Bowers v. Power et al

Filing 40

REPORT AND RECOMMENDATION re 34 MOTION for Summary Judgment filed by Blair Leibach. The undersigned respectfully RECOMMENDS that the motion for summary judgment of Defendant Blair Leibach ( 34 ) be GRANTED and that this lawsuit be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Barbara D. Holmes on 12/20/18. (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
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DYLAN C. BOWERS
v.
BLAIR LEIBACH

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NO. 3:17-1599

TO: Honorable Waverly D. Crenshaw, Jr., Chief District Judge

REPORT AND RECOMMENDATION
By Order entered April 16, 2018 (Docket Entry No. 15), the Court referred this pro se and
in forma pauperis prisoner civil rights action to the Magistrate Judge for pretrial proceedings under
28 U.S.C. §§ 636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of Civil Procedure, and the Local
Rules of Court.
Presently pending before the Court is the motion for summary judgment (Docket Entry
No. 34) filed by Defendant Blair Leibach, to which Plaintiff has not filed a response. For the reasons
set forth below, the undersigned respectfully recommends that the motion be granted and this action
be dismissed.

I. BACKGROUND
On December 22, 2017, Dylan Bowers (“Plaintiff”) filed this pro se and in forma pauperis
lawsuit, bringing claims for damages under 42 U.S.C. § 1983. See Complaint (Docket Entry No. 1).
At the time he filed the lawsuit, Plaintiff was an inmate in the Metro-Davidson County Detention

Facility (“Detention Facility”) in Nashville, Tennessee,1 and he alleged that his constitutional rights
were being violated at the Detention Facility.
Upon initial review under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court found that Plaintiff
asserted a colorable claim under 42 U.S.C. § 1983 against Detention Facility Warden Blair Leibach
(“Defendant” or “Leibach”) based on allegations that Leibach retaliated against Plaintiff in violation
of his First Amendment rights because of his grievance filing activity at the Detention Facility. See
Memorandum Opinion (Docket Entry No. 14) at 9-10. Specifically, Plaintiff alleges that Leibach
threatened Plaintiff by telling him that, if he did not stop filing grievances or “informals on [Leibach’s]
staff,” Leibach was going to “hide [the Plaintiff] away.” See Complaint at 5. Plaintiff further alleges
that Leibach temporarily suspended Plaintiff’s grievance privileges because Plaintiff had purportedly
filed excessive grievances. See Plaintiff’s Letter (Docket Entry No. 12) at 2.2
After Defendant filed his answer, see Docket Entry No. 20, a scheduling order was entered
that provided for a period of pretrial activity in the action. See Docket Entry No. 24. Plaintiff’s
motion for preliminary injunctive relief was denied by Order entered August 29, 2018. See Docket
Entry No. 33.

II. MOTION FOR SUMMARY JUDGMENT
Defendant seeks summary judgment under Rule 56 of the Federal Rules of Civil Procedure
based on two arguments. First, Defendant argues that Plaintiff did not file a grievance about

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The docket reflects that Plaintiff called the Clerk’s Office on June 29, 2018, and provided the
Clerk’s Office with a non-institutional, residential mailing address
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All other claims raised in Plaintiff’s complaint were dismissed by the Court upon initial review.
See Docket Entry No. 15 at 3.
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Defendant’s purported actions and thus, did not exhaust his available administrative remedies at the
Detention Facility prior to filing his lawsuit as required by the Prison Litigation Reform Act of 1996
(“PLRA”), 42 U.S.C. § 1997e. See Memorandum in Support of Motion for Summary Judgment
(Docket Entry No. 35) at 5-6. Second, Defendant argues that there is no evidence showing that he
retaliated against Plaintiff or took any actions that violated Plaintiff’s constitutional rights. Id. at 6-10.
Defendant denies making any threats against Plaintiff because of Plaintiff’s grievance filing activity.
Defendant further asserts that, in accordance with internal Detention Facility policies, he temporarily
suspended Plaintiff’s grievance filing privileges for a period of a few weeks because Plaintiff had filed
eleven grievances or informal resolutions in a ten day period and the grievance staff needed time to
process and address his pending grievances without any new grievances being filed by Plaintiff. Id.
In support of his motion, Defendant relies upon: (1) a statement of undisputed material facts (Docket
Entry No. 36); (2) his own declaration (Docket Entry No. 38); and, (3) the declaration of Bobby
Aylward, a staff member at the Detention Facility who is involved with the grievance process (Docket
Entry No. 37).
Although Plaintiff was notified of the motion, informed of the need to respond, and given a
response deadline of November 16, 2018, see Order entered October 4, 2018 (Docket Entry No. 39),
he has not filed a response of any kind to the motion for summary judgment.

