ROBERT E. WIER, Magistrate Judge.
After dismissing Defendants Aramark Corporation, Ingram, Thompson, and Whelan, DE 41 (Memorandum Opinion & Order), the District Judge referred this matter to the undersigned to conduct further proceedings, including preparation of a Report and Recommendation regarding any dispositive motions. See DE 42 (Order). The remaining Defendants
The Court, having considered the full briefing and record,
In September 2016, Bailey, then a prisoner,
Bailey makes numerous disjointed claims throughout the Complaint. As relevant here, he contends that Kentucky Department of Corrections (KDOC) and NTC personnel were deliberately indifferent to his serious medical need for a special diet, prompted by diagnosed allergies to beef and milk. Specifically, he claims Defendants Adams, Ballard, Beehler, Burkett, Cochran, and Jolly acted with deliberate indifference by refusing to reverse other parties' (dismissed Defendants Ingram, DE 1 at ¶ 43, and Thompson) decisions regarding diet implementation. Bailey also claims Defendant Dunn exhibited deliberate indifference by refusing to answer his inmate grievance. Id. at 7. Further, Plaintiff argues all the Defendants' conduct (as detailed above): (1) was intentional or reckless, (2) caused Bailey severe emotional distress, and (3) was shockingly extreme and outrageous "because the plaintiff could be subject to accute [sic] reaction possibly even death." Id. at 8.
Pursuant to Federal Rule of Civil Procedure 56, a court shall grant summary judgment "if 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). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., 106 S. Ct. at 1356; Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). The Rule "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. at 106 S. Ct. at 2552.
If the movant bears the burden of persuasion at trial, "that party must support its motion with credible evidence—using any of the materials specified in Rule 56(c)—that would entitle it to a directed verdict if not controverted at trial." Id. at 2556 (citation omitted) (Brennan, J., dissenting); see also Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002) (noting that, when the movant also bears the burden of persuasion at trial, the moving party's initial summary judgment burden is "higher in that it must show that the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it") (citation and internal quotation marks omitted). "If the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Celotex Corp., 106 S. Ct. at 2557 (Brennan, J., dissenting) (emphasis in original).
A fact is "material" if the underlying substantive law identifies that fact, or the element it concerns, as critical. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec. Indus. Co., 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.") (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp. v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).
Substantively, in response to a well-supported defense motion in the context of a § 1983 deliberate indifference claim, a plaintiff `must demonstrate a genuine issue of material fact as to the following two elements: (1) the deprivation of a right secured by the Constitution or laws of the United States and (2) that the deprivation was caused by a person acting under color of state law.'" Grabow v. Cnty. of Macomb, 580 F. App'x 300, 307 (6th Cir. 2014) (quoting Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005)).
An outrage claim, in Kentucky, requires proof of the following elements: "(1) the wrongdoer's conduct must be intentional or reckless; (2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; (3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and (4) the emotional distress must be severe." Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004) (citations omitted). A defendant seeking summary judgment may meet its initial burden by demonstrating that the alleged conduct could not reasonably be viewed as "a deviation from all reasonable bounds of decency and [as] utterly intolerable in a civilized community." Id. at 791.
As detailed below, Defendants' motion clearly establishes fatal deficiencies regarding material elements of both live claims. The burden thus shifted to Bailey to "go beyond the pleadings and . . . designate specific facts showing that there is a genuine issue for trial." Celotex Corp., 106 S. Ct. at 2553 (internal quotation marks omitted) (citing Fed. R. Civ. P. 56(e)). Since Bailey did not respond, he necessarily failed to meet his responsive burden. Plaintiff's claims fail as a matter of law, and the Defendants are entitled to summary judgment.
The Court, first, briefly reprises the District Court's analysis to dispense with Bailey's outrage and official capacity claims. Judge Hood's prior analysis resolves the same issues relative to the Corrections Defendants.
The District Court, addressing the dismissed Defendants' Rule 12 motion, thoroughly summarized the fatal deficiencies in Plaintiff's outrage claim:
DE 41, at 10-12. Bailey's claims against the Defendants rest on their alleged failure to remedy the same conduct that the District Court found insufficient to state a facially valid outrage claim under Kentucky law. Nothing in this record indicates, to the Court, that the Defendants' administrative failure-to-remedy might be problematic when the underlying conduct itself was insufficiently egregious. The outrage claims fail as a matter of law.
Similarly, the District Court's analysis of Plaintiff's official capacity remains apt:
The Eleventh Amendment bars this Court from exercising jurisdiction over Bailey's claims against the Defendants in their capacity as state officials. Thus, Bailey's official capacity claims, too, fail as a matter of law. The Court now turns to Bailey's Eighth Amendment claim.
