Roundtree v. Dunlap, et al

Filing 7

Order: Plaintiff's claims brought under 42 U.S.C. § 1983 be, and the same hereby are, dismissed pursuant to 28 U.S.C. § 1915(e) and §1915A. Plaintiffs state-law claims be, and the same hereby are, dismissed withoutprejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision could not be taken in good faith. Judge James G. Carr on 7/19/19. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Antonio Nikki Roundtree,

Case No. 3:18CV1198

Plaintiff
v.

ORDER

Tyler Dunlap, et al.,
Defendants

Plaintiff Antonio Nikki Roundtree brings this action pursuant to 42 U.S.C. § 1983 against
defendants Tyler Dunlap, Gary C. Mohr, Warden James S. Haviland, Lieutenant Briely, and
Brian Wittrup.1 Roundtree is currently incarcerated at the Southern Ohio Correctional Facility in
Lucasville, Ohio, but the instant action pertains to events at the Allen Correctional Institution in
Lima, Ohio, where he was incarcerated at the time Jurisdiction is proper under 28 U.S.C. §
1331.2
For the following reasons, I dismiss this case.

1

Plaintiff states that at the time of the events at issue here, defendant Tyler Dunlap is a correctional officer at Allen
Correctional Institution, Gary Mohr is the director of the Ohio Department of Rehabilitation and Corrections, James
Haviland is the warden at Allen Correctional Institution, Lieutenant Briely is the Rules Infraction Board lieutenant at
Allen Correctional Institution, and Brian Wittrup is the chief of classifications at the Ohio Department of
Rehabilitation and Corrections. (Doc. 1 at 6-7).
2

Plaintiff also invokes this Court’s supplemental jurisdiction pursuant to 28 U.S.C. § 1367. (See Doc. 1 at 6).

Background
The events giving rise to this case began on November 8, 2016.
A. The contraband
Roundtree alleges that on November 8, 2016, he was sitting on the bed in his cell texting
on a cell phone when defendant correctional officer Tyler Dunlap walked up to the door of his
cell and asked Plaintiff what he had in his hand. Plaintiff stood up, tried to conceal the cell
phone, and told Dunlap that he had nothing in his hand. Dunlap asked Roundtree if the object
was a phone, and Roundtree unsuccessfully attempted to flush the cell phone down the toilet.
According the complaint, Dunlap called for back-up and sprayed Rountree with mace. Plaintiff
claims that instead of placing him in handcuffs, Dunlap placed him in a choke hold and both fell
to the floor. Roundtree states that he raised his hands prior to being taken to the floor to avoid an
altercation, but which resulted in a false accusation of assault. After they fell to the floor,
Dunlap began applying “hammer fists” to Plaintiffs ribs. (Doc. 1 at 8-9, ¶¶ 1-14).
Plaintiff was taken to the “hole” and a nurse came to see him. Plaintiff told the nurse he
was fine. Roundtree claims that the next day, his rib area was painful and swollen so he went to
sick call and the nurse told him about the injuries that came from Dunlap’s hammer fists.
Roundtree alleges that he received a “second opinion from another nurse” that there is “no cure”
for sore, cracked and broken ribs, and it took almost a year for the pain in his ribs to go away.
(Id. at 9-10, ¶¶ 16-19). That said, Plaintiff does not allege that he was diagnosed with fractured
or broken ribs, but that he was diagnosed by three different nurses with “bruised ribs, muscle
spasms, sore neck, and bruised muscles.” (Id. at 20-21, ¶ 14). Roundtree does not allege that he
was examined by a doctor, received x-rays, prescribed medication for pain or muscle spasms, or
received any medical treatment.

