Leach v. Corrections Corporation of America et al

Filing 105

REPORT AND RECOMMENDATION (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(JBB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
TAZARIUS LEACH,
Plaintiff
v.
CEO DAMON HINIGER; et al.,
Defendants
TO:

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)
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)
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)
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No. 3:16-cv-2876
Judge Campbell/Brown
Jury Demand

THE HONORABLE WILLIAM L. CAMPBELL, JR.,
UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Presently pending in this matter is a Motion for Summary

Judgment (Docket Entry 86) filed by the served defendants. For the
reasons stated below, the Magistrate Judge RECOMMENDS that this
motion be GRANTED and the claims against these defendants be
DISMISSED with prejudice for failure to exhaust administrative
remedies, and that the two unserved defendants, Dr. Richard Aballay
and Joe Shweizter, be DISMISSED without prejudice for Plaintiff’s
failure to obtain service of process after being warned of the
necessity to do so. The Magistrate Judge further RECOMMENDS that
any appeal from the adoption of this Report and Recommendation not
be certified as taken in good faith.
BACKGROUND
The Plaintiff filed a 53 page complaint (Docket Entry 1) in
this matter on November 14, 2016. This lengthy complaint was
reviewed by then Chief Judge Sharp on January 4, 2017 (Docket Entry

8). In Judge Sharp’s review he summarized the alleged facts as
follows:
The complaint alleges that the plaintiff is an
inmate of the Trousdale Turner Correctional
Center
(TTCC)
and
is
a
Stage
II
insulin-dependent
diabetic,
a
condition
documented upon his arrival as a prisoner at
the TTCC. (Docket No. 1 at p. 9). According to
the complaint, on the following dates, the
plaintiff failed to receive at least one of
his required doses of insulin: April 28, 2016,
April 29, 2016; May 16, 2016; May 17, 2016;
May 23, 2016; May 25, 2016; and May 27, 2016.
Similarly, on the following dates, the
complaint alleges that the plaintiff did not
receive a meal specifically designed for
insulin-dependent inmates: May 18, 2016 and
May 19, 2016.
On May 20, 2016, the plaintiff needed medical
attention but was ignored by C/O Morom and an
unnamed C/O. The unnamed C/O told the
plaintiff not to push the emergency call
button or he would be given a Class A
Disciplinary. (Id. at p. 10).
On May 21, 2016, the plaintiff asked C/O
Morquec to call medical for him, but Morque
said that the Lt. Ecford was on his way but
Ecford never arrived and Morque told the
plaintiff that he was not going to do anything
further. (Id.)
On May 23, 2016, the plaintiff asked
Mitchell to call medical for him, but
plaintiff was not given his insulin on
and his glucose level was severely low.
at p. 11).

C/O
the
time
(Id.

The complaint alleges that TTCC “is a Facility
not Equipped and not Staffed therefore unable
to address this Medical Condition with CCA
Corporate Office first Approving funds for
‘Every Individual’ Medical need resulting in
Essential Treatment being Delayed, Often
Failing to meet Medical needs Specifically
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during Plaintiff’s Debilitating State of
Health.” (Id. at p. 12). The plaintiff
believes that CCA is deliberating attempting
to avoid the high costs associated with the
treatment of diabetes. (Id.)
The complaint further alleges that when the
plaintiff has submitted grievances concerning
his medical treatment for diabetes, Defendant
Garner has refused to process the grievances
and shared many of the grievances among the
TTCC staff, violating the plaintiff’s privacy
rights and causing certain staff members to
retaliate against the plaintiff for having
filed grievances. (Id. at p. 4).
As

a

result

of

the

review,

Judge

Sharp

terminated

the

Trousdale Turney Correctional Center. The case was allowed to
proceed

against

Warden

Blair

Leibach,

Associate

Warden

Jerry

Warlow, Associate Warden Yolanda Pittman, defendant Dr. Richard
Aballay, Health Administrator Joe Shweizter, Chief Briggs, Captain
Maxwell, Lieutenant Eckford, Correctional Officer Mitchell, the
defendant CoreCivic, and defendant Katrina Moran.
A scheduling order was entered in the case (Docket Entry 39)
on June 8, 2017, after some of the defendants were served. In the
case management order, the Magistrate Judge noted that CoreCivic,
the

successor

to

Corrections

Corporation

of

America,

was

represented by an attorney and that its president had been served.
Therefore, CoreCivic was considered a defendant in the matter. The
Plaintiff was reminded that he had named a John Doe defendant and
unless he could identify the John Doe, no further action would be
taken concerning him. The Plaintiff advised at that time that he
found it unlikely that he would be able to identify the John Doe.
3

