United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
E. CLIFTON KNOWLES, Magistrate Judge.
I. Introduction and Background
This matter is before the Court upon Defendants' Motion for Summary Judgment, filed on February 3, 2015. Docket No. 61. In support of their Motion, Defendants have filed a Memorandum of Law (Docket No. 64), a Statement of Undisputed Material Facts (Docket No. 65), the Affidavit of Blair Leibach (Docket No. 62), and the Affidavit of Audrey Rimmer with Exhibits (Docket Nos. 63-63-4).
On February 18, 2015, Plaintiff filed a "Motion/Request for The Dismissal of Defendants' Motion for Summary Judgment" (Docket No. 80), which the undersigned will construe as a response. The following day, Plaintiff filed an Affidavit. Docket No. 81. One day later, Plaintiff filed another Affidavit. Docket No. 82. On February 26, 2015, Plaintiff filed additional materials "to be added to [his] motion/request to dismiss the defendants' motion for summary judgement [ sic ] and listed as Exhibit A." Docket No. 84. On March 2, 2015, Plaintiff filed another "Request/Motion to Dismiss Defendants' Motion for Summary Judgment." Docket No. 87.
With leave of Court (Docket No. 88), Defendants have filed a Reply (Docket No. 89).
On March 11, 2015, Plaintiff filed another Affidavit. Docket No. 94. A few days later, on March 16, 2015, Plaintiff filed a "Motion for Permission to Send Additional Paperwork In Support of His Opposition to Defendants' Undisputed Material Facts and Memorandum of Law and Motion for Summary Judgment." Docket No. 95. Two days later, on March 18, 2015, Plaintiff filed a "Request/Motion to Have Verified Complaint Accepted As An Affidavit In Opposition to Defendants' Motion for Summary Judgment." Docket No. 99. Two days after that, on March 20, 2015, Plaintiff filed his Declaration and another Affidavit. Docket Nos. 100, 101. Four days later, on March 24, 2015, Plaintiff filed another Declaration. Docket No. 102.
Plaintiff, who is proceeding pro se and in forma pauperis, originally filed two separate actions alleging that Defendants violated his Eighth Amendment rights pursuant to 42 U.S.C. § 1983. See Docket No. 1, Case No. 3:14-cv-01754; Docket No. 1, Case No. 3:14-cv-01762. Plaintiff's two actions have been consolidated into Case No. 3:14-cv-01754.
Plaintiff is a State inmate who, at all times relevant to the case at bar, was housed at "CCA/Metro. Davidson County Detention Facility." Docket No. 1. Plaintiff avers that another inmate attacked him in the face with a sock containing two metal combination locks, causing injuries requiring emergency surgery. Id. Plaintiff acknowledges that his attacker was thereafter placed in segregation and charged with aggravated assault, but he contends that Defendants knew that his attacker was violent and yet placed him in "low point security, " in violation of CCA policy 14-4-4. Id. Plaintiff avers that Defendants "are liable for deliberate indifference" because he was an "obvious victim, " he warned Unit Manager Carlton Dethrow, and they failed to protect him; and because, knowing the other inmate was aggressive and violent, they placed him in a dangerous situation by not having the other inmate in segregation. Id. Plaintiff avers that Defendants have a wide spread custom of violating policy, allowing dangerous inmates to interact with other inmates, and not protecting the inmates. Id. Plaintiff further avers that Defendant Leibach "rubber stamps" this practice through his grievance denials. Id. Plaintiff additionally avers that CCA officials failed to train or supervise their employees and promulgate policies to guide employee conduct, and that CCA allowed dangerous conditions to exist by selling metal combination locks to the Jail's general population, rather than selling smaller, plastic locks. Id.
Plaintiff also argues that, as a result of his reporting the incident and filing a complaint, he has been "targeted, harassed, intimidated by, threatened by, mistreated by, physically abused by several (certain) employees" of the facility, and has "been denied informals & grievances & [he] was denied legal access to the courts or an attorney." Id. Plaintiff further contends that, in an "act of retaliation, false disciplinary reports have been filed against [him], and [he has] been discriminated against regarding jobs, programs & disciplinary procedures & procedures [ sic ]." Id. He also contends that he "was knowingly' & intentionally' placed in the same pod/unit with [his] attacker... along with his family relatives, whom are either inmates or employees here at this facility, " and that "certain employees here at this facility have enlisted the aid of inmates in an attempt to get [him] to drop criminal charges" against his attacker. Id. Plaintiff additionally argues that, "in an act of retaliation, [he has] been denied [his] sentence credits, [his] exp. date has been tampered with & in an attempt to keep [him] silent, [he has] been threatened with write-ups & segregation." Id.
Plaintiff sues Defendants in their individual and official capacities. Id. He seeks injunctive relief, transfer to a facility where he will be safe (either "CJC" in "lock-up" or Lois M DeBerry Special Needs Facility in "safekeep status"), replacement of taken commissary, corrected "exp. dates, " as well as monetary damages. Id. Plaintiff also requests to be "separated or kept away from" a list of fifteen people "and other employees with whom [he has] no knowledge of their names." Id.
