United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. MCKINLEY JR., DISTRICT JUDGE
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.
STATEMENT OF THE CASE
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.
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
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)).
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.
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.”
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.”
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.
response dated July 7, 2017, Lt. Komar responded, “You
are making a general statement and are ...