2

B. Conduct report and RIB hearing
Dunlap prepared a conduct report, which Plaintiff attached to the complaint. The report
states that Dunlap ordered Roundtree to give him the cell phone, but Plaintiff did not comply and
instead threw a cup of coffee at Dunlap and wrestled past Dunlap to the toilet and placed the
phone in the toilet. According to the report, Roundtree ignored Dunlap’s directives and pulled a
“brown balled up paper towel” from his underwear, which he swallowed. Dunlap reports that he
applied hammer fist strikes to Roundtree to obtain compliance with his directives. Responding
backup officers secured Roundtree, placed him in handcuffs, and retrieved the cell phone from
the toilet. (Doc. 1-2).
Plaintiff was charged with violations of institutional rules 4, 20, and 51. (Doc. 1 at 17, ¶
2). A Rules Infraction Board (“RIB”) hearing was scheduled for November 23, 2016. (Id. at 10,
¶ 25). Defendant Lieutenant Briely conducted the RIB hearing.
At the hearing, Dunlap testified that he did not see Roundtree with a coffee cup but
believed that Plaintiff threw his coffee cup because, when the incident was over, Dunlap had
coffee on his pants leg. Briely asked Dunlap if he thought Plaintiff was trying to hurt him or
attempting to flush the cell phone, and Dunlap answered: “flush the cell phone.” Plaintiff claims
that the assault charges against him should have been thrown out because Dunlap’s testimony at
the RIB hearing was exculpatory, and Briely overlooked Dunlap’s “perjury.” (Id. at 11, ¶¶ 2730; see also id. at 17-18, ¶¶ 3-7). Roundtree alleges that Dunlap is trained in martial arts, and
when Roundtree testified at the RIB hearing concerning the hammer fist strikes, Briely
acknowledged Dunlap’s training. (Id. at 11, ¶ 31).

3

Plaintiff was found guilty by the RIB of resisting arrest, assault, and contraband, and
sentenced to time served for resisting arrest, 30 days for assault, and 30 days for contraband to be
served in the “LPH” program. (Id. ¶¶ 32-34). The RIB’s ruling is not attached to the complaint.
C. Appeal of RIB ruling and security level classification
Roundtree appealed the RIB assault conviction to Warden Haviland and Director Mohr.
His appeal was denied, and Plaintiff complains that neither listened to the tape of the RIB
hearing even though he explained in his appeal that Dunlap “changed his story” at the hearing
regarding the assault charge in the conduct report. (Id. at 12, ¶¶ 35, 36). Roundtree sent multiple
letters to defendant Mohr explaining that he had overlooked evidence but was told that the RIB’s
decision was final.
As a result of the RIB’s ruling and assault conviction, a level 4B security classification
was recommended, which Plaintiff appealed. Plaintiff states that he “won” this appeal,3 but a
security level 3 was recommended for attempting to destroy evidence. (Id. at 13, ¶¶ 44, 50-52;
Doc. 1-3). Plaintiff unsuccessfully appealed the level 3 security recommendation on the grounds
that he was never charged with or found guilty of attempting to destroy evidence, but his appeal
was denied. (Id. at 14, ¶¶ 54-57).
Roundtree alleges that, at some point, “Columbus” was asking why he was still at the
Allen Correctional Institution if he behaved as described in the conduct report. Plaintiff claims
that Briely and Haviland should have explained to “Columbus” that Dunlap “changed his story”
regarding the rule 4 assault but did not do so, and hid Dunlap’s lies in the conduct report

3

Deputy warden Corey Foster, who is not a defendant in this action, responded to Roundtree’s level 4B security
appeal: “I APPROVE the recommended placement of 4B appeal based on documentation forwarded from RIB
Case# ACI-16-004247. However, the committee is recommending level 3 placement for attempting to destroy
evidence.” (Doc. 1-3 (emphasis in original)).