Defendants filed the instant Motion and supporting materials arguing that they are entitled to summary judgment because: (1) Plaintiff failed to exhaust his administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act ("PLRA"); and (2) respondeat superior is not a basis for the imposition of liability. Docket No. 61. Defendants also argue that they are entitled to summary judgment because: (1) taking Plaintiff's allegations of harassment, intimidation, and threatening by CCA employees as true, those allegations are insufficient to state a constitutional claim, as they do "not constitute the type of infliction of pain that the Eighth Amendment prohibits"; (2) taking Plaintiff's allegations that he was denied "informals" and grievances as true, those allegations are insufficient to state a constitutional claim, as "there is no constitutionally protected due process right to unfettered access to prison grievance procedures"; (3) taking Plaintiff's allegations that he was housed with his attacker as true, Defendants acknowledge that there have been times when both inmates have been housed in the Segregation Unit, but argue that Plaintiff was not placed in danger in those instances because he was housed in a different cell from his attacker and was escorted by corrections officers when moving within the Segregation Unit; and (4) beyond his initial attack, Plaintiff has failed to allege that he suffered any physical injury as a result of the remainder of his allegations. Docket No. 64.
In Plaintiff's submissions that this Court will construe as his Response,  Plaintiff contends that Defendants' Motion should be denied because: (1) as a pro se incarcerated Plaintiff, he does not have all the legal assistance and materials he needs to "create a solid argument or statement of disputed facts" to oppose Defendants' Motion; (2) he has been placed on "property restriction" numerous times, thereby allowing CCA employees an opportunity to "confiscate several selected pieces of legal notes or documents [relating to this case] that appear to be suspicious or a threat to security" or that could support his opposition to Defendants' Motion; (3) he has been subject to "bogus cell search[es]" that allow CCA employees to enter his cell and take more documents; (4) he followed the requirements of the PLRA because "each time he filed an informal' for (different) reasons regarding the attack" it came back unresolved so he then filed a second level grievance on each but was told nothing had been received, and each time he re-filed the second level grievances he was ignored, such that he ultimately "verbally addressed these issues with (Warden) Leibach but was brushed off"; (5) his retaliation escalated beyond just harassment, threats, and intimidation when he was placed in "strip cell confinement status, (without) a blanket, mattress, hygiene items, legal paperwork, clothes or shoes"; (6) Defendants "obvious[ly]" knew that the other inmate was violent and that placing him in a low security, general population area with access to commissary where metal locks were sold was dangerous and carried with it a strong possibility than an inmate would be harmed, but placed him there anyway; (7) Defendants also knew that there "was a supposed price on [Plaintiff's] head and that he was supposedly involved in an (internal) gang dispute over rank" but did nothing to protect him; (8) Defendants continued to allow metal locks to be sold even after the attack; (9) there are disputed material facts in this action; and (10) certain CCA employees have refused to give him legal supplies, notary services, or certain legal research books and have refused to give him information he needs to locate witnesses. Docket No. 80.
Plaintiff also contends that statements in the Affidavit of Audrey Rimmer are incorrect. Docket No. 87. Specifically, Plaintiff contends that he filed both a "Loss Property Form" regarding his stolen property and an "informal" regarding the attack. Id. Plaintiff reiterates that he followed the "grievance/PLRA procedure" but his "grievances/informals" were ignored and he did not receive responses to them, and Plaintiff argues that the "informals" he filed regarding being targeted, harassed, intimidated, and threatened "were never heard." Id. Plaintiff stated that he "disputes/opposes all of the Defendants' statement of facts and allegations, " such that the Court must deny Defendants' Motion. Id. Plaintiff notes that Defendants have refused to comply with his requests for discovery and "have taken possession of selected pieces of [his] legal document[s]" and have "refused to allow [him] to receive certain legal documents, statements from witnesses and legal books - material, " resulting in his not having "sufficient opportunity to obtain the necessary documentary evidence, locate witnesses and gather all/any information relevant to this case." Id.
As noted, with leave of Court, on March 3, 2015, Defendants filed a Reply to Plaintiff's submissions. Docket No. 89. In their Reply, Defendants argue that they are entitled to summary judgment because, despite an "express instruction from the Court regarding his obligation to respond to Defendants' statements of undisputed material fact, [Plaintiff] failed to respond to a single statement, " such that "each statement of undisputed material fact should be deemed admitted." Id. Defendants also argue that, although Plaintiff did file three informal resolutions that are "somewhat" related to the attack resulting in his broken jaw, Plaintiff did not exhaust his administrative remedies as required by the PLRA because he failed to complete the grievance process since he did not file a formal grievance or a grievance appeal regarding that attack. Id. Defendants further argue that Plaintiff did not exhaust his administrative remedies as required by the PLRA because he failed to file an informal resolution, formal grievance, or grievance appeal related to his contention that CCA employees allegedly harassed, intimidated, mistreated, abused, targeted, and threatened him. Id.
