# Hutson v. Gibson

> District Court, W.D. Tennessee · June 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10439925

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** June 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

JASON SEAN HUTSON, )
)
Plaintiff, )
)
VS. ) No. 17-1164-JDT-cgc
)
CURRIE GIBSON, ET AL., )
)
Defendants. )

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH,
AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

Plaintiff Jason Sean Hutson, a prisoner incarcerated at the Hardeman County
Correctional Facility (HCCF) in Whiteville, Tennessee, filed this pro se civil rights action
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court granted leave to proceed in forma
pauperis and assessed the filing fee pursuant to the Prison Litigation Reform Act (PLRA),
28 U.S.C. §§ 1915(a)-(b). (ECF No. 5.) Subsequently, the Court partially dismissed the
complaint and ordered the Clerk to issue process for the remaining Defendants: CoreCivic,
Currie Gibson, and Thomas Corman. (ECF No. 13.) Before the Court is the Defendants’
motion for summary judgment. (ECF No. 39.) Hutson has not filed a response to the
Defendants’ motion.
In February and March 2016, Hutson was a participant in the HCCF’s Residential
Drug Abuse Program (RDAP). (ECF No. 1 at PageID 6.) On March 7, 2016, he alleges
he first reported to Defendant Gibson, a counselor in the Addictions Treatment Unit (ATU)
at the HCCF, that Hutson’s cellmate was making “off-color sexual comments and slurs”
toward him; Hutson asked for a cell change, but Gibson allegedly said the RDAP rules did

not allow for cell changes. (Id.) On March 8th, after his cellmate’s behavior escalated to
inappropriate touching, Hutson allegedly reported that conduct to Defendant Corman, the
ATU Manager,1 telling Corman he was afraid his cellmate might rape him and again
requesting a cell change. (Id.) Corman, however, also allegedly did nothing. (Id. at
PageID 6-7.) On March 9, 2016, and again on March 10, 2016, Hutson was raped by his

cellmate. (Id. at PageID 7.) Later on March 10th, as soon as he had an opportunity to do
so, Hutson called the PREA2 hotline. (3/30/17 Grievance, ECF No. 1-1 at PageID 17.) He
alleges the Defendants violated the Eighth Amendment by failing to protect him from his
cellmate.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate

“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.” Fed. R. Civ. P. 56(a). “[T]he burden on the
moving party may be discharged by ‘showing’–that is, pointing out to the district court–
that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp.

1 According to Corman’s Declaration, his position is correctly identified as Program
Manager of the RDAP. (Corman Decl. ¶ 2, ECF No. 39-4 at PageID 203.)
2 Prison Rape Elimination Act, 34 U.S.C. § 30301 et seq.
2
v. Catrett, 477 U.S. 317, 325 (1986). Rule 56(c)(1) provides that “[a] party asserting that
a fact cannot be or is genuinely disputed” is required to support that assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers or other
materials;[3] or

(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.

“If a party fails to properly support an assertion of fact or fails to properly address another
party’s assertion of fact as required by Rule 56(c)” the district court may:
(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials–
including the facts considered undisputed–show that the movant is entitled
to it; or

(4) issue any other appropriate order.

Fed. R. Civ. P. 56(e).
In Celotex Corp., the Supreme Court explained that Rule 56:
mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on

3 “A party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
Additionally, Rule 56(c)(4) specifically provides that “[a]n affidavit or declaration used to
support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.”
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which that party will bear the burden of proof at trial. In such a situation,
there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial. The moving party is
“entitled to judgment as a matter of law” because the nonmoving party has
failed to make a sufficient showing on an essential element of [his] case with
respect to which [he] has the burden of proof.

