United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on a Motion for Summary Judgment
filed by Defendants Wesley Burnett, Jesse Coombs, Brendan
Inglish, and joined by James Knight. (R. 18). On November 9,
2018 the Court warned Plaintiff Justin Walters about the
consequences of failing to respond to a motion for summary
judgment, and granted him an additional thirty days to
respond to the instant one. Those additional thirty days have
lapsed. For the reasons set forth below, the Court HEREBY
GRANTS THE DEFENDANTS' MOTIONS FOR SUMMARY JUDGEMENT,
and, in the interest of justice, dismisses with prejudice the
claims against Defendants Jonothan Monkle and Tommy
Tomlin-the only remaining Defendants in the action.
plaintiff, Justin Walters brought excessive force, and
multiple retaliation claims against the Defendants.
Plaintiff's verified Complaint states that the excessive
force occurred on February 20, 2017, and that his first
grievance was filed eight days later. (Pl.'s Compl. P. 4
& 8). Defendants Burnett, Coombs, Inglish, and Knight now
move for summary judgment. They argue that Walters failed to
exhaust his administrative remedies because he failed to
timely file his grievance pursuant to CPP
14.6(II)(J)(1)(a)(2). They argue further that Walters failed
to raise the issue of retaliation in his grievance.
Court granted Walters a 30-day extension to file a response
to the Defendants' Motion for Summary Judgment on October
November 9, 2018 and warned Walters of the consequences
should he fail to respond within the extended 30-day period.
Walters let the extension lapse without filing a response.
judgment is appropriate where “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). In determining whether summary judgment
is appropriate, a court must resolve all ambiguities and draw
all reasonable inferences against the moving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
every issue of fact or conflicting inference presents a
genuine issue of material fact.” Street v. J. C.
Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989).
The test is whether the party bearing the burden of proof has
presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996).
The plaintiff must present more than a mere scintilla of
evidence in support of his position; the plaintiff must
present evidence on which the trier of fact could reasonably
find for the plaintiff. See Id. (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986)). The plaintiff may accomplish
this by “citing to particular parts of materials in the
record” or by “showing that the materials cited
do not establish the absence . . . of a genuine dispute . . .
.” Fed.R.Civ.P. 56(c)(1). Mere speculation will not
suffice to defeat a motion for summary judgment; “the
mere existence of a colorable factual dispute will not defeat
a properly supported motion for summary judgment. A genuine
dispute between the parties on an issue of material fact must
exist to render summary judgment inappropriate.”
Monette v. Electronic Data Sys. Corp., 90 F.3d 1173,
1177 (6th Cir. 1996).
PLRA requires that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. Sec. 1997e(a). Filing untimely
grievances does not constitute exhausting one's
administrative remedies. Skinner v. United States,
No. 06-CV-188-GFVT, 2006 U.S. Dist. LEXIS 73434, at *11 (E.D.
Ky. Sep. 26, 2006) (“Moreover, exhaustion means proper
exhaustion, i.e., under the terms of and according to the
time set by BOP regulations.”) (emphasis in the
original) (citing Woodford v. Ngo, ___U.S. ___, 126
S.Ct. 2378, 2387-88, 165 L.Ed.2d 368 (2006)). Defendants have
demonstrated with Walters's own Complaint that he failed
to file his grievance within the five-day window prescribed
by CPP 14.6(II)(J)(1)(a)(2). They have demonstrated with the
grievance record that Walters never filed a grievance in
which he specifically addressed the alleged retaliation. By
Plaintiff's failure to respond, the Court must assume
that the facts alleged and properly supported in the
Defendants' Motion for Summary Judgment are undisputed.
See Guarino v. Brookfield Twp. Trs., 980 F.2d 399,
404-407 (6th Cir. 1992). Therefore, the Court finds that
Walters has failed to exhaust his administrative remedies as
required by the PLRA. The Defendants' Motion for Summary
Judgment is granted.
based on the findings above, the Court holds that in the
interest of justice Walters's claims against Defendants
Jonathan Monkle and Tommy Tomlin should be dismissed with
on the findings and conclusion above, it is HEREBY ...