Tolson v. Washburn

DAMIEAN DEVON TOLSON, Plaintiff, v. WARDEN F/N/U WASHBURN et al., Defendants.

No. 3:19-cv-00175

United States District Court, M.D. Tennessee, Nashville Division

December 30, 2022

To The Honorable Eli J. Richardson, District Judge

REPORT AND RECOMMENDATION

Alistair E. Newbern, Magistrate Judge.

This civil rights action brought under 42 U.S.C. § 1983 addresses pro se Plaintiff Damiean Devon Tolson's incarceration at the Trousdale Turner Correctional Center (TTCC) in Hartsville, Tennessee, which is operated by CoreCivic, Inc.^[1] (Doc. No. 46.) Tolson's amended complaint asserts violations of his rights under the First Sixth, and Eighth Amendments to the United States Constitution based on allegations that: (1) Defendant Scottie Hudson, III, attacked Tolson in retaliation for Tolson challenging a disciplinary write up; (2) Hudson and Defendants Sergeant Scottie Roach and Correctional Officers Kelsey Carter and Daisy Navarrette deprived Tolson of bedding, food, and showers while he was in restrictive housing; (3) Defendant Case Manager Tara Greer Fish prevented Tolson from speaking to his criminal defense attorney; (4) Roach intentionally placed Tolson in an upstairs cell despite knowing that Tolson was medically restricted to lower-level cells; (5) Defendant Correctional Officer Coby Jent denied Tolson medical care; and (6) Jent and Defendant Correctional Officer James Harmon used excessive force against Tolson, injuring his hands and wrists. (Id.)

Tolson has filed two motions for summary judgment (Doc. Nos. 172 185) that are accompanied by statements of undisputed material facts (Doc. Nos. 173, 186). Tolson did not file legal memoranda or exhibits to support his motions. The defendants responded in opposition to Tolson's motions. (Doc. No. 189.) In support of their response, the defendants filed declarations from Carter, Greer Fish, Harmon, Hudson, Jent, TTCC Grievance Coordinator Elizabeth Lopez, Navarette, and Roach. (Doc. Nos. 190-197.) The defendants also provided the TDOC grievance policy and four grievances filed by Tolson in 2019. (Doc. Nos. 195-1-195-5.) Tolson did not file optional replies.

The defendants, in turn, filed a motion for summary judgment (Doc. No. 201) supported by a memorandum of law (Doc. No. 202) and a statement of undisputed material facts (Doc. No. 203). The defendants also relied upon the exhibits to their response to Tolson's motion to support their motion for summary judgment. (Doc. Nos. 190-97.) Tolson responded in opposition to the defendants' motion (Doc. No. 206), but did not separately respond to the defendants' statement of undisputed material facts or provide supporting exhibits. The defendants filed a reply. (Doc. No. 207.)

For the reasons that follow, the Magistrate Judge will recommend that Tolson's motions for summary judgment be denied and the defendants' motion for summary judgment be granted.

I. Background

A. Tolson's Claims

Tolson initiated this action on January 31, 2019, by filing a complaint bringing claims under 42 U.S.C. § 1983.^[2] (Doc. No. 1.) Tolson then repeatedly sought to amend his complaint to add new defendants and allegations. (Doc. Nos. 16, 19, 20, 22, 25, 28, 40, 44.) Ultimately, the Court ordered Tolson to file an amended complaint that “contains all of his allegations and claims against all defendants he intends to name.” (Doc. No. 45, PageID# 307.) The amended complaint that Tolson filed in response is the operative pleading (Doc. No. 46) and, because Tolson has not provided other evidence in support of his motions for summary judgment, the following allegations regarding Tolson's claims are taken from that pleading.^[3] Facts supporting the defendants' motion are taken from their summary judgment filings as noted.

