Coldon v. Ruck et al

Filing 31

REPORT AND RECOMMENDATION: The undersigned recommends that Defendants' Motion for Summary Judgment ( 27 ) be GRANTED and that this action be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Jeffery S. Frensley on 11/21/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE
CARLOS COLDON,
Plaintiff,
v.
METROPOLITAN GOVERNMENT, et al.,
Defendants.

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Case No. 3:17-cv-01296
Judge Crenshaw / Frensley

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon a Motion for Summary Judgment filed by
Defendants’ Metropolitan Government, Pam Hale, Jessie Oliver, and Jason Saad
(“Defendants”).1 Docket No. 27. Along with their Motion, Defendants have contemporaneously
filed a supporting Memorandum of Law (Docket No. 28), a Statement of Undisputed Material
Facts (Docket No. 29), and the Declaration of Tom Davis with Exhibits (Docket Nos. 30 - 30-7).
Plaintiff has not responded to Defendants’ Motion or Statement of Undisputed Material
Facts, nor has he filed his own Statement of Undisputed Material Facts.
Plaintiff, pro se, filed the instant action pursuant to the Americans With Disabilities Act,
42 U.S.C. §12131, et seq. (“the ADA”), 42 U.S.C. §1983, and 42 U.S.C. §2000d (“Title VI”).
Judge Crenshaw, in his Memorandum Opinion issued May 14, 2018, summarized the operative

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Metropolitan Government, Pam Hale, Jessie Oliver, and Jason Saad are the only
remaining served Defendants in this action. Judge Crenshaw, in his Order entered May 14, 2018,
dismissed Tammy Ruck, Chris Brown, Correct Care Solutions, the Davidson County Sheriff’s
Office, and the State of Tennessee as Defendants and they have been terminated as parties to this
action. See Docket No. 15. Tara McBay and April McQueen have not been served.

