Norris v. Core Civic Inc.

Filing 27

REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that the Plaintiff's claims be dismissed for failure to exhaust administrative remedies and that any appeal from such a dismissal not be certified as taken in good faith. Signed by Magistrate Judge Joe Brown on 4/17/18. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
CHARLES NORRIS,
Plaintiff
v.
CORECIVIC, INC.,
Defendant
TO:

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No. 3:17-1150
Judge Trauger/Brown
Jury Demand

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
Presently pending is a motion for summary judgment by the

sole defendant in this case, CoreCivic. For the reasons stated
below the Magistrate Judge recommends that the motion be granted
and that any appeal from such a decision not be certified as made
in good faith.
BACKGROUND
The Plaintiff filed his complaint against CoreCivic as
the sole defendant in this case on August 14, 2017 (Docket Entry
1). The complaint alleges that on June 13, 2017, CoreCivic had an
outbreak of scabies due to the fact that they allowed females to
come into the facility without being screened for scabies and also
allowed female clothing to be washed with that of male inmates
without the use of bleach. He alleged that he contracted scabies
and was itching so bad that blood was drawn and there are now scars
on his legs. He alleged that he was offered six pills, but that
CoreCivic employees would not tell him what the pills were and that
they wanted the inmates to sign a form saying they were not itching

or the inmates would go to segregation. He alleged that they were
locked down for three days and not allowed to use the telephone or
take a shower.
After the Plaintiff completed an application to proceed
in forma pauperis he filed an amended complaint (Docket Entry 4)
using a court-provided form. In Section II-E the Plaintiff checked
yes on the box that he had presented the facts of his complaint to
the prison authorities through the State grievance procedure.
In paragraph F-1 he alleged he did this through informal
sick calls, and in paragraph 2 that the prison authorities “want
answer informal.”
He

also

alleged

in

paragraphs

H,

I

and

J

that

he

presented his grievances to the detention facility authorities,
again through informal sick calls, and that the response of the
authorities who ran the detention facility “want answers informal
and gave me 6 pills for scabies.”
In his statement of facts, paragraph IV, he essentially
repeated the complaint about contracting scabies because female
prisoners were allowed to come straight from the street without
being sanitized before they entered the facility where male inmates
were housed.
On initial review, the Court found that CoreCivic is a
privately held corporation under contract with the Metropolitan
Government of Nashville and Davidson County to operate the Metro/
Davidson County Detention Facility. The Court further held that

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concerning the Plaintiff’s claim that he had been infected with
scabies there is a duty under the Eighth Amendment for the county
to

provide

prisoners

with

adequate

food,

clothing,

shelter,

sanitation, recreation, and medical care, citing Grubbs v. Bradley,
552 F. Supp. 1052 (1119-24) (M.D. Tenn. 1982), and that the
Plaintiff had therefore stated a colorable claim for relief under
28 U.S.C. § 1915A.
A scheduling order was entered in this case on November
7, 2017 (Docket Entry 13). In the scheduling order the Plaintiff
was specifically advised that a response to the motion for summary
judgment should respond to each ascertain of fact, including
whether it was disputed or not disputed for the purpose of summary
judgment, and that if the statement of fact was disputed it would
be supported by a specific citation to the record.
The

Plaintiff

was

specifically

warned

that

if

a

dispositive motion was not responded to in a timely fashion it
could result in the Court taking the facts alleged in the motion as
true and granting the requested relief. The Plaintiff was told that
he could not simply rely on the allegations of his complaint alone.
Rather, the Plaintiff must show that there is a genuine dispute of
fact by citation to the record, affidavit, deposition testimony, or
otherwise.
The motion for summary judgment (Docket Entry 21) was
filed on March 8, 2018. It was supported by a memorandum of law
(Docket Entry 22), a declaration of Mr. Aylward (Docket Entry 23).