III. STANDARD OF REVIEW
A motion for summary judgment is reviewed under the standard that summary judgment is
appropriate 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.” Rule 56(a) of the Federal Rules of Civil Procedure.
See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A “genuine issue of material fact”
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is a fact which, if proven at trial, could lead a reasonable jury to return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of showing the absence of genuine factual disputes from
which a reasonable jury could return a verdict for the non-moving party. Anderson, at 249-50. Once
the moving party has presented evidence sufficient to support a motion for summary judgment, the
non-moving party must present significant probative evidence to support the complaint. Goins v.
Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). In considering whether summary judgment is
appropriate, the Court must “look beyond the pleadings and assess the proof to determine whether
there is a genuine need for trial.” Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert. denied,
531 U.S. 875 (2000). The Court must view the evidence and all inferences drawn from underlying
facts “in the light most favorable to the party opposing the motion.” See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986); Gribcheck v. Runyon, 245 F.3d 547, 550 (6th
Cir.), cert. denied, 534 U.S. 896 (2001).

IV. CONCLUSIONS
A. Exhaustion of Administrative Remedies
Pursuant to 42 U.S.C. § 1997e(a) of the PLRA, a prisoner asserting an action with respect to
prison conditions under 42 U.S.C. § 1983 must first exhaust all available administrative remedies
before filing a lawsuit about the conditions. See Porter v. Nussle, 534 U.S. 516, 524 (2002). If there
is a grievance procedure available to inmates, the prisoner plaintiff must present his grievance through
“one complete round” or through all the steps of the administrative grievance procedure in order to
satisfy the exhaustion requirement. See Thomas v. Woolum, 337 F.3d 720, 733 (6th Cir. 2003),
abrogated on other grounds, Woodford v. Ngo, 548 U.S. 81 (2006); Hartsfield v. Vidor, 199 F.3d 305,
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306 (6th Cir. 1999). The failure of a prisoner plaintiff to satisfy the exhaustion requirement is an
affirmative defense that a defendant must raise and prove. Jones v. Bock, 549 U.S. 199, 216 (2007).
Once the defense of failure to exhaust is raised and supported, the burden is on the prisoner plaintiff
to present evidence showing that he has complied with the PLRA’s requirement of exhaustion. See
Napier v. Laurel Cnty., Ky., 636 F.3d 218, 225 (6th Cir. 2011).

B. First Amendment Standards
The First Amendment protects a prisoner’s ability to pursue grievances against prison
officials. See Pell v. Procunier, 417 U.S. 817, 822 (1974); Noble v. Schmitt, 87 F.3d 157, 162 (6th Cir.
1996). As such, a prisoner cannot be retaliated against because he has filed a non-frivolous grievance.
See Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir. 2005); Smith v. Campbell, 250 F.3d 1032,
1036-37 (6th Cir. 2001); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Because of the
unique context of the prison setting, however, some events that are objectionable to the complaining
prisoner simply do not rise to a level of harm necessary to implicate constitutional concern. See
Thaddeus-X v. Blatter, 175 F.3d 378, 395 and 398 (6th Cir. 1999). While an act alleged to be
retaliatory need not be egregious, prisoner inmates “may be required to tolerate more than a average
citizen.” Id. at 398. In order to determine whether an allegation of retaliation rises to the level of a
First Amendment claim, a prisoner must show that: 1) he engaged in protected conduct; 2) an adverse
action was taken against him that would deter a prisoner of "ordinary firmness" from continuing to
engage in the protected conduct; and 3) there is a causal connection between the first two elements -that is, the adverse action was motivated at least in part by the protected conduct. Thaddeus-X, 175
F.3d at 394. The plaintiff has the burden of proof on all three elements. Murray v. Unknown Evert,
84 Fed.App’x. 553, 556, 2003 WL 22976618 (6th Cir. Dec. 8, 2003).
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C. Plaintiff’s Claim and Summary Judgment
Although the allegations in Plaintiff’s complaint were sufficient to permit the case to survive
initial frivolity review and to have process issued to Defendant on the First Amendment retaliation
claim, Plaintiff has not responded to the arguments for summary judgment made by Defendant in his
dispositive motion, has not responded to Defendant’s statement of undisputed facts as required by
Local Rule 56.01(f),3 and has not set forth any evidence supporting his claim.
When a motion for summary judgment is properly supported under Rule 56, such as
Defendant’s motion, the non-moving party may not merely rest on the allegations contained in the
complaint, but must respond with affirmative evidence supporting his claims and establishing the
existence of a genuine issue of material fact that requires that the action proceed to trial. See Celotex
Corp., 477 U.S. at 323-24; Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); Chao
v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). As the Sixth Circuit has noted, when a
defendant files a motion for summary judgment, the plaintiff is challenged to "put up or shut up" on
critical issues. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989). Plaintiff’s pro se
status does not relieve him of this obligation, which is a threshold requirement for all non-moving
parties when summary judgment is sought by an opposing party. Sixty Ivy St. Corp. v. Alexander, 822
F.2d 1432, 1435 (6th Cir. 1987). The Court cannot supply or assume facts supporting Plaintiff’s case
and is not required to make legal arguments on his behalf. See Thompson v. A.J. Rose Mfg. Co., 208
F.3d 215, 2000 WL 302998 (6th Cir. 2000); Bell v. Tennessee, 2012 WL 996560, *9 (E.D. Tenn.
March 22, 2012). See also Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir.

