Bumpus v. Dyersburg, Tennessee

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

PATRICK L. BUMPUS, )

)

Plaintiff, )

)

)

v. ) No. 1:18-cv-01246-SHM-cgc

)

DYERSBURG, TENNESSEE, DYER )

COUNTY SHERIFF’S OFFICE, ALAN )

BARGERY, FNU CAMPBELL, PAUL )

FORESTER, )

)

Defendants. )

ORDER

Plaintiff Patrick L. Bumpus (“Bumpus”) brings this action

under 42 U.S.C. § 1983. Bumpus’ claims arise from events that

occurred at the Dyer County Jail in Dyersburg, Tennessee. On

September 10, 2019, the Court dismissed most of Bumpus’ claims,

but allowed First Amendment Free Exercise and Establishment

Clause claims to proceed against Defendant Paul Forster

(“Forster”) and a Fourteenth Amendment Equal Protection Clause

claim to proceed against Defendant Charles Campbell (“Campbell”)

(collectively, “Defendants”). (D.E. 23.) There are four motions

before the Court: 1) Bumpus’ Motion to Compel a Response to

Plaintiff’s Second Set of Requests for Production (D.E.

68)(“Motion to Compel”); 2) Bumpus’ Motion for Extension of Time

to File a Reply (D.E. 67)(“Motion for Extension of Time”); 3)

Bumpus’ Motion to Supplement the Plaintiff’s Pleadings in

Response to the Defendant’s Motion for Summary Judgment (D.E.

69)(“Motion to Supplement”); and 4) Defendants’ Motion for

Summary Judgment (D.E. 55).

I. Motion to Compel

On December 12, 2019, the Court entered a Pro Se Prisoner

Track Scheduling Order. (D.E. 33.) The Scheduling Order set an

April 6, 2020 discovery deadline. (D.E. 33.) Bumpus propounded

a First Set of Requests for Production on December 23, 2019.

(D.E. 50-1.) He propounded a Second Set of Requests for

Production on January 8, 2021, nine months after the discovery

deadline. (D.E. 68-1.) The Second Set of Requests seeks 1) copies

of all grievances that Bumpus filed while at Dyer County Jail,

2) a list of Islamic groups from whom Forster tried to obtain

religious materials and services for inmates at Dyer County Jail,

and 3) copies of correspondence that Forster had with the Islamic

groups on the list. (D.E 68-1.) Bumpus seeks copies of his

grievances to prove a retaliation claim that the Court dismissed

in its September 10, 2019 Order. (D.E. 68, 508.) Bumpus seeks

information about the Islamic groups that Forster contacted so

that Bumpus can respond to arguments raised in Defendants’ Motion

for Summary Judgment. (D.E. 68, 509.) Defendants objected to the

Second Set of Requests as untimely. (D.E. 68-2.) On January 29,

2021, Bumpus filed his Motion to Compel. (D.E. 68)

The Motion to Compel can be understood as a request to

reopen discovery. Courts consider five factors when determining

whether to reopen discovery: (1) whether the movant has

demonstrated good cause for reopening discovery; (2) whether the

need for additional discovery was precipitated by the neglect of

the movant or by the party opposing the motion to reopen; (3)

the specificity of the sought discovery; (4) the relevance of

the sought discovery; and (5) whether the party opposing the

motion to reopen discovery will be prejudiced. See FedEx Corp.

v. U.S., No. 08-2423, 2011 WL 2023297, at *3 (W.D. Tenn. March

28, 2011)(collecting cases). The burden is on the moving party

to justify reopening discovery. See W. Am. Ins. Co. v. Potts,

908 F.2d 974 (6th Cir. 1990).

Bumpus has failed to establish good cause for reopening

discovery. In its September 10, 2019 Order, the Court explained

that Bumpus’ retaliation claim failed on the elements of adverse

action and causation. (D.E. 23, 167—68.) Bumpus does not explain

how the sought grievances will help him establish those missing

elements. There is no indication that Defendants kept a list of

contacted Islamic groups. Bumpus’ request for that information

is futile.

