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Kirk v. Corrections Corporation of America

United States District Court, M.D. Tennessee, Columbia Division

July 25, 2017

JASON KIRK # 361557, Plaintiff,
v.
CORRECTIONS CORPORATION OF AMERICA, et al., Defendants.

          The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge.

          REPORT AND RECOMMENDATION

          Joe B. Brown United States Magistrate Judge

         Before the court is plaintiff's motion to reconsider under Rule 54(b), Fed.R.Civ.P. (Doc. 128) For the reasons explained below, plaintiff has failed to show that he is entitled to relief under Rule 54(b). Therefore, the undersigned recommends that plaintiff's motion (Doc. 128) be DENIED .

         I. BACKGROUND

         Plaintiff, proceeding pro se and in forma pauperis, was a prisoner in the South Central Correctional Facility (SCCF) when he brought this action under 42 U.S.C. § 1983 against twenty-three defendants on May 5, 2016. (Doc. 1) This case originally was assigned to then-Chief Judge Kevin H. Sharp, who referred the case to the undersigned on May 10, 2016 to, inter alia, “dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B) . . . .” (Doc. 6)

         Plaintiff averred in his original complaint that he “ha[d] attempted to exhaust his administrative remedies for each and every claim he [wa]s presenting . . . by filing a grievance pursuant to T.D.O.C. 501.02 . . . .”[1] (Doc. 1, ¶ (44), p. 6) According to plaintiff, he “exhausted his administrative remedies offered . . . at S.C.C.F., ” but that “there had been numerous instances wherein he . . . filed a grievance only to have the . . . grievance[], ignored or thrown away and simply unprocessed.” (Doc. 1, ¶¶ (45)-(46), p. 6) In a footnote, plaintiff asserted that he made a “good faith effort at exhausting his remedies by filing multiple grievances during the last year.” (Doc. 1, n. 1, p. 6) Plaintiff did not attach copies of any grievances to his complaint, nor was he required to. Plaintiff later filed an amended complaint on July 7, 2016. (Docs. 49, 68) Plaintiff's amended complaint was silent on the issue of exhaustion.

         Defendants filed a motion for summary judgment on July 15, 2016. (Docs. 60-64) Defendants sole argument on summary judgment was that this case should be dismissed because plaintiff had not exhausted his administrative remedies. Defendants provided the sworn declaration of Senior Corrections Officer (SCO) Leigh Staggs - who is not a defendant to this action - in support of their failure-to-exhaust argument. (Doc. 60-2) SCO Staggs attested that Tennessee Offender Management Information System (TOMIS) records showed that plaintiff filed only a single grievance between September 1, 2015 and July 12, 2016, and that there were no paper copies of any other grievances in the SCCF files that may have been returned to plaintiff during that same period. (Doc. 60-2, ¶¶ 13-18, pp. 3-4 of 15)

         Plaintiff filed a motion for an extension of time to respond to defendants' motion for summary judgement on August 12, 2016 and again on September 1, 2016. (Docs. 81, 95) Both motions were silent on the issue of exhaustion. Both motions were granted. (Docs. 84, 97)

         Pursuant to Administrative Order No. 186-2, this case was reassigned to Senior United States District Judge William J. Haynes, Jr. on September 12, 2016. (Doc. 100)

         Plaintiff filed a motion for an evidentiary hearing on October 6, 2016 in response to defendants' motion for summary judgment, a supporting memorandum, plaintiff's own affidavit and the affidavits of three other SCCF inmates: Courtney Mathews, Torrie Perkins, and David Hearing. (Docs. 103-107) Plaintiff asserted in his motion that he sought an evidentiary hearing “in support of his allegations that he properly filed numerous grievances and therefore ha[d] properly exhausted his administrative remedies . . . .” (Doc. 103, ¶ (5), pp. 1-2) The crux of plaintiff's justification for an evidentiary hearing was that SCO Staggs allegedly lied in her sworn declaration and that she had a practice of mishandling grievances, violating TDOC grievance procedures, and falsifying official state documents. (Docs. 103, ¶¶ (8)-(12), p. 2; 104, ¶¶ (5), (7)-(9), pp. 1-3) Plaintiff did not attach copies of any grievances to any of the documents that he filed in connection with his motion for an evidentiary hearing.

         Plaintiff averred in his memorandum that his affidavit, and those of his fellow inmates, support his allegations that SCO Staggs routinely violates grievance procedures, falsifies official state documents, throws away grievances, or fails to respond to them. (Doc. 104, ¶¶ (11)-(15), p. 3) Turning first to his affidavit, plaintiff averred that he filed 11 grievances pertaining to the matter before the court (hereinafter the grievances at issue), that he followed TDOC grievance procedures, that SCO Staggs “consistently” violated TDOC grievance procedures, and that she prevented his grievances from being processed properly. (Doc. 105, ¶¶ 6-12, pp. 1-2) As noted above, plaintiff did not file copies of any grievances in connection with his motion for an evidentiary hearing.

         Turning to the affidavits of the other three inmates, the document purported to have been executed by inmate Mathews was executed on June 30, 2014 in connection with a petition for a declaratory order filed in State court. (Doc. 104, pp. 10-21 of 23) Long on words and short on clarity, inmate Mathews' apparent complaint was that SCO Staggs returned only the first page of the four-page grievance form to him, and that she resolved an unspecified grievance without the authority to do so. In his affidavit, inmate Perkins also attests that SCO Staggs removed the last three pages of a four-page grievance form that he submitted, and that she returned only the white copy (the grievant's copy) to him. (Doc. 106) Finally, inmate Hearing's affidavit is a copy of an appeal challenging SCO Stagg's apparent decision to resolve a grievance when inmate Hearing did not appear at his hearing because “a staff member who [he] did not know” told him to return to his place of work at the prison library because there were more than 30 inmates ahead of him waiting for their hearing. (Doc. 107, ¶ 13, p. 1) Inmate Hearing's basic argument is that SCO Staggs should not have resolved the issue on her own, but should instead have permitted him to appeal.

         Defendants responded in opposition to plaintiff's motion for an evidentiary hearing. (Docs. 108-109) Defendants argued, inter alia, that plaintiff had not demonstrated, and could not demonstrate, that he had exhausted his administrative remedies, and that the other inmates' affidavits did not support plaintiff's argument that SCO Staggs either threw grievances away or failed to respond them.

         Plaintiff filed a motion in opposition to defendants' response to his motion for an evidentiary hearing on November 28, 2016, attaching affidavits from the following inmates: David Hearing, Courtney Mathews, Willie Cole, Tamir Clark, Eric Gilbert, Michael Hart, Gerald Sanford, and William Shatswell. (Doc. 110) In his motion, plaintiff asks rhetorically on one hand, “[h]ow can the Plaintiff . . . produce the actual original grievance, if the grievances are tu[r]ned into SCO Staggs, and she throws them away” (Doc 110, ¶ (27), p. 5), asserting on the other hand that he has been able “to create and retain xerox copies of some of the grievances he filed, and can provide them to the court at an evidentiary hearing” (Doc. 110, ¶ (5), pp. 1-2).[2] Plaintiff once again did not provide the court with copies of the grievances at issue. Plaintiff subsequently filed a motion on December 5, 2016 to conduct an evidentiary hearing by video. (Doc. 111) Defendants responded in opposition to both motions. (Doc. 112)

         The undersigned entered an R&R on December 13, 2016 (hereinafter the first R&R) denying plaintiff's motion for an evidentiary hearing, and recommending that the action be dismissed for failure to exhaust as to all of the defendants save Unit Manager Patricia Harrison and SCO Daniel Harville. (Doc. 113) Plaintiff objected to the first R&R, submitting therewith - for the first time - the grievances at issue. (Docs. 116-119) Judge Haynes adopted the first R&R on January 4, 2017, making specific reference to “Docket Entry No. 118, ” plaintiff's objection to the first R&R. (Doc. 120).

         The case was reassigned to now-Chief Judge Waverly D. Crenshaw, Jr. on January 18, 2017 upon the retirement of Judge Haynes. (Doc. 125) Thereafter, plaintiff filed a motion for relief from judgment under Rule 60(b), Fed.R.Civ.P. on January 23, 2017. (Doc. 128) On June 27, 2017, having liberally construed plaintiff's motion as a motion to reconsider under Rule 54(b), Chief Judge Crenshaw referred plaintiff's motion to the undersigned to enter a second R&R “[b]ecause the Magistrate judge did not have the opportunity to review the eleven grievances prior to issuing the Report and Recommendation . . . .” (Doc. 161)

         II. ...


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