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regarding the assault charge and his level 4B security appeal. (Id. at 12, ¶¶ 40-43; id. at 14, ¶
58). Plaintiff was ultimately transferred to the Southern Ohio Correctional Facility.
D. Setion 1983 claims and relief sought
Roundtree states that he exhausted his administrative remedies concerning the claims in
the instant action. Roundtree claims that he improperly received a level 4B security
classification because he was incorrectly convicted of assault by the RIB which was not
corrected on appeal, and because Haviland hid and destroyed evidence concerning the RIB
hearing and Plaintiff’s appeal of his 4B security classification. (See id. at 17-22).
Plaintiff seeks the following relief: (1) declaratory judgment that Dunlap prepared a false
conduct report and admitted at the RBI hearing that the conduct report was not truthful, which
resulted in a change to Plaintiff’s security level; (2) an order vacating the disciplinary
proceedings ACI-16-4347 and expunging Roundtree’s record regarding those proceedings; (3)
declaratory judgment against “defendants” whose acts and omissions violated the laws of the
Ohio and the United States Constitution; (4) an injunction ordering “defendants” not to
overlook, spoliate, or withhold evidence; (5) an injunction ordering correctional officers not to
use unnecessary force such as “hammer fists” and cause physical harm; (6) an injunction
prohibiting the making of false conduct reports and accusations; and (7) compensatory and
punitive damages in the amount of $50,000.00 from each defendant, totaling $250.000.00, jointly
and severally. (See id. at 23-24).
Standard of Review
Pro se pleadings must liberally construed by the Court. Boag v. MacDougall, 454 U.S.
364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972). That said, the district
court is required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to

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state a claim upon which relief can be granted, lacks an arguable basis in law or fact, or seeks
monetary relief against a defendant who is immune from such relief. See Neitzke v. Williams,
490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996).
The dismissal standard for Fed. R. Civ. P. 12(b)(6) articulated in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) governs dismissal for
failure to state a claim under § 1915(e)(2)(B) and 1915A. Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010). A cause of action fails to state a claim upon which relief may be granted when it
lacks plausibility in the complaint. See Twombly, 550 U.S. at 564.
Analysis
Roundtree brings this action pursuant to 42 U.S.C. § 1983. To state a claim under §
1983, Roundtree must allege “(1) that there was the deprivation of a right secured by the
Constitution and (2) that the deprivation was caused by a person acting under color of state law.”
Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003) (citations omitted).
To the extent that Roundtree sues defendants in their official capacities for damages,
those claims are barred by Eleventh Amendment state sovereign immunity because such claims
impose liability on the office these public officials represent. Official capacity claims for
injunctive relief are not barred by sovereign immunity. See Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 89-90 (1989) (citations omitted).
Also barred are Plaintiff’s claims against defendants solely in their supervisory capacity
with overall responsibility for enforcing policies at the Ohio Department of Rehabilitation and
Corrections. Respondeat superior does not apply to § 1983 claims and cannot serve as a basis
for liability. Iqbal, 556 U.S. at 676, Monell v. Dep’t of Soc. Servs, 436 U.S.658, 690-91 (1978).

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“[Section] 1983 liability of supervisory personnel must be based on more than the right to
control employees.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (citation omitted).
Liability under § 1983 is premised upon active unconstitutional behavior, not a mere failure to
act. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002) (citations omitted). To the extent that
Roundtree’s § 1983 claims against defendants are asserted in their supervisory capacities, those
claims are dismissed for failure to state a plausible claim upon which relief may be granted.
Finally, Roundtree’s claims are not cognizable under § 1983 where a successful ruling
would necessarily imply the invalidity of his disciplinary conviction and the punishment
imposed,4 and those claims are dismissed. See Murray v. Unknown Evert, 84 F. App’x 553, 555
(6th Cir. 2003) (plaintiff’s claim that a finding of guilt for the misconduct of threatening
behavior is false is not cognizable under § 1983 because, if established, necessarily implies the
invalidity of his disciplinary conviction; plaintiff must show his misconduct conviction has been
invalidated in order to state a cognizable § 1983 claim) (citing Edwards v. Balisok, 520 U.S. 641,
648 (1997); Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). To the to the extent that a ruling
in Plaintiff’s favor would imply the invalidity of his disciplinary conviction, those claims are not
cognizable and are dismissed.
To the extent that Plaintiff’s § 1983 claims are cognizable and not subject to dismissal for
the foregoing reasons, Roundtree’s § 1983 claims fall into two categories: (1) defendants
violated his constitutional right to due process5 in connection with the disciplinary process,
appeal, and security level classification resulting from the events on November 8, 2016; and (2)

4

Roundtree asks this Court, among other requests, to vacate the disciplinary proceeding at issue here, and expunge
“those reports” from his record. (Doc. 1 at 23, ¶ 2).
5

Roundtree does not the source of his claimed constitutional right, but liberally construing the complaint, I will
analyze his due process claim under the Fourteenth Amendment.

