Israfil v. Woods

Filing 241

REPORT AND RECOMMENDATIONS re 234 MOTION for Summary Judgment filed by Jennifer Young: that motion be GRANTED. Objections to R&R due by 10/4/2012. Signed by Magistrate Judge Stephanie K. Bowman on 9/17/12. (Attachments: # 1 Certified Mail Receipt) (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MUMIN ISRAFIL,

Case No. 1:09-cv-468

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.
BARBARA WOODS, et al.,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff initiated this suit1 more than three years ago while incarcerated at the
Warren Correctional Institution (WCI) in Lebanon, Ohio. Through a series of prior Reports
and Recommendations (R&Rs) and Orders adopting those R&Rs, this Court previously
dismissed most of Plaintiff’s claims, as well as most Defendants. (See, e.g., Docs. 81,
140, 150, 164, 175, 182, 199, 224). As a result, the only claims that remain for trial are
Plaintiff’s First Amendment retaliation and Eighth Amendment excessive force claims
against Defendant Sexton in his individual capacity, and similar claims against Defendant

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The records of this Court reflect that Plaintiff has pursued seven civil rights com plaints to date.
The instant case was previously consolidated with Civil Case No. 11-cv-28-SAS-SKB, but all claim s in the
latter case were dism issed on June 24, 2011.
In addition, Plaintiff filed separate litigation on February 10, 2010 against another official at W CI,
Mona Parks, alleging that Ms. Parks failed to enforce regulations pertaining to Plaintiff’s round-trip
transportation to a pain clinic while at W CI and failed to correctly m anage grievances pertaining to the
sam e. Plaintiff sought to am end his com plaint in that case to further allege the denial of adequate health
care by two shift com m anders. Israfil v. Parks, Civil Case No. 2:10-cv-132-EAS-MRA. On June 22, 2011,
Plaintiff’s claim s in that case were dism issed on sum m ary judgm ent, and leave to am end was denied on
grounds that Plaintiff could have brought the sam e claim s in this case, but failed to tim ely do so. (Doc. 51).
At least three other civil rights cases filed by Plaintiff have been previously dism issed: Civil Case
No. 1:10-cv-92-SSB-TSH (dism issed for failure to state a claim ); Civil Case No. 3:94-cv-64-W HR-MRM
(dism issed for lack of subject m atter jurisdiction); and Civil Case No. 2:11-cv-385-EAS-TPK (R&R
pending, recom m ending that sum m ary judgm ent be granted for failure to exhaust adm inistrative
rem edies). In addition, a civil rights case filed by Plaintiff in 1994 was dism issed for lack of jurisdiction,
Civil Case No. 3:94-cv-64.

Jennifer Young in her individual capacity. Although this case is otherwise ready for trial,
Defendant Young recently filed an additional motion for summary judgment. I now
recommend that Defendant Young’s motion be granted, and that this case proceed on the
remaining claims against Officer Sexton.
I. Background
Plaintiff initially filed this prisoner civil rights litigation pro se, was appointed counsel
for a period of time, but currently proceeds pro se once again. During the period of time
in which Plaintiff was represented by counsel, Plaintiff filed a second amended complaint
(Doc. 42) which alleged in part that Plaintiff was denied constitutionally required medical
care while incarcerated at WCI. (Doc. 42). Plaintiff also alleged an escalating pattern of
retaliation and physical abuse by various Defendants relative to his complaints about the
inadequate medical care. (Id.). In a third amended complaint, Plaintiff reiterated his
claims, and identified Defendant Young as one of four Defendants previously identified
only as “John Doe” correctional officers.
The history of Plaintiff’s problems at WCI and the procedural history of this litigation
is chronicled extensively in the prior R&Rs (see, e.g., Doc. 199 at 1-10), and therefore will
not be repeated at any length here. Briefly, however, Plaintiff’s physical problems began
in August 2008, when he was accidentally struck by a golf cart on prison grounds, allegedly
causing serious injury to his back. Over the next several years, Plaintiff complained
vociferously about the medical treatment provided to him in general, and in particular,
concerning his complaints of back and neck pain. Plaintiff maintained that he required a
wheelchair and special transportation provisions for transport to and from medical

