Easley v. Haywood et al

Filing 202

OPINION AND ORDER denying 176 Defendants' Motion for Summary Judgment. The Court also DENIES Plaintiff's motions 167 168 170 171 173 174 175 178 179 182 175 186 195 200 . The Court will hold Plaintiff's in Limine/Protective Order 198 until trial. The Court SETS this matter for a final pretrial conference on 2/6/2013 at 2:00 PM and the three-day jury trial to commence on 3/5/2013. Signed by Judge S Arthur Spiegel on 1/17/2013. (km1) (Additional attachment(s) added on 1/18/2013: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DAVID EASLEY,

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Plaintiff,
v.
GARY HAYWOOD, et al.,
Defendants.

NO. 1:08-CV-00601

OPINION AND ORDER

This matter is before the Court on the following matters:
Plaintiff=s Motions to Appoint Assistant Counsel and to Request
Mediation (docs. 167, 168), Defendants= Response (doc. 169), and
Plaintiff=s Reply (doc. 172); Plaintiff=s Request for Entry of Default
and Motion for Default Judgment, Motion for Leave to File Amended
Complaint, Motion to Compel, and Notice of Declaration of Default
(docs. 170, 171, 173, 174, 175), and Defendants= Response (doc. 177);
Plaintiff=s

ASupplement

Defendants=

Response

Complaint

(doc.

180);

Emergency@
and

(doc.

Plaintiff=s

178),

and

AEmergency

Preliminary Injunction Declaration@ (doc. 179), and Defendants=
Response (doc. 181).

Also before the Court are Defendants= Motion

for Summary Judgment (doc. 176), Plaintiff=s Response (doc. 183), and
Defendants= Reply (doc. 187); Plaintiff=s Motion to Strike Defendants=
Motion for Summary Judgment (doc. 182), and Defendants= Response (doc.
188); Plaintiff=s Motions for Subpoenas (docs. 185, 186), and
Defendants= Response (doc. 189); Plaintiff=s Motion to Compel and for

Sanctions (doc. 195), Plaintiff=s Motion in Limine (doc. 198), and
Defendants= Combined Response (doc. 199); and Plaintiff=s Motion to
Proceed to Trial (doc. 200).
For

the

reasons

indicated

herein,

the

Court

DENIES

Plaintiff=s motions (docs. 167, 168, 170, 171, 173, 174, 175, 178,
179, 182, 185, 186, 195, 200) as well as Defendants= Motion for Summary
Judgment (doc. 176).

The Court will hold Plaintiff=s liminal motion

(doc. 198) in abeyance until trial.

Finally, the Court SETS this

matter for final pretrial conference on February

6, 2013, and

SCHEDULES the three-day jury trial to commence on March 5, 2013, on
an on-deck basis.
I.

Background
Plaintiff is an inmate at the Southern Ohio Correctional

Facility in Lucasville, Ohio, who brings this 42 U.S.C. ' 1983 matter
alleging that corrections officers used excessive force against him
(doc. 1).

Plaintiff is a prolific filer, for whom the Court took

the extraordinary step of appointing Counsel.

The Court released

Counsel from representation, after it became clear that Plaintiff
was operating independently of Counsel and adverse to his own
interests.

The parties have engaged in extensive settlement

negotiations, which have not resolved this matter.

The Court will

address Plaintiff=s various motions seriatum, Defendants= motion for
summary judgment, and Plaintiff=s subsequent motions.
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II.

Plaintiff=s Motions
A.

Motions for Counsel and Mediation

Plaintiff moves for the appointment of new counsel and
requests mediation (docs. 167, 168).

Defendants note this is

Plaintiff=s fifth request for the appointment of counsel, and that
after Plaintiff=s previous request, the Court found no exceptional
circumstances to justify such an appointment (doc. 165).

In fact,

as noted above, the Court already appointed counsel, which very
competently conducted discovery for Plaintiff, despite his lack of
cooperation with such counsel.

As for mediation, the Court agrees

with Defendants that this matter has already been subject to numerous
mediation efforts, and the time is now more than ripe to move forward
with trial.

As such, the Court DENIES Plaintiff=s motions (docs. 167,

168).
B.

Motion for Default, Motion for Leave to Amend, Motion

to Compel, and Declaration of Entry of Default
Plaintiff seeks default judgment (docs. 170, 171) under
the theory that Defendants did not timely respond to his Complaint.
The record shows Plaintiff=s request is without merit, and as such,
the Court DENIES Plaintiff=s motion (docs. 170, 171).
Plaintiff further seeks to amend his Complaint to add
claims for conspiracy, failure to protect, deliberate indifference
3

and conspiracy to commit murder (doc. 173).

