Columbia v. Marquart et al
Filing
104
Memorandum Opinion and Order granting 88 , 91 Motions for Summary Judgment. (Ordered by Magistrate Judge Paul D Stickney on 6/21/2011) (anf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
COLUMBIA RODGERS,
TDCJ #1536699
Plaintiff,
v.
ROGER MARQUARDT et al
Defendant.
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Civil Action No. 3:09-CV-2025-BF
MEMORANDUM OPINION AND ORDER
This is a consent case before the United States Magistrate Judge. A Motion for Summary
Judgment (Doc. 91) filed by Robert Marquardt, Stephen McAdams, David Driskell, Terry Wiktorik,
Richard Shufelt, Frederic Tunaitis, Kenneth Smith, Christine Hogan, Lonnie Bratcher, David
Hearne, Daniel Simpson, Nadine Jackson, Belinda Salazar, Alvin Johnson, Ivan Martinez, Cody
French, Oscar Mumaugh, Dawn Tunaitis, Enrique Perez, Jr., William Gay, and Nathan Duran
(“Defendants”) is before the Court for consideration. The time for Plaintiff to respond to the Motion
has expired, and Plaintiff has failed to file a response
Plaintiff is an inmate of the Texas Department of Criminal Justice-Institutional Division and
is proceeding pro se and in forma pauperis. The Court must construe the allegations in the complaint
liberally. See Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam); Sec. & Exch. Comm’n v. AMX,
Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993) (per curiam). The terms of 28 U.S.C. § 1746 govern
verification of an unsworn complaint. A plaintiff may declare under penalty of perjury that the
factual allegations contained in the pleading are true and correct. See 28 U.S.C. § 1746. The factual
allegations of the verified complaint are endowed with the evidentiary force of an affidavit. Id.
When a pro se plaintiff properly executes a complaint or other pleading which calls for a declaration
in conformity with 28 U.S.C. § 1746, the plaintiff’s statements are transformed from mere
allegations of a pleading into specific facts as if they were in an evidentiary affidavit. Hart v.
Hairston, 343 F.3d 762, at 765 (5th Cir. 2003). Therefore, a plaintiff’s failure to proffer evidentiary
materials directly in opposition to a defendant’s motion does not mandate the entry of summary
judgment in favor of the defendant. Id.
Plaintiff has filed one verified complaint. In this case, the Court will exercise its discretion
to consider Plaintiff’s verified complaint as competent summary judgment proof. See Skotak v.
Tenneco Resins, Inc., 935 F.2d 909, 915 n.7 (5th Cir. 1992); Bookman v. Shubzda, 945 F.Supp. 999,
1003 (N.D. Tex. 1996) (Fitzwater, J.).
Background
Plaintiff Columbia Rodgers (“Plaintiff” or “Rodgers”) is an inmate of the Texas Department
of Criminal Justice-Institutional Division at the Sanders Estes facility in Venus, Texas, operated by
Management & Training Corporation (“MTC”). Plaintiff sues Defendants under 42 U.S.C. § 1983,
alleging a federal civil rights claim. Specifically, Plaintiff claims that: (1) Defendants violated his
right to a safe prison environment by retaliating against him for filing grievances; (2) he was
sexually harassed and physically assaulted by Defendant Duran; and (3) Defendants were
deliberately indifferent to his health and safety in violation of the Eighth Amendment. (Compl. 515.)
Defendant contends that summary judgment is proper because the evidence in the record fails
to raise a genuine issue of material fact as to whether: (1) any Defendant infringed Plaintiff’s Eighth
Amendment Rights; (2) any Defendant infringed Plaintiff’s Fourth Amendment Rights; (3) Plaintiff
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suffered any injury proximately cause by such infringement; and (4) any of the Defendants adopted
or maintained a policy or practice that was the direct cause of any denial of Plaintiff’s constitutional
rights.
Facts of the Case1
Plaintiff is an inmate at the Sanders Estes Prison Unit in Venus, Texas. Plaintiff’s complaints
about his incarceration initially arose after he began work in the kitchen for lunch duty on or about
January 25, 2009. (Doc. 93-1, p. 7). Defendant Nathan Duran was a supervising officer for that shift.