477 U.S. at 322-23. However, where the party moving for summary judgment also has the
burden of persuasion at trial, the initial burden on summary judgment is higher. Under
those circumstances, the moving party must show “that the record contains evidence
satisfying the burden of persuasion and that the evidence is so powerful that no reasonable
jury would be free to disbelieve it.” Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir.
2012) (internal quotation marks omitted).
In considering whether to grant summary judgment, “the evidence as well as the
inferences drawn therefrom must be read in the light most favorable to the party opposing
the motion.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); see
also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)
(same). However, the Court’s function is not to weigh the evidence, judge credibility, or
in any way determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). Rather, the inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Id. at 251-52.
The fact that Hutson has not responded does not, by itself, require granting the
motion for summary judgment. Nevertheless, if the Defendants are entitled to judgment
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as a matter of law on the evidence contained in the record, then summary judgment is
appropriate. Smith v. Hudson, 600 F.2d 60, 65 (6th Cir. 1979).
In support of their motion for summary judgment, the Defendants have submitted

the Declarations of Defendants Gibson and Corman, (Gibson Decl., ECF No. 39-3; Corman
Decl., ECF No. 39-4), the Declaration of former HCCF Warden Grady Perry, (Grady Decl.,
ECF No. 39-5), the Declaration of HCCF Grievance Chairperson Rebecca Wilson, (Wilson
Decl., ECF No. 39-6), and excerpts from Hutson’s Deposition, (Pl.’s Dep., ECF No. 39-7).
Defendants first argue they are entitled to judgment as a matter of law because Hutson’s

complaint is time-barred.
In a § 1983 action, the appropriate limitations period is the “state statute of
limitations applicable to personal injury actions under the law of the state in which the
§ 1983 claim arises.” Howell v. Farris, 655 F. App’x 349, 351 (6th Cir. 2016) (quoting
Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007)); see also

Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). In Tennessee, the limitations period for
§ 1983 actions is the one-year limitations provision found in Tennessee Code Annotated
§ 28-3-104(a)(1)(B). Howell, 655 F. App’x at 351. However, before a prisoner may sue
in federal court over prison conditions he is required to exhaust his available administrative
remedies. 42 U.S.C. § 1997e(a). The statute of limitations is tolled while the prisoner

pursues those remedies. Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000); see also
Surles v. Anderson, 678 F.2d 452, 458 (6th Cir. 2012); Waters v. Evans, 105 F. App’x 827,
829 (6th Cir. 2004).
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Under the PREA regulations promulgated by the U.S. Department of Justice, an
“agency4 shall not impose a time limit on when an inmate may submit a grievance
regarding an allegation of sexual abuse.” 28 C.F.R. § 115.52(b)(1) (2020). However, the

same regulation also provides: “Nothing in this section shall restrict the agency’s ability
to defend against an inmate lawsuit on the ground that the applicable statute of limitations
has expired.” Id. § 115.52(b)(4). The Sixth Circuit has recognized that these regulations
mean that “an inmate’s failure to exhaust can no longer result from an untimely grievance
if that grievance involved an allegation of sexual abuse.” Does 8-10 v. Snyder, 945 F.3d

951, 956 (6th Cir. 2019). An untimely grievance complaining of sexual abuse thus will
not justify dismissal of a lawsuit for failure to exhaust, but such an untimely grievance
cannot reopen a statute of limitations that has already expired:
Importantly, one key time limit will still apply: The statute of limitations....
Paragraph (b)(4) clarifies that this standard does not restrict an agency’s
ability to defend a lawsuit on the ground that any applicable statute of
limitations has expired. Thus, if the applicable State statute of limitations is
three years, an inmate who files a grievance alleging that abuse occurred four
years ago will be unable to seek judicial redress after exhausting
administrative remedies if the agency asserts a statute of limitations defense.
The statute of limitations provides a backstop against the filing of stale

4 An “agency” is “the unit of a State, local, corporate, or nonprofit authority, or of the
Department of Justice, with direct responsibility for the operation of any facility that confines
inmates, detainees, or residents, including the implementation of policy as set by the governing,
corporate, or nonprofit authority.” Id. § 115.5 (2020).
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claims, as it does for analogous claims of sexual abuse experienced in the
community at large.

