Petition for Writ of Certiorari — Brian E. Johnson, Petitioner v. Mike Dobbins, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals

for the Sixth Circuit (November 8, 2022) .......... 1a

Judgment of the United States

Court of Appeals for the Sixth Circuit

(November 8, 2022) .......................................... 11a

Memorandum Opinion of the United States

District Court for the Middle District of

Tennessee Nashville Division

(April 13, 2022) ................................................. 13a

App.1a

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

(NOVEMBER 8, 2022)

NOT RECOMMENDED FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

BRIAN E. JOHNSON,

Plaintiff-Appellant,

v.

MIKE DOBBINS, ET AL.,

Defendants-Appellees.

________________________

No. 22-5310

On Appeal from the United States District Court

for the Middle District of Tennessee

Before: SILER, NALBANDIAN, and READLER,

Circuit Judges.

OPINION

CHAD A. READLER, Circuit Judge.

Concerned about the safety and security risks

posed by an inmate’s wrist brace, Williamson County

jail officials housed the inmate in a single-man cell.

After his release, the inmate sued several officers

App.2a

and administrators for violating his rights under the

Constitution and the Americans with Disabilities Act

by separating him from the general prison population

due to his medical status. Before bringing his grievances to federal court, however, the inmate failed to

avail himself of the grievance process available at the

prison. For that and other reasons, we affirm the district court’s grant of summary judgment to defendants.

I.

Brian Johnson was imprisoned at the Williamson

County (Tennessee) jail for drug-related offenses. He

arrived at the jail wearing a wrist brace, which he

asked to not be removed. After examining Johnson,

jail officials deemed the brace to pose safety and

security risks. So, to allow Johnson to retain the brace,

the officials classified him as a medical separation

inmate. This meant Johnson would be kept in a singleman cell up to twenty-three hours per day.

The jail affords its inmates the right to appeal

housing classifications through an internal grievance

process. And Johnson, it seems, was no stranger to

airing complaints while at the jail. Over the course of

his imprisonment, he filed requests asking prison

officials to take a range of actions, even those as

miniscule as bringing back Takis Chips to the commissary.

Yet Johnson never filed a grievance challenging his

medical separation status. The closest he came to doing

so was through a series of conversations with a prison

nurse. At one point, Johnson inquired about being

moved into the general population, only to later withdraw that request.

Johnson was released after more than 17 months

in jail, the bulk of which was spent in medical

App.3a

separation. Upon his release, he sued various jail

officers and administrators, raising seven different

claims for relief. Primarily, Johnson alleged that prison

officials violated the Eighth and Fourteenth Amendments, the ADA, and state law by subjecting him to

extended solitary confinement. The district court

granted summary judgment against Johnson. This

appeal followed.

II.

Widely litigated in the district court, Johnson’s

case is narrower on appeal. He has abandoned a host

of claims and issues pursued below. See Bard v.

Brown County, 970 F.3d 738, 750–51 (6th Cir. 2020).

Johnson leaves us just two claims to resolve: whether

defendants (1) denied him notice and an opportunity

to be heard on changing his medical separation

status in violation of his Fourteenth Amendment

procedural due process rights; and (2) failed to provide

him with a reasonable accommodation as to his

disability in violation of the ADA. He identifies four

defendants he believes are culpable for the asserted

wrongs—two supervisors and two officers that worked

at the jail during Johnson’s confinement. We review

the district court’s summary judgment award de novo,

viewing the facts and all reasonable inferences in

Johnson’s favor. Groening v. Glen Lake Cmty. Schs.,

884 F.3d 626, 630 (6th Cir. 2018). Summary judgment is appropriate where “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).

App.4a

A.

Begin with Johnson’s procedural due process

claim. Among the points of contention between the

parties are the timeliness of Johnson’s claim and

whether liability can extend to the supervisor defendants. But as the case can be resolved on other grounds,

we leave those issues aside.

To overcome summary judgment for his procedural

due process claim, Johnson needed to present evidence

raising a genuine dispute of material fact as to

whether a violation occurred. Articulated in the context

of Johnson’s legal theory, he was required to show

that (1) the state interfered with his protected liberty

interest; and (2) the procedures afforded him were

constitutionally insufficient. Bethel v. Jenkins, 988

F.3d 931, 942 (6th Cir. 2021). Beginning with the

liberty interest at stake, Johnson’s lane is narrow.

The lone relevant interest that the Supreme Court

has recognized in this setting is to not be subjected to

an “atypical and significant hardship . . . in relation

to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 484 (1995). And viewing that

right in the circumstance of a decision to segregate

an inmate from the general population, prison officials

need only provide an “informal” process: an “inmate

must merely receive some notice” of the prison’s decision and an “opportunity to present his views” on the

matter to the relevant prison official. See Hewitt v.

Helms, 459 U.S. 460, 476 (1983), abrogated on other

grounds by Sandin, 515 U.S. at 483–84; see also

Wilkinson v. Austin, 545 U.S. 209, 229 (2005) (recognizing

Hewitt’s continued relevance to the question of what

process is due to a prisoner).

App.5a

Johnson is unable to navigate these narrow legal

channels. Assuming for argument’s sake that his placement on medical separation imposed an atypical and

significant hardship, Johnson was afforded adequate

process to challenge any liberty deprivation. He

undisputedly received “some notice” of his housing

classification when he was made aware at booking of

his placement on medical separation status. See

Hewitt, 459 U.S. at 476. He likewise had the “opportunity to present his views” to challenge his medical

separation status through the grievance process: no

one can claim that Johnson was unfamiliar with that

process, having successfully raised other issues of

concern to his jailers. Id. Yet Johnson chose not to

formally challenge his housing assignment, and indeed

recanted any interest in being moved to the general

population. With Johnson having “not avail[ed

himself]” of the opportunity to be heard on his claim,

no due process violation occurred. Dubuc v. Township

of Green Oak, 406 F. App’x 983, 989 (6th Cir. 2011)

(citing Santana v. City of Tulsa, 359 F.3d 1241, 1244

(10th Cir. 2004)).

Johnson responds by emphasizing that prison

officials “refused to provide” him with a “periodic

review” of his housing classification, notwithstanding

County policy to the contrary. But we fail to see how

supposed nonadherence to an internal jail policy has

any significance with respect to a procedural due

process claim. See Graham v. Chicowski, No. 18-2049,

2019 WL 4381841, at *5 (6th Cir. May 3, 2019) (holding

that the “failure to follow . . . applicable state-law procedures” concerning administrative segregation is not

actionable under § 1983) (citing Huron Valley Hosp.,

Inc. v. City of Pontiac, 887 F.2d 710, 714 (6th Cir.

App.6a

1989)). All procedural due process entitled Johnson

to was notice of and an opportunity to be heard concerning a prison segregation order. See Hewitt, 459

U.S. at 476. We are unaware of any authority that

places an affirmative, due-process-based obligation

on prison officials to proactively review a prisoner’s

housing classification. See Trozzi v. Lake County, 29

F.4th 745, 751–52 (6th Cir. 2022) (addressing the

narrow circumstances in which the Constitution

imposes affirmative duties upon prison officials).