The Plaintiff was reminded that in Judge Sharp’s initial review
(Docket Entry 8) the Plaintiff was told that he would have to amend
his complaint to specifically allege who had retaliated against him
because he had filed grievances and the nature of the retaliation.
The Plaintiff was reminded that he had not amended his complaint
and was advised that, absent specifics in an amended complaint, at
some point these allegations would be dismissed. The Plaintiff was
specifically warned that motions for summary judgment had to be
responded to and that failure to respond to the motion and to
statements of undisputed facts could result in the Court taking the
facts alleged in the matter as true and granting the relief
requested. The Plaintiff was further told he could not simply rely
on his complaint, that he must show that there was a material
dispute of facts with citations to the record, affidavits, or other
matters of evidence. He was advised to read and comply with Federal
Rules of Civil Procedure 56 and Local Rule 56.01(a). Despite
numerous

efforts

to

locate

and

serve

defendants

Aballay

and

Shweizter, the summons were returned unexecuted (Docket Entries 70
and 72). The two defendants have never been served.
The served defendants filed their motion for summary judgment
on August 24, 2018 (Docket Entry 86). It was supported by a lengthy
memorandum (Docket Entry 87), Statement of Undisputed Material
Facts and various declarations (Docket Entries 88-104).
The declaration of James Briggs (Docket Entry 88) set forth
that he was an employee of CoreCivic, serving as the Assistant

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Chief of Security at Trousdale and that he would not have denied
the Plaintiff access to medical treatment, medication, or meals.
The declaration of Jessica Garner (Docket Entry 89), the
Disciplinary Hearing Officer at Trousdale, set forth the grievance
procedure at Trousdale and reviewed the grievances filed by the
Plaintiff. She stated that on February 12, 2016, the Plaintiff
filed a grievance regarding the medical treatment and complications
he had experienced from his diabetes. She stated that the Plaintiff
did not pursue all three levels of grievances on this matter. She
stated that on February 28, 2016, the Plaintiff filed a grievance
about not receiving his insulin on February 26, 2016, or February
27, 2016. She stated that the Plaintiff did in fact pursue this
grievance through all three levels of the grievance procedure in
place at Trousdale.1 She states that the Plaintiff filed three
grievances between April 28, 2016, and May 27, 2016, regarding
medical treatment and food services, but that he did not appeal any
of these grievances after he completed the first level of the
grievance procedure.
The Magistrate Judge has reviewed the various grievances
attached to the complaint (Docket Entry 1) and the additional
attachments to the complaint (Docket Entry 7) and the Garner

1

Although it appears that the Plaintiff did exhaust this grievance,
a review of his complaint by both the undersigned Magistrate Judge and
by Judge Sharp, does not reveal that the Plaintiff alleged this incident
in his complaint.

5

declaration (Docket Entry 89)2. It does not appear the plaintiff
exhausted any of the grievances other than the Feb. 28, 2016
grievance. The Plaintiff included a letter to the Warden dated
April 10, 2016. However, a letter to the Warden does not constitute
a grievance as such.
In his declaration (Docket Entry 90), Warden Blair Leibach
denies

any

delay

in

providing

access

to

appropriate

medical

providers or food services.
The declaration of Captain Delmer Maxwell, Jr. (Docket Entry
91) refutes any efforts to deny the Plaintiff medical treatment or
food services, or taking any action to deny those services because
of grievances filed by the Plaintiff.
The declaration of Assistant Warden Jerry Wardlow (Docket
Entry 92) likewise denies any denial of access to medical treatment
or meals, or any retaliation because of grievances.
The declaration of Warden Russell Washburn (Docket Entry 93),
without reference to the specific medical records he relies on,
states that Leach was prescribed and received treatment for his
diabetes

and

received

appropriate

diabetic

meals

during

his

incarceration.
The declaration of Katrina Biggers (Docket Entry 102), like
the other employees, states that as a correctional officer she
would not have instructed or encouraged other employees to deny

2

Unfortunately Gartner did not attach copies of these grievances.
The TOMIS record would have helped clarify the status of the various
grievances in one document.

