Plemons, Jr. v. Core Civic Administrative Headquarters

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

DAVID HOPKINS PLEMONS, )

)

Plaintiff, )

)

v. ) Case No. 3:18-cv-00498

) Judge Crenshaw / Frensley

CORE CIVIC ADMINISTRATIVE )

HEADQUARTERS, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

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

1 Christopher Brun was incorrectly named “Chris Brums” in the earlier filings.

2 Defendants Brun, Greer, and Washburn are the only remaining Defendants in this action

who have been served. Chief of Security Cox, Sargent Caster, and Chief of Security Cleek have

not been served, while CoreCivic, Trousdale Turner Correctional Center, Unit Manager Oswald,

Corrections Officer Williamson, Alpha Unit Huntly, Alpha Unit Hinson, and Senior Grievance

person Pierce were terminated as Defendants in this matter in an Order entered August 28, 2018.

See Docket No. 10.

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

3 Plaintiff’s Response to Defendant Brun’s Motion and Statement of Undisputed Material

Facts does not contain the requisite citations to the record; it does not, therefore, comply with the

Federal and Local Rules. See Fed R. Civ. P. 56 and Local Rule 56.01(c).

2

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

3

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

4 Defendant Greer filed her Declaration earlier in the proceedings. See Docket No. 51.

Defendant Washburn also filed a Declaration at that time. See Docket No. 52.

5 Plaintiff’s Responses to Defendants Washburn and Greer’s Motion and Statement of

Undisputed Material Facts likewise 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. See Local Rule 56.01(c).

4

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

5

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

6 Defendants Washburn and Greer note also that Plaintiff’s thirty-two page response is in

violation of Local Rule 7.01(a)(3), which limits response memoranda to twenty-five pages.

Docket No. 93, comparing Local Rule 7.01(a)(3) with Docket No. 92.

6

therefore recommends that Defendants’ Motions for Summary Judgment (Docket Nos. 81, 85) be

GRANTED and that this action be DISMISSED.

II. Undisputed Facts7

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

7 Unless otherwise noted, the following facts are in a form required by Fed. R. Civ. P. 56

and are undisputed.

7

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

8

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 day

that the grievance begins to be processed. If the inmate accepts the

response, it will be documented on CR-3148.

Second Level: Within five calendar days of being notified of the

Level One response, the inmate may appeal the response to the

grievance committee and the warden. A hearing will take place

within five working days of the appeal’s filing. Within five

working days of the hearing, the grievance committee’s proposed

response will be documented on CR-1393 and will be forwarded to

the warden. Within seven working days of receipt, the warden will

forward his or her decision to the chairperson. Within five

working days of receiving the warden’s response, the chairperson

will allow the inmate to review the grievance materials and

response. If the inmate accepts the response, the chairperson will

enter the approval on the grievance.

Third Level: An inmate may appeal the Level Two response within

five calendar days of receipt of the response. The chairperson will

forward one copy of the grievance and all documentation to the

deputy commissioner of operations or his or her designee. The

Level Three response will be sent to the chairperson for

distribution within twenty-five working days of the date the appeal

was received. The chairperson will enter the final decision on the

grievance. This response is final and is not subject to appeal.

Id., ¶ 4, quoting Docket No. 88-1, Policy 501.01.

9

Plaintiff did not submit any grievances with respect to access to medical treatment during

his incarceration at Trousdale before he filed this lawsuit. Id., ¶ 5. As a result, Plaintiff did not

exhaust his administrative remedies with regard to his claims that Defendant Greer denied him

access to medical treatment during his incarceration at Trousdale. Id., ¶ 6.

Plaintiff also did not submit any grievances with respect to any alleged physical or sexual

assault during his incarceration at Trousdale before he filed this lawsuit. Id., ¶ 7.

Plaintiff filed only one grievance during his incarceration at Trousdale that has any

bearing on his claims in this lawsuit. Id., ¶ 8. On November 8, 2017, Plaintiff filed a grievance

where he complained about a suspected gang member being placed in his cell and where he

stated that he feared for his life as a result. Id., ¶ 9, citing Docket No. 88-2, Plaintiff’s November

8, 2017 grievance.

Plaintiff does not mention Defendant Washburn by name, nor does he contend that

Defendant Washburn failed to protect him from physical or sexual assault or that Defendant

Washburn assigned a suspected gang member to Plaintiff’s cell in retaliation for Plaintiff

allegedly reporting gang operations and seeking protection from allegedly unsafe living

conditions. Id., ¶ 10. As a result, Plaintiff did not exhaust his administrative remedies on his

claims that Defendant Washburn failed to protect him and retaliated against him before he filed

this lawsuit on May 5, 2018. Id., ¶ 11.

