Lovett v. Cole et al

Filing 28

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 5 Report and Recommendation in its entirety. The Court DISMISSES Defendants Harris and Brunsman from this matter. Signed by Judge S Arthur Spiegel on 7/12/2011. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KELVIN R. LOVETT,
Plaintiff,
v.
OFFICER STEVEN COLE, et al.,
Defendant.

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NO. 1:11-CV-277
OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
Order and Report and Recommendation, (doc. 5), to which Plaintiff
filed an Objection “in part,” (doc. 10). For the reasons indicated
herein, the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report
and Recommendation in its entirety and DISMISSES Plaintiff’s claims
against Defendants Harris and Brunsman.
I.

Background
Plaintiff Kelvin Lovett brings this civil rights action

under 42 U.S.C. § 1983 (Id.).

The Magistrate Judge offered a

comprehensive review of the facts in this matter, which the Court
incorporates by reference (doc. 5).

Plaintiff is currently an

inmate at the Southern Ohio Correctional Facility (“SOCF”) and a
former inmate at the Lebanon Correction Institution (“LeCI”) (Id.).
Plaintiff filed a pro se Complaint, (doc. 1), on May 2, 2011
against LeCI Corrections Officers Steven Cole, Newsome, Kevin
Brown, Mathis, Drummond, and Roles, LeCI Lt. Buckhalter, LeCI
Deputy

Warden

Shay

Harris,

and

LeCI

Warden

Timothy

Brunsman

(collectively “Defendants”), alleging that Plaintiff sustained
injuries as a result of Defendants’ use of excessive force (Id.).
First, Plaintiff alleges a claim of excessive use of force in
violation of the Eighth Amendment by Defendants Cole, Brown,
Mathis, Drummond, Roles, and Newsome (doc. 5).

Plaintiff also

alleges a claim of deliberate indifference to safety in violation
of the Eighth Amendment against Defendant Buckhalter (Id.).
Plaintiff alleges the following facts: On January 14,
2011, Defendants Brown, Roles, and Newsome beat Plaintiff about the
head, face, and arms until Plaintiff lost consciousness (Id.).
When Plaintiff regained consciousness, Defendant Mathis placed
Plaintiff

in

handcuffs,

escorted

Plaintiff

downstairs,

and

repeatedly rammed Plaintiff’s face into the wall (Id.). Defendants
Cole, Mathis, Drummon, and Newsome then allegedly took Plaintiff to
a room in the infirmary where they beat Plaintiff about his side,
arms, and legs for five to eight minutes (Id.). Plaintiff contends
that Defendant Buckhalter was present in the infirmary and failed
to take any action to stop the beating (Id.).

Plaintiff also

alleges that as a result of the beatings, he suffered massive
bleeding, bruising, swelling, and a loss of hearing in his left ear
for seven days (Id.).

Plaintiff further contends that Deputy

Warden Harris is Defendant Buckhalter’s supervisor and that Warden
Brunsman ordered a Use of Force investigation in his case, but
otherwise

has

not

taken

action

2

in

response

to

Plaintiff’s

complaints (Id.).
II.

The Magistrate Judge’s Report and Recommendation (doc. 5)
The Magistrate Judge conducted a sua sponte review to

determine whether the Complaint, or any portion thereof, should be
dismissed as frivolous or malicious, for failure to state a claim
upon which relief may be granted, or because it seeks monetary
relief from a defendant who is immune from such relief. See 28
U.S.C. §§ 1915(e)(2)(B), 1915A(b).
In her Report and Recommendation, the Magistrate Judge
determined that Plaintiff failed to state a claim of relief against
defendants LeCI Deputy Warden Harris and LeCI Warden Brunsman
because

Plaintiff

did

not

present

any

factual

allegations

supporting a direct claim against them, and a claim based on
respondeat superior is not permissible under 42 U.S.C. § 1983, the
statute under which Plaintiff seeks relief (doc. 5). Accordingly,
the Magistrate Judge found that Plaintiff’s complaint against
Defendants Harris and Burnsman should be dismissed for failure to
state a claim under § 1983 (Id.).
The Magistrate Judge noted that it appears that the LeCI
Deputy Warden and LeCI Warden are named as Defendants because of
their respective supervisory positions they hold in the prison
(Id.).