(Doc. 93-1, p. 7). A routine strip search was performed at the end of the kitchen shift due to the
prisoners’ access to weapons and contraband. (Doc. 93-2, p. 3). Officer Duran had the inmates
undress in an area where women correctional officers and kitchen staff could pass through. (Doc.
93-1, pp. 7-8). Duran never touched Plaintiff or the other inmates. (Doc. 93-1, p. 8).No other named
Defendant, other than Duran, was involved in this incident. (Doc. 93-1, p. 24).
Plaintiff verbally complained to Defendant Adams about the way the strip search was
conducted. Although there is no record of this, Plaintiff claims he filed a Step 1 grievance in
January. (Doc. 93-2, p.5). Plaintiff also requested that he be transferred from the kitchen. (Doc. 93-1,
p. 10). Plaintiff’s request was granted, he was transferred from kitchen duty, and he was never
subjected to another strip search by Duran. (Doc. 93-1, pp. 10-11; Doc. 93-2, p. 3).
In May 2009, Plaintiff filed a grievance regarding the strip search incident, and he also filed
a request for protection from Duran. (Doc. 93-2, p. 5). On one occasion, Plaintiff’s cell door was
opened around 2:00 AM and the lights were turned, and Duran was standing right outside Plaintiff’s
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The facts are presented as Plaintiff’s version of events. Although Defendants dispute Plaintiff’s version of
events, they contend they are entitled to summary judgment even if the facts are as Plaintiff presents them. Because
Plaintiff’s complaint offers only allegations, the facts have been compiled from Plaintiff’s deposition. Where
necessary, these facts are supplemented by documents provided in Defendants’ briefs.
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cell. (Doc. 93-1, p. 13).
In June 2009, Plaintiff complained to Defendant Wiktorik that Duran smiled at him and told
him he had “a nice ass.” (Doc. 93-1, p. 14; Doc. 93-2, p. 9). On June 14, 2009, Officer Duran entered
Plaintiff’s cell as if he was performing a security check. (Doc. 93-1, p. 14). As Plaintiff began to
climb down from the upper bunk, Officer Duran pushed Plaintiff and caused him to cut his shin on
a lock. (Doc. 93-1, pp. 14-15; Doc. 93-2, p. 11). Plaintiff asked for medical attention on June 26,
indicating that his ankle or leg was swollen, but there is no mention of the alleged assault in his
medical record. (Doc. 93-2, pp. 14-20). Plaintiff filed his grievance about the incident a few days
later. (Doc. 93-1, p. 11). No named Defendant, other than Duran, was involved in this incident.
(Doc. 93-1, p. 24).
On July 1, 2009, Plaintiff was brought in to provide details regarding his assault claim, but
he refused to assist with the MTC investigation. (Doc. 93-2, p. 20). On August 13, 2009, Duran
opened Plaintiff’s cell door at 2:00 AM. (Doc. 93-1, p. 15).
Defendant Duran resigned his position at the Sanders Estes Unit in October 2009 after he
found a new job. (Doc. 93-2, p. 3). Plaintiff admits that other than the five incidents described above
(the strip search, the door opening twice, the push, and the “nice ass” comment), there is no other
actual conduct by Duran that is at issue in this matter. (Doc. 93-1, p. 17).
Plaintiff also refers to three other incidents in his Complaint. The first two incidents relate
to occasions in 2010 when correctional officers, who are not parties to this lawsuit, woke Plaintiff
up at 2:30 AM to prepare breakfast when he was not actually on breakfast duty. (Doc. 93-1, p. 22;
Doc. 93-2, p. 3). Lastly, Plaintiff complains that in February 2010, Defendant Lt. Hearne used a
curse word when he told Plaintiff to pull up his pants. Plaintiff filed a grievance about this, and Lt.
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Hearne was counseled regarding use of inappropriate language. (Doc. 93-1, p. 21; Doc. 93-2, pp.
3; 31-33)
Standard of Review
Summary judgment is appropriate when the pleadings and the evidence show that there is
no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(c); Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. &
Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). The applicable substantive law identifies
those facts that are material, and only disputes about material facts will preclude the granting of
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is a genuine
issue of fact if the evidence would permit a reasonable jury to return a verdict for the nonmoving
party. Society of Fin. Examiners v. Nat’l Ass’n of Certified Fraud Examiners, Inc., 41 F.3d 223, 226
(5th Cir. 1995).
