Spencer v. Moore et al

Filing 42

DECISION AND ENTRY: (1) ADOPTING THE REPORT AND RECOMMENDATIONS OF THE MAGISTRATE JUDGE IN PART AND DECLINING TO ADOPT IT IN PART (Doc. 33 ); (2) OVERRULING PLAINTIFF'S OBJECTIONS (Docs. 34 ); (3) SUSTAINING DEFENDANTS' OBJECTIONS (Doc. 35 ); (4) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN ITS ENTIRETY (Doc. 27 ); (5) DENYING DEFENDANTS' MOTION TO STRIKE (Doc. 41 ); AND (6) CLOSING THIS CASE. Signed by Judge Timothy S. Black on 9/24/2012. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FRANK A. SPENCER,
Plaintiff,
vs.
OHIO DEPT. OF REHABILITATION,
ERNIE MOORE, Director, et al.,
Defendants.

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Case No. 1:11-cv-142
Judge Timothy S. Black
Magistrate Judge Stephanie K. Bowman

DECISION AND ENTRY: (1) ADOPTING THE REPORT AND
RECOMMENDATIONS OF THE MAGISTRATE JUDGE IN PART AND
DECLINING TO ADOPT IT IN PART (Doc. 33); (2) OVERRULING
PLAINTIFF’S OBJECTIONS (Docs. 34); (3) SUSTAINING DEFENDANTS’
OBJECTIONS (Doc. 35); (4) GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT IN ITS ENTIRETY (Doc. 27); (5) DENYING
DEFENDANTS’ MOTION TO STRIKE (Doc. 41); AND (6) CLOSING THIS CASE
This civil case is before the Court on the Report and Recommendations of United
States Magistrate Judge Stephanie K. Bowman, who recommends that Defendants’
Motion for Summary Judgment (Doc. 27) be granted in part and denied in part. Plaintiff
filed an Objection (Doc. 34) to the Report and Recommendations, to which Defendants’
responded (Doc. 37), and Plaintiff replied (Doc. 40).1 Defendants also filed Objections
(Doc. 35) to the Report and Recommendations, to which Plaintiff responded (Doc. 38).
The issues presented are ripe for the Court’s de novo consideration and determination.

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Defendants move to strike Plaintiff’s Reply in support of his Objections, arguing that replies in
support of a party’s objections to a Report and Recommendation are not provided for by applicable law.
(Doc. 41). The Court reviewed Plaintiff’s Reply, but nothing in Plaintiff’s Reply changes the Court’s
disposition of Plaintiff’s Objections, as set forth here. Because the Court would reach the same
disposition regardless of whether or not the Reply is considered, the Motion to Strike is DENIED.

I. BACKGROUND
On September 29, 2010, Plaintiff Frank Spencer, an inmate at the Southern Ohio
Correctional Facility (“SOCF”), alleges that he was being escorted by Officer Dawn
Tackett through H-Corridor to a segregation area at SOCF after not cooperating with a
pat-down. (Doc. 3). While in H-Corridor, Plaintiff alleges that he refused to slow his
pace despite an order from Officer Tackett to do so. (Id.). When Plaintiff continued his
same pace, Officer Tackett allegedly grabbed and twisted Plaintiff’s handcuffs, took
Plaintiff to the ground, and began striking Plaintiff in the face and the top of his head
(perhaps with a PR-24, which is a type of nightstick or baton). (Id.) Plaintiff alleges that
the other Defendant Officers responded to the scene and participated in beating Plaintiff
for approximately five minutes. (Id.) Plaintiff brings this action alleging that the
Defendant Officers violated his Eighth Amendment rights by using excessive force. (Id).
In moving for summary judgment, Defendants submitted statements describing
different circumstances surrounding the use of force on Plaintiff.
According to Officer Tackett, while escorting Plaintiff in H-Corridor, Plaintiff
“yelled ‘you fucking bitch!” (Doc. 27-2, PAGEID 149). Officer Tackett states that she
ordered Plaintiff “to stop yelling and to walk” several times. (Id.) According to Officer
Tackett, Plaintiff then “turned toward [her] aggressively trying to headstrike [her].” (Id.)
Officer Jason Skaggs, a non-party to this case, also stated that Plaintiff spun “in an
aggressive manner [t]oward Officer Tackett.” (Doc. 27-13, PAGEID 209).

