Crockett v. Hawkins et al
ORDER: Accordingly, for the reasons articulated above, Magistrate Judge Barbara D. Holmes' Report and Recommendation [#42], dated July 6, 2017, is ACCEPTED IN PART. Plaintiff's objections [#43] are OVERRULED. Defendants' Motion for S ummary Judgment [#28] is GRANTED. This cause of action is dismissed. SO ORDERED. Signed by Judge Gershwin A. Drain on 8/7/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
Case No.: 3:16-cv-02059
Honorable Gershwin A. Drain
Sitting By Special Designation
KIZZY HAWKINS, et al.,
ORDER ACCEPTING IN PART REPORT AND RECOMMENDATION
[#42], GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT [#28], OVERRULING PLAINTIFF’S OBJECTIONS [#43]
AND DISMISSING ACTION
On August 1, 2016, Plaintiff, a prisoner currently confined at the Metro-
Davidson County Detention Facility (“Detention Facility”) in Nashville,
Tennessee, filed the instant 42 U.S.C. § 1983 action alleging his Eighth and
Fourteenth Amendment rights have been violated by the Defendants. Defendants
are employees of Corrections Corporation of America, now known as CoreCivic,
Inc. (“CoreCivic”), which operates the Detention Facility.
Plaintiff’s claims stem from discipline he received in July of 2016 wherein
he was placed on “sack lunches” for roughly two weeks when he slammed his
meal tray against the cell door. Plaintiff claims these “sack lunches” always
contained two bologna sandwiches, a bag of chips and cake and that his
consumption of the same meal day in and day out caused him to suffer stomach
aches. Plaintiff also claims that additional disciplinary proceedings in 2016 for
separate conduct were procedurally inadequate and improper. Lastly, he asserts
that his medical complaints were not adequately responded to from May through
July of 2016.
This matter was referred to Magistrate Judge Barbara D. Holmes for all
pretrial matters pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Rule 72(b) of
the Federal Rules of Civil Procedure. On April 20, 2017, the Defendants filed a
Motion for Summary Judgment. Plaintiff filed a Response in Opposition on May
16, 2017, and Defendants filed a Reply on May 25, 2017.
Presently before the Court is Magistrate Judge Holmes’ Report and
Recommendation, filed on July 6, 2017. Magistrate Judge Holmes recommends
that the Court grant the Defendants’ Motion for Summary Judgment and dismiss
this action in its entirety.
Plaintiff filed his Objections to the Report and
Recommendation on July 17, 2017, and Defendants filed a Response to Plaintiff’s
Objections on July 27, 2017.
For the reasons that follow, the Court will accept in part Magistrate Judge
Holmes’ Report and Recommendation, will grant the Defendants’ Motion for
Summary Judgment, and will dismiss this action. Specifically, the Court will
accept the Magistrate Judge’s Report and Recommendation as it relates to her
recommendation concerning exhaustion of administrative remedies on Plaintiff’s
medical care claim, as well as her conclusion that Plaintiff has failed to show any
genuine issues of material fact exist as to his constitutional claims.
LAW & ANALYSIS
A. Standard of Review
The standard of review to be employed by the court when examining a
report and recommendation is set forth in 28 U.S.C. § 636. This Court “shall make
a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.”
28 U.S.C. §
636(b)(1)(C). This Court “may accept, reject or modify, in whole or in part, the
findings or recommendations made by the magistrate.” Id.
B. Objection #1 – Exhaustion of Administrative Remedies
In her Report and Recommendation, the Magistrate Judge concludes that
Plaintiff’s Complaint is subject to dismissal because he failed to exhaust his
administrative remedies prior to filing suit.
Pursuant to 42 U.S.C. § 1997e(a), a prisoner asserting an action with respect
to prison conditions under 42 U.S.C. § 1983 must first exhaust all available
administrative remedies. See Porter v. Nussle, 534 U.S. 516, 524 (2002).