The moving party bears the initial burden of showing that there is no genuine issue of fact
for trial. National Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 712
(5th Cir. 1994). Where the nonmoving party bears the burden of proof on a claim upon which
summary judgment is sought, the moving party may discharge its summary judgment burden by
showing an absence of evidence in support of the nonmoving party’s case. Celotex, 477 U.S. at 325.
Once a properly supported motion for summary judgment is presented, the burden shifts to the
nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Elliott v.
Lynn, 38 F.3d 188, 190 (5th Cir. 1994) (citing Anderson, 447 U.S. at 249). Summary judgment will
be granted “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.”
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Celotex, 477 U.S. at 322. The Court will consider the record in the light most favorable to Plaintiff.
Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001). As long as there
appears to be some support for the disputed allegations such that “reasonable minds could differ as
to the import of the evidence,” the motion must be denied. Anderson, 477 U.S. at 250. However, a
failure on the part of the nonmoving party to offer proof concerning an essential element of his case
necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact
exists. Adams v. Travelers Indemnity Co., 465 F.3d 156, 164 (5th Cir. 2006).
Analysis
Plaintiff contends that his Fourth and Eighth Amendment rights were violated because: (1)
he was both sexually harassed and physically assaulted by Defendant Duran; and (2) Defendants
improperly and inadequately responded to his grievances. (Doc. 93-1, pp. 20-22). Although he
claims he was in fear for his life, Plaintiff does not identify any specific activities or communications
by any members of the MTC staff to support that allegation, other than the specific instances of
conduct described above. (Doc. 93-1, pp. 25-26; Doc. 93-2, p. 3).
The terms of 42 U.S.C. § 1983 create a cause of action against every person who, under color
of law, subjects, or causes to be subjected, any citizen to the deprivation of rights, privileges, or
immunities secured by the United States Constitution and laws. 42 U.S.C. § 1983; Banuelos v.
McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Private corporation employees retained to perform
prison official duties pursuant to a contract with the State, such as the Sanders Estes Defendants, are
considered state actors for the purpose of this provision. West v. Atkins, 487 U.S. 42 at 50 (1988).
Summary Judgment with Respect to Strip Search Allegations
On February 7, 2009, Defendant Duran conducted a strip search of Plaintiff and other
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offenders at the Sanders Estes facility. Appendix p. 4. Plaintiff is not contending that the search itself
was a violation of his rights; rather, he complains about the manner in which the search was
conducted. Plaintiff alleges that after ordering the inmates to strip in an area where female MTC
employees had access, Defendant Duran stared at the naked inmates for 8-15 minutes and never
checked the offenders or their clothing for weapons or contraband. (Doc. 93-1, p. 7-8). Plaintiff
claims that this conduct constitutes sexual harassment. Accepting the facts as Plaintiff describes
them, Defendants are entitled to summary judgment with respect to these claims.
“A prisoner's rights are diminished by the needs and exigencies of the institution in which
he is incarcerated. He thus loses those rights that are necessarily sacrificed to legitimate penological
needs." Moore v. Carwell, 168 F.3d 234, 236-237 (5th Cir. 1999). In the Fifth Circuit, “prisoners
retain, at best, a very minimal Fourth Amendment interest in privacy after incarceration.” Oliver v.
Scott, 276 F.3d 736, at 744 (5th Cir. 2002).The Fifth Circuit has held that strip searches carried out
in non-secluded areas of the prison and in the presence of prison employees of the opposite sex are
not unconstitutional. Elliott v. Lynn, 38 F.3d 188, 190-92 (5th Cir. 1994). Therefore, the fact that
female employees could have possibly observed the search does not constitute an infringement of
Plaintiff’s Fourth Amendment rights.
