Hernandez v. Simmons, Case No. 3:15-cv-00954
| Decision Date | 21 September 2018 |
| Docket Number | Case No. 3:15-cv-00954 |
| Parties | GEORGE ISAAC HERNANDEZ, JR., Plaintiff, v. CHARLES SIMMONS, et al., Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
On May 29, 2015, Plaintiff George Isaac Hernandez was housed in a one-man cell in Unit 7 of the DeBerry Special Needs Facility (DeBerry) in Nashville, Tennessee. During the first shift that day, at around 8:00 a.m., Sergeant Melissa McKissick came to Hernandez's cell and ordered him to be handcuffed so that he could be taken to shower. Hernandez refused and told McKissick that it was not his assigned time to shower, that he wanted to go back to sleep, and that he would shower during the second shift. McKissick asked again, Hernandez refused again, and this sequence repeated until McKissick called the cell extraction team (CERT Team) and asked for its assistance in removing Hernandez from his cell.
The CERT Team responded and, as McKissick had done, ordered Hernandez to "cuff up" so that he could be taken for a shower. Hernandez told the CERT Team that it was not his time to shower, that he wanted to go back to sleep, and that he would shower during the second shift. When Hernandez refused many more orders to be handcuffed, the CERT Team sprayed pepper spray into Hernandez's cell. After using the pepper spray, the CERT Team members again repeatedly ordered Hernandez to cuff up. Hernandez refused. Finally, in the face of Hernandez's continued resistance, the CERT Team shot four pepper balls into Hernandez's cell.1 Hernandez then allowed himself to be handcuffed and escorted to the shower.
In this action, Hernandez challenges the defendants' use of force against him. The defendants claim that the use of force was appropriate because Hernandez refused to comply with their orders, Hernandez's refusal to shower interfered with the health and safety of other inmates, and institutional discipline and control would be compromised if they allowed Hernandez to ignore their orders without consequence. Hernandez responds that the defendants had no need to use force against him because it was not his mandatory shower day, and no other inmate who refused to shower on May 29, 2015 was forced to do so. Hernandez also claims that inmates in his unit routinely did not shower for long periods of time and frequently refused to shower without being disciplined and, finally, that he was unfairly targeted because of his Hispanic ethnicity.
Now pending is the defendants' motion for summary judgment, to which Hernandez filed a response in opposition. (Doc. Nos. 149, 153.) The defendants filed a reply (Doc. No. 154), and Hernandez made several additional filings (Doc. Nos. 155, 156, 157). For the following reasons, the defendants' motion for summary judgment will be granted.
Hernandez filed this action on September 3, 2015, alleging violations of his civil rights under 42 U.S.C. § 1983 against Deputy Warden Charles Simmons, who supervised the CERT Team; CERT Team members Lieutenant Davis, Lieutenant Wendell Howard, Corporal Jeremy Cantrell, Officer B. Morris, Officer C. Branson, and Officer Edward Spence; and Sergeant Melissa McKissick, who supervised Hernandez's DeBerry housing unit. (Doc. No. 1.) Hernandez claims that the defendants violated his Fourth and Eighth Amendment rights and his right to due process by using chemical agents to forcibly remove him from his cell. Hernandez also claims that the defendants took this action because he is Hispanic, violating his equal protection rights. (Id.) Hernandez seeks declaratory and injunctive relief and monetary damages.2 (Id.)
After screening the action under the Prison Litigation Reform Act (PLRA) and granting Hernandez's motion for in forma pauperis status, the court ordered service on all defendants. Hernandez effected service on Defendants Spence, Howard, McKissick, Branson, and Simmons (Doc. Nos. 49, 50, 51, 52, 53), who filed a single answer (Doc. No. 42). Officers Morris, Cantrell, and Davis were never served and are not parties to this action. (Doc. Nos. 55, 56, 57.)
On May 16, 2017, after the close of discovery, the defendants timely filed a motion for summary judgment and statement of undisputed material facts. (Doc. Nos. 117, 118.) Because of ongoing discovery disputes and Hernandez's refusal to attend his deposition, the court reopened discovery and allowed the defendants until August 2, 2017, to file an amended motion for summary judgment. The court ordered Hernandez to file any response within twenty-eight days after serviceof the defendants' motion. (Doc. No. 127.) On July 19 and 20, 2017, the defendants took Hernandez's deposition. (Doc. Nos. 150-6, 150-7.) Hernandez did not waive formal reading and signing of the deposition, and the defendants moved for additional time to obtain transcripts and allow for Hernandez to review them. The court extended the deadline to file an amended motion for summary judgment to October 23, 2017 and again directed Hernandez to file a response within twenty-eight days of receiving the defendants' amended motion. (Doc. No. 140.)
