Evans v. France et al

Filing 80

Memorandum Opinion: For good cause shown, Mahoning County Jail defendants' motion (Doc. No. 69 ) for leave to file a summary judgment motion in excess of the page limitation for standard track motions is granted. The summary judgment motion of Mahoning County Jail defendants (Doc. No. 70 ) is granted on the ground that plaintiff, Robert Lee Evans, failed to exhaust his administrative remedies, and this case is closed. Judge Sara Lioi on 3/1/2018. (T,Je)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT LEE EVANS,

PLAINTIFF,
vs.
DEPUTY LISA FRANTZ, et al.,

DEFENDANTS.

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CASE NO. 4:16-cv-5

JUDGE SARA LIOI

MEMORANDUM OPINION

Proceeding pro se, plaintiff Robert Lee Evans (“Evans”) has brought this civil rights
action seeking damages associated with his confinement in the Mahoning County Jail on January
2, 2015. Specifically, he challenges the actions taken by certain corrections officers and staff,
insisting that he was subjected to excessive force and a deliberate indifference to his serious
medical needs, in violation of the Eighth and Fourteenth Amendments to the United States
Constitution.
Presently pending before the Court is the motion for summary judgment filed by
defendants Deputy Lisa Frantz (“Frantz”), Deputy Louis Oxley (“Oxley”), Deputy Joshua Rivers
(“Rivers”), Deputy George Cackovic (“Cackovic”), Deputy Sgt. Robert Kopey (“Kopey”),
Deputy Lt. Matthew M. Dugan (“Dugan”), Deputy Damon Perry (“Perry”), Deputy Lee
Hufnagel (“Hufnagel”), and Deputy James Mullins (“Mullins”) (collectively “Mahoning County
Jail defendants”). (Doc. No. 70 [“MSJ”].)1 Notwithstanding the fact that Evans was afforded

For good cause shown, Mahoning County Jail defendants’ motion (Doc. No. 69) for leave to file a summary
judgment motion in excess of the page limitation for standard track motions is granted.
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several extensions of time in which to file a response (see Doc. No. 76; Non-doc. Order, dated
July 3, 2017; Non-doc. Order, dated July 27, 2017), Evans did not file an opposition, and the
time for filing such a responsive brief has passed. For the reasons set forth below, summary
judgment is granted in favor of Mahoning County Jail defendants.
I. BACKGROUND
On January 2, 2015, Evans was being held in the Mahoning County Jail under a
supervised release violation of a federal conviction. (Doc. No. 57 (Second Amended Complaint
[“SAC”]) ¶¶ 1, 13, 15.) Though the impetus for the transfer is disputed, it is clear that Oxley,
who was assigned to work that day in a general population unit known as s-pod, requested
assistance from various jail staff to transfer Evans from his cell in s-pod to a cell on the
disciplinary unit known as “o-pod.” (Id. ¶¶ 15-20; Doc. No. 70-1 (Affidavit of Louis Oxley
[“Oxley Aff.”]) ¶¶ 4-9; Doc. No. 70-4 (Affidavit of Joshua Rivers [“Rivers Aff.”]) ¶¶ 6-7; Doc.
No. 70-6 (Affidavit of Robert Kopey [“Kopey Aff.”]) ¶¶ 4-6; Doc. No. 70-13 (Affidavit of Lisa
Frantz [“Frantz Aff.”]) ¶¶ 4-6.) The Mahoning County Jail defendants all participated, in one
way or another, in the transfer.2 Evans raises claims of excessive force relating to four incidents
during the transfer: (1) within his cell while housed within “s-pod” (id. ¶¶ 14-24, 43, 45-47); (2)
within an elevator while being transported to o-pod (id. ¶¶ 25-27, 43, 47); (3) within the hallway
vestibule after exiting the elevator (id. ¶¶ 27, 43); and (4) while being escorted to and within his
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Evans also brought suit against two other Mahoning County Jail employees, both nurses, but they were dismissed
from this action by memorandum opinion, dated May 30, 2017. (Doc. No. 75.)