facts of Plaintiff’s various submissions and amendments to his Complaint as follows:
The Complaint alleges that the Plaintiff is paralyzed and
confined to a wheelchair. Upon arriving as an inmate of the Hill
Detention Center in July 2017, the Plaintiff initially was placed in
Pod-A that is not equipped for paralyzed inmates. After the
Plaintiff’s wife called and spoke with the Plaintiff’s case manager,
Jessie Oliver, the Plaintiff was moved to Pod-D, the jail’s medical
pod. However, Pod-D presented some of the same accommodation
issues for the Plaintiff. The facility doctor placed an order on
September 21, 2017, for the Plaintiff to receive a hospital style air
mattress for his pressure issues, but the Plaintiff never received it.
The Plaintiff believes that he contracted scabies from his
unsanitary mattress while he was housed in Pod-D for seventy
days.
Correct Care Solutions nurse Tammy Ruck discussed the
Plaintiff’s medical information in front of a corrections officer,
f/n/u Mulligan. The Plaintiff believes that this conversation
violated his “HIPA” rights. (Doc. No. 1 at 3). The Plaintiff filed a
grievance regarding his concern. Chief of Security Brown told the
Plaintiff that his grievance “was not a grievance” and was instead a
“case management request.” (Id.) The grievance coordinator wrote
to the Plaintiff that “[m]edical makes every effort to maintain
confidentiality, however, security always comes first in this
environment and security staff is held to the same standard of
maintaining the confidentiality of any information they may
overhear or be present during discussions while maintaining the
security of the facility.” (Doc. No. 9 at 8).
The Plaintiff is aware of an inmate, f/n/u Little, “of another
race and color” who was moved into Pod-D on August 29, 2017,
and provided with all of the accommodations the Plaintiff had
requested, including a new mattress for pressure issues and
assistance transferring to and from showers. When the Plaintiff
told nurse supervisor Tara McBay that he was aware of the
accommodations made for Little but not for Plaintiff, she stated,
“And you’re not!” (Doc. No. 8 at 1-2).
Standards Officer Saad told the Plaintiff to write a letter to
Oliver concerning his accommodation needs, and the Plaintiff
complied. Oliver, however, told the Plaintiff that she could not
accept his letter until he completed a discrimination complaint
form. The Plaintiff completed the discrimination complaint form
and mailed it to the “Metro Human Relations Commission.” (Doc.
No. 1 at 1-2). Saad relayed to the Plaintiff in writing that, after
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reviewing his discrimination complaint, he had determined that the
complaint did not fall under Title VII but that Saad’s review of the
Plaintiff’s ADA concerns was ongoing. Later, Saad relayed to the
Plaintiff: “Upon inspection, the slope in the shower is not within
the acceptable guidelines.” (Doc. No. 1 at 8). The Plaintiff was
permitted to take a shower in a nearby cell where Saad determined
the slope was acceptable.
Immediately after the Plaintiff filed his grievance and
discrimination complaint, the Plaintiff was moved from Pod-D
(medical pod) back to Pod-A (general population). The Plaintiff
initially refused to change pods, stating that he had been moved
from Pod-A for medical reasons, and he was punished by being put
on lockdown for five days. (Doc. No. 9 at 11). The Plaintiff
believes the move was an act of retaliation by Correct Care
Solutions nurses McQueen and McBay for the Plaintiff having
spoken up about the lack of accommodations and discrimination.
The Plaintiff was subsequently transferred to the “MCC, a
maximum security facility.” (Doc. No. 5 at 2). There, the
Plaintiff’s cell is not equipped with a toilet that the Plaintiff can
use as a paralyzed man. He is required by facility staff to defecate
in a bucket. The Plaintiff alleges that requiring him to defecate in a
bucket “while everyone else here is accomodated [sic] with
disposing of feces at the push of a button” is “humiliating,”
“unhygienic, and disgusting . . . “ (Id.) The Plaintiff alleges that
feces “circulate[s] through [his] cell on the legs of flies, [g]nats,
and in dust.” (Id.) According to the Plaintiff, the staff at MCC is
“well aware” of his housing needs because on October 18, 2017,
two officers entered the Plaintiff’s cell and recorded the conditions.
The Plaintiff is being denied adequate bedding that is
needed for his pressure issues. The Plaintiff is never provided
assistance with transferring to the toilet or shower. The Plaintiff
contends: “Since July 4th of 2017, the Davidson County, Tennessee
‘Metro’ prisons I have been held at have all been unequipped with
the proper A.D.A. facilities for a disabled person as myself. But
when I complained, they only helped the white inmate in my unit
but ignored me.” (Doc. No. 9 at 6).
Docket No. 14, p. 4-7 (footnotes omitted).
Upon completion of his initial review of this matter conducted pursuant to the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. §1915A, Judge Crenshaw, in his Order entered May

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14, 2018, struck all of Plaintiff’s claims except the following: 1) Plaintiff’s ADA claim against
Metro Government; 2) Eighth Amendment §1983 claims against Defendants Saad, Hale, Oliver,
McQueen, and McBay in their individual capacities;2 and 3) Eighth Amendment claims against
Metro Government. Docket No. 15. Accordingly, these claims are the only claims now before
the Court.
Defendants filed the instant Motion for Summary Judgment and supporting materials on
August 16, 2018, arguing that they are entitled to Summary Judgment because Plaintiff failed to
exhaust his administrative remedies as required under the Prison Litigation Reform Act,
(“PLRA”), 42 U.S.C. §1997e(a). Docket Nos. 27 - 30-7.
For the reasons set forth below, the undersigned recommends that Defendants’ Motion for
Summary Judgment (Docket No. 27) be GRANTED and that this action be DISMISSED WITH
PREJUDICE.
II. Undisputed Facts3
From July 4, 2017 to March 13, 2018, Plaintiff was an inmate incarcerated at facilities
maintained by the Davidson County Sheriff’s Office (“DCSO”). Docket No. 30, Declaration of
Tom Davis, Records Manager for the DCSO (“Davis Dec.”), ¶ 2.
DCSO Policy #1-3.540 governs inmate grievances. Id., ¶ 3, citing Ex. 1 attached thereto.
According to Policy #1-3.540, complaints about specific incidents must be filed within seven (7)

