WATKINS (LARRY E.) VS. MITCHELL (DUSTIN), ET AL.
Annotate this Case
Download PDF
RENDERED: NOVEMBER 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002212-MR
LARRY E. WATKINS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 09-CI-03802
DUSTIN MITCHELL; TODD CORNERS;
VICKIE BUSH; BRIDGET GILLILAND;
ERICA GREEN; JOEL HELENBURG; AND
ROB HOWERTON, WARDEN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND THOMPSON, JUDGES; SHAKE,1 SENIOR JUDGE.
KELLER, JUDGE: Larry E. Watkins (Watkins) appeals from the circuit court’s
summary dismissal of his civil action against a number of personnel at the
1
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Blackburn Correctional Complex. On appeal, Watkins argues that the court
prematurely and/or in error dismissed his claim of retaliation. Dustin Mitchell, et
al. (the Appellees) argue that the court properly dismissed Watkins’s complaint
because he did not allege sufficient facts to support a claim of retaliation. For the
following reasons, we affirm.
FACTS
On August 3, 2009, Watkins filed a complaint in Fayette Circuit Court
alleging that appellee Vickie Bush (Bush) filed a false disciplinary report against
him. Watkins further alleged that, when he filed a grievance against Bush, prison
officials took retaliatory actions against him resulting in his transfer to another
facility and loss of good time credit.
In his complaint, Watkins states that the following events took place
in late May and early June 2009:
1. As Watkins was leaving the dining room, Bush stopped him and
took his hat and identification card. Watkins asked Bush for her name and, as he
walked away from her, Bush referred to Watkins as “you niggers;”
2. Watkins filed a grievance with the warden and internal affairs
regarding Bush’s actions and statement;
3. Appellee Bridget Gilliland (Gilliland), who investigated Watkins’s
grievance, issued a false disciplinary report indicating that Watkins admitted that
he lied about what Bush said;
-2-
4. Gilliland ordered appellees Cornors and Mitchell “to go get
[Watkins] and shake him down and not to come back without disciplinary reports;”
5. Within four hours, three additional false disciplinary reports were
filed against Watkins;
6. Watkins was “coerced into a guilty plea” and transferred from the
minimum security facility;
7. Appellee Green, the grievance coordinator, refused to process
Watkins’s grievance against Bush; and
8. That the above actions amounted to unlawful retaliation and that
the Appellees deprived him of his constitutionally guaranteed right to due process
and equal protection of the law.
Watkins attached to his complaint his affidavit indicating that he did
not tell Gilliland that he lied when he filed his grievance against Bush. Watkins
also attached an affidavit from anther inmate indicating that he heard Bush use the
term “niggas” as she walked away from Watkins.
The disciplinary documentation attached to Watkins’s complaint
includes, in pertinent part, the following:
1. “A Disciplinary Report Form Part 1 – Write Up and Investigation”
dated June 2, 2009. That report, from Gilliland, states that Watkins lied in his
grievance against Bush.
2. A “Disciplinary Report Form Part II – Hearing/Appeal” dated June
4, 2009. That report indicates that Watkins pled guilty to the charge of lying to an
-3-
employee and that he waived his right to an appeal. The adjustment officer
imposed a loss of 30 days good time as a penalty. The warden, appellee Rob
Howerton, then suspended the good time loss for a period of ninety days.
3. A “Disciplinary Report Form Part I – Write-up and Investigation”
dated June 3, 2009. That report indicates that appellees Mitchell and Corners
searched Watkins’s cell and found two razor blades, one concealed in an envelope
and one in the spine of a legal pad. They also found a “small baggie containing
four small orange pills pushed into the back of a sams card.”
4. A “Disciplinary Report Form Part II – Hearing/Appeal” dated June
4, 2009. That report indicates that Watkins again pled guilty and waived his right
to appeal. The adjustment officer recommended that Watkins forfeit ninety days of
good time credit. Howerton agreed with this disposition.
5. A “Detention Order” dated June 3, 2009, confining Watkins in
administrative segregation pending investigation by the adjustment committee.
The order notes that Watkins was claiming that the administrative segregation was
retaliation for his grievance against Bush.
6. A “Reclassification Custody Form” dated June 4, 2009, indicating
that Watkins could no longer be housed in a minimum security facility.
Following the disciplinary proceedings and the issuance of the
reclassification custody form, Watkins was transferred to Northpoint Training
Facility. From Northpoint, Watkins wrote a number of letters asking about the
-4-
status of his grievance against Bush and requesting that any record of the
proceedings against him at Blackburn be stricken from his record.