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cell on o-pod. (Id. ¶¶ 28-38, 43.)
With respect to these claims, there is no dispute that, during the extraction from his cell
on s-pod, Evans was subjected to a three-second burst of a chemical agent and eventually
handcuffed. It is also beyond dispute that Evans was transported on foot through the facility to
the booking room where he received a shower before being taken to the nurse’s station. After he
was examined by Mahoning County Jail medical staff, Evans was cleared to be transferred to opod and was placed in a cell on o-pod. Beyond these undisputed facts, the parties disagree as to
the details of the events of January 2, 2015, including the extent and type of force used against
Evans and the nature and extent of any injuries he sustained as a result. However, these factual
disputes, to the extent they are not resolved by video footage from the jail, are academic as
Evans failed to properly exhaust his administrative remedies.
II. DISCUSSION
A.

Summary Judgment Standard

Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly made and
supported, it shall be granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
An opposing party may not rely on allegations or denials in its own pleading; rather, by
affidavits or by materials in the record, the opposing party must set out specific facts showing a
genuine issue for trial. Fed. R. Civ. P. 56(c)(1). Affidavits or declarations filed in support of or in
opposition to a motion for summary judgment “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A movant is not required to file affidavits
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or other similar materials negating a claim on which its opponent bears the burden of proof, so
long as the movant relies upon the absence of the essential element in the pleadings, depositions,
answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In reviewing summary judgment motions, the Court must view the evidence in a light
most favorable to the non-moving party to determine whether a genuine issue of material fact
exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970);
White v. Turfway Park Racing Ass’n, 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled
on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d
190 (1991). A fact is “material” only if its resolution will affect the outcome of the lawsuit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Determination of whether a factual issue is “genuine” requires consideration of the applicable
evidentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors
could find by a preponderance of the evidence that the [non-moving party] is entitled to a
verdict[.]” Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a
showing sufficient to establish the existence of an element essential to that party’s case and on
which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, “[t]he
trial court no longer has the duty to search the entire record to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The nonmoving party is under an affirmative duty to point out specific facts in the record as it has been
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established that create a genuine issue of material Fact. Fulson v. City of Columbus, 801 F. Supp.
1, 4 (S.D. Ohio 1992) (citation omitted). The non-movant must show more than a scintilla of
evidence to overcome summary judgment; it is not enough for the non-moving party to show that
there is some metaphysical doubt as to material facts. Id. (citation omitted).
B.

The Verified Complaint and Video Evidence

While Evans did not file an opposition to summary judgment, the SAC is verified and
signed by him under penalty of perjury. (SAC at 4313.) It is well settled that a properly verified
complaint “carries the same weight as would an affidavit for the purposes of summary
judgment.” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing Lavado v. Keohane, 992
F.2d 601, 605 (6th Cir. 1993)); see Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992)
(“the handwritten complaint of a pro se prisoner may defeat a defendant’s motion for summary
judgment because it contained language that verified the complaint within the meaning of [28
U.S.C. § 1746]”) (citation omitted, emphasis in original). Proper verification generally requires
two components: an assertion that the statements are true and correct, and an averment that the
facts are made under penalty of perjury. United States v. 8 Gilcrease Lane, Quincy Fla. 32351,
587 F. Supp. 2d 133, 139 (D.D.C. 2008) (citation omitted).

All page number references are to the page identification number generated by the Court’s electronic docketing
system.
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In his signed SAC, Evans avers that he “declare[s] under the penalties of perjury that the
statements and facts in this complaint are true and correct to the best of [his] knowledge and
beliefs.” (SAC at 431, capitalization omitted.) While this averment meets the statutory
requirements of 28 U.S.C. § 1746, it suggests that allegations contained therein may go beyond
Evans’ knowledge by including his beliefs, as well. “To constitute evidence sufficient to support
or oppose a motion for summary judgment, an affidavit ‘must be made on personal knowledge,
set out facts that would be admissible, and show that the affiant is competent to testify on the
matters stated.’” Totman v. Louisville Jefferson Cnty. Metro. Gov’t, 391 F. App’x 454, 464 (6th
Cir. 2010) (rejecting allegations in a verified complaint that were not based on personal
knowledge but, instead, represented mere speculation based on “beliefs”) (quoting former Fed.
R. Civ. P. 56(e)(1)). For purposes of summary judgment, the Court presumes that Evans has
personal knowledge of the events associated with his own interactions with Mahoning County
Jail defendants and other jail staff and personnel, but it will not treat as evidentiary those
allegations that clearly extend beyond Evans’ personal knowledge.
Moreover, while the Court must view the evidence in a light most favorable to Evans as
the non-moving party, “[t]here is . . . an added wrinkle in this case: existence in the record of a
videotape capturing [many of] the events in question.” Scott v. Harris, 550 U.S. 372, 378, 127 S.
Ct. 1769, 167 L. Ed. 2d 686 (2007). In such circumstances, the Court must also “view[] the facts
in the light depicted by the videotape.” Id. at 381; see Kinlin v. Kline, 749 F.3d 573, 576 (6th Cir.
2014) (“[W]hen opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.”) (quotation marks and
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citation omitted); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008) (“[W]here, as here, the record
contains an unchallenged videotape capturing the events in question, [the court] must only credit
the plaintiff’s version of the facts to the extent it is not contradicted by the videotape.”) (citation
omitted).
C.

