Green v. Howard et al

Filing 82

REPORT AND RECOMMENDATION: The undersigned Magistrate Judge recommends that Defendants' motion for summary judgment be GRANTED and the complaint dismissed with prejudice. Signed by Magistrate Judge John S. Bryant on 3/7/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMIE CHRISTOPHER GREEN 151209,
Plaintiff
v.
CHARLES SIMMONS, SHEILA HOWARD,
Defendants
TO:

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No. 3:13-0020
Judge Sharp/Bryant
Jury Demand

THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Defendants Charles Simmons and Sheila Howard have filed

their motion for summary judgment, pursuant to Rule 56 of the
Federal Rules of Civil Procedure. Plaintiff Green, a prisoner
proceeding pro se and in forma pauperis, has not responded in
opposition, and the time within which he was required to do so
expired long ago.
For the reasons stated below, the undersigned Magistrate
Judge recommends that Defendants’ motion for summary judgment be
GRANTED and the complaint dismissed with prejudice.
STATE OF THE CASE
Plaintiff Green, a state prisoner presently incarcerated
at the Whiteville Correctional Facility in Whiteville, Tennessee,
filed this civil rights action under 42 U.S.C. § 1983 alleging
various violations of his constitutional rights that occurred when
he was housed at the Charles Bass Correctional Complex (“CBCX”).
Upon

initial

review

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B) and 1915(A)(a), the Court dismissed all claims except
claims against Defendants Howard and Simmons alleging violations of

Green’s rights under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution (Docket Entry No. 11).
Specifically, Green alleges that another inmate charged
with the disciplinary infraction of drug possession in the prison
received a much lesser sentence than did Green, even though it was
Green’s first infraction and the other inmate’s fourth infraction.
Green also asserts that the other inmate, David Wallace, received
a continuance of his hearing date when he requested one, and was
given probation or a suspended sentence and no segregation, while
Green’s request for a continuance was denied and he was subjected
to a much harsher sentence for a comparable infraction. Green
implies in his complaint that the reason he received a harsher
sentence than Wallace was because Green did not have the money to
bribe

prison

specifically

officials
alleges

to

that

impose
Defendant

a

lesser

Howard

sentence.

takes

bribes

Green
from

inmates in exchange for the imposition of lesser sentences for
disciplinary infractions, and that if inmates do not have money for
“payouts,” their rights are violated (Docket Entry No. 8 at 2).
Defendants have filed their answer denying liability and
asserting

affirmative

defenses

(Docket

Entry

No.

33).

Now

Defendants Simmons and Howard have filed their motion for summary
judgment.
STANDARD OF REVIEW
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
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(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.
To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

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).
ANALYSIS
A district court cannot grant summary judgment in favor
of a movant simply because the adverse party has not responded. The
Court is required, at a minimum, to examine the movant’s motion for
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summary judgment to insure that he has discharged that burden.
Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991).
In support of Defendants’ motion for summary judgment
Defendants

Howard

and

Simmons

have

filed

their

affidavits.

Defendant Howard testifies in her affidavit that she was employed
as a correctional sergeant at the CBCX and served as Disciplinary
Board Chairman during disciplinary hearings held in July 2012 for
inmates

Green

and

David

Wallace

(Docket

Entry

No.

38).

She

testifies that Plaintiff Green was convicted of a disciplinary
charge of “positive drug screen” on July 6, 2012, based upon
positive

lab

results

confirming

the

presence

of

a

marijuana

metabolite (THC) after a reasonable suspicion drug screen. Green
was given five days punitive segregation, six months of visitation
restrictions, a $25 drug test fee, a $4 fine, and a 30-day phone
restriction.
Defendant Howard further testifies in her affidavit that
inmate

David

Wallace

pled

guilty

and

was

convicted

of

the

disciplinary charge of “drug possession” on July 13, 2012. This
conviction

was

based

upon

Wallace’s

possession

of

marijuana.

Wallace received 10 days punitive segregation, a nine-month package
restriction, a six-month visitation restriction, and a $4 fine.
Inmate Wallace also pled guilty and was convicted of the
disciplinary charge of “positive drug screen” on July 24, 2012.
This conviction, like that of Plaintiff Green, was based upon a
positive lab result for marijuana after a reasonable suspicion drug
screen.

Wallace

segregation,

a

received
six-month

an

additional

package
4

10

days

restriction,

a

of

punitive

three-month

visitation restriction, a $4 fine, a $25 drug test fee, and a job
drop. Inmate Wallace had previously lost package and visitation
privileges due to the earlier disciplinary charge. For the second
disciplinary charge, inmate Wallace received the maximum available
package and visitation restrictions (Docket Entry No. 38 at 2).
In her affidavit Defendant Howard testifies that she did
not treat Plaintiff Green any differently from any other inmate at
CBCX, including inmate Wallace, during the disciplinary process.
Defendant Wallace also testifies that she has never taken any
bribes for “pay outs” from any inmate (Id.).
In his affidavit, Defendant Simmons testifies that he is
an employee of the Tennessee Department of Corrections and a deputy
warden at CBCX. He testifies that he has no personal knowledge of
the allegations made by Plaintiff Green in his complaint. Simmons
further testifies that he has received no information concerning
any improprieties in the disciplinary process at CBCX, and has no
knowledge that Defendant Howard has ever received any bribes or
“pay outs” from any inmates. He further testifies that, apparently
from a review of pertinent documentation, there does not appear to
be a disparity in punishment awarded to Plaintiff Green when
compared to that awarded to inmate Wallace (Docket Entry No. 39).
In the absence of any response by Plaintiff Green, the
foregoing affidavit testimony from Defendants Howard and Simmons
effectively rebuts the factual allegations underlying Green’s equal
protection claim against Defendants Howard and Simmons. From the
undisputed record, the undersigned Magistrate Judge finds that,
contrary to Green’s claims, Green did not receive a materially
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worse punishment for his disciplinary violation when compared to
punishment imposed upon inmate Wallace. Moreover, there is no
admissible evidence in this record to support the claims that
Defendant Howard accepted bribes or “pay outs” from inmates subject
to

disciplinary

proceedings,

or

that

Defendant

Simmons

had

knowledge of such practices.
Based upon the admissible evidence in this record, the
undersigned Magistrate Judge finds that there is no genuine dispute
as to any material fact and that Defendants Howard and Simmons are
entitled to judgment as a matter of law.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge recommends that the motion for summary judgment filed on
behalf of Defendants Howard and Simmons be GRANTED, and that the
complaint be dismissed with prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

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).

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ENTER this 7th day of March, 2014.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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