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appointments, and narcotic pain medication, although prison officials and medical
personnel believed that Plaintiff’s complaints resulted not from physical ailments, but
instead from mental health issues. Ultimately, this Court granted summary judgment to
Defendants concerning all claims relating to the medical care provided to Plaintiff,
concluding that Defendants were entitled to judgment as a matter of law based upon
Plaintiff’s failure to prove either the subjective or objective components of his Eighth
Amendment deliberate indifference claims.
In addition to the now-dismissed claims pertaining to his medical care, Plaintiff’s
complaint alleged that on May 15, 2009, he was involved in an altercation with John Doe
Defendants, which exacerbated his prior symptoms. Eventually, Plaintiff made specific
allegations against Correctional Officer Jennifer Young, ostensibly identified at the outset
as a “John Doe” Defendant. The record reflects that although Plaintiff first identified
Defendant Young as a Defendant on November 5, 2010, summons was not issued to her
until December 20, 2011, and she did not file an answer until March 5, 2012. (Doc. 225).
Given these unusual procedural circumstances, the Court permitted Defendant Young
additional time in which to file a separate dispositive motion. (Docs. 225, 229).
The claims that remain against Correctional Officer Sexton arise from a separate
incident on June 12, 2009, when Defendant Sexton and other correctional officers
allegedly handcuffed Plaintiff and carried him to a waiting van in a rough manner, for
transportation to a medical appointment. According to Plaintiff, upon his return to the
institution, he was placed in disciplinary segregation because he filed a grievance against
Captain Sexton concerning the same incident. Although Defendant Sexton was among
the Defendants who previously moved for summary judgment, Defendant Sexton’s prior
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motion was denied in part by this Court, on grounds that genuine issues of material fact
existed concerning Plaintiff’s claim of retaliation and/or excessive use of force by that
Defendant.
II. Defendant Young’s Motion for Summary Judgment
Although the Court’s prior analysis of Plaintiff’s claims against Defendant Sexton is
similar to the analysis of Plaintiff’s claims against Defendant Young, I conclude that
Defendant Young’s motion for summary judgment should be granted.
A. Standard of Review
In a motion for summary judgment, “a court must view the facts and any inferences
that can be drawn from those facts ... in the light most favorable to the nonmoving party.”
Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.2007) (internal
quotation marks omitted). “Summary judgment is only appropriate ‘if 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.’” Id. (quoting Fed.R.Civ.P. 56(c)) (internal
quotation marks omitted). “Weighing of the evidence or making credibility determinations
are prohibited at summary judgment-rather, all facts must be viewed in the light most
favorable to the non-moving party.” Id.
The requirement that facts be construed in the light most favorable to the Plaintiff,
however, does not mean that the court must find a factual dispute where record evidence
contradicts Plaintiff’s wholly unsupported allegations. After a moving party has carried its
initial burden of showing that no genuine issues of material fact remain in dispute, the

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burden shifts to the non-moving party to present specific facts demonstrating a genuine
issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). “The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo
Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859,
863 (6th Cir.1986)). In order to defeat the motion for summary judgment, the non-moving
party must present probative evidence that supports its complaint. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505 (1986). The non-moving party's
evidence “is to be believed, and all justifiable inferences are to be drawn in his favor.” Id.
at 255 (emphasis added). The court determines whether the evidence requires submission
to a jury or whether one party must prevail as a matter of law because the issue is so onesided. Id. at 251-52.
Although reasonable inferences must be drawn in favor of the opposing party, see
Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356, inferences are not to be drawn out of thin
air. To demonstrate a genuine issue, the opposing party “must do more than simply show
that there is some metaphysical doubt as to the material facts .... Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.’”Matsushita, 475 U.S. at 587, 106 S.Ct. 1356 (citation omitted).
B. Defendant Young’s Motion
Defendant Young argues that there is “no credible evidence to support inmate
Mumin Israfil’s claim that correctional officer (CO) Jennifer Young used force against him,
let alone excessive force,” and that the “evidence in this case is so one-sided, that no
reasonable jury could find in favor of inmate Israfil.” (Doc. 234 at 2). Defendant concludes

