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Plemons v. Core Civic Administrative Headquarters

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

September 30, 2019

DAVID HOPKINS PLEMONS, Plaintiff,
v.
CORE CIVIC ADMINISTRATIVE HEADQUARTERS, et al., Defendants.

          Crenshaw Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE.

         I. Introduction and Background

         This matter is before the Court upon two Motions for Summary Judgment: the first, filed by Defendant Brun;[1] and the second, filed by Defendants' Washburn and Greer. Docket Nos. 81, 85.[2]

         Plaintiff 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 damages. Id.

         Along 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.[3] Docket Nos. 90, 91.

         As 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. Id.

         Plaintiff 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.

         Plaintiff 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.

         Along 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.[4] 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.[5] Docket No. 92. Defendants Washburn and Greer have filed a Reply. Docket No. 93.

         As 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.

         Plaintiff 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.

         In 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.[6] 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. 27.

         Defendants 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. Id.

         For the 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 be DISMISSED.

         II. Undisputed Facts[7]

         A. Affidavit of Christopher Brun

         At all 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, 3.

         Trousdale 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.

         As the 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.

         Defendant 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.

         Defendant 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.

         Defendant Brun did not order that inmate Lyle W. Andrews #00306389 be celled with Plaintiff or that Plaintiff remain celled with Inmate Andrews. Id., ¶ 11.

         To the 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.

         No one 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.

         On 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.

         Plaintiff was transferred to another cell on November 17, 2017. Id., ¶ 19.

         B. Declaration of Lybrunca Cockrell

         Lybrunca 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.

         Pursuant to Policy 501.01, Inmate Grievance Procedures, the processing of a standard inmate grievance at Trousdale proceeds as follows:

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 ...

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