Plemons, Jr. v. Core Civic Administrative Headquarters et al

Filing 101

REPORT AND RECOMMENDATION: The undersigned therefore recommends that Defendants' Motions for Summary Judgment (Docket Nos. 81, 85) be GRANTED and that this action be DISMISSED. Signed by Magistrate Judge Jeffery S. Frensley on 9/30/2019. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw) Modified on 9/30/2019 (jw).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

DAVID HOPKINS PLEMONS,
Plaintiff,
v.
CORE CIVIC ADMINISTRATIVE
HEADQUARTERS, et al.,
Defendants.

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Case No. 3:18-cv-00498
Judge Crenshaw / Frensley

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon two Motions for Summary Judgment: the first, filed
by Defendant Brun;1 and the second, filed by Defendants’ Washburn and Greer. Docket Nos. 81,
85.2
Plaintiff filed this pro se action pursuant to 42 U.S.C. § 1983 alleging that Defendants
violated his First and Eighth Amendment rights. Docket No. 1. Plaintiff contends that, on
November 3, 2017 a suspected gang member was assigned to his cell at Trousdale Turner
Correctional Complex (“Trousdale”) to punish him for filing an incident report and seeking
protective custody. Id. As pertains to the instant Defendants, Plaintiff avers that Defendants

1

2

Christopher Brun was incorrectly named “Chris Brums” in the earlier filings.

Defendants Brun, Greer, and Washburn are the only remaining Defendants in this action
who have been served. Chief of Security Cox, Sargent Caster, and Chief of Security Cleek have
not been served, while CoreCivic, Trousdale Turner Correctional Center, Unit Manager Oswald,
Corrections Officer Williamson, Alpha Unit Huntly, Alpha Unit Hinson, and Senior Grievance
person Pierce were terminated as Defendants in this matter in an Order entered August 28, 2018.
See Docket No. 10.

Washburn and Brun knew that the suspected gang member was placed in his cell to punish him.
Id. Plaintiff contends that he was physically and sexually assaulted and that Defendants
Washburn and Brun failed to protect him from being attacked and failed to place him in
protective custody or reassign his cell. Id. Plaintiff avers that he was rendered unconscious and
that he suffered visible bruises, broken ribs, rectal bleeding, and a bloody nose as a result of
being physically and sexually assaulted. Id. Plaintiff avers that, during a protective custody
hearing, he told Defendant Greer that he had difficulty breathing and that his ribs were broken,
relaying that he was being housed with a suspected gang member. Id. Plaintiff asserts that
Defendant Greer told him to request a sick call, but that he never received any treatment. Id.
Plaintiff sues Defendants in their official and individual capacities, seeking monetary damages.
Id.
Along with his Motion, Defendant Brun has contemporaneously filed a supporting
Memorandum of Law, the Affidavits of Defendant Brun and Lybrunca Cockrell, Plaintiff’s
medical records, and a Statement of Undisputed Material Facts. Docket Nos. 81-1 - 83. Plaintiff
has filed a Response to Defendant Brun’s Motion and a Response to Defendant Brun’s Statement
of Undisputed Material Facts.3 Docket Nos. 90, 91.
As grounds for his Motion, Defendant Brun argues that Plaintiff’s only relevant grievance
does not raise allegations against him, and that accordingly, Plaintiff has failed to exhaust his
administrative remedies as required under the Prison Litigation Reform Act. Docket Nos. 81, 82.
Defendant Brun additionally argues that Plaintiff cannot sustain his claims against him because
3

Plaintiff’s Response to Defendant Brun’s Motion and Statement of Undisputed Material
Facts does not contain the requisite citations to the record; it does not, therefore, comply with the
Federal and Local Rules. See Fed R. Civ. P. 56 and Local Rule 56.01(c).
2

