Buckley et al v. CCA/Metro Davidson Co. Detention Facility et al

Filing 103

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS that the motion for summary judgment (Docket Entry No. 68) and motion for judgment on the pleadings (Docket Entry No. 86) be GRANTED and this action be DISMISSED WITH PREJUDICE as to all Defendants. Signed by Magistrate Judge Juliet E. Griffin on 8/13/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

TERRANCE H. BUCKLEY
v.
CCA/METRO DAVIDSON COUNTY
DETENTION FACILITY, et al.

TO:

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NO: 3:13-1117

Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION
By Order entered October 11, 2013 (Docket Entry No. 4), this action was referred to the
Magistrate Judge to enter a scheduling order for the management of the case, to dispose or
recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to
conduct further proceedings, if necessary, under Rule 72(b), Fed. R. Civ. P., and the Local Rules of
Court.
Presently pending are the Defendants’ motion for summary judgment (Docket Entry No. 68)
and the motion for judgment on the pleadings filed by Defendant Michael Sullivan (Docket Entry
No. 86). The plaintiff has not filed a response in opposition to the motions.1 For the reasons set out
herein, the Court recommends that the motions be granted and this action be dismissed.

1

By Order entered July 1, 2014 (Docket Entry No. 99), the Court extended to July 18, 2014,
the deadline for the plaintiff to file a response to the pending motions.

I. BACKGROUND
The plaintiff is a former inmate who was confined at the Metro-Davidson County Detention
Facility (“Detention Facility”) at the time of the events at issue and at the time the complaint was
filed. He filed this action pro se and in forma pauperis on October 8, 2013, seeking damages under
42 U.S.C. § 1983 based upon:
1) a claim that officers at the Detention Facility failed to protect him from another
inmate and, as a result, he was assaulted by that inmate and suffered an injury to his
right foot;
2) a claim that medical care at the Detention Facility was inadequate;
3) a claim that he was sexually harassed while in segregation at the Detention
Facility;
4) a claim that the grievance procedures at the Detention Facility are inadequate; and
5) a claim that an officer discriminated against him at the Detention Facility.
See Docket Entry No. 4, at 2. By the Order of referral, the action was permitted to proceed against
fourteen of the named Defendants – Corrections Corporation of America (“CCA”), Yesnia
Bermudez (“Bermudez”), Kyle Collins (“Collins”), Kevin Fisher (“Fisher”), Irena Fitzgerald
(“Fitzgerald”), Jahzeel Gayle (“Gayle”), Latanya Gumbs (“Gumbs”), James Henrich (“Henrich”),
Tethi Inman (“Inman”), Mitsue Maxwell (“Maxwell”), Yoshi Quezergue (“Quezergue”), Frederick
Tindall (“Tindall”), Joseph Whitlow (“Whitlow”), and Michael Sullivan (“Sullivan”).2 The
Defendants were served with process, and a scheduling order (Docket Entry No. 31) was entered
providing for a period of pretrial activity in the action. On June 11, 2014, the plaintiff filed a notice
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In the Order of referral, the Court dismissed all claims against the Detention Facility and
the CCA Medical Clinic, and also found that the sole plaintiff in the action was Terrance Buckley
even though another individual, William Blunkan, was listed in the style of the case as a plaintiff.
See Docket Entry No. 4.
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of a change of address stating that he had been released from incarceration and providing a free
