United States District Court, E.D. Kentucky, Northern Division, Ashland
DAMIEN A. SUBLETT, Plaintiff,
JASON S. HOWARD, et al, Defendants.
MEMORANDUM OPINION AND ORDER
R. Wllhoit, Jr. United States District Judge.
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,
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.
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)).
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.
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.
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]
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]
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]
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.
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]
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 ]
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).
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
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).
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.]
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.]
Sublett's Claim against Howard in his ...