Bailey asserts, under a liberal construction of his Complaint, that Adams, Ballard, Beehler, Burkett, Cochran, and Jolly acted with deliberate indifference to his milk and beef allergies under 42 U.S.C. § 1983
The Sixth Circuit has succinctly stated the contours of the legal framework for Eighth Amendment conditions of confinement claims, such as Bailey now brings:
Richmond v. Settles, 450 F. App'x 448, 455 (6th Cir. 2011) (internal quotation marks and citations removed); see also Flanory v. Bonn, 604 F.3d 249, 253 (6th Cir. 2010). In the medical context, "to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend `evolving standards of decency' in violation of the Eighth Amendment." Estelle v. Gamble, 97 S.Ct. 285, 292 (1976). Per the cases, deliberate indifference, in turn, has subjective and objective components. Perez v. Oakland Cnty., 466 F.3d 416, 423 (6th Cir. 2006).
Regarding the objective prong, "[i]n cases involving an inmate's medical needs, the need `must be, objectively, sufficiently serious.'" Id. (citing Farmer v. Brennan, 114 S.Ct. 1970 (1994)). "A `serious' medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002) (internal citations omitted).
"In considering the subjective component, [the Sixth C]ircuit has emphasized that a plaintiff must produce evidence showing that the official being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk." Perez, 466 F.3d at 424; Rouster, 749 F.3d at 446 (setting out test). Deliberate indifference is "a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011) (quoting Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 117 S.Ct. 1382, 1391 (1997)); see also Farmer, 114 S. Ct. at 1980 (adopting "subjective recklessness" as the test for deliberate indifference);
"[T]he subjective intentions of prison authorities must be demonstrated by objective manifestations of such intent, and cannot be proved by factually unsupported, conclusory opinions of the court or of the prisoners or their representatives." United States v. Michigan, 940 F.2d 143, 154 n.7 (6th Cir. 1991). However, "courts may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious[,]" Warren, 576 F. App'x at 553 (internal quotation marks omitted) (quoting Hope v. Pelzer, 122 S.Ct. 2508, 2514 (2002)), or in other "usual ways, including inference from circumstantial evidence." Id. (quoting Farmer, 114 S. Ct. at 1981).
First, regarding the claims generally, the Court makes the following observations. Supervisory liability does not lie in § 1983 actions unless Plaintiff shows "that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it." Taylor v. Mich. Dep't of Corr., 69 F.3d 76, 80-81 (6th Cir. 1995); see also Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006). "Allegations of supervisory liability by themselves, moreover, will not do the trick. Instead of holding supervisors liable on a theory of vicarious liability, the supervisors must have actively engaged in unconstitutional behavior to be liable under § 1983." Mitchell v. Hininger, 553 F. App'x 602, 607 (6th Cir. 2014) (internal quotation marks removed). "[S]imple awareness of employees' misconduct does not lead to supervisor liability." Leary v. Daeschner, 349 F.3d 888, 902 (6th Cir. 2003). Further, a "prerequisite of supervisory liability under § 1983 is unconstitutional conduct by a subordinate of the supervisor." Womack v. Conley, 595 F. App'x 489, 495 (6th Cir. 2014) (quoting McQueen v. Beecher Cmty Schs., 433 F.3d 460, 470 (6th Cir. 2006)). Finally, and of particular relevance here, "denial of administrative grievances or the failure to act by prison officials does not subject supervisors to liability under § 1983." Grinter v. Knight, 532 F.3d 567, 576 (6th Cir. 2008) (internal citations and quotation marks omitted). Judge Hood already so held. See DE 41, at 14.
Bailey's allegations ("refusal of defendants . . . to remedy the wrong after being informed of the violation") fail under the applicable standards. Bailey alleges no food service or medical care incident in which any Defendant actively or directly participated. "A mere failure to act will not suffice to establish supervisory liability." Essex v. Cnty. of Livingston, 518 F. App'x 351, 355 (6th Cir. 2013). The closest connection Bailey alleges between his purported harms and any of the Defendants is involvement in the secondstage (or later) review of his grievances (Beehler, Burkett, Jolly, and Ballard). Defendant Cochran's participation was limited to responding to two extraneous Bailey letters. DE 58-7, at 1-3 (Cochran Aff.). Bailey only claims Defendant Dunn, an intermediary, failed to respond to his grievance.
In short, Plaintiff fails to allege the type of involvement necessary to support a § 1983 deliberate indifference claim. Because Bailey makes no direct-action claims against Defendants, and for the reasons stated above, the deliberate indifference claims fail. The Court recommends granting summary judgment on this basis.
