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Sublett v. Howard

United States District Court, E.D. Kentucky, Northern Division, Ashland

September 23, 2019

JASON S. HOWARD, et al, Defendants.


          Henry R. Wllhoit, Jr. United States District Judge.

         Plaintiff Damien A. Sublett is an inmate confined at the Green River Correctional Complex located in Central City, Kentucky. Proceeding without an attorney, Sublett filed a civil rights action pursuant to 42 U.S.C. § 1983 against Jason S. Howard, a Correctional Officer at the Little Sandy Correctional Complex ("LSCC") in Sandy Hook, Kentucky. [D.E. No. 1] In his original complaint, Sublett asserts claims for violations of Sublett's First Amendment rights based on allegations that Howard retaliated against Sublett for making an "oral grievance" complaining of Howard's alleged discriminatory treatment of Muslim inmates. After Howard responded to Sublett's complaint by filing a motion for summary judgment, [D.E. No. 14], Sublett was granted leave to file a supplemental complaint adding a separate claim of retaliation against Audria Lewis, a correctional officer at LSCC. [D.E. No. 15, 16][1]

         Defendants, through counsel, have each filed motions for summary judgment. [D.E. No. 14, 21] In response, Sublett has filed three responses [D.E. No. 19, 24, 25] and a motion for leave to file a surreply. [D.E. No. 22] Howard has filed a reply in further support of his motion. [D.E. No. 20] Lewis has not filed a reply in further support of her motion and the time for doing so has expired. Thus, this matter has been fully briefed and is ripe for review.

         As a preliminary matter, without seeking leave of Court, Sublett filed two separate responses in opposition to the motion for summary judgment filed by Lewis. [D.E. No. 24, 25] In addition, in response to the reply filed by Howard [D.E. No. 20], Sublett filed a motion for leave to file a surreply. [D.E. No. 22] The Court's Local Rules do not contemplate or allow the filing of a surreply, LR 7.1(c), (g), and hence such filings are not permitted absent leave of the Court. Such leave is only granted to address arguments or evidence raised for the first time in a reply. Key v. Shelby County, 551 F.App'x 262, 265 (6th Cir. 2014) (citing Seay v. Tennessee Valley Authority, 339 F.3d 454, 481 (6th Cir. 2003)).

         However, contrary to Sublett's assertion, Howard did not raise any new arguments in his reply. Rather, Howard's reply addresses Sublett's claim made for the first time in his response that he submitted a second grievance related to his claims against Howard and that this grievance was rejected. [D.E. No. 19, 20] The alleged submission of this grievance is an issue raised by Sublett, not Howard. Thus, the arguments that Sublett identifies as "new" are simply Howard's response to arguments made by Sublett in his response. The filing of a surreply is therefore not necessary or appropriate, and Sublett's motion will be denied. "As many courts have noted, '[s]urreplies ... are highly disfavored, as they usually are a strategic effort by the nonmoving party to have the last word on a matter.'" Liberty Legal Found. V. Nat'l Democratic Party of the USA, 875 F.Supp.2d 791, 797 (W.D. Tenn. 2012). Particularly where, as here, Sublett has also filed an additional response without seeking leave of Court [D.E. No. 25], Sublett will not be permitted to flout the Court's procedural rules by filing a surreply where one is not warranted.


         In his original complaint, Sublett alleges that on July 3, 2018, while at LSCC, he proceeded from his room to the Institutional Religious Center ("IRC") for the Muslim Service. According to Sublett, the IRC has separate rooms for the Christian service and the Muslim service. Sublett claims that he was the first of a group of Muslims to enter the IRC. Upon his entry to the IRC, Howard asked whether he was there for the service. When Sublett said that he was there for the Muslim service, Howard began to search Sublett. He claims that Howard then proceeded to search each of the other six or so Muslim inmates who were entering for the Muslim service. Sublett states that he observed that the inmates arriving for the Christian services entered the IRC and proceeded past Howard without being searched.

         According to Sublett's own allegations, Sublett then "accosted C/O Howard and asked to have a complaint address to Howard, " who told Sublett to "go ahead." Sublett states that he asked Howard why the Christians were able to go directly to their service without a search and further told Howard that he thought it was discriminatory that Howard was only patting down the Muslims and holding them up from their service. According to Sublett, Howard "became belligerent" and told Sublett to "shut up and get out, I'll search whoever I damn well please." Sublett states that he said, "Yes sir, " and asked to speak with a supervisor. He claims that Howard responded "with a harsh tone" and screamed at him to "get out and find a supervisor yourself, get your ass out of here now." [D.E. No. 1 at p. 3]

         On July 4, 2018, Howard issued Sublett a disciplinary report charging Sublett with "Charge: 4-08 -Nonviolent demonstration that could lead to disruption." [D.E. No. 1-1 at p. 1] After a July 12, 2018 hearing, Sublett was found guilty of the charge alleged in the disciplinary report and sentenced to 15 days of disciplinary segregation. [Id. at p. 3] Sublett's appeal to the Warden was denied. [Id. at p. 4] According to Sublett, he stopped participating in the religious services on Tuesday "out of fear of further retaliation." [D.E. No. 1 at p. 4]

         Based on these allegations, Sublett claims that Howard violated his First Amendment Freedom of Speech rights by issuing a disciplinary report against Sublett in retaliation for conveying an "oral grievance" regarding the alleged discriminatory conduct. [D.E. No. 1 at p. 5] He seeks injunctive relief in the form of ceasing the "retaliation for making an oral grievance with regards to discrimination to Muslim, " as well as compensatory and punitive damages. [Id. at P.8][2]