B.

Johnson’s remaining claim arises under Title II

of the ADA. He invokes the ADA’s requirement that

“no qualified individual with a disability shall, by

reason of such disability, be excluded from participation

in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

We recognize two types of claims under Title II: intentional discrimination and reasonable accommodation

claims. Ability Ctr. of Greater Toledo v. City of

Sandusky, 385 F.3d 901, 907 (6th Cir. 2004). Johnson

pursues the latter. The jail, he says, was required to

accommodate his wrist injury by placing him in the

general population.

Reasonable accommodation claims find their

genesis in a federal regulation requiring public entities

to “make reasonable modifications in policies, practices,

or procedures when [such] modifications are necessary

to avoid discrimination on the basis of disability.” See

Madej v. Maiden, 951 F.3d 364, 372 (6th Cir. 2020)

(quoting 28 C.F.R. § 35.130(b)(7)(i)). Reading that

regulation alongside case law borrowed from our

App.7a

interpretation of Title III, it becomes evident that a

public entity is “not liable for failing to make reasonable

accommodation if the plaintiff did not request

accommodation or otherwise alert the covered entity

to the need for accommodation.” Marble v. Tennessee,

767 F. App’x 647, 652 (6th Cir. 2019) (citing Gantt v.

Wilson Sporting Goods Co., 143 F.3d 1042, 1046–47

(6th Cir. 1998)); see also Peroli v. Huber, No. 21-3202,

2021 WL 5411215, at *11 (6th Cir. Nov. 19, 2021); Qiu

v. Univ. of Cincinnati, 803 F. App’x 831, 837 (6th Cir.

2020); McPherson v. Mich. High Sch. Athletic Ass’n,

Inc., 119 F.3d 453, 461 (6th Cir. 1997) (en banc) (recognizing that only an accommodation that “had been

brought to the attention” of a public entity is “available”

as the basis for a reasonable accommodation claim

under Title II).

Here, the record is bereft of any evidence that

Johnson alerted the jail to the need for accommodation

to avoid disability discrimination, let alone made a

specific request that he be placed in the general

prison population. At one point, in fact, he told a jail

nurse that he was not interested in moving into the

general population. All things considered, Johnson

failed to satisfy his “initial burden” of showing that

the jail was on notice as to his need for specific

accommodations. See Marble, 767 F. App’x at 652.

Johnson resists this conclusion on a few fronts.

He first contends that Title II did not require him to

request an accommodation. True, as Johnson notes,

we have recognized that Title II, in addition to

prohibiting intentional discrimination, also imposes

“affirmative obligations on public entities.” See Ability

Ctr. of Greater Toledo, 385 F.3d at 910. Public entities,

for example, must make “reasonable modifications”

App.8a

to “policies, practices, or procedures” to avoid disability

discrimination. See 28 C.F.R. § 35.130(b)(7)(i). But

that obligation arises only where the entity is aware

of the needed accommodation. Public officials, after

all, are not “clairvoyan[t],” nor does Title II expect as

much. Windham v. Harris County, 875 F.3d 229,

236–37 (5th Cir. 2017) (citations omitted). A public

entity’s responsibility to reasonably accommodate a

disability, in other words, requires both an awareness

of a plaintiff’s specific needs as well as the plaintiff

requesting a corresponding accommodation in “direct

and specific” terms. Id.

Even if so, says Johnson, he maintains that he

requested an accommodation by “verbally campaign

[ing] to be released from solitary confinement.” Save

for Johnson’s unadorned statements that he “campaigned”

for release from medical separation status, however,

his evidence is lacking. He does not explain when the

campaign occurred, what it entailed, or to whom it

was directed, benchmarks he must satisfy to avoid

summary judgment. See Napier v. Laurel County, 636

F.3d 218, 225 (6th Cir. 2011). Nor, for that matter,

has Johnson asserted that the “purpose” of his request

was to “accommodate” a disability, another aspect of

his “initial burden” to assert a reasonable accommodation claim. See Marble, 767 F. App’x at 652 (citing

Smith v. Henderson, 376 F.3d 529, 535 (6th Cir. 2004)).

Next, Johnson faults defendants for failing to

provide an individualized review of his confinement

conditions in violation of 28 C.F.R. § 35.139(b). At

the outset, we note that it is not entirely clear

whether Johnson can rely on Title II’s private cause

of action to enforce this regulation. See Ability Ctr. of

Greater Toledo, 385 F.3d at 907–08, 914 (recognizing

App.9a

a cause of action to enforce an ADA regulation only

to the extent that it “effectuates” Title II’s prohibition

on intentional disability discrimination or reasonable

accommodations requirement). And even if he can,

jail officials did not violate the implementing regulation.

After Johnson alerted the jail of his interest in

continuing to wear his wrist brace, jail officials assessed

his needs and allowed him to wear the brace while

imprisoned. Any further individualized “modification[]”

of the terms of Johnson’s confinement, see 28 C.F.R.

§ 35.139(b), would have required him to alert the jail

as to the need for such a modification, see Marble,

767 F. App’x at 651 (observing that an “individualized inquiry” is required “in response to a request

for accommodation”). Yet Johnson failed to do so.

As a final salvo, Johnson turns to another ADA

implementing regulation, 28 C.F.R. § 35.107(a). That

regulation requires certain public entities to designate

an employee to “coordinate its efforts to comply with

and carry out” Title II’s implementing regulations.

Id. Here, too, we will assume that the ADA provides

a cause of action to pursue a violation of this regulation.But see Ability Ctr. of Greater Toledo, 385 F.3d

at 914 (recognizing that implementing regulations that

create obligations “not necessarily required by” the

statute are “not enforceable under Title II’s private

cause of action”). In district court Johnson faulted

the jail for not employing a trained ADA coordinator.

But any purported training obligation is beyond 28

C.F.R. § 35.107(a)’s text. See 28 C.F.R. § 35.107(a)

(“A public entity that employs 50 or more persons

shall designate at least one employee to coordinate its

efforts to comply with and carry out its responsibilities

under this part. . . . ”). Today, Johnson moves away

App.10a

from the training aspect of his argument and instead

maintains, more broadly, that the jail failed to

designate anyone as an ADA coordinator. But as the

jail presented evidence to the contrary—facts with

which Johnson has created no genuine dispute—his

ADA claim (like his constitutional claim) lacks merit.

*****

We affirm the judgment of the district court.

App.11a

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

(NOVEMBER 8, 2022)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

________________________

BRIAN E. JOHNSON,

Plaintiff-Appellant,

v.

MIKE DOBBINS, DUSTY RHOADES, JEFF LONG,

DAN VANDENBOSCH, and CHAD YOUKER,

IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES,

Defendants-Appellees.

________________________

No. 22-5310

On Appeal from the United States District Court

for the Middle District of Tennessee at Nashville

Before: SILER, NALBANDIAN, and READLER,

Circuit Judges.

JUDGMENT

THIS CAUSE was heard on the record from the

district court and was submitted on the briefs without

oral argument.

App.12a

IN CONSIDERATION THEREOF, it is ORDERED

that the judgment of the district court is AFFIRMED.

