Pullen v. Mainner et al

Filing 122

ORDER ADOPTING REPORT AND RECOMMENDATIONS - The Magistrate Judge's 5/16/2016 R&R (Doc. 113 ) is ADOPTED. Accordingly, it is hereby ORDERED that: 1. Plaintiff's Motion Ordering Defendants to Show Cause (Doc. 94 ) is DENIED as MOOT; 2. Defe ndants' Motion for Summary Judgment (Doc. 99 ) is GRANTED; 3. Plaintiff's Motions to Produce Documents (Doc. 106 , 107 , 108 ) are DENIED as MOOT; 4. Plaintiff's Motion Requesting to File an Amended Motion for an Order Compelling D iscovery (Doc. 109 ) is DENIED as MOOT; 5. Plaintiff's Motion for Order to Show Cause (Doc. 110 ) is DENIED as MOOT; and 6. This matter is CLOSED and TERMINATED from the active docket of this Court. Signed by Judge Michael R. Barrett on 9/15/2016. (jee)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Terry Tyrone Pullen,
Plaintiff,
Case No.: 1:14-cv-223
v.
Judge Michael R. Barrett
C.O. Maynard, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court on the Magistrate Judge’s May 16, 2016 Report
and Recommendation (“R&R”) that Defendants’ Motion for Summary Judgment be
granted; all other pending motions be denied as moot; and this matter be terminated on
the active docket of the Court. (Doc. 113).
The parties were given proper notice under Rule 72(b) of the Federal Rules of
Civil Procedure, including notice that the parties would waive further appeal if they failed
to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d
947, 949-950 (6th Cir. 1981).

Plaintiff filed Objections to the R&R.

(Doc. 119).

Defendants filed a Response to Plaintiff’s Objections. (Doc. 121).
For the reasons stated below, Plaintiff’s Objections are OVERRULED; and the
Court ADOPTS the Magistrate Judge’s May 16, 2016 R&R.
I. BACKGROUND
Plaintiff is an inmate currently incarcerated at the Southern Ohio Correctional
Facility (“SOCF”). Plaintiff brings claims his claims pro se pursuant to 42 U.S.C. §1983
against three of the employees at SOCF based on allegations that he was attacked by

other inmates on three different occasions. The Magistrate Judge has set forth the
procedural and factual background in her R&R and the same will not be repeated here
except to the extent necessary to address Plaintiff’s objections.
II. ANALYSIS
A. Standard of Review
This Court shall consider objections to a magistrate judge's order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a).
When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3).

After review, the district judge “may accept, reject, or modify the

recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Defendants Distel, Butterbaugh and Maynard filed a Motion for Summary
Judgment. Federal Rule of Civil Procedure 56(a) provides that summary judgment is
proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” The moving party has the burden
of showing an absence of evidence to support the non-moving party’s case. Celotex
Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden
of production, the non-moving party cannot rest on his pleadings, but must present
significant probative evidence in support of his complaint to defeat the motion for
summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

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B. Section 1983
The Magistrate Judge concluded that Plaintiff has failed to establish claims for
deliberate indifference under the Eighth Amendment.
“[T]o survive summary judgment in a § 1983 action, [the plaintiff] must
demonstrate a genuine issue of material fact as to the following ‘two elements: 1) the
deprivation of a right secured by the Constitution or laws of the United States and 2) the
deprivation was caused by a person acting under color of state law.’”

Johnson v.

Karnes, 398 F.3d 868, 873 (6th Cir. 2005) (quoting Ellison v. Garbarino, 48 F.3d 192,
194 (6th Cir. 1995)).
The Magistrate Judge also found that Defendants were entitled to qualified
immunity. Qualified immunity is an affirmative defense to § 1983 claims. Binay v.
Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). Qualified immunity shields “government
officials performing discretionary functions . . . from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982).
1. Officer Distel
Plaintiff objects to the Magistrate Judge’s conclusion that Plaintiff’s affidavits and
Robert Perdue’s declaration are not sufficient to demonstrate a genuine issue of
material fact. As the Magistrate Judge explained, “self-serving affidavits, alone, are not
enough to create an issue of fact sufficient to survive summary judgment.” Wolfe v. Vill.
of Brice, 37 F.Supp.2d 1021, 1026 (S.D.Ohio 1999) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Moreover, the Magistrate

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Judge explained that in his affidavit, Plaintiff states that he only had a “belief” that
Officer Distel had prior knowledge that Inmate Showes would attack Plaintiff.