7

Dunlap’s use of hammer fists constituted excessive force in violation of the Eighth Amendment.
Plaintiff fails to allege a deprivation of any right secured by the Constitution and, therefore, fails
to state a plausible § 1983 claim upon which relief may be granted.
A. Due process
Plaintiff claims that defendants violated his constitutional right to due process because he
was placed in a higher security classification as a result of a false conduct report and unsupported
conviction of assault after a RIB hearing, which was not corrected on appeal. But “[w]ithout a
protected liberty interest, [a prisoner] cannot successfully claim that his due process rights were
violated because ‘process is not an end in itself.’” Ford v. Harvey, 106 F. App’x 397, 399 (6th
Cir. 2004) (quoting Olim v. Wakinekona, 461 U.S. 238, 250 (1983)).
“[A] prisoner does not have a constitutional right to placement in any particular prison
[Olim, 461 U.S. at 245], or in a particular security classification.” Id. (citing Montanye v.
Haymes, 427 U.S. 236, 242 (1976)). “[T]he Constitution itself does not give rise to a liberty
interest in avoiding transfer to more adverse conditions of confinement.” Wilkinson v. Austin,
545 U.S. 209, 221-22 (2005) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976) (no liberty
interest arising from Due Process Clause itself in transfer from a low security prison to a
maximum security facility)). “Even in the absence of a disciplinary conviction, a state may
transfer a prisoner to a less desirable facility without implicating the Due Process Clause.”
Workman v. Wilkinson, 23 F. App’x 439, 440 (6th Cir. 2001) (citing Meachum v. Fano, 427 U.S.
215, 224-25 (1976)).
While transfer to a supermax facility triggers due process considerations, those
considerations do not apply here because the Southern Ohio Correctional facility is not a
supermax prison – Ohio’s only supermax facility is the Ohio State Penitentiary. See Austin, 545

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U.S. at 209; see also Thompson v. Oppy, No. 1:15-CV-621, 2017 WL 6154402, at *1-2 (S.D.
Ohio Dec. 8, 2017) (prisoner transferred from Toledo Correctional Institution to Southern Ohio
Correctional Facility fails to state a § 1983 claim upon which relief may be granted with respect
to his claim that his security classification was increased without due process) (citing Austin, 545
U.S. at 221-22)).
Roundtree’s 4B security level classification and transfer to the Southern Ohio
Correctional Facility does not give rise to a constitutional liberty interest that implicates due
process considerations. Accordingly, I find that Roundtree fails to state a § 1983 due process
claim upon which relief may be granted with respect to a change in his security classification and
transfer from Allen Correctional Institution to the Southern Ohio Correctional Facility.
Nor does a prisoner have a constitutional right to be free from erroneous allegations of
misconduct. See Goudlock v. Blankenship, No. 1:13-CV-1215, 2015 WL 5730219, at *6 (N.D.
Ohio Sept. 28, 2015) (a prisoner has no clearly established constitutional right to a “correct”
conduct report or to a certain kind of testimony at a disciplinary hearing) (collecting cases);
Reeves v. Mohr, No. 4:11CV2062, 2012 WL 275166, at *2 (N.D. Ohio Jan. 31, 2012) (same)
(collecting cases); see also Jones v. McKinney, 172 F.3d 48 (6th Cir. 1998) (Table) (“McKinney
did not violate Jones’s constitutional rights, even if the disciplinary report was false, because a
prisoner has no constitutionally protected immunity from being wrongly accused.”) (citation
omitted). A false conduct charge may result in a constitutional violation if, as a result, a prisoner
is deprived of a protected liberty interest without due process. See Reeves, 2012 WL 275166, at
*2 (citing Sandin v. Conner, 313 U.S. 472, 485 (1995)). But I have determined that Rountree’s
change in security classification and transfer to the Southern Ohio Correctional Facility does not
implicate a constitutionally protected liberty interest. Therefore, even accepting the truth of

