United States District Court, W.D. Kentucky, Louisville Division
TRAVIS G. DICKEY Plaintiff
JOE RAPIER Defendant
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE.
the Court is the motion for summary judgment (DN 48) filed by
Defendant Joe Rapier. Plaintiff has responded, and Defendant
has replied. The motion is thus ripe for consideration.
however, the Court considers Plaintiff's motion (DN 60)
titled, “Motion Requesting to Give Response to
Defendants' Reply to My Summary Judgment Response.”
Such an additional filing would be considered a sur-reply.
Plaintiff does not attach a proposed sur-reply, but does lay
out several arguments.
response (DN 61), Defendant argues that Plaintiff's
request to file a sur-reply should be denied. Defendant
argues that the Federal Rules of Civil Procedure do not
provide for filing a sur-reply; Plaintiff had ample
opportunity to respond to the summary-judgment motion;
sur-replies are disfavored; and the proposed sur-reply does
not address new arguments or evidence but instead merely
accuses Defendant and other Bullitt County Detention Center
employees of lying.
to permit a party to file a sur-reply is a matter left to the
trial court's discretion. See Key v. Shelby
Cty., 551 Fed.Appx. 262, 264 (6th Cir. 2014);
Eng'g Mfg. Servs., LLC v. Ashton, 387 Fed.Appx.
575, 583 (6th Cir. 2010); Tanielian v. DaimlerChrysler
Corp., 108 Fed.Appx. 386, 387 (6th Cir. 2004).
“The Sixth Circuit has held that a district court does
not abuse its discretion in denying leave to file a sur-reply
where the opposing party's reply did not raise any new
legal arguments or introduce new evidence.” Liberty
Legal Found. v. Nat'l Democratic Party of the USA,
875 F.Supp.2d 791, 797 (W.D. Tenn. 2012).
examination of Plaintiff's motion does not reveal any new
arguments pertinent to the basis on which the Court will
grant Defendant's motion for summary judgment.
Accordingly, IT IS ORDERED that
Plaintiff's motion (DN 60) is DENIED.
Court now turns to its consideration of the motion for
summary judgment (DN 48) filed by Defendant, Plaintiff's
response thereto (DN 58), and Defendant's reply (DN 59).
alleged in his complaint that on May 26, 2016, he was booked
into the Bullitt County Detention Center (BCDC). On initial
review pursuant to 28 U.S.C. § 1915A, the Court allowed
Plaintiff's claim that he was strip searched on that date
in violation of his constitutional rights to go forward
against Defendant Rapier in his individual capacity. The
Court also allowed his retaliation claim to go forward
against Defendant Rapier in his individual capacity for
placing him in segregation on July 12, 2016. All other claims
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)).
Exhaustion of administrative remedies
first argues that he is entitled to summary judgment because
Plaintiff failed to exhaust his administrative remedies ...