United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE.
Introduction and Background
matter is before the Court upon two Motions for Summary
Judgment: the first, filed by Defendant Brun; and the second,
filed by Defendants' Washburn and Greer. Docket Nos. 81,
filed this pro se action pursuant to 42 U.S.C. § 1983
alleging that Defendants violated his First and Eighth
Amendment rights. Docket No. 1. Plaintiff contends that, on
November 3, 2017 a suspected gang member was assigned to his
cell at Trousdale Turner Correctional Complex
(“Trousdale”) to punish him for filing an
incident report and seeking protective custody. Id.
As pertains to the instant Defendants, Plaintiff avers that
Defendants Washburn and Brun knew that the suspected gang
member was placed in his cell to punish him. Id.
Plaintiff contends that he was physically and sexually
assaulted and that Defendants Washburn and Brun failed to
protect him from being attacked and failed to place him in
protective custody or reassign his cell. Id.
Plaintiff avers that he was rendered unconscious and that he
suffered visible bruises, broken ribs, rectal bleeding, and a
bloody nose as a result of being physically and sexually
assaulted. Id. Plaintiff avers that, during a
protective custody hearing, he told Defendant Greer that he
had difficulty breathing and that his ribs were broken,
relaying that he was being housed with a suspected gang
member. Id. Plaintiff asserts that Defendant Greer
told him to request a sick call, but that he never received
any treatment. Id. Plaintiff sues Defendants in
their official and individual capacities, seeking monetary
with his Motion, Defendant Brun has contemporaneously filed a
supporting Memorandum of Law, the Affidavits of Defendant
Brun and Lybrunca Cockrell, Plaintiff's medical records,
and a Statement of Undisputed Material Facts. Docket Nos.
81-1 - 83. Plaintiff has filed a Response to Defendant
Brun's Motion and a Response to Defendant Brun's
Statement of Undisputed Material Facts. Docket Nos. 90,
grounds for his Motion, Defendant Brun argues that
Plaintiff's only relevant grievance does not raise
allegations against him, and that accordingly, Plaintiff has
failed to exhaust his administrative remedies as required
under the Prison Litigation Reform Act. Docket Nos. 81, 82.
Defendant Brun additionally argues that Plaintiff cannot
sustain his claims against him because Defendant Brun had no
knowledge of any excessive risk of harm to Plaintiff, had no
knowledge that Plaintiff's family had contacted the
prison complaining of gang activity prior to November 2,
2017, did not allow any gang member to assault Plaintiff, was
not involved in a “cover-up” of gang activity,
was not involved in placing or keeping Inmate Andrews
assigned to Plaintiff's cell, and had no physical contact
with either inmate. Id. Additionally, Defendant Brun
argues that Plaintiff cannot sustain his claims because there
is no evidence that Plaintiff was harmed and the medical
records do not document any physical injury to Plaintiff.
Id. Defendant Brun never met Plaintiff or talked to
him, and no one ever told him that Plaintiff needed medical
care. Id. Finally, Defendant Brun argues that he
affirmed the Protective Custody Panel's decision to deny
protective custody status to Plaintiff for the reasons given
by the Panel - that Plaintiff had failed to provide
sufficient evidence justifying protective custody status.
has filed a Response to Defendant Brun's Motion and a
Response to Defendant Brun's Statement of Undisputed
Facts. Docket Nos. 90, 90-1. Plaintiff's Responses do not
contain evidence in a form required by the Federal and Local
Rules; they do not respond to the grounds raised in the
Motion or properly respond to each statement in the Statement
of Undisputed Facts as Plaintiff's Response fails to
contain the requisite citations to the record.
has additionally submitted a document entitled “Fed. R.
