docket Entry No. 76 at
3). Therefore, having failed to exhaust his administrative remedies
against Defendant Denton regarding Denton’s response to Rivers’s
complaint of contaminated food, Plaintiff Rivers cannot maintain
that claim in this action.
The complaint contains no further allegations against
Defendant. Therefore, the undersigned Magistrate Judge finds that
Defendant Denton should be dismissed from this action.
Claims against Defendant Steely. Plaintiff Rivers claims
that on January 27, 2012, Defendant Steely wrongfully denied him
permission to go to the law library (Docket Entry No. 1-1 at 27).
Plaintiff did file a grievance on February 2, 2012, relating to
denial of permission to go to the law library (Docket Entry No. 76
at 4). This grievance was found to be unsustained on February 13,
2012, and Rivers filed a grievance appeal regarding law library
issues on March 9, 2012 (Id.). To the extent that this appeal
related to Plaintiff’s grievance of February 2, 2012, the appeal
was not timely filed because Rivers failed to file it within five
working days of the February 13, 2012, response, as required by
Defendant Steely based upon a denial of permission to go to the law
dismissed. The undersigned finds that Defendant Steely, therefore,
should be dismissed as a defendant in this action.
required Plaintiff to choose between receiving an hour of out-ofcell time or going to the law library (Docket Entry No. 1-1 at 28).
Plaintiff insists that he was entitled to both out-of-cell time and
Plaintiff access to the courts (Docket Entry No. 1-1 28). Rivers
also claims that on March 27, 2012, Defendant Compton wrongfully
denied him permission to visit with his case manager (Docket Entry
No. 1-1 at 29-30). However, Plaintiff Rivers did not file a
grievance against Defendant Compton related to either of these
incidents (Docket Entry No. 76 at 4). Therefore, claims against
Plaintiff Rivers further alleges that on March 27, 2012,
Defendant Compton wrongfully denied Rivers permission to go to the
law library with another inmate (Docket Entry No. 1-1 at 29).
Rivers did file a grievance regarding this incident dated March 27,
2012. This grievance was found to be unsustained and Plaintiff
Rivers never appealed the findings on this grievance (Docket Entry
No. 76 at 4). Therefore, this claim against Defendant Compton must
be dismissed for failure to exhaust administrative remedies.
Since the complaint contains no other claims against
Defendant Compton, the undersigned finds that Defendant Compton
should be dismissed as a defendant.
Claims against Defendant White. Plaintiff Rivers alleges
that Defendant White laughed when Rivers complained of finding
contamination in his food on March 11, 2012 (Docket Entry No. 1-1
at 37, 40-41). Rivers maintains that this behavior amounted to
deliberate indifference by Defendant White concerning the condition
of Plaintiff’s food. Plaintiff Rivers never filed a grievance
indifferent to contamination in Plaintiff’s food (Docket Entry No.
76 at 4). Therefore, this claim has not been administratively
exhausted by Plaintiff and must be dismissed. Since this is the
undersigned finds that Defendant White must be dismissed from this
Claims against Defendant Warren. Plaintiff Rivers alleges
that Defendant Warren wrongfully deprived him of 20 minutes of his
scheduled one hour of out-of-cell time on March 21, 2012 (Docket
Entry No. 1-1 at 45), and that Warren later falsified the record to
indicate that she had allowed Plaintiff out of his cell for the
full hour (Docket Entry No. 1-1 at 45-46). Plaintiff Rivers did
properly grieve his being denied adequate out-of-cell time by
Defendant Warren, but he did not grieve her alleged falsification
of time records (Docket Entry No. 76 at 5).
although not physically barbarous, involve the unnecessary and
wanton infliction of pain, or are grossly disproportionate to the
severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 346 (1981).
Restrictions that are harsh, but not cruel and unusual under
contemporary standards, are not unconstitutional. Id. at 347. A
opportunity, without penological justification, violates the Eighth
Amendment. Inmates require regular exercise to maintain reasonably
good physical and psychological health. Patterson v. Mintzes, 717
F.2d 284 (6th Cir. 1983). While the Sixth Circuit thus acknowledges
that a claim may exist for deprivation of recreational or exercise
constitutional floor for required minimal out-of-cell time. Rodgers
v. Jabe, 43 F.3d 1082, 1086 (6th Cir. 1995).
Here, Plaintiff Rivers alleges only a single isolated
incident in which Defendant Warren deprived him of 20 minutes of
his allotted one hour of out-of-cell time. In the absence of any
claims that such deprivation was a consistently recurring practice,
occurrence is not sufficiently harsh or harmful to Plaintiff Rivers
to implicate constitutional concerns.
In addition, the undersigned Magistrate Judge finds that
Defendant Warren is entitled to qualified immunity with respect to
this claim. In the absence of any clearly established law in the
Sixth Circuit, a reasonable prison official would not have known
that it was unconstitutional to deprive an inmate of 20 minutes of
an allotted one hour of out-of-cell time on a single isolated
occasion. Rodgers, 43 F.3d at 1088.
In the absence of any other claims against Defendant
Warren, the undersigned Magistrate Judge, for the reasons stated
above, finds that she should be dismissed as a defendant in this
Metropolitan Government in this case. Presumably, Rivers would
claim that the Metropolitan Government should be legally liable for
the acts of its employees with respect to Plaintiff Rivers.
However, a municipality cannot be held liable for wrongful conduct
of its employees based upon a claim of respondeat superior. Monell
v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 691
(1978). The complaint contains no allegations that any of the
alleged wrongs claimed by Plaintiff Rivers were the product of a
policy of custom of the Metropolitan Government. For these reasons,
the undersigned finds that the complaint fails to state a claim
against the Metropolitan Government upon which relief can be
For the reasons stated above, the undersigned Magistrate
Judge recommends that the motion to dismiss on behalf of Defendants
Allen, Compton, Denton, Frawley, Gentry, Henson, Steely, Warren,
Weikal, White, Wright, and the Metropolitan Government be deemed to
be a motion for summary judgment under Rule 56 and that this motion
be granted because there is no genuine issue of any material fact
with respect to claims against these Defendants, and that the
complaint against them be dismissed.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 23rd day of February, 2015.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge
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