ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION FOR RULE 37 SANCTIONS AS MOOT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

JAMES D. TODD, District Judge.

James Gooch, a prisoner at the Trousdale Turner Correctional Center in Hartsville, Tennessee, filed this pro se action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The complaint concerns events that occurred while Gooch was previously housed at the Hardeman County Correctional Facility (HCCF) in Whiteville, Tennessee. The Court dismissed most of the complaint for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) but allowed Plaintiff to proceed on his Eighth Amendment excessive force claim against Defendant Dennis Tyus, who was a Lieutenant at the HCCF2 during the relevant time period. (ECF No. 12 at PageID 72.)

Plaintiff filed a motion for summary judgment on October 23, 2017. (ECF No. 35.) Thereafter, Defendant filed a motion asking the Court to dismiss the case as a sanction pursuant to Federal Rule of Civil Procedure 37 because Plaintiff walked out of his deposition before opposing counsel was finished with the examination. (ECF No. 38.) On February 14, 2018, Defendant filed both a motion for summary judgment, (ECF No. 40), and a response to Plaintiff's summary judgment motion, (ECF No. 39). Plaintiff responded to Defendant's motion for summary judgment, (ECF No. 41), and the Defendant filed a reply, (ECF No. 42).

The Court has determined, for the reasons stated below, that the Defendant is entitled to summary judgment; therefore, the motion for dismissal as a sanction under Rule 37(b) is DENIED as moot.

Pursuant to Federal Rule of Civil Procedure 56, summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]he burden on the moving party may be discharged by `showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56(c)(1) provides that "[a] party asserting that a fact cannot be or is genuinely disputed" is required to support that assertion by:

"If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c)" the district court may:

Fed. R. Civ. P. 56(e).

In Celotex Corp., the Supreme Court explained that Rule 56:

477 U.S. at 322-23. However, where the party moving for summary judgment also has the burden of persuasion at trial, the initial burden on summary judgment is higher. Under those circumstances, the moving party 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." Surles v. Andison, 678 F.3d 452, 455-56 (6th Cir. 2012) (internal quotation marks omitted).

In considering whether to grant summary judgment, "the evidence as well as the inferences drawn therefrom must be read in the light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (same). However, the Court's function is not to weigh the evidence, judge credibility, or in any way determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, the inquiry 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." Id. at 251-52.

In support of Plaintiff's motion for summary judgment, he has submitted the purported Declaration of another HCCF inmate, Richard E. Madkins, Jr. (ECF No. 35-1.) However, because that document is not signed by Madkins it will not be considered by the Court. (Id. at PageID 193.) Plaintiff also relies on his answers to Defendant's First Set of Interrogatories and Requests for Production of Document, (ECF No. 35-2 at PageID 194-211), and various exhibits, (id. at PageID 212-235; see also ECF No. 41-1 at PageID 370, 372).

Defendant's motion for summary judgment is supported by his Declaration, (Tyus Decl., ECF No. 40-3), and by excerpts from Plaintiff's deposition, (Pl.'s Dep., ECF No. 40-4).

The pertinent allegations in the complaint against Defendant Tyus are as follows:

(ECF No. 1 at PageID 3-4.)

The Eighth Amendment prohibits cruel and unusual punishment. See generally Wilson v. Seiter, 501 U.S. 294 (1991). An Eighth Amendment claim consists of both objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson v. McMillian, 503 U.S. 1, 8 (1992); Wilson, 501 U.S. at 298; Brooks v. Celeste, 39 F.3d 125, 127-28 (6th Cir. 1994); Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992). The objective component requires that the deprivation be "sufficiently serious." Farmer, 511 U.S. at 834; Hudson, 503 U.S. at 8; Wilson, 501 U.S. at 298. The subjective component requires that the official act with the requisite intent, that is, that he have a "sufficiently culpable state of mind." Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 297, 302-03.

With regard to claims of excessive force by prison officials, "[t]he test for whether the use of force violates the Eighth Amendment requires a court to determine if the defendant's conduct caused the unnecessary and wanton infliction of pain." Griffin v. Hardrick, 604 F.3d 949, 953 (6th Cir. 2010) (internal quotation marks omitted). That question "ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (internal quotation marks omitted); see also Hudson, 503 U.S. at 6-7. In Hudson, the Supreme Court held that a significant physical injury is not required to establish the objective component of an Eighth Amendment claim. 503 U.S. at 7-9. Nevertheless, not every physical contact violates the Eighth Amendment:

Id. at 9-10. It is clear, however, that the extent of injury is only one factor bearing on whether the use of force was necessary in a particular situation. See Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). "Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury." Id. at 38.