Defendant Brun had no knowledge of any excessive risk of harm to Plaintiff, had no knowledge
that Plaintiff’s family had contacted the prison complaining of gang activity prior to November 2,
2017, did not allow any gang member to assault Plaintiff, was not involved in a “cover-up” of
gang activity, was not involved in placing or keeping Inmate Andrews assigned to Plaintiff’s cell,
and had no physical contact with either inmate. Id. Additionally, Defendant Brun argues that
Plaintiff cannot sustain his claims because there is no evidence that Plaintiff was harmed and the
medical records do not document any physical injury to Plaintiff. Id. Defendant Brun never met
Plaintiff or talked to him, and no one ever told him that Plaintiff needed medical care. Id.
Finally, Defendant Brun argues that he affirmed the Protective Custody Panel’s decision to deny
protective custody status to Plaintiff for the reasons given by the Panel - that Plaintiff had failed
to provide sufficient evidence justifying protective custody status. Id.
Plaintiff has filed a Response to Defendant Brun’s Motion and a Response to Defendant
Brun’s Statement of Undisputed Facts. Docket Nos. 90, 90-1. Plaintiff’s Responses do not
contain evidence in a form required by the Federal and Local Rules; they do not respond to the
grounds raised in the Motion or properly respond to each statement in the Statement of
Undisputed Facts as Plaintiff’s Response fails to contain the requisite citations to the record.
Plaintiff has additionally submitted a document entitled “Fed. R. Civ. P. 8(d) Pleading to
be concise & direct amendment & response” (Docket No. 91) and a “response” to Defendant
Brun’s Affidavit (Docket No. 92-2). These “responses” are not directly responsive, but rather,
contain rambling, conclusory thoughts; they likewise do not contain evidence in a form required
by the Federal and Local Rules. See id.
Along with their Motion for Summary Judgment, Defendants Washburn and Greer have
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contemporaneously filed a supporting Memorandum of Law, the Declarations of Defendant
Washburn and Lybrunca Cockrell, Policy 501.01, Plaintiff’s November 8, 2017 Grievance, and a
Statement of Undisputed Material Facts. Docket Nos. 86-89.4 Plaintiff has filed a document that
the undersigned will construe as Responses to Defendants Washburn and Greer’s Motion and
Statement of Undisputed Material Facts.5 Docket No. 92. Defendants Washburn and Greer have
filed a Reply. Docket No. 93.
As grounds for their Motion, Defendants Washburn and Greer argue that they are entitled
to summary judgment because: (1) Plaintiff has failed to exhaust his administrative remedies as
required under the Prison Litigation Reform Act; (2) Plaintiff cannot establish that Defendant
Washburn personally encouraged specific instances of misconduct alleged in the Complaint or in
some other way directly participated in any such misconduct, nor can Plaintiff establish that
Defendant Washburn played any role in connection with Plaintiff’s alleged requests for
protection from other inmates, such that Plaintiff cannot establish his Eighth Amendment claim
against Defendant Washburn; (3) Plaintiff cannot establish an Eighth Amendment deliberate
indifference claim against either Defendant Washburn or Defendant Greer because the evidence
establishes that Defendant Washburn provided Plaintiff with reasonable safety at all times during
his incarceration at Trousdale and Defendant Greer did not deny Plaintiff access to appropriate

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Defendant Greer filed her Declaration earlier in the proceedings. See Docket No. 51.
Defendant Washburn also filed a Declaration at that time. See Docket No. 52.
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Plaintiff’s Responses to Defendants Washburn and Greer’s Motion and Statement of
Undisputed Material Facts likewise do not contain evidence in a form required by the Federal
and Local Rules; they do not respond to the grounds raised in the Motion or properly respond to
each statement in the Statement of Undisputed Facts as Plaintiff’s Response fails to contain the
requisite citations to the record. See Local Rule 56.01(c).
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medical treatment during his incarceration at Trousdale; (4) the evidence establishes that Plaintiff
did not suffer a physical injury that was more than de minimus, as required under the Prison
Litigation Reform Act in order to sustain a claim under the Eighth Amendment; and (5)
Defendant Washburn did not take adverse action against Plaintiff in connection with any lawsuit
or grievance that Plaintiff previously filed against him or any CoreCivic employee and Plaintiff
cannot establish a prima facie case for retaliation such that summary judgment is warranted.
Docket No. 85.
Plaintiff has filed a document entitled “FEDERAL RULE CIVIL PROCEDURE 56 Plaintiff Plemons moves within this Honorable Court as to consider the following for his
Summary Judgment relief against Defendants (Christopher Brun)(Russell Washburn)(Tara
Greer)”, which the undersigned will construe as a Response. Docket No. 92. Plaintiff’s
Response is a largely rambling, conclusory document that intersperses recitation of law with
recitation of conclusory allegations and story-telling, much of which relates to people who are
not parties to the instant action. See id. As noted, Plaintiff does not directly respond to the
grounds raised in Defendants’ Motion, nor does Plaintiff dispute Defendants’ contention that he
failed to exhaust his administrative remedies. See id. Plaintiff has additionally written his
responses to Defendants Washburn and Greer’s Statement of Undisputed Material Facts. Docket
No. 92-1. Plaintiff’s responses do not properly dispute the statements and do not contain the
requisite citations to the record. See id.
In their Reply, Defendants Washburn and Greer argue that Plaintiff’s response is “a
thirty-two page brief containing rambling facts and law - much of which pertain to claims and