Exhaustion

According to the Mahoning County Jail defendants, all of Evans’ claims are subject to
dismissal because he failed to exhaust his administrative remedies before bringing suit in federal
court. The Prison Litigation Reform Act (“PLRA”) prohibits prisoners “confined in any jail,
prison, or other correctional facility” from bringing any action arising out of prison conditions
“until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see
Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006) (“exhaustion of
available administrative remedies is required for any suit challenging prison conditions, not just
for suits under [42 U.S.C.] § 1983”) (citation omitted). “This requirement is mandatory but not
jurisdictional, and applies to all federal claims seeking redress for prison circumstances or
occurrences regardless of the type of relief being sought.” Lee v. Willey, 789 F.3d 673, 677 (6th
Cir. 2015) (citations omitted).
Furthermore, a prisoner must properly exhaust his administrative remedies. Woodford,
548 U.S. at 84. “Proper exhaustion demands compliance with an agency’s deadlines and other
critical procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Id. at 90-91; see Hartsfield v.
Vidor, 199 F.3d 305, 309 (6th Cir. 1999) (“an inmate cannot simply fail to file a grievance or
abandon the process before completion and claim that he has exhausted his remedies or that it is
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futile for him to do so because his grievance is now time-barred under the regulations”) (citation
omitted).
“An inmate’s grievance must give ‘sufficient notice of the matter being grieved . . . ,’ so
that ‘[p]rison officials . . . ha[ve] a chance to provide a remedy for the inmate and to decide
whether the objectives of the review process have been served.’” Rivers v. Turner, No. 3:14 CV
2547, 2016 WL 4065884, at *3 (N.D. Ohio July 29, 2016) (quoting Maxwell v. Corr. Med.
Servs., Inc., 538 F. App’x 682, 688 (6th Cir. 2013)); see Burton v. Jones, 321 F.3d 569, 575 (6th
Cir. 2003) (a prisoner’s grievance need not “allege a specific legal theory or facts that correspond
to all the required elements of a particular legal theory. Rather, it is sufficient . . . that a
prisoner’s [grievance] gave prison officials fair notice of the alleged mistreatment or misconduct
that forms the basis of the constitutional or statutory claim”), abrogated on other grounds by
Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007); see also Mattox v.
Edelman, 851 F.3d 583, 591 (6th Cir. 2017) (“We have also explained that the purpose of the
PLRA’s exhaustion requirement ‘is to allow prison officials a fair opportunity to address
grievances on the merits, to correct prison errors that can and should be corrected and to create
an administrative record for those disputes that eventually end up in court.’”) (quoting Reed-Bey
v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010) (further quotation marks omitted)).
In Bock, the Supreme Court touched upon an inmate’s exhaustion obligations, including
the level of detail necessary for prisoner grievances. In finding that courts ought not impose
severe technical requirements on prisoners attempting to satisfy the exhaustion requirement, the
Court reiterated that the primary purpose of the exhaustion requirement is to allow a prison to
address complaints and reduce litigation. Bock, 549 U.S. at 219 (citing, with favor, Johnson v.
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Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“We are mindful that the primary purpose of a
grievance is to alert prison officials to a problem, not to provide personal notice to a particular
official that he may be sued[.]”)); see also Newson v. Steele, No. 09-10346, 2010 WL 3123295,
at *3 (E.D. Mich. July 1, 2010) (“Exhaustion serves a dual purpose: it gives prisoners ‘an
effective incentive to make full use of the prison grievance process and accordingly provides
prisons with a fair opportunity to correct their own errors.’ Additionally, the exhaustion
requirement ‘has the potential to reduce the number of inmate suits, and also to improve the
quality of suits that are filed by producing a useful administrative record.’”) (quoting Bock, 549
U.S. at 205) (internal citation omitted).
The grievance procedure is contained in the Mahoning County Jail’s “Prisoner Rule of
Conduct and Handbook,” and a copy of the handbook is furnished to each inmate upon his
admission to the jail. (Doc. No. 70-17 (Affidavit of Kenneth Kountz4 [“Kountz Aff.”]) ¶¶ 4-6,
Ex. K-1.) See Nickens v. Dep’t of Corr., 277 F. App’x 148, 150 (6th Cir. 2008) (“[P]rison
grievance procedures supply the yardstick for determining what steps are required for
exhaustion.”) (quotation marks and citations omitted). As set forth in the handbook, “the
grievance procedure consists of two separate steps: a grievance and an appeal.” (Kountz Aff. ¶
6.) The inmate initiates the grievance process by filling out an inmate complaint form. This form
is in triplicate—consisting of pink, yellow, and white pages—and serves as the grievance. The
inmate retains the pink copy and submits the other two copies. If the deputy on duty is able to
address the issue, the resolution is noted on the form and the inmate is given the yellow copy. If

