United States District Court, M.D. Tennessee, Nashville Division
RICKY D. PAUL
RONELL JONES, et al.
REPORT AND RECOMMENDATION
BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE
Honorable Aleta A. Trauger, District Judge
Order entered January 28, 2019 (Docket Entry No. 9), the
Court referred this prisoner civil rights action to the
Magistrate Judge for pretrial proceedings under 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.
before the Court is the Motion for Summary Judgment (Docket
Entry No. 36) filed by Defendants Shane Cosby, Justin Howell,
and Ronell Jones. Plaintiff has responded in opposition to
the motion. See Docket Entry Nos. 47-49. For the
reasons set out below, the undersigned Magistrate Judge
respectfully recommends that the motion be granted and that
this action be dismissed.
D. Paul (“Plaintiff”) is an inmate of the
Tennessee Department of Correction (“TDOC”)
currently confined at the Bledsoe Creek Correctional Complex
in Pikeville, Tennessee. He filed this lawsuit pro
se and in forma pauperis on November 14, 2018,
based upon events that occurred at the Trousdale Turner
Correctional Center (“TTCC”) in Hartsville,
Tennessee, where he was previously confined. Plaintiff brings
claims for damages under 42 U.S.C. § 1983 against three
TTCC employees - Case Manager Ronell Jones
(“Jones”), Captain Justin Howell
(“Howell”), and Chief Shane Cosby
(“Cosby”) - based on allegations that they
violated his federal constitutional rights.
Plaintiff asserts that he was involved in an incident on
September 6, 2018, during which he had to be restrained.
See Complaint (Docket Entry No. 1) at
He alleges that Howell, Jones, and “one or two other
individuals” beat him on the head and repeatedly kicked
him after he was laying face down on the floor with his hands
in restraints behind his back. Id. He further
alleges that Howell and Cosby “said nothing” to
the people who were assaulting him. Id. Upon initial
review under 28 U.S.C. §§ 1915(e)(2) and 1915A, the
Court found that Plaintiff asserted individual-capacity
claims against Howell, Jones, and the unidentified
individuals for using unconstitutionally excessive force and
individual-capacity claims against Howell and Cosby for
failing to protect Plaintiff during the incident.
See January 28, 2019, Order at 2. All other claims
alleged by Plaintiff were dismissed.
Cosby, and Jones (hereinafter referred to collectively as
“Defendants”) filed an answer to the complaint
and a scheduling order was entered setting out deadlines for
pretrial activity in the case. See Docket Entry Nos.
25 and 27. To date, Plaintiff has not identified the unnamed
individuals for his excessive force claim, and process has
not been issued to them.
MOTION FOR SUMMARY JUDGMENT AND RESPONSE
seek summary judgment under Rule 56 of the Federal Rules of
Civil Procedure. They support their motion with a Memorandum
(Docket Entry No. 37), a Statement of Undisputed Material
Facts (Docket Entry No. 43), and the declarations of
Lybrunca Cockrell, a TTCC employee who oversees the
grievance process (Docket Entry No. 38), Defendant Cosby
(Docket Entry No. 39), Defendant Howell (Docket Entry No.
40), Defendant Jones (Docket Entry No. 41), and Latanya
Moore, a nurse at the TTCC (Docket Entry No. 42).
make three arguments for summary judgment. First, they assert
that Plaintiff did not file a prison grievance about the
incident as he was permitted to do by the prison grievance
policy and, thus, his claims are subject to dismissal under
the Prison Litigation Reform Act of 1996
(“PLRA”), 42 U.S.C. § 1997e, because of his
failure to exhaust administrative remedies. See
Memorandum at 4-7. Second, Defendants assert that the
undisputed evidence shows that Plaintiff physically assaulted
Defendant Cosby without provocation on September 6, 2018 by
grabbing him around the neck and wrestling with him.
Defendants assert that other prison officials, including
Defendants Howell and Jones, had to use a certain measure of
force in order to stop the assault and restrain Plaintiff,
who they contend ignored commands to stop resisting and was
violent and threatening during the incident. Defendants deny
using excessive force as alleged and argue that there is no
evidentiary support for Plaintiff's claims. Id.
at 7-11. Finally, while Defendants acknowledge that Plaintiff
suffered some bruises and cuts as a result of the incident,
they argue that these injuries are de minimis and,
thus, Plaintiff cannot sustain a claim in light of the
PLRA's requirement that “[n]o Federal civil action
may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e). Id. at
response to the motion, Plaintiff disputes each of
Defendants' arguments. See Plaintiff's Brief
(Docket Entry No. 47) and Declaration (Docket Entry No. 48).
With respect to the PLRA exhaustion defense, Plaintiff
asserts that he filed a grievance on September 8, 2018, but
that it was returned to him on September 21, 2018, with an
Inappropriate Grievance Notification form because the
grievance contained an incorrect date. He asserts that he
corrected the grievance and “sent it back as an appeal
on September 28, 2018, ” but that it was again returned
to him, this time without the three carbon paper, colored
copies of the grievance that are part of the original
grievance form and with a highlighted statement on the
notification form that the grievance should not address
multiple issues. See Brief at 2. Plaintiff asserts
that, although he assumed that the grievance was being sent
to the next level because the three copies of the grievance
had been removed, he received no further response to the
grievance. Id.; Declaration at 1. Plaintiff attaches
to his declaration a copy of the grievance and notification
form. See Docket Entry No. 48-1.
respect to Defendants' remaining two arguments, Plaintiff
contends that genuine issues of material fact exist
concerning his Eighth Amendment claims and that the
undisputed evidence shows that he suffered scalp lacerations
and abrasions that were not de minimis. In his
declaration, Plaintiff declares that: (1) Defendant Cosby
caused the confrontation by calling Plaintiff a “weak
inmate” in front of other inmates, which prompted
Plaintiff to grab Defendant Cosby; (2) that Defendant Jones
and officer Roach hit and kicked him after he was restrained
with handcuffs and laying on the floor; and, (3) Defendant
Howell and Cosby “did nothing while he was being
beaten.” See Declaration at 2-3.
reply to Plaintiff's response, Defendants first contend
that Plaintiff has not responded to their Statement of
Undisputed Material Facts and that the facts contained
therein should be deemed undisputed pursuant to the Federal
Rules of Civil Procedure and the Middle District's Local
Rules because of Plaintiff's failure to respond.
See Reply (Docket Entry No. 52) at 1-3. Defendants
next dispute Plaintiff's factual account of filing a
grievance. Through a second declaration of Lybrunca Cockrell
(Docket Entry No. 54), they contend no grievance was filed by
Plaintiff about the incident and that Plaintiff has submitted
to the Court an altered document in support of his
declaration that he filed a grievance, had it returned to him
twice, and filed the grievance a second time as an appeal.
Id. at 3-6. ...