CoreCivic has an administrative grievance system that enables inmates to
seek redress for issues relating to the conditions of their confinement. See Dec. of
Phederica Dean, Ex. A, CoreCivic Policy 14-05. Prior to the submission of a
formal grievance, inmates are required to submit a 14-5A Informal Resolution
form within seven calendar days of the incident giving rise to the grievance. Id. at
Pg ID 195-96. If the inmate is dissatisfied with the response to the 14-5A Informal
Resolution grievance, the inmate must initiate a formal grievance 14-5B form
within five days of receiving the Informal Resolution response. Id. at Pg ID 19798. If the inmate is dissatisfied with the response to his formal grievance 14-5B
form, he may file an appeal within five days of receiving the response. Id. at Pg ID
The CoreCivic administrative grievance system also provides that certain
matters are “not grievable . . . through these grievance procedures: . . .
[d]isciplinary actions . . . .” Id. at Pg ID 193 (emphasis in original).
In their Motion for Summary Judgment, the Defendants asserted that while
Plaintiff filed several informal grievances relative to his constitutional claims, he
never filed and pursued a formal grievance about his claims. In response, Plaintiff
argued that he initiated the grievance process but was informed the matter was
non-grievable. The Magistrate Judge correctly noted that Plaintiff failed to support
his argument with evidence showing he initiated the formal grievance process;
therefore he failed to meet his burden showing he completed one round of the
CoreCivic established grievance procedure. Thomas v. Woolum, 337 F.3d 720,
733 (6th Cir. 2003), abrogated on other grounds, Woodford v. Ngo, 548 U.S. 81
(2006) (plaintiff-prisoner must show he presented his grievance through “one
complete round” or through all the steps of the administrative grievance
In his objections, Plaintiff includes a copy of the formal grievance he
submitted concerning his discipline of “sack lunches” and inadequate medical care.
See Plf.’s Objs. at Pg ID 302. This document was not previously submitted, thus
the Magistrate Judge could not consider it when rendering her decision. Generally,
a court will not disturb a magistrate judge’s decision on the basis of arguments not
presented to her. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
Plaintiff should have included a copy of the formal grievance in his response in
opposition to the Defendants’ Motion for Summary Judgment.
Notwithstanding Plaintiff’s failure to submit a copy of his formal grievance
during the available briefing period on the Defendants’ Motion for Summary
Judgment, the Court will address Plaintiff’s objection concerning exhaustion. The
Magistrate Judge did consider Plaintiff’s argument that he did not pursue his
grievance further because he was told it was not grievable and believed continuing
with the process was a waste of time because he could not “grieve it within the
A prisoner need only exhaust such administrative remedies as are available.
Ross v. Blake, 136 S.Ct. 1850, 1858, 195 L. Ed.2d 117 (2016) (a prisoner “must
exhaust available remedies, but need not exhaust unavailable ones.”). Contrary to
the Defendants’ assertion and the Magistrate Judge’s conclusion, Plaintiff had no
available administrative remedies because his grievance concerning disciplinary
action was not grievable under the CoreCivic grievance policy.
Phederica Dean, Ex A., CoreCivic Policy 14-05 at Pg ID 193 (providing that
certain matters are “not grievable . . . through these grievance procedures: . . .
[d]isciplinary actions . . . .”) (emphasis in original). An inmate is not required to
exhaust administrative remedies regarding non-grievable issues. Ross, 136 S.Ct at
1858-62; Owens v. Keeling, 461 F.3d 763, 769 (6th Cir. 2006) (“a prisoner is not
required to pursue a remedy where the prison system has an across-the-board
policy declining to utilize that remedy for the type of claim raised by the
prisoner.”); Chandler v. Hawkins, 2017, No. 5:16-cv-00079-TBR, 2017 U.S. Dist.
LEXIS 52740, *4-5 (W.D. Ky. Apr. 6, 2017).
