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Sublett v. Sheets

United States District Court, W.D. Kentucky, Paducah Division

May 31, 2017


          Plaintiff Damien Sublett, pro se.

          Laura Delaney, Kaci Simmons Defendant.



         Plaintiff Damien Sublett, pro se, is a prisoner currently housed at the Western Kentucky Correctional Complex. He alleges that during a previous period of incarceration at the Kentucky State Penitentiary (KSP), Marlene Sheets, a female KSP correctional officer, inappropriately viewed his genitals while he was urinating. After Sublett filed a grievance regarding this event, he alleges Sheets retaliated by filing a disciplinary report against him for interfering with Sheets' official duties - a charge that prison officials later upheld. This suit followed. During its pendency, Sublett claims another female officer, Laura Delaney, threatened him and filed a disciplinary report against him in retaliation for his suit against Sheets. Delaney's disciplinary report, alleging Sublett was masturbating in her view, was also upheld. Sublett then added Delaney and a third defendant, KSP nurse Kaci Simmons, as defendants.

         To ultimately prevail on his retaliation claims, Sublett must prove that he engaged in protected conduct and that Defendants then subjected him to an adverse action because of that conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). Sublett alleges that both Sheets and Delaney retaliated against him by filing disciplinary reports that were ultimately sustained by the prison's Adjustment Committee. Although Sublett presents a genuine issue of material fact on the elements of protected conduct and adverse action, he brings forth no evidence that Sheets possessed a retaliatory motive in filing her report. Defendant Sheets is therefore entitled to summary judgment. However, as to Defendant Delaney, Sublett submits the sworn statements of two fellow inmates, each suggesting that Delaney did indeed retaliate against Sublett by filing a disciplinary report. His claim against Delaney must be decided by a jury.

         I. Facts and Procedural History

         In late 2015, Plaintiff Damien Sublett was a prisoner at the Kentucky State Penitentiary in Eddyville, Kentucky. He alleges that on August 3, 2015, Defendant Marlene Sheets was making her rounds on 5 cell house, where Sublett was housed. [DN 8-1 at 2.][1] Sublett had a privacy screen affixed to his cell bars that extended about four-and-a-half feet above the floor. [Id.] According to Sublett, when Sheets passed by his cell, Sublett was in the process of urinating. [Id.] When Sublett looked up, he claims Sheets was “directly and clearing” staring at his penis. [Id.] Realizing Sublett saw her looking at his genitals, Sheets began to walk away. [Id.] Sublett told Sheets her actions were a violation of the Prison Rape Elimination Act (PREA) and said he would like to speak to a supervisor. [Id.]

         Sheets' version of events differs. Via affidavit, Sheets denies that she ever looked over the privacy screen into Sublett's cell. [DN 58-2 at 2.] Rather, she states that while she was making her rounds, she caught another inmate masturbating. [Id. at 1.] When she ordered the inmate to approach the bars to be handcuffed, Sheets claims Sublett “began yelling ‘PREA, you're not supposed to look in cells, you need off the walk.'” [Id. at 1-2.] Sheets says Sublett's yelling “created a dangerous situation” because it divided her attention between Sublett and the inmate she was attempting to handcuff. [Id. at 2.]

         In any event, the parties agree that shortly thereafter, Sergeant Kerwin Walston came to talk to Sublett and asked him if he would like to file a PREA complaint. [DN 8-1 at 3; DN 58-2 at 2.] Sublett said no, but told Walston he intended to file a grievance against Sheets. [DN 8-1 at 3; DN 58-2 at 2.] Sheets admits she knew Sublett intended to file a grievance. [DN 58-2 at 2.]

         Sublett followed through and filed a grievance the next day, August 4. His grievance states that Sheets made an unannounced round and watched him urinate, violating his privacy rights. See [DN 48-3 at 2-3.] As relief, Sublett asked “[n]ot to be retaliated against for filing this grievance, i.e., false disciplinary reports, unreasonable searches, harassment . . . and to allow Mr. Sublett to exercise his right to privacy in his cell without routine observation of female staff.” [Id. at 2.]

         Sublett's grievance was rejected because Sheets filed a disciplinary report against Sublett regarding the August 3 incident, see [id. at 4], and KSP inmates are not allowed to pursue grievances regarding matters that are the subject of disciplinary reports. The parties dispute when Sheets filed her report. Sublett claims that Sheets filed it on August 5, the day after Sublett filed his grievance. [DN 8-1 at 5.] Indeed, the report states that it was submitted on “08/05/2015 at 08:19:16 PM.” [DN 48-2 at 2.] However, Sheets explains that “[d]isciplinary reports frequently take more than one day to be officially filed as each must be reviewed by a supervisor.” [DN 58-2 at 2.] She says that she filled out her report against Sublett on August 3, but it was not finalized until August 5. [Id.] Sheets' account seems to be corroborated by Captain Jeffrey Hope's notation on Sublett's grievance, stating that “[a] disciplinary report was filed on this incident on 8/3/2015.” [DN 48-3 at 2.]

