Waller v. Croft et al

Filing 118

ORDER adopting Report and Recommendation re 113 ; finding as moot 54 Motion to Amend/Correct; finding as moot 74 Motion for Protective Order; finding as moot 81 Motion to Compel; finding as moot 82 Motion ; finding as moot 83 Motion ; find ing as moot 86 Motion to Strike ; finding as moot 90 Motion to Strike ; finding as moot 91 Motion ; finding as moot 92 Motion to Amend/Correct; finding as moot 93 Motion ; finding as moot 94 Motion to Appoint Counsel ; granting 102 Motion for Summary Judgment; finding as moot 112 Motion to Strike ; ; finding as moot 115 Motion to Strike ; finding as moot 116 Motion for Leave to File. Signed by Judge Sandra S Beckwith on 8/31/09. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Michael A. Waller, Plaintiff, vs. Shannon Bear, Defendant. ) ) ) Case No. 1:08-CV-85 ) ) ) ) ) ) ORDER This matter is before the Court on Magistrate Judge Black's Report and Recommendation of June 26, 2009 (Doc. No. 113) and Plaintiff's objections to the Report and Recommendation (Doc. No. 117). In his Report and Recommendation, Magistrate Judge

Hogan recommended that Defendant Bear's motion for summary judgment (Doc. No. 102) be granted and the case be closed on the docket of the Court. For the reasons that follow, the Court

concludes that Plaintiff's objections to the Report and Recommendation are not well-taken; therefore, the objections are OVERRULED. The Court ADOPTS the Report and Recommendation.

Defendant Bear's motion for summary judgment is well-taken and is GRANTED. Plaintiff is a prisoner currently incarcerated at Southern Ohio Correctional Facility who presents a claim that Defendant Bear, a corrections officer, used excessive force as part of a team of officers who forcibly extracted Plaintiff from his cell when he refused to comply with an order to submit to

handcuffing.

The entire incident was videotaped by another

member of the extraction team and submitted in support of the motion for summary judgment. Upon reviewing the video,

Magistrate Judge Black wrote a detailed narrative of the incident in his Report and Recommendation and determined that the officers' decision to forcibly extract Plaintiff from his cell was justified, that Defendant Bear did not use excessive force during the incident, and that Plaintiff's injuries did not demonstrate sadistic or malicious intent on the part of the Defendant. Magistrate Judge Black also provided a thorough

explanation why Plaintiff's claim that the video was altered and did not reflect beatings which occurred off-camera was not supported by the record. Accordingly, Judge Black concluded that

Plaintiff failed to establish a constitutional violation for excessive use of force, that Defendant's motion for summary judgment should be granted, and that the case be closed. In his objections to the Report and Recommendation, Plaintiff still maintains that the videotape was altered. The Court has reviewed the record de novo, including the videotape of the incident, as required by Fed. R. Civ. P. 72(b), and concludes that Judge Black's Report and Recommendation is factually and legally correct. Like Judge Black, the Court To

finds no evidence that the videotape was altered in anyway. replicate Judge Black's analysis here would be a waste of 2

judicial resources.

The Court, therefore, adopts Magistrate

Judge Black's reasoning and analysis in its entirety. Accordingly, Plaintiff's objections to the Report and Recommendation are not well-taken and are OVERRULED. ADOPTS the Report and Recommendation. The Court

Defendant Bear's motion The complaint

for summary judgment is well-taken and is GRANTED. is DISMISSED WITH PREJUDICE.

Remaining motions on the docket

(Doc. Nos. 54, 74, 81, 82, 83, 86, 90, 91, 92, 93, 94) are MOOT. THIS CASE IS CLOSED.

IT IS SO ORDERED Date August 31, 2009 s/Sandra S. Beckwith Sandra S. Beckwith Senior United States District Judge

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