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Brock v. Wright

United States District Court, W.D. Kentucky, Owensboro

March 1, 2017

DOMINIQUE J. BROCK A/K/A AMERICO J. BROCK PLAINTIFF
v.
STEPHEN WRIGHT et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Joseph H. McKinley, Jr., Chief Judge

         Before the Court is a motion for summary judgment filed by counsel on behalf of Defendants Steven[1] Wright, Samuel[2] Wright, Karen Stammers, and Jeff Embry (DN 30). Plaintiff has responded (DN 32) to the motion. Defendants have not replied. For the reasons set forth below, the motion will be granted in part and denied in part.

         I. SUMMARY OF CLAIMS

         In his complaint, Plaintiff alleges that on or about June 2, 2014, while incarcerated at the Green River Correctional Complex (GRCC), he was involved in a physical altercation with another inmate. According to Plaintiff, because of that physical altercation, GRCC policy and procedure required that he be placed in a separate recreation cage, referred to as “Rec. Alone.” Plaintiff states that he “spent 1 day out on ‘Rec. Alone.'”

         However, according to Plaintiff, on June 4, 2014, contrary to GRCC policy and procedure, he was “Handcuffed, shackeled And forced into [a] Rec. Cage (Bullpen) with David Hicks[3] . . . And Another guy who Both just so happen to Belong to ‘white-supremisist' gang.” The events that occurred on this date are the ones about which Plaintiff complains in the present action. According to Plaintiff, cameras will show that Defendants Samuel Wright and Embry had a “[p]ersonal convo with Hicks only minutes prior to throwing [Plaintiff] into BullPen with [Defendant Hicks].” In another place in the complaint, Plaintiff states that he “observed ofc. Embry And [Defendant] Hicks . . . at hicks' door on A Lower, hAving An ‘intence conversation' only minutes prior to the Attack.” Plaintiff states that once placed in the recreation cage with these inmates, Defendant Hicks attacked him “from the Blind-side” and “pummeled” him. Plaintiff states that the attack against him was in retaliation for Plaintiff having been involved in the altercation two days earlier with another inmate who was a member of the same gang as Defendant Hicks. Plaintiff states that he was forced to fight to keep Defendant Hicks off him; he contends that he only fought with Defendant Hicks in self-defense. Plaintiff states that he sustained physical injuries as a result of the fight.

         According to Plaintiff, during the time that Defendant Hicks was attacking him, Defendants Stammers, Samuel Wright, and Embry were outside the recreation cage attempting to stop the fight by spraying Mace into the recreation cage and by yelling orders to stop. None of these Defendants, according to Plaintiff, entered the recreation cage in an attempt to stop the fight. Plaintiff states that these Defendants informed him that institutional policy prohibits correctional officers from entering the recreation cage to intervene in an inmate fight.

         According to Plaintiff, after Defendant Hicks “surrendered Ofc's steped into the gates placing [him] The victom into hAndcuffs, And Practicly drug, by Ofc. Embry, from outside Bullpen, to An inside Holding CAge, where [he] waited with hAndcuffs on, under-going several injuries, witch were later photographed And Documented for 3-4 hours streight, still in hAndcuffs.” Plaintiff describes the holding cage where he was held as a “strip-cage in SMU [Special Management Unit].” He states that he was held there until he could be seen by the “Adjustment commity, Stephen Wright.” According to Plaintiff, Defendants Samuel Wright and Stephen Wright are “Blood Brother[s].” Plaintiff states that he “wAs convicted And given the MAX Penitly. I Appealed the write-up, And filed An inst. Greivance on the Absolute malice witch contributed to my being Assault . . . .”

         After performing review of the complaint pursuant to 28 U.S.C. § 1915A, the Court allowed the following claims to proceed: (1) the Eighth Amendment excessive-force claims against Defendants Stammers, Samuel Wright, Embry, and Hicks in their individual capacities; (2) the failure-to-protect claim against Defendants Stammers, Samuel Wright, and Embry in their individual capacities; (3) the Eighth Amendment claim for deliberate indifference in placing Plaintiff in the recreation cage with Defendant Hicks against Defendants Stammers, Samuel Wright, and Embry in their individual capacities; (4) the state-law claim for assault and battery; (5) the state-law claim for negligent hiring/retention; (6) the state-law claim for intentional infliction of emotional distress; (7) the state-law claim for first-degree assault under Ky. Rev. Stat. § 508.010; (8) the state-law claim for criminal abuse under Ky. Rev. Stat. § 508.100; and (9) the state-law claim for second-degree assault under Ky. Rev. Stat. § 508.020.

         II. SUMMARY OF ARGUMENTS

         Defendants argue that Plaintiff failed to exhaust his administrative remedies as to the claims against them. Thus, Defendants contend that they are entitled to summary judgment as to all the remaining claims proceeding against them.

         Plaintiff argues that Defendants already filed a motion for summary judgment which was denied, and they should not be allowed “two bites at the same apple.” Plaintiff further argues that he was required to use the disciplinary proceedings in Kentucky Corrections Policies and Procedures (CPP) 15.6, not the grievance procedures in CPP 14.6. Plaintiff states that [d]isciplinary [p]roceedings have their own course of action when considering exhaustion of admin. [r]emedies.” Plaintiff states that the institutional write-up he received as a result of the event was sent to the warden, the final level of review for disciplinary matters. Thus, argues Plaintiff, he did exhaust his administrative remedies. Finally, he states he filed a grievance, but it was rejected as being non-grievable. Plaintiff argues that Defendants should not be able to mislead him.

         III. SUMMARY JUDGMENT STANDARD

         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). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party must meet its burden of showing that there is no genuine dispute by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith RadioCorp., 475 U.S. 574, 586 (1986). The Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. at 252. Mere speculation will not suffice to defeat a motion for summary judgment; “the mere existence of a colorable factual dispute will not defeat a properly supported motion for summary ...


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