Although Defendants

correctly note the liberal standard of Fed. R. Civ. P. 15 that governs
motions to amend, they oppose Plaintiff=s motion as brought in bad
faith, and contend it will create undue prejudice (doc. 177).
Defendants contend Plaintiff=s request to amend came fourteen months
after he became aware of potential additional issues, which evidences
bad faith (Id.).

In Defendants= view, it is not in the interests of

justice to permit such amendment now, and in any event, Plaintiff
failed to plead his claims for conspiracy with the requisite
specificity (Id.).
The Court agrees that permitting Plaintiff to amend his
Complaint at this late stage of litigation, when he had opportunity
to do so much earlier, would only prejudice Defendants, create delay,
and require the expenditure of significant additional resources on
the part of the Defendants.

Under these circumstances justice does

not require leave to amend, but to the contrary, requires denial of
such request.
1994).

Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir.

Accordingly, the Court DENIES Plaintiff=s motion (doc. 173).
Plaintiff next seeks to compel certain documents from his

former counsel he claims were removed from his mail (doc. 174).
Defendants indicate the documents removed were disciplinary records
of correctional staff, which are subject to the Stipulated Protective
Order (doc. 126) in force in this matter, such that Plaintiff was
4

properly denied access (doc. 177).

Counsel for Defendants indicates

she instructed prison staff to allow Plaintiff to access all records
save for those covered by the Protective Order.

Under such

circumstances, the Court finds no basis to order production of
documents contrary to the previous Order.

Accordingly, the Court

DENIES Plaintiff=s motion (doc. 174).
Plaintiff=s ADeclaration Entry of Default@ (doc. 175), is
another filing regarding discovery, which Defendants contend is
covered in large part by the above-referenced protective order (doc.
177).

Defendants further contend to the extent documents are not

so covered, discovery ended as of August 1, 2012 (Id.).

Finally,

Defendants contend the Use of Force Reports Plaintiff seeks are
attached to Defendants= Motion for Summary Judgment as Exhibits S and
T, such that Plaintiff=s request as to such documents is now moot.
The Court agrees with Defendants in all respects and DENIES
Plaintiff=s motion (doc. 175).
C.

Plaintiff=s ASupplement Complaint Emergency@

In Plaintiff=s next filing, he reiterates his concern that
documents were removed from his mail, and additionally alleges he
is being fined for damage caused to state property, and that various
state employees are attempting to procure portions of his anticipated
settlement (doc. 178).

Defendants respond that the issue regarding

documents was already covered in relation to the protective order
5

in this matter, and there is no settlement compensation being offered
at this time (doc. 180).

Moreover, Defedants indicate any damages

Plaintiff may have caused to state property is an issue between him
and his housing institution (Id.).
The Court again agrees with Defendants that Plaintiff=s
concerns regarding documents are covered by the protective order.
The Court further finds Plaintiff=s concerns speculative regarding
any threat to settlement compensation, as Plaintiff has declined all
settlement offers such that no settlement exists.

The Court finds

Defendants= Response well-taken, and DENIES Plaintiff=s filing (doc.
178).
D.

Plaintiff=s AEmergency Preliminary Injunction@

In the last of Plaintiff=s set of filings, Plaintiff repeats
his concerns regarding documents, claims he is falsely charged of
destruction

of

state

property,

and

repeats

his

concern

that

corrections officers plan to take his settlement funds (doc. 179).
Plaintiff further raises again a claim for medical deliberate
indifference (Id.).

Defendants respond that all documents have been

provided to Plaintiff with the exception of those covered by the
protective Order (doc. 181).

The Court finds Plaintiff=s motion

cumulative, and notes it has already dismissed Plaintiff=s claim for
medical

deliberate

indifference

(doc.

70).

Under

these

circumstances, the Court DENIES Plaintiff=s filing (doc. 179).
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III.

Defendants= Motion for Summary Judgment
A.

Applicable Legal Standard
Although a grant of summary judgment is not a substitute

for trial, it is appropriate Aif the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.@

Fed. R. Civ. P. 56; see also, e.g., Poller v.

Columbia Broadcasting System, Inc., 368 U.S. 464 (1962); LaPointe
v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.

1993);

Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and Mental
Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per curiam).

In

reviewing the instant motion, Athis Court must determine whether the
evidence presents a sufficient disagreement to require submission
to a jury or whether it is so one-sided that one party must prevail
as a matter of law.@

Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.

1993), quoting in part Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-252 (1986) (internal quotation marks omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled.