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that, “[e]xcept for the unsubstantiated allegations of inmate Israfil, there is no evidence that
supports Israfil’s claims.” (Doc. 234 at 7).
Much of Defendant’s argument would require this Court to ignore Plaintiff Israfil’s
sworn deposition testimony -testimony that Plaintiff specifically points to in response to
Defendant’s motion. Plaintiff’s testimony contradicts the Defendant’s version of facts in key
areas. Contrary to Defendant’s argument, the assessment of Plaintiff’s credibility is
reserved to the jury and cannot be made by this Court. Nevertheless, I conclude that, even
accepting Plaintiff’s version of facts as true, the force alleged to have been used by
Defendant Young was so de minimis that it cannot support an Eighth Amendment claim.
In other words, despite my disagreement with Defendant Young’s position that the Court
should disregard Plaintiff’s testimony as not worthy of belief, I agree with Defendant Young
that - even considering that testimony- she did not violate Plaintiff’s Eighth Amendment
rights. Because the retaliation claim is entirely derivative of Plaintiff’s Eighth Amendment
claim against her, she is also entitled to summary judgment on that claim.
The undisputed facts reflect that at approximately 7 p.m. on May 15, 2009,
Defendant Young was assigned to work in the Food Services area at WCI. Plaintiff also
was assigned to work in the area. Defendant Young reports that she observed Plaintiff
masturbating in a nearby bathroom, conduct that was subject to discipline.2 Defendant
avers that she instructed Plaintiff to proceed to the front part of the Food Services area,
and told him to turn around to be handcuffed. There is no dispute that Plaintiff did not

2

Though not m aterial to Plaintiff’s claim s, Plaintiff previously testified that he was not
m asturbating, but adm itted that he was convicted of a disciplinary offense relating to that behavior. (Doc.
173 at 14, Deposition at 52).

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resist walking to the front part of the Food Services area, nor did he resist being
handcuffed by Defendant. However, the parties’ accounts as to what happened next differ
in a material way.
Defendant avers that after Plaintiff was handcuffed, “he took a few steps and threw
himself on the floor...refused to stand up, and claimed he could not walk.” (Doc. 236-1,
Declaration of Jennifer Young, ¶¶9, 10). The declaration of another correctional officer
supports Defendant’s version, although that officer characterizes Plaintiff as falling (rather
than throwing himself) to the ground. (Doc. 236-2, Applegate Declaration, ¶ 8).
In contrast to Defendant’s version of events, Plaintiff testified that he “made a noise
like ‘ugh’ because she [Defendant Young] put my arms behind my back, and how she did
it, it was painful to me because I had the injury to my back. And she said, ‘You want to say
that hurts?’ And she lifted my arms up and made me fall over face forward.” (Doc. 173 at
13, Deposition at 46). Plaintiff testified that after her actions caused Plaintiff to fall to the
floor, Defendant verbally berated Plaintiff until other officers appeared and put him on a
stretcher.

(Doc. 173 at 13, Deposition at 47).