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Roundtree’s allegation that Dunlap’s conduct report was false, he fails to state a § 1983 claim
upon which relief may be granted.6
Roundtree claims that the RIB hearing produced an erroneous finding of guilt with
respect to the assault charge because of the purported inconsistency between the content of
Dunlap’s conduct report and Dunlap’s testimony at the RIB hearing. As discussed above,
Roundtree has no due process rights with respect to the conduct report and RIB hearing which
resulted in an assault conviction and ultimate reclassification his security level because there is
no constitutionally protected liberty interest in a particular security classification. But to the
extent due process guarantees apply to the RIB hearing, those guarantees were satisfied here.7
Roundtree had notice of the RIB hearing and charges against him and was provided with
an opportunity to testify before the RIB, present evidence and his version of the events, and
challenge the conduct report. Dunlap testified before the RIB and explained why, when he
prepared the conduct report, he believed Plaintiff had thrown coffee at him. “[N]ot much
evidence is required to support the action of a prison disciplinary board.” Williams v. Bass, 63
F.3d 483, 485 (6th Cir. 1995) (citing Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445
(1985)). I am not required to examine the record, assess witness credibility, or independently
weigh the evidence. “Instead, the relevant question is whether there is any evidence in the record

6

Plaintiff does not raise a § 1983 due process claim concerning the limited privilege sanctions imposed by the RIB
after finding him guilty of the conduct charged. But even if he did, the sanction of a limited time in segregation
does not deprive Roundtree of a liberty interest protected by due process. See Sandin, 515 U.S. at 486) (30 days in
segregation does not constitute an atypical and significant hardship that implicates a constitutionally protected
liberty interest).
7

In Wolff v. McDonnell the Supreme Court addressed the due process requirements for a disciplinary hearing where
loss of good-time credits were at stake, which is not the case here, and held that the minimum due process
requirements for such a disciplinary hearing are: (1) written notice of the charges before the hearing, (2) an
opportunity to call witnesses and present evidence, and (3) a written statement of the evidence relied upon and
reason for the action taken. Wolff, 418 U.S. 539 (1974)). Roundtree alleges that he had notice of the charge before
the RIB hearing and the opportunity to present evidence at the hearing. A written statement is not attached to the
complaint, but Roundtree does not claim that he did not receive a written statement from the RIB of the evidence
relied upon and reason for the action taken.

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that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56.
Roundtree admitted to possessing contraband, attempting to flush it down the toilet, raising his
hands, and an ensuing disturbance. Even if Roundtree were entitled to due process at the RIB
hearing, which he is not, the allegations taken in the complaint, taken as true, are sufficient to
satisfy the “some evidence” test required by Hill.8
Roundtree appealed the RIB ruling and alleges that he explained to both Mohr and
Haviland that he believed that Dunlap’s conduct report was false and that Dunlap “changed his
story” at the RIB hearing. Roundtree claims he did not receive due process with respect to his
appeals because those considering his appeal did not listen to the RIB tapes and/or did not
receive complete information and documentation concerning the facts of the appeal. But a
prisoner has no due process right to appeal a disciplinary conviction. See Cordoba v. Shartle,
No. 4:09 CV3015, 2010 WL 2572854, at *5 (N.D. Ohio June 23, 2010) (the Fourteenth
Amendment does not provide a due process right to an appeal of a prison disciplinary hearing)
(collecting cases and citing among authority Wolff v. McDonnell, 418 U.S. 539 (1974)); see also
Christian v. Gluch, 918 F.2d 957 (6th Cir. 1990) (Table) (no constitutional to due process
violated where the warden ignored prisoner’s requests for proper appeal form until after time for
appeal expired). Even assuming the truth of Roundtree’s allegations that Mohr and Haviland did
not listen to the RIB hearing tapes, he was not deprived of any constitutional right to due process
with respect to his appeals of the RIB ruling.