In

addition, as the Magistrate Judge explained, the declaration of Robert Perdue—a fellow
inmate—does not establish that Officer Distel knew that Inmate Showes would attack
Plaintiff. Perdue stated that when Showes attached Plaintiffk, Officer Distel was three
cells away speaking to Perdue.
Plaintiff maintains that if he had been provided the DVR recording for September
2, 2013, he could establish deliberate indifference. However, as counsel for Defendants
has explained, a DVR recording for that date does not exist. (Doc. 111, PAGEID #
905).
Therefore, the Magistrate Judge did not err in concluding that Defendants are
entitled to summary judgment on Plaintiff’s claim of deliberate indifference under the
Eighth Amendment against Officer Distel.
2. Officer Butterbaugh
Plaintiff objects to the Magistrate Judge’s conclusion that Plaintiff has not
established the Officer Butterbaugh was deliberately indifferent when he ignored
Plaintiff after he told him that Inmate Showes assaulted him with human feces. As the
Magistrate Judge explained, this second attack by Inmate Showes is recorded in a
video which shows the entire incident.

The Magistrate Judge also explained that

Plaintiff’s affidavit and the declaration of Perdue do not establish that Officer
Butterbaugh knew Showes planned to attack Plaintiff or failed to prevent such an attack.
In his objections, Plaintiff points to a comment Plaintiff alleges Officer
Butterbaugh made to Showes after the attack (“you got that fucker good”). However,

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such a comment after the attack does not show that Officer Butterbaugh knew before
the attack that it would occur or encouraged the attack.
Therefore, the Magistrate Judge did not err in concluding that Defendants are
entitled to summary judgment on Plaintiff’s claim of deliberate indifference under the
Eighth Amendment against Officer Butterbaugh.
3. Officer Maynard
Plaintiff objects to the Magistrate Judge’s conclusion that that Plaintiff has not
established the Officer Maynard was deliberately indifferent when he failed to protect
Plaintiff from the attack by Inmate Calvin Bell. Plaintiff claims Officer Maynard ignored
his call for help. However, as the Magistrate Judge explained, Officer Maynard stated
that he did not hear or see the attack. The Magistrate Judge also explained that Plaintiff
stated that Officer Maynard was either between 14 to 15 or 10 to 12 cells away when
Plaintiff called out for help.
In his objections, Plaintiff maintains that he would be able to establish deliberate
indifference if he was provided the DVR recording of the incident.

While a DVR

recording for that date does not exist (Doc. 111, PAGEID # 905), Petitioner has
submitted a conduct report detailing the incident based on the recording. (Doc. 119-1).
The report does match Petitioner’s account of the attack by Inmate Bell, but there is
nothing in the report which mentions Officer Maynard.
Therefore, the Magistrate Judge did not err in concluding that Defendants are
entitled to summary judgment on Plaintiff’s claim of deliberate indifference under the
Eighth Amendment against Officer Maynard.

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III. CONCLUSION
Based on the foregoing, that Magistrate Judge’s May 16, 2016 R&R (Doc. 113) is
ADOPTED. Accordingly, it is hereby ORDERED that:
1. Plaintiff’s Motion Ordering Defendants to Show Cause (Doc. 94) is DENIED as
MOOT;
2. Defendants’ Motion for Summary Judgment (Doc. 99) is GRANTED;
3. Plaintiff’s Motions to Produce Documents (Doc. 106, 107, 108) are DENIED as
MOOT;
4. Plaintiff’s Motion Requesting to File an Amended Motion for an Order Compelling
Discovery (Doc. 109) is DENIED as MOOT;
5. Plaintiff’s Motion for Order to Show Cause (Doc. 110) is DENIED as MOOT; and
6. This matter is CLOSED and TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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