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Paul v. Jones

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

December 17, 2019

RICKY D. PAUL
v.
RONELL JONES, et al.

          REPORT AND RECOMMENDATION

          BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE

         TO: Honorable Aleta A. Trauger, District Judge

         By 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.

         Pending 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.

         I. BACKGROUND

         Ricky 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.

         Specifically, 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 6.[1] 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.

         Howell, 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.

         II. MOTION FOR SUMMARY JUDGMENT AND RESPONSE

         Defendants 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[2] 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).

         Defendants 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 11-12.

         In 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.

         With 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.

         In a 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. ...


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