National Standards to Prevent, Detect, and Respond to Prison Rape, 77 Fed. Reg. 37106-
01, 37159, 2012 WL 2317028 (June 20, 2012).
Hutson filed his complaint in this case on August 10, 2017, at the very earliest.5 The
HCCF Grievance Chairperson, Rebecca Wilson, states in her Declaration that her review
of TDOC records shows that Hutson did not file any grievances in 2016. (Wilson Decl.
¶ 9, ECF No. 39-6 at PageID 215.) The exhibits attached to Hutson’s complaint include a
copy of a 2017 grievance he filed concerning the Defendants’ alleged refusal to grant him
a cell change, resulting in his being raped by his cellmate. He filed the grievance on March
30, 2017, and it was denied at the final stage of the grievance process on May 5, 2017.

(ECF No. 1-1 at PageID 13-18.) However, the second sexual assault by Hutson’s cellmate
occurred on March 10, 2016, so by the time Hutson filed the grievance on March 30, 2017,
the one-year limitations period already had expired and was not tolled. Hutson has not
responded to Defendant’s summary judgment motion and so has not contended that he was
prevented from filing an earlier grievance.

Moreover, even if the relevant administrative remedy is Hutson’s PREA complaint
rather than the normal three-step grievance process he eventually invoked, (see Wilson

5 Hutson signed the complaint on August 10, 2017. (ECF No. 1 at PageID 9.) However,
the mailroom stamp on the envelope shows it was not placed in the HCCF prison mail system
until at least August 20, 2017. (ECF No. 1-2 at PageID 21.) The date on the mailroom stamp is
not clearly legible, but “AUG 2... 017” can be made out.
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Decl. ¶ 7, ECF No. 39-6 at PageID 215), the complaint in this case still is untimely. Hutson
testified in his Deposition that he called the PREA hotline on March 10, 2016, to report the
sexual assaults and that a staff member came to the pod to see him “a few minutes later.”

(Pl.’s Dep., ECF No. 39-7 at PageID 243.) The staff member took Hutson “up front to
medical” and “alerted Internal Affairs . . . and they were checking me. Then they
transported me to the hospital in Jackson.” (Id. at PageID 243-44.) A PREA investigation
was conducted, and Hutson provided a written statement. (Id. at PageID 244.) There is no
evidence in the record and no allegation in Hutson’s complaint suggesting the PREA

investigation took more than five months, until after August 10, 2016, to be completed.
There also is no evidence or allegation that Hutson took any additional action after being
notified of the results of the PREA investigation but before filing his March 2017
grievance. Thus, even tolling the limitations period during the actual PREA investigation,
the statute expired prior to August 10, 2017.

For the foregoing reasons, the Court finds there is no genuine issue of material fact
for trial and that Hutson’s complaint is barred by the one-year statute of limitations. The
Defendants are entitled to judgment as a matter of law, and their motion for summary
judgment is GRANTED. (ECF No. 39.)
Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal

by Hutson in this case would be taken in good faith. The good faith standard is an objective
one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The same considerations that

8
lead the Court to grant summary judgment also compel the conclusion that an appeal by
Hutson would not be taken in good faith.
Therefore, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in

this matter by Hutson would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Hutson
nevertheless appeals the dismissal of this case. A certification that an appeal is not taken
in good faith does not affect an indigent prisoner plaintiff’s ability to take advantage of the
installment procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d

601, 610-11 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry,
716 F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing
the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, Hutson is instructed that if he wishes to
take advantage of the installment procedures for paying the appellate filing fee, he must
comply with the procedures set out in McGore and § 1915(a)(2) by filing an updated in

forma pauperis affidavit and a current, certified copy of his inmate trust account for the six
months immediately preceding the filing of the notice of appeal.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10439925. Public record. Not legal advice.