Butler v. Williams

Filing 35

ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL, 26 29 DENYING MOTION FOR VOLUNTARY DISMISSAL, 33 GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, 25 CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE. Signed by Judge James D. Todd on 9/28/16. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ROBERT D. BUTLER,
Plaintiff,
VS.
TRACEY WILLIAMS, ET AL.,
Defendants.

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No. 14-2948-JDT-tmp

ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL,
DENYING MOTION FOR VOLUNTARY DISMISSAL,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

On December 9, 2014, the pro se prisoner Plaintiff, Robert D. Butler, filed a
complaint pursuant to 42 U.S.C. § 1983 addressing his previous confinement at the Shelby
County Criminal Justice Complex (“Jail”) in Memphis, Tennessee. (ECF No. 1.) The Court
subsequently granted leave to proceed in forma pauperis and assessed the civil filing fee
pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. §§ 1915(a)-(b). (ECF No.
5.) On June 24, 2015, the Court issued an order denying Plaintiff’s motions for appointment
of counsel, dismissing portions of the complaint and directing that process be served on
Defendant Tracey Williams, a Correctional Officer at the Jail. (ECF No. 8.) The Defendant
was duly served, and a motion for summary judgment was filed on February 5, 2016. (ECF
No. 25.) Plaintiff did not file a response to the motion for summary judgment. However, he

did file two additional motions for appointment of counsel. (ECF Nos. 26 & 29.) For the
reasons stated in the Court’s order of partial dismissal, Plaintiff’s motions for appointment
of counsel are again DENIED.
On May 26, 2016, Plaintiff filed a motion for voluntary dismissal without prejudice.
(ECF No. 33.) Pursuant to Federal Rule of Civil Procedure 41(a)(2), “[e]xcept as provided
in Rule 41(a)(1),1 an action may be dismissed at the plaintiff’s request only by court order,
on terms that the court considers proper.” The granting of a Rule 41(a)(2) dismissal “is
within the sound discretion of the district court.” Grover v. Eli Lilly & Co., 33 F.3d 716, 718
(6th Cir. 1994). “Generally, an abuse of discretion is found only where the defendant would
suffer ‘plain legal prejudice’ as a result of a dismissal without prejudice, as opposed to facing
the mere prospect of a second lawsuit.” Id. (citation omitted).
In its entirety, Plaintiff’s motion for voluntary dismissal states:
I am asking, for a dismissal [due] the fact without prejudice I missed two of the
most important motions of this civil suit. I failed to do my discovery first
motion. From my understanding, it is when I suppose to present all evidence.
And my summary judgment 2nd motion. Therefor[e] I am asking a voluntary
dismissal without prejudice.
(ECF No. 33.) The Defendant has filed a response in opposition to the motion, contending
that he will suffer “plain legal prejudice” if Plaintiff is allowed to dismiss this case without
prejudice.

1

Under Rule 41(a)(1)(A), a plaintiff may dismiss an action at any time “before the
opposing party serves either an answer or a motion for summary judgment” or by filing “a
stipulation of dismissal signed by all parties who have appeared.”
2

In Grover, the Sixth Circuit set out the type of factors to be considered in deciding
whether to grant a Rule 41(a)(2) dismissal:
In determining whether a defendant will suffer plain legal prejudice, a
court should consider such factors as the defendant’s effort and expense of
preparation for trial, excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action, insufficient explanation for the need to take
a dismissal, and whether a motion for summary judgment has been filed by the
defendant.
33 F.3d at 718. In this case, these factors weigh against the Plaintiff. Defendant has
completed discovery, including having taken the Plaintiff’s deposition, and has filed a motion
for summary judgment. Plaintiff apparently has done nothing to prosecute this case other
than file four motions for appointment of counsel. His only stated reason for requesting a
dismissal is that he failed to engage in discovery or response to the motion for summary
judgment. However, he gives no explanation for those failures.
The Court finds that granting a dismissal without prejudice at this stage would result
in plain legal prejudice to the Defendant. Therefore, Plaintiff’s motion for voluntary
dismissal is DENIED.
Pursuant to Fed. R. Civ. P. 56, 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,