Kenneth Kountz serves as a captain in the Mahoning County Sherriff’s Office and is “second in command of the
corrections division[,]” “responsible for overseeing operations within the Mahoning County Jail.” (Id. ¶¶ 2-3; see id.
¶ 4.)
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the deputy is unable to resolve the issue, the yellow and white copies are forwarded to the shift
supervisor. If the supervisor is unable to answer, the copies are further forwarded to the jail’s
administrative office. Ultimately, a decision is rendered on the yellow form and returned to the
inmate. (Id. ¶ 7, Ex. K-1.) If an inmate is dissatisfied with the resolution at this stage, the inmate
must file an appeal with either the officer-in-charge or the jail warden, using a form identical to
the grievance form. (Id. ¶ 8, Ex. K-1.)
The record reflects that Evans submitted seven inmate complaint forms from December
17, 2014 to April 6, 2015. (Id. ¶ 9, Ex. K-2.) The incidents giving rise to the present litigation
occurred on January 2, 2015. On January 5, 2015, Evans filed an inmate complaint requesting to
speak with a supervisor because he was missing a paperback book and because “his . . . chips
and soups were deliberately opened and smashed . . . .” (Id. ¶ 11, Ex. K-2 at 687.) No mention
was made of the alleged assault in this complaint.
On January 9, 2015, Evans filed another inmate complaint where he registered his
disagreement with the resolution of the issues relating to his missing book and damaged food,
and where he made vague references to an assault. In fact, his comments on the subject were
limited to his criticism of the jail’s response “concerning [him] being assaulted” and “the fact
that [he was] being denied medical (outside a/or here) treatment.”(Id. ¶ 12, Ex. K-2 at 688.) A
decision was rendered on Evans’ January 9, 2015 inmate complaint on January 18, 2015. (Id. ¶
14.) Evans did not appeal the decision. (Id. ¶ 15, Ex. K-2 at 683-89.)
Based upon these undisputed facts, the Court finds that Evans failed to properly exhaust

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his administrative remedies.5 To extent that the January 9, 2015 inmate complaint was an attempt
to grieve the January 2, 2015 alleged assault, it fell woefully short of providing sufficient notice.
This inmate complaint did not contain any acts of mistreatment or misconduct by any officer.
(Id. ¶ 13, K-2 at 688.) In fact, it failed to provide any identifying details that would have alerted
prison officials to the incident and the need to address problems associated with Evans’
confinement. While Evans was not required to allege a specific legal theory, or demonstrate how
he could satisfy its elements, he was obligated to apprise jail officials of the events giving rise to
his claims. Because Evans never afforded the institution the opportunity to address these issues,
Evans has failed to exhaust his administrative remedies with respect to his constitutional claims
and summary judgment in favor of Mahoning County Jail defendants is appropriate for this
reason alone.
Even if the January 9, 2015 inmate complaint had provided sufficient notice to jail
officials (which it did not), Evans’ claims would still be subject to dismissal because he failed to
avail himself of the appeal process provided for in the inmate handbook. See Hartsfield, 199 F.3d
at 309 (“Even if [the inmate] did file an initial grievance against [the officers] he was required to
continue to the next step in the grievance process[.]”); see, e.g., Nickens, 277 F. App’x at 152
(finding that a prisoner failed to exhaust his administrative remedies by neglecting to file a
timely appeal of his grievance, noting that “a prisoner must complete the administrative review
process in accordance with the applicable procedural rules in order to satisfy the exhaustion
requirement of the PLRA”) (citations omitted). By abandoning the administrative process before
Evans did not respond to Mahoning County Jail defendants’ exhaustion argument. While Evans was not required
to plead factual allegations supporting exhaustion, as exhaustion is an affirmative defense, see generally Lee, 789
F.3d at 677, the lack of such allegations means that the SAC cannot be relied upon to create a genuine issue of
material fact on this issue.
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completion, Evans did not properly exhaust his administrative remedies, and summary judgment
is appropriate for this additional reason.6 See Hartsfield, 199 F.3d at 309.