world address. See Docket Entry No. 90. However, mail from the Court sent to the address
provided by the plaintiff was returned as undeliverable. See Docket Entry Nos. 97, 98, and 100-102.
By their motion for summary judgment, Defendants CCA, Bermudez, Collins, Fisher,
Fitzgerald, Gayle, Gumbs, Henrich, Inman, Maxwell, Quezergue, Tindall, and Whitlow raise both
technical and substantive defenses to the claims brought by the plaintiff. The Defendants assert that
the plaintiff failed to fully exhaust his administrative remedies as required by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), and, with the exception of his failure to protect claim,
failed to allege that he suffered any physical injury as a result of his remaining claims and is thus
barred from seeking monetary damages for these claims. Defendant CCA argues that there are no
facts that support a claim of liability against it under Section 1983, and Defendants Fisher, Gayle,
Gumbs, Henrich, and Inman, argue that they are only specifically mentioned in the complaint’s
listing of defendants and there are no factual allegations in the complaint against them. The
remaining Defendants argue that the undisputed facts fail to support the plaintiff’s claims that they
violated his constitutional rights. In support of their motion, the Defendants submit a Statement of
Undisputed Material Facts (Docket Entry No. 70), and the Affidavits and supporting exhibits of
Audrey Rimmer (Docket Entry No. 71), James Henrich, L.P.N. (Docket Entry No. 72), Frederick
Tindall (Docket Entry No. 73), and Blair Leibach (Docket Entry No. 74).
By his motion for judgment on the pleadings, Defendant Sullivan echoes the arguments of
the Defendants who asserts that they are only mentioned in the complaint’s listing of defendants and
that the complaint contains no factual allegations against them. See Supporting Memorandum of
Defendant Sullivan (Docket Entry No. 87).
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II. STANDARD OF REVIEW
A motion for summary judgment is reviewed under the standard that summary judgment is
appropriate 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.” Rule 56(a) of the Federal Rules of Civil
Procedure. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). A “genuine issue of material fact” is a fact which, if proven at trial, could lead a reasonable
jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering whether summary judgment is
appropriate, the Court must “look beyond the pleadings and assess the proof to determine whether
there is a genuine need for trial.” Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert.
denied, 531 U.S. 875, 121 S.Ct. 179, 148 L.Ed.2d 123 (2000). In reviewing a motion for summary
judgment, the Court must view the evidence and all inferences drawn from underlying facts “in the
light most favorable to the party opposing the motion.” See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gribcheck v. Runyon,
245 F.3d 547, 550 (6th Cir.), cert. denied, 534 U.S. 896, 122 S.Ct. 217, 151 L.Ed.2d 155 (2001).
The moving party has the burden of showing the absence of genuine factual disputes from
which a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at
249-50. However, “[t]he moving party need not support its motion with evidence disproving the
non-moving party’s claim, but need only show that ‘there is an absence of evidence to support the
non-moving party’s case.’” Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001)
(quoting Celotex Corp., 477 U.S. at 325).

