Tolson v. Donahue et al
Filing
47
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 40 . Signed by Judge James D. Todd on 2/3/15. (Todd, James)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DAMIEAN DEVON TOLSON,
Plaintiff,
VS.
MICHAEL DONAHUE, et al.,
Defendants.
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No. 13-1045-JDT/egb
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Plaintiff Damiean Devon Tolson, an inmate at the Hardeman County Correctional
Facility (“HCCF”), filed a pro se complaint pursuant to 42 U.S.C. § 1983 against HCCF
Warden Michael Donahue, Sergeant Mark Bowlin, Case Manager Tomeka McKinnie, Unit
Manager Sheila Martin, Corrections Corporation of America, and Lieutenant Woods. All
defendants have been dismissed from the action except Case Manager McKinnie. Defendant
McKinnie has now filed a motion for summary judgment; Plaintiff has filed a response;
Defendant has filed a reply; and Plaintiff has filed a sur-reply. For the reasons set forth
below, Defendant’s motion [DE# 40] is GRANTED.
Summary judgment is appropriate “if the movant shows that there is no genuine issue
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[T]he burden on the moving party may be discharged by ‘showing’–that is,
pointing out to the district court–that there is an absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Revised Rule
56(c)(1) provides that “[a] party asserting that a fact cannot be or is genuinely disputed” is
required to support that assertion by:
(A)
citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers or
other materials;[1] or
(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.
“If a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c)” the district court may:
(1)
give an opportunity to properly support or address the fact;
(2)
consider the fact undisputed for purposes of the motion;
(3)
grant summary judgment if the motion and supporting materials–
including the facts considered undisputed–show that the movant is
entitled to it; or
(4)
issue any other appropriate order.
Fed. R. Civ. P. 56(e).
In Celotex Corp., the Supreme Court explained that Rule 56:
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“A party may object that the material cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Additionally, Rule 56(c)(4) specifically provides that
“[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters
stated.”
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mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who 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. In such a situation, there
can be “no genuine issue as to any material fact,” since a complete failure of
proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial. The moving party is “entitled
to judgment as a matter of law” because the nonmoving party has failed to
make a sufficient showing on an essential element of [his] case with respect to
which [he] has the burden of proof.
477 U.S. at 322-23. In considering whether to grant summary judgment, “the evidence as
well as the inferences drawn therefrom must be read in the light most favorable to the party
opposing the motion.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986);
see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)
(same).
A genuine issue of material fact exists “if the evidence [presented by the non-moving
party] is such that a reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff. The judge’s inquiry, therefore, unavoidably
asks whether reasonable jurors could find by a preponderance of the evidence
that the plaintiff is entitled to a verdict[.]”
Id. at 252; see also Matsushita, 475 U.S. at 586 (“When the moving party has carried its
burden under Rule 56[(a)], its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.” (footnote omitted)). However, the court’s
function is not to weigh the evidence, judge credibility, or in any way determine the truth of
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the matter. Liberty Lobby, 477 U.S. at 249. Rather, the inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Id. at 251-52.
In the complaint, Plaintiff alleges that he told Defendant McKinnie that he was at risk
of attack by gang members in his assigned unit because he was not a gang member. Plaintiff
alleges that Defendant told him that he would have to be assaulted before his housing
assignment could be changed or he could go to segregation for refusing a housing
assignment. Plaintiff alleges that he was assaulted by the gang members on November 13,
2012. Complaint at p. 4.
Defendant has moved for summary judgment on the ground that she was not aware
of a potential threat to Plaintiff prior to the assault and, therefore, did not violate his Eighth
Amendment rights. She also contends that Plaintiff has not exhausted his administrative
remedies under the Prison Litigation Reform Act (“PLRA”).
The Eighth Amendment prohibits prison officials from acting with deliberate
indifference to a substantial risk of serious harm to a prison inmate. Farmer v. Brennan, 511
U.S. 825, 828 (1994). The Supreme Court has explained that “having stripped [inmates] of
virtually every means of self-protection and foreclosed their access to outside aid, the
government and its officials are not free to let the state of nature take its course.” Id. at 833.
Thus, prison officials “have a duty ... to protect prisoners from violence at the hands of other
prisoners.” Id. However, not “every injury suffered by one prisoner at the hands of another
... translates into constitutional liability for prison officials responsible for the victim's
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safety.” Id. at 834. Instead, in order to establish a constitutional violation, a prison inmate
must meet two requirements, i.e., an objective and subjective component. See Curry v. Scott,
249 F.3d 493, 506 (6th Cir. 2001).
To satisfy the objective component, the inmate must show that the failure to protect
him from risk of harm is objectively “sufficiently serious.” Farmer, 511 U.S. at 828. In
particular, the inmate must show that “he is incarcerated under conditions posing a
substantial risk of serious harm.” Id.; Hudson v. McMillian, 503 U.S. 1, 8 (1992) (the
objective component requires a determination of whether “the alleged wrongdoing was
objectively ‘harmful enough’ to establish a constitutional violation”).