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt

Clerk

App.13a

MEMORANDUM OPINION OF THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

TENNESSEE NASHVILLE DIVISION

(APRIL 13, 2022)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

________________________

BRIAN E. JOHNSON,

Plaintiff,

v.

MIKE DOBBINS, ET AL.,

Defendants.

________________________

No. 3:19-cv-01160

Before: Waverly D. CRENSHAW, JR.,

Chief United States District Judge.

MEMORANDUM OPINION

Brian Johnson, a former inmate at the Williamson

County Jail (the “Jail”), brings claims arising from

the conditions of his confinement under 42 U.S.C.

§ 1983 for violations of his Eighth and Fourteenth

Amendment rights, and for disability discrimination

under the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12101, et seq. The defendants are Captain

App.14a

Mike Dobbins, former Jail Administrator; Dusty

Rhoades, former Chief Deputy and current Williamson

County Sheriff; Jeff Long, former Williamson County

Sheriff; Dan VandenBosch, former Jail Lieutenant;

and Chad Youker, current Jail Lieutenant and former

Staff Sergeant (“Defendants”), all of whom Johnson

alleges engaged in illegal treatment while he was in

the Jail.

Before the Court are five motions for summary

judgment by: (1) Dobbins (Doc. No. 112); (2) Rhoades

(Doc. No. 114); (3) Long (Doc. No. 116); (4) VandenBosch

(Doc. No. 118); and Youker (Doc. No. 120). Johnson

opposes each except for Long, (Doc. Nos. 149–52),

and Defendants have replied. (Doc. Nos. 153–57). For

the following reasons, the motions will be granted.

I.

Material Undisputed Facts

On December 19, 2017, Johnson was booked into

the Jail wearing a brace on his right wrist that

interferes with any activity requiring use of both

hands. Johnson requested that he not be required to

remove the brace, and Jail medical staff agreed.

The Jail’s Inmate Classification Policy (“Policy”)

“has been developed to provide reasonable and necessary security and safe housing for the inmate population, while also providing for the protection of deputies

and staff.” (Doc. No. 147-8 at 1). For inmates, like

Johnson, who have “special needs,” the Policy provides that they “will be diverted to special housing

when such housing space is available. Special housing

units include protective custody, administrative

separation, disciplinary separation and mental and

medical health housing.” (Id. at 2). The Policy specifically provides that “[i]nmates with disabilities, as

App.15a

determined by medical staff, including temporary

disabilities, shall be housed and managed in a manner

that provides for their safety and security.” (Id. at 3).

At booking, because of Johnson’s physical

impairment, as well as security risks associated with

his brace, the Jail’s booking specialist Kelly Easterling

classified Johnson as a “medical separation” inmate,

which required that he be kept in a single-man cell

pod 23 hours a day. Johnson’s classification was documented in an Incident Report dated December 20,

2017, (Doc. No. 143-7), that was reviewed and initialed

by Rhoades and VandenBosch. (Doc. No. 158 ¶ 10).

On April 12, 2018, Johnson was sentenced for a

probation violation, along with a felony guilty plea.

(Doc. No. 140 ¶ 34). He remained in medical separation

for fifteen months from December 19, 2017 until

March 20, 2019. (Doc. No. 158 ¶ 13). During that

period of time, Johnson received approximately one

hour daily of recreation time, during which he would

socialize with inmates, attend to hygiene needs, send

messages to prison staff, phone and text family, and

deal with any other personal matters. (Doc. No. 140

¶¶ 36–38, 43; see also Doc. No. 158 ¶ 11). The Jail

also permitted Johnson outdoor recreation. (Doc. No.

140 ¶ 135). According to Johnson, despite these

privileges, he did not have “the ability to attend

group classes,” attend “religious services,” or “hold a

job.” (Id. ¶¶ 136–38, 145, 151). However, during his

Jail intake, he represented that he did not want to

take educational or group classes, (id. ¶ 143), and

while in custody, he never made any request for a job

assignment or permission to attend religious services.

(Id. ¶¶ 152, 154).

App.16a

The Policy specifically tells inmates that they

may challenge a housing classification by “using the

grievance procedure.” (Doc. No. 147-8 at 3). Johnson

admits that he knew this and admits that he never

filed a grievance about his housing classification.

(Doc. No. 158 ¶ 12; see also Doc. No. 140 ¶¶ 104, 105,

119, 123, 168, 228). He explains that an unidentified

Jail employee allegedly threatened him with discipline

if he filed a grievance. (Doc. No. 140 ¶¶ 121). On March

2, 2018, Johnson asked a nurse about transferring to

the general population. (Id. ¶ 112). The nurse told

him to schedule an appointment with a doctor, but

he never did. (Id. ¶¶ 69, 110–13, 117).

On March 20, 2019, due to a roof leak and

Johnson’s good disciplinary record, the Jail moved

Johnson from medical separation into a dormitory

pod with other medical separation inmates. (Id. ¶¶ 124,

125, 127–30; see also Doc. No. 158 ¶¶ 14, 16). There,

Johnson was allowed to recreate and socialize more

freely, and he did so until his release on June 13,

2019. (Doc. No. 140 ¶¶ 2, 132).

II. Legal Standard

Summary judgment is appropriate only where

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). “A genuine dispute of

material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.’” Griffith v. Franklin Cty., 975 F.3d 554, 566

(6th Cir. 2020) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). “The party bringing

the summary judgment motion has the initial burden

of informing the Court of the basis for its motion and

App.17a

identifying portions of the record that demonstrate

the absence of a genuine dispute over material facts.”

Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003)

(citation omitted). “The moving party may satisfy this

burden by presenting affirmative evidence that negates

an element of the non-moving party’s claim or by

demonstrating an absence of evidence to support the

nonmoving party’s case.” Id. (citation and internal

quotation marks omitted).

In deciding a motion for summary judgment, the

Court must review all the evidence, facts, and

inferences in the light most favorable to the party

opposing the motion. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation

omitted). The Court does not, however, weigh the

evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson, 477 U.S. at

249. The mere existence of a scintilla of evidence in

support of the non-moving party’s position will be insufficient to survive summary judgment; rather, there

must be evidence on which a trier of fact could reasonably find for the non-moving party. Rodgers, 344

F.3d at 595.

III. Discussion

Defendants seek summary judgment on all claims

because they are untimely or barred under the qualified

immunity doctrine. As an initial matter, the Court

will grant Long’s motion because Johnson failed to

file a response in opposition, L.R. 56.01(a), and because the Court finds it is otherwise well-taken. See

Haddad v. Sec’y, U.S. Dept. of Homeland Sec., 610 F.

App’x 567, 568–69 (6th Cir. 2015).

App.18a

A. Timeliness of Section 1983 Claims

Section 1983 provides “a cause of action against

any person who, under color of state law, deprives an

individual of any right, privilege, or immunity secured

by the Constitution and federal law.” McKnight v.

Rees, 88 F.3d 417, 419 (6th Cir. 1996). The applicable

statute of limitations is the “state statute of limitations

applicable to personal injury actions under the law of

the state in which the § 1983 claims arises.” Eidson

v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634

(6th Cir. 2007). The parties agree that, in Tennessee,

the relevant statute of limitations period is one year.