Following receipt of Watkins’s complaint, the Appellees filed a
response and motion to dismiss under Kentucky Rule of Civil Procedure (CR)
12.02(f). In that document, the Appellees argued, as they do before us, that their
actions against Watkins were not retaliatory because any investigation was
justified, and he was guilty of the offenses charged.
The court, in a summary order, dismissed Watkins’s complaint.
Watkins then filed a “Request to Respond to Defendants’ Response and Motion to
Dismiss,” which was, in fact, a response, followed by a motion to proceed in forma
pauperis on appeal.
The court, treating Watkins’s request to respond as a motion to
reconsider, first noted that it had issued the order dismissing Watkins’s complaint
prematurely. Therefore, it rescinded that order and issued a second order
dismissing Watkins’s appeal. In that order, the court noted the history of
Watkins’s grievance and disciplinary proceedings and found that Watkins had not
met his burden of establishing a claim of retaliation nor had he met his burden of
proving that he had been deprived of equal protection of the law.
STANDARD OF REVIEW
A court should not grant a motion to dismiss for “failure to state a
claim upon which relief can be granted” under CR 12.02(f)
-5-
unless it appears the pleading party would not be entitled
to relief under any set of facts which could be proved in
support of his claim. In making this decision, the circuit
court is not required to make any factual determinations;
rather, the question is purely a matter of law. Stated
another way, the court must ask if the facts alleged in the
complaint can be proved, would the plaintiff be entitled
to relief?
James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal citation
omitted). Because the circuit court made its determination as a matter of law, we
review it de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001).
-6-
ANALYSIS
With the preceding standard in mind, we review the issue raised by
Watkins on appeal – whether the trial court erred in dismissing his claim of
retaliation.2
A retaliation claim essentially entails three elements: (1)
the plaintiff engaged in protected conduct; (2) an adverse
action was taken against the plaintiff that would deter a
person of ordinary firmness from continuing to engage in
that conduct; and (3) there is a causal connection between
elements one and two-that is, the adverse action was
motivated at least in part by the plaintiff's protected
conduct.
Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Watkins alleges that the Appellees searched his cell and planted
evidence and filed additional disciplinary charges in retaliation for his filing of a
grievance against Bush. Prisoners have a right “to file nonfrivolous legal claims
challenging their convictions or conditions of confinement.” Id. at 395
(citing Lewis v. Casey, 518 U.S. 343, 356, 116 S.Ct. 2174, 135 L. Ed. 2d 606
(1996)). Therefore, Watkins had a right to file a grievance against Bush.
However, he did not have a right to file a falsified grievance.
After Watkins filed his grievance, prison officials conducted an
investigation. As part of that investigation, Gilliland asked Watkins why he had
lied when he put in his grievance that Bush had used the term “you niggers.”
2
We note that the Appellees’ brief contains an argument regarding Watkins’s claim that he was
not provided equal protection under the law. While Watkins made that claim before the circuit
court, he did not make an equal protection argument in his brief before us; therefore, we will not
address that issue.
-7-
According to Gilliland, Watkins admitted that he had lied in his grievance.
Therefore, Gilliland began disciplinary proceedings against Watkins based on that
alleged admission. At the hearing regarding the charge that he had lied to an
employee, Watkins pled guilty, thus admitting that he had lied regarding Bush’s
alleged comment.
Watkins argues before us, as he did before the circuit court, that he
did not lie about Bush’s comment and that he did not admit to Gilliland that he lied
about that comment. However, because Watkins did not contest his guilt during
the disciplinary hearing, he cannot contest it now. See Kennedy v. Commonwealth,
544 S.W.2d 219, 222 (Ky. 1976) (An appellant is not “permitted to feed one can of
worms to the trial judge and another to the appellate court.”) Therefore, Watkins’s
grievance against Bush, which was admittedly based on a lie, was frivolous and
was not protected conduct. Because Watkins’s conduct was not protected, he
cannot meet the first prong of the Blatter test and the circuit court properly
dismissed his complaint. Furthermore, since Watkins cannot meet the first prong
of the Blatter test, we need not address the remaining two prongs.
-8-
CONCLUSION
Watkins cannot show that he was engaged in protected conduct when
the Appellees took disciplinary action against him. Therefore, we affirm the
circuit court’s dismissal of his retaliation claim.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Larry E. Watkins, Pro Se
Beattyville, Kentucky
Wesley W. Duke
Frankfort, Kentucky
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