         In Sublett's supplemental complaint [D.E. No. 16], he alleges that on September 9, 2018, he was speaking with another inmate (identified by Sublett as a "legal aid") discussing the next steps with regard to his lawsuit against Howard while standing directly in front of an officer station where Correctional Officer Audria Lewis was standing. After the legal aid requested that Sublett bring him all of the Orders from the Court, Sublett went to his room to retrieve them. According to Sublett, once he was in his room, Lewis deactivated his room door, preventing him from leaving. Sublett then pushed a button in his room connected to an intercom through which inmates may request assistance and was told by Lewis that, "if he keeps talking about the lawsuit against Howard (she) Lewis would have Sublett placed in segregation." Sublett states that he was then able to open the door to his room and, when he exited his room, Lewis and Correctional Officer Brent Valandingham were staring at Sublett and laughing. Sublett alleges that Lewis then told Sublett to stand by the officer cab and "don't say anything." When Sublett asked what he had done, Lewis responded, "Are you arguing with me, shut up, Ah, Ah, what I say?" Sublett states that he then remained quiet and asked to speak with a supervisor. He alleges that Lewis said that she would get a supervisor, then lock him up in segregation. Thereafter, Sublett was placed in administrative segregation.

         Sublett states that he later received a write up in the form of a disciplinary report issued by Lewis stating that he was being argumentative and disrespectful. Sublett was sentenced to 15 days of segregation predicated on a conviction of a Major Misconduct, which was upheld by the Warden. According to Sublett, Lewis made the false allegation in a disciplinary report that Sublett was argumentative and disrespectful when Sublett claims that he simply requested to speak with a supervisor. He claims that Lewis' action was in retaliation for Sublett's lawsuit against Howard. [D.E. No. 16 at p. 1-2]

         In their motions, Defendants argue that Sublett's complaint and amended complaint must be dismissed because Sublett failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. [D.E. No. 14-1, 21-1] Lewis further argues that Sublett fails to state a claim of retaliation against her because he violated a legitimate prison regulation and, accordingly, was not engaged in "protected conduct" as is required to state a retaliation claim. [D.E. No. 21 -1 ]


         A motion for summary judgment filed pursuant to Fed.R.Civ.P. 56 challenges the viability of another party's claim by asserting that at least one essential element of that claim is not supported by legally-sufficient evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986). A party moving for summary judgment must establish that, even viewing the record in the light most favorable to the nonmovant, there is no genuine dispute as to any material fact and that the party is entitled to a judgment as a matter of law. Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). The burden then shifts to the nonmoving party to "come forward with some probative evidence to support its claim." Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). However, if the responding party's allegations are so clearly contradicted by the record that no reasonable jury could adopt them, the court need not accept them when determining whether summary judgment is warranted. Scott v. Harris, 550 U.S. 372, 380 (2007). The Court must grant summary judgment if the evidence would not support a jury verdict for the responding party with respect to at least one essential element of his claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986).


         Under the PLRA, a prisoner wishing to challenge the circumstances or conditions of his confinement must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a); Fazzini v. Northeast Ohio Correctional Center, 473 F.3d 229, 231 (6th Cir. 2006); Campbell v. Barron, 87 F.App'x 577, 577 (6th Cir. 2004). Exhaustion requires a prisoner to fully utilize the prison's inmate grievance system before filing suit to assert a civil claim. Grinter v. Knight, 532 F.3d 567, 577-78 (6th Cir. 2008). This requirement is mandatory and claims that have not been exhausted cannot be asserted in any court. Jones v. Bock, 549 U.S. 199, 211 (2007). Further, because "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules, " the inmate must strictly follow the jail's rules with respect to the timelines, form, and procedures for inmate grievances. Woodford v. Ngo, 548 U.S. 81, 90 (2004).

         Where the failure to exhaust is not self-evident from the complaint, "[s]ummary judgment is appropriate only if defendants establish the absence of a 'genuine dispute as to any material fact' regarding non-exhaustion." Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (quoting Fed.R.Civ.P. 56(a)). The Court must consider the evidence "in the light most favorable to the party opposing the motion.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)). Nonetheless, the defendants can prevail if they can "prove that no reasonable jury could find that the plaintiff exhausted his administrative remedies." Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017) (citing Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012)); Scott v. Harris, 550 U.S. 372, 380 (2007).

         The applicable grievance procedure here is provided by Kentucky Corrections Policy and Procedure ("CPP") 14.6, which states that the inmate grievance process "shall apply to all inmate grievances with the exception of grievances pertaining to health care concerns." [D.E. No. 14-2 at p. 7] As set forth in CPP 14.6, "Step 1" of the process, "Filing the Grievance and Informal Resolution, " requires the grievance to be "in writing and legible" and must be contained on the grievance form and one additional page if necessary. [Id. at p. 8] In addition, a grievance about a "personal and specific incident" must be filed within five business days after the incident occurs and a grievance shall pertain to only one issue. [Id.]

         CPP 14.6 defines a "grievable issue" to include "any aspect of an inmate's life in prison that is not specifically identified as a non-grievable issue, " and includes personal and social services needs; corrections and/or institutional policies and procedures, personal action by staff, staff conflict, or health care concerns. [D.E. No. 14-2 at p. 2]. Issues identified as "non-grievable" include "Disciplinary procedures, Adjustment Committee decision, Unit Hearing Officer decision, Adjustment Officer decision, or Warden's review of these decisions, incident where the grievant received a disciplinary report and report has been dismissed." [Id.]

         1. Sublett's Claim against Howard in his ...

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