(Doc. Nos. 113 at 12; 149 at 11); see also Johnson v.

Memphis Light Gas & Water Div., 777 F.3d 838, 843

(6th Cir. 2015).

Generally, “[i]n determining when the cause of

action accrues in § 1983 cases, [the Court] look[s] to

the event that should have alerted the typical lay

person to protect his or her rights.” Trzebuckowski v.

City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003);

see also Kuhnle Bros., Inc. v. Cty. Of Geauga, 103 F.3d

516, 520 (6th Cir. 1997) (internal quotations and

citations omitted). If, however, the plaintiff challenges

events that occurred outside the limitations period,

then the plaintiff may use a continuing violation

theory to save the claim. See Eidson, 510 F.3d at 634;

Nat’l Parks Conservation Ass’n v. TVA, 480 F.3d 410,

416–17 (6th Cir. 2007) (collecting cases).

The continuing violation theory requires Johnson

to satisfy three requirements. “First the defendants’

wrongful conduct must continue after the precipitating

event that began the pattern . . . . Second, injury to

[Johnson] must continue to accrue after that event.

Finally, further injury to [Johnson] must have been

App.19a

avoidable if the defendants had at any time ceased

their wrongful conduct.” Eidson, 510 F.3d at 634; see

also Tolbert v. Ohio DOT, 172 F.3d 934, 940 (6th Cir.

1999). The first requirement necessitates that Johnson

identify a discrete, unlawful act or acts occurring

within and outside of the limitations period. Tolbert,

172 F.3d at 940. An act is discrete if it is an “easy to

identify” event where the plaintiff: (1) was denied or

refused a request by defendants; (2) suffered a distinct

harm; or (3) had an ongoing adverse event reaffirmed

by defendants. AMTRAK v. Morgan, 536 U.S. 101,

114 (2002); see also Goldsmith v. Sharrett, 614 F.

App’x 824, 828–29 (6th Cir. 2015). If a plaintiff

cannot identify specific discrete acts or events within

the limitations period, then the continuing violation

theory does not apply. Wallace v. Coffee Cty., No.

4:18-cv-25, 2020 WL 2946064, at *5 (E.D. Tenn. June

3, 2020) (finding Jail staff’s refusal of inmate’s requests

to clean bedsheets or showers to be discrete but that

the continuing violation theory did not apply because

no such acts were identified within the limitations

period); Baker v. Mich. Dep’t of Corr., No. 1:13-cv-284

2013, U.S. Dist. LEXIS 74287, at *17 (W.D. Mich.

May 28, 2013) (rejecting continuing violation theory

where inmate identified no wrongful conduct by Jail

staff within the limitations period). Neither passive

inaction nor the “continual ill effects from an original

violation” constitute discrete, unlawful acts that would

otherwise rescue a plaintiff’s claims. Eidson, 510 F.3d

at 635; Bruce v. Correctional Medical Services, Inc.,

389 F. App’x 462, 463 (6th Cir. 2010) (noting passive

inaction is insufficient to support a continuing violation theory); see also Durham v. Mohr, No. 2:14-cv581, 2015 U.S. Dist. LEXIS 119963, at *15 (S.D. Ohio

Sept. 9, 2015) (same).

App.20a

These principles were applied by the Sixth Circuit

in Eidson. There, the Tennessee Department of

Children’s Services removed Ronald Eidson’s children

from his custody on November 18, 2003 due to false

sexual assault allegations. 510 F.3d at 633. On October 22, 2004, after the allegations were recanted, the

Department returned custody to Eidson. Id. at 634.

Over a year later, on October 24, 2005, Eidson sued

the Department under § 1983 for violations of his

Fourteenth Amendment rights. Id. Eidson conceded

that the statute of limitations for his claims was one

year and that the precipitating event—the initial

November 2003 removal of his children—occurred

outside that period. Id. at 635. Nonetheless, he

argued that the continuing violation theory saved his

case because of the Department’s “continuing wrongful

conduct” of withholding his children “from the date of

the initial removal through” their eventual return.

Id. The Sixth Circuit rejected Eidson’s argument.

The Court’s reasoning focused on the Department’s

initial decision to revoke Eidson’s custody. After that

event, the Department did not engage in any additional,

“affirmative” conduct implicating “any deprivation of

liberty without due process.” Id. at 637.

Likewise, here, Johnson’s claims all center around

the legality of his initial housing classification on

December 19, 2017. In fact, Johnson refers to his

housing classification–which he calls “23:1 isolation/

solitary confinement”–no fewer than 209 times in

both the Complaint or Amended Complaint. By way

of example, the first paragraph of the Complaint and

Amended Complaint alleges that Defendants violated

Johnson’s Eighth and Fourteenth Amendment rights

by placing him in “23:1 isolation/solitary confinement

App.21a

. . . [u]pon his entry” into the Jail and keeping him

there for “fifteen months.” (Compl. at 1; see also Am.

Compl. at 1). Johnson further asserts that Defendants

had no legal, “valid penological reason” for holding

him in that housing classification following his initial

placement. (Compl. ¶¶ 52–53, Am. Compl. ¶¶ 52–53).

He then alleges that Defendants were each aware of,

and responsible for, his initial placement into 23:1

confinement. (Compl. ¶¶ 89–118; Am. Compl. ¶¶ 90–

125). That Johnson was placed and kept in 23:1

confinement on medical separation housing is the

heart and soul of his case.

The Complaint challenging Johnson’s housing

classification was filed on December 26, 2019, more

than two years after the Jail made the decision to

assign him to medical separation. This lawsuit is

clearly time-barred unless Johnson can present admissible evidence from which a jury can find that his

§ 1983 claims arise from a continuing violation. The

burden of proof is on Johnson to establish his continuing

violation theory. Eidson, 510 F.3d at 635; Tolbert,

172 F.3d at 940. He fails to do so on summary judgment because the only discrete act he relies upon is

the Jail’s decision on December 19, 2017 to place him

in medical separation. (Compl. ¶¶ 42, 44, 53, 88,

104–08; Am. Compl. ¶¶ 42, 44, 54, 88, 108–12). Indeed,

each of Johnson’s § 1983 claims flow directly back to

that initial placement decision. There is no evidence

or allegations that the Jail made any new housing

decision or reaffirmed that decision after December

19, 2017 until Johnson was moved to a dormitory pod

on March 20, 2019. (Doc. No. 158 ¶ 16).

Johnson argues that Defendants knew of his

longstanding desire to leave medical separation and

App.22a

refused to heed his requests. (Doc. No. 151 at 16). He

also asserts that Defendants each held positions of

authority that required them to act, and that their

failure to do so constituted wrongful conduct within

the limitations period. These arguments fail legally

and factually. First, Johnson’s undisputed avenue to

challenge his housing assignment was to file a

grievance. His hope, desire, or prayer is irrelevant.

Second, Johnson fails to present evidence that any of

the Defendants unilaterally or together had authority

to change his housing assignment without a grievance

by him. Third, there is no evidence that the Jail revisited his initial housing assignment after December

19, 2017.