6

Leach access to adequate medical treatment or food services, and
would not have denied these services because of any grievance.
In the declaration of Lieutenant Marquez Eckford (Docket Entry
96) he states that he did not instruct or encourage CoreCivic
employees to refuse to provide Leach access to adequate diabetic
treatment or food services, or take any action against him because
of grievances.
The

declaration

of

Damon

Hininger

(Docket

Entry

101),

President and CEO of Core Civic, states that he did not encourage
or instruct Core Civic employees to refuse to provide Leach access
to adequate diabetic treatment or food services, or take any action
because of his grievances.
The declaration of Senior Correctional Officer Kyla Mitchell
(Docket Entry 100) states that she did not instruct or encourage
Core Civic employees to refuse to provide Leach with access to
adequate medical diabetic treatment or food services, and took no
action to retaliate against him because of grievances.
The declaration of Assistant Warden Yolanda Pittman (Docket
Entry 103) states that she likewise did not encourage employees to
fail to provide the Plaintiff with access to adequate diabetic
treatment or food services, or retaliate against him because of any
grievances he filed.
The final document to be considered on the Defendants’ motion
for summary judgment is their statement of undisputed material
facts (Docket Entry 94). Since the Plaintiff failed to respond to
the statement of material facts, they are taken for true for the
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purpose of summary judgment to the extent they appear to have a
basis in the record. Statement 2 is that “Before filing this
lawsuit

on

November

1,

2016,

Leach

failed

to

exhaust

his

administrative remedies for the three grievances he submitted
between April 28, 2016, and May 27, 2016.”3
Statement

3

contains

the

same

November

1,

2016,

error

concerning the Plaintiff’s February 12, 2016 grievance.
The Plaintiff failed to respond to Statement 7 which alleges
that the various employees did not have any involvement in the
Plaintiff’s

medical

treatment

or

food

services

and

neither

instructed nor encouraged Core Civic employees to refuse to provide
Leach with medical treatment or food services citing to the various
declarations summarized above.
The Magistrate Judge is willing to consider these statements
as

uncontested

as

far

as

they

pertain

to

the

Plaintiff’s

grievances. With all due respect, the various declarations used to
support the fact that CoreCivic did not deny the Plaintiff medical
treatment

or

food

services

are

not

well

supported

when

the

grievances are considered. The Plaintiff is not complaining about
a total failure of food services or failure to provide insulin as
prescribed for him. He is complaining that the defendants, because
of a shortage of personnel, lock downs, and incomplete counts

3

This statement is inaccurate because the complaint was lodged
with the Clerk on November 14, 2016, and was dated for purposes of
the statute of limitations under the Mailbox Rule on November 9,
2016, not November 1, 2016.
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prevented, in many cases, the nurses from distributing prescribed
medication
Insulin

or

food

medication

Plaintiff

properly

services
and

providing

the

time

prescribed

food

can

be

sensitive.

exhausted

his

administrative

meals.
Had

the

remedies

the

Magistrate Judge would be very reluctant to accept these statements
at face value despite the Plaintiff’s failure to respond.
STANDARD OF REVIEW
Rule 56 requires the court to grant a motion for summary
judgment 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.” Fed. R. Civ. P. 56(a). If a moving defendant shows
that there is no genuine issue of material fact as to at least one
essential element of the plaintiff’s claim, the burden shifts to
the

plaintiff

to

provide

evidence

beyond

the

pleadings,

“set[ting] forth specific facts showing that there is a genuine
issue
351,

for
374

trial.”

Moldowan

v.

City

of

Warren,

578

F.3d

(6th Cir. 2009); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322–23 (1986). “In evaluating the evidence, the
court must draw all inferences in the light most favorable to
the

non-moving

party.”

