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Ellison v. Brindle

United States District Court, W.D. Kentucky

May 6, 2019

KENDERICK ELLISON PLAINTIFF
v.
MARIE A. BRINDLE et al. DEFENDANTS

          MEMORANDUM OPINION

          THOMAS B. RUSSELL, SENIOR JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court upon on motion by Defendants, Deputy Commissioner Randy White, Deputy Warden Steven Ford, Deputy Warden Bruce Von Dwingelo, correctional officer Marie A. Brindle, and maintenance manager Jeremy Belt, for summary judgment pursuant to Federal Rule of Civil Procedure 56. [DN 36]. Plaintiff, Kendrick Ellison, has not responded and the time to do so has passed. This matter is ripe for review and for the following reasons Defendants' motion for summary judgment is GRANTED.

         BACKGROUND

         PLAINTIFF Kenderick Ellison, a convicted inmate incarcerated at the Kentucky State Penitentiary (“KSP”), filed a pro se complaint pursuant to 42 U.S.C. § 1983 against the following KSP officers: Correctional Officer Marie A. Brindle, Warden Randy White, Maintenance Branch Manager Jeremy Belt, Deputy Warden of Security Steve Ford, and Deputy Warden Bruce Von Dwingelo. Plaintiff alleges that Defendant Brindle filed a false disciplinary action against him after he filed a grievance against another KSP officer. Plaintiff also alleges that inmates engage in sexual acts in “KSP Shower House” and that Defendants White, Belt, Von Dwingelo, and Ford have stated that “KSP shower house is violation of state and [federal] standards.” Plaintiff Ellison filed the complaint with another KSP inmate, Gerald McKinney. However, by Memorandum and Order entered August 4, 2017, the Court dismissed Gerald McKinney from this action for failure to prosecute. [DN 13].

         On September 6, 2017, the Court reviewed the complaint under 28 U.S.C. § 1915A. The Court construed Plaintiffs claims as (1) a First Amendment retaliation claim and (2) an Eighth Amendment deliberate indifference claim. The Court concluded that both claims should be allowed to continue for further development. Now before the Court is Defendants' motion for summary judgment. Plaintiff has not responded to the motion, and the time to do so has passed. On February 6, 2019, the Court issued an order pursuant to United States v. Ninety-Three Firearms, 330 F.3d 414 (6th Cir. 2003) providing Plaintiff with guidance in responding to a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and granted Plaintiff an additional thirty days to respond. Those thirty days have now passed and Plaintiff has chosen not to respond. The facts relevant to this opinion are as follows:

         The Retaliation Claim:

         On November 15, 2016, Plaintiff filled out a grievance complaining that a KSP officer named Rachel Hughes had informed him that she would not let him into any inmate programs while Plaintiff was housed at KSP. [DN 36-2]. At the informal resolution stage, prison officials found that Plaintiff had not produced any evidence that Hughes was denying Plaintiff the opportunity to participate in programs. [Id.]. In fact, the informal resolution report states that Hughes had already recommended Plaintiff for enrollment in five programs prior to the filing of his grievance. [Id.]. Plaintiff was advised that “KSP fills its programs with inmates from the program recommendation screen in accordance to Parole Date, serve out date, and recommended date.” [Id.].

         Plaintiff alleges that on December 23, 2016, Defendant Brindle stopped him on the KSP prison yard to ask him why he had filed the grievance against Hughes. Plaintiff also alleges that Brindle told him “you should have waited a little longer” before filing the grievance and “I'm assigned to your walk now and your and un-assigned inmate without a job so that means you must be back in your cell before 12:15 lock up, or I'll do you like you did c/o Brindle[1] and put you on paper only I won't have patient like you.” [DN 1]. Plaintiff further alleges that, also on December 23, “I came in my cell at 12:15 let in for un-assign lock up and c/o Brindle saw that I was in my cell on time however c/o Brindle told me that she was going to lock me up any way because she doesn't have patience like I did not have patience with Ms. Hughes.” [Id.]. Brindle issued Plaintiff a disciplinary report on December 27, 2016. [DN 36-3]. In the disciplinary report, Brindle documented that Plaintiff had arrived at his cell at approximately 2:15 p.m. At the disciplinary hearing held on February 8, 2017, the Adjustment Committee reviewed camera footage and concluded that Plaintiff was in his cell at the appropriate time and dismissed the disciplinary report. [Id.]. Plaintiff alleges that Brindle filed the meritless disciplinary report in retaliation for his act of filing a grievance against Hughes.

         The Deliberate Indifference Claim:

         On March 6, 2017, Plaintiff filled out a grievance in which he complained that Defendant Belt, in a grievance made by McKinney, had stated that the KSP shower house was scheduled to be totally renovated by June 2016 in order to bring it into compliance with today's standards. [DN 36-4]. Plaintiff further asserted that “KSP Shower house is currently in violation of PRE standards and State” standards. [Id.]. Plaintiff alleged that Defendants knew of the dangerous conditions of the shower house but had failed to complete safety renovations to prevent sexual assaults and rape. [Id.].

         In his complaint, Plaintiff complains that he was showering at KSP shower house on March 7, 2016 when he observed two inmates engaged in sexual acts and another inmate masturbated while staring at Plaintiff. [DN 1]. Plaintiff states in his complaint:

I filed a grievance about the condition of KSP shower house and cite Maintenance Branch director and Warden White and Bruce Von-dwingelo and Steve Ford's statement in other grievance file by Gerald McKinny that KSP Shower house is violation of State federal Standards and requested that the shower house be closed down because of the conditions I must shower in. These defendants refuse to close KSP shower house and force's me to shower under these conditions.

[Id.]. Defendants argue that they were unaware of the alleged March 7 incident at the shower house prior to the initiation of this civil action and deny that it occurred. Defendants also argue that the shower house is compliant with relevant safety standards and that a ...


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