The Fourth Amendment requires that “searches or seizures conducted on prisoners must be
reasonable under all the facts and circumstances in which they are performed.” United States v. Lilly,
576 F.2d 1240, 1244 (5th Cir. 1978). In the prison context, the standard for an exaggerated or
excessive means of enforcing security is quite high. See, e.g., Bell v. Wolfish, 441 U.S. 520, 558
(1979) (holding visual strip searches reasonable to confiscate weapons and contraband); Elliot, 38
F.3d 188, 191 (holding a strip search justified to seize weapons and contraband). In the instant case,
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Plaintiff admits that he was not physically touched during the search and that he was able to cover
himself with his hands. (Document 93-1, p. 7-8). Given the increased access to weapons and
contraband in the kitchen environment, a strip search after the kitchen duty shift was reasonable.
Therefore, the search Plaintiff was subject to did not meet the exaggerated or excessive standard and
was not a violation of his Fourth Amendment rights. Bell, 441 U.S. 520, 559. Accordingly,
Defendants are entitled to summary judgment regarding Plaintiff’s strip search claims.2
Summary Judgment with Respect to Use of Force Allegations
The Supreme Court held that “after incarceration, only the unnecessary and wanton infliction
of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley
v. Albers, 475 U.S. 312, 319 (U.S. 1986). The test for wanton pain and suffering is “whether force
was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically
for the very purpose of causing harm.” Valencia v. Wiggins, 981 F.2d 1440, 1446 (5th Cir. 1993).
This inquiry has an objective component that focuses on the amount of harm inflicted and a
subjective component that focuses on the mental state of the alleged wrongdoer. Hudson v.
McMillan, 503 U.S. 1, at 7-8 (1992). Regarding the objective inquiry, the first relevant factor is the
extent of the injury suffered. Id. at 6. Plaintiff’s injuries need not have been severe to be entitled to
relief, but they must be more than de minimis. Siglar v. Hightower, 112 F.3d 191, at 193 (5th Cir.
1997).
Plaintiff seems to argue that the manner in which the February 7, 2009 strip search was
conducted violated his Eighth Amendment rights. Plaintiff also contends that on June 14, 2009,
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Plaintiff’s sexual harassment claim under § 1983 must also fail. “Mere threatening language and gestures
of a custodial officer do not, even if true, amount to a constitutional violation.” McFadden v. Lucas, 713 F.2d 143,
146 (5th Cir. 1983).
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Defendant Duran entered Plaintiff’s cell in a manner that led Plaintiff to believe that Duran was
conducting a room search. (Doc. 93-1, p. 14.) Plaintiff claims that while he attempted to climb down
from his bunk, Defendant Duran shoved him into the locking mechanism of the cell door. (Doc. 931, p. 14.) The locking mechanism cut Plaintiff’s shin. (Doc. 93-1, p. 14.) Plaintiff alleges that
following this contact, Defendant Duran exited the cell and closed the door while Plaintiff shouted
for help. (Doc. 93-1, p. 15.)
Using Plaintiff’s description of the facts, Plaintiff has not provided any evidence that force
was applied maliciously and sadistically rather than as part of a good-faith effort to maintain or
restore discipline. Plaintiff admits that during the strip search, he wasn’t touched in any way by any
Defendant and suffered no injury. During the cell search incident, Plaintiff was pushed by Defendant
Duran and suffered a small, approximately one-inch long, abrasion on his shin. The medical records
indicate that Plaintiff had the ability to seek medical treatment at the Sanders Estes facility but
declined to do so. (Appendix to Defendant Adams’ Brief, 72-74). There is no record that Plaintiff
sought medical attention for his injury until June 26, 2009, twelve days after the alleged incident.
(Doc. 93-2, p. 14.) On July 1, 2009, Plaintiff refused to provide any details to MTC staff regarding
the alleged incident with Defendant Duran. (Doc. 93-2, p. 20.) Plaintiff applied neosporin to the cut
for a week, and it healed on its own some time later. (Doc. 93-1, p. 19.)