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parties that did not survive the Court’s initial screening order.” Docket No. 93.6 Defendants
Washburn and Greer note that there are no citations to the record in “these thirty-two rambling
pages,” nor are there any citations to the record in Plaintiff’s purported responses to their
Statement of Undisputed Material Facts. Id. Defendants Washburn and Greer argue that
Plaintiff’s response is therefore fatally flawed and the statements contained in their Statement of
Undisputed Material Facts should be deemed undisputed. Id., citing Fed. R. Civ. P. 56(c); Local
Rules 56.01(c) and 56.01(f). Defendants Washburn and Greer additionally note that this Court
has already specifically instructed Plaintiff to comply with Local Rule 56.01 in responding to
Statements of Undisputed Material Facts. Id., citing Docket No. 27.
Defendants Washburn and Greer further reply that regardless, Plaintiff did not file
grievances regarding the claims now before the Court, much less complete the three-step
grievance procedure in effect at Trousdale, such that Plaintiff has failed to exhaust his
administrative remedies. Docket No. 93. They note that Plaintiff, in his Response, does not
argue that he exhausted his administrative remedies nor does he offer any explanation for his
failure to submit any grievances regarding his claims that he was physically and sexually
assaulted and denied medical treatment during his incarceration at Trousdale. Id. Defendants
reiterate that they are further entitled to summary judgment because Plaintiff simply cannot
sustain his claims against them. Id.
For the reasons discussed below, the undersigned finds that Plaintiff failed to exhaust his
administrative remedies as required under the Prison Litigation Reform Act. The undersigned
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Defendants Washburn and Greer note also that Plaintiff’s thirty-two page response is in
violation of Local Rule 7.01(a)(3), which limits response memoranda to twenty-five pages.
Docket No. 93, comparing Local Rule 7.01(a)(3) with Docket No. 92.
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therefore recommends that Defendants’ Motions for Summary Judgment (Docket Nos. 81, 85) be
GRANTED and that this action be DISMISSED.
II. Undisputed Facts7
A. Affidavit of Christopher Brun
At all times relevant to the instant action, Christopher Brun was employed by the
Tennessee Department of Correction (“TDOC”) as the TDOC Contract Monitor of Operations at
Trousdale Turner Correctional Center (“Trousdale”). Docket No. 81-1, Affidavit of Christopher
Brun (“Brun Aff.”), ¶¶ 2, 3.
Trousdale houses approximately 2,500 inmates. Id., ¶ 4. The TDOC Contract Monitor of
Operations oversees Trousdale’s inmate reclassifications, inmate disciplinaries, and segregation
of inmates (including protective custody segregation), as well as Trousdale’s compliance with the
TDOC/CoreCivic contract and Trousdale’s inmate cell inspections. Id.
As the TDOC Contract Monitor of Operations, Defendant Brun reviews the Protective
Custody Panel’s recommendation regarding an inmate’s placement in protective custody after the
Warden has reviewed it, but does not attend or participate in protective custody panel hearings.
Id., ¶ 5. Defendant Brun has no authority or involvement in the process of inmate cell
assignments (including cell assignments and choice of cellmates in protective custody pending
investigation status); such decisions are made by CoreCivic employees at Trousdale. Id., ¶ 6.
Defendant Brun had no knowledge that Plaintiff was at risk of harm at Trousdale and has
no knowledge of whether Plaintiff’s family contacted Trousdale to complain about gang activity

