United States District Court, W.D. Kentucky, Paducah
OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE
matter comes before the Court on Defendant's, Timothy
Grimes, Motion for Summary Judgment (R. 54). Plaintiff,
Damien Anthony Sublett, has responded. (R. 56). Before the
Court decides this matter, it grants Grimes leave to properly
support his Motion for Summary Judgment pursuant to Federal
Rule of Civil Procedure 56(e)(1).
April of 2017, Damien Sublett, an inmate at the Kentucky
State Penitentiary, supplemented an existing complaint
against Corrections Officer, Mike McAlister, to add a First
Amendment retaliation claim against Timothy Grimes,
Corrections Captain at Kentucky State Penitentiary. In his
Supplemental Complaint (R. 13), Sublett alleges that Grimes
retaliated against him by filing a false disciplinary report
in response to Sublett filing a verbal grievance with his
Unit Administrator, Jacob Bruce. (R. 13). Grimes contends
Sublett was disciplined for filing a frivolous Prison Rape
Elimination Act (PREA) claim-not a verbal grievance. (R. 54-1
ID # 371). Grimes now moves the Court for summary judgment,
asserting that Sublett's retaliation claim must fail
because Sublett was not engaged in constitutionally protected
conduct when filling the frivolous claim. (R. 54-1 ID #
fails to properly support a fact material to his position.
Grimes takes the position that Sublett's retaliation
claims fails because he was not engaged in constitutionally
protected conduct when filing a frivolous PREA complaint. (R.
54-1 ID # 377-380). While filing prison grievances
constitutes constitutionally protected conduct, filing
frivolous PREA claims does not. Sublett v. Bryant,
Civil Action No. 15-016-JMH, 2015 U.S. Dist. LEXIS 65779, at
*9 (E.D. Ky. May 20, 2015) (citing Herron v.
Harrison, 203 F.3d 410, 415 (6th Cir. 2000) (“The
filing of non-frivolous grievances is protected conduct under
the First Amendment.)); Sublett v. Bryant, Civil
Action No. 15-016-JMH, 2016 U.S. Dist. LEXIS 81043, at *9
(E.D. Ky. June 22, 2016) (quoting Lewis v. Casey,
518 U.S. 343, 353, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)
(“Depriving someone of a frivolous claim . . . deprives
him of nothing at all, except perhaps the punishment of
Federal Rule of Civil Procedure 11 sanctions.”)). To
prove Sublett filed a PREA claim instead of making a verbal
grievance, Grimes points to Exhibit 3 attached to his
Response to Sublett's Supplemental Complaint filed on May
5, 2017. (R. 54-1 ID # 379). Exhibit 3 appears to be
an appeal from Sublett's Kentucky State Penitentiary
disciplinary proceedings. (R. 16-3 ID # 117). In the appeal,
Sublett admits to filling a PREA complaint-not making a
verbal grievance (R. 16-3 ID # 117).
the Court may not consider Exhibit 3. Grimes does not
properly authenticate the document; the document is not
certified to be authentic and Grimes offers no affidavits to
prove as much. “The failure to authenticate a document
properly precludes its consideration on a motion for summary
judgment.” Robinson v. Bodoff, 355 F.Supp.2d
578, 582 (D. Mass. 2005); accord, Moore v. Holbrook,
2 F.3d 697, 699 (6th Cir. 1993) (noting that unauthenticated
prison records were precluded from consideration during
summary judgment because they failed to meet the requirements
of Federal Rule of Civil Procedure 56). Therefore, this Court
cannot take Exhibit 3 into account while considering
Grimes's Motion for Summary Judgment.
pursuant to Rule 56(e)(1), at the summary judgment stage, the
Court may grant a party the opportunity to properly support
or address a fact when that party has otherwise failed to do
so. Fed.R.Civ.P. 56(e)(1). Leese v. Martin, No. 11-5091
(JBS/AMD), 2013 U.S. Dist. LEXIS 140566, at *40 (D.N.J. Sep.
30, 2013); accord, Mulrooney v. Corp. Serv. Co., Civil
Action No. 12-163-SLR-CJB, 2013 U.S. Dist. LEXIS 42876,
at *53 (D. Del. Mar. 27, 2013) (compiling cases in which,
pursuant to Rule 56, other district courts have granted a
party the opportunity to support or address a fact when that
party has failed to do so). The Court concludes that justice
so dictates granting such an opportunity here. Therefore, the
Court grants Grimes leave to supplement his Motion for
Summary Judgment to properly authenticate Exhibit 3.
Timothy Grimes, is hereby granted leave to supplement his
Motion for Summary Judgment (R. 54) with proper
authentication of Exhibit 3 attached to the
Defendants' Response to Motion to Supplement Complaint
filed on May 5, 2017 (R. 16-3).
Timothy Grimes shall have twenty-one (21) days from the date
of this Opinion and Order to furnish the authentication.
Defendant, Timothy Grimes, timely submits such
authentication, Plaintiff, Damien Sublett, shall have
twenty-one (21) days thereafter to respond.
such authentication is timely submitted, the Court shall rule
on the Defendant's Motion for Summary ...