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325 (1986). 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;[2] 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:
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
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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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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). However, the Court’s function is not to weigh the evidence, judge credibility, or in
any way determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Rather, the inquiry is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251-52.
The fact that a plaintiff does not respond does not require granting a motion for
summary judgment. Nevertheless, if the allegations of the complaint are contravened by the
defendants’ evidence and the defendants are entitled to judgment as a matter of law on those
facts, then summary judgment is appropriate. Smith v. Hudson, 600 F.2d 60, 65 (6th Cir.
1979).
In the order of partial dismissal, the Court summarized the allegations in Plaintiff’s
complaint:

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The complaint addresses Plaintiff’s incarceration at the Jail from March
2013 until August 15, 2014. (ECF No. 1 at PageID 2.) During that time,
Defendant Williams allegedly made frequent verbal sexual advances toward
Plaintiff. Williams allegedly stared at Plaintiff and made sexual remarks while
he was in the shower. Defendant also allegedly denied Plaintiff food,
recreation and privileges because Plaintiff refused to cater to his sexual needs.
(Id. at PageID 2, 4.)
Plaintiff was scheduled to be released in May, 2013. At that time,
Williams had Plaintiff fill out his release paperwork in the control center,
which was not standard procedure. Plaintiff provided his address and his
mother’s telephone number. After Plaintiff’s release, Defendant allegedly
telephoned him. Defendant allegedly later texted a sexual proposition to
Plaintiff’s cell phone. After Defendant repeated his proposition, Plaintiff
called him to make clear that he was not interested. (Id. at PageID 4-5.)
On August 3, 2013, Plaintiff returned to the Jail because he had been
indicted. At that time, he was housed on a mental health unit. Upon his
arrival, Williams allegedly stated, “I knew you was gone be back and I might
get to suck your dick this time.” (Id.) Defendant allegedly began to deny
Plaintiff meals and privileges for not submitting to his advances, and he also
allegedly began to sit in front of the shower and watch Plaintiff during his
showers. (Id. at PageID 6.) As a result, during the five days each week when
Williams was scheduled to work, Plaintiff was afraid to leave his cell. Plaintiff
also became “deeply depressed” because he was watched by Defendant while
he showered. Plaintiff was prescribed an anti-depressant. He also asked to be
moved from the pod. (Id.)
(ECF No. 8 at 3-4.) In the order of partial dismissal, the Court determined that all claims
arising before September 15, 2013 were time barred. Therefore, the only relevant events are
those occurring during Plaintiff’s second incarceration at the Jail and after September 15,
2013.
For a convicted prisoner, claims such as those alleged by Plaintiff would arise under
the Eighth Amendment, which prohibits cruel and unusual punishments. See generally
Wilson v. Seiter, 501 U.S. 294 (1991). However, Plaintiff presumably was a pre-trial
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detainee at the Jail. For pre-trial detainees, “the ‘cruel and unusual punishment’ proscription
of the Eighth Amendment to the Constitution does not apply,” because “as a pre-trial
detainee [the plaintiff is] not being ‘punished,’” Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d
Cir. 2000). Instead, a person detained prior to conviction receives protection against
mistreatment at the hands of prison officials under the Due Process Clause of the Fourteenth
Amendment if held in state custody. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009);
Liscio v. Warren, 901 F.2d 274, 275–76 (2d Cir.1990). However, even though Plaintiff
appears to have been a pre-trial detainee during the events at issue, the court will analyze the
claims under Eighth Amendment principles because the rights of pre-trial detainees are
equivalent to those of convicted prisoners. Thompson v. Cnty. of Medina, 29 F.3d 238, 242
(6th Cir. 1994) (citing Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).3
An Eighth Amendment claim consists of both objective and subjective components.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992);
Wilson, 501 U.S. at 298; Williams v. Curtin, 631 F.3d at 383; Mingus v. Butler, 591 F.3d 474,

