Perry v. CoreCivic

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JOHN C. PERRY, SR., )

)

Plaintiff, )

)

v. ) Case No. 3:23-cv-01081

) Judge Aleta A. Trauger

KOURTNEY DE VIL, )

)

Defendant. )

MEMORANDUM

Before the court is plaintiff John C. Perry, Sr.’s “Motion of Response to Report and

Recommendation” (Doc. No. 44), which the court construes as objections to the Report and

Recommendation (“R&R”) (Doc. No. 41) issued by the Magistrate Judge, recommending that

defendant Kourtney De Vil’s Motion for Summary Judgment (Doc. No. 24) be granted and that

this case be dismissed. For the reasons set forth herein, the construed objections will be overruled.

The court will accept the R&R in its entirety, grant the defendant’s Motion for Summary Judgment,

and dismiss this case with prejudice.

I. STANDARD OF REVIEW

Within fourteen days after being served with a report and recommendation as to a

dispositive matter, any “party may serve and file specific written objections to [a magistrate

judge’s] proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). The district court

must review de novo any portion of the report and recommendation “that has been properly

objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, the district court “may accept,

reject, or modify the recommended disposition; receive further evidence; or return the matter to

the magistrate judge with instructions.” Id.

The district court is not required to review—under a de novo or any other standard—those

aspects of the report and recommendation to which no objection is made. Thomas v. Arn, 474 U.S.

140, 150 (1985). The district court should adopt the magistrate judge’s findings and rulings to

which no specific objection is filed. Id. at 151. “A general objection to the entirety” of a magistrate

judge’s report and recommendation has the same effect as a complete failure to object. Howard v.

Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). In addition, “[t]he filing of

vague, general, or conclusory objections does not meet the requirement of specific objections and

is tantamount to a complete failure to object.” Cole v. Yukins, 7 F. App’x 354, 356 (6th Cir. 2001);

see also Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (issues raised in a

“perfunctory manner, unaccompanied by some effort at developed argumentation,” are waived

(quoting Indeck Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir. 2000))).

Finally, arguments made in an objection to a magistrate judge’s report and recommendation that

were not first presented to the magistrate judge for consideration are deemed waived. Murr v.

United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).

Although pro se pleadings and filings are held to less stringent standards than those drafted

by lawyers, see, e.g., Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), pro se litigants are not

entirely exempt from the requirements of the Federal Rules of Civil Procedure. See, e.g., Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989).

II. PROCEDURAL HISTORY

Plaintiff John C. Perry, Sr., an inmate in the custody of the Tennessee Department of

Correction (“TDOC”), filed this lawsuit in October 2023, asserting that his federal constitutional

rights were violated during his incarceration at Trousdale Turner Correctional Center (“TTCC”)

and seeking monetary relief under 42 U.S.C. § 1983. (Compl., Doc. No. 1.) On initial review, the

court dismissed for failure to state a claim the claims against all defendants named in the Complaint

except defendant Kourtney De Vil, a correctional officer at TTCC, against whom the plaintiff

asserted a claim based on the alleged use of excessive force in violation of the Eighth Amendment.

(See Doc. Nos. 5, 6.) The plaintiff alleged that De Vil came to his housing unit during pill call and

attacked him for no reason—jumping on his back, pushing him, and stomping on his hands. He

claims that, after he managed to stand and walk toward his cell, De Vil slammed the cell door into

his body multiple times, injuring his left hand, left shoulder, back, and neck. Perry alleges that he

screamed multiple times before De Vil stopped her1 actions and allowed him to go into his cell.

He claims that he was taken to medical but sat in the waiting room for several hours without

receiving treatment. (See generally Doc. Nos. 1, 1-1.) He also alleges that several supervisory

officers reviewed the security video footage and found that he had done nothing wrong and that

De Vil “was in the wrong.” (Doc. No. 1-1 at 3.)

The court referred the matter to the Magistrate Judge for all pretrial proceedings. After De

Vil filed an Answer to the Complaint, the Magistrate Judge entered a scheduling order that

provided for a period of discovery and the filing of dispositive motions. (Doc. No. 17.) Perry filed

an unsupported Motion for Summary Judgment (Doc. No. 19), which the Magistrate Judge denied

(Doc. No. 35). De Vil thereafter filed her Motion for Summary Judgment, supporting

Memorandum of Law, Statement of Undisputed Material Facts, and several witness Declarations

and other evidentiary material in support of the motion. (Doc. Nos. 24–32.) The plaintiff filed a

Response to the motion (Doc. No. 38), but he did not respond to the Statement of Undisputed

Material Facts or submit any evidentiary material in support of his claims.

1 Although the Complaint refers to De Vil with masculine pronouns, De Vil’s filings in this

case, including a Declaration, refer to the officer with female pronouns. The court presumes that

De Vil is a woman.