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Judge Crenshaw also allowed to proceed Plaintiff’s Fourteenth Amendment Equal
Protection claim against Defendant McBay in her individual capacity and Plaintiff’s First
Amendment retaliation claims against Defendants McBay and McQueen in their individual
capacities. Docket No. 15. Tara McBay and April McQueen have not, however, been served.
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Unless otherwise noted, the following facts are in a form required by Fed. R. Civ. P. 56,
and are undisputed.
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days of the incident, and complaints about policies or practices must be filed within seven (7)
days of the most recent time the inmate was affected. Exhibits 1, 2. Once the inmate submits the
grievance, it is given to a grievance coordinator, who assigns it to a respondent. Id. Once the
investigation of the grievance has been completed, the respondent will close the case and inform
the inmate of the results of the grievance, including a finding of “sustained” or “unsustained.”
Id. If the inmate is dissatisfied with the grievance response, he or she may appeal the response
within five (5) working days to the facility administrator or appropriate chief, who will then
answer it within seven (7) working days. Id.
Inmates at DCSO have access to the information in the inmate handbook that includes a
summary of the inmate grievance process. Davis Dec., ¶ 3, citing Ex. 2 attached thereto.
Records Manager Davis has access to, and is a custodian of, the grievance records
maintained by the DCSO, including grievance appeals, all of which are created and maintained in
the normal course and scope of DCSO’s business by persons whose duties include the creation,
compilation and/or retention of DCSO grievance records. Id., ¶ 4. Records Manager Davis has
reviewed all of the inmate grievances for Plaintiff during the period of his incarceration at
DCSO. Id., ¶ 5.
On August 2, 2017, Plaintiff filed Grievance #222815, which was addressed to case
management officer Jessie Oliver and related to his time served credits. Id., ¶ 6, citing Ex. 3,
attached thereto. That grievance was found to be unsustained. Id. Plaintiff did not appeal that
finding. Id.
On August 29, 2017, Plaintiff filed Grievance #223538, which was against a Correct Care
Solutions employee (“nurse Tammy”) regarding his accommodations. Id., ¶ 7, citing Exs. 4, 5
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attached thereto. That grievance was found to be unsustained. Id. Plaintiff did not appeal that
finding. Id.
On September 26, 2017, Plaintiff filed Grievance #224210, which was related to being
moved for purposes of retaliation. Id., ¶ 8, citing Exs. 6, 7 attached thereto. That grievance was
found to be unsustained. Id. Plaintiff did not appeal that finding. Id.
Other than the grievances set forth herein, Plaintiff did not file any other grievances
related to the subject matter of the court filings in this matter. Id., ¶ 9. Plaintiff has never filed a
grievance against Pam Hale or Jason Saad. Id., ¶ 10.
III. Law and Analysis
A. Local Rules 7.01(b) and 56.01(c) and (g)
Local Rule 7.01(b) states, in pertinent part:
b. Response. Each party opposing a motion shall serve and file a
response, memorandum, affidavits and other responsive material
not later than fourteen (14) days after service of the motion, except,
that in cases of a motion for summary judgment, that time shall be
twenty-one (21) days after the service of the motion, unless
otherwise ordered by the Court. Failure to file a timely response
shall indicate that there is no opposition to the motion.
Defendants filed the instant Motion on August 16, 2018. Docket No. 27. Plaintiff has
failed to respond to Defendants’ Motion.
Additionally, with respect to Motions for Summary Judgment specifically, Local Rules
56.01(c) and (g) state, in pertinent part:
c. Response to Statement of Facts. Any party opposing the
motion for summary judgment must respond to each fact set forth
by the movant by either (i) agreeing that the fact is undisputed; (ii)
agreeing that the fact is undisputed for the purpose of ruling on the
motion for summary judgment only; or (iii) demonstrating that the
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fact is disputed. Each disputed fact must be supported by a citation
to the record. ...
...
g. Failure to Respond. Failure to respond to a moving party’s
statement of material facts, or a non-moving party’s statement of
additional facts, within the time periods provided by these Rules
shall indicate that the asserted facts are not disputed for the
purposes of summary judgment.
As discussed above, Plaintiff has failed to respond to Defendants’ Statement of
Undisputed Material Facts or file his own Statement of Undisputed Material Facts. Pursuant to
Local Rule 56.01(g), Plaintiff’s failure to respond indicates “that the asserted facts are not
disputed for the purposes of summary judgment.” Accordingly, there are no genuine issues as to
any material fact and all that remains to be determined is whether Defendants are entitled to a
judgment as a matter of law.
B. Motion for Summary Judgment
It would be inappropriate to grant Defendants’ Motion solely on the ground that Plaintiff
has failed to respond. See Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir.
1998). As the Sixth Circuit has stated:
[A] district court cannot grant summary judgment in favor of the
movant simply because the adverse party has not responded. The
Court is required, at a minimum, to examine the movant’s Motion
for Summary Judgment to ensure that he has discharged [his
initial] burden ... The federal rules require that the party filing a
Motion for Summary Judgment “always bears the burden of