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On June 22, 2015, the Supreme Court held, in Kingsley v. Hendrickson, 135 S. Ct. 2466
(2015), that excessive force claims brought by pre-trial detainees must be analyzed under a
Fourteenth Amendment standard of objective reasonableness, rejecting a subjective standard that
takes into account a defendant’s state of mind. Id. at 2472-73. It is unclear whether or to what
extent the holding in Kingsley may affect the deliberate indifference standard for claims
concerning an inmate’s health or safety, which the Sixth Circuit applies to both pre-trial
detainees and convicted prisoners. See Morabito v. Holmes, 628 F. App’x 353, 356-58 (6th Cir.
2015) (applying, even after the decision in Kingsley, the objective reasonableness standard to
pre-trial detainee’s excessive force claims and the Eighth Amendment’s deliberate indifference
standard to denial of medical care claim). Absent further guidance, the Court will continue to
apply the deliberate indifference analysis to claims concerning a pre-trial detainee’s health and
safety.
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479-80 (6th Cir. 2010).

The objective component requires that the deprivation be

“sufficiently serious.” Farmer, 511 U.S. at 834; Hudson, 503 U.S. at 8; Wilson, 501 U.S. at
298.
To satisfy the objective component of an Eighth Amendment claim, a prisoner must
show that he “is incarcerated under conditions posing a substantial risk of serious harm,”
Farmer, 511 U.S. at 834; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir.
2005), or that he has been deprived of the “‘minimal civilized measure of life’s necessities,’”
Wilson, 501 U.S. at 298 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)); see also
Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004). The Constitution “‘does not mandate
comfortable prisons.’” Wilson, 501 U.S. at 298 (quoting Rhodes, 452 U.S. at 349).
“[R]outine discomfort ‘is part of the penalty that criminal offenders pay for their offenses
against society.’” Hudson, 503 U.S. at 9 (quoting Rhodes, 452 U.S. at 347). Thus, “extreme
deprivations are required to make out a conditions-of-confinement claim.” Id.
In support of the motion for summary judgment, Defendant relies on excerpts from
Plaintiff’s deposition (Butler Dep., ECF No. 25-3) and his own affidavit (Williams Aff., ECF
No. 25-4). Defendant contends that he is entitled to judgment as a matter of law because he
did not violate Plaintiff’s Eighth Amendment rights and because Plaintiff suffered no
physical injury as a result of Williams’s actions.
The PLRA bars prisoner suits “for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a sexual act.” 42
U.S.C. § 1997e(e); see Braswell v. Corr. Corp. of Am., 419 F. App’x 522, 626 (6th Cir.
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2011). “[E]ven though the physical injury required by § 1997e(e) for a § 1983 claim need
not be significant, it must be more than de minimis for an Eighth Amendment claim to go
forward.” Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010).
In this case, Plaintiff does not allege that he was physically harmed or even touched
by the Defendant. He alleges only that he suffered emotional distress. Therefore, Defendant
is entitled to judgment as a matter of law for that reason alone.
Defendant also argues, however, that there is no evidence that he violated Plaintiff’s
Eighth Amendment rights. Defendant does not deny that he sent Plaintiff an inappropriate
text message while Plaintiff was between incarcerations, propositioning him sexually.
However, Plaintiff told Defendant not to contact him, and there was no further
communication during that time.
After Plaintiff was re-incarcerated in August 2013, he was assigned to the unit that
Defendant supervised. Plaintiff alleged that the Defendant sometimes made sexually
inappropriate comments to him and would watch Plaintiff shower or get undressed.
However, as stated, Plaintiff does not contend that Defendant ever touched him or harmed
him.
Any verbal sexual harassment by the Defendant does not satisfy the objective
component of an Eighth Amendment claim. See, e.g., Pasley v. Conerly, 345 F. App’x 981,
984 (6th Cir. 2009); Jones Bey v. Johnson, 248 F. App’x 675, 677-78 (6th Cir. 2007) (no
Eighth Amendment claim for prison guard’s “use of racial slurs and other derogatory
language”); Miller v. Wertanen, 109 F. App’x 64, 65 (6th Cir. 2004) (a guard’s verbal threat
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to sexually assault an inmate “was not punishment that violated [the prisoner’s] constitutional