C. Affidavit of Lybrunca Cockrell

Lybrunca Cockrell is employed as the Grievance Coordinator at Trousdale. Docket No.

81-2, Affidavit of Lybrunca Cockrell (“Cockrell Aff.”). Plaintiff filed only one grievance during

the period of May 1, 2017 to December 30, 2019. Id. Plaintiff filed said grievance on November

10

8, 2017 requesting that he be moved to a Protective Custody Unit or be moved to another prison

because he was placed in a cell with an inmate who was suspected to be a member of the Cripps

gang. Id.

D. Declaration of Russell Washburn

Russell Washburn is employed by CoreCivic as Warden at Trousdale. Docket No. 87,

Declaration of Russell Washburn (“Washburn Dec.”), ¶ 1. CoreCivic contracts with TDOC to

operate Trousdale. Id., ¶ 3.

Plaintiff was housed as an inmate at Trousdale from May 22, 2017 through December 29,

2017. Id., ¶ 4. Plaintiff did not request that Defendant Washburn provide him with protection

from other inmates prior to the events he alleges took place, and Defendant Washburn was not

aware of any threats to Plaintiff’s safety. Id., ¶ 5. Defendant Washburn neither instructed nor

encouraged CoreCivic employees or anyone else to refuse to provide Plaintiff with protection

from other inmates or to assign a suspected gang member to Plaintiff’s cell. Id., ¶ 6.

If an inmate requested protection from other inmates, Defendant Washburn would not

delay in providing protection if the inmate required such protection. Id., ¶ 7.

When CoreCivic employees receive information which indicates that an inmate may be in

danger from other inmates, an immediate inquiry will be made concerning the facts of the

situation to determine whether the alleged threats are substantiated and whether immediate

protection is needed. Id., ¶ 8. CoreCivic requires an investigation into the information received

because of the voluminous number of instances of inmates reporting threats from other inmates,

which often are unsubstantiated. Id., ¶ 9. CoreCivic policies require that employees fully and

immediately document all information received regarding threats to inmates incarcerated at

11

Trousdale. Id., ¶ 10.

Plaintiff’s records do not contain documentation of any threats made by other inmates

prior to the alleged assaults. Id., ¶ 11. Plaintiff’s sexual assault allegations were investigated

under the Prison Rape Elimination Act, and the investigator determined that his allegations were

unfounded. Id., ¶ 12.

E. Additional Undisputed Material Facts

Defendant Washburn did not refuse to separate Plaintiff and another inmate who

allegedly was harassing Plaintiff in retaliation for Plaintiff allegedly reporting gang operations

and seeking protection from allegedly unsafe living conditions. Docket No. 89, ¶ 4, citing

Docket No. 52, ¶ 3.

Defendant Greer would not ignore any inmate’s medical needs and would help an inmate

secure necessary medical treatment if an inmate reported broken ribs and difficult breathing. Id.,

¶ 7, citing Docket No. 51, ¶ 3.

Plaintiff’s November 8, 2017 Grievance makes no mention of, or reference to, Defendant

Brun. Docket No. 83, ¶ 26, citing Grievance Form attached to Cockrell Aff. Plaintiff’s

November 8, 2017 Grievance makes no claim of injury by Inmate Andrews; rather, it states only

that Plaintiff felt threatened by Inmate Andrews and would like to be transferred. Id., ¶ 27, citing

id. Plaintiff’s medical records do not document any physical injury to Plaintiff. Id., ¶ 28, citing

Docket Nos. 81-3 - 81-9, Plaintiff’s medical records.

Plaintiff failed to exhaust his administrative remedies on the claims he asserts in the

instant action. Docket Nos. 83, 88.

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III. Law and Analysis

A. Motion for Summary Judgment

Under Fed. R. Civ. P. 56(c), summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” A dispute is “genuine” only if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

In order to prevail on a Motion for summary judgment, the moving party must meet the

burden of proving the absence of a genuine issue as to material fact concerning an essential

element of the opposing party’s claim. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,

2553, 91 L. Ed. 2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.

1989). In determining whether the moving party has met its burden, the Court must view the

evidence in the light most favorable to the nonmoving party. Matsushita Electric Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

Fed. R. Civ. P. 56(c)(1) sets forth the requirement to support factual assertions as follows:

(c) Procedures.

(1) Supporting Factual Positions. A party asserting that a

fact cannot be or is genuinely disputed must support that

assertion by:

(A) citing to particular parts of materials in the

record, including depositions, documents,

electronically stored information, affidavits or

declarations, stipulations (including those made for

purposes of the motion only), admissions,

interrogatory answers, or other materials; or

13

(B) showing that the materials cited do not establish

the absence or presence of a genuine dispute, or that

an adverse party cannot produce admissible

evidence to support the fact.