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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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at the facility prior to November 2, 2017. Id., ¶¶ 7, 10.
Defendant Brun has never been involved in or allowed gang members to assault Plaintiff,
nor was he ever involved in a “cover-up” of gang activity at Trousdale. Id., ¶¶ 8, 9.
Defendant Brun did not order that inmate Lyle W. Andrews #00306389 be celled with
Plaintiff or that Plaintiff remain celled with Inmate Andrews. Id., ¶ 11.
To the best of his knowledge, Defendant Brun has never met or spoken with Plaintiff or
Inmate Andrews, nor has Defendant Brun had any encounters with them. Id., ¶ 12. Defendant
Brun was not present at Plaintiff’s November 2017 protective custody hearing. Id., ¶ 13.
No one ever told Defendant Brun that Plaintiff was threatened or injured by Inmate
Andrews, and Defendant Brun never saw either. Id., ¶ 14. Defendant Brun never witnessed
Plaintiff being in need of medical care, nor has Defendant Brun ever denied Plaintiff medical
care. Id., ¶ 15.
On November 15, 2017, the Protective Services Panel recommended that Plaintiff’s
request for protective custody be denied, as Plaintiff failed to provide enough evidence to justify
protective custody. Id., ¶ 16. As TDOC Contract Monitor, Defendant Brun approved the Panel’s
recommendation for the reasons provided by the Panel. Id.; see also, Id., ¶ 17. Defendant Brun
did not approve the Panel’s recommendation for any retaliatory motive as he did not have any
retaliatory motive against Plaintiff. Id., ¶ 17.
Plaintiff was transferred to another cell on November 17, 2017. Id., ¶ 19.
B. Declaration of Lybrunca Cockrell
Lybrunca Cockrell is employed by CoreCivic as the Grievance Coordinator at Trousdale.
Docket No. 88, Declaration of Lybrunca Cockrell (“Cockrell Dec.”), ¶ 2. CoreCivic’s
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administrative grievance system enables inmates at Trousdale to seek redress for issues relating
to the conditions of their confinement. Id., ¶ 3.
Pursuant to Policy 501.01, Inmate Grievance Procedures, the processing of a standard
inmate grievance at Trousdale proceeds as follows:
First Level: An inmate must file a grievance using CR-1394 within
seven calendar days of the occurrence or the most-recent
occurrence giving rise to the grievance. The chairperson will
review the grievance and log the grievance as received. The
chairperson’s response to the grievance will be written on the CR1394 following the chairperson’s receipt and review of the
supervisor’s response. The chairperson and supervisor have seven
working days to complete the response, which begins on the day
that the grievance begins to be processed. If the inmate accepts the
response, it will be documented on CR-3148.
Second Level: Within five calendar days of being notified of the
Level One response, the inmate may appeal the response to the
grievance committee and the warden. A hearing will take place
within five working days of the appeal’s filing. Within five
working days of the hearing, the grievance committee’s proposed
response will be documented on CR-1393 and will be forwarded to
the warden. Within seven working days of receipt, the warden will
forward his or her decision to the chairperson. Within five
working days of receiving the warden’s response, the chairperson
will allow the inmate to review the grievance materials and
response. If the inmate accepts the response, the chairperson will
enter the approval on the grievance.
Third Level: An inmate may appeal the Level Two response within
five calendar days of receipt of the response. The chairperson will
forward one copy of the grievance and all documentation to the
deputy commissioner of operations or his or her designee. The
Level Three response will be sent to the chairperson for
distribution within twenty-five working days of the date the appeal
was received. The chairperson will enter the final decision on the
grievance. This response is final and is not subject to appeal.
Id., ¶ 4, quoting Docket No. 88-1, Policy 501.01.