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“Once the moving party has presented evidence sufficient to support a motion for summary
judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant
probative evidence must be presented to support the complaint.” Goins v. Clorox Co., 926 F.2d 559,
561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on
the pleadings but must present evidence supporting the claims asserted by the party. Banks v. Wolfe
Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). Moreover, conclusory allegations,
speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a
well-supported motion for summary judgment. See Lujan v. National Wildlife Fed’n, 497 U.S. 871,
888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In other words, to defeat summary judgment, the
party opposing the motion must present affirmative evidence to support his or her position; a mere
“scintilla of evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003)
(quoting Anderson, 477 U.S. at 252).

III. CONCLUSIONS
Although the plaintiff’s allegations were sufficient to permit the case to survive frivolity
review under 28 U.S.C. § 1915(d), when his claims are challenged upon a motion for summary
judgment, he cannot merely rest on allegations contained in the complaint. He must respond with
affirmative evidence supporting his claims and establishing the existence of a genuine issue of
material fact. See Celotex Corp., 477 U.S. at 323-24; Chao v. Hall Holding Co., Inc., 285 F.3d 415,
424 (6th Cir. 2002); Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989).
The plaintiff’s pro se status does not relieve him of the obligation under Rule 56 of the Federal Rules
of Civil Procedure to set forth admissible evidence showing that genuine issues of material fact exist
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which require that the action proceed to trial. This is the threshold requirement for all non-moving
parties when summary judgment is sought by an opposing party. Sixty Ivy St. Corp. v. Alexander,
822 F.2d 1432, 1435 (6th Cir. 1987). The plaintiff fails to satisfy this basic requirement. The
Defendants have presented arguments and/or evidence supporting the dismissal of each claim raised
by the plaintiff. Based on the Defendants’ arguments and evidence and in light of the complete lack
of evidence from the plaintiff, no reasonable jury could find in favor of the plaintiff on his claims.
The claims against Defendants Fisher, Gayle, Gumbs, Henrich, Inman, and Sullivan are not
supported by even cursory allegations of constitutional wrongdoing. A defendant cannot be held
individually liable under Section 1983 for constitutional violations absent a showing that the
defendant was personally involved in some manner in the allegedly unconstitutional conduct. Miller
v. Calhoun County, 408 F.3d 803, 817, n.3 (6th Cir. 2005); Hardin v. Straub, 954 F.2d 1193, 1196
(6th Cir. 1992).
Similarly, there are no facts supporting a claim of liability against Defendant CCA, which
cannot be held liable under Section 1983 merely because of the actions of its employees. The
plaintiff must show some evidence that CCA had a custom or policy that caused the alleged
constitutional violation or that it authorized, approved, or knowingly acquiesced in the violation of
the plaintiff’s constitutional rights. Such a showing is required because “[r]espondeat superior is
not a proper basis for liability under § 1983.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470
(6th Cir. 2006); Street v. Corrections Corp. of Am., 102 F.3d 810, 818 (1996). See also Monell v.
New York City Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Starcher
v. Correctional Med. Sys., Inc., 7 Fed.Appx. 459, 2001 WL 345810 (6th Cir. March 26, 2001).

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The constitutional claims against the remaining Defendants should likewise be dismissed.
The plaintiff’s claims of sexual harassment and discrimination are based upon only conclusory and
cursory allegations set out in the complaint. Such allegations cannot support claims under Section
1983. See Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986); Smith v. Rose, 760 F.2d
102, 106 (6th Cir. 1985). With respect to his inadequate medical care claim, the plaintiff fails to set
forth any evidence that he was subjected to deliberate indifference to his serious medical needs as
is required for a constitutional claim based on the denial of medical care. See Estelle v. Gamble, 429
U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Similarly, his allegations that he was assaulted
by another inmate is not supported by evidence showing that there was a substantial risk of serious
harm to the plaintiff’s safety, that a defendant knew of that harm, and that such defendant acted or
failed to act in a manner which was deliberately indifferent to this substantial risk. See Farmer v.
Brennan, 511 U.S. 825, 834-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Greene v. Bowles, 361
F.3d 290, 294 (6th Cir. 2004). At best, he alleges negligent conduct, which is not sufficient to
support a claim under Section 1983. See Woods v. Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997).
Finally, the plaintiff’s complaints about the grievance procedure at the Detention Facility fail
to support a constitutional claim because there is no constitutional right to an effective, fair, or
properly functioning prison grievance procedure and a prison inmate does not have a protected
interest in prison grievance procedures. See Walker v. Michigan Dep’t of Corr., 128 Fed. Appx. 441
(6th Cir. Apr. 1, 2005); Miller v. Haines, 156 F.3d 1231, 1998 WL 476247 (6th Cir. Aug. 3, 1998).
Given the Court’s conclusion that Defendants are entitled to summary judgment because
there is a lack of supporting evidence for the plaintiff’s claims, the Court declines to address the
merits of the exhaustion and lack of actual injury arguments raised by the Defendants.
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RECOMMENDATION
Accordingly, the Court respectfully RECOMMENDS that the motion for summary judgment
(Docket Entry No. 68) and motion for judgment on the pleadings (Docket Entry No. 86) be
GRANTED and this action be DISMISSED WITH PREJUDICE as to all Defendants.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
Failure to file written objections within the specified time can be deemed a waiver of the right to
appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

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