Defendant Tyus states that during his rounds on November 10, 2014, he noticed Plaintiff "looking around suspiciously and maneuvering himself like he was hiding something" as Tyus passed his cell. (Tyus Decl. ¶ 6, ECF No. 40-3 at PageID 323.) When Tyus looked into the cell, "Plaintiff jerked his hands quickly into his coat as if he was attempting to hide contraband," so Tyus decided to frisk search Plaintiff and search his cell. (Id.) However, Tyus denies that he squeezed Plaintiff's testicles or touched his genitals in any way during the search. (Id. ¶ 11, at PageID 324.) Because Plaintiff was wearing an excessive amount of clothing, including what appeared to be long-johns, Tyus thought Plaintiff might be wearing the extra layers to conceal contraband. (Id. ¶¶ 14-15, at PageID 324-325.) Plaintiff, however, alleges in the complaint that Tyus squeezed his testicles maliciously with the intent to cause him harm.

Plaintiff's claim that Defendant Tyus acted with the intent to cause him harm is defeated by his own deposition testimony. In describing Tyus's actions, Plaintiff testified:

(Pl.'s Dep. 183:12-184:24, ECF No. 40-3 at PageID 338-339.)

(Pl.'s Dep. 186:4-187:25; ECF No. 40-3 at PageID 340-341.)

(Pl.'s Dep. 192:6-15; ECF No. 40-3 at PageID 342.)

In responding to Defendant's motion for summary judgment, Plaintiff contradicts his own complaint and deposition testimony when he states, "The facts are undisputed that Defendant Tyus sexually assaulted Plaintiff[] when he used excessive force by squeezing his testicles during a[n] unauthorized strip search in violation of the Eighth Amendment." (ECF No. 41 at PageID 346 (emphasis added).) Plaintiff then argues at length that Defendant Tyus was not permitted to conduct the strip search without prior authorization by the Commissioner or his designee, citing TDOC Policy 506.06(VI)(H), which he apparently contends shows that Tyus had malicious intent. (ECF No. 41-1 at PageID 367). However, as stated, Plaintiff alleged in the complaint that Tyus squeezed his testicles during the frisk search, not during the strip search that followed, and his deposition testimony bears that out.4 Therefore, even if Tyus was unauthorized to conduct a strip search, which he disputes, that fact is irrelevant. TDOC Policy 506.06(VI)(H)(2) states that "[a]ll inmates are subject to search at any time by institutional staff." (Id. at PageID 366; see also Tyus Decl. ¶ 3, ECF No. 40-3 at PageID 322.) Tyus also states that an officer who observes an inmate acting suspiciously has the discretion to search the inmate and/or his cell. (Tyus Decl. ¶ 4; ECF No. 40-3 at PageID 322.) Tyus exercised his discretion to frisk Plaintiff because Plaintiff looked as if he was trying to hide contraband when Tyus passed by his cell. (Id. ¶ 6, at PageID 323.) That decision to frisk Plaintiff does not raise any inference that Tyus intended to inflict harm.

Plaintiff's admission in his deposition testimony that Defendant Tyus believed he was feeling drugs or other contraband Plaintiff had concealed in his underwear is sufficient to refute the allegation that Tyus squeezed Plaintiff's testicles with malicious intent to cause him harm. Therefore, Plaintiff has not made out an Eighth Amendment claim of excessive force.

In conclusion, the Court finds the undisputed evidence in the record shows that Defendant did not violate Plaintiff's Eighth Amendment rights. There are no genuine issues of material fact for trial, and Defendant is entitled to judgment as a matter of law on Plaintiff's Eighth Amendment claims. Therefore, Defendant's motion for summary judgment is GRANTED, and Plaintiff's motion for summary judgment is DENIED.

Although the cause of action is barely mentioned, Plaintiff's complaint also invokes the Court's supplemental jurisdiction to hear a state-law claim against Defendant Tyus for assault and battery. (ECF No. 1 at PageID 1, 6.) However, because the Court has now disposed of all federal claims in this case, supplemental jurisdiction over any remaining claims arising under Tennessee law is declined pursuant to 28 U.S.C. § 1367(c)(3).

Pursuant to 28 U.S.C. § 1915(a)(3), the Court must also consider whether an appeal by Plaintiff in this case would be taken in good faith. The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. The same considerations that lead the Court to grant summary judgment also compel the conclusion that an appeal would not be taken in good faith.

Therefore, it is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal in this matter by Plaintiff would not be taken in good faith.

The Court must also address the assessment of the $505 appellate filing fee if Plaintiff nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good faith does not affect an indigent prisoner plaintiff's ability to take advantage of the installment procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), partially overruled on other grounds by LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013). McGore sets out specific procedures for implementing the PLRA, 28 U.S.C. § 1915(a)-(b). Therefore, the Plaintiff is instructed that if he wishes to take advantage of the installment procedures for paying the appellate filing fee, he must comply with the procedures set out in McGore and § 1915(a)(2) by filing an updated in forma pauperis affidavit and a current, certified copy of his inmate trust account for the six months immediately preceding the filing of the notice of appeal.

The Clerk is directed to prepare a judgment.

IT IS SO ORDERED.