Hill v. Kinnaman, et al

Filing 44

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the motion for summary judgment be granted and all claims be dismissed with prejudice and that any appeal from a decision dismissing this case not be certified as taken in good faith. Signed by Magistrate Judge Joe Brown on 12/15/2016. (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
STEVEN L. HILL,
Plaintiff
v.
TERRY KINNAMAN; JASON SAUNDERS;
MICHAEL CORLEW,
Defendants
TO:

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No. 3:15-1431
Senior Judge Nixon/Brown
Jury Demand

THE HONORABLE JOHN T. NIXON
REPORT AND RECOMMENDATION
Presently pending is the Defendants’ motion for summary

judgment (Docket Entry 35), which was filed on October 7, 2016. As
of the date of this report and recommendation the Plaintiff has
made no response to the motion. For the reasons stated below, the
Magistrate Judge recommends that the motion be granted and that
this case be dismissed with prejudice and that any appeal not be
certified as taken in good faith.
BACKGROUND
The Defendants have set forth a recitation of the factual
background in this case (Docket Entry 36). It would be helpful if
the factual background was just that–factual. Unfortunately, the
factual background presents as much argument as facts. Although the
Plaintiff has filed no response to the motion, the Magistrate Judge
has

nevertheless

reviewed

the

Plaintiff’s

complaints

(Docket

Entries 1 and 19). The Plaintiff’s original complaint named as
Defendants Terry Kinnaman, Manager at the Davidson County Detention

Facility; Jason Saunders, a counselor at the facility; Michael
Corlew, Assistant Warden at the facility; Prince Carver, Timothy
Buchanon, and Xavier Holloway, all inmates at the Davidson County
facility.
On initial review (Docket Entry 4), the Court noted that
the Plaintiff alleged that he was being targeted and harassed in
jail

by

staff

Specifically,

and

he

other

alleged

inmates
that

because

the

he

Defendant

is

homosexual.

Kinnaman

ordered

correctional officers to search his cell repeatedly because of his
sexual orientation and that Kinnaman failed to investigate and
protect the Plaintiff “from the sexual orientation hate crimes
being inflicted” on him by other inmates. He alleged that the
Defendant Saunders, a unit counselor, removed him from his job
because of his sexual orientation and that Saunders allowed other
inmates to talk about him and slander him. He alleged that the
Defendant Corlew, the assistant warden, failed to protect him from
discrimination

and

discriminated

against

him

by

signing

the

grievances about discrimination as unsubstantiated after failing to
investigated. He alleged that three inmates were harassing him
because of his sexual orientation by posting derogatory signs on
his cell door.
The

Court

dismissed

the

claims

against

the

inmates

inasmuch as it was clear that any action they took against the
Plaintiff was not done under the color of state law. The Court
dismissed the complaint against Assistant Warden Corlew over his

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handling of the Plaintiff’s grievances because the handling of
grievances does not raise a constitutional issue. The case was
allowed to proceed on the Plaintiff’s claims of discrimination
against the Defendants Kinnaman and Saunders.
Subsequently, the Plaintiff amended his complaint to
allege new claims against Assistant Warden Corlew and the amended
complaint was allowed (Docket Entry 10). In the amended complaint
he alleged that on June 18, 2015, he was placed in the residential
drug abuse program (RDAP) so he could seek treatment for his
substance abuse. He alleged that the Defendant Corlew targeted,
harassed, and retaliated against him on several occasions because
of the Plaintiff’s sexual orientation as a “overt homosexual.” He
alleged that the Warden Corlew retaliated against him for filing a
complaint about being targeted and being the subject of hate
crimes. He alleges Warden Corlew removed him from the RDAP and

he

was denied access to the RDAP because he was gay.
The Defendant Corlew, in his motion for summary judgment,
has raised the issue that the Plaintiff failed to exhaust his
administrative remedies by filing a grievance specifically against
him. The Plaintiff has not responded to this argument by providing
a specific reference to any administrative grievance he filed
covering this issue.
The two remaining Defendants contend that any actions
they took to search the Plaintiff’s cell or to remove him from the
RDAP have a rational basis apart from the Plaintiff’s sexual