In the amended complaint, Tolson alleges that, after arriving at TTCC in November 2018, he was placed in restrictive housing (or segregation) and written up for defiance. (Id.) Tolson claims that, after the defiance charge was dismissed as unsubstantiated, prison officials began retaliating against him by keeping him housed in restrictive housing and depriving him of recreation, telephone privileges, and access to legal assistance. (Id.) Tolson was released from restrictive housing on December 13, 2018. (Id.) Tolson alleges that, as he was leaving restrictive housing, Hudson cursed at him, referencing the dismissed disciplinary write-up, and physically

It appears that Tolson attempted to verify his response to the defendants' motion for summary judgment. (Doc. No. 206.) That document includes the statements “VERIFICATION UNDER OATH SUBJECT TO PENALTY FOR PERJURY AND SELF NOTARIZATION” and “[t]his document is being signed in accordance with 28 U.S.C.A. § 1746.” (Id. at PageID# 1231.) Although Tolson references the statute that establishes the ability to make unsworn declarations under penalty of perjury, the language Tolson includes in his statement is not sufficient to invoke that statute. Section 1746 requires the use of language “in substantially the following form: . . . ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).'” 28 U.S.C. § 1746(2). Two statements are essential: “‘(i) an assertion that the facts are true and correct; and (ii) an averment that the first assertion is made under penalty of perjury.'” Myers v. Transcor Am., LLC, Civ. No. 3:08-295, 2010 WL 3824083, at *9 (M.D. Tenn. Sept. 30, 2010) (finding that pro se plaintiffs' statement did not meet § 1746 requirements because it lacked “under penalty of perjury” language). Tolson does not include the required assertion that the facts of his filing are true and correct. See, e.g., Bell v. Michigan, No. 1:19-cv-233, 2022 WL 16733015, at *5 (W.D. Mich. Aug. 22, 2022) (finding that language that did not include unqualified declaration that statements were “true and correct” did not meet statutory requirements), report and recommendation adopted by 2022 WL 5426549 (W.D. Mich. Oct. 7, 2022); Smith v. Washington, No. 1:17-cv-285, 2018 WL 6981149, at *2 n.2 (W.D. Mich. Dec. 4, 2018) (finding that plaintiff's failure to declare without qualification that statements were “true and correct” meant that document did not comply with 28 U.S.C. § 1746(2)), report and recommendation adopted by 2019 WL 131997 (W.D. Mich. Jan. 8, 2019).

More importantly, the filing that Tolson attempted to verify-his response in opposition to the defendants' motion-is not the type of document that can be considered evidence supporting a party's summary judgment argument. See Fed.R.Civ.P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.]”) Tolson's responsive brief is argument, not evidence. Thus, even if he had properly verified that document, the Court would not consider it as record evidence at summary judgment assaulted him. (Id.) Tolson states that other officers joined in the attack and returned him to restrictive housing. (Id.) Tolson alleges that, after these events, Carter and Navarrette, acting on orders from Roach and Hudson, deprived him of access to his personal property for thirty days, showers for twelve days, appropriate bedding for three days, and food for two days. (Id.)

At summary judgment, Hudson asserts that, on December 13, 2018, Tolson entered Hudson's office and, unprovoked, began punching him. (Doc. No. 203.) Hudson states by declaration that he attempted to defend himself against Tolson's attack and that the altercation spilled out of Hudson's office and into the hallway. (Doc. No. 193.) The TTCC Special Operations Response Team was called and restrained Tolson. (Id.) Tolson was then returned to restrictive housing. (Doc. Nos. 190, 193, 196, 197, 203.) The defendants assert that Carter, Hudson, Navarrette, and Roach did not deprive Tolson of bedding, food, or showers while he was in restrictive housing and did not retaliate against Tolson in any way for the December 13, 2018 attack on Hudson. (Doc. No. 203.) They further assert that Hudson and Roach did not instruct or encourage any CoreCivic employees to deprive Tolson of bedding, food, or showers while he was in restrictive housing. (Id.)

Tolson alleges several other violations in the amended complaint.

Tolson claims that he missed calls with his criminal defense attorney twice in January 2019 because Greer Fish falsely claimed that Tolson's attorney had given her a non-working number to use when placing the call. (Doc. No. 46.) Greer Fish served as a case manager in the TTCC restrictive housing unit during Tolson's incarceration. (Doc. No. 191.) At summary judgment, Greer Fish states by declaration that she was responsible for coordinating telephone calls for people in that unit. (Id.) If someone in restrictive housing was scheduled to have a telephone call with their attorney or the court, the warden's secretary emailed Greer Fish the date and time of the call and the telephone number to dial. (Id.) Greer Fish then coordinated with the restrictive housing unit security team to escort the person scheduled for a call to the telephone at the appointed time. (Id.) Greer Fish placed the call by dialing the telephone number that the warden's secretary had given her. (Id.) If the telephone number did not work, Greer Fish would contact the warden's secretary to confirm that the telephone number she dialed matched the number given to the warden's secretary. (Id.)

Greer Fish states by declaration that she...