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Plaintiff did not submit any grievances with respect to access to medical treatment during
his incarceration at Trousdale before he filed this lawsuit. Id., ¶ 5. As a result, Plaintiff did not
exhaust his administrative remedies with regard to his claims that Defendant Greer denied him
access to medical treatment during his incarceration at Trousdale. Id., ¶ 6.
Plaintiff also did not submit any grievances with respect to any alleged physical or sexual
assault during his incarceration at Trousdale before he filed this lawsuit. Id., ¶ 7.
Plaintiff filed only one grievance during his incarceration at Trousdale that has any
bearing on his claims in this lawsuit. Id., ¶ 8. On November 8, 2017, Plaintiff filed a grievance
where he complained about a suspected gang member being placed in his cell and where he
stated that he feared for his life as a result. Id., ¶ 9, citing Docket No. 88-2, Plaintiff’s November
8, 2017 grievance.
Plaintiff does not mention Defendant Washburn by name, nor does he contend that
Defendant Washburn failed to protect him from physical or sexual assault or that Defendant
Washburn assigned a suspected gang member to Plaintiff’s cell in retaliation for Plaintiff
allegedly reporting gang operations and seeking protection from allegedly unsafe living
conditions. Id., ¶ 10. As a result, Plaintiff did not exhaust his administrative remedies on his
claims that Defendant Washburn failed to protect him and retaliated against him before he filed
this lawsuit on May 5, 2018. Id., ¶ 11.
C. Affidavit of Lybrunca Cockrell
Lybrunca Cockrell is employed as the Grievance Coordinator at Trousdale. Docket No.
81-2, Affidavit of Lybrunca Cockrell (“Cockrell Aff.”). Plaintiff filed only one grievance during
the period of May 1, 2017 to December 30, 2019. Id. Plaintiff filed said grievance on November
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8, 2017 requesting that he be moved to a Protective Custody Unit or be moved to another prison
because he was placed in a cell with an inmate who was suspected to be a member of the Cripps
gang. Id.
D. Declaration of Russell Washburn
Russell Washburn is employed by CoreCivic as Warden at Trousdale. Docket No. 87,
Declaration of Russell Washburn (“Washburn Dec.”), ¶ 1. CoreCivic contracts with TDOC to
operate Trousdale. Id., ¶ 3.
Plaintiff was housed as an inmate at Trousdale from May 22, 2017 through December 29,
2017. Id., ¶ 4. Plaintiff did not request that Defendant Washburn provide him with protection
from other inmates prior to the events he alleges took place, and Defendant Washburn was not
aware of any threats to Plaintiff’s safety. Id., ¶ 5. Defendant Washburn neither instructed nor
encouraged CoreCivic employees or anyone else to refuse to provide Plaintiff with protection
from other inmates or to assign a suspected gang member to Plaintiff’s cell. Id., ¶ 6.
If an inmate requested protection from other inmates, Defendant Washburn would not
delay in providing protection if the inmate required such protection. Id., ¶ 7.
When CoreCivic employees receive information which indicates that an inmate may be in
danger from other inmates, an immediate inquiry will be made concerning the facts of the
situation to determine whether the alleged threats are substantiated and whether immediate
protection is needed. Id., ¶ 8. CoreCivic requires an investigation into the information received
because of the voluminous number of instances of inmates reporting threats from other inmates,
which often are unsubstantiated. Id., ¶ 9. CoreCivic policies require that employees fully and
immediately document all information received regarding threats to inmates incarcerated at
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Trousdale. Id., ¶ 10.
Plaintiff’s records do not contain documentation of any threats made by other inmates
prior to the alleged assaults. Id., ¶ 11. Plaintiff’s sexual assault allegations were investigated
under the Prison Rape Elimination Act, and the investigator determined that his allegations were
unfounded. Id., ¶ 12.
E. Additional Undisputed Material Facts
Defendant Washburn did not refuse to separate Plaintiff and another inmate who
allegedly was harassing Plaintiff in retaliation for Plaintiff allegedly reporting gang operations
and seeking protection from allegedly unsafe living conditions. Docket No. 89, ¶ 4, citing
Docket No. 52, ¶ 3.
Defendant Greer would not ignore any inmate’s medical needs and would help an inmate
secure necessary medical treatment if an inmate reported broken ribs and difficult breathing. Id.,
¶ 7, citing Docket No. 51, ¶ 3.
Plaintiff’s November 8, 2017 Grievance makes no mention of, or reference to, Defendant
Brun. Docket No. 83, ¶ 26, citing Grievance Form attached to Cockrell Aff. Plaintiff’s
November 8, 2017 Grievance makes no claim of injury by Inmate Andrews; rather, it states only
that Plaintiff felt threatened by Inmate Andrews and would like to be transferred. Id., ¶ 27, citing
id. Plaintiff’s medical records do not document any physical injury to Plaintiff. Id., ¶ 28, citing
Docket Nos. 81-3 - 81-9, Plaintiff’s medical records.
Plaintiff failed to exhaust his administrative remedies on the claims he asserts in the
instant action. Docket Nos. 83, 88.

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III. Law and Analysis
A. Motion for Summary Judgment
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate only “if the pleadings,
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(c)(1) sets forth the requirement to support factual assertions as follows:
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a
fact cannot be or is genuinely disputed must support that
assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for
purposes of the motion only), admissions,
interrogatory answers, or other materials; or
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(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible
evidence to support the fact.
B. Local Rule 56.01(c)
With regard to responses to the requisite Statement of Undisputed Facts filed
contemporaneously in support of a Motion for Summary Judgment, the Local Rule 56.01(c)
provides:
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 fact is disputed. Each disputed fact must be supported by
specific citation to the record.
C. 42 U.S.C. § 1983
Section 1983 provides, in part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress...
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48, 108 S. Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct.
1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams,
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474 U.S. 327, 330-331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)); Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action have exercised
power “possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” Id. at 49, 108 S. Ct. 2255, quoting United States v. Classic, 313
U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941).
D. 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],
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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
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
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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,
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).
E. 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.