Civ. P. 8(d) Pleading to be concise & direct amendment
& response” (Docket No. 91) and a
“response” to Defendant Brun's Affidavit
(Docket No. 92-2). These “responses” are not
directly responsive, but rather, contain rambling, conclusory
thoughts; they likewise do not contain evidence in a form
required by the Federal and Local Rules. See id.
with their Motion for Summary Judgment, Defendants Washburn
and Greer have contemporaneously filed a supporting
Memorandum of Law, the Declarations of Defendant Washburn and
Lybrunca Cockrell, Policy 501.01, Plaintiff's November 8,
2017 Grievance, and a Statement of Undisputed Material Facts.
Docket Nos. 86-89. Plaintiff has filed a document that the
undersigned will construe as Responses to Defendants Washburn
and Greer's Motion and Statement of Undisputed Material
Facts. Docket No. 92. Defendants Washburn and
Greer have filed a Reply. Docket No. 93.
grounds for their Motion, Defendants Washburn and Greer argue
that they are entitled to summary judgment because: (1)
Plaintiff has failed to exhaust his administrative remedies
as required under the Prison Litigation Reform Act; (2)
Plaintiff cannot establish that Defendant Washburn personally
encouraged specific instances of misconduct alleged in the
Complaint or in some other way directly participated in any
such misconduct, nor can Plaintiff establish that Defendant
Washburn played any role in connection with Plaintiff's
alleged requests for protection from other inmates, such that
Plaintiff cannot establish his Eighth Amendment claim against
Defendant Washburn; (3) Plaintiff cannot establish an Eighth
Amendment deliberate indifference claim against either
Defendant Washburn or Defendant Greer because the evidence
establishes that Defendant Washburn provided Plaintiff with
reasonable safety at all times during his incarceration at
Trousdale and Defendant Greer did not deny Plaintiff access
to appropriate medical treatment during his incarceration at
Trousdale; (4) the evidence establishes that Plaintiff did
not suffer a physical injury that was more than de minimus,
as required under the Prison Litigation Reform Act in order
to sustain a claim under the Eighth Amendment; and (5)
Defendant Washburn did not take adverse action against
Plaintiff in connection with any lawsuit or grievance that
Plaintiff previously filed against him or any CoreCivic
employee and Plaintiff cannot establish a prima facie case
for retaliation such that summary judgment is warranted.
Docket No. 85.
has filed a document entitled “FEDERAL RULE CIVIL
PROCEDURE 56 -Plaintiff Plemons moves within this Honorable
Court as to consider the following for his Summary Judgment
relief against Defendants (Christopher Brun)(Russell
Washburn)(Tara Greer)”, which the undersigned will
construe as a Response. Docket No. 92. Plaintiff's
Response is a largely rambling, conclusory document that
intersperses recitation of law with recitation of conclusory
allegations and story-telling, much of which relates to
people who are not parties to the instant action. See
Id. As noted, Plaintiff does not directly respond to the
grounds raised in Defendants' Motion, nor does Plaintiff
dispute Defendants' contention that he failed to exhaust
his administrative remedies. See Id. Plaintiff has
additionally written his responses to Defendants Washburn and
Greer's Statement of Undisputed Material Facts. Docket
No. 92-1. Plaintiff's responses do not properly dispute
the statements and do not contain the requisite citations to
the record. See id.
their Reply, Defendants Washburn and Greer argue that
Plaintiff's response is “a thirty-two page brief
containing rambling facts and law - much of which pertain to
claims and parties that did not survive the Court's
initial screening order.” Docket No. 93. Defendants
Washburn and Greer note that there are no citations to the
record in “these thirty-two rambling pages, ” nor
are there any citations to the record in Plaintiff's
purported responses to their Statement of Undisputed Material
Facts. Id. Defendants Washburn and Greer argue that
Plaintiff's response is therefore fatally flawed and the
statements contained in their Statement of Undisputed
Material Facts should be deemed undisputed. Id.,
citing Fed. R. Civ. P. 56(c); Local Rules 56.01(c) and
56.01(f). Defendants Washburn and Greer additionally note
that this Court has already specifically instructed Plaintiff
to comply with Local Rule 56.01 in responding to Statements
of Undisputed Material Facts. Id., citing Docket No.