Second, presenting no evidence in response to a well-supported motion, Bailey utterly fails to put forward sufficient proof to survive summary judgment regarding the requisite objective and subjective culpability standards. He does not, with proof adequate under Rule 56 and the applicable legal standards, show that Adams, Ballard, Beehler, Burkett, Cochran, Jolly and/or Dunn "acted wantonly, with deliberate indifference to the plaintiff's serious needs." Richmond, 450 F. App'x at 455. Defendants disavow any such intent, and the Court can find nothing in the record (again, Bailey presents no responsive evidence) to suggest that Defendants acted with the requisite bad intent to support a deliberate indifference claim.
Indeed, Bailey himself acknowledges that kitchen staff had a responsive diet, designed by a dietician. See DE 1, at 5. Defendants (excepting Dunn and Adams who, as noted above, had at most, a ministerial role in Bailey's grievance process)
Prisoners must receive "a proper diet." Cunningham v. Jones, 567 F.2d 653, 656 (6th Cir. 1977). Food satisfies this requirement if it "meet[s] nutritional and caloric requirements for humans." Griffis v. Gundy, 47 F. App'x 327, 328 (6th Cir. 2002). A prison must serve food "under conditions which do not present an immediate danger to the health and well being [sic] of the inmates who consume it." French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985). A "prisoner must show more than mere dissatisfaction with the variety, portion size or savor of his prison diet but must similarly establish symptoms such as health problems or weight loss." Gambrell v. Weichart, No. 15-C1146-JPS, 2017 WL 1194011, at *3 (E.D. Wis. Mar. 30, 2017) (internal citations and quotation marks omitted).
Plaintiff tested positive—though in the "Equivocal/Low" range, DE 58-2 (Bailey Food Allergen Screening)—for allergies to milk and beef.
Bailey's theory appears to be that Defendants' reliance on the existing diet, despite his request for a new, particularized diet, is evidence of deliberate indifference. The Court disagrees. Bailey baldly claims entitlement to an individualized diet and utterly fails to prove the diet NTC personnel used was improper.
Plaintiff did not submit the allegedly deficient diet and makes only limited, disjointed allegations:
DE 1, at 6-7. NTC had an allergy-responsive diet and implemented that in the kitchen. Bailey in no way justifies a diet tailored only to him. NTC either solved Bailey's grieved complaints (by ensuring kitchen receipt of and implementation of the diet) or noted that specific steps (provision of the drink) had already occurred. Not only is there no substantive violation here, as Judge Hood's dismissal order finds, Defendants also reacted administratively in a proper and complete manner. For these and all of the stated reasons, Bailey, who seems to have abandoned his pursuit of this case, faces an adverse judgment.
Plaintiff entirely fails to establish that Defendants disregarded his food allergies in any way, much less that they did so recklessly or intentionally. Defendants were not deliberately indifferent to a denial of the "minimal civilized measure of life's necessities" by failing to order development of a Bailey-specific diet. Farmer v. Brennan, 114 S.Ct. 1970, 1977 (1994). Put differently, the Eighth Amendment does not require prison officials to commission an inmate-specific diet each time a prisoner is diagnosed with an "Equivocal/Low" food allergy (and Bailey presents nothing that indicates it was necessary in the particular circumstances).
The NTC-staff response to Defendant's food allergy diagnosis was wholly appropriate. Defendants met their initial Rule 56 burden. The burden then shifted to Bailey, but he did not respond or present contrary proof. Under Rule 56, Bailey must show the existence of a fact question. See Harrell v. S. Health Partners, No. 4:10-CP21-M, 2011 WL 9296, at *1 (W.D. Ky. Jan. 3, 2011) ("The pivotal question is whether the party bearing the burden of proof has presented a jury question as to each element of its case." (quotation and internal quotation marks omitted)). Bailey's only proof, such as it is, is the pleadings. The Complaint though verified, contains mostly bald conclusions on categorical allegations. Faced with specific contrary proof presented by Defendants, Bailey made no response. Defendants, on the full record, are entitled to judgment as a matter of law.
For the foregoing reasons, the Court
The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights concerning this recommendation, issued under subsection (B) of the statute. As defined by section 636(b)(1) and Rule 72(b), within fourteen days after being served with a copy of this decision, any party may serve and file specific written objections to any or all findings or recommendations for de novo consideration by the District Court. The parties should consult the aforementioned statute and rule for specific appeal rights and mechanics. Failure to object in accordance with Rule 72(b) normally waives a party's right to review. See Thomas v. Am, 106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981).
Correct Care Solutions, LLC—though not named in the Complaint (DE 1)—was previously listed as a Defendant in this matter. The undersigned ordered the erroneously named Defendant terminated from the docket. DE 60 (Order).
The Court will refer to the remaining Defendants as "Defendants," and will specifically note any intended reference to a dismissed Defendant.