To satisfy the subjective component, the inmate must establish that prison officials
acted with deliberate indifference to his health or safety. Bishop v. Hackel, 636 F.3d 757,
766 (6th Cir. 2011). “An official is ‘deliberately indifferent’ if he or she ‘knows of and
disregards an excessive risk to inmate health and safety; the official must both be aware of
the facts from which the inference could be drawn that a substantial risk of harm exists, and
he must also draw the inference.’ “ Id. (quoting Farmer, 511 U.S. at 837). That awareness can
be demonstrated through “inference from circumstantial evidence ... and a fact finder may
conclude that a prison official knew of a substantial risk from the very fact that a risk was
obvious.” Farmer, 511 U.S. at 842. However, “a prison official who was unaware of a
substantial risk of harm to an inmate may not be held liable under the Eighth Amendment
even if the risk was obvious and a reasonable prison official would have noticed it.” Bishop,
636 F.3d at 767.
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In her motion, Defendant states, “Prior to November 13, 2012, the date of the alleged
assault, there is no record of any protective services inquiries concerning Plaintiff.” Sworn
Declaration of McKinnie ¶ 6 (emphasis added). The allegations in Plaintiff’s sworn
complaint support Defendant’s statement. In the complaint, Plaintiff states that he reported
the first altercation with previously unknown gang members to Defendant after the incident
occurred [DE# 1 at p. 4]. In his response to Defendant’s motion, Plaintiff contends that he
filed a grievance concerning this matter on November 15, 2012, which was after the
altercation. He states that the grievance number is 21525255859, but he does not have the
grievance in his possession and was purportedly told that it has been “archived.” Pl’s
Response at p. 1 [DE# 42]. It is only in his unsworn response to Defendant’s interrogatories
[DE# 46 at para. 13] that Plaintiff states that the grievance was filed before the altercation.
Plaintiff cannot create a disputed issue of fact by contradicting his own previous
sworn statements. Courts “have held with virtual unanimity that a party cannot create a
genuine issue of fact sufficient to survive summary judgment simply by contradicting his or
her own previous sworn statement ... without explaining the contradiction or attempting to
resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)
(citations omitted). See also Aerel, S.R.L, v. PCC Airfoils, L.L.C., 448 F.3d 899, 907 (6th
Cir. 2006); Peck v. Bridgeport Machines, Inc., 237 F.3d 614, 619 (6th Cir. 2001).
Because both Defendant’s sworn statement and the sworn statements of Plaintiff show
that Defendant was not aware of the alleged threat to Plaintiff until after the attack, Plaintiff
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cannot meet the subjective component of his Eighth Amendment failure to protect claim,2
and Defendant is entitled to summary judgment.
Defendant also contends that Plaintiff has not exhausted his administrative remedies
as to his claim against her. The PLRA provides at 42 U.S.C. § 1997e (a):
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.
The PLRA requires a prisoner to exhaust his administrative remedies before filing a federal
lawsuit. Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001);
White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997). The purpose of requiring the
exhaustion of a prison’s administrative remedies is to give the prison officials notice of the
alleged mistreatment and an opportunity to correct it without resort to judicial intervention.
In describing the alleged mistreatment or misconduct, ... we would not require
a prisoner's grievance to allege a specific legal theory or facts that correspond
to all the required elements of a particular legal theory. Rather, it is sufficient
for a court to find that a prisoner's [grievance] gave prison officials fair notice
of the alleged mistreatment or misconduct that forms the basis of the
constitutional or statutory claim made against a defendant in a prisoner's
complaint.
Burton v. Jones, 321 F.3d 569, 575 (6th Cir. 2003).
Furthermore, “[t]he PLRA exhaustion requirement requires proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 92 (2006).
[P]roper exhaustion of administrative remedies . . . “means using all steps that
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The court has assumed for the purpose of deciding this motion only that Plaintiff has met the objective
component of his claim.
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the agency holds out, and doing so properly. . .” . . . . Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural
rules.
Id. at 90 (citations omitted). Thus, before a district court can adjudicate a conditions of
confinement claim, the court must determine whether the prisoner has complied with the
exhaustion requirement. Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir.1999).
Plaintiff has submitted no evidence that he filed a grievance on his claim against this
defendant. Although he claims that he filed one, he asserts that the grievance has been
“archived” and he has no access to it. The copy of the grievance that Plaintiff has filed with
the court concerns Defendant Bowlin and his alleged failure to help Plaintiff regain his
property. Because Defendant McKinnie is entitled to summary judgment as discussed above,
the court need not decide whether Plaintiff’s contention that he did, in fact, file a grievance
against Defendant McKinnie but has not been given access to it creates a disputed issue of
material fact that would warrant denying Defendant’s motion.
In summary, Defendant McKinnie’s motion for summary judgment is GRANTED.
Because she is the sole remaining defendant, the clerk is DIRECTED to enter judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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