B. Local Rule 56.01(c)

With regard to responses to the requisite Statement of Undisputed Facts filed

contemporaneously in support of a Motion for Summary Judgment, the Local Rule 56.01(c)

provides:

c) Response to Statement of Facts. Any party opposing the

motion for summary judgment must respond to each fact set forth

by the movant by either (i) agreeing that the fact is undisputed;

(ii) agreeing that the fact is undisputed for the purpose of ruling on

the motion for summary judgment only; or (iii) demonstrating that

the fact is disputed. Each disputed fact must be supported by

specific citation to the record.

C. 42 U.S.C. § 1983

Section 1983 provides, in part, that:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress...

Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.

42, 48, 108 S. Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct.

1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams,

14

474 U.S. 327, 330-331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)); Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). The traditional definition of

acting under color of state law requires that the defendant in a § 1983 action have exercised

power “possessed by virtue of state law and made possible only because the wrongdoer is clothed

with the authority of state law.” Id. at 49, 108 S. Ct. 2255, quoting United States v. Classic, 313

U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941).

D. Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e

A prisoner must exhaust all available administrative remedies before filing a claim under

§1983 or any other federal law. 42 U.S.C. §1997e(a). See also, e.g., White v. McGinnis, 131 F.3d

593, 595 (6th Cir. 1997); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir. 1998); Wyatt v.

Leonard, 193 F.3d 876, 878 (6th Cir. 1999). The Prison Litigation Reform Act of 1995 provides

in pertinent part as follows:

(a) Applicability of Administrative Remedies. No 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 available are exhausted.

42 U.S.C. ' 1997e(a) (emphasis original).

Additionally, the filing of an initial grievance is not sufficient to satisfy the requirements

of ' 1997e(a). Rather, the PLRA exhaustion of prison administrative remedies requires a

prisoner to pursue his prison grievance through the final level of administrative appeal.

Hartsfield v. Vidor, 199 F.3d 305, 306 (6th Cir. 1999). In Hartsfield, the Sixth Circuit explicitly

stated:

Even if Plaintiff did file an initial grievance against [defendants],

15

he was required to continue to the next step in the grievance

process . . . . We have previously held that an inmate cannot simply

. . . abandon the process before the completion and claim that he

has exhausted his remedies. . .

When a defendant shows that a plaintiff has not Aexhausted all available state

administrative remedies,@ the only remaining question is whether Plaintiff=s claims have been

brought with respect to Aprison conditions@ as that term is used in 42 U.S.C. ' 1997e(a).

The Sixth Circuit discussed the meaning of the term Aprison conditions@ as used in 42

U.S.C. ' 1997e(a) in Freeman v. Francis, 196 F.3d 641 (6th Cir. 1999). In Freeman, Plaintiff

inmate brought a lawsuit against prison officials claiming that they had used excessive force

against him. The lower court had dismissed his complaint for failure to exhaust administrative

remedies. On appeal, Plaintiff argued in part that he was not required to exhaust his

administrative remedies because his excessive force claim did not involve a Aprison condition@

within the meaning of ' 1997e(a). The Freeman Court stated in part as follows:

The phrase Aaction . . . with respect to prison conditions@ is not

defined in ' 1997e. Because the question is one of statutory

construction, we must first look to the plain language of the statute.

Defendants argue that the term Aprison conditions@ as used in 18

U.S.C. ' 3626(g)(2), which was amended as part of the same

legislation as ' 1997e, does include claims such as excessive force

because it expressly includes Aeffects of actions of government

officials on the lives of confined persons@ as well as Aconditions of

confinement@ in defining Aprison conditions.@ . . . It is generally

recognized that when Congress uses the same language in two

different places in the same statute, the words are usually read to

mean the same thing in both places. . . .

Moreover, reading the term Aprison conditions@ to include claims

of excessive force finds support in the purpose and legislative

history of the Act. The Act was passed to reduce frivolous prisoner

lawsuits and to reduce the intervention of federal courts into the

management of the nation=s prison systems. A broad exhaustion

requirement that includes excessive force claims effectuates this

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purpose and maximizes the benefits of requiring prisoners to use

prison grievance procedures before coming to federal court.

Prisons need to know about and address claims of excessive force

as they would any other claim concerning prison life so that steps

may be taken to stop problems immediately if they exist.

