Tankesly v. Aramark Correctional Services et al
ORDER granting 58 Motion for Summary Judgment; denying 62 Motion for Reconsideration. Signed by Judge Samuel H. Mays, Jr on 8/1/2022. (Mays, Samuel)
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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
SERVICES, ET AL.,
Plaintiff Calvin Tankesly (“Tankesly”) has asserted claims
under 42 U.S.C. § 1983 against Defendant Veronica Cadney (“Cadney”)
dismissed all claims against Ramsey. (ECF No. 57.) There are two
motions before the Court: 1) Cadney’s Motion for Summary Judgment
(ECF No. 58); and 2) Tankesly’s Motion for Reconsideration of the
Court’s Order Dismissing Claims Against Ramsey (ECF No. 62). Both
Motions are ripe. (See ECF Nos. 63-66.) For the following reasons,
Cadney’s Motion for Summary Judgment is GRANTED, and Tankesly’s
Motion for Reconsideration is DENIED.
Tankesly has been in state custody since 1997. In 2013, he
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inflammation, loss of his saliva glands and taste buds, and damage
to his throat lining, sinuses, and teeth. Tankesly cannot produce
saliva and is limited in what he can chew and swallow safely. From
March 2015 to January 2019, Tankesly was incarcerated at the
Northwest Correctional Complex (“NWCX”) in Tiptonville, Tennessee.
In his Initial Complaint, Tankesly asserts claims against
Aramark Correctional Services (“Aramark”) and Aramark employees,
including Cadney and Ramsey. (See ECF No. 1 at ¶ 44.) Aramark has
provided meal service to NWCX prisoners since September 2016. (ECF
No. 1 at ¶ 45.) Tankesly generally alleges that Aramark and its
employees failed to provide him with food that complied with his
medical requirements. (See ECF No. 1 at ¶ 48.) As a result,
“weight loss, dizzy spells, light headedness, fatigue and tooth
breakage.” (ECF No. 1 at ¶ 51.)
Tankesly specially alleges that, as Food Stewards at NWCX,
Cadney and Ramsey would intercept Tankesly’s food tray, throw away
food that Tankesly could eat, and provide Tankesly with food that
he could not eat. (ECF No. 1 at ¶¶ 73-75.) This interference with
campaign of vindicative and retaliatory measures . . . .” (ECF No.
1 at ¶ 73.) In footnotes, Tankesly states that Cadney and Ramsey
had provided food service at NWCX since Tankesly’s transfer to
NWCX in 2015 and had interfered with Tankesly’s food service three
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to four times a week. (ECF No. 1 at ¶¶ 73 n.17, 74 n.19.) Tankesly
includes with his Initial Complaint copies of prison grievances
that he filed against Cadney and Ramsey.
The Court screened Tankesly’s Initial Complaint. (ECF No.
Ramsey. (ECF No. 17, PageID 324-325.) The Court dismissed claims
against Aramark and other named Aramark employees. (ECF No. 17,
Tankesly filed a Motion to Amend the Initial Complaint and
sought to “incorporate” an Amended Complaint with his original
pleadings. (ECF No. 20, PageID 336.) The Amended Complaint contains
“b.” paragraphs that correspond to paragraphs in the Initial
Complaint. (ECF No. 20-1 at ¶¶ 1b-104b.) Throughout the Amended
Complaint, Tankesly specifies that Aramark employees violated his
constitutional rights “seven days a week between: October 2017 —
December 2017 and January 2018 — December 2018.” The paragraphs
addressing Cadney’s and Ramsey’s interference with Tankesly’s food
service include the same specifying language. (See ECF No. 20-1 at
frequently failed to have Tankesly’s required diet prepared at
mealtimes and would provide substitutions that Tankesly could not
eat. (ECF No 20-1 at ¶¶ 76b, 77b.) On other occasions, Cadney and
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corporate policy. (ECF No 20-1 at ¶¶ 76b, 77b.) Tankesly cites
this inconsistency as evidence of the conspiracy against him.
Ramsey filed a Motion to Dismiss for Failure to State a Claim.
(ECF Nos. 49, 50.)