Johnson’s attempt to create genuine disputes of

material fact by recycling objections across dozens of

asserted undisputed facts about Defendants’ conduct

are without merit. The Court will highlight two such

responses to show why. First, in response to Defendants’ interaction with him, Johnson used the following

form response:

Statement of Undisputed Fact No. 267:

Neither Plaintiff nor his family ever spoke

to Long, Rhoades, Dobbins, or VandenBosch

...:

Response: DISPUTED as stated. The Duties

of the Sheriff included the running of the

Williamson County Jail, including ensuring

the safety and security of inmates in its

care. (Compare Ex. 40, Long Dep. 39:4–11

with Ex. 41, Rhoades Dep. 89:6–10). Further, Defendant Rhoades reviewed and

signed each incident report sending Mr.

Johnson into medical separation and confine-

App.23a

ment for more than 23 hours, on average,

per day in solitude with no outdoor time

and no meaningful review with respect

to being released from those conditions.

(Ex. 41, Rhoades Dep. 103:8–18; Ex. 3, Jail

Incident Report 7/14/16; Ex. 5, Jail Incident

Report 10/1/16; Ex. 6, Jail Incident Report

12/6/17; Ex. 7, Jail Incident Report 12/19/17).

(Doc. No. 140 ¶ 267; see also id. ¶¶ 234–41, 246–49,

268, 270–71, 274, 276, 278–81).

Second, in response to whether Defendants were

responsible for placing him in medical separation or

had knowledge of his conditions of confinement,

Johnson used the following, recurrent objection:

Statement of Undisputed Fact No. 311:

[Defendants are] not responsible for reviewing

and approving the placement of inmates on

medical separation, although an inmate

could always write a request or grievance to

have that status revised. . . . Dobbins was

not aware whether Plaintiff attended classes,

participated in religious services, or held a

job while in the Jail. (Dobbins Depo., p. 112,

lines 16–24).

Response: DISPUTED as stated. All housing

at Williamson County Jail that was not general population was 23 and 1 confinement.

(Ex. 21, Youker Dep. 137:18–25). Defendant

[Dobbins, Rhoades, VandenBosch, or Youker]

was [in a position of authority] of the

Williamson County Jail. (Ex. 13, VndenBosch

[sic] Dep. 97:4–9). During this time, Mr.

Johnson was held in confinement for more

App.24a

than 23 hours, on average, per day in solitude

with no outdoor time and no meaningful

review with respect to being released from

those conditions. (Ex. 21, Youker Dep. 137:18–

25; Ex. 3, Jail Incident Report 7/14/16; Ex. 5

Jail Incident Report 10/1/16; Ex. 6, Jail

Incident Report 12/6/17; Ex. 7, Jail Incident

Report 12/19/17). Defendant VandenBosch

reviewed the reports and passed to Defendant Dobbins. (Ex. 13, VndenBosch [sic] Dep.

97:4–9).

(Id. ¶ 282; see also id. ¶¶ 283, 287–89, 304–07, 311).1

These objections hardly create disputed issues of fact

because they are not responsive, violating the Federal

Rules of Civil Procedure and Local Rules of this

Court. See Fed. R. Civ. P. 56(c), (e); L.R. 56.01(c) (noting

that a party must demonstrate that the stated fact is

disputed with support by a specific, responsive citation

to the record). Where a party “fails to properly address

another party’s assertion of fact,” the Court may

“consider the fact undisputed for purposes of the

motion.” Fed. R. Civ. P. 56(e)(2); see also Franklin

Am. Mortg. Co. v. Univ. Nat’l Bank of Lawrence, 910

F.3d 270, 281 (6th Cir. 2018) (affirming the district

court’s grant of summary judgment based upon failure to “directly address” factual assertions); Sasser v.

ABF Freight Sys., 219 F.Supp.3d 701, 705 (M.D. Tenn.

2016) (failure to address factual assertions deems

1 Johnson repeats similar, canned responses throughout Defendants’ statement of undisputed facts. (See Doc. No. 140 ¶¶ 7–8,

12, 17–18, 23, 26–29, 32, 39–43, 45–61, 64, 66–72, 74–77, 85–

88, 89–93, 98–99, 102–105, 108–114, 117–121, 127–131, 135–

138, 140–41, 147–51, 154–57, 162–64, 167–79, 194–96, 198–99,

205–15, 217, 220, 222–25, 227, 313–14).

App.25a

those facts undisputed for purposes of summary

judgment).

Johnson’s reliance on three incident reports

dated July 14, 2016, October 1, 2016, and December

6, 2017 are of no material importance here. First,

each are outside the limitations period. Second, each

were created by Jail staff not Johnson. Third, none

identify a discrete event or act by the Jail pertaining

to his housing after December 26, 2018. Fourth, none

constitute a grievance about his housing classification.

Turning to each defendant, there is no admissible

evidence they engaged in any action to save Johnson’s

1983 claims on a continuing violation theory. Johnson

fails to identify any discrete act by any Defendant

within the limitations period that comes close to a

refusal or denial reaffirming his initial placement

into medical separation. AMTRAK, 536 U.S. at 114;

Goldsmith, 614 F. App’x at 828–29. Instead, at every

phase of his incarceration, Johnson retained the

burden to follow the Jail’s grievance procedure in

order to request review of his housing classification.

(Doc. No. 147-8 at 3). He knew how to file a grievance

and could have submitted one at any time; however,

he chose not to do so. (Doc. No. 140 ¶¶ 106, 169, 170,

311). Johnson argues that he was stonewalled not by

any Defendant but by an unidentified Jail staffer

who threatened him with discipline due to his repeated

requests about personal matters. (Id. ¶ 24). But this

testimony is inadmissible hearsay. See Fed. R. Evid.

801. Having reviewed the record in the light most

favorable to Johnson, no reasonable juror could conclude

that any Defendant engaged in any material conduct

within the limitations period. Johnson’s § 1983 claims

App.26a

against each Defendant are time-barred and must be

dismissed.

Dobbins

As Jail Commander and Captain of the detention

division, Dobbins’ responsibilities primarily involved

budgeting and technology. (Id. ¶ 284). He never

interacted with Johnson. Neither did Johnson’s family

contact him about any matter. (Id. ¶ 267). Indeed,

Johnson admitted that he would not know Dobbins if

he saw him. (Id. ¶ 289). Critically, Dobbins was not

responsible for placing Johnson in medical separation

housing. (Id. ¶ 276).

Despite these undisputed facts, Johnson argues

that Dobbins acted within the limitations period because he: (1) reviewed the December 19, 2017 incident

report following his initial placement into medical

separation; and (2) continually “ratified, implicitly

authorized, approved, and knowingly acquiesced to

[his] placement” after December 26, 2018 as Jail

Commander throughout Johnson’s incarceration. (Doc.

No. 149 at 11–12). Even if true, these allegations fall

short of an identifiable, discrete act by Dobbins. At

best, Johnson suggests that Dobbins implicitly approved

his placement into medical separation by virtue of his

position as Jail Commander. But such an argument

amounts to the type of passive inaction or continual

ill effects of the initial decision, which is insufficient

to establish a continuing violation. See Moss v.