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In reacting to Plaintiff’s aggressive movement, Officer Tackett states that she tried
to gain control of Plaintiff and to turn Plaintiff away from her. (Doc. 27-2, PAGEID
149). However, Plaintiff resisted Officer Tackett’s efforts and began putting his weight
on Officer Tackett in an attempt to knock Officer Tackett to the ground. (Id.) At this
time, Officer Joshua Maynard, seeing Plaintiff trying to put his weight on Officer Tackett
in an attempt to knock Officer Tackett to the ground, responded and admittedly took
Plaintiff to the ground, perhaps opening a small wound on Plaintiff’s head. (Doc. 27-4,
PAGEID 161). Thereafter, other officers responded to control Plaintiff’s resistance.
(Doc. 27-6, PAGEID 172; Doc. 27-13, PAGEID 209, 212).
Immediately following the event, Officers escorted Plaintiff to the infirmary.
(Doc. 27-8, PAGEID 182). A visual examination of Plaintiff at the infirmary “revealed a
small superficial cut on the top of his head” that “was approximately one-quarter . . . of an
inch in size.” (Doc. 27-21, PAGEID 270). “The superficial cut and the areas surrounding
it showed no evidence of hematoma, swelling, discoloration, or deformity of the skull.”
(Id.) Application of direct pressure stopped the cut from bleeding, and no stitches or glue
were required. (Id.) Plaintiff “also [had] two small abrasions, one on [his] right lateral
wrist area, and another on his right upper lip area.” (Id., PAGEID 271). While Plaintiff
also complained of thumb pain, an examination revealed no bleeding, swelling, bruising
or hematoma to his thumb. (Id.) Plaintiff reported no other injuries and was discharged
from the infirmary 10 minutes after arriving. (Id.)
Defendants move for summary judgment on all claims. (Doc. 27).

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The Magistrate Judge concludes that Defendants’ Motion should be granted with
regard to Plaintiff’s claims against all the Officers in their official capacities and, in
addition, with regard to Plaintiff’s claims against Officers John Toland, Melissa Campbell
and Shawn Stevens in their individual capacities. (Doc. 33, PAGEID 398-90, 394-95).
The Magistrate Judge concludes that Plaintiff’s claims against Officers Tackett and
Maynard, in their individual capacities, should survive summary judgment. (Id., PAGEID
389-90).
II. SUMMARY JUDGMENT STANDARD
A motion for summary judgment should be granted if the evidence submitted to
the Court demonstrates that there is no genuine issue as to any material fact and that the
movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-248 (1986).
“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.’” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881,
886 (6th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)). “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.
Once “a motion for summary judgment is properly made and supported, an
opposing party may not rely merely on allegations or denials in its own pleading[.]”
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Viergutz v. Lucent Technologies, Inc., 375 Fed. Appx. 482, 485 (6th Cir. 2010) (citing
Fed. R. Civ. P. 56(e)(2)). Instead, the party opposing summary judgment “must - by
affidavits or as otherwise provided in this rule - set out specific facts showing a genuine
issue for trial.” Id. (citing Fed. R. Civ. P. 56(e)(2)).
III. PLAINTIFF’S OBJECTIONS
The Magistrate Judge, in recommending that the Court grant summary judgment in
favor of Officers Melissa Campbell and Shawn Stevens, concluded that these officers
“did not inflict any injury on Plaintiff in violation of the Eighth Amendment, and any
physical contact made by those two Defendants was not excessive as a matter of law.”
(Doc. 33, PAGEID 404). Officer Campbell purportedly kicked Plaintiff in the groin and
buttocks, (Doc. 3, PAGEID 33; Doc. 30-1, PAGEID 283), but Plaintiff never complained
of, reported or evidenced any injury to those parts of his body. (Doc. 27-21, PAGEID
270-271). Officer Stevens purportedly punched Plaintiff in the back (Doc. 3, PAGEID
33; Doc. 30-1, PAGEID 283), but again, Plaintiff never complained of, reported, or
evidenced any injury to those parts of his body. (Doc. 27-21, PAGEID 270-271).
Concerning Officer John Toland in his individual capacity, the Magistrate Judge
concludes that summary judgment should be granted in Toland’s favor because there is no
evidence placing him at the immediate scene of the incident other than the affidavit
testimony of inmate Eddie Wynn. The Magistrate Judge concludes that inmate Wynn’s
affidavit testimony in this regard lacks credibility to the point that it cannot create a