Any need for additional discovery is precipitated, in

significant part, by Bumpus’ neglect. Bumpus does not explain

why he failed to include a request for copies of his grievances

in the First Set of Requests for Production. Bumpus has taken no

depositions in this case. If Bumpus had deposed Forster, Bumpus

could have obtained any information on contacted Islamic groups.

Bumpus claims that he was hospitalized with COVID-19 from March

2020 through June 2020 and was not able to “mentally labor” until

November 2020.1 However, Bumpus had adequate time to conduct

discovery before his illness.

Bumpus’ request for information on contacted Islamic groups

appears specific and relevant. His request for filed grievances

is neither specific nor relevant. Reopening discovery would

prejudice Defendants. Defendants filed a Motion for Summary

Judgment on May 5, 2020. (D.E. 55.) Bumpus filed a Response on

November 30, 2020, and Defendants filed a Reply on December 7,

2020. (D.E. 65; 66.) Allowing Bumpus to reopen discovery would

be costly, time-consuming, and unfair. See Williams v. Defs.

Inc., No. 2:19-CV-02567, 2021 WL 4896581, at *5 (W.D. Tenn. Oct.

20, 2021)(denying plaintiff’s motion to reopen discovery where

defendant believed discovery was complete and had moved for

summary judgment). After considering the factors identified in

Fedex, the Court declines to reopen discovery.

In the alternative, the Motion to Compel can be understood

as a motion under Federal Rule of Civil Procedure 56(d). Rule

1 Bumpus filed motions in this case on June 12, 2020, October 29,

2020, and October 30, 2020. (D.E. 56; 57; 62; 63.)

56(d) provides an appropriate avenue for a party to move for

additional discovery to respond to an opposing party’s motion

for summary judgment. The rule states:

If a nonmovant shows by affidavit or declaration that,

for specified reasons, it cannot present facts

essential to justify its opposition [to summary

judgment], the court may:

(1) defer considering the motion or deny

it;

(2) allow time to obtain affidavits or

declarations or to take discovery; or

(3) issue any other appropriate order.

Fed. R. Civ. P. 56(d). When the Sixth Circuit reviews a district

court’s ruling on a Rule 56(d) motion it considers five factors:

(1) when the appellant learned of the issue that is

the subject of the desired discovery; (2) whether the

desired discovery would have changed the ruling below;

(3) how long the discovery period had lasted; (4)

whether the appellant was dilatory in its discovery

efforts; and (5) whether the appellee was responsive

to discovery requests.

Doe v. City of Memphis, 928 F.3d 481, 491 (6th Cir. 2019.) The

Sixth Circuit has suggested that a district court consider those

factors when deciding a Rule 56(d) motion. See id.

Bumpus did not include an affidavit or declaration with his

Motion to Compel to explain why additional discovery is

essential. See Scadden v. Werner, 677 F. App’x 996, 1000 (6th

Cir. 2017) (noting that failure to comply with the requirements

of Rule 56(d) is sufficient reason to deny further discovery).

The Doe factors also weigh against additional discovery. Although

some of Bumpus’ discovery requests relate to arguments first

raised in Defendants’ Motion for Summary Judgment, Bumpus would

have been aware of those arguments if he had conducted adequate

discovery during the discovery period. It is unlikely that

obtaining additional documents will change the outcome of this

case. Bumpus had adequate time to conduct discovery. Defendants

were responsive throughout the discovery period. Any need for

additional discovery is due, in significant part, because Bumpus

was dilatory.

The Motion to Compel is DENIED.

II. Motion for Extension of Time

Under the Local Rules for the Western District of Tennessee,

within seven days of service of a summary judgment reply

memorandum, an opposing party may file a sur-reply that responds

only to evidentiary objections raised in the reply memorandum.

L.R. 56.1(e). Bumpus’ sur-reply to the Motion for Summary

Judgment was due on December 14, 2020. On January 12, 2021,

Bumpus filed his Motion for Extension of Time. (D.E. 67.) Bumpus

asserts that “COVID-19 issues within Trousdale Turner

Correctional Facility . . . affected [his] ability to respond

timely [to Defendants’ Reply].” (D.E. 67.)