The Motion argues that Tankesly failed to
properly exhaust administrative remedies on his claims against
Ramsey. It asserts that, of the grievances included with Tankesly’s
Initial Complaint, only a May 16, 2017 grievance and a September
16, 2017 grievance name Ramsey. (ECF No. 50, PageID 474.) Tennessee
Department of Correction (“TDOC”) policy required prisoners to
Tankesly’s grievances against Ramsey were not filed on Form CR1394. (ECF No. 50, PageID 474.)
In his Response, Tankesly explains that “Form CR-1394 . . .
is a document that is only provided [returned] to the inmate
grievant after it is processed through all three levels of the
original). Tankesly says that he requested copies of his grievances
from the NWCX clerk, but was told that the requested grievances
were “in archive” and were unavailable. (ECF No. 51, PageID 526.)
He includes a list of missing grievances that includes a grievance
against Ramsey. (ECF No. 51-1, PageID 529.) The Response does not
include an affidavit from Tankesly on his exhaustion attempts, and
Because the Court had not granted Tankesly’s Motion to Amend, Ramsey’s
motion was directed to Tankesly’s Initial Complaint.
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it does not appear that Tankesly sought the missing grievances
screening the Amended Complaint, the Court concluded that Tankesly
had failed to correct deficiencies in the Initial Complaint because
he had not identified “which Defendant specifically took what
action on particular dates and with what knowledge.” (ECF No. 57,
PageID 556.) The Court dismissed Defendants Aramark, Slad, Wright,
Pickrel, Taylor, Redden, Moran, Thomas, and Cole and recommended
that the dismissals be treated as a strike pursuant to 28 U.S.C.
§ 1915(a)(3). (ECF No. 57, PageID 557.) The Court then considered
Ramsey’s Motion to Dismiss. (ECF No. 57, PageID 559.) Applying a
summary judgment standard, the Court held that Tankesly had failed
to exhaust administrative remedies on his claims against Ramsey.
The Court found that Tankesly’s May 16, 2017 and September 16,
2017 grievances did not comply with TDOC policy because Tankesly
did not submit the grievances on Form CR-1394. (ECF No. 57, PageID
567.) Cadney filed her Motion for Summary Judgment on February 2,
2022. (ECF No. 58.)
Motion for Summary Judgment
Cadney’s Motion for Summary Judgment argues that Tankesly
failed to exhaust administrative remedies on his claims against
Cadney. The Motion asserts that Tankesly filed grievances against
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Cadney on May 16, 2017, September 19, 2017, and September 22, 2017,
based on incidents that occurred in May 2017 and September 2017.
Chairperson at NWCX, that Tankesly did not file any grievance
against Cadney after September 2017. (ECF No 58-1 at ¶ 5.) Because
Tankesly’s Amended Complaint specifies that the violations of his
constitutional rights occurred between October 2017 — December
Tankesly’s grievances cannot exhaust the claims raised in the
In his Response, Tankesly argues that Cadney’s conduct “goes
as far back as 2015 and continues through 2018” and that Tankesly’s
complaints assert claims against Cadney for that entire period.
(ECF No. 64-1, PageID 686.) Tankesly argues that Cadney’s conduct
represents a “continuing violation” and that Tankesly’s grievances
grievances provided notice of his claims. (ECF No. 64-1, PageID
A. Standard of Review
Under Federal Rule of Civil Procedure 56(a), a court must
grant a party’s motion for summary judgment “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.” Fed. R. Civ.
P. 56(a). The moving party must show that the nonmoving party,
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having had sufficient opportunity for discovery, lacks evidence to
support an essential element of its case. See Fed. R. Civ. P.
56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir.
When confronted with a properly supported motion for summary
judgment, the nonmoving party must set forth specific facts showing
that there is a genuine dispute for trial. See Fed. R. Civ. P.
56(c). “A ‘genuine’ dispute exists when the plaintiff presents
‘significant probative evidence’ ‘on which a reasonable jury could
return a verdict for her.’” EEOC v. Ford Motor Co., 782 F.3d 753,
Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)). The nonmoving party
must do more than simply “show that there is some metaphysical
doubt as to the material facts.” Lossia v. Flagstar Bancorp, Inc.,
895 F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o
under section 1983 of this title, or any other Federal law, by a
prisoner . . . until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). The PLRA has been interpreted
to require “proper exhaustion,” meaning that a prisoner must
“‘complete the administrative review process in accordance with
the applicable procedural rules,’ . . .