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orientation. Again, the Plaintiff has failed to respond to this
argument.
STANDARD OF REVIEW
To prevail on a motion for summary judgment, the movant
must demonstrate that “there is no genuine dispute as to any
material fact and the movant is entitled to summary judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A factual dispute is
material if it “might affect the o

utcome of the suit.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving
party cannot simply “rest on its pleadings but must present some
‘specific facts showing that there is a genuine issue for trial.’”
Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)). To defeat a motion for
summary judgment, “the non-moving party must present evidence upon
which a reasonable jury could find in her favor.” Tingle v. Arbors
at Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (citing Anderson,
477 U.S. at 251). “[A] mere ‘scintilla’ of evidence in support of
the non-moving party's position is insufficient.” Tingle, 692 F.3d
at 529 (citing Anderson, 477 U.S. at 251). Finally, “[o]n summary
judgment

the

inferences

to

be

drawn

from

the

underlying

facts...must be viewed in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co., Ltd., v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)).
LEGAL DISCUSSION

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The Defendants correctly pointed out in their memorandum
(Docket Entry 36) that the Prison Litigation Reform Act (PLRA)
requires exhaustion of administrative remedies and that once a
failure to exhaust is raised as an affirmative defense the burden
shifts to the Plaintiff to show that he has in fact exhausted the
process. In this case, the Correction Corporation of America (CCA)
has a grievance process and they have provided a declaration
(Docket Entry 41) from the custodian of the grievance procedures
that provided copies of Plaintiff’s grievances. From a review of
the grievances it does appear that the Defendants are correct and
the Plaintiff did not grieve Assistant Warden Corlew’s temporary
removal of the Plaintiff from RDAP. The Plaintiff has failed to
cite to any specific grievance where he filed such a grievance. The
plaintiff in fact completed the program.
The
memorandum

Magistrate

(Docket

Judge

Entry

36)

believes
also

that

the

correctly

Defendants’

states

the

law

concerning allegations of discrimination against the Plaintiff.
Under

Local

Rule

56.01(g),

failure

to

respond

to

a

party’s

statement of material facts shall indicate that the asserted facts
are

not

disputed

for

the

purpose

of

summary

judgment.

The

Defendants provided a statement of undisputed facts (Docket Entry
43), to which the Plaintiff failed to respond.
In the scheduling order (Docket Entry 28) the Plaintiff
was specifically warned of the necessity to respond within 28 days
of any motion for summary judgment. He was warned that failure to

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respond to the motion and statements of fact could result in the
Court taking the facts alleged in the matter as true and granting
the relief requested. He was also told that he may not just rely on
his complaint, that he must show there is a material dispute of
fact, a citation of reference, affidavits, or other matter of
evidence, and that he should read and comply with Federal Rule of
Civil Procedure 56 and Local Rule 56.01(a).
Despite the Plaintiff’s total failure to respond to the
motion, the Magistrate Judge has nevertheless reviewed the record
to insure that the Defendants have sustained their burden of
showing that a reasonable jury could not find for the Plaintiff.
After considering the statement of uncontested facts as
true, the affidavits of the various Defendants, the fact that the
Plaintiff has provided no countervailing evidence, and that he did
not file a verified complaint, the Defendants have sustained that
burden.
The Defendants have provided a rational basis for the
actions they took in searching the Plaintiff’s cell, and in
reassigning duties within the RDAP and for temporarily suspending
him from the program while they investigated a complaint made
against him. See Ondo v. City of Cleveland, 795 F.3d 597 (6th Cir.
2015).
In

short,

the

Magistrate

Judge

agrees

with

the

Defendants’ position (Docket Entry 36) that the Plaintiff’s equal
protection claim cannot stand because they have provided a rational

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basis

for

their

conduct,

which

was

unrelated

to

his

sexual

orientation and because the Defendants’ conduct was not motivated
by animus or ill will.

RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion for summary judgment be granted and all
claims be dismissed with prejudice and that any appeal from a
decision dismissing this case not be certified as taken in good
faith.
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).
ENTER this 15th day of December, 2016.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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