Washburn and Greer further reply that regardless, Plaintiff
did not file grievances regarding the claims now before the
Court, much less complete the three-step grievance procedure
in effect at Trousdale, such that Plaintiff has failed to
exhaust his administrative remedies. Docket No. 93. They note
that Plaintiff, in his Response, does not argue that he
exhausted his administrative remedies nor does he offer any
explanation for his failure to submit any grievances
regarding his claims that he was physically and sexually
assaulted and denied medical treatment during his
incarceration at Trousdale. Id. Defendants reiterate
that they are further entitled to summary judgment because
Plaintiff simply cannot sustain his claims against them.
reasons discussed below, the undersigned finds that Plaintiff
failed to exhaust his administrative remedies as required
under the Prison Litigation Reform Act. The undersigned
therefore recommends that Defendants' Motions for Summary
Judgment (Docket Nos. 81, 85) be GRANTED and that this action
Affidavit of Christopher Brun
times relevant to the instant action, Christopher Brun was
employed by the Tennessee Department of Correction
(“TDOC”) as the TDOC Contract Monitor of
Operations at Trousdale Turner Correctional Center
(“Trousdale”). Docket No. 81-1, Affidavit of
Christopher Brun (“Brun Aff.”), ¶¶ 2,
houses approximately 2, 500 inmates. Id., ¶ 4.
The TDOC Contract Monitor of Operations oversees
Trousdale's inmate reclassifications, inmate
disciplinaries, and segregation of inmates (including
protective custody segregation), as well as Trousdale's
compliance with the TDOC/CoreCivic contract and
Trousdale's inmate cell inspections. Id.
TDOC Contract Monitor of Operations, Defendant Brun reviews
the Protective Custody Panel's recommendation regarding
an inmate's placement in protective custody after the
Warden has reviewed it, but does not attend or participate in
protective custody panel hearings. Id., ¶ 5.
Defendant Brun has no authority or involvement in the process
of inmate cell assignments (including cell assignments and
choice of cellmates in protective custody pending
investigation status); such decisions are made by CoreCivic
employees at Trousdale. Id., ¶ 6.
Brun had no knowledge that Plaintiff was at risk of harm at
Trousdale and has no knowledge of whether Plaintiff's
family contacted Trousdale to complain about gang activity at
the facility prior to November 2, 2017. Id.,
¶¶ 7, 10.
Brun has never been involved in or allowed gang members to
assault Plaintiff, nor was he ever involved in a
“cover-up” of gang activity at Trousdale.
Id., ¶¶ 8, 9.
Brun did not order that inmate Lyle W. Andrews #00306389 be
celled with Plaintiff or that Plaintiff remain celled with
Inmate Andrews. Id., ¶ 11.
best of his knowledge, Defendant Brun has never met or spoken
with Plaintiff or Inmate Andrews, nor has Defendant Brun had
any encounters with them. Id., ¶ 12. Defendant
Brun was not present at Plaintiff's November 2017
protective custody hearing. Id., ¶ 13.
ever told Defendant Brun that Plaintiff was threatened or
injured by Inmate Andrews, and Defendant Brun never saw
either. Id., ¶ 14. Defendant Brun never
witnessed Plaintiff being in need of medical care, nor has
Defendant Brun ever denied Plaintiff medical care.
Id., ¶ 15.
November 15, 2017, the Protective Services Panel recommended
that Plaintiff's request for protective custody be
denied, as Plaintiff failed to provide enough evidence to
justify protective custody. Id., ¶ 16. As TDOC
Contract Monitor, Defendant Brun approved the Panel's
recommendation for the reasons provided by the Panel.
Id.; see also, Id., ¶ 17. Defendant Brun did
not approve the Panel's recommendation for any
retaliatory motive as he did not have any retaliatory motive
against Plaintiff. Id., ¶ 17.
was transferred to another cell on November 17, 2017.
Id., ¶ 19.
Declaration of Lybrunca Cockrell
Cockrell is employed by CoreCivic as the Grievance
Coordinator at Trousdale. Docket No. 88, Declaration of
Lybrunca Cockrell (“Cockrell Dec.”), ¶ 2.
CoreCivic's administrative grievance system enables
inmates at Trousdale to seek redress for issues relating to
the conditions of their confinement. Id., ¶ 3.
to Policy 501.01, Inmate Grievance Procedures, the processing
of a standard inmate grievance at Trousdale proceeds as
First Level: An inmate must file a grievance using
CR-1394 within seven calendar days of the occurrence or the
most-recent occurrence giving rise to the grievance. The
chairperson will review the grievance and log the grievance
as received. The chairperson's response to the grievance
will be written on the CR-1394 following the
chairperson's receipt and review of the supervisor's
response. The chairperson and supervisor have seven working
days to complete the response, which begins on the ...