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Brown v. Kimbrell

United States District Court, N.D. Indiana, Fort Wayne Division

October 7, 2019

TYLER RAY BROWN, Plaintiff,
v.
DARREN KIMBRELL, DAVID HOWE, and ALLEN PAVEL, Defendants.

          OPINION AND ORDER

          HOLLY A. BRADY UNITED STATES DISTRICT JUDGE

         Tyler Ray Brown is a prisoner who filed this case without a lawyer. After screening the case as required by 28 U.S.C. § 1915A, he was granted leave to proceed on two claims:

against Darren Kimbrell in his individual capacity for compensatory and punitive damages for promoting an environment of racial hatred which resulted in his fighting with another inmate on December 8, 2017, either to punish Brown or for a reason not rationally related to a legitimate nonpunitive governmental purpose in violation of the Fourteenth Amendment [and]
against David Howe and Allen Pavel in their individual capacities for compensatory and punitive damages for using force against him on December 9, 2017, either to punish Brown or for a reason not rationally related to a legitimate nonpunitive governmental purpose or excessively in relation to a legitimate purpose in violation of the Fourteenth Amendment . . ..

         ECF 4 at 3.

         On August 21, 2019, the defendants filed a summary judgment motion. ECF 52. With the motion, Brown was provided the notice required by N.D. Ind. L.R. 56-l(f). ECF 55. The notice informed him:

A summary-judgment motion has been filed against you. Attached is a copy of the motion. It asks the court to decide all or part of your case without a trial. It says that there should not be a full trial because you cannot win some or all of your claims. It asks the court to enter judgment against you. The party that filed the motion will win if the facts show that party is entitled to judgment. If you do not agree with the facts in the motion, you must submit affidavits or other evidence to dispute those facts.
Copies of Rule 56 and Local Rule 56-1 are also attached. You should carefully read - and follow - all the rules. The outcome of this case may depend on it. Following the rules does not guarantee that the summary-judgment motion will be denied. But if you do not follow the rules, you may lose this case.
Before the court rules on the motion, you have the right to file a response. If you do not respond to the summary-judgment motion, you may lose this case. If you need more time to respond, you must file a motion asking for more time before the deadline expires. The court may -but is not required to - give you more time.

Id. at 1. Attached to the notice was a copy of Local Rule 56-1 which informed him he had 28 days to file a response brief and any materials necessary to raise a genuine dispute. He also had three additional days because the motion was served by mail. See Federal Rule of Civil Procedure 6(d). September 23, 2019, was the deadline for filing a timely response. To date, Brown has neither filed a response to the motion nor a request for additional time to do so. Therefore, the court will review the summary judgment motion without a response from him.

         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Federal Rule of Civil Procedure 56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable [factfinder] could [find] for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003). Summary judgment “is the put up or shut up moment in a lawsuit . . ..” Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008).

         I. Claim against Darren Kimbrell

         Defendant Darren Kimbrell was a guard at the Steuben County Jail where Brown was detained as a pre-trial detainee. Officer Kimbrell argues he did not promote an environment of racial hatred which resulted in Brown fighting with another inmate on December 8, 2017. In his deposition, Brown explained there was only one racially charged or motivated comment during the week prior to the fight on December 8, 2019. ECF 53-3 at 7, Brown deposition at 23:1-7. Brown makes no mention of any other racially charged or motivated incidents involving Officer Kimbrell. Brown explained that “a week prior to the fight, inmate Skylar Wilbur referred to me [in front of] officer [Kimbrell] as a nigger. And I asked the officer if he was just going to allow him to call me that; and the officer stated, ‘Are you just going to let him call you that?' And that's what happened on that day.” ECF 53-3 at 4, Brown deposition at 12:19-25. Later in the deposition, he provided a more detailed explanation of the same event.

Q Let's go back to the first racial name calling that you talk about in paragraph 1, which was December 2nd, 2017. You say that the defendant Officer Darren Kimbrell was doing the walkthrough of C block that time; right?
A Yes.
Q And that's when this Skylar Wilbur said what? What exactly did he say then?
A Darren Kimbrell was doing a walkthrough. I was playing cards. And he said something to me, but I couldn't hear what he said. He just said, “Mr. Brown, ” and inmate Skylar Wilbur said, “You're just going to single out the nigger like that?”
Q And where was Skylar sitting at that point?
A He was walking laps. He was basically walking right behind Officer Darren Kimbrell.
Q And what did Kimbrell say?
A He asked him to repeat it like he couldn't hear what he said -- like he couldn't believe what he just said. And Wilbur stated again, “Are you just going to single out the nigger like that?”
Q What did Officer Kimbrell do then -- or say then?
A By then, he was completing his walkthrough, and he just was standing there looking at me. And I said, “Are you just going to let him call me that?” And he looked at me and says, “Are you just going to let him call you that, ” and he walked out.
Q Did Officer Kimbrell address Wilbur in any other fashion at that point -- say anything else to him?
A No.
Q Did you have any conversation with Wilbur directly?
A No. Q Before then had you had any conversations with Wilbur? Arguments? Any name calling?
A No.
Q So this just came out of the blue, him saying that?
A Well, the kid is white supremacy. And I'm minority in this jail, so it's not uncommon for people to call me these racial words.
Q But did Skylar Wilbur ever call you those names before that?
A No.
Q How long had you two been housed in the same cell block?
A Couple weeks.
Q Had anyone else referred to you that way in the cell block during those few weeks leading up to December 2nd?
A Not other than him and Burton.

         ECF 53-3 at 6, Brown deposition at 19:25-21:24. Burton is the inmate with whom Brown fought on December 8, 2017. The only mention of Burton using a racial slur was on December 8, 2017, immediately before the fight. ECF 53-3 at 5, Brown deposition at 15:16-19.

         “[S]imple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.” DeWalt v. Carter , 224 F.3d 607, 612 (7th Cir. 2000). However, comments which increase the likelihood of assault may be actionable. Beal v. Foster, 803 F.3d 356, 357-59 (7th Cir. 2015). Here however, there is no evidence Officer Kimbrell verbally harassed Brown. There is no evidence Officer Kimbrell used a racial slur in reference to Brown. The only evidence is that Officer Kimbrell did not correct an offender whom he heard make a racial slur about Brown. Moreover, Brown was not assaulted. It was Brown who attacked Burton. Here is how Brown described the fight:

Q Tell me what his exact words were.
A His words to me were, “I'm not paying you shit, ...

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