Columbus Bd. of Educ., 98 F. App’x 393, 396 (6th Cir.

2004) (noting that a “continued violation requires

continued action and not simply continuing harm or

‘passive inaction’”); Eidson, 510 F.3d at 637.

App.27a

Having reviewed the record in the light most

favorable to Johnson, no reasonable juror could conclude

that Dobbins engaged in any wrongful conduct within

the limitations period. The Court concludes that

Johnson’s § 1983 claim against Dobbins are timebarred.

Rhoades

As Chief Deputy, Rhoades assisted the sheriff with

office operations and acted in the sheriff’s capacity

when needed. (Doc. No. 140 ¶ 234). He relied on Jail

staff to run the Jail, including the placement of

inmates into housing classifications. (Id. ¶¶ 235, 239).

Rhoades did not know any particular inmates’ housing

classification or have substantive input, including

that of Johnson. (Id. ¶ 239). He visited the Jail, at

most, on a monthly basis to review the status of the

building as a whole, rather than particular cell pods

or inmates. (Id. ¶ 236). Johnson never spoke to Rhoades

about any matter. (Id. ¶ 267).

Johnson makes the same arguments against

Rhoades regarding his review of the initial housing

placement and his implicit authorization and

ratification of same as he did for Dobbins. (Doc. No.

150 at 21), which fail for the same reasons as they

did for Dobbins.

Having reviewed the record in the light most

favorable to Johnson, no reasonable juror could conclude

that Rhoades engaged in any wrongful conduct within

the limitations period. The Court concludes that

Johnson’s § 1983 claims against Rhoades are timebarred.

App.28a

VandenBosch

VandenBosch left his employment with the Jail

on January 3, 2019, (Doc. No. 140 ¶ 302), so Johnson

must identify conduct between December 26, 2018

and January 3, 2019 in order to establish a continuing

violation. He does not do so. VandenBosch never

interacted with Johnson or spoke with deputies about

him. (Id. ¶ 304). Johnson admits that he only sued

VandenBosch because “[h]e was in charge.” (Doc. No.

140 ¶ 303). Johnson filed a grievance for review

throughout his incarceration. (Id. ¶ 308). Had he filed

a grievance, VandenBosch would have seen the request.

(Id.). However, Johnson never filed one, (Id. ¶ 105) so

that never happened.

Johnson nonetheless contends that on or after

December 26, 2018, VandenBosch had responsibility

for overseeing “floor operations, including where people

are housed” and performed “routine reviews of inmates

in administrative segregation every 90 days, which

included going into Johnson’s cell pod.” (Doc. No. 151

at 16). Because of these actions, Johnson believes

that VandenBosch could have, but consciously refused,

to review his housing placement, thereby extending

accrual of his claims. (Id.). Yet, even if true, this would

amount to a failure to act, which is not a discrete

affirmative act. Having reviewed the summary judgment record in the light most favorable to Johnson,

no reasonable juror could conclude that VandenBosch

engaged in any wrongful conduct during the nine

days he remained employed by the Jail within the

limitations period. Accordingly, the Court concludes

that Johnson’s § 1983 claims against VandenBosch

are time-barred.

App.29a

Youker

Youker became Staff Sergeant in the detention

division on January 1, 2018 and was promoted to

Lieutenant on January 28, 2019. As Staff Sergeant,

his role included performing rounds and overseeing

floor operations. However, he was not involved in

Johnson’s initial placement into medical separation

and did not review the December 19, 2017 incident

report. (Doc. No. 140 ¶¶ 292, 311–14). Although Youker

does not dispute that he spoke with Johnson generally

about his housing status, Johnson admits that he

does not remember what Youker said, when he said

it, or what was said in response. (Id. ¶ 298). Youker

reviewed grievances, but not one on Johnson’s housing

classification. (Id. ¶ 105).

Johnson has not identified admissible evidence

establishing that Youker engaged in any “easy to

identify” act of denial or refusal regarding Johnson’s

housing classification during the limitations period.

AMTRAK, 536 U.S. at 114; Goldsmith, 614 F. App’x

at 828–29. Having reviewed the summary judgment

record in the light most favorable to Johnson, no reasonable juror could conclude that Youker engaged in

any wrongful conduct on or after December 26, 2018.

Accordingly, the Court concludes that Johnson’s § 1983

claims against Youker are time-barred.

B. Qualified Immunity

Even were Johnson’s § 1983 claims timely, Defendants would be entitled to qualified immunity. Public

officials, including jail officers, are entitled to qualified immunity from a suit for civil damages if either

the official’s conduct did not violate a constitutional

right or if that right was not clearly established at

App.30a

the time of the conduct. Godawa v. Byrd, 798 F.3d

457, 462–63 (6th Cir. 2015) (citing Saucier v. Katz,

533 U.S. 194, 201–02 (2001)). Courts may choose the

order to analyze these questions, and if they answer

either one in the negative, qualified immunity applies.

See Hernandez v. Boles, 949 F.3d 251, 259 (6th Cir.

2020) (citing Goodwin v. City of Painesville, 781 F.3d

314, 320–21 (6th Cir. 2015)).

Eighth Amendment

Johnson asserts that Defendants subjected him

to conditions of confinement that violated the Eighth

Amendment in three ways: (1) by placing him in separated housing; (2) by limiting his recreation time;

and (3) by depriving him of educational classes, religious programming, and work. (Doc. No. 151 at 9–10;

see also Doc. No. 140 ¶¶ 136–38, 145, 151). It is

axiomatic that the Eighth Amendment prohibits the

infliction of “cruel and unusual punishments.” U.S.

Const. amend. VIII; Whitley v. Albers, 475 U.S. 312,

318–19 (1986). These protections extend to an inmate’s

conditions of confinement. Farmer v. Brennan, 511

U.S. 825, 832 (1994) (interpreting the Eighth Amendment as imposing an affirmative duty on prison

officials to “provide humane conditions of confinement”).

An Eighth Amendment violation occurs if a prison

official acts with deliberate indifference to a prisoner’s

health or safety regarding his conditions of confinement.

See Helling v. McKinney, 509 U.S. 25, 35 (1993)

(applying deliberate indifference standard to conditions

of confinement claims); see also Mingus v. Butler, 591

F.3d 474, 479–80 (6th Cir. 2010).

To show an Eighth Amendment violation, Johnson

must satisfy the two-part inquiry fashioned by the

App.31a

Supreme Court in Farmer. First, he must demonstrate

that the conditions of confinement are “objectively,

sufficiently serious” to a layperson and resulted in

the denial of the “minimal civilized measure of life’s

necessitates,” including food, clothing, shelter, sanitation, medical care, or personal safety. Farmer, 511

U.S. at 834; see also Rhodes v. Chapman, 452 U.S. 337,

347 (1981); Peoples v. Bauman, No. 16-2096, 2017

U.S. App. LEXIS 27528, at 16–17 (6th Cir. Sept. 5,

2017). Under the objective prong, courts have found

that an inmate must show that conditions of confinement are serious when viewed within the context of

“contemporary standards of decency.” Helling, 509

U.S. at 36. Second, Johnson must show that Defendants acted with a “sufficiently culpable state of mind.”