While the Court need not reach the merits of Evans’ claims, it is worth noting that the existence of the videotape
recording of the first three cited incidents—Evans’ extraction from s-pod, within the elevator, and within the
hallway outside the elevator—belie many of Evans’ allegations that he was subjected to excessive force during those
encounters. Even though some force was used to subdue Evans in his cell on s-pod, the video blatantly contradicts
Evans’ allegations that he was “maced” in the corridor for “no apparent reason”, and the fact that he emerges from
his cell seconds later without any signs of injury or medical distress contradicts his claims that he was viciously
beaten during the brief encounter in the cell. (See SAC ¶¶ 23-24.) See Thompson v. Joseph, No. 1:12-cv-992, 2014
WL 1685918, at *9 (S.D. Ohio Apr. 29, 2014) (“‘An inmate who complains of a ‘push or shove’ that causes no
discernible injury almost certainly fails to state a valid excessive force claim.’”) (quoting Wilkins v. Gaddy, 559 U.S.
34, 37-38, 130 S. Ct. 1175, 175 L. Ed. 2d 995 (2010) (further quotation marks and citation omitted)); Harrison v.
Gregg, No. 1:12-cv-005, 2013 WL 5353188, at *8 (S.D. Ohio Sept. 24, 2013) (“evidence shows defendant Gregg’s
actions constituted a de minimis use of force which caused plaintiff to suffer no discernible injury”) (quotation
marks and citation omitted). In fact, Mahoning County Jail defendants have offered evidence that, even after the
fourth incident in o-pod that was not captured on videotape, Evans had “no discernable injuries.” (Doc. No. 70-12
(Affidavit of Damon Perry [“Perry Aff.”]) ¶ 6.) Moreover, video coverage in the elevator and hallway, where there
were no signs of force, stands at odds with his allegations that deputies “pushed” him causing his “head and neck to
snap forward[,]” and “roughly grabbed” him. (See id. ¶¶ 25-27.) This indisputable video coverage blatantly
contradicts Evans’ allegations such that no reasonable juror could find that Mahoning County Jail defendants
employed force in those instances that shocked the conscience. See, e.g., Khother v. DeEulis, 527 F. App’x 461, 462
(6th Cir. 2013) (video blatantly contradicted arrestee’s claims of excessive force). Evans’ deliberate indifference
claims would also fail on the merits. It is undisputed that Evans received a decontaminating shower immediately
after exposure to the chemical spray, and shortly thereafter was seen by nurses. Moreover, evidence offered in
support of summary judgment demonstrates that Evans had no “identifiable, overt physical trauma or other type of
apparent injury.” (Doc. No. 70-20 (Affidavit of Nicole Lewis [“Lewis Aff.”]) ¶¶ 4-6; Doc. No. 70-21 (Affidavit of
Jasmine Redmond [“Redmond Aff.”]) ¶¶ 4-5; see Doc. No. 70-9 (Affidavit of Lee Hufnagel [“Hufnagel Aff.”]) ¶ 7.)
This undisputed evidence demonstrates that Evans did not have a “serious” medical condition, and, therefore, Evans
would be unable to meet the objective component of the deliberate indifference test. See Blackmore v. Kalamazoo
Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (the objective component of the deliberate indifference standard requires
the existence of a “sufficiently serious” medical need) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct.
1970, 128 L. Ed. 2d 811 (1994)). Evans’ conclusory allegations that he sustained serious physical and mental
injuries, even if contained in a verified complaint, would not defeat this fully supported summary judgment motion.
See Totman, 391 F. App’x at 464 (court need not accept conclusory allegations in verified complaint).
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III. CONCLUSION
For all of the foregoing reasons, the summary judgment motion of Mahoning County Jail
defendants (Doc. No. 70) is granted on the ground that plaintiff, Robert Lee Evans, failed to
exhaust his administrative remedies, and this case is closed.
IT IS SO ORDERED.

Dated: March 1, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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