[as] defined not by the
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PLRA, but by the prison grievance process itself.” Jones v. Bock,
549 U.S. 199, 218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88
A prisoner’s lack of compliance with the prison grievance
process may be excused if the administrative remedies are not
“‘affirmative efforts to comply with the administrative procedures
before analyzing whether the facility rendered these remedies
unavailable.’” Napier v. Laurel Cnty., 636 F.3d 218, 223 (6th Cir.
efforts to comply but does not succeed, courts analyze “whether
circumstances.’” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir.
2011) (quoting Napier, 636 F.3d at 224).
Although exhaustion is mandatory under the PLRA, the failure
of a prisoner plaintiff to satisfy the exhaustion requirement is
an affirmative defense. Jones, 549 U.S. at 211–17. Once the defense
of failure to exhaust is raised, a prisoner plaintiff must present
“significant probative evidence” showing that he has complied with
establish the absence of a ‘genuine dispute as to any material
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fact’ regarding non-exhaustion.” Risher, 639 F.3d at 240 (quoting
Fed. R. Civ. P. 56(a)).
exhausted administrative remedies on his claims against Cadney, it
Tankesly’s Initial Complaint may be read to allege that Cadney and
Ramsey had interfered with Tankesly’s food service three to four
times a week since 2015. The “October 2017 - December 2017 and
January 2018 – December 2018” and “seven days a week” specifying
language appears only in Tankesly’s Amended Complaint. Cadney
asserts that amended complaints always supersede prior complaints.
Generally, amended pleadings do supersede original pleadings.
See Hayward v. Cleveland Clinic Found., 759 F.3d 601, 617 (6th
Cir. 2014); see also 6 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1476 (3d ed. updated Apr. 2021)
(“A pleading that has been amended under Rule 15(a) supersedes the
pleading it modifies . . . .”). “If, however, the party submitting
the pleading clearly intended the latter pleading to supplement,
rather than supersede, the original pleading, some or all of the
original pleading can be incorporated in the amended pleading.”
Clark v. Johnson, 413 F. App’x 804, 811–12 (6th Cir. 2011); see
also Wright & Miller, § 1476 (“[T]he original pleading, once
superseded, cannot be utilized to cure defects in the amended
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pleading, unless the relevant portion is specifically incorporated
in the new pleading.”).
There is some evidence that Tankesly intended the Amended
Complaint to supplement his Initial Complaint. Tankesly’s Motion
to Amend seeks to “incorporate” the Amended Complaint with the
Original Pleadings. (ECF No. 20, PageID 336.) The paragraphs in
the Amended Complaint have a “b.” designation, which suggests that
they should be read in conjunction with corresponding paragraphs
in the Initial Complaint. (ECF No. 20-1 at ¶¶ 1b-104b.)
However, the date range specified in the Amended Complaint
supersedes any date range found in the Initial Complaint. The
Amended Complaint and the Initial Complaint contain contradictions
that show Tankesly intended portions of his Amended Complaint to
supersede the Initial Complaint. For example, the frequency of
interference alleged in the Amended Complaint, “seven days a week,”
contradicts the “three to four days a week” alleged in the Initial
Complaint. 2 The Amended Complaint presents the “seven days a week”
language and the new date range as part of the same phrase, which
shows that Tankesly also intended the date range in the Amended
Complaint to supersede the date range in the Initial Complaint.
Tankesly clearly sought to amend his Initial Complaint in response
Footnotes to the Amended Complaint continue to state that Cadney and
Ramsey interfered with Tankesly’s food service three to four times a
week. (ECF No. 20-1 at ¶¶ 73b n.14, 74b n.16.) The Court concludes that
language is an inadvertent holdover from the Initial Complaint.
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to the Court’s order that faulted Tankesly for failing to allege
the frequency of Defendants’ conduct. In its second screening
order, the Court considered the additional information provided in
Tankesly’s Amended Complaint. (ECF No. 57, PageID
cannot offer and withdraw the date range in the Amended Complaint
as it suits him. Even if the Court were to accept the broader
allegations in the Initial Complaint as controlling, it would
dismiss Tankesly’s complaint for failure to state a claim. 3 See
(affirming dismissal of plaintiff’s deliberate indifference claim
where plaintiff did not allege specific dates of harmful conduct);
employees because Tankesly’s Amended Complaint did not identify
which Defendant took what action on particular dates). Rather than
dismiss the claims, the Court accepts the date range alleged in
the Amended Complaint.