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genuine issue of material fact.2 All other evidence presented demonstrates that Officer
Toland remained in L Corridor with other inmates at the time of the incident.
Upon an independent review of the record, the Court also notes that the same
rationale for granting summary judgment in favor of Officers Campbell and Stevens
applies equally to Officer Toland, even if Plaintiff could sufficiently prove Toland’s
participation in the incident. Plaintiff contends that Officer Toland struck him on the
right side of his lower body (Doc. 3, PAGEID 33; Doc. 30-1, PAGEID 283); however,
Plaintiff never complained of, reported, or evidenced any injury to the right side of his
lower body. (Doc. 27-21, PAGEID 270-271).
In objecting to the Report and Recommendations, Plaintiff offers no specific
objection to any of the Magistrate Judge’s findings or conclusions. Instead, Plaintiff
simply offers a general recitation of his allegations. Accordingly, the Court
OVERRULES Plaintiff’s purported Objections. See Spencer v. Bouchard, 449 F.3d 721,
725 (6th Cir. 2006) (concluding that “[o]verly general objections do not satisfy the
objection requirement”). As a result, the Court ADOPTS the reasoning and conclusions

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In support of this conclusion, the Magistrate Judge cited Scott v. Harris, 550 U.S. 372, 380
(2007), in which the Supreme Court stated that “[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”); see also
Kowolonek v. Moore, 463 F. App’x 531, 539 (6th Cir. 2012) (affirming the grant of summary judgment
in favor of defendant police officers on an excessive force claim concerning the alleged use of a taser
where the only statement regarding any defendant officer’s use of a taser was blatantly contradicted by
other evidence in the record); Patton v. Byrd, No. 3:07-cv-456, 2011 WL 1002789, *7 (E.D. Tenn. Mar.
18, 2011) (finding plaintiff’s allegations of injury blatantly contradicted by medical records revealing
plaintiff made no timely complaints of injury); Puckett v. Huizing, No. 1:07-CV-1274, 2009 WL 735129
(W.D. Mich. Mar. 12, 2009) (concluding that plaintiff’s allegations of injury were given no weight on
summary judgment because such statements were contradicted by plaintiff’s medical records).

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of the Magistrate Judge and GRANTS summary judgment to Defendants with regard to
Plaintiff’s claims against all Defendants in their official capacities, as well as claims
against Officers Toland, Campbell and Stevens in their individual capacities.
IV. DEFENDANTS’ OBJECTIONS
With regard to claims asserted against Officers Tackett and Maynard in their
individual capacities, the Magistrate Judge concludes that these claims survive summary
judgment because these officers “were the officers most involved in the altercation[,]”
and “a reasonable correctional officer would have understood that it is a violation of the
Eighth Amendment to maliciously and sadistically inflict physical punishment upon an
inmate based solely upon an inmate’s verbal assault.” (Doc. 33, PAGEID 395-96).
Defendants object to the Magistrate Judge’s conclusions in this regard. (Doc. 35,
PAGIEID 436). Defendants generally argue that Plaintiff points to no evidence
supporting his allegations the Officers used excessive force under the circumstances
presented. The Court agrees with Defendants and concludes that the evidentiary record
before the Court does support a conclusion that the Officers’ use of force was a reaction
“based solely upon an inmate’s verbal assault.”
Officer Tackett, in her sworn interrogatory responses submitted by Defendants in
support of the Motion for Summary Judgment, states that Plaintiff turned aggressively
toward her, in what she perceived as Plaintiff’s attempt to “headstrike” her. (Doc. 27-2,
PAGEID 149). According to Officer Tackett, in reacting to Plaintiff’s aggressive
movement, she used force to gain control of Plaintiff in an effort to turn Plaintiff away