196 F.3d at 643-644 (footnote omitted).

The U. S. Supreme Court has also held that A' 1997e(a)=s exhaustion requirement applies

to all prisoners seeking redress for prison circumstances or occurrences.@ See Porter v. Nussle,

534 U.S. 516, 520, 122 S.Ct. 983, 986 (2002). As the Porter Court stated:

Beyond doubt, Congress enacted ' 1997e(a) to reduce the quantity

and improve the quality of prisoner suits; to this purpose, Congress

afforded corrections officials time and opportunity to address

complaints internally before allowing the initiation of a federal

case. In some instances, corrective action taken in response to an

inmate=s grievance might improve prison administration and satisfy

the inmate, thereby obviating the need for litigation. . . . In other

instances, the internal review might Afilter out some frivolous

claims.@ . . . And for cases ultimately brought to court, adjudication

could be facilitated by an administrative record that clarifies the

contours of the controversy.

. . .

For the reasons stated, we hold that the PLRAs exhaustion

requirement applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether

they allege excessive force or some other wrong.

122 S.Ct. at 988, 992 (citations omitted, emphasis added).

E. The Case at Bar

As an initial matter, under the reasoning of Porter and Freeman, Plaintiff=s claims in the

case at bar fall within the meaning of the term “prison conditions” as used in ' 1997e(a). He is,

therefore, required to exhaust his administrative remedies as set forth in the PLRA.

17

The undisputed facts establish that, 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 day that the grievance begins to be processed. If

the inmate accepts the response, it will be documented

on CR-3148.

Second Level: Within five calendar days of being

notified of the Level One response, the inmate may

appeal the response to the grievance committee and the

warden. A hearing will take place within five working

days of the appeal’s filing. Within five working days of

the hearing, the grievance committee’s proposed

response will be documented on CR-1393 and will be

forwarded to the warden. Within seven working days

of receipt, the warden will forward his or her decision

to the chairperson. Within five working days of

receiving the warden’s response, the chairperson will

allow the inmate to review the grievance materials and

response. If the inmate accepts the response, the

chairperson will enter the approval on the grievance.

Third Level: An inmate may appeal the Level Two

response within five calendar days of receipt of the

response. The chairperson will forward one copy of the

grievance and all documentation to the deputy

commissioner of operations or his or her designee. The

Level Three response will be sent to the chairperson for

distribution within twenty-five working days of the date

the appeal was received. The chairperson will enter the

final decision on the grievance. This response is final

and is not subject to appeal.

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Cockrell Dec.., ¶ 4, quoting Docket No. 88-1, Policy 501.01.

It is undisputed that, prior to filing the instant action, Plaintiff also did not submit any

grievances with respect to any alleged physical or sexual assault during his incarceration at

Trousdale, and that Plaintiff did not submit any grievances with respect to access to medical

treatment during his incarceration at Trousdale. Id., ¶¶ 5, 7. As a result, Plaintiff did not

exhaust his administrative remedies with regard to his claims that Defendant Greer denied him

access to medical treatment during his incarceration at Trousdale. Id., ¶ 6.

It is further undisputed that Plaintiff filed only one grievance during his incarceration at

Trousdale that has any bearing on his claims in this lawsuit. Id., ¶ 8. On November 8, 2017,

Plaintiff filed a grievance where he complained about a suspected gang member being placed in

his cell and where he stated that he feared for his life as a result. Id., ¶ 9, citing Docket No. 88-2,

Plaintiff’s November 8, 2017 grievance. Plaintiff’s grievance does not mention Defendant

Washburn by name, nor does he contend that Defendant Washburn either failed to protect him

from physical or sexual assault or assigned a suspected gang member to his cell in retaliation for

Plaintiff allegedly reporting gang operations and seeking protection from allegedly unsafe living

conditions. Id., ¶ 10. As a result, prior to filing the instant action, Plaintiff did not exhaust his

administrative remedies regarding his claims that Defendant Washburn failed to protect him and

retaliated against him. Id., ¶ 11.

It is additionally undisputed that Plaintiff’s November 8, 2017 grievance makes no

mention of, or reference to, Defendant Brun. Docket No. 83, ¶ 26, citing Grievance Form

attached to Cockrell Aff. Moreover, Plaintiff’s grievance makes no claim of injury by Inmate

Andrews; rather, it states only that Plaintiff felt threatened by Inmate Andrews and would like to

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be transferred. /d., §] 27, citing id. Finally, it is undisputed that Plaintiff's medical records do not

document any physical injury to Plaintiff. /d., 928, citing Docket Nos. 81-3 - 81-9, Plaintiff's

medical records.

IV. Conclusion

For the foregoing reasons, 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.

Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)

days after service of this Report and Recommendation in which to file any written objections to

this Recommendation with the District Court. Any party opposing said objections shall have

fourteen (14) days after service of any objections filed to this Report in which to file any

response to said objections. Failure to file specific objections within fourteen (14) days of

service of this Report and Recommendation can constitute a waiver of further appeal of this

Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111

(1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

Aha

— A Wares

United States Magistrate Judge

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