Federal Rule of Civil Procedure 6(b) governs the extension

of filing deadlines. Under Rule 6(b), “[w]hen an act may or must

be done within a specified time, the court may, for good cause,

extend the time . . . (B) on motion made after the time

has expired if the party failed to act because of excusable

neglect.” Fed. R. Civ. P. 6(b). To determine whether a failure

to act was the result of excusable neglect, courts consider five

factors:

(1) the danger of prejudice to the non[filing] party,

(2) the length of the delay and its potential impact

on judicial proceedings, (3) the reason for the delay,

(4) whether the delay was within the reasonable

control of the [filing] party, and (5) whether the

late-filing party acted in good faith.

Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th

Cir.2006) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs.

Ltd. P’ship, 507 U.S. 380, 395 (1993)).

The Court declines to extend the time to file a sur-reply.

This case is more than three years old. Defendants’ Motion for

Summary Judgment has been pending for more than a year. Any

further delay would prejudice Defendants. Bumpus’ delay was

significant. The Motion for Extension of Time was filed nearly

a month after the sur-reply deadline. In the Motion, Bumpus does

not explain how “COVID-19 issues” affected his ability to meet

the sur-reply deadline. Because of Bumpus’ failure, the Court is

unable to assess the reasons for the delay, whether the delay

was reasonable, whether the delay was within Bumpus’ reasonable

control, and whether Bumpus acted in good faith. The Motion for

Extension of Time is DENIED.

III. Motion to Supplement

On February 3, 2021, Bumpus filed a Motion to Supplement

the Plaintiff’s Pleadings in Response to the Defendant’s Motion

for Summary Judgment. (D.E. 69)(“Motion to Supplement”). Bumpus’

original opposition to Defendant’s Motion for Summary Judgment

did not respond to the facts set out in Defendants’ Statement of

Undisputed Material Facts (“SUMF”) as required under the Local

Rules for the Western District of Tennessee. (D.E. 65.) The

Motion to Supplement seeks to correct that procedural error.

(D.E. 69.) The Motion does not raise new arguments or introduce

new evidence. The Motion to Supplement is GRANTED. The Court

will consider Bumpus’ responses to Defendants’ SUMF.

IV. Motion for Summary Judgment

A. Background

1. Forster

Bumpus brings First Amendment Free Exercise and

Establishment Clause claims against Forster. Forster was the

Program Coordinator at Dyer County Jail. Bumpus alleges that

Forster sought to “Christianize” inmates by offering only

Christian-based programs and materials. Bumpus alleges that

Forster denied Bumpus any opportunity to practice Islam.

Forster seeks summary judgment on both claims. Forster

states that, as program coordinator for Dyer County Jail, he

does not sponsor religious programs or services and does not

purchase religious materials for inmates. (D.E. 55-2 at ¶¶ 4,

5.) Although it is common for Christian groups to donate

religious texts and conduct religious services at the Jail,

Forster does not prohibit Islamic groups from doing so. (D.E.

55-2 at ¶¶ 8—11.) Since 2008, no Islamic group has been willing

to donate Korans or perform religious services at the Jail.

Forster has attempted to identify an Islamic group that would

provide religious materials and services, but has been

unsuccessful. (D.E. 55-2 at ¶ 24.) Anytime an inmate requests a

Koran, Forster provides the inmate with the contact information

for an Islamic group that will typically send a Koran on request.

(D.E. 55-2 at ¶ 12.) Forster and the Dyer County Jail allow

inmates to possess Korans and prayer rugs, meet with Islamic

leaders, correspond with members of an inmate’s faith, and set

up telephone calls with members of the Islamic faith. (D.E. 55-

2 at ¶¶ 13—16.) At no time did Forster forbid Bumpus to possess

a Koran or prayer rug or forbid Bumpus from meeting with Islamic

leaders or from communicating with them by telephone or mail.

(D.E. 55-2 at ¶¶ 28, 32—34.) An inmate’s participation in

religious services or classes hosted at the Jail is voluntary.