Regarding the points raised in Plaintiff's submissions, Defendants contend: (1) Plaintiff's claims that he was denied access to the grievance procedures are conclusory, nonspecific, and insufficient to survive Defendants' Motion; (2) Plaintiff's contention that he verbally raised his complaints with the Warden such that he completed the exhaustion requirement, fails to do so because the grievance-appeal stage requires that the inmate submit a written appeal of the formal grievance to the Warden or his designee, and does not provide the option of making verbal complaints; (3) Plaintiff has failed to provide the requisite specificity regarding his affirmative efforts to comply with the grievance procedures: he has not stated when he submitted the formal grievances, to whom he submitted the formal grievances, where he placed the formal grievances, or what he specifically said to CCA employees regarding his formal grievances; (4) Plaintiff cannot hold CCA liable because he failed to direct the Court to an official CCA policy or "even one other incident of CCA employees failing to protect inmates from violence at the hands of other inmates"; (5) Defendants have fully responded to Plaintiff's interrogatories and requests for production; (6) Plaintiff has failed to identify what information he still needs in order to be able to respond to Defendants' Motion, and he has failed to identify the legal materials that allegedly were confiscated, who allegedly confiscated the legal materials, or the arguments in Defendants' Motion that the legal materials would allow him to address; and (7) taunts and verbal abuse do not rise to the level of a constitutional violation. Id.
On March 11, 2015, Plaintiff filed his Affidavit, which appears to be a response to Defendants' Reply. Docket No. 94. On March 16, 2015, Plaintiff filed a "Motion For Permission To Send Additional Paperwork In Support Of His Opposition To Defendants' Undisputed Material Facts And Memorandum Of Law And Motion For Summary Judgement [ sic ]" (Docket No. 95), which seeks just that. Two days later, on March 18, 2015, Plaintiff filed a "Request/Motion to Have Verified Complaint Accepted As An Affidavit In Opposition To Defendants' Motion for Summary Judgement [ sic ]" (Docket No. 99, footnote added), which likewise seeks as the title suggests. Two days after that, on March 20, 2015, Plaintiff filed his Declaration and another personal Affidavit. Docket Nos. 100, 101. Four days after that, on March 24, 2015, Plaintiff filed another personal Declaration. Docket No. 102.
For the reasons to be discussed below, the undersigned finds that genuine issues of material facts exist such that Defendants' are not entitled to a judgment as a matter of law. Accordingly, the undersigned recommends that Defendants' Motion for Summary Judgment be DENIED.
A. Facts of Plaintiff's Verified Complaint
The facts of Plaintiff's Verified Complaint have been set forth in detail in Section I above. Accordingly, they will not be recounted again here.
B. Affidavit with Exhibits of Audrey Rimmer, CCA Quality Assurance Administrative Assistant and Informal Resolution Coordinator
CCA implemented an administrative grievance system that inmates at the Detention Facility can use to seek redress of issues relating to the conditions of their confinement. Docket No. 63., ¶ 3. The substantive and procedural aspects of CCA's administrative grievance system are delineated in CCA Policy 14-5, Inmate/Resident Grievance Procedures. Id., Ex. A. Pursuant to Policy 14-5, the processing of a standard inmate grievance at the Detention Facility consists of three stages: (1) within seven days of becoming aware of a specific grievable issue, the inmate must file an Informal Resolution, and a department-level supervisor or other appropriate official must respond within fifteen days of its receipt; (2) if the inmate is dissatisfied with the response to the Informal Resolution, the inmate must file a Formal Grievance within five days, and the Grievance Officer must respond within fifteen days of receiving the Formal Grievance; and (3) if the inmate is dissatisfied with the response to the Formal Grievance, the inmate must file a Grievance Appeal within five days, and the Warden must respond within fifteen days of receiving the Grievance Appeal. Id., ¶ 4.
Plaintiff filed three Informal Resolutions "somewhat related to the incident on May 5, 2014 that lead to [him] suffering from a broken jaw." Id., ¶ 5, Ex. B. Plaintiff did not specifically complain in those Informal Resolutions about the attack or his injuries, but instead focused on his complaint that some of his property was allegedly taken while he was being treated for his injuries. Id. CCA received Plaintiff's three Informal Resolutions on May 9, 2014, May 14, 2014, and May 23, 2014. Id., ¶ 6. A CCA employee responded to Plaintiff's Informal Resolutions regarding or mentioning the incident on May 5, 2014, but Plaintiff did not file a Formal Grievance or appeal any Formal Grievance to the Warden through a Grievance Appeal. Id. Plaintiff therefore failed to complete the grievance process for this claim. Id.
Prior to August 26, 2014, the date on which Plaintiff filed his Complaints in this matter, Plaintiff did not file any Informal Resolutions, Formal Grievances, or Grievance Appeals related to allegations that he had been targeted, harassed, intimidated, ...