demonstrating the absence of a genuine issue as to a material fact.”
Id. (citations omitted). The Court will, therefore, consider whether Defendants have met their
burden under the appropriate summary judgment standards discussed below.
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate only “if the pleadings,
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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” A dispute is “genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
In order to prevail on a Motion for summary judgment, the moving party must meet the
burden of proving the absence of a genuine issue as to material fact concerning an essential
element of the opposing party’s claim. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553, 91 L. Ed. 2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). In determining whether the moving party has met its burden, the Court must view the
evidence in the light most favorable to the nonmoving party. Matsushita Electric Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Fed. R. Civ. P. 56 provides that the nonmoving party may not rest upon the mere
allegations or denials of his or her pleading, but his or her response, by affidavits or otherwise,
must set forth specific facts showing that there is a genuine issue for trial. If a nonmoving party,
however, fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial, there is no genuine
issue as to any material fact because a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex, 477 U.S. at
322-23, 106 S. Ct. at 2552, 91 L. Ed. 2d at 273. When this occurs, the moving party is entitled to
summary judgment as a matter of law. Id. at 322-23, 106 S. Ct. at 2552; Williams v. Ford Motor
Co., 187 F.3d 533, 537-38 (6th Cir. 1999).
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C. Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e
A prisoner must exhaust all available administrative remedies before filing a claim under
§1983 or any other federal law. 42 U.S.C. §1997e(a). See also, e.g., White v. McGinnis, 131
F.3d 593, 595 (6th Cir. 1997); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998); Wyatt v.
Leonard, 193 F.3d 876, 878 (6th Cir. 1999). The Prison Litigation Reform Act of 1995 provides
in pertinent part as follows:
(a) Applicability of Administrative Remedies. No action shall
be brought with respect to prison conditions under section 1983
of this title, 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) (emphasis original).
Additionally, the filing of an initial grievance is not sufficient to satisfy the requirements
of ' 1997e(a). Rather, the PLRA exhaustion of prison administrative remedies requires a
prisoner to pursue his prison grievance through the final level of administrative appeal.
Hartsfield v. Vidor, 199 F.3d 305, 306 (6th Cir. 1999). In Hartsfield, the Sixth Circuit explicitly
stated:
Even if Plaintiff did file an initial grievance against [defendants],
he was required to continue to the next step in the grievance
process . . . . We have previously held that an inmate cannot simply
. . . abandon the process before the completion and claim that he
has exhausted his remedies. . .
When a defendant shows that a plaintiff has not Aexhausted all available state
administrative remedies,@ the only remaining question is whether Plaintiff=s claims have been
brought with respect to Aprison conditions@ as that term is used in 42 U.S.C. ' 1997e(a).
The Sixth Circuit discussed the meaning of the term Aprison conditions@ as used in 42
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U.S.C. ' 1997e(a) in Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999). In Freeman, Plaintiff
inmate brought a lawsuit against prison officials claiming that they had used excessive force
against him. The lower court had dismissed his complaint for failure to exhaust administrative
remedies. On appeal, Plaintiff argued in part that he was not required to exhaust his
administrative remedies because his excessive force claim did not involve a Aprison condition@
within the meaning of ' 1997e(a). The Freeman Court stated in part as follows:
The phrase Aaction . . . with respect to prison conditions@ is not
defined in ' 1997e. Because the question is one of statutory
construction, we must first look to the plain language of the statute.
Defendants argue that the term Aprison conditions@ as used in 18
U.S.C. ' 3626(g)(2), which was amended as part of the same
legislation as ' 1997e, does include claims such as excessive force
because it expressly includes Aeffects of actions of government
officials on the lives of confined persons@ as well as Aconditions of
confinement@ in defining Aprison conditions.@ . . . It is generally
recognized that when Congress uses the same language in two
different places in the same statute, the words are usually read to
mean the same thing in both places. . . .
Moreover, reading the term Aprison conditions@ to include claims
of excessive force finds support in the purpose and legislative
history of the Act. The Act was passed to reduce frivolous prisoner
lawsuits and to reduce the intervention of federal courts into the
management of the nation=s prison systems. A broad exhaustion
requirement that includes excessive force claims effectuates this
purpose and maximizes the benefits of requiring prisoners to use
prison grievance procedures before coming to federal court.
Prisons need to know about and address claims of excessive force
as they would any other claim concerning prison life so that steps
may be taken to stop problems immediately if they exist.
196 F.3d at 643-644 (footnote omitted).
The U. S. Supreme Court has also held that A' 1997e(a)=s exhaustion requirement applies
to all prisoners seeking redress for prison circumstances or occurrences.@ See Porter v. Nussle,