(D.E. 55-2 at ¶¶ 18—20.) Forster requires prospective religious

volunteers to agree to certain rules and regulations before

allowing them to conduct religious services or classes in the

Dyer County Jail. (D.E. 55-2 at ¶ 21.) Volunteers may not force

or attempt to force an inmate to participate in any religious

service or class. (D.E. 55-2 at ¶ 21.)

Bumpus denies many of Forster’s declarations. To support

those denials, Bumpus provides affidavits from Charles Butler

and Antonio Higgins, inmates at the Dyer County Jail. (D.E. 65-

1.) The affidavits state only that Forster “restricts the jail

inmates from practicing any faith outside Christianity,

especially Islam.” (D.E. 65-3; D.E. 69-3.) Bumpus provides copies

of his prison grievances, which repeat his First Amendment claims

in general terms. (D.E. 65-2; D.E. 69-1.) He cites the Statement

of Facts from his Amended Complaint. (D.E. 69; D.E. 16.) Bumpus

also quotes a portion of Forster’s declaration that states,

“During the times that I am not working for the Dyer County Jail,

I have participated as a volunteer with some Christian Groups

and have participated as a volunteer in some religious services

at the jail.” (D.E. 69, 534; D.E. 55-4 at ¶ 18.)

2. Campbell

During his incarceration, Bumpus worked on the Dyer County

Jail inmate litter crew. Bumpus alleges that Campbell, the litter

crew supervisor, discriminated against Bumpus because of Bumpus’

race and treated him differently than a white inmate, Inmate

Holland, who was also on the litter crew. Bumpus alleges that on

one occasion Campbell ordered Bumpus to pick up trash from a

ditch infested with ticks and containing a dead deer, but that

Campbell did not require Holland to work in the ditch. Bumpus

alleges that Campbell discriminated against Bumpus when Campbell

removed Bumpus from the litter crew and replaced him with a white

inmate.

Campbell seeks summary judgment on Bumpus’ Fourteenth

Amendment Equal Protection Clause claim. Campbell states that he

did not discriminate against Bumpus because of his race. (D.E.

55-2 at ¶ 60.) Due to the nature of working in an outdoor

environment, all inmates on the litter crew were at times exposed

to dead animals, roadkill, bugs, ticks, pests, and other vermin.

(D.E. 55-2 at ¶ 45, 46.) During his time working on the inmate

litter crew, Bumpus often complained and displayed an

unwillingness to work. (D.E. 55-2 at ¶¶ 50, 51.) On multiple

occasions, Campbell warned Bumpus that if Bumpus continued to

display an uncooperative attitude, Campbell would remove Bumpus

from the litter crew. (D.E. 55-2 at ¶ 52.) On May 31, 2018,

Bumpus refused to perform assigned work. (D.E. 55-2 at ¶ 56.)

Campbell removed Bumpus from the inmate litter crew because

Bumpus’ obstinate attitude had become a common occurrence. (D.E.

55-2 at ¶ 57.) After removing Bumpus, Campbell was not involved

in choosing an inmate to replace Bumpus. (D.E. 55-2 at ¶ 59.)

Bumpus denies many of Campbell’s declarations. To support

those denials, Bumpus cites the Butler and Higgins affidavits.

Both affidavits state, “I personally can affirm to the racial

discriminatory ways of litter crew supervisor Campbell . . . .”

(D.E. 65-3.) Bumpus cites video evidence that Bumpus says shows

him working diligently at his litter crew position. (D.E. 65-

5.) The video evidence is not in the record. Bumpus cites the

Statement of Facts from his Amended Complaint. (D.E. 16.) Bumpus

also provides a copy of a letter from Alan Bargery, Dyer County

Jail Administrator, which shows that Bumpus and Bargery met to

discuss Bumpus’ complaints against Campbell. (D.E. 65-4.) The

letter does not provide details of any events that underlie

Bumpus’ Fourteenth Amendment Equal Protection Clause claim.

(D.E. 65-4.)

