# Swann v. District Attorney

> District Court, E.D. Tennessee · June 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10434964

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** June 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10434964

## How later opinions describe it (automated extraction)

- noting exhaustion required even when “‘available’ remedies would appear to be futile at providing the kind of remedy sought”
- finding once defendants put forth evidence of a valid administrative process, plaintiff must present evidence to rebut the availability of that remedy to defeat motion for summary judgment

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA

JAMES SWANN, SR., )
)
Plaintiff, )
) No.: 1:21-CV-263-CLC-CHS
v. )
)
SULLIVAN COUNTY, )
)
Defendant. )

MEMORANDUM OPINION
Defendant Sullivan County has filed a motion for summary judgment alleging that pro se
prisoner Plaintiff, James Swann, Sr., failed to exhaust his administrative remedies prior to filing
this civil rights action for violation of 42 U.S.C. § 1983 [Doc. 49].1 Plaintiff has filed an unsworn
response opposing the motion [Doc. 58], and a motion requesting that the Court delay ruling until
he can produce his medical records [Doc. 67]. Upon consideration of the parties’ pleadings, the
summary judgment evidence, and the applicable law, the Court finds that summary judgment
should be GRANTED, Plaintiff’s motion DENIED as moot, and this action DISMISSED.
I. ALLEGATIONS OF COMPLAINT
On or about October 3, 2021, Plaintiff was arrested and booked into the Sullivan County
Jail [Doc. 25 p. 3-4]. At the time of his arrest, Plaintiff advised Sullivan County Jail staff that he
had been receiving free-world treatment for colon cancer [Id. at 4]. Two weeks later, Plaintiff
received a physical examination and again informed staff that he had colon cancer, but medical
staff denied that Plaintiff had cancer and declined to provide him with any treatment [Id.].

1 Defendant filed a motion to dismiss that the Court converted to a motion for summary
judgment [See Docs. 49 and 50].
Plaintiff’s trial judge ordered Plaintiff subject to a bond so that he could seek cancer
treatment, though Plaintiff either failed to make bond or the bond was subsequently revoked [Id.].
Plaintiff wrote the District Attorney asking for assistance and has not received a response [Id.].
Plaintiff asks the Court to order Defendant to provide him treatment and award him a monetary
judgment of $ 253,529 for his pain and suffering [Id. at 5].

II. SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary
judgment, the court must draw all reasonable inferences in favor of the nonmoving party. McLean
v. 988011 Ontario Ltd, 224 F.3d 797, 800 (6th Cir. 2000). Summary judgment is proper if the
evidence, taken in the light most favorable to the nonmoving party, shows that there are no genuine
issues of material fact and that the moving party is entitled to judgment as a matter of law.
Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 611 (6th Cir. 2009) (quotation marks omitted).

The moving party has the burden of conclusively showing the lack of any genuine issue of
material fact. Smith v. Hudson, 600 F.2d 60, 63 (6th Cir. 1979). To successfully oppose a motion
for summary judgment, a party “‘must set forth specific facts showing that there is a genuine issue
for trial’” and “‘may not rest upon the mere allegations or denials of his pleading.’” Anderson v.
Liberty Lobby, Inc., 47 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Arizona v. Cities Serv.
Co., 391 U.S. 253, 288-89 (1968)).
A district court cannot grant summary judgment in favor of a movant simply because the
adverse party has not responded, however. Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th
Cir. 1998). Rather, the court is required to, at a minimum, examine the motion to ensure that the
movant has met its initial burden. Id. In doing so, the court “must not overlook the possibility of
evidentiary misstatements presented by the moving party.” Guarino v. Brookfield Twp. Trs., 980
F.2d 399, 407 (6th Cir. 1992). The court must “intelligently and carefully review the legitimacy
of [] an unresponded-to motion, even as it refrains from actively pursuing advocacy or inventing
the riposte for a silent party.” Id. In the absence of a response, however, the Court will not “sua

sponte comb the record from the partisan perspective of an advocate for the non-moving party.”
Id. at 410. If the court determines that the unrebutted evidence set forth by the moving party
supports a conclusion that there is no genuine issue of material fact, the court will determine that
the moving party has carried its burden, and “judgment shall be rendered forthwith.” Id. (alteration
omitted).
III. SUMMARY JUDGMENT EVIDENCE
Plaintiff “contacted medical” and “spoke with jail supervisors” to seek treatment for colon
cancer [Doc. 25 p. 2-3, 5].2 The Sullivan County Jail has an established grievance procedure in
place for use by inmates, and Plaintiff has never used the grievance procedure to claim a need for

medical care, or to claim that he has been denied medical treatment [Doc. 49-1 ¶ 6]. Plaintiff has,
however, used Sullivan County Jail’s established grievance procedure on six different occasions
to grieve other issues [Id. ¶ 7].
IV. LAW & ANALYSIS
The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are