However, the Magistrate Judge also noted that respondeat

superior does not apply to Section 1983 claims and may not serve as
a basis for liability on defendants Harris and Brunsman.

3

See

Ashcroft v. Iqbal, 129 S. Ct 1937, 1948 (2009); Monell v. Dep’t of
Social Serv., 436 U.S. 658 (1978); Hill v. Marshall, 962 F.2d 1209,
1213 (6th Cir. 1992).

In fact, “[Section] 1983 liability of

supervisory personnel must be based on more than the right to
control employees.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.
1984).
for

Moreover, a superior may not be held liable under § 1983

the

misconduct

of

his

employees

unless

the

plaintiff

demonstrates that “the supervisor encouraged the specific incident
of misconduct or in some other way directly participated in it.”
Id.
The Magistrate Judge highlighted that “at a minimum a
plaintiff

must

authorized,

show

that

approved,

or

unconstitutional

conduct

Jefferson

Ky.,

Cnty.

of

668

the

official

knowingly
the
F.2d

at

least

implicitly

acquiesced

in

the

offending

officers.”

Hays

869,

(6th

1982).

874

Cir.

v.

Additionally, the Magistrate Judge underscored that Section 1983
liability is premised on active unconstitutional behavior and not
a mere failure to act. Greene v. Barber, 310 F.3d 889, 899 (6th
Cir. 2002).

Where a supervisor is found to have abandoned the

specific duties of his position, such as adopting and implementing
a

particular

operating

procedure,

liability

is

direct,

not

vicarious. Taylor v. Mich. Dep’t of Corrections, 69 F.3d 76 (6th
Cir. 1995).
The Magistrate Judge concluded that Plaintiff failed to

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allege that the Deputy Warden or Warden were present during or
directly participated in the alleged assaults against Plaintiff by
the LeCI corrections officers (doc. 5).

The Magistrate Judge

additionally determined that Plaintiff did not allege facts showing
that either Defendant Harris or Brunsman approved, encouraged, or
implicitly authorized the alleged use of excessive force (Id.).
The Magistrate Judge stated that the mere fact that Defendant
Harris is the Deputy Warden of LeCI and Defendant Brunsman is the
Warden of LeCI is not sufficient enough to impose liability
pursuant to Section 1983 (Id.).

Thus, the Magistrate Judge

recommended that the Section 1983 claims against Defendants Harris
and Burnsman should be dismissed.
III. Plaintiff’s Objection to the Magistrate Judge’s Report and
Recommendation (doc. 10)
The parties were served with the Magistrate Judge’s
Report and Recommendation and were therefore afforded proper notice
of the Magistrate Judge’s Report and Recommendation as required by
28 U.S.C. § 636(b)(1)(C), including the notice that failure to file
timely objections to the Report and Recommendation would result in
a waiver of further appeal. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

Plaintiff filed an Objection,(doc.

10), in timely fashion on May 11, 2011.

Essentially, Plaintiff

objects to Defendants Harris’ and Brunsman’s recommended dismissal
from his lawsuit (Id.).

Plaintiff alleges that both Defendants

know that excessive force is used often at LeCI, yet neither
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Defendant does anything to stop such force from being used, thus
resulting in a grave injustice to LeCI inmates (Id.).
Plaintiff

does

participation

admit
in

this

that

Defendants

instance

was

Harris’
indirect,

and

However,
Brunsman’s

through

their

supervisory positions at LeCI (Id.).
IV.

Conclusion
Having reviewed this matter pursuant to 28 U.S.C. §

636(b), the Court finds no clear error on the face of the records
and further finds the Magistrate Judge’s Report and Recommendation
well-reasoned, thorough, and correct.

Accordingly, the Court

ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation
in its entirety (doc. 5), and DISMISSES Defendants Harris and
Brunsman from this matter.

SO ORDERED.
Date: July 12, 2011

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

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