United States District Court, W.D. Kentucky, Paducah
Jeffery Allen McClellan, Pro Se
B. RUSSELL, SENIOR JUDGE
matter is before the Court upon a motion by Defendant, Col.
Steve Howard, for summary judgment. [DN 33]. Plaintiff,
Jeffrey Allen McClellan, has responded to the motion. [DN
34]. Fully briefed, Defendant's motion is ripe for
review, and for the following reasons, it is GRANTED.
December 5, 2016, Plaintiff was booked into the Christian
County Jail by Prison Transport Services. [DN 33-2]. On
December 8, 2016, Plaintiff fell while standing on another
inmate's shoulders. [DN 33-4 at 7]. Plaintiff alleges
that his left foot was injured by this fall. [DN 1 at 4].
Plaintiff further alleges that “Defendant denied
Plaintiff medical treatment and stated you are Prison
Transport Services so we do not have to treat you.”
Id. Plaintiff did not file a grievance regarding his
alleged lack of medical treatment. [DN 33-2]. Later the same
day, Prison Transport Services picked Plaintiff up from
Christian County Jail and began transporting him to a prison
in Alabama. [DN 1 at 4-5].
days after Plaintiff's fall, his foot was examined by a
physician at Kilby Correctional Facility in Mt. Meigs,
Alabama. [DN 33-8 at 1]. The radiology report from this
examination states: “The ossification is normal for the
left foot, including the tarsal bones. There is mild
degenerative joint disease seen. There is no fracture,
dislocation, or soft tissue swelling. No. osteomyelitis is
seen. Conclusion: Mild degenerative joint disease; otherwise;
no fracture or dislocation seen.” Id.
(emphasis added). About a month later, on January 13, 2017,
Plaintiff received a second medical examination of his left
foot. Id. at 2. The radiology report from this
examination states: “Compared to Decmber 12, 2016 there
is subtle increase in sclerosis posterior inferior aspect of
the calcaneus. Occasionally this can indicate developing
stress fracture. MRI would confirm or exclude if indicated.
Conclusion: Moderate concern for stress fracture posterior
inferior aspect of the calcaneus. . . .” Id.
responded to Defendant's motion for summary judgment on
June 1, 2018. [DN 34]. On December 12, 2018, this Court
granted Plaintiff an additional thirty days to file a more
substantive response to Defendant's motion. [DN 36 at
3-4]. This Court also provided Plaintiff with guidance on how
to respond to a motion for summary judgment under Federal
Rule of Civil Procedure 56. Id. Plaintiff, however,
chose not to file a supplemental response. The only evidence
Plaintiff has provided in opposition to Defendant's
motion is his verified complaint.
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, 251-52, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986)). 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.”
Moinette v. Elec. Data Sys. Corp., 90 F.3d 1173,
1177 (6th Cir.1996). Finally, it should be noted that
“‘a verified complaint . . . satisfies the burden
of the nonmovant to respond' to a motion for summary
judgment, unlike ‘mere allegations or denials' in
unverified pleadings.” King v. Harwood, 852
F.3d 568, 578 (6th Cir. 2017) (quoting Thaddeus-X v.
Blatter, 175 F.3d 378, 385 (6th Cir. 1999)) (en banc).
claims that Defendant acted with deliberate indifference when
he allegedly denied Plaintiff medical treatment in violation
of his Eight Amendment rights. [DN 26 at 1; see also DN 1].
Defendant argues that Plaintiff failed to exhaust the
administrative remedies available to him as is required by
the Prison Litigation Reform Act of 1995
(“PLRA”). The PLRA requires a prisoner to exhaust
all available administrative remedies before filing any
action “with respect to prison conditions” under
42 U.S.C. § 1983 or any other federal law. 42 U.S.C.
§ 1997e(a). That exhaustion requirement “applies
to all inmate suits about prison life, whether they involve
general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983,
152 L.Ed.2d 12 (2002); accord Freeman v. Francis,
196 F.3d 641, 644 (6th Cir. 1999). Exhaustion is mandatory
and the remedies provided “need not meet federal
standards, nor must they be ‘plain, speedy, or
effective.'” Porter, 534 U.S. at 524 (quoting
Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819,
149 L.Ed.2d 958 (2001)). “Proper exhaustion demands
compliance with [the prison's] deadlines and other
critical procedural rules, ” Woodford v. Ngo,
548 U.S. 81, 90, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), and
so “it is the prison's requirements, and not the
PLRA, that define the boundaries of proper exhaustion,
” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct.
910, 166 L.Ed.2d 798 (2007); accord Lee v. Willey,
789 F.3d 673, 677 (6th Cir. 2015).
case, Defendant filed an affidavit with the Court that
states: “[Plaintiff] did not file a grievance.”
[DN 33-2]. Defendant also filed an authenticated copy of the
jail's grievance policy, which requires a grievance to be
made in the form of a written statement within forty-eight
hours of the incident. [DN 33-7]. Plaintiff has not provided
any evidence that he filed a grievance arising out of the
incident where he allegedly hurt his left foot. In fact,
Plaintiff does not address Defendant's exhaustion
argument in any document he has filed with the Court.
Therefore, there is no genuine dispute of ...