United States District Court, E.D. Kentucky, Southern Division, London
JOHN F. KENNEDY, Plaintiff,
PHILLIP SETTLES, Defendant.
RECOMMENDED DISPOSITION 
ROBERT E. WIER, Magistrate Judge.
The Court considers pro se  Plaintiff's motions for judgment on the pleadings or, alternatively, for summary judgment, on the sole remaining claim, an allegation of Eighth Amendment deliberate indifference. DE ##76, 86 (Motions). In support of the (identical) motions, Plaintiff submitted (identical) documents titled "Pro Se Judicial Notice of Adjudicative Facts." DE ##74, 84. The sole remaining Defendant, Phillip Settles, responded in opposition to both motions. DE ##80, 88 (Responses). Plaintiff replied, indicating that he intends to pursue settlement and generally complaining about Defendant's discovery responses. DE #93 (Reply).
The Court RECOMMENDS that the District Judge CONVERT Plaintiff's motion for judgment on the pleadings to a motion for summary judgment and then DENY Plaintiff's motion for summary judgment (DE ##76, 86). Judgment as a matter of law is not, on this record, appropriate. I. Relevant Factual and Procedural Background
Kennedy, an inmate currently housed at United States Penitentiary (USP) Canaan, originally sought civil rights relief under Bivens pursuant to 28 U.S.C. § 1331. DE #2 (Complaint). Judge Wilhoit later permitted him to amend the complaint to add two individuals. DE #25 (Order). Now, following resolution of two dispositive defense motions, only one Defendant, Phillip Settles, Jr., and one claim, an Eighth Amendment claim for failure to protect, remain. DE #72 (Opinion and Order) at 26.
Generally, and per the facts set forth by Judge Wilhoit, Kennedy alleges that, while confined at USP McCreary in 2009, a list of alleged government informants or "snitches, " which included Kennedy's name, circulated among inmates at the institution. Id. at 2. Prison officials ordered that all individuals identified on the list be placed in the Special Housing Unit (SHU) for protective purposes. Settles, accompanied by other officers (and former Defendants), escorted Kennedy to the SHU on September 6, 2009. Kennedy alleges that before officers placed him in Cell #114, inmate Nathan Mott, already in the cell, "announced that Kennedy was a snitch' and that he would hurt Kennedy if Kennedy was placed in a cell with him." Id. at 3. Kennedy asserts that USP McCreary staff placed him in the cell, despite knowledge of the potential danger, and that Mott assaulted him, causing head and eye injuries, a fractured finger, and an injured lip. Specifically, Kennedy alleges that Settles "ignored a known threat from another inmate, failed to protect him from physical assault by that inmate, and thereby demonstrated deliberate indifference to his safety in violation of his [Eighth Amendment] rights[.]" Id.
Kennedy now moves for judgment on the pleadings or, alternatively, for summary judgment. DE ##76, 86 (Motions). In support of the relief requests, Kennedy filed identical documents entitled "Judicial Notice of Adjudicative Facts [Rule of Evidence - Rule 201] Title 28 U.S.C.A." DE ##74, 84 (Notices). Per Movant, the documents and record entitle him to relief on the sole remaining claim against Settles. Defendant responded in opposition to both motions. DE ##80, 88 (Responses). Per Settles, the same factual dispute that prevented the Court from granting Settles's earlier dispositive motion is likewise fatal to Kennedy's motions. Id. The matter is ripe for consideration.
II. Standards of Review
Federal Rule of Civil Procure 12(c) permits a party to file for judgment on the pleadings "[a]fter the pleadings are closed-but early enough not to delay trial." Fed.R.Civ.P. 12(c). "For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.'" Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)). Accordingly, a court may only grant the motion when "no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.'" Id. (quoting JPMorgan Chase Bank, N.A., 510 F.3d at 582).
Courts may not consider "matters outside of the pleadings" when evaluating Rule a 12(c) motion. Fed.R.Civ.P. 12(d). "If... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Id. Additionally, a court must permit the parties "a reasonable opportunity to present all the material that is pertinent to the motion." Id.
Correspondingly, pursuant to Federal Rule of Civil Procedure 56, a court should grant 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). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., 106 S.Ct. at 1356; Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving moving party to set forth "the basis for its motion, and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' any, ' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 at 578 at 414 ("The party moving for summary judgment bears the initial burden of showing that there there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, However, "Rule 56(c) mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and and on which that party will bear the burden of proof at trial." Celotex Corp. at 106 S.Ct. at 2552. If 2552. If the movant bears the burden of persuasion at trial, "that party must support its motion with with credible evidence-using any of the materials specified in Rule 56(c)-that would entitle it to a to a directed verdict if not controverted at trial." Id. at 2556 (citation omitted) (Brennan, J., dissenting); see also Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002) (noting that, when the movant also bears the burden of persuasion at trial, the moving party's initial summary judgment burden is "higher in that it must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve disbelieve it") (citation and internal quotation marks omitted).
A fact is "material" if the underlying substantive law identifies the fact as an essential element. Anderson, 106 S.Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec. Indus. Co., 106 S.Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.'") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp. v. FDIC, 187 F.Appx. 428, 444-45 (6th Cir. 2006).
A. The District Judge should convert Kennedy's motion for judgment on the pleadings to a motion for ...