Farmer, 511 U.S. at 833; see also Rhodes, 452 U.S. at

347. This means that Johnson must show that

Defendants “kn[ew] of and disregard[ed] an excessive

risk to inmate health and safety; [they] must both be

aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists,

and [they] must also draw the inference.” Farmer,

511 U.S. at 837.

Fourteenth Amendment

Johnson also asserts Defendants infringed on his

procedural Fourteenth Amendment rights by subjecting

him to medical separation without any periodic review.

(Doc. No. 149 at 10). The Fourteenth Amendment

prohibits a state from “depriv[ing] any person of life,

liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1; see also Bazzetta v. McGinnis,

430 F.3d 795, 801 (6th Cir. 2005). Courts employ a

two-step inquiry when analyzing such claims: “the

first asks whether there exists a liberty or property

App.32a

interest which has been interfered with by the State.”

Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460

(1989). An inmate retains a liberty interest, “guarded

by due process” for “state-imposed prison discipline

that rises to the level of an ‘atypical and significant

hardship on the inmate’ in relation to “the ordinary

incidents of prison life.” Harden-Bey v. Rutter, 524 F.3d

789, 793, 795 (6th Cir. 2008). The second phase of

the inquiry asks whether the “procedures attendant

upon” the interference of an inmate’s liberty interest

“were constitutionally sufficient.” Ky. Dep’t of Corrs.,

490 U.S. at 460.

Supervisory Liability against Dobbins and

Rhoades

Johnson brings his § 1983 claims against Dobbins

and Rhoades under a supervisory liability theory. “In

order to succeed on a supervisory liability claim,”

Johnson must show that “a supervisory official at least

implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending

subordinate” through the execution of his job functions.

Garza v. Lansing Sch. Dist., 972 F.3d 853, 865 (6th

Cir. 2020); see also Peatross v. City of Memphis, 818

F.3d 233, 241 (6th Cir. 2016).

But supervisory liability has “sharp limits,” and

will “not attach for ‘a mere failure to act.’” Crawford

v. Tilley, 15 F.4th 752, 761 (6th Cir. 2021). Rather,

Johnson must “show that the supervisors somehow

encouraged or condoned the actions of their inferiors,”

Gregory v. City of Louisville, 444 F.3d 725, 751 (6th

Cir. 2006), through personal involvement and “active

unconstitutional behavior.” Peatross, 818 F.3d at 241;

see also Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3

App.33a

(6th Cir. 2005). Put another way, Johnson’s section

1983 claim “must fail against a supervisory official

unless the supervisor encouraged the specific incident

of misconduct or in some other way directly participated in it.” Cardinal v. Metrish, 564 F.3d 794, 802–

03 (6th Cir. 2009).

Dobbins is entitled to qualified immunity because

Johnson cannot show that he personally engaged in

any conduct that violated a constitutional right under

a supervisory liability theory. Godawa, 798 F.3d at

462–63 (citing Saucier, 533 U.S. at 201–02). Specifically,

there is a void of evidence that Dobbins engaged in

actions that supported a finding of deliberate indifference or that he interfered with Johnson’s ability to

file a grievance on his housing classification. As Jail

Commander and Captain of the detention division,

he did not have any significant role in day-to-day

operations of the Jail and would not interact with

inmates. Indeed, Dobbins never interacted with

Johnson during his incarceration. Johnson even admits

that he would not know Dobbins if he saw him. (Id.

¶ 289). Dobbins was not responsible for placing Johnson

in medical separation housing, nor was he aware of

the conditions of Johnson’s confinement. (Id. ¶ 276).

Johnson’s argument tries to attach liability on

Dobbins because he “implicitly authorized, approved,

[and] knowingly acquiesced in the unconstitutional

conduct of” others who kept him in medical separation

without penological justification or periodic review.

This argument fails as a matter of law because it

relies on a “failure to act,” which is legally unsupported.

Crawford, 15 F.4th at 761. There is simply no admissible evidence, direct or indirect, that supports a conclusion that Dobbins engaged in “active unconstitutional

App.34a

behavior.” Peatross, 818 F.3d at 241; see also Miller,

408 F.3d at 817 n.3. Having reviewed the record in

the light most favorable to Johnson, no reasonable

juror could conclude that Dobbins personally engaged

in any unconstitutional conduct under a supervisory

liability theory. Accordingly, the Court concludes that

Dobbins is entitled to qualified immunity.

Rhoades is also entitled to qualified immunity

because Johnson fails to identify any personal, unconstitutional conduct by him under a supervisory

liability theory. There is no admissible evidence that

Rhoades did anything that comes close to deliberate

indifference to Johnson’s needs or that he interfered

with Johnson’s ability to obtain a review of his housing

classification. Rhoades only assisted the sheriff with

office operations and acted in the sheriff’s capacity

when he was unavailable. He did not know Johnson’s

housing classification or conditions of confinement.

He visited the Jail, at most, on a monthly basis and

there is no evidence that Johnson asked Rhoades for

assistance or Rhoades did anything involving Johnson.

Having reviewed the record in the light most

favorable to Johnson, no reasonable juror could conclude

that Rhoades personally engaged in any unconstitutional conduct under a supervisory liability theory.

Godawa, 798 F.3d at 462–63 (citing Saucier, 533 U.S.

at 201–02). The Court concludes that Rhoades is entitled

to qualified immunity.

Failure to Intervene against VandenBosch and

Youker

Johnson’s § 1983 claims against VandenBosch and

Youker proceed under a failure to intervene theory.

To establish a failure to intervene, Johnson must

App.35a

“demonstrate that [VandenBosch and Youker] ‘(1)

observed or had reason to know that [the constitutional harm] would be or was [taking place], and (2)

had both the opportunity and means to prevent the

harm from occurring.’” Holloran v. Duncan, 92

F.Supp.3d 774, 793 (W.D. Tenn. 2015) (citing Sheffey

v. City of Covington, 564 F. App’x 783, 793 (6th Cir.

2014)). Johnson must also show that VandenBosch

and Youker were personally involved in any alleged

constitutional violation. See Miller, 408 F.3d at 817

n.3. Whether a failure to intervene theory is available

to Johnson is doubtful because several district courts

have concluded that “prison officials do not clearly

have a duty to intervene beyond the context of excessive force claims.” Glover v. Rivas, No. 2:19-cv-13406,

2021 U.S. Dist. LEXIS 47786, at *20 (E.D. Mich. Mar.

15, 2021) (collecting cases); see also Dittmer v. Corizon

Health, No. 20-cv-12148, 2020 WL 6544784, at *21

(E.D. Mich. Nov. 6, 2020) (noting that “the Sixth

Circuit has never extended the failure to intervene to

medical treatment” in the context of an Eighth

Amendment deliberate indifference claim.