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from her.3 (Id.) Officer Tackett states, however, that Plaintiff resisted her efforts to
control him and that Plaintiff began putting his weight on her in an attempt to knock her
to the ground. (Id.) Officer Maynard corroborates Officer Tackett’s statement that
Plaintiff put his weight on Officer Tackett in an attempt to knock Officer Tackett to the
ground. (Doc. 27-4, PAGEID 161). Upon seeing the struggle between Officer Tackett
and Plaintiff, Officer Maynard responded and admittedly took Plaintiff to the ground.
(Id.) Other officers then responded to control Plaintiff’s continued resistance. (Doc. 276, PAGEID 172; Doc. 27-13, PAGEID 209, 212).
In responding to Defendants’ statements regarding the circumstances surrounding
their use of force, Plaintiff pointed only to the affidavit of inmate Wynn (Doc. 30-1,
PAGEID 283), who only provides details concerning the actions of the Officers from the
point Officer Tackett first made physical contact with Plaintiff in H-corridor. Wynn
provides absolutely no statement regarding the circumstances immediately preceding the
Officers’ use of force, including a complete omission of any statement concerning
Plaintiff’s actions or non-actions. (Id.)
Plaintiff himself, certainly a witness to the events, likewise offers no factual
statement contradicting Officer Tackett’s sworn statement that Plaintiff turned
aggressively toward Officer Tackett. Instead, Plaintiff’s only effort in addressing Officer
Tackett’s sworn statement was a question posed in the text of his Response asking why, if
he wanted to hit Officer Tackett, did he not attempt to strike her at an earlier time when

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A statement provided by Officer Jason Skaggs corroborates Officer Tackett’s sworn statement
that Plaintiff spun “in an aggressive manner [t]oward Officer Tackett.” (Doc. 27-13, PAGEID 209).

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his hands were uncuffed. (Doc. 30, PAGEID 281). Even if Plaintiff’s evasive response
can be read as a general denial of an intent to hit Officer Tackett and, in addition, could
be construed as sufficient to create an issue of fact, Plaintiff points to nothing, and offers
nothing, to contradict statements demonstrating that he turned aggressively toward
Officer Tackett in a manner she could reasonably perceive under the circumstances as an
attempt to “headstrike” her. See Fed. R. Civ. P; 56(c) (stating that a non-movant asserting
the existence of a genuine issue of material fact “must support the assertion by . . . citing
to particular parts of materials in the record”). Plaintiff also offers nothing to contradict
statements that he resisted Officers’ subsequent efforts to control him.
Plaintiff’s failure to meet his burden under Rule 56(c) is not insignificant. In this
case, Plaintiff’s own conduct immediately before the officers’ use of force is, perhaps, the
most significant inquiry. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (holding that
“whenever prison officials stand accused of using excessive physical force in violation of
the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm”). Yet, Plaintiff wholly fails to evidence his actions, or nonactions, immediately preceding the Officers’ use of force, or to contradict evidence that
he resisted the Officers’ efforts to control his resistance. Accordingly, Defendants’
statements regarding the circumstances immediately preceding the use of force stand
uncontradicted by evidence acceptable under Rule 56, and, therefore, stand factually
undisputed.