Moldowan,

578

F.3d

at

374

(citing

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
At this stage, “the judge’s function is not . . . to
weigh the evidence and determine the truth of the matter, but
to determine whether there is a genuine issue for trial.” Id.

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(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986)). But “[t]he mere existence of a scintilla of evidence
in

support

of

the

[non-moving

party’s]

position

will

be

insufficient,” and the party’s proof must be more than “merely
colorable.” Anderson, 477 U.S. at 249, 252. An issue of fact is
“genuine” only if a reasonable jury could find for the non-moving
party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at
252).
LEGAL ANALYSIS
The law is clear that under Rule 4(m) the Plaintiff must obtain
service of process within 90 days or his case, after notice, is
subject to dismissal. In this case the Plaintiff did not obtain
service of process on defendants Aballay and Shweizter at any time
up to and including this Report and Recommendation. He was warned
of the necessity to do so. Accordingly, any action against those
defendants should be dismissed without prejudice.4
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1997 of the Revised
Statutes of the United States [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a); Napier v. Laurel
Co., 636 F.3d 218, 222 (6th Cir. 2011). The mandatory exhaustion

4

As a practical matter, because of the passage of time, the one year
statute of limitations would make any refiling futile.

10

requirement is a strict one. Jones v. Bock, 549 U.S. 199, 211
(2007); Napier, 636 F.3d at 226.
To satisfy the exhaustion requirement “prisoners must complete
the administrative review process in accordance with the applicable
procedural rules” that are defined by the prison grievance process
itself. Jones, 549 U.S. at 218. This requirement includes any time
limitations.

Risher

v.

Lappin

639

F.3d

236,

240

(6th Cir.

2011)(citing Woodford v. Ngo, 548 U.S. 81, 83 (2006)). There are no
futility

exceptions

or

other

exceptions

to

the

exhaustion

requirement under the PLRA. Booth v. Churner, 532 U.S. 731, 741
n.6(2001). The failure of a prisoner “to exhaust administrative
remedies under the PLRA is an affirmative defense that must be
established by the Defendants.” Jones, 549 U.S. at 204.
The defendants are correct that the record established that the
Plaintiff did not exhaust administrative remedies for the time frame
alleged in his complaint. The one grievance that he did exhaust,
filed on February 12, 2016, is not within the time frame that he
alleges in his complaint. His complaint only alleges, as noted by
Judge Sharp (Docket Entry 8), failure to provide medication and food
services for the period of April 28, 2016, through May 27, 2016.
Because the Magistrate Judge believes that the failure to
exhaust is dispositive, the remaining grounds for dismissal will not
be discussed in detail, although the Magistrate Judge would note
that it would appear that if there is a policy suspending food
services and medicine dispensation during lock downs, counts, and

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other security operations by Core Civic further review would be
required. The arguments that in his February grievance, which he did
exhaust, would not have put Core Civic on notice of the problem
caused by excessive lock downs and counts, is not particularly
persuasive. The argument that his allegations that the result of
delays in food and insulin could not constitute serious injuries,
is

likewise

not

particularly

persuasive.

Unfortunately,

the

defendants do not make any clear references to medical records which
might shed some light on the seriousness of the delays. Certainly
the Plaintiff alleges significant injuries which any reasonable
person would think were serious were they actually experiencing
them.
It does not appear that the Plaintiff raised state court claims
in this matter. Therefore, the Magistrate Judge sees no reason to
recommend the dismissal without prejudice of any state claims, as
it does not appear that the Plaintiff ever raised such claims.
RECOMMENDATION
For the reasons stated above the Magistrate Judge RECOMMENDS
that the defendants’ motion for summary judgment (Docket Entry 86)
be GRANTED and this case be DISMISSED in its entirety as to all
defendants with the exception of Aballay and Shweizter whose claims
should be DISMISSED without prejudice for failure to obtain service
of process. The Magistrate Judge further RECOMMENDS that any appeal
from the adoption of this Report and Recommendation not be certified
as taken in good faith.

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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 21st day of December, 2018.

/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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