2 Plaintiff’s verified Complaint, sworn under penalty of perjury, “carries the same weight
as would an affidavit for the purposes of summary judgment.” El Bey v. Roop, 530 F.3d 407,
414 (6th Cir. 2008).
available are exhausted.” 42 U.S.C. § 1997e(a). Administrative exhaustion is mandatory,
regardless of the type of relief sought, or whether such relief can be granted through the
administrative process. See Ross v. Blake, 578 U.S. 632, 641 (2016); Woodford v. Ngo, 548 U.S.
81, 84 (2006) (citing Booth v. Churner, 532 U.S. 731, 739 (2001)). Moreover, the requirement is
one of “proper exhaustion,” which requires a plaintiff to complete “the administrative review

process in accordance with the applicable procedural rules, including deadlines, as a precondition
to bringing suit in federal court.” Woodford, 548 U.S. at 88, 93.
Once a defendant has demonstrated that there was a generally available administrative
remedy that the plaintiff did not exhaust, “the burden shifts to the prisoner to come forward with
evidence showing that there is something in his particular case that made the existing and generally
available administrative remedies effectively unavailable to him.” Albino v. Baca, 747 F.3d 1162,
1172 (9th Cir. 2014) (citation omitted); see also Napier v. Laurel Cnty., Ky., 636 F.3d 218, 225-
26 (6th Cir. 2011) (finding once defendants put forth evidence of a valid administrative process,
plaintiff must present evidence to rebut the availability of that remedy to defeat motion for

summary judgment); Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) (“Once a defendant
proves that a plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that
remedies were unavailable to him[.]”). For instance, administrative remedies may be considered
effectively unavailable when (1) there is no possibility for relief through use of the procedure; (2)
the rules are so confusing as to render them essentially unknowable; or (3) prison officials “thwart
inmates from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.” See Ross, 578 U.S. at 643-44.
Here, the competent summary judgment evidence demonstrates that the Sullivan County
Jail has an established grievance procedure in place, and that Plaintiff has never utilized that
procedure to complain about medical care or treatment [Doc. 49-1]. In an unsworn response to
Defendant’s motion, Plaintiff claims that he requested medical treatment from staff and “was told
that there were no grievance forms to fill out for being a cancer patient” [Doc. 58 p. 2]. In a prior
Order, the Court noted Plaintiff’s response to the motion and advised Plaintiff that “unsworn
materials do not satisfy the requirements for summary judgment proof set out in Rule 56” [See

Doc. 64 p. 2]. Despite this notification, Plaintiff has not submitted competent evidence to support
his assertions, and the Court may not consider his unsworn hearsay in deciding Defendant’s
motion. See Tranter v. Orick, 460 F. App’x 513, 514 (6th Cir. 2012); Wallace v. Brown, No. 2:17-
cv-02269, 2020 WL 4228310, at *3 (W.D. Tenn. Jul. 23, 2020) (“Wallace’s memorandum is
unsworn and is not competent summary judgment evidence.”); King v. UT Medical Group, Inc.,
No. 09-2080-SHM-dkv, 2011 WL 13269768, at *3 (W.D. Tenn. Mar. 3, 2011) (“The Court cannot
consider any factual assertions that are made in legal memoranda or that are not sworn to under
penalty of perjury.”).
Regardless, even if the Court were to consider as evidence Plaintiff’s allegation that he was

told he could not grieve medical issues, such a statement is not sufficient to show that the
procedures were made effectively unavailable to him. See, e.g., Booth, 523 U.S. at 741 n. 6 (“[W]e
will not read futility or other exceptions into statutory exhaustion requirements[.]”); Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002) (noting exhaustion required even when “‘available’
remedies would appear to be futile at providing the kind of remedy sought”).
Additionally, there is no competent evidence before the Court to indicate that Defendant
or any of its agents impeded Plaintiff’s ability to grieve his medical issues. Neither can Plaintiff
demonstrate that the grievance process was too confusing or difficult to follow, as he used the
established grievance procedure on six separate occasions while housed at the Sullivan County Jail
[Doc. 49-1 ¶ 7]. Therefore, there is no competent evidence before the Court to indicate that
administrative remedies were unavailable to Plaintiff.
Therefore, the Court finds that Plaintiff failed to exhaust his available administrative
remedies prior to filing the instant suit, and Defendants are entitled to the dismissal of this action
under 42 U.S.C. § 1997e(a). Because Plaintiff’s medical records have no bearing on whether

Plaintiff satisfied the mandatory exhaustion requirement prior to filing suit, his motion for
additional time to submit those records will be denied.
V. CONCLUSION
Despite the gravity of Plaintiff’s allegations, this Court is without discretion to consider
the merits of Plaintiff’s claims until he properly exhausts the administrative remedies available to
him. See Woodford, 548 U.S. at 85 (“Exhaustion is no longer left to the discretion of the district
court.”). Accordingly, Defendant’s motion for summary judgment [Doc. 49] will be GRANTED,
and this action will be DISMISSED. Plaintiff’s motion to delay ruling [Doc. 67] will be DENIED
as moot.

AN APPROPRIATE JUDGMENT ORDER WILL ENTER.
/s/____________________________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434964. Public record. Not legal advice.