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Mr. Aylward certified that he was an employee of CoreCivic and
charged with handling the grievance procedures at the Metro/
Davidson County Detention Facility. He set forth the grievance
procedure at the institution and certified that the Plaintiff filed
some informal grievances during his incarceration prior to August
9, 2017, which were attached to his affidavit. He stated that none
of the informal grievances involved scabies. He specifically stated
that their records did not show that the Plaintiff filed any
grievances, formal or informal, or appeals, regarding scabies prior
to August 9, 2017. The Plaintiff’s original complaint, although
filed on August 14, 2017, was dated by the Plaintiff as signed on
August 9, 2017.
CoreCivic’s motion (Docket Entry 21) also contained a
declaration of Dr. James Bridges, M.D. (Docket Entry 24). His
affidavit details the treatment the Plaintiff received while at the
detention facility and noted that he did request medical treatment
due to the fact that he reported that he had suffered from
psoriasis for the previous three years and that he was evaluated
for this condition on numerous occasions between June 15, 2015, and
October 17, 2017.
The Defendant also filed the declaration of John Rychen
(Docket Entry 25). He stated that he was the Assistant Warden at
the detention facility during the times in question and provided
various policies enforced at the detention facility. He stated that
female inmates were examined upon incarceration and that the

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detention facility separately washed the laundry of female inmates
from the laundry of male inmates. He stated that sometime in
approximately May or June 2017 some inmates incarcerated at the
detention

facility

declined

to

take

a

preventative

dose

of

Izermectin that was offered them and that when they did they were
asked to sign a refusal of treatment form. He stated that inmates
were not forced to sign paperwork regarding scabies or risk being
placed in restrictive housing.
Finally, the Defendant provided a statement of undisputed
material facts (Docket Entry 26) to which the Plaintiff has not
responded. Since the Plaintiff has not responded to the statement
of

material

facts

and

was

specifically

warned

about

the

consequences of failing to do so the Magistrate Judge will deem the
statements of fact admitted for the purpose of summary judgment.
The

Magistrate

affidavits

in

Judge

has

support

specifically

of

the

motion

reviewed
for

the

summary

various
judgment,

particularly concerning whether the Plaintiff filed any grievance
or not. All the statements of material facts appear to have a
factual basis in the record.
LEGAL DISCUSSION
The Plaintiff alleged in both his complaint and his
amended complaint that he had filed administrative grievances.
However,
agreement

the
and

Plaintiff’s
the

statement

response

was

not

about

the

clear.

nature

of

the

Nevertheless,

the

Plaintiff is not required to demonstrate in his complaint that he

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has exhausted his administrative remedies. Jones v. Bock, 549 U.S.
199

(2007).

Defendant

Exhaustion

has

is

specifically

an

affirmative

raised

in

the

defense,
motion

which

for

the

summary

judgment.
The Defendant, having raised the defense, the Plaintiff
is under an obligation to establish that he did in fact file an
administrative grievance about the scabies outbreak. Woodford v.
Ngo, 548 U.S. 81, 84-85 (2006); Napier v. Laurel County, 636 F.3d
218, 225 (6th Cir. 2011).
In this case, the Plaintiff has come forward with no
evidence that he filed an administrative grievance or that he
followed

through

on

any

denial

of

such

a

grievance

by

the

Defendant. The Plaintiff’s statement in his complaint that he filed
an administrative grievance hardly demonstrates that he actually
complied with the applicable exhaustion requirements (Napier, 636
F.3d at 225). The Plaintiff failed to respond to the Defendant’s
statement of undisputed material facts Nos. 1 and 2.
While the Defendant makes a number of other arguments,
which they contend would justify dismissal of the case it appears
that the failure to exhaust administrative remedies is dispositive
and the Court need not address the other grounds for dismissal.
Given the Plaintiff’s total failure to respond to the
motion for summary judgment or the statement of undisputed facts
the Magistrate Judge can only conclude that the Defendant has
properly established that the Plaintiff failed to exhaust his

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administrative remedies and thus, under the case law cited above,
this case is subject to dismissal on those grounds.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the Plaintiff’s claims be dismissed for failure
to exhaust administrative remedies and that any appeal from such a
dismissal 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 17th day of April, 2018.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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