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534 U.S. 516, 520, 122 S.Ct. 983, 986 (2002). As the Porter Court stated:
Beyond doubt, Congress enacted ' 1997e(a) to reduce the quantity
and improve the quality of prisoner suits; to this purpose, Congress
afforded corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal
case. In some instances, corrective action taken in response to an
inmate=s grievance might improve prison administration and satisfy
the inmate, thereby obviating the need for litigation. . . . In other
instances, the internal review might Afilter out some frivolous
claims.@ . . . And for cases ultimately brought to court, adjudication
could be facilitated by an administrative record that clarifies the
contours of the controversy.
...
For the reasons stated, we hold that the PLRAs exhaustion
requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.
122 S.Ct. at 988, 992 (citations omitted, emphasis added).
D. The Case at Bar
As an initial matter, under the reasoning of Porter and Freeman, Plaintiff=s claims in
the case at bar fall within the meaning of the term “prison conditions” as used in ' 1997e(a).
He is, therefore, required to exhaust his administrative remedies as set forth in the PLRA.
It is undisputed that, at all times relevant to the instant action, DCSO Policy #1-3.540
governs inmate grievances, and that according to Policy #1-3.540, complaints about specific
incidents must be filed within seven (7) days of the incident, and complaints about policies or
practices must be filed within seven (7) days of the most recent time the inmate was affected.
It is further undisputed that once the inmate submits the grievance, it is given to a grievance
coordinator, who assigns it to a respondent; that once the investigation of the grievance has
been completed, the respondent will close the case and inform the inmate of the results of the
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grievance, including a finding of “sustained” or “unsustained”; and that if the inmate is
dissatisfied with the grievance response, he or she may appeal the response within five (5)
working days to the facility administrator or appropriate chief, who will then answer it within
seven (7) working days. Id. It is also undisputed that inmates at DCSO have access to the
information in the inmate handbook that includes a summary of the inmate grievance process.
As relates to Plaintiff specifically, it is undisputed that Plaintiff filed Grievance
#222815 on August 2, 2017, Grievance #223538 on August 29, 2017, and Grievance #224210
on September 26, 2017; that each of these grievances was found to be “unsustained”; and that
Plaintiff did not appeal any of these findings. Finally, it is undisputed that Plaintiff did not file
any other grievances related to the subject matter of the court filings in this matter, and has
never filed a grievance against Pam Hale or Jason Saad. Thus, Plaintiff has failed to exhaust
his administrative remedies as required under the PLRA. Accordingly, his claims should be
dismissed.
IV. Conclusion
For the foregoing reasons, the undersigned recommends that Defendants’ Motion for
Summary Judgment (Docket No. 27) be GRANTED and that this action be DISMISSED
WITH PREJUDICE.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service 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 fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
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service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See 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); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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JEFFERY S. FRENSLEY
United States Magistrate Judge

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