The next question is whether Tankesly’s May 2017 and September
2017 grievances exhaust his deliberate indifference claims arising
between October 2017 — December 2017 and January 2018 — December
2018. The Sixth Circuit has held that grievances do not exhaust
The Court may dismiss a complaint brought “with respect to prison
conditions” for failure to state a claim even if the Court has already
conducted an initial screen of the complaint. See Davis v. Gallagher,
951 F.3d 743, 751 (6th Cir. 2020) (citing 42 U.S.C. § 1997e(c)(1)).
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claims based on subsequent, discrete events with discrete causes.
See Siggers v. Campbell, 652 F.3d 681 (6th Cir. 2011). In Siggers,
corrections officials issued prison-mail rejections on September
12, 15, and 29, 2006, and again on March 9, 2007. Id. at 688-89.
The prisoner complained that the officials violated his rights by
rejecting his incoming mail. Id. at 689-90. The district court
sufficient to exhaust only the claims relating to the September
12, 2006 mail rejection. Id. at 690.
On appeal, the prisoner argued that the district court erred
in holding that he was required to file individual grievances
challenging each mail rejection. Id. at 691. The prisoner asserted
that the September 16, 2006 grievance, which addressed only the
September 12, 2006 mail rejection, put the defendants on notice of
a continuing violation and was, therefore, sufficient to exhaust
claims of harm caused by all subsequent mail rejections. Id. at
692. Rejecting that argument, the Siggers Court explained:
[The prisoner] was not suffering from one, continuing
harm and government indifference. Rather, the Notices of
mail rejection that [the prisoner] identifies are each
discrete events, and each Notice involves separate facts
and circumstances—and even different policy directives.
Furthermore, a grievance on each would have permitted an
investigation into the reasons for each rejection, based
on the different contents of each rejected piece of mail
. . . .
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Id. at 693. The Court also found it significant that the applicable
grievance policy did not impose sanctions on prisoners who filed
multiple grievances. Id.
The facts here compare favorably to those in Siggers. Each
alleged interference with Tankesly’s meal service was a discrete,
conspiracy to deprive him of adequate nutrition. However, his
interference differed from day to day. Sometimes the Food Stewards
did not have Tankesly’s food prepared and provided substitutions.
Sometimes they removed food from Tankesly’s tray that he could
eat. Sometimes they rejected Tankesly’s request for substitutions
based on corporate policy. Separate grievances would have allowed
investigation into the reasons behind each alleged interference.
TDOC policy did not prevent Tankesly from filing grievances based
on interference that occurred between October 2017 — December 2017
and January 2018 — December 2018.
subsequent claims arising between October 2017 — December 2017 and
January 2018 — December 2018. Because Tankesly did not exhaust his
administrative remedies on his claims against Cadney, the Motion
for Summary Judgment is GRANTED. Tankesly’s claims against Cadney
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III. Motion for Reconsideration
In his Motion for Reconsideration, Tankesly asks the Court to
revisit its decision that Tankesly did not properly exhaust his
administrative remedies on his claim against Ramsey. (ECF No. 62,
recommendation. (ECF No. 62, PageID 597.) Tankesly asserts that he
filed a September 21, 2017 grievance against Ramsey that fully
complied with TDOC grievance procedures. (ECF No. 62, PageID 593.)
The September 21, 2017 grievance is in addition to the May 16,
2017 and September 16, 2017 grievances that the Court found did
not comply with TDOC policy. Documents attached to Tankesly’s
Motion confirm that Tankesly filed a September 21, 2017 grievance
on Form CR-1394 and that the grievance underwent three levels of
review, as required by TDOC policy. (ECF No. 62-1, PageID 601-10.)
Tankesly asserts that although the TDOC Commissioner’s office
completed the final level of review on April 10, 2018, Tankesly
did not receive a copy of the grievance material until September
27, 2021. (ECF No. 62, PageID 593.) Tankesly claims that he sent
a copy of the missing grievance material to the Clerk of the Court
immediately after he received it and before the Court entered its
order dismissing Ramsey. (ECF No. 62, PageID 593.) The docket does
not show that the Clerk received additional grievance material.