8

Roundtree claims that the evidence before the RIB was insufficient to prove guilt on the assault charge beyond a
reasonable doubt. (Doc. 1 at 18, ¶ 7). But prison disciplinary proceedings are not criminal proceedings, and some
evidence of guilt is sufficient to satisfy due process – guilt beyond a reasonable doubt is not required. See Mullins v.
Smith, 14 F. Supp. 2d 1009, 1012 (E.D. Mich. 1998) (citing Hill).

11

B. Excessive force
Prisoners are protected from the use of excessive force by the Eighth Amendment of the
Constitution. Combs v. Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002) (citation omitted).
However, not every use of intentional force upon an inmate by a prison official constitutes an
Eighth Amendment violation. Indeed, “[t]he maintenance of prison security and discipline may
require that inmates be subjected to physical contact actionable as assault under common law[.]”
Id.
There is an objective and subjective component to an Eighth Amendment claim. A
prisoner must satisfy both to make out an excessive force claim under the Eighth Amendment.
Hopper v. Phil Plummer, 887 F.3d 744, 752 (6th Cir. 2018) (quoting Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011)).
“The subjective component focuses on the state of mind of the prison officials.” Curtin,
631 F.3d at 383. That is, “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992) (citation omitted). “[T]he good faith use of physical force in pursuit of valid penological
or institutional goals will rarely, if ever, violate the Eighth Amendment.” Jones Bey v. Johnson,
248 Fed. App’x 675, 677 (6th Cir. 2007) (citing Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir.
1986)). In order to satisfy the subjective component, the force used must be “wanton” and
“unnecessary.” Id.
A “significant injury” is not a threshold requirement for an excessive force claim. Wilkins
v. Gaddy, 559 U.S. 34, 37 (quoting Hudson, 503 U.S. at 7). While an inmate is not required to
suffer a serious injury in order to maintain an excessive force claim, the seriousness of the
inmate’s injuries may be considered in determining whether the force used was wanton and

12

unnecessary. Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321). That said, “[t]he objective
component requires the pain inflicted to be ‘sufficiently serious’” so as to violate contemporary
standards of decency. Curtin, 631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)).
Subjective component
Roundtree alleges that Dunlap applied force by the use of mace and hammer fists during
the disturbance that ensued around Roundtree’s admitted use of, and attempt to destroy,
contraband. The question is “whether the measure taken inflicted unnecessary and wanton pain
and suffering 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, 321 (1986) (internal quotation marks and citation omitted). To make
this subjective determination, courts consider the reasons or motivation for the conduct, the type
and extent of force applied, and the extent of inflicted injury. Caldwell v. Moore, 968 F.2d 595,
600 (6th Cir. 1992).
Prison officials are entitled to use physical force to compel obedience by inmates. See
Caldwell v. Moore, 968 F.3d 595, 602 (6th Cir. 1992). “The infliction of pain in the course of a
prison security measure . . . does not amount to cruel and unusual punishment simply because it
may appear in retrospect that the degree of force authorized or applied for security purposes was
unreasonable, and hence unnecessary in the strict sense.” Whitley, 475 U.S. at 319. “[T]he
question whether the measure taken inflicted unnecessary and wanton pain and suffering
ultimately turns on whether force was applied in a good-faith effort to maintain or restore
discipline or maliciously and sadistically for the purpose of causing harm.” Id. at 313.