The Magistrate Judge issued the R&R, recommending that De Vil’s Motion for Summary

Judgment be granted on the grounds that: (1) the plaintiff failed to exhaust his administrative

remedies, as required by the Prison Litigation Reform Act (“PLRA”), and had not even addressed

the defendant’s exhaustion defense in his Response; and (2) the plaintiff failed to set forth evidence

to support his claim or to rebut the defendant’s evidence, which establishes that “Plaintiff was non-

compliant with verbal orders from Defendant and then became aggressive and physically

combative with her,” “that minimal force was applied by Defendant to gain control over Plaintiff,”

and that “Plaintiff suffered no injuries.” (Doc. No. 41 at 10 (citing Doc. No. 26, Def.’s Statement

of Undisp. Material Facts ¶¶ 2–4).)

Despite the R&R’s clear directive that any objections must be filed within fourteen days,

the plaintiff did not file timely objections. However, in his construed objections, filed

approximately four weeks after service of the R&R, the plaintiff explained that he had been on

lock down and had been delayed in filing his objections through no fault of his own. The court

permitted the delayed filing and vacated the previous Order accepting the R&R. (See Doc. No.

45.)

In his objections, the plaintiff continues to assert that material factual disputes preclude

summary judgment. He also asserts, for the first time, that he did exhaust his administrative

remedies. He attached to his objections an Inmate Grievance form, purportedly signed and dated

by the plaintiff on April 29, 2023, two days after the incident giving rise to his lawsuit. (Doc. No.

44, 44-1.)

The defendant filed a Response to the Objections (Doc. No. 46), arguing that the

defendant’s vague and non-specific objections to the R&R fail to establish that the R&R

“somehow reached incorrect factual or legal conclusions as it relates to De Vil’s alleged use of

excessive force.” (Doc. No. 46 at 7.) Regarding the plaintiff’s reliance on a previously unfiled

grievance form, the defendant points out, first, that the plaintiff should have presented this

evidence in his response to the Motion for Summary Judgment and waived reliance on it by failing

to do so. (Id. at 4.) Second, she points out that the grievance form itself does not establish that it

was actually submitted to the prison or that Perry completed the exhaustion process with respect

to this particular complaint, as it was not signed by any prison official documenting its receipt.

(Id.)

III. RESOLUTION

The court finds no error in the R&R. The plaintiff utterly failed to respond to the

evidentiary material submitted by the defendant and has not presented even a scintilla of actual

evidence that De Vil used excessive force against him during the incident in question.

And, even if he had, it is clear that the plaintiff failed to exhaust his administrative remedies

in relation to the claim he brings against De Vil. As the R&R correctly states, a prisoner asserting

a claim relating to prison conditions under 42 U.S.C. § 1983 must first exhaust all available

administrative remedies before filing a lawsuit. Ross v. Blake, 578 U.S. 632, 635 (2016). If a prison

grievance procedure is available to inmates, the prisoner plaintiff must “complete the

administrative review process in accordance with the applicable procedural rules, . . . [as] defined

not by the PLRA, but by the prison grievance process itself.” Lee v. Willey, 789 F.3d 673, 677 (6th

Cir. 2015) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)) (internal quotation marks omitted).

A prisoner plaintiff’s failure to satisfy the exhaustion requirement is an affirmative defense that a

defendant must raise and prove. Id. (citing Jones, 549 U.S. at 216). But once the defense of failure

to exhaust is raised and supported, the plaintiff must “present ‘significant probative evidence’ to

defeat the motion for summary judgment on this ground.” Napier v. Laurel Cnty., 636 F.3d 218,

225 (6th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

De Vil satisfied her burden of showing that (1) TTC has a three-level procedure inmates

must follow to completely exhaust administrative remedies for issues concerning the conditions of

their confinement and (2) the plaintiff had not filed a grievance about the alleged attack by De Vil.

(See Doc. No. 27, Christian Decl. 3-5; Doc. No. 27-1, Policy 501.01, Inmate Grievance

Procedures.) The plaintiff did not respond to this evidence or argument until after the Magistrate

Judge recommended that summary judgment be granted based in part on the plaintiffs failure to

exhaust. As a result, he waived the argument. Moreover, even if the court were inclined to consider

the plaintiffs evidence, his submission of an incomplete grievance form that does not show it was

ever submitted to prison authorities does not constitute “significant probative evidence” of his

completion of the prison’s three-step grievance procedure. Taken at face value, it is not sufficient

to create a material factual dispute as to whether he exhausted administrative remedies.

In short, the plaintiff's objections are without merit.

IV. CONCLUSION

For the reasons set forth herein, the construed objections (Doc. No 44) will be overruled.

The R&R (Doc. No. 41) will be accepted in its entirety, and the defendant’s Motion for Summary

Judgment (Doc. No. 24) will be granted.

An appropriate Order is filed herewith.

Mth dong —

United States District Judge