Plaintiff’s testimony suggests that

unidentified male correctional officers subsequently transported him on the stretcher. In
his response in opposition to summary judgment, consistent with his deposition testimony,
Plaintiff also refers to Defendant Young’s conduct as limited to her actions in causing him
to fall, followed by her verbal abuse while he was on the ground awaiting a stretcher.
However, to the extent that Plaintiff’s complaint might be construed as alleging that
Defendant Young was involved in his subsequent transportation for medical evaluation,
there is no dispute that multiple examinations by a nurse revealed no objective evidence
of injury. (Doc. 236-3, Cain Declaration, ¶¶7, 9, 12).
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The analysis set forth in the undersigned’s last R&R, denying summary judgment
on Plaintiff’s excessive force and retaliation claims against Defendant Sexton,3 is equally
applicable to the claims against Defendant Young, albeit with a different conclusion:
In response to Defendants’ motion, Plaintiff has submitted copies of
grievances, as well as an unofficial copy of his deposition, wherein he details
alleged assaults that occurred in May and June 2009, purportedly in
retaliation for his persistent requests for medical attention and prior
grievances concerning related issues. In fact, Defendant Sexton is not
seeking summary judgment on the merits of Plaintiff’s excessive force claim
against him or the John Doe Defendants.
Although this Court has
determined that Plaintiff had no obvious medical need for a wheelchair, such
that his refusal to walk to the bus for transport to medical appointments may
have been a disciplinary issue rather than a medical one, that would not
necessarily have permitted the retaliatory exercise of force that Plaintiff
alleges he endured.
The Supreme Court has clarified that it is unnecessary for an inmate to prove
that he suffered from any significant injury requiring medical attention in
order to support an Eighth Amendment claim involving cruel and unusual
punishment, see Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010). Certainly,
the extent of injury is one factor to be considered in determining whether the
assertion of force “‘could plausibly have been thought necessary’ in a
particular situation.” Id., quoting Whitley v. Albers, 475 U.S. 312, 321 (1986).
“That is not to say that every malevolent touch by a prison guard gives rise
to a federal cause of action.” Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct.
995 (1992). Thus, the Eighth Amendment’s “prohibition of ‘cruel and
unusual’ punishments necessarily excludes from constitutional recognition
de minimis uses of physical force, provided that the use of force is not of a
sort repugnant to the conscience of mankind.” Wilkins, 130 S. Ct at 1178
(quoting Hudson, 503 U.S. at 9). At this juncture, however, it remains
unclear whether the force exercised by the Defendants was “de minimis.”
See also Williams v. Curtin, 631 F.3d 380 (6th Cir. 2011).
(Doc. 199 at 30-31).

Unlike this Court’s analysis of the record concerning Defendant

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Unlike Defendant Young, Defendant Sexton did not initially seek sum m ary judgm ent on the
m erits of Plaintiff’s excessive force claim against him . (Doc. 199 at 30). Although Defendant Sexton later
m oved for leave to file an additional m otion for sum m ary judgm ent on that claim , the undersigned denied
that m otion. In denying leave to file a second m otion, the Court noted that the dispositive m otion deadline
had expired m ore than fourteen m onths previously, that Defendant had arguably waived additional
defenses for purposes of sum m ary judgm ent, and that Defendant Sexton failed to offer any “good cause”
for the filing of a second m otion. (Doc. 229).

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Sexton, Plaintiff’s own testimony concerning the force alleged to have been used by
Defendant Young in May of 2009 makes clear that it was “de minimis.” Plaintiff alleges
only that Defendant “lifted [Plaintiff’s] arms up” while Plaintiff was handcuffed, an action
that Plaintiff alleges resulted in his fall to the ground.

Plaintiff suffered no injury

whatsoever.
Of course, if Defendant’s version is to be believed, her conduct was both exemplary
and commendable. However, even if Defendant Young acted with ill intent by lifting
Plaintiff’s arms at a time he was handcuffed and compliant with her commands, causing
Plaintiff to lose his balance and fall, I conclude that her alleged action - while
unprofessional, reprehensible, and uncivil - simply was not so “repugnant to the conscience
of mankind” that it can support a claim of “cruel and unusual punishment” in violation of the
Eighth Amendment.

Similarly, while it does not appear that Plaintiff alleges any

involvement by Defendant Young in his subsequent transportation to the medical
department, any such allegations involving Defendant Young would not, as a matter of law,
rise to the level required to support an Eighth Amendment claim. Because the retaliation
claim against Defendant Young rests upon the alleged Eighth Amendment violation,
Defendant also is entitled to summary judgment on that claim.
III. Conclusion and Recommendation
Accordingly, IT IS RECOMMENDED THAT:
Defendant Young’s motion for summary judgment (Doc. 234) be GRANTED for the
reasons stated herein.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MUMIN ISRAFIL,

Case No. 1:09-cv-468

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.
BARBARA WOODS, et al.,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of the
filing date of this R&R. That period may be extended further by the Court on timely motion
by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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