First, Aa party seeking

summary judgment ... bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those
7

portions of [the record] which it believes demonstrate the absence
of a genuine issue of material fact [.]@

Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986); see also LaPointe, 8 F.3d at 378; Guarino
v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992);
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
The movant may do so by merely identifying that the non-moving party
lacks evidence to support an essential element of its case.

See

Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382,
1389 (6th Cir. 1993).
Faced with such a motion, the non-movant, after completion
of sufficient discovery, must submit evidence in support of any
material element of a claim or defense at issue in the motion on which
it would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that material
fact.

See Celotex, 477 U.S. at 317; Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986).

As the Arequirement [of the Rule] is that there

be no genuine issue of material fact,@ an Aalleged factual dispute
between the parties@ as to some ancillary matter Awill not defeat an
otherwise

properly

supported

motion

for

summary

judgment.@

Anderson, 477 U.S. at 247-248 (emphasis added); see generally Booker
v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th
Cir. 1989).
evidence

in

Furthermore, A[t]he mere existence of a scintilla of
support

of

the

[non-movant=s]
8

position

will

be

insufficient; there must be evidence on which the jury could
reasonably find for the [non-movant].@

Anderson, 477 U.S. at 252;

see also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994).
Accordingly, the non-movant must present Asignificant probative
evidence@ demonstrating that Athere is [more than] some metaphysical
doubt as to the material facts@ to survive summary judgment and
proceed to trial on the merits.

Moore v. Philip Morris Cos., Inc.,

8 F.3d 335, 339-340 (6th Cir. 1993); see also Celotex, 477 U.S. at
324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of its claims or defenses, Athe
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts
upon which the non-moving party relies.@

Guarino, 980 F.2d at 405,

quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.
1989) (internal quotation marks omitted).

In contrast, mere

conclusory allegations are patently insufficient to defeat a motion
for summary judgment.

See McDonald v. Union Camp Corp., 898 F.2d

1155, 1162 (6th Cir. 1990).

The Court must view all submitted

evidence, facts, and reasonable inferences in a light most favorable
to the non-moving party.

See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970); United States v. Diebold, Inc., 369 U.S. 654
9

(1962).

Furthermore, the district court may not weigh evidence or

assess the credibility of witnesses in deciding the motion.

See

Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating
that no material facts are in dispute.
587.

See Matsushita, 475 U.S. at

The fact that the non-moving party fails to respond to the

motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate.

See

Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455 (6th
Cir. 1991).
B.

The Parties= Arguments
Defendants

move

for

summary

judgment,

contending

discovery in this matter Arefutes Plaintiff=s chronology of events,@
such that Athere is no evidence Defendants engaged in excessive
force,@ and they are entitled to qualified immunity (doc. 176).
Defendants challenge Plaintiff=s allegation that Defendant Haywood
knew Haywood was transporting Plaintiff to a hearing regarding
Plaintiff=s complaints about Haywood, because a form Plaintiff
completed did not identify Haywood, and because the proper grievance
process regarding staff does not involve protective control hearings
(Id.).

Defendants question Plaintiff=s motivation behind this

lawsuit, and claim the surveillance video of the altercation between
Plaintiff and Defendants Aestablishes@ a number of facts, including
10

that Plaintiff made threatening comments to Defendant Haywood (Id.).
Defendants argue Haywood=s actions were justifiable use of force per
policy in light of Plaintiff=s previous behavior, and Plaintiff=s
refusal to follow orders and in making verbal threats (Id.).
Defendants proffer evidence that an internal investigation yielded
reports showing the use of force against Plaintiff was justified
(Id.).
Plaintiff responds that prison guards Ago Hollywood@ for
the surveillance cameras, as there is no sound, such that they can
stage events to appear they have been provoked by inmates (doc. 183).
Plaintiff questions the internal investigations, contending prison
staff protect one another=s interests, for fear of retaliation should
they fail to do so (Id.).

Plaintiff attaches an affidavit to his

response in which he avers that he had previous problems with
Defendant Haywood in May and June 2008, just prior to the altercation
at issue in this matter (Id.).

Finally, Plaintiff properly

indicates that the issue of qualified immunity was already raised
and adjudicated in this matter (Id.).
In Defendants= reply, the Court finds they essentially
reiterate their position, and address a number of issues that do not
get to the heart of the matter (doc. 187).

Having reviewed the video

of the altercation, it is in no way Aestablished@ that Plaintiff made
threatening comments to Defendant Haywood, as the video has no
11

soundtrack.

Indeed, the video shows Defendant Haywood suddenly and

forcefully taking Plaintiff to the floor after the two appeared to
be walking normally down the corridor.