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A. Standard of Review
Under Federal Rule of Civil Procedure 54(b), “any order . . .
that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action
. . . and may be revised at any time before the entry of a judgment
authority both under common law and Rule 54(b) to reconsider
interlocutory orders and to reopen any part of a case before entry
of final judgment.” Rodriguez v. Tenn. Laborers Health & Welfare
Fund, 89 F. App’x 949, 959 (6th Cir. 2004).
The Local Rules of the United States District Court for the
Western District of Tennessee provide that “any party may move,
pursuant to Fed. R. Civ. P. 54 (b), for the revision of any
interlocutory order made by that Court . . . .” LR 7.3(a). A motion
(1) a material difference in fact or law from that which
was presented to the Court before entry of the
interlocutory order for which revision is sought, and
that in the exercise of reasonable diligence the party
applying for revision did not know such fact or law at
the time of the interlocutory order; or (2) the
occurrence of new material facts or a change of law
occurring after the time of such order; or (3) a manifest
failure by the Court to consider material facts or
dispositive legal arguments that were presented to the
Court before such interlocutory order.
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Id. at 7.3(b). “No motion for revision may repeat any oral or
written argument made by the movant in support of or in opposition
revised.” Id. at 7.3(c).
Tankesly has not satisfied the requirements for revision of
received the missing grievance material on September 27, 2021. The
Court entered its order dismissing Ramsey on January 12, 2022.
Tankesly had the grievance material when the Court entered its
order, but did not take adequate steps to bring the material to
the Court’s attention. His Motion for Reconsideration does not
satisfy Local Rule 7.3(a)(1).
Tankesly raised the issue that there was a grievance against Ramsey
that he had been unable to obtain. (See ECF No. 51-1, PageID 529)
(providing list of missing grievances). The Court did not address
that issue in its order of dismissal. However, at the time of the
evidence” of exhaustion required at the summary judgment stage.
See Napier, 636 F.3d at 225. Tankesly’s filings contained only
grievance. He did not include an affidavit on his exhaustion
attempts. The Court did not manifestly fail to consider material
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facts or dispositive legal arguments in its order of dismissal.
Tankesly’s Motion for Reconsideration does not satisfy Local Rule
Even if the Court were to reconsider its order of dismissal,
it would dismiss the claims against Ramsey for the reasons set out
in Section II.B, supra. Tankesly’s Amended Complaint alleges that
Ramsey violated Tankesly’s constitutional rights between October
2017 — December 2017 and January 2018 — December 2018. (ECF No.
20-1 at ¶¶ 73b-77b.) The grievance material that Tankesly now asks
the Court to consider relates to events that occurred in September
2017. (ECF No. 62, PageID 606.) Tankesly did not exhaust claims
against Ramsey that arose during the period identified in his
In his Motion for Reconsideration, Tankesly also asks the
Court to revisit its strike recommendation. (ECF No. 62, PageID
597.) He argues that a prisoner’s entire action must be dismissed
before it can be counted as a strike. (ECF No. 62, PageID 596.) A
prisoner may not proceed in forma pauperis if, on three or more
prior occasions, the prisoner brought “an action or appeal” that
was dismissed as frivolous or malicious or that failed to state a
claim. See 28 U.S.C. § 1915(g). Those prior actions are often
called “strikes.” A strike recommendation made by the dismissing
court is purely advisory and does not bind future courts enforcing
§ 1915(g). Simons v. Washington, 996 F.3d 350, 353–54 (6th Cir.
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defendants cannot count as a strike under § 1915. See Taylor v.
(“Section 1915(g) speaks of appeals and actions, but not claims.
. . . Even if an action only has one meritorious claim amidst a
sea of frivolous ones, the case cannot count as a § 1915(g)
strike.”) The Court has now dismissed all claims against Cadney,
the only remaining defendant. The Court recommends that this action
count as a strike under § 1915. See Pointer v. Wilkinson, 502 F.3d
dismissed, in part for failure to exhaust and in part for one of
the grounds stated in § 1915(g), the dismissal should count as a
strike.”) Tankesly’s Motion for Reconsideration is DENIED.
Judgment is GRANTED. All claims against Cadney are DISMISSED.
recommends that this action be treated as a strike under 28 U.S.C.
SO ORDERED this 1st day of August, 2022.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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