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Taking the allegations in the complaint as true, Roundtree has not plausibly alleged, nor
can I infer from his allegations, that Dunlap’s use of force was wanton and unnecessary, rather
than to compel obedience and restore order. Here, Plaintiff alleges that, while unrestrained in his
cell, he was using contraband, attempted to conceal and lied to Dunlap regarding the contraband,
threw the contraband into the toilet, and attempted to force the phone down the toilet. (Doc. 1 at
8, ¶¶ 1-5). Plaintiff alleges that Dunlap called for backup, sprayed Plaintiff with mace and
placed him in a choke hold, whereupon both fell to the cell floor, after which Dunlap applied
hammer fists to Plaintiff’s side. (Id. at 8-9, ¶¶ 6-15). Taking Roundtree’s allegations as true,
Plaintiff fails to state a plausible claim that Dunlap’s use of force was unnecessary and wanton –
rather than in a good faith effort to restore and maintain discipline after he discovered contraband
in Roundtree’s cell. See Iacovone v. Wilkinson, No. 203-CV-652, 2007 WL 490160, at *9 (S.D.
Ohio Feb. 8, 2007) (even if force used against plaintiff was more than de minimis, it was neither
unnecessary or wanton as it occurred immediately after contraband had been discovered in
plaintiff’s cell and applied in a good faith effort to maintain and restore discipline) (citing
Hudson, 503 U.S. at 7), report and recommendation adopted, No. 2:03CV652, 2007 WL 756649
(S.D. Ohio Mar. 7, 2007).
Objective component
Nor can I infer from a liberal reading of the complaint that Roundtree has plausibly
alleged that he suffered a sufficiently serious injury to establish the objective component of his
Eighth Amendment claim. After initially denying that he suffered an injury, Plaintiff states that
he experienced pain and swelling in his rib area the next day which persisted for almost a year.
Roundtree does not allege that he was diagnosed with fractured or broken ribs, but that he was
diagnosed by three different nurses with “bruised ribs, muscle spasms, sore neck, and bruised

14

muscles.” (Id. at 20-21, ¶ 14). Roundtree does not attach any medical reports to the complaint
or allege that he was examined by a doctor, received x-rays, prescribed medication for pain or
muscle spasms, or received any medical treatment. Assuming the truth of Plaintiff’s diagnosis
concerning his ribs and allegations concerning pain and swelling, the injuries he sustained were
de minimis and do not satisfy the objective component of an Eighth Amendment excessive force
claim. See Brock v. Coonts, No. 5:17CV-P183-TBR, 2018 WL 2024865, at *5 (W.D. Ky. May
1, 2018) (collecting cases that pain, swelling, and bruising are de minimis injuries); Parkins v.
Nguyen, No. 5:17-CV-05220, 2018 WL 4956516, at *5 (W.D. Ark. Oct. 12, 2018) (abrasion to
plaintiff’s head after hammer fists administered to plaintiff’s head to secure compliance during
arrest is a de minimis injury) (citation omitted).
C. Criminal and state law claims
Roundtree alleges that Dunlap committed aggravated assault and Haviland committed the
crime of spoliation of evidence. (See Doc. 1 at 18, 19, ¶¶ 11, 14). To the extent that Roundtree
attempts to bring federal criminal charges in this § 1983 action, he lacks standing to do so, and I
dismiss those claims. See Williams v. Luttrell, 99 F. App’x 705, 707 (6th Cir. 2004) (A private
citizen “has no authority to initiate a federal criminal prosecution [against] defendants for their
alleged unlawful acts.”) (citing among authority Diamond v. Charles, 476 U.S. 54, 64-65
(1986)).
Roundtree seeks a declaration that the defendants violated the laws of the state of Ohio.
(See Doc. 1 at 23, ¶ 3). “In determining whether to retain jurisdiction over state-law claims, a
district court should consider and weigh several factors, including the ‘values of judicial
economy, convenience, fairness, and comity.’” Basista Holdings, LLC v. Ellsworth Twp., 710 F.
App’x 688, 693 (6th Cir. 2017) (quoting Carnegie-Mellon v. Cohill, 484 U.S. 343, 350 (1988)).

15

“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of
factors to be considered ... will point toward declining to exercise jurisdiction over the remaining
state-law claims.” Cohill, 484 U.S. at 350 n.7. Here, I have dismissed all of Roundtree’s federal
§ 1983 claims, and the balance of factors weighs in favor of declining supplemental jurisdiction
over Roundtree’s state-law claims. To the extent that Roundtree alleges state law claims, I
decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c).
Conclusion
It is, therefore,
ORDERED THAT:
1. Plaintiff’s claims brought under 42 U.S.C. § 1983 be, and the same hereby are,
dismissed pursuant to 28 U.S.C. § 1915(e) and §1915A;
2. Plaintiff’s state-law claims be, and the same hereby are, dismissed without
prejudice;
3. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this
decision could not be taken in good faith.
So ordered.
/S/James G. Carr
Sr. U.S. District Judge

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