United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
K. CALDWELL, CHIEF JUDGE
Jarrod Marquel Johnson is an inmate formerly confined at the
United States Penitentiary-Big Sandy (“USP-Big
Sandy”) in Inez, Kentucky. Proceeding without an
attorney, Johnson filed a civil rights action against federal
officials pursuant to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). [R. 1].
Defendants Jennifer Slone, Burney Borden, and Trina Burchett
have filed a motion to dismiss or, in the alternative, motion
for summary judgment. [R. 15]. Johnson has filed a response
[R. 17] and Defendants have filed a reply [R. 19]. Without
seeking the Court's permission to do so, Johnson has
filed a sur-reply [R. 20]. Thus, this matter has been fully
briefed and is ripe for review.
events giving rise to Johnson's allegations in his
Complaint occurred while he was housed in USP-Big Sandy in
September 2015. According to Johnson, he submitted several
written requests to his counselor, Defendant Slone,
requesting that his cellmate be moved because they were
“having problems.” These requests were denied.
Johnson further alleges that, around this same time, his
cellmate also approached an unidentified officer from the
Special Investigative Services (“SIS”)
department, informed the officer of the problems he and
Johnson were having, and requested to be moved. This request
was also denied. Johnson alleges that he again approached
Defendant Slone and requested to be moved “to prevent a
problem from occurring.” However, this request was
denied. [R. 1 at p. 9].
then alleges that, on September 6, 2015, he was beaten in the
head with a metal lock by his cellmate. He claims that he was
escorted to medical, where he informed Defendant Nurse
Burchett about the seriousness of his injuries, but rather
than examining him, she told him to put in a written request
to be seen by medical. He alleges that he was then escorted
to a cell in the Special Housing Unit (“SHU”)
without medication or anything else to help with the physical
pain from the assault. He alleges that, despite submitting
written requests to be seen about his physical condition, he
was not seen by medical for about four weeks. He claims that,
when he was seen on October 19, 2015, although he was
prescribed him 800 mg of Ibuprofen, he was never given
anything for his vision in his right eye or the blurriness or
dizziness when standing. [R. 1 at p. 9-10].
on these allegations, Johnson claims that Defendants Slone,
Borden, and the unidentified SIS officer violated his Eighth
Amendment rights by failing to protect him from the alleged
assault after he requested to be moved to a different cell
because of the “problems” he and his cellmate
were having. Johnson also alleges that Nurse Burchett
violated his Eighth Amendment rights based on his allegations
of inadequate medical care. [R. 1 at 9-11]. Defendants have
filed a motion to dismiss or, in the alternative, motion for
summary judgment, arguing that Johnson's complaint should
be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state
a claim for violation of the Eighth Amendment and that
Defendants are entitled to qualified immunity. [R. 15].
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the plaintiff's complaint. Gardner v.
Quicken Loans, Inc., 567 F. App'x 362, 364 (6th Cir.
2014). When addressing a motion to dismiss, the Court views
the complaint in the light most favorable to the plaintiff
and accepts as true all ‘well-pleaded facts' in the
complaint. D'Ambrosio v. Marino, 747 F.3d 378,
383 (6th Cir. 2014). Because Johnson is proceeding without
the benefit of an attorney, the Court reads his complaint to
include all fairly and reasonably inferred claims. Davis
v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
Defendants moved both to dismiss and for summary judgment,
attaching and relying upon declarations extrinsic to the
pleadings in support of their motion. [R. 15]. Thus, the
Court will treat the defendant's motion to dismiss the
complaint as a motion for summary judgment under Rule 56.
Fed.R.Civ.P. 12(d); Wysocki v. Int'l Bus. Mach.
Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). See also
Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir.
2004) (where defendant moves both to dismiss and for summary
judgment, plaintiff is on notice that summary judgment is
being requested, and the court's consideration as such is
appropriate where the nonmovant submits documents and
affidavits in opposition to summary judgment).
motion under Rule 56 challenges the viability of another
party's claim by asserting that at least one essential
element of that claim is not supported by legally-sufficient
evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986). A party moving for
summary judgment must establish that, even viewing the record
in the light most favorable to the nonmovant, there is no
genuine dispute as to any material fact and that the party is
entitled to a judgment as a matter of law. Loyd v. St.
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).
The burden then shifts to the nonmoving party to “come
forward with some probative evidence to support its
claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d
1339, 1347 (6th Cir.1994). However, if the responding
party's allegations are so clearly contradicted by the
record that no reasonable jury could adopt them, the court
need not accept them when determining whether summary
judgment is warranted. Scott v. Harris, 550 U.S.
372, 380 (2007). The Court must grant summary judgment if the
evidence would not support a jury verdict for the responding
party with respect to at least one essential element of his
claim. Johnson v. Liberty Lobby, Inc., 477 U.S. 242,
Claims Against Defendant Borden
argue that Johnson's claims against Defendant
Borden are based solely on Borden's position
as Slone's supervisor and, accordingly, must be
dismissed. [R. 15-1 at p. 11-12]. Johnson does not dispute
this characterization of his claims against Borden, but
rather argues that “[t]he claims against Borden are
that he failed [to] supervise properly and failed to
establish [procedures] to where he would be made aware of
on-going problems and intervene, so the failure to properly
supervise constitutes deliberate indifference.” [R. 17
at p. 8].
while Bivens expressly validated the availability of
a claim for damages against a federal official in his or her
individual capacity, an officer is only responsible for his
or her own conduct. Ashcroft v. Iqbal, 556 U.S.662,
676-677 (2009). See also Ziglar v. Abbasi, 137 S.Ct.
1843, 1860 (2017). The mere fact of supervisory capacity is
not enough: an official must be personally involved in the
conduct complained of ...