         In her report, Sheets alleged that Sublett

began yelling down C/D walk on 1st floor “Prea, you're not supposed to look in cells, you need off the walk”. Inmate Sublett stopped when Sergeant Kerwin Walston asked if inmate Sublett was filing a prea on Officer Sheets. Inmate Sublett told Sgt. Walston no he wasn't but he was filing a Grievance. This Incident took place in front of several inmates and distracted me, Officer Sheets from my job duties.

[DN 48-2 at 2 (sic throughout).] After Sheets filed her report, Sublett filed a second grievance on August 14. There, Sublett alleged that Sheets filed her disciplinary report against Sublett in retaliation for his August 4 grievance against Sheets. [DN 48-3 at 6.] Like his first grievance, Sublett's August 14 grievance was rejected because the incident was already the subject of a disciplinary report. [Id. at 7.]

         The Adjustment Committee, the KSP body in charge of adjudicating discipline reports, held a hearing on September 1. It found Sublett “guilty of . . . [i]nterfering with an employee [in] the performance of [her] duty.” [DN 58-4 at 2.] The Committee rejected Sublett's statement that he had no idea a female guard was on the walk, noting that the log book reflected that Sheets' presence was announced to the inmates at the start of her shift. [Id.] However, it does not appear that the Committee offered an opinion regarding Sublett's allegation that Sheets inappropriately watched him urinate. The Committee imposed a penalty of fifteen days in disciplinary segregation, suspended for ninety days. [Id.] Sublett appealed the Committee's decision to Warden Randy White, who upheld the Committee's findings. [Id. at 4.]

         This suit followed on September 14. In his original complaint, Sublett alleged that by filing a disciplinary report, Sheets unlawfully retaliated against him for exercising his First Amendment right to file a grievance against her. See [DN 1.] Sublett alleges that Defendant Laura Delaney retaliated against him for filing that suit. While working on legal papers for his suit against Sheets on the afternoon of November 10, Sublett claims that Delaney walked by his cell while making her rounds. [DN 8-1 at 19.] He says that Delaney looked in his cell, saw a paper with the caption “Damien A. Sublett v. Marlene S. Sheets, ” reached through the bars, and grabbed it. [Id.] According to Sublett, “Delaney then stated, ‘your the reason, they took Marlene off this shift and placed her on day shift, first shift. Your, filed a grievance against her for looking at your Pecker. . . . What's the law suit for, you can't sue for just looking at your pecker, it not gold.'” [Id. (sic throughout).] After Sublett objected, Delaney continued, “You don't have any right unless there given to you by me, you gotta be queer to not [want] a lady to see your Dick. . . . [Y]ou need to let that Lawsuit stuff go or find your self in 3 c/h for another three years, I can put you there.” [Id. (sic throughout).]

         Later that night, Sublett claims Delaney approached his cell once again, this time while he was urinating. [Id.] He says Delaney tried to hand him a medical sick call form, even though he had not previously requested one. [Id.] Sublett asked Delaney to stop watching him while he urinated and told her that she was violating the PREA. [Id. at 19-20.] Delaney walked away, but came back a short time later and stated, “you can't sue me you're an inmate and that with Marlene is bull shit.” [Id. at 20 (sic throughout).] After this third encounter, Sublett told Delaney he wished to speak to a supervisor. [Id.] Fifteen minutes later, Lieutenant Mitch McLead came to Sublett's cell, cuffed him, and took him to 3 cell house based upon Delaney's allegation that she saw Sublett masturbating. [Id.]

         On the subject of his November 10 interactions with Delaney, Sublett submits the sworn declaration of fellow inmate Carlos Thurman. See [DN 48-3 at 13.] Although Thurman states the incident occurred on November 11, he corroborates the remainder of Sublett's account. Thurman says at the time, he was housed in a cell directly across the walk from Sublett. [Id.] He claims he heard Delaney ask Sublett about the grievance he filed against Sheets, watched her grab the legal papers from Sublett's cell, and heard her say “your suieing Marlene for looking at your Dick.” [Id. (sic throughout).] Delaney then told Sublett “to let the law suit go, and that she could easily send Sublett to 3 cell house segregation.” [Id. at 13-14 (sic throughout).] Thurman also claims he saw Delaney look at Sublett while Sublett was urinating later that evening. [Id. at 14.]

         Delaney filed a disciplinary report following the November 10 incident. In it, Delaney alleged that while she “was making [her] final round on the 5 Cellhouse 2nd Floor A&B Walk[, ] Inmate Damien Sublett # 134575 in B-10 was laying on his bunk with his penis out masturbating above his waist band.” [DN 58-5 at 2.] Although Sublett submitted a written statement to the Adjustment Committee stating that he was urinating, not masturbating, at the time of the incident, the Committee rejected his account and found him guilty of “inappropriate sexual behavior.” [Id.] ...

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