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Local Rule 56.01(f) provides that Plaintiff’s failure to respond to Defendant’s statement of
undisputed facts shall deem the asserted facts to be undisputed for the purposes of summary judgment.
Accordingly, the Court is permitted to rely upon the facts set forth by Defendant as the undisputed
facts.
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1992) (“it seems to us utterly inappropriate for the court to abandon its position of neutrality in favor
of a role equivalent to champion for the non-moving party: seeking out facts, developing legal theories,
and finding ways to defeat the motion.").
With respect to Defendant’s failure to exhaust argument, Defendant has set forth evidence that
Policy 14-05 provides for a three step grievance procedure at the Detention Facility that allows inmates
to file an informal resolution, a formal grievance, and a grievance appeal for issues relating to their
conditions of confinement. See Declaration of Aylward at ¶ 3. Defendant contends that, although
Plaintiff made use of the grievance procedure on multiple occasions, he did not initiate a grievance
about Defendant’s alleged retaliatory acts. Id. at ¶¶ 6 and 8. Thus, Defendant argues that Plaintiff
failed to fully exhaust his available administrative remedies. In the face of the motion for summary
judgment, Plaintiff must rebut Defendant’s exhaustion defense by presenting “significant probative
evidence” showing compliance with the PLRA. See Napier, supra. Plaintiff has not set forth any
evidence showing his compliance with the PLRA’s exhaustion requirement. Indeed, he has not even
responded to the motion for summary judgment. Accordingly, Plaintiff’s lawsuit should be dismissed
because of his failure to show his compliance with the mandatory exhaustion requirement of the
PLRA.
The Court also finds that summary judgment is warranted in favor of Defendant on the merits
of Plaintiff’s claim. Plaintiff is not entitled to a trial merely on the basis of allegations, Goins, supra,
and he must buttress the allegations of his complaint with evidence supporting his claim. Banks v.
Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). He has not done so with respect to his
retaliation claim. Defendant has set forth specific, affirmative evidence that (1) Plaintiff was not
threatened by Defendant because of his grievance filing and (2) a legitimate, penological reason
existed for the temporary suspension of Plaintiff’s grievance filing privileges. See Declaration of
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Leibach at ¶¶ 5-7. This evidence, which is unrebutted by Plaintiff and is deemed to be undisputed by
virtue of Plaintiff’s failure to respond to Defendant’s Statement of Undisputed Material Facts, is
sufficient to show that Plaintiff was not subjected to a constitutionally actionable adverse action under
the Thaddeus-X standard. Based on the evidence before the Court, no reasonable jury could find that
Defendant Leibach acted in a manner that was inconsistent with Plaintiff’s First Amendment rights.

RECOMMENDATION
Based on the forgoing, the undersigned respectfully RECOMMENDS that the motion for
summary judgment of Defendant Blair Leibach (Docket Entry No. 34) be GRANTED and that this
lawsuit be DISMISSED WITH PREJUDICE.
ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen (14)
days of service of this Report and Recommendation and must state with particularity the specific
portions of this Report and Recommendation to which objection is made. See Rule 72(b)(2) of the
Federal Rules of Civil Procedure and Local Rule 72.02(a). Failure to file written objections within the
specified time can be deemed a waiver of the right to appeal the District Court's Order regarding the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any response to the objections must
be filed within fourteen (14) days after service of objections. See Federal Rule 72(b)(2) and Local
Rule 72.02(b).

Respectfully submitted,

BARBARA D. HOLMES
United States Magistrate Judge
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