“The Eighth Amendment's prohibition of cruel and unusual punishment necessarily excludes
from constitutional recognition de minimis uses of physical force.” Hudson, 503 U.S. 1, at 9-10. In
Siglar, the Fifth Circuit held that a sore, bruised ear that lasted for three days was de minimis. Siglar,
112 F.3d at 193. On the other hand, in Gomez, the Fifth Circuit held that cuts, scrapes, contusions
to the face, head and body resulting from an inmate being knocked down, punched, and kicked were
more than de minimis. Gomez v. Chandler, 163 F.3d 921, at 924-25 (5th Cir. 1999). Plaintiff’s injury
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is more akin to those suffered in Siglar than Gomez. Taking the facts as Plaintiff describes them, the
extent of Plaintiff’s injury is insufficient to satisfy the objective branch of the malicious and sadistic
test. Accordingly, Defendant’s use of force does not qualify as an infliction of wanton pain and
suffering. Therefore, the alleged use of force was not in violation of Plaintiff’s rights under the
Eighth Amendment, and Defendants are entitled to summary judgment in this issue.
Summary Judgment with Respect to the Retaliation Allegations
Plaintiff’s complaint repeatedly alleges that Defendant Duran retaliated against him for filing
a grievance about the February 7, 2009 strip search. (Compl. 5-15). Specifically, Plaintiff contends:
(1) that “[Defendant Duran] sexually harassed/assaulted and later retaliated against Plaintiff
Rodgers;” (2) that “as part of his retaliation CO Duran physically assaulted the Plaintiff in his cell;”
and (3) that “Duran would enter my cell or pop the lock on my cell at all hours of the night.”
(Compl. 13). From his complaint, it can be inferred that Plaintiff alleges that Defendant Duran
violated his right to be free from retaliation for the exercise of his first amendment right of access
to the courts.
"To state a valid claim for retaliation under Section 1983, a prisoner must allege (1) a
specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her
exercise of that right, (3) a retaliatory adverse act, and (4) causation." Hart v. Hairston, 343 F.3d
762, 764 (5th Cir. 2003) (citing Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999)).
In order to establish retaliatory intent, Plaintiff “must produce direct evidence of motivation
or . . . allege a chronology of events from which retaliation may plausibly be inferred." Id. at 1166.
The February 7, 2009 strip search is the origin of Plaintiff’s retaliation claim. Plaintiff contends that
after he filed a grievance regarding that incident, Defendant Duran retaliated. Because the alleged
lewd comment, door opening, and pushing incidents all occurred after Plaintiff filed his grievance,
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it is chronologically plausible that Defendant Duran intended to retaliate.
To constitute a retaliatory adverse act under § 1983, the conduct must be “capable of
deterring a person of ordinary firmness from further exercising his constitutional rights.” Morris v.
Powell, 449 F.3d 682, 686 (5th Cir. 2006). According to the Fifth Circuit, “[this] standard achieves
the proper balance between the need to recognize valid retaliation claims and the danger of federal
courts embroil[ing] themselves in every disciplinary act that occurs in state penal institutions.” Id
(internal quotations omitted).
Taking the facts as Plaintiff describes them, there is no evidence of any retaliatory act that
rises to the level required by the Fifth Circuit. In Morris, the Fifth Circuit held that being transferred
to a more dangerous prison qualifies as a retaliatory adverse act while experiencing discomfort for
a few days is de minimis. Morris, 449 F.3d at 687. Plaintiff’s first allegation of retaliation involved
the cell inspection incident when Plaintiff suffered a small abrasion on his leg.Plaintiff’s other
retaliation claim involved Defendant Duran and two other correctional officers who aren’t party to
this suit, opening Plaintiff’s cell door in the middle of the night. Duran admitted that he did
accidentally unlock and open Plaintiff’s cell door. (Doc. 93-2, p. 28). At most, these incidents caused
Plaintiff temporary discomfort.
Plaintiff’s claim does not state a retaliatory adverse act as understood under Fifth Circuit
precedent pursuant to § 1983 because Plaintiff was not deterred from exercising his constitutional
rights. Plaintiff frequently availed himself of the MTC grievance system and requested protection
from prison authorities. (Doc. 93-1, p. 12) The record shows that MTC conducted investigations to
address each of Plaintiff’s filed grievances. (Doc. 90, pp. 11; 14-22; 24; 33; 35-38; 47-50; 53; 58;
63-77; 80-83; 92-104; 111-15; 125-28). After the February 7, 2009 strip search, Plaintiff asked for,
and was granted, a reassignment away from the kitchen detail where Defendant Duran was stationed.
