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Barassi v. Lewis

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

November 20, 2018

NORMAN MARTIN BARASSI PLAINTIFF
v.
CAPTAIN MIKE LEWIS DEFENDANT

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY JR., DISTRICT JUDGE

         This matter is before the Court on the motion for summary judgment filed by Defendant (DN 48). For the following reasons, the Court will grant Defendant's motion.

         I. STATEMENT OF THE CASE

         Plaintiff Norman Martin Barassi is an inmate at the Hopkins County Jail (HCJ). On initial review, the Court allowed to go forward Plaintiff's individual-capacity claims against Defendant HCJ-employee Captain Mike Lewis that Plaintiff's constitutional rights were violated when Defendant kept Plaintiff in solitary confinement with no recreation for over three years and forced Plaintiff to live in unsanitary conditions for more than 60 days.

         II. ANALYSIS

         Summary judgment is proper “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). The party moving for summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         The moving party's burden may be discharged by demonstrating that there is an absence of evidence to support an essential element of the nonmoving party's case for which he or she has the burden of proof. Id. A moving party with the burden of proof who seeks summary judgment faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). “[W]here the moving party has the burden -- the plaintiff on a claim for relief or the defendant on an affirmative defense -- his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (internal quotation marks, citation, and emphasis omitted). The party with the burden of proof “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 it.” Arnett, 281 F.3d at 561. “Accordingly, summary judgment in favor of the party with the burden of persuasion ‘is inappropriate when the evidence is susceptible to different interpretations or inferences by the trier of fact.'” Green v. Tudor, 685 F.Supp.2d 678, 685 (W.D. Mich. 2010) (quoting Hunt v. Cromartie, 526 U.S. 541, 553 (1999)).

         A. Recreation claim

         Defendant moves for summary judgment (DN 48) premised, in part, on the ground that Plaintiff failed to exhaust his administrative remedies regarding his denial-of-recreation claim. Specifically, Defendant argues that Plaintiff filed only one grievance related to recreation, dated June 28, 2015, but failed to properly appeal through all three levels of appeal.

         The HCJ grievance policy, which Defendant attaches to his summary-judgment motion, states with regard to appeals that there are three stages for appeals after the initial grievance: “First appeal - Lieutenant[;] Second appeal - Captain[; and] Final Appeal - Jailer.” That policy further states: “All appeals shall occur within forty-eight (48) hours of receipt by the inmate of each response.” Lastly, the policy stated: “Any inmate who submits an appeal shall receive a response within ten (10) working days (excluding weekends and holidays). If a response is not provided to the inmate within ten (10) working days, the appeal will be deemed denied.”

         Plaintiff's initial grievance regarding the denial of recreation, dated June 28, 2015, states in pertinent part: “For the past 14 months I have also been denied 100% access to indoor or outdoor recreation.” In a response dated June 29, 2015, Sgt. Coy responded: “Your recreation and phone usage are limited . . . to being housed in segregation. Efforts have been made to house you in a cell with other inmates. You chose to remain in segregation.”

         In his first appeal of that grievance, Plaintiff stated:

After my rights have been completely violated for 13 months, and a motion was filed in Court pertaining to phone usage, Hopkins County Jail Administration trys to pull off an ill attempt at rectifying this ongoing situation by opening another max cell. Due to the psychological damage I've already suffered over the first 395 days, you're correct now I do not want to leave my cell now and for the past 30 days. But that dose not give you the right to continue blatantly violating my rights. Also how is a disciplinary sargent going to hear my administrative level grievance. This is just like Hopkins County Jail to try and skirt responsibility for their wrongdoing.

         In a response dated July 7, 2017, Lt. Komar responded, “You are making a general statement and are ...


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