Hernandez did not review and sign his deposition in a timely manner, and the court again extended the time for the defendants to file an amended motion for summary judgment until November 22, 2017. (Doc. No. 146.) The defendants timely filed their amended motion for summary judgment and amended statement of undisputed material facts on November 22, 2017. (Doc. Nos. 149, 150.) Hernandez filed a "sworn affidavit and amended opposition to the defendants' amended motion for summary judgment" and a response to the amended statement of undisputed material facts on December 18, 2017.3 (Doc. Nos. 152, 153.)
At the time of the events relevant to this action, Hernandez was housed in a single-man cell in Unit 7F, a segregated housing unit at the DeBerry Special Needs Facility. It is undisputed that, at around 8:00 a.m. on Friday, May 29, 2015, during the first shift, McKissick ordered Hernandezto take a shower. (Doc. No. 1, PageID# 5; Doc. No. 150, PageID# 1507; Doc. No. 150-1, Page ID# 1513; Doc. No. 153, PageID# 2179-80.) The parties dispute whether prison policy required Hernandez to take a shower at that time and on that day.
The defendants claim that DeBerry post orders mandated that segregated inmates shower on Mondays and Fridays. (Doc. No. 150-1, PageID# 1514; Doc. No. 150-2, PageID# 1518; Doc. No. 150-3, PageID# 1552.) In support of this claim, the defendants submit copies of DeBerry post orders from 2014 and 2015 regarding inmate showers, which state that inmates shall shower at least every three days and that showers are mandatory on Monday and Friday. (Doc. Nos. 150-2, 150-3.) Hernandez argues that these post orders did not apply to him. (Doc. No. 153, PageID# 2178-80.) He notes that the 2014 post order states that it covers "Unit 7A - Supportive Living IV," which is not the unit where he was housed. (Doc. No. 150-2; Doc. No. 153, Page ID# 2179-80.) Hernandez also notes that the 2015 post order was not approved until July 1, 2015, more than a month after the May 29, 2015 incident at issue. (Doc. No. 150-3; Doc. No. 153, Page ID# 2179-80.) Moreover, Hernandez argues that inmates in his unit were split into a "high side" and a "low side," and that, on May 29, 2015, the high side where he was housed was not scheduled to shower until the second shift. (Doc. No. 150-7, PageID# 2096.) Hernandez states that this is why, when McKissick woke him and ordered him to shower, he told her that he wanted to keep sleeping and would shower later. (Id. at PageID# 2096-97, 2121, 2123-24; Doc. No. 1, PageID# 5.) He also testified that every other inmate on the high side showered during the second shift. (Doc. No. 150-7, PageID# 2096.) The defendants do not offer any evidence to refute that point.
The parties also dispute why McKissick ordered Hernandez to shower. Hernandez states that McKissick singled him out because he is Hispanic. (Doc. No. 150-6, PageID# 1821; Doc. No. 150-7, PageID# 2098.) Hernandez states that he was the only Hispanic inmate housed in Unit 7Fand was the only inmate McKissick forced to shower on that day. (Doc. No. 1, PageID# 6; Doc. No. 150-7, Page ID# 2098-2100, 2123.) He states that McKissick knew that he was Hispanic because she had asked him his ethnicity "the first time [he] ran into her many years ago." (Doc. No. 150-7, PageID# 2106.) Hernandez finds evidence of discrimination in the fact that there were non-Hispanic inmates in his unit who had not showered for a longer period of time than Hernandez (Doc. No. 150-7, PageID# 2099, 2104, 2113), and who also refused to shower during the first shift, but were not punished (Doc. No. 153, PageID# 2197, 2199, 2200). Hernandez admits that McKissick did not make any statements suggesting that she was aware of or acting because of Hernandez's ethnicity. (Id. at PageID# 2099.) However, Hernandez states that he "felt like . . . [McKissick] was picking on me, . . . it wasn't my turn to shower and I told her no, I want to go to sleep and I'll shower on second shift." (Id. at PageID# 2123.) Hernandez testified that, "if [being dirty] is not an option, . . . then those inmates should have been taking showers too," and that, "if [McKissick] would have treated me like every other inmate on the high side and not discriminated against me particularly, then, that day, I would have taken a shower at the scheduled time." (Id. at PageID# 2097, 2113-14.)
McKissick states that she ordered Hernandez to shower because the post order established that it was his mandatory shower day and because he was "exuding a very unpleasant body odor due to his poor hygiene." (Doc. No. 150-1, PageID# 1514.) Nearly a month after the incident, McKissick explained to her captain by e-mail that Hernandez was given:
a force[d] shower . . . due to his constant refusal to shower and his very poor...
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