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The undisputed facts establish that, pursuant to Policy 501.01, Inmate Grievance
Procedures, the processing of a standard inmate grievance at Trousdale proceeds as follows:
First Level: An inmate must file a grievance using CR1394 within seven calendar days of the occurrence or
the most-recent occurrence giving rise to the grievance.
The chairperson will review the grievance and log the
grievance as received. The chairperson’s response to
the grievance will be written on the CR-1394 following
the chairperson’s receipt and review of the supervisor’s
response. The chairperson and supervisor have seven
working days to complete the response, which begins
on the day that the grievance begins to be processed. If
the inmate accepts the response, it will be documented
on CR-3148.
Second Level: Within five calendar days of being
notified of the Level One response, the inmate may
appeal the response to the grievance committee and the
warden. A hearing will take place within five working
days of the appeal’s filing. Within five working days of
the hearing, the grievance committee’s proposed
response will be documented on CR-1393 and will be
forwarded to the warden. Within seven working days
of receipt, the warden will forward his or her decision
to the chairperson. Within five working days of
receiving the warden’s response, the chairperson will
allow the inmate to review the grievance materials and
response. If the inmate accepts the response, the
chairperson will enter the approval on the grievance.
Third Level: An inmate may appeal the Level Two
response within five calendar days of receipt of the
response. The chairperson will forward one copy of the
grievance and all documentation to the deputy
commissioner of operations or his or her designee. The
Level Three response will be sent to the chairperson for
distribution within twenty-five working days of the date
the appeal was received. The chairperson will enter the
final decision on the grievance. This response is final
and is not subject to appeal.

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Cockrell Dec.., ¶ 4, quoting Docket No. 88-1, Policy 501.01.
It is undisputed that, prior to filing the instant action, Plaintiff also did not submit any
grievances with respect to any alleged physical or sexual assault during his incarceration at
Trousdale, and that Plaintiff did not submit any grievances with respect to access to medical
treatment during his incarceration at Trousdale. Id., ¶¶ 5, 7. As a result, Plaintiff did not
exhaust his administrative remedies with regard to his claims that Defendant Greer denied him
access to medical treatment during his incarceration at Trousdale. Id., ¶ 6.
It is further undisputed that Plaintiff filed only one grievance during his incarceration at
Trousdale that has any bearing on his claims in this lawsuit. Id., ¶ 8. On November 8, 2017,
Plaintiff filed a grievance where he complained about a suspected gang member being placed in
his cell and where he stated that he feared for his life as a result. Id., ¶ 9, citing Docket No. 88-2,
Plaintiff’s November 8, 2017 grievance. Plaintiff’s grievance does not mention Defendant
Washburn by name, nor does he contend that Defendant Washburn either failed to protect him
from physical or sexual assault or assigned a suspected gang member to his cell in retaliation for
Plaintiff allegedly reporting gang operations and seeking protection from allegedly unsafe living
conditions. Id., ¶ 10. As a result, prior to filing the instant action, Plaintiff did not exhaust his
administrative remedies regarding his claims that Defendant Washburn failed to protect him and
retaliated against him. Id., ¶ 11.
It is additionally undisputed that Plaintiff’s November 8, 2017 grievance makes no
mention of, or reference to, Defendant Brun. Docket No. 83, ¶ 26, citing Grievance Form
attached to Cockrell Aff. Moreover, Plaintiff’s grievance makes no claim of injury by Inmate
Andrews; rather, it states only that Plaintiff felt threatened by Inmate Andrews and would like to
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be transferred. Id., ¶ 27, citing id. Finally, it is undisputed that Plaintiff’s medical records do not
document any physical injury to Plaintiff. Id., ¶ 28, citing Docket Nos. 81-3 - 81-9, Plaintiff’s
medical records.
IV. Conclusion
For the foregoing reasons, the undersigned finds that Plaintiff failed to exhaust his
administrative remedies as required under the Prison Litigation Reform Act. The undersigned
therefore recommends that Defendants’ Motions for Summary Judgment (Docket Nos. 81, 85) be
GRANTED and that this action be DISMISSED.
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
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

________________________________
JEFFERY S. FRENSLEY
United States Magistrate Judge

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