Regardless, VandenBosch is entitled to qualified

immunity because Johnson cannot show that he

personally engaged in any conduct that violated a

constitutional right under a failure to intervene

theory. VandenBosch was not involved in Johnson’s

placement into medical separation on December 19,

2017 and had no knowledge that Johnson wanted to

change. Moreover, even if VandenBosch had such

knowledge, he had no authority to do so. He did not

speak with Johnson about his conditions of confinement. (Id. ¶¶ 267, 304). He did not speak with other

deputies about Johnson. (Id.). Johnson even admits

App.36a

that VandenBosch never mistreated him. (Id. ¶ 51).

Based on these undisputed facts, no reasonable juror

could conclude that VandenBosch knew any unconstitutional harm would be or was taking place, or that

he failed to stop it. Accordingly, the Court concludes

that VandenBosch is entitled to qualified immunity.

Godawa, 798 F.3d at 462–63 (citing Saucier, 533 U.S.

at 201–02).

Youker is similarly entitled to qualified immunity

because Johnson cannot show that he personally

engaged in any conduct that violated a constitutional

right under a failure to intervene theory. Youker was

not involved in Johnson’s initial placement into medical

separation and did not review the December 19, 2017

incident report. (Doc. No. 140 ¶¶ 292, 311–14). Although

Youker does not dispute that he spoke with Johnson

generally about his housing status, Johnson testified

that he does not remember what he said, when he

said it, or what Youker said in response. (Id. ¶ 298).

Johnson even testified that he got along well with

Youker and that he did not have any complaints

about how Youker treated him. (Id. ¶ 298). Based on

these undisputed facts, no reasonable juror could

conclude that Youker knew any unconstitutional harm

would be or was taking place, or that he failed to stop

it. Accordingly, the Court concludes that Youker is

entitled to qualified immunity. Godawa, 798 F.3d at

462–63 (citing Saucier, 533 U.S. at 201–02).

C. ADA Claims

Johnson’s ADA official capacity claim against

Defendants fails as a matter of law. It is well-settled

that “individuals sued in their official capacities stand

in the shoes of the entity they represent.” Alkire v.

App.37a

Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing Kentucky

v. Graham, 473 U.S. 159, 165 (1985)). Johnson’s ADA

claim is therefore actually a claim against the Jail

itself. See Monell v. New York City Dep’t of Soc. Servs.,

436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity

suits . . . represent only another way of pleading an

action against an entity of which an officer is an

agent.”). Johnson argues that the Jail failed to provide

him a reasonable accommodation moving him out of

23-1 confinement. (Doc. No. 152 at 8; see also Am.

Compl. ¶¶ 213–19).

To establish a prima facie case of disability discrimination under the ADA for failure to accommodate

a disability, Johnson must show that: (1) he is disabled

within the meaning of the ADA; (2) he is otherwise

qualified for the service, with or without a reasonable accommodation; (3) the defendants knew or had

reason to know of his disability; (4) he requested an

accommodation; and (5) the defendants failed to provide the necessary accommodation. Mosby-Meacham

v. Memphis Light, Gas & Water Div., 883 F.3d 595,

603 (6th Cir. 2018).

Even assuming Johnson could establish the first

three prima facie elements, he fails at the fourth. If a

plaintiff requires a reasonable accommodation, he is

“saddled with the burden of proposing an accommodation and proving that it is reasonable.” Jakubowski

v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir. 2010);

see also Shaikh v. Lincoln Mem’l Univ., 608 F. App’x

349, 353 (6th Cir. 2015) (noting that a plaintiff bears

the burden of proposing a reasonable accommodation).

Put another way, under the ADA, “[p]rison officials

need not anticipate an inmate’s unarticulated need

for accommodation or to offer an accommodation sua

App.38a

sponte; the inmate must . . . request an accommodation.”

Bolz v. Collier, No. 1:16-cv-503, 2019 U.S. Dist. LEXIS

87859, at *13–14 (E.D. Tex. Apr. 17, 2019).

Here, there is no genuine dispute of material fact

that Johnson never requested a reasonable accommodation or proposed an accommodation during his incarceration. (Doc. No. 140 ¶ 206). Johnson claims that

he verbally campaigned to leave medical separation,

(id. ¶ 104); however, he also never filed a formal

grievance to request his desired accommodation–a

new housing classification. (Doc. No. 143-1 at 182:24–

183:7; see also Doc. No. 147-8 at 3). It is also undisputed

that Johnson knew how to submit messages to medical staff regarding any health needs, (Doc. No. 14333), and kiosk requests to the Jail community regarding any other personal matters. (Doc. No. 140 ¶ 123).

While Johnson sent messages to Jail staff nearly

every month during his time in medical separation,

he never filed a request of any kind for a reasonable

accommodation. The closest Johnson came to such a

request was a message to a Jail nurse regarding

clearance to the general population, (Id. ¶¶ 107–08),

and even then, such a request occurred outside the

limitations period. (See Doc. No. 147-8 at 3). Nor does

Johnson dispute that, after the nurse informed him

that he had to schedule an appointment with a doctor,

he never did so. Therefore, even after reviewing the

record evidence in the light most favorable to Johnson,

the Court concludes that no reasonable juror could find

that Johnson proposed a reasonable accommodation.

To the extent Johnson argues that Defendants

failed to provide a series of post hoc reasonable

accommodations that Johnson did not request during

his incarceration–including transfer into an open

App.39a

dormitory for sex offenders–such an argument also is

insufficient as a matter of law. A plaintiff claiming

ADA violations under a failure-to-accommodate theory

cannot rely upon after-the-fact accommodations that

were never actually proposed. Shaikh, 608 F. App’x

at 354 (rejecting after-the-fact accommodations that

were not proposed during the facts of the case).

Johnson does not point to any record evidence establishing that he requested transfer into an open pod

for sex offenders, or anywhere else, during his incarceration. And even were he to have done so, Johnson

fails to prove how such post hoc accommodations

would have been reasonable. Id.; Jakubowski, 627 F.3d

at 202; Mbawe, 751 F. App’x at 840.

Here, the undisputed record establishes that

Johnson’s reassignment to housing for sex offenders

would have fundamentally altered the safety and

security of both his and the sex offenders’ incarceration.

See Keller v. Chippewa, 860 F. App’x 381, 385 (6th

Cir. 2021). Johnson does not dispute that sex offenders

would be in danger if they comingled with other

inmates like him. (Doc. No. 140 ¶ 220). Further, his

transfer into that housing, or anywhere else, would

create a security concern due to the contents of his

brace, thereby altering the nature of the services provided by the Jail. (Id. ¶ 30). Thus, even after reviewing the record evidence in the light most favorable to

Johnson, the Court concludes that no reasonable

juror could find that Johnson’s post hoc accommodations

were reasonable.

Likewise, Johnson’s new argument that Defendants’ failed to appoint an ADA coordinator exacerbated

any violation of his rights is rejected.

App.40a

IV. Conclusion

For the foregoing reasons, Johnson’s claims are

time-barred, and Defendants are entitled to qualified

immunity. Accordingly, Defendants’ motions will be

granted.

An appropriate order will enter.

/s/ Waverly D. Crenshaw, Jr.

Chief United States District Judge