United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
BARBARA D. HOLMES United States Magistrate Judge
Honorable Gershwin A. Drain, District Judge
Order entered September 29, 2016 (Docket Entry No. 8), the
Court referred this action to the Magistrate Judge for
pretrial proceedings pursuant to 28 U.S.C. §§
636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of
Civil Procedure, and the Local Rules of Court.
pending before the Court is the motion for summary judgment
of Defendants Wendy Ashe, Kizzy Hawkins, and Anita Jenkins
(Docket Entry No. 28), to which Plaintiff has responded in
opposition. See Docket Entry Nos. 36 and 41. For the
reasons set out below, the undersigned respectfully
recommends that the motion be granted and that this action be
Crockett ("Plaintiff) is an inmate within the custody of
the Tennessee Department of Correction ("TDOC") and
is currently confined at the Metro-Davidson County Detention
Facility ("MDCDF") in Nashville, Tennessee. He
filed this lawsuit pro se and in forma
pauperis on August 1, 2016, alleging that his federal
constitutional rights were violated at the MDCDF and seeking
relief under 42 U.S.C. § 1983. In the order of referral,
the Court dismissed claims brought against three wardens at
the MDCDF but found that Plaintiff stated colorable
constitutional claims against five MDCDF employees: case
manager Kizzy Hawkins ("Hawkins"); disciplinary
hearing officer f/n/u Cato; disciplinary hearing officer
Anita Jenkins ("Jenkins"); medical supervisor Wendy
Ashe ("Ashe"); and nurse f/n/u Burrells.
See Docket No. 8 at 2-3.
brings three separate claims. First, he claims that he
suffered cruel and unusual punishment in July 2016 when he
was placed on "sack lunch" diet for approximately
14 days as a restriction after he beat on his cell door with
a food tray. See Complaint (Docket Entry No. 1) at 5
and 8-9. He contends that each of the three meals a day that
he received during this period consisted of two cold bologna
sandwiches, a bag of stale chips, and cake at each meal and
that he should have been given a "styrofoam tray"
diet, which would have provided him with hot meals of a
different variety. Id. He alleges that his stomach
hurt after eating the same meal for several days in a row.
Id. He implicates Defendant Hawkins in this claim.
Second, Plaintiff claims that he was discriminated against,
treated with deliberate indifference, and that due process
and federal and state laws were violated because disciplinary
proceedings brought against him in June and July 2016 were
procedurally inadequate and improper. Id. at 10-11.
Plaintiff implicates Defendants Cato and Jenkins in this
claim. Finally, Plaintiff claims that he was subjected to
cruel and unusual punishment because his medical complaints
were not adequately responded to from May to July 2016.
Id. at 12-13. He implicates Defendants Burrells,
Ashe, and Jenkins in this claim.
Defendants Hawkins, Jenkins, and Ashe have appeared and
defended the action, Plaintiff failed to return a completed
service packet for Cato and the status of service of process
upon Defendant Burrells is unclear from the record. Upon the
filing of an answer (Docket Entry No. 24) by Defendants Ashe,
Hawkins, and Jenkins, a scheduling order was entered to
provide the parties with a time period for pretrial activity
in the action. See Docket Entry No. 25.
MOTION FOR SUMMARY JUDGMENT AND RESPONSE
their motion for summary judgment, Defendants Ashe, Hawkins,
and Jenkins (hereinafter referred to collectively as
"Defendants") raise several arguments for
dismissal. See Memorandum in Support (Docket Entry
No. 29). First, they argue that Plaintiff has not properly
exhausted his claims as required by the Prison Litigation
Reform Act of 1996 ("PLRA"), 42 U.S.C. §
1997e. Additionally, Defendants Ashe and Hawkins argue that
they were not personally involved in the events at issue in
the claims brought against them and, thus, cannot be held
liable under Section 1983 based upon their supervisory
duties. Defendants further argue that Plaintiffs Eighth
Amendment cruel and unusual punishment claims warrant
dismissal because the undisputed evidence shows that, 1)
Plaintiff was provided with nutritionally adequate meals via
the "sack lunches" meals, and, 2) Plaintiff was
provided with appropriate medical treatment for his
complaints. Defendant Jenkins argues that Plaintiffs due
process claim against her based on the disciplinary
proceedings warrants dismissal because the disciplinary
proceeding in which she was involved resulted in only a loss
of recreation time for Plaintiff, which she contends is not
the type of deprivation that implicates constitutional due
process protections. Finally, Defendants assert that
Plaintiff has not shown that he suffered a physical injury
that was more than de minimis. In support of their
motion, Defendants rely upon their own declarations,
see Docket Entry Nos. 30, 32, and 33, as well as the
declaration of CoreCivic employee Phederica Dean.
See Docket Entry No. 31.
response, Plaintiff disputes that he failed to file a
grievance about the matters at issue and contends that the
grievance he filed was deemed "non grievable" by a
prison official, prompting him to proceed with filing this
lawsuit. See Response in Opposition (Docket Entry
No. 36) at 2. Plaintiff also disputes Defendant Jenkins'
account of the process he received at his disciplinary
proceeding and asserts that he has a disciplinary form he
would like to submit. Id. at 1-2. Finally, Plaintiff
disputes Defendant Hawkins' contention that she was not
involved in the "sack lunch" restriction, and he
reiterates his beliefs that he should have been placed on a
"styrofoam diet" and that serving him a cold sack
lunch for two consecutive seven day periods is cruel and
unusual punishment. Id. at 2; and Response (Docket
Entry No. 41).
STANDARD OF REVIEW
judgment is appropriate 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." Rule 56(a)
of the Federal Rules of Civil Procedure. See also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106S.Ct. 2548,
91 L.Ed.2d 265 (1986). A "genuine issue of material
fact" is a fact which, if proven at trial, could lead a
reasonable jury to return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Unlike ruling on a
motion to dismiss, in considering whether summary judgment is
appropriate, the Court must "look beyond the pleadings
and assess the proof to determine whether there is a genuine
need for trial." Sowards v. London Cnty., 203
F.3d426, 431 (6th Cir.), cert, denied, 531 U.S. 875,
121 S.Ct. 179, 148 L.Ed.2d 123 (2000). In reviewing a motion
for summary judgment, the Court must view the evidence and
all inferences drawn from underlying facts "in the light
most favorable to the party opposing the motion."
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986); Gribcheckv. Runyon, 245 F.3d 547, 550 (6th
Cir.), cert, denied, 534 U.S. 896, 122 S.Ct. 217,
151 L.Ed.2d 155 (2001).
the moving party has presented evidence sufficient to support
a motion for summary judgment, the nonmoving party is not
entitled to trial merely on the basis of allegations;
significant probative evidence must be presented to support
the complaint." Goins v. Clorox Co., 926 F.2d
559, 561 (6th Cir. 1991). The party opposing the motion for
summary judgment may not rely solely on the pleadings but
must present evidence supporting the claims asserted by the
party. Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d
888, 892 (6th Cir. 2003). Moreover, conclusory allegations,
speculation, and unsubstantiated assertions are not evidence,
and are not ...