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“What is necessary to establish an ‘unnecessary and wanton infliction of pain[]’
. . . varies according to the nature of the alleged constitutional violation.” Hudson, 503
U.S. at 5 (citing Whitley v. Albers, 475 U.S. 312 (1986)). Where corrections officers are
“confronted with a prison disturbance[,]” officers “must balance the threat unrest poses to
inmates, prison workers, administrators, and visitors against the harm inmates may suffer
if guards use force.” Id. at 6.
As recognized by the United States Supreme Court, “[d]espite the weight of these
competing concerns, corrections officials must make their decisions ‘in haste, under
pressure, and frequently without the luxury of a second chance.’” Id. at 5 (citing Whitley,
475 at 320). Accordingly, in determining whether officers used excessive force, courts
consider “‘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.’” Id. at 67 (citations omitted).
In making the determination as to whether force was excessive under the
circumstances, courts are guided by a number of factors, including the inmate’s injuries.
Hudson, 503 U.S. at 7-8. However, “the extent of injury suffered by an inmate is one
factor that may suggest ‘whether the use of force could plausibly have been thought
necessary’ in a particular situation, ‘or instead evinced such wantonness with respect to
the unjustified infliction of harm as is tantamount to a knowing willingness that it
occur.’” Id. at 7 (citation omitted).
Other factors considered include “the need for application of force, the relationship
between that need and the amount of force used, the threat ‘reasonably perceived by the
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responsible officials,’ and ‘any efforts made to temper the severity of a forceful
response.’” Id.; see also Richmond v. Settles, 450 F. App’x 448, 453 (6th Cir. 2011). As
stated by the Sixth Circuit, “[i]n determining whether a prisoner’s claim rises to this level
[of unnecessary and wanton], the reason or motivation for the conduct, the type and
excessiveness of the force used, and the extent of injury inflicted should be considered.”
Parrish v. Johnson, 800 F.2d 600, 604-605 (6th Cir. 1986). Courts, however, have been
advised that “[t]his analysis . . . must be carefully circumscribed to take into account the
nature of the prison setting in which the conduct occurs and to prevent a prison official’s
conduct from being subjected to unreasonable post hoc judicial second-guessing.” Id.
(citing Whitley, 475 U.S. at 321-22).
As set forth above, uncontradicted evidence in the record shows that Plaintiff, at
the least, turned aggressively toward Officer Tackett in what Officer Tackett perceived as
Plaintiff attempting to “headstrike” her. In response, Officer Tackett used force to repel
the perceived attack. Upon seeing the physical confrontation between Plaintiff and
Officer Tackett, Officer Maynard responded by taking Plaintiff to the ground. Other
officers then responded to assist in subduing Plaintiff’s continued movements. In light of
the fact that Plaintiff suffered only minor, superficial abrasions, reasonable minds could
only conclude that the force used by Officers Tackett and Maynard was, even if
somewhat more than de minimis, minimal and proper, not malicious or sadistic.
Accordingly, viewing the evidence in a light most favorable to Plaintiff, no
disputed issue of material remains and Plaintiff’s excessive force claim must fail as a
matter of law. Defendant’s Objections are SUSTAINED to the extent of the foregoing
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analysis set forth above. As a result, Defendants’ Motion for Summary Judgment is
GRANTED with regard Plaintiff’s claims against Officers Tackett and Maynard.
V. CONCLUSION
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge de novo and has considered
the parties’ Objections thereto. After considering the issues de novo, the Court: (1)
ADOPTS the Report and Recommendations (Doc. 33) in part only; (2) OVERRULES
Plaintiff’s Objections (Docs. 34); (3) SUSTAINS Defendants’ Objections to the extent
set forth above; and (4) GRANTS Defendants’ Motion for Summary Judgment (Doc. 27)
in its entirety. The Clerk shall enter judgment accordingly and close this case.
IT IS SO ORDERED.

s/ Timothy S. Black
Timothy S. Black
United States District Judge

Date: 9/24/12

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