B. Standard of Review

Under Federal Rule of Civil Procedure 56(a), a court must

grant a party’s motion for 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.” Fed. R. Civ.

P. 56(a). The moving party must show that the nonmoving party,

having had sufficient opportunity for discovery, lacks evidence

to support an essential element of his case. See Fed. R. Civ. P.

56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th

Cir. 2018).

When confronted with a properly supported motion for summary

judgment, the nonmoving party must set forth specific facts

showing that there is a genuine dispute for trial. See Fed. R.

Civ. P. 56(c). “A ‘genuine’ dispute exists when the plaintiff

presents ‘significant probative evidence’ ‘on which a reasonable

jury could return a verdict for her.’” EEOC v. Ford Motor Co.,

782 F.3d 753, 760 (6th Cir. 2015)(en banc)(quoting Chappell v.

City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)). “Evidence

submitted in opposition to a motion for summary judgment must be

admissible.” M.J. by & through S.J. v. Akron City Sch. Dist. Bd.

of Educ., 1 F.4th 436, 446 (6th Cir. 2021). “[A] form affidavit

that fails to explain how an unsupported conclusion was reached

. . . can fail to constitute competent evidence establishing a

genuine issue of material fact.” Gardner v. Evans, 920 F.3d 1038,

1055 (6th Cir. 2019). Allegations or denials in unverified

pleadings do not satisfy the plaintiff’s burden on summary

judgment. See King v. Harwood, 852 F.3d 568, 578 (6th Cir. 2017).

Although summary judgment must be used carefully, it “is an

integral part of the Federal Rules as a whole, which are designed

to secure the just, speedy, and inexpensive determination of

every action[,] rather than a disfavored procedural shortcut.”

FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009)

(quotation marks and citations omitted).

C. Analysis

1. Administrative Exhaustion

In their Motion for Summary Judgment, Defendants argue that

the Court should dismiss Bumpus’ claims because Bumpus failed to

exhaust administrative remedies at the Dyer County Jail.

Defendants assert that Bumpus did not properly appeal his

grievance against Campbell. They assert that there is no evidence

that Bumpus filed a grievance against Forster.

The Prison Litigation Reform Act (“PLRA”) requires inmate

plaintiffs to exhaust their administrative remedies before suing

under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(a). That exhaustion

requirement applies to all lawsuits “brought with respect to

prison conditions,” regardless of the claim or the relief sought.

Porter v. Nussle, 534 U.S. 516, 524 (2002) (quoting 42 U.S.C. §

1997e(a)). An inmate cannot bring unexhausted claims into court.

Jones v. Bock, 549 U.S. 199, 211 (2007). “[F]ailure to exhaust

administrative remedies under the PLRA is an affirmative defense

that must be established by the defendants.” Napier v. Laurel

Cnty., Ky., 636 F.3d 218, 225 (6th Cir. 2011). “Summary judgment

is appropriate only if defendants establish the absence of a

‘genuine dispute as to any material fact’ regarding non-

exhaustion.” Risher v. Lappin, 639 F.3d 236, 240 (6th Cir.

2011)(quoting Fed. R. Civ. P. 56(a)).

The PLRA requires “proper exhaustion,” which means that the

inmate must comply with the prison’s procedural rules to satisfy

the exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81,

90-93 (2006). The prison grievance process sets those procedural

rules for making a claim, not by the PLRA. Jones, 549 U.S. at

218. Exhaustion of administrative remedies under the PLRA

requires a prisoner to see the grievance process through to

completion, appealing denials as permitted and participating in

offered hearings. Thomas v. Woolum, 337 F.3d 720, 733 (6th Cir.

2003), abrogated on other grounds, Woodford, 548 U.S. 81.

Administrative remedies are exhausted when prison officials fail

to respond to a properly filed grievance. See Boyd v. Corr. Corp.

of Am., 380 F.3d 989, 996 (6th Cir. 2004).