rights”); Johnson v. Unknown Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (“harassment and
verbal abuse . . . do not constitute the type of infliction of pain that the Eighth Amendment
prohibits”); Johnson v. Moore, 7 F. App’x 382, 384 (6th Cir. 2001) (“Allegations of verbal
harassment and verbal abuse by prison officials toward an inmate do not constitute
punishment within the meaning of the Eighth Amendment. Nor do allegations of verbal
harassment rise to the level of unnecessary and wanton infliction of pain proscribed by the
Eighth Amendment.” (citation omitted)); Owens v. Johnson, No. 99-2094, 2000 WL 876766,
at *2 (6th Cir. June 23, 2000) (“The occasional or sporadic use of racial slurs, although
unprofessional and reprehensible, does not rise to a level of constitutional magnitude. The
petty exchanges of insults between a prisoner and guard do not amount to constitutional
torts.” (citation omitted)); Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (per curiam)
(holding that verbal abuse or harassment does not constitute punishment under the Eighth
Amendment); Miles v. Tchrozynski, No. 2:09-CV-11192, 2009 WL 960510, at *1 (E.D.
Mich. Apr. 7, 2009) (“Even verbal threats by a corrections officer to assault an inmate do not
violate an inmate’s Eighth Amendment rights. Verbal threats and abuse made in retaliation
for filing grievances are likewise not actionable.” (citation omitted)).
With regard to Plaintiffs’ allegations that he was denied recreation and privileges
because he would not submit to Defendant’s advances, Plaintiff contends that the Defendant
denied him food. However, in his deposition he clarified that sometimes Defendant would
offer Plaintiff and other inmates an extra tray of food; however, on a single occasion,
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Defendant did not give Plaintiff an extra tray. Plaintiff also conceded that the allegation that
he was denied recreation is based on fewer than five incidents in which the Defendant
stopped Plaintiff and other inmates from playing games. On one occasion, after Defendant
had told Plaintiff to stop moving between units and Plaintiff agreed to comply, Defendant
did not allow Plaintiff to warm up his coffee in a break-room that was shared by two units.
Consequently, Plaintiff requested a transfer because he did not like the restriction about
moving between units.
Plaintiff also stated that sometimes he would not take a shower if Defendant had not
specifically told him he could do so and that sometimes Defendant would wait until there was
only a few minutes left in the shower time before telling Plaintiff he could shower. In
addition, Plaintiff testified that the shower stalls have opaque curtains from waist to floor that
cannot be seen through clearly and that other shift officers besides Defendant were
sometimes present during the inmates’ shower time.
The evidence in the record, and Plaintiff’s deposition in particular, demonstrates that
the Defendant did not violate Plaintiff’s rights under the Eighth Amendment. Therefore,
there are no genuine issues of material fact for trial. Accordingly, the motion for summary
judgment is GRANTED.
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal
by Plaintiff in this case would be taken in good faith. The good faith standard is an objective
one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal
is taken in good faith is whether the litigant seeks appellate review of any issue that is not
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frivolous. Id. The same considerations that lead the Court to grant summary judgment also
compel the conclusion that an appeal would not be taken in good faith.
Therefore, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in
this matter by Plaintiff would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Plaintiff
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in
good faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the
installment procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601,
610-11 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716
F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the
PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the Plaintiff is instructed that if he wishes to take
advantage of the installment procedures for paying the appellate filing fee, he must comply
with the procedures set out in McGore and § 1915(a)(2) by filing an updated in forma
pauperis affidavit and a current, certified copy of his inmate trust account for the six months
immediately preceding the filing of the notice of appeal.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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