United States District Court, W.D. Kentucky, Paducah
JOHNNY A. MCDONALD PLAINTIFF
MICHAEL SPRINGFIELD, ET AL., DEFENDANTS
B. Russell, Senior Judge.
matter is before the Court on a Motion to Dismiss, [R. 28],
and Motion for Summary Judgment, [R. 29], filed by Defendants
Wesley Burnett, Michael Springfield, Brendan Inglish, Michael
Pillion, Jared Thompson, and Tami Baur (collectively,
“Defendants”). Almost five months after these
motions were filed, Plaintiff Johnny McDonald still had not
filed a response to either motion. The Court issued an Order
pursuant to United States v. Ninety-Three Firearms,
330 F.3d 414 (6th Cir. 2003), in which it informed McDonald
of the consequences and requirements of the summary judgment
rule, as well as the rule concerning a motion to dismiss. [R.
37 at 1-2.] The Court gave McDonald an additional 30 days to
respond to the pending motions, and the Court noted that
“[f]ailure to comply with this Order will result in
dismissal of the action.” [Id. at 1.] It has
been three months since that order was filed and McDonald
still has not filed a response. This matter is ripe for
adjudication. For the reasons stated herein, the
Defendants' Motion for Summary Judgment, [R. 29], is
GRANTED and the Defendants' Motion to Dismiss, [R. 28],
is DENIED AS MOOT. The Court will enter a separate Order and
Judgment consistent with this Memorandum Opinion.
Johnny McDonald, pro se, is an inmate at the Kentucky State
Penitentiary (“KSP”). The facts of his Complaint
were previously summarized in the Memorandum Opinion and
Order filed on August 3, 2018. [R. 21 at 1.] In short, there
are two remaining matters: First, McDonald's First
Amendment claim against Defendant Pillion in his individual
capacity for all relief and in his official capacity for
equitable relief, as well as under RLUIPA in his official
capacity for injunctive relief. Second, McDonald's
excessive force claims against Defendants Dornelle, Thompson,
Inglish, and Springfield in their individual capacities.
[Id. at 10.]
Rule 12(b)(6), to survive a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Ashcroft v. Iqbal, 556 U.S.
662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[A] district
court must (1) view the complaint in the light most favorable
to the plaintiff and (2) take all well-pleaded factual
allegations as true.” Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009) (citations omitted)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing
Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The
complaint need not contain “detailed factual
allegations, ” yet must provide “more than an
accusation.” Id. (citing Twombly, 550
U.S. at 555, 127 S.Ct. 1955). In addition, “[a] pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 93,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d
judgment is appropriate when the record, viewed in the light
most favorable to the nonmoving party, reveals “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). A genuine dispute of material fact exists
where “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The Court “may not make
credibility determinations nor weigh the evidence when
determining whether an issue of fact remains for
trial.” Laster v. City of Kalamazoo, 746 F.3d
714, 726 (6th Cir. 2014) (citing Logan v. Denny's,
Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers
v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)).
“The ultimate question is ‘whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.'” Back v.
Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir.
2012) (quoting Anderson, 477 U.S. at 251-52).
Court acknowledges that pro se pleadings are to be held to a
less stringent standard than formal pleadings drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519
(1972). The duty to be less stringent with pro se
complainants, however, “does not require [the Court] to
conjure up unpled allegations, ” McDonald v.
Hall, 610 F.2d 16, 19 (1st Cir.1979) (citation omitted),
nor to create a claim for a pro se plaintiff, Clark v.
Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169
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).
stated above, McDonald never responded to Defendants'
Motion to Dismiss. This is after the Court warned McDonald
and granted him additional time to respond. [R. 37.] Pursuant
to Joint Local Rule of Civil Practice 7.1(c),
“[f]ailure to timely respond to a motion may be grounds
for granting the motion.” See also Humphrey v. U.S.
Attorney General's Office, 279 Fed.Appx. 328, 331
(6th Cir. 2008) (recognizing that a party's lack of
response to a motion or argument therein is grounds for the
district court's grant of an unopposed motion to dismiss
and noting that “if a plaintiff fails to respond or to
otherwise oppose a defendant's motion, then the district
court may deem the plaintiff to have waived opposition to the
motion”); Paulmann v. Hodgdon Powder Co.,
Inc., No. 3:13-CV-0021-CRS-DW, 2014 WL 4102354, *1-2
(W.D. Ky. Aug. 18, 2014) (holding that plaintiff's
failure to respond or otherwise oppose defendant's motion
to dismiss established that the plaintiff had waived
opposition to the motion). Because Plaintiff has failed to
oppose Defendants' Motion to Dismiss, he waives
opposition to the motion.
McDonald's lack of opposition to Defendants' Motion
to Dismiss, the legal arguments in Defendants' Motion for
Summary Judgment are well-taken. Specifically, the Court
finds that Defendants have satisfied their burden under
Federal Rule of Civil Procedure 56 by demonstrating that
McDonald failed to properly exhaust his remedies under the
policies and procedures of the Kentucky Department of
Defendants' Motion for Summary Judgment, Defendants argue
that they are entitled to summary judgment because Plaintiff
has failed to exhaust his administrative remedies and his
claims are barred by the doctrine of issue preclusion. [R. 29
at 2.] The Court agrees that McDonald failed to exhaust
administrative remedies, requiring the action be dismissed in
Prison Litigation Reform Act (PLRA) bars a civil rights
action challenging prison conditions until the prisoner
exhausts “such administrative remedies as are
available.” 42 U.S.C. § 1997e(a); see also
Jones v. Bock,549 U.S. 199, 211 (2007)
(“There is no question that exhaustion is mandatory
under the PLRA and that unexhausted claims cannot be brought
in court”). In order to exhaust administrative
remedies, prisoners must complete the administrative review
process in accordance with the deadlines and other applicable
procedural rules established by state law. Jones,
549 U.S. at 218-19. “Proper exhaustion demands
compliance with an agency's deadlines and other critical
procedural rules.” Woodford v. Ngo, 548 U.S.
81, 90 (2006). However, “failure to ...