Under the Dyer County Jail grievance policy, a grievance

must be filed within seven (7) days of the event or disputed

action. (D.E. 55-5 at ¶ 7.) A grievance may address only one

topic. (D.E. 55-5 at ¶ 8.) Once a grievance form is completed,

it is forwarded to the Jail Administrator for review. Typically,

the Jail Administrator provides a response to the grievance

within fourteen (14) days of receipt. (D.E. 55-5 at ¶ 9.) After

receiving a “written response” to the grievance, an inmate may

appeal the response within seven (7) days. (D.E. 55-5 at ¶ 10.)

It is undisputed that Bumpus filed a grievance against

Campbell. Bargery responded to Bumpus’ grievance in a meeting

with Bumpus. Bumpus did not appeal Bargery’s response. Defendants

argue that Bumpus failed to exhaust administrative remedies

because he did not comply with the seven (7) day appeal deadline.

Bumpus exhausted his administrative remedies on his claim

against Campbell. Under the Dyer County Jail grievance policy,

the seven (7) day appeal deadline is triggered once the Jail

Administrator provides a written response to a grievance. Bargery

never provided a written response to Bumpus’ grievance against

Campbell. On this record, Bumpus was not subject to the seven

(7) day appeal deadline. The parties have not presented evidence

on the proper procedure for appealing an in-person grievance

response.

Defendants have established that Bumpus failed to exhaust

his administrative remedies on his claims against Forster.

Defendants’ initial Requests for Production sought “copies of

any and all documents or grievances relative to any of the

allegations contained in your Complaint completed by you and

given to any agent of Dyer County.” (D.E. 66-1, 492.) Bumpus

responded that “no documents will be used at this point of time

. . . . Plaintiff is waiting on appointment of counsel so that

needed documents may be collected; due to the plaintiff’s

incarceration plaintiff is unable to collect documents . . . .”

(D.E. 66-1, 498.) In their Motion for Summary Judgment,

Defendants include an affidavit from Jail Administrator Bargery.

The affidavit states:

Based upon my review of his records and to the best

of my knowledge and recollection, at no time did

Plaintiff ever submit a grievance to me concerning a

complaint that he was not being allowed to practice

his religion while he was incarcerated in the Dyer

County Jail. Further, based upon my review of his

records to the best of my knowledge and recollection,

at no time did Plaintiff ever submit a grievance to

me concerning any complaint he had with Paul Forster.

(D.E. 55-5 at ¶ 16.) In his opposition to the Motion for Summary

Judgment, Bumpus includes copies of grievances that Bumpus

allegedly filed against Forster. (D.E. 65-1; D.E. 69-1.)

Under Federal Rule of Civil Procedure 26(e), a party who

has responded to a request for production must supplement or

correct its response “in a timely manner if the party learns

that in some material respect the disclosure or response is

incomplete or incorrect, and if the additional or corrective

information has not otherwise been made known to the other

parties during the discovery process or in writing . . . .” Fed.

R. Civ. P. 26(e)(1)(A). If a party fails to provide information

as required by Rule 26(e), the party is not allowed to use that

information to supply evidence on a motion, “unless the failure

was substantially justified or is harmless.” Fed. R. Civ. P.

37(c)(1). The burden is on the potentially sanctioned party to

show that the failure to provide information was justified or

harmless. See R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d

262, 270 (6th Cir. 2010).

The Court will not consider the Forster grievances that

Bumpus includes with his opposition to the Motion for Summary

Judgment. The Forster grievances were responsive to Defendants’

Requests for Production. Bumpus never supplemented his response

to Defendants’ Requests for Production and did not otherwise

identify the Forster grievances to the Defendants. He has not

established that the failure to identify the Forster grievances

was justified or harmless. Bumpus does not explain why he needed

an attorney to collect relevant documents. Bumpus had access to

any allegedly filed grievances. He included copies of grievances

and letters to prison officials with the Amended Complaint. (D.E.

16.) Bumpus’ failure to supplement his discovery responses was

not harmless. Defendants relied on Bumpus’ discovery responses

in their Motion for Summary Judgment.