While it would appear that only Plaintiff’s issue concerning his discipline
and disciplinary hearing would be non-grievable under CoreCivic Policy 14-05,
Plaintiff’s claim relative to purported inadequate medical care was grievable under
prison policy. Yet, the entire formal grievance was returned as “non-grievable.”
Under such circumstances, Plaintiff might have a compelling argument that
exhaustion on his medical care claim was likewise unavailable because prison staff
hindered exhaustion by failing to follow the CoreCivic grievance procedure.
However, the Court need not resolve this issue because the Court agrees with
Magistrate Judge Holmes that Plaintiff has failed to establish questions of material
fact exist concerning whether the Defendants violated his Eighth and Fourteenth
Amendment rights. Therefore, even if the Court were to conclude Plaintiff could
not exhaust his available administrative remedies, his claims are still subject to
dismissal under Rule 56 of the Federal Rules of Civil Procedure.
C. Objection #2 -- Merits
The Magistrate Judge also concluded that Plaintiff has failed to demonstrate
material questions of fact exist as to his constitutional claims, thus Defendants are
entitled to summary judgment in their favor. As an initial matter, the Court notes
that Plaintiff does not raise any objection to the Magistrate Judge’s conclusion
concerning the merits of his inadequate medical care claim. Thus, the Court need
not address this claim further. See Thomas v. Arn, 474 U.S. 140, 150-53 (1985).
The Eighth Amendment “imposes duties on [prison] officials, who must
provide humane conditions of confinement; [these] officials must ensure that
inmates receive adequate food, shelter, medical care, and must ‘take reasonable
measures to guarantee the safety of inmates.’” Farmer v. Brennan, 511 U.S. 825,
832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A prisoner
alleging an Eighth Amendment claim must show that (1) the deprivation is
sufficiently serious; “a prison official’s act or omission must result in the denial of
minimal civilized measure of life’s necessities[,]” and (2) the prison official’s state
of mind must be “deliberately indifferen[t] to inmate health or safety.” Id.
Plaintiff has failed to come forward with any evidence suggesting that two
weeks of cold “sack lunches” denied him minimal civilized measure of life’s
While prisoners must receive food of adequate nutrition, this
requirement does not encompass a certain number of hot meals per day. See
Newsom v. Hall, No. 3:12-cv-811, 2012 U.S. Dist. LEXIS 116140, *8 (M.D. Tenn.
Aug. 17, 2012) (noting that “[t]he occasional deprivation of a hot meal is not a
deprivation that triggers Eighth Amendment scrutiny.”)
As to Plaintiff’s Fourteenth Amendment due process claim stemming from
a disciplinary hearing in 2016, this claim is likewise subject to summary judgment
in favor of the Defendants. A prison disciplinary proceeding does not give rise to a
protected liberty interest unless the restrictions imposed constitute an “atypical and
significant hardship on the inmate in relation to ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Unless placement in disciplinary
confinement is for a significant period of time that presents unusual hardship on an
inmate or is accompanied by a withdrawal of good time credits, no liberty interest
will be found. Id. at 484.
Here, the evidence before the Court reveals that Plaintiff did not lose any
good time credits or suffer any other disciplinary action other than a fifteen day
recreation restriction. This does not give rise to a liberty interest protected by the
Fourteenth Amendment. Sanchez v. Allen, 611 F. App’x 792, 794 (5th Cir. Apr.
23, 2015); Park v. Morgan, No. 1:15-cv-182, 2015 WL 1637168, *3-4 (S.D. Ohio
Apr. 10, 2015) (finding no constitutional violation because a sixty-day recreation
restriction did not amount to a protected liberty interest).
Accordingly, for the reasons articulated above, Magistrate Judge Barbara D.
Holmes’ Report and Recommendation [#42], dated July 6, 2017, is ACCEPTED
Plaintiff’s objections [#43] are OVERRULED.
Defendants’ Motion for Summary Judgment [#28] is GRANTED.
This cause of action is dismissed.
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
Sitting By Special Designation
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