Plaintiff contends he was

not resisting Defendant Haywood when Haywood pushed him into a
window, grabbed him and slammed him to the floor.

Plaintiff=s

contention could be found by a jury to be true, or, in the alternative
a jury might accept Defendants= view and find Plaintiff himself Awent
Hollywood.@

The video alone is not dispositive of whether Plaintiff

provoked Defendant Haywood.

Nor does the video establish alone the

case against Defendant Brannigan, who escorted Plaintiff, while
Plaintiff was bent over with his pants down, away from the scene of
the altercation.
Moreover,

Defendants=

emphasis

on

whether

Defendant

Haywood knew the purpose of the hearing to which he was escorting
Plaintiff is immaterial.

If a jury would give credence to Plaintiff=s

testimony that Defendants= actions were unprovoked, it could conclude
the force used by Defendants was malicious and sadistic.

Excessive

force is found in Sixth Circuit precedent where those receiving force
were compliant or were not resisting authority.

Hagans v. Franklin

County Sheriff=s Office, 695 F.3d 505, 509 (6th Cir. 2012)(citing
cases).

Moreover, Plaintiff=s affidavit shows Defendant Haywood and

Plaintiff had previous incidents prior to the one at issue, such that,
if believed by a jury, Defendant could be found to have had motivation
12

to act against Plaintiff.
The Court further finds well-taken Plaintiff=s position
that it has already ruled on the question of qualified immunity in
its Order of March 2, 2011 (doc. 81), in which it stated:
Plaintiff has proffered evidence, his own testimony,
regarding his version of what took place on July 3, 2008.
Only a jury, as fact-finder, can make a credibility
determination about whether what he claims is true.
Clearly, any reasonable correctional officer would know
it is unconstitutional to physically attack an inmate who
is complying with orders. Moreover, claims regarding the
use of excessive force are clearly established as a matter
of constitutional law.

Questions of qualified immunity, moreover, are to be resolved at the
earliest possible stage of litigation, Saucier v. Katz, 533 U.S. 194
(2001).

The Court is at a loss to see here how additional discovery

has made the repeated invocation of qualified immunity at this late
stage of litigation appropriate.

Indeed, the Court=s previous ruling

should be considered law of the case.
IV.

Remaining Matters
In addition to his other filings, Plaintiff filed a Motion

to Strike Defendants= Summary Judgment Motion (doc. 182), and Motions
for Subpoenas (docs. 185, 186).

The Court finds Plaintiff=s motion

to strike duplicative and in any event, moot, due to its ruling
adverse to Defendants= position.

Plaintiff=s subpoena requests

appear to seek work product from his former attorneys, as well as

13

disciplinary files that are subject to the protective Order in this
case.

The Court agrees with Defendants= position that Plaintiff

appears to be seeking discovery that has been previously addressed
or deemed unnecessary by former counsel, or to which he is not
entitled.

The Court does not find such motions well-taken, and

denies them.
Finally, Plaintiff filed a Motion to Compel and for
Sanctions (doc. 195), a Motion in Limine (doc. 198), and a Motion
to Proceed to Trial (doc. 200).

The Court agrees with Defendants

that Plaintiff=s Motion to Compel is duplicative in that his request
for disciplinary records of Defendants is barred by the protective
order (doc. 126), and that Defendants have produced all documents
consistent with such order and security policies.

As such, the

Court denies the motion.
Plaintiff=s Motion to Proceed to Trial is rendered moot by
this Order, which sets trial, and thus is denied.

Finally, the Court

will hold in abeyance Plaintiff=s liminal motion regarding his
disciplinary history, and will rule on such motion at trial should
the door be opened for introduction of such evidence.
IV.

Conclusion
This case at its essence is not a complicated one, it turns

on whether Defendants used unprovoked malicious force against
Plaintiff.

In the Court=s view only a jury can properly evaluate the
14

credibility of the parties, the video of the altercation, and
potentially other record evidence to arrive at a determination
whether

Plaintiff

suffered

excessive

force

at

the

hands

of

Defendants.
Accordingly, for the reasons indicated herein, the Court
DENIES Plaintiff=s motions (docs. 167, 168, 170, 171, 173, 174, 175,
178, 179, 182, 185, 186, 195, 200) as well as Defendants= Motion for
Summary Judgment (doc. 176).

The Court will hold Plaintiff=s liminal

motion (doc. 198) in abeyance until trial.

Finally, the Court SETS

this matter for final pretrial conference on February 6, 2013, and
SCHEDULES the three-day jury trial to commence on March 5, 2013.
SO ORDERED.

Dated: January 17, 2013

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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