The only evidence in the summary judgment record related to

Bumpus’ exhaustion of his claims against Forster is Bargery’s

affidavit. The affidavit states that Bumpus’ records do not show

any filed grievance against Forster and that Bargery is not aware

of any such grievance. Bumpus failed to exhaust administrative

remedies on his claims against Forster.

2. Genuine Dispute for Trial

Faced with the Defendants’ well-supported Motion for

Summary Judgment, Bumpus has failed to set forth specific facts

showing a genuine dispute for trial. Bumpus relies on the Butler

and Higgins affidavits. Those affidavits contain only

unsupported conclusions and do not create a genuine issue of

material fact. See Gardner, 920 F.3d at 1055. Bumpus cites

factual allegations from his unverified Amended Complaint. Those

factual allegations do not satisfy Bumpus’ burden at the summary

judgment stage. See King, 852 F.3d at 578 (6th Cir. 2017).

Because Bumpus did not produce the Forster grievances during

discovery and because they are not evidence of the facts stated

in them,2 those grievances do not create a genuine dispute for

trial. See Akron, 1 F.4th at 446. Forster’s statement that he

“volunteer[ed] in some religious services at the jail” does not

establish a violation of Bumpus’ rights under the First Amendment

Free Exercise or Establishment Clause. Forster’s statement does

not show that Bumpus was denied reasonable opportunities to

practice his religion or was forced to participate in religious

2 Prison grievances are not admissible evidence of underlying facts.

See Brown v. Davis, No. 1:18-CV-1362, 2020 WL 6597344, at *6 n.4 (W.D.

Mich. Feb. 12, 2020) (finding that prison grievances constitute

hearsay), report and recommendation adopted, No. 1:18-CV-1362, 2020

WL 5228987 (W.D. Mich. Sept. 2, 2020).

exercise. See Hudson v. Palmer, 468 U.S. 517, 523 (1984); Lee v.

Weisman, 505 U.S. 577, 587 (1992).

*****

Bumpus did not exhaust his administrative remedies on his

claims against Forster. Bumpus has not set forth specific,

material facts showing a genuine dispute for trial on his claims

against Forster and Campbell. Defendants’ Motion for Summary

Judgment is GRANTED.

V. Appellate Issues

Under Federal Rule of Appellate Procedure 24(a) and 28

U.S.C. § 1915(a)(3), the Court must consider whether an appeal

by Bumpus would be taken in good faith. See Callihan v.

Schneider, 178 F.3d 800, 803–04 (6th Cir. 1999). Under Rule

24(a), if the district court permits a party to proceed in forma

pauperis, that party may also proceed on appeal in forma pauperis

without further authorization. There is an exception when the

district court “certifies that the appeal is not taken in good

faith or finds that the party is not otherwise entitled to

proceed in forma pauperis.” Fed. R. App. P. 24(a)(3)(A). If the

district court denies pauper status, the party may move to

proceed in forma pauperis in the Court of Appeals. Fed. R. App.

P. 24(a)(4)—(5). The good faith standard is an objective one.

Coppedge v. United States, 369 U.S. 438, 445 (1962). The test

for whether a party appeals in good faith is whether the litigant

seeks appellate review of any issue that is not frivolous. Id.

For the same reasons the Court granted Defendants’ Motion for

Summary Judgment, the Court finds that an appeal would not be

taken in good faith. The Court therefore CERTIFIES, under Federal

Rule of Appellate Procedure 24(a), that any appeal by Bumpus

would not be taken in good faith. The Court DENIES leave to

proceed on appeal in forma pauperis. If Bumpus appeals, he must

pay the full $505 appellate filing fee or move for leave to

appeal in forma pauperis with a supporting affidavit in the Sixth

Circuit. See Fed. R. App. P. 24(a)(5).

VI. Conclusion

The Motion to Compel is DENIED. The Motion for Extension of

Time is DENIED. The Motion to Supplement is GRANTED. The Motion

for Summary Judgment is GRANTED. It is CERTIFIED that an appeal

by Bumpus would not be taken in good faith. The Court DENIES

leave to proceed in forma pauperis on appeal.

SO ORDERED this 11th day of February, 2022.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE