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Barnes v. Garner

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

July 2, 2019

Y DALE BARNES, Plaintiff,
v.
JESSICA GARNER, et al., Defendants.

          HONORABLE ALETA A. TRAUGER, DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          ALISTAIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Casey Dale Barnes's amended complaint (Doc. No. 17) is before the Court for an initial screening under 28 U.S.C. §§ 1915(e)(2) and 1915A. Barnes, who is incarcerated and appears pro se and in forma pauperis, has filed this action against Defendants Jessica Garner and Russell Washburn under 42 U.S.C. § 1983, alleging violations of his federal civil rights. The defendants are employees of CoreCivic, Inc., a private, for-profit corporation formerly known as Corrections Corporation of America, that operates several correctional facilities in Tennessee by contract with the Tennessee Department of Correction (TDOC). Washburn is the warden at Trousdale Turner Correctional Center (TTCC) in Hartsville, Tennessee, and Garner served as a sergeant and chair of the TTCC disciplinary committee while Barnes was incarcerated there. Barnes alleges that the defendants failed to protect him from an attack by four gang members also incarcerated at TTCC, that they wrongly convicted him of disciplinary violations without due process, and that other CoreCivic employees retaliated against him for filing this action by altering his sentence structure to prevent his release on parole. For the reasons that follow, the Magistrate Judge will recommend that the Court dismiss Barnes's Eighth Amendment and retaliation claims for failure to state a claim under 28 U.S.C. §§ 1915(e)(2) and 1915A, but allow his due process claims to proceed.

         I. Background

         A. Factual Background [1]

         1. Attacks and Protective Custody at TTCC

         Barnes alleges that, on August 14, 2017, four gang members who were also incarcerated at TTCC entered his cell, attacked him with homemade knives, and repeatedly sexually assaulted him. (Doc. No. 17.) Barnes “was seriously injured and repo[]rted this crime to the officer in his unit but was never treated for [r]ape or any other injuries.” (Id. at PageID# 141.) On August 27, 2017, four “gang members from D-Unit came in [his] cell and beat [him] up and robbed [him].” (Doc. No. 17-8, PageID# 211.) Barnes told his “mother what was going on and she began to make calls” to get Barnes placed into protective custody. (Id.) Barnes “wasn't taken to protective custody until . . . September 6th, 2017, after his family had made hundreds of phone calls to the TDOC/Admin[i]stration in Nashville . . . .” (Doc. No. 17, PageID# 141, ¶ 6.) Barnes states that he was placed in protective custody because of the rape “and also because he was being forced to rec[e]ive illegal mail for the gang members that had raped him.” (Id. at PageID# 142, ¶ 8.) After the attack, Barnes “tried to file charges against the inmates who commit[t]ed the ass[a]ults against him, ” (Doc. No. 17-7, PageID# 180, ¶ 6), but several CoreCivic officers threatened to put Barnes in the same cell as his attackers if Barnes did not “drop the [r]ape case . . .” (Doc. No. 17, PageID# 141, ¶ 7).

         2. Initial Parole Hearing and TTCC Disciplinary Convictions

          Barnes had an initial parole hearing on December 18, 2017, at which he was told that that there were three disciplinary convictions in his TTCC record and that “his time was incorrect and that the file showed some issues with his credits. His parole had to be put off . . . for six (6) months to try and fix the time issues and to figure out who was forging the [r]epo[]rts in his file” (Doc. No. 17; Doc. No. 17-7, PageID# 181, ¶ 11). The “Offender Hearing Decision Notification” from that hearing states that the Parole Board decided to decline parole because Barnes's “release from custody at th[at] time would have [had] a substantially adverse effect on institutional discipline . . . .” (Doc. No. 17-7, PageID# 202.)

         Barnes states that the first disciplinary charge-disciplinary incident ID# 01288447- involved a package addressed to him that was searched on August 22, 2017, and found to contain loose tobacco, cell phones, and cell-phone chargers. (Doc. Nos. 17, 17-4.) According to TTCC records, the disciplinary committee held a hearing on September 12, 2017, and Barnes pleaded guilty to the charge of conspiracy to violate state law and waived his rights to notice, to have the reporting official present, and to call witnesses. (Doc. No. 17-4.) Barnes states in his amended complaint that he was not given a copy of the disciplinary report until seven months after the hearing, that he was not allowed to view photographs of the evidence against him, and that he was not allowed to call witnesses on his behalf at the disciplinary hearing. (Doc. No. 17.) However, in a grievance attached to his amended complaint, Barnes acknowledges that he was “served” with a copy of this disciplinary “write-up” on September 11, 2017, and that he “was read the write-up and [he] signed it.” (Doc. No. 17-8, PageID# 211.) He further states in the attached grievance that the disciplinary committee convened shortly thereafter “without [him] being able to call a witness, no copy of the write-up, [and] no inmate or staff advisor . . . .” (Id.) Barnes states that Chris Brum, a “TDOC Cont[r]act Monitor, ” told him that if he pleaded guilty to the conspiracy-to-violate-state- law charge as a Class-B infraction, a second disciplinary charge regarding a refused drug screen “would be dropped.” (Id.) If he did not plead guilty, he “would be guaranteed a Class A” infraction for the tobacco and cell phones “and the [Class] B for the drug screen.” (Id.) Barnes felt that he had “no choice” but to plead guilty even though he and Brum both knew that the four gang members who attacked Barnes had the package sent in his name. (Id.)

         The second disciplinary charge-disciplinary incident ID# 1290951-alleged that Barnes refused a drug screen and admitted to illegal drug use on September 6, 2017. (Doc. Nos. 17, 17-5.) Barnes states that he “was served a write-up for failing a drug screen” on September 8, 2017, after “Officer Hauri claimed [Barnes] refused a drug screen . . . .” (Doc. No. 17-8, PageID# 211.) According to TTCC records, the disciplinary committee held a hearing on this charge on September 13, 2017. (Doc. No. 17-5.) Barnes states that he did not attend the hearing. (Doc. No. 17.) TTCC records show that Barnes pleaded not guilty and did not waive any of his procedural rights. (Doc. No. 17-5.) The committee found him guilty based on an officer's testimony, even though Brum had told him this charge would be dropped when he pleaded guilty to the first charge. (Doc. Nos. 17-5, 17-8.)

         The third disciplinary charge-disciplinary incident ID# 01295170-involved a syringe found on September 29, 2017, in a cell that Barnes allegedly shared with another inmate. (Doc. Nos. 17, 17-6.) The officer who found the syringe charged both Barnes and his cellmate with possession of drug paraphernalia, even though Barnes was in protective custody and not the cell at the time. (Id.) TTCC records show that the disciplinary committee held a hearing on this charge and that Barnes pleaded guilty, and again waived his rights to notice, to have the reporting official present, and to call witnesses. (Doc. No. 17-6.) But Barnes alleges that he never pleaded guilty to this charge and did not receive a copy of the disciplinary report until several months later. (Doc. No. 17.) Barnes “has tried to get these convictions removed from his file[ ] and has been unsuccessful in every attempt.” (Id. at PageID# 142, ¶ 12.)

         3. Subsequent Parole Review Hearings

         On March 7, 2018, Barnes was transferred to Hardeman County Correctional Facility (HCCF), in Whiteville, Tennessee, which is also run by CoreCivic, and “placed into permanent protective custody.” (Id. at PageID#142, ΒΆ 13.) On July 23, 2018, Barnes attended a parole review hearing, and the Parole Board ...


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