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(Doc. 93-1, p. 13). Therefore, Plaintiff’s retaliation claim is invalid and summary judgment in favor
of the Defendants is in order.
Summary Judgment with Respect to Failure to Protect Allegations
In his complaint, Plaintiff alleges that the Defendants failed to provide a safe prison
environment. Plaintiff contends he should have been protected from the incidents of retaliation that
allegedly occurred after he filed a grievance about the February 7, 2009 strip search. With respect
to all of the named Defendants, other than Duran, Plaintiff’s complaint is that when he came to them
for protection, they referred him to the grievance system instead of personally doing something to
help him. (Doc. 93-1, p. 27; Doc. 93-2, p. 3). Plaintiff’s complaints were investigated, and they were
deemed unfounded. (Doc. 93-2, pp. 4-33). Specifically, Plaintiff argues that: (1) Defendant
Marquardt failed to properly train supervisory staff and employees to respond to allegations of
sexual harassment; (2) Defendants were deliberately indifferent to the Plaintiff’s safety; (3)
Defendant Shufelt failed to properly investigate Plaintiff’s filed grievances; and (4) Defendant Dawn
Tunaitis, as the compliance officer, was deliberately indifferent to Plaintiff’s safety by knowing of,
and not correcting, the behavior of the other MTC employees. (Compl., p. 5-15).
The Eighth Amendment’s prohibition against cruel and unusual punishment imposes a duty
on prison officials to take reasonable measures to ensure the safety of inmates. Farmer v. Brennan,
511 U.S. 825, 832 (1994). The Supreme Court has held that prison officials only violate this duty
when: (1) a sufficiently serious deprivation has occurred; and (2) the prison official acts with
“deliberate indifference” to inmate health or safety. Id. at 834. The Supreme Court has equated
“deliberate indifference” to criminal law recklessness, which requires a person charged with
recklessness to have had actual knowledge of a risk of harm. Id. at 836.
The deliberate indifference standard is an “extremely high standard to meet.” Gobert v.
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Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). A prison official acts with deliberate indifference "only
if (1) he knows that inmates face a substantial risk of serious bodily harm and (2) he disregards that
risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. 825, at 847. Taking the
facts as Plaintiff presents them in his complaint, Plaintiff has failed to carry this burden. Plaintiff
admits that the only time any Defendant touched him inappropriately was the incident when
Defendant Duran allegedly pushed him into the cell lock causing Plaintiff to suffer a small abrasion.
Plaintiff’s multiple assertions that he feels endangered are insufficient to establish any actual risk
of serious harm.
Even if Plaintiff had established the existence of a substantial risk of serious harm, he failed
to meet the threshold for proving deliberate indifference. Plaintiff’s grievances and conversations
with prison officials were sufficient to make them aware of the situation, but the record indicates
that Defendants acted on Plaintiff’s grievances where appropriate. Defendant Duran was a
correctional officer at the Sanders Estes facility for many years. He had no history of using deadly
or excessive force with any prisoners. (Doc. 93-2, p. 3). There was nothing in his history or behavior
that supported the allegation that he intended to cause Plaintiff any harm, let alone serious bodily
harm. (Doc. 93-2, p. 3). Even so, MTC: (1) required Duran to conduct one-by-one strip searches in
the future; (2) provided strip search training to all kitchen staff; and (3) granted Plaintiff’s request
to be transferred away from kitchen duty. (Doc. 93-1, pp. 10-11; Doc 93-2, p. 3). Also, Defendants
investigated each of the grievances Plaintiff filed and deemed them unfounded. (Doc. 90, pp. 11; 1422; 24; 33; 35-38; 47-50; 53; 58; 63-77; 80-83; 92-104; 111-15; 125-28). The record indicates
Defendants were responsive to Plaintiff’s grievances, not indifferent. Therefore, Defendants are
entitled to summary judgment regarding Plaintiff’s allegations of failure to protect.
Conclusion
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The Motions for Summary Judgment are hereby GRANTED. Plaintiff’s claims against
Defendants are dismissed with prejudice for failure to state a claim.
SO ORDERED, June 20, 2011.
_____________________________________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
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