Lovett v. Barney et al
ORDER adopting Report and Recommendation re 131 Report and Recommendation denying 108 Motion for Summary Judgment; granting in part and denying in part 127 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 2/22/17. (ba)(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
) Case No.: 1:15cv024
) Judge Michael R. Barrett
BRIAN BARNEY, et al.,
This matter is before the Court on the Report and Recommendation (“R&R”) of the
Magistrate Judge (Doc. 131).
Defendant Brian Barney and interested party, the State of Ohio
(hereinafter collectively referred to as “Defendants”) filed their Partial Objection to the R&R (Doc.
132) and Plaintiff filed a response (Doc. 133).
The Magistrate Judge set forth in great detail the facts of this case. The following is an
abbreviated version of the facts as they relate to the instant motion. Plaintiff, an inmate at the
Southern Ohio Correctional Facility (“SOCF”) brings this pro se action against Defendant
Correctional Officer Brian Barney and Lt. Robert Setty, both employees at SOCF, pursuant to 42
U.S.C. § 1983 alleging excessive force was used against him in violation of the Eighth
Plaintiff’s case involves an incident that occurred during recreation time on September
17, 2014. During transport to the recreation cages, inmates wore leg shackles and handcuffs, and
were chained together with a chain connected to each set of handcuffs. Once they reached the
recreation cages, the chains were removed and the inmates were ordered to proceed toward the
available cages. The facts presented by the parties diverge when Plaintiff and Officer Barney
turn the corner, outside the view of the prison’s security cameras.
Officer Barney attests that Plaintiff turned toward him and attempted to punch him with
his right fist, Plaintiff’s hands no longer cuffed behind him. When Plaintiff lunged toward him
to land the punch, Officer Barney attests that Plaintiff missed and they both fell to the ground.
According to Officer Barney, Plaintiff landed on his right side and Officer Barney landed on his
Plaintiff, on the other hand, attests that once he and Officer Barney were out of view,
Officer Barney punched him in the face. Then, Officer Barney slammed Plaintiff to the ground.
Plaintiff’s right side caught his fall because he was still handcuffed and shackled. Once on the
ground, Plaintiff attests that Officer Barney again punched him in the face, kicked his ribs, and
attempted to yank Plaintiff’s handcuffs off of him.
Less than a minute later, Plaintiff and Officer Barney are once against captured on the
security cameras, and Officer Barney is seen escorting Plaintiff back to the prison. As Plaintiff,
Officer Barney and another officer walk next to the recreation cages, jostling between Plaintiff
and Officer Barney ensues. Officer Barney pushes Plaintiff against the fenced wall of the
recreation cage. 1 Upon arriving at the segregation building, the parties again begin jostling. At
this point, Defendant Lt. Setty takes Plaintiff’s other arm, utilizing an escort technique, and he
remains in that position for the duration of the walk. When they arrive at the strip search cage,
Plaintiff is placed against the wall until the door opens and they enter.
Officer Barney argues the Magistrate Judge misinterprets the physical movements of the parties. Officer Barney’s
objections on this issue are addressed below.
Both parties submitted declarations provided by witnesses in support of their positions.
In addition, Defendants also filed color photographs of Plaintiff’s injuries, as well as the
available videotape evidence.
The Magistrate Judge came to two different conclusions with respect to Defendant
Barney and Defendant Setty. As for Defendant Barney, the Magistrate Judge concluded that he
was not entitled to summary judgment because the facts surrounding the incident as it relates to
his conduct are in dispute. The Magistrate Judge concluded that Defendant Setty, however, was
entitled to summary judgment. 2
Officer Barney filed timely objections to the Magistrate Judge’s conclusion.
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 disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C.
§ 636(b)(1). General objections are insufficient to preserve any issues for review: “[a] general
objection to the entirety of the Magistrate [Judge]’s report has the same effect as would a failure
to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Nevertheless, the objections of a petitioner appearing pro se will be construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Officer Barney raises three primary objections.
Each is addressed in turn, but are
addressed out of order for ease of discussion.
Plaintiff did not object to the Magistrate Judge’s conclusion with respect to Defendant Setty.
1. Videotape Evidence
Officer Barney acknowledges that the Magistrate Judge set forth a detailed video sequence
of events. Nevertheless, Officer Barney objects to the Magistrate Judge’s interpretation of the
parties’ physical movements depicted in the video. The Magistrate Judge described the video in
relevant part as follows:
As plaintiff and the two officers walk next to the recreation cage, defendant
Barney pushes plaintiff face first against the fenced wall of the recreation cage.
(See Lovett 9-17-2014 at 00:00 through 00:25). Plaintiff is turned around to face
Officer Barney. He is then turned to again face the recreation cage and is placed
face first against the fenced wall of the cage a second time. (See id.).
(Doc. 131, PageID 762). Blaming it on the poor quality of the video evidence, Officer Barney
argues that when the video is viewed in slow speed, it shows the Magistrate Judge misinterpreted
the video. Specifically, Officer Barney explains that the video shows “not only does Officer
Barney not push plaintiff face first into the fenced wall of the recreation cage, but plaintiff is
seen at 9:12:32 pushing back into Officer Barney and attempting to go into a deadweight sitting
position. Thereafter, at 9:12:33, although Officer Barney attempts to turn Plaintiff face forward
toward the fence, Plaintiff resists and in fact takes the position where his back is against the
fence and he is directly facing Officer Barney.  In this face forward position, Plaintiff has the
ability to head-butt, spit and bit [sic] Officer Barney.”
(Doc. 132, PageID 780-81).
Consequently, Officer Barney argues he was within his authority to use the force he did to regain
control of Plaintiff. Officer Barney’s objection in this regard is misplaced for a couple of
First, Officer Barney’s different interpretation of the video evidence, as well as his
concession that the quality of the video is poor further highlights why he is not entitled to
In addition to the Magistrate Judge’s and Officer Barney’s differing
interpretations of the video evidence, Plaintiff also provides an account of what happened; that
is, Officer Barney “suddenly turned and rammed [plaintiff] into the steel rec-cages.” (Doc. 3 at
This Court too has reviewed the video evidence. It the undersigned’s opinion that it is
hard to determine when Plaintiff’s back is against the recreation cage and when Plaintiff is facing
Officer Barney. And the Magistrate Judge acknowledges that at some point Plaintiff is turned
around to face Officer Barney. Thus, the Court cannot conclude that the Magistrate Judge
misinterpreted this portion of the video.
Moreover, the video evidence does not show Plaintiff head-butt, spit or bite Officer
Barney as Officer Barney argues Plaintiff was capable of doing. In addition, the Court finds that
Plaintiff’s version of events is not so utterly discredited by the video evidence that no reasonable
jury could believe him.
Scott v. Harris, 127 S. Ct. 1769, 1776 (2007). In fact, Officer Barney
did suddenly ram Plaintiff into the steel recreation cages for one reason or another. In short, the
video evidence appears to support multiple interpretations, thus creating a genuine issue of
material fact. See id.
More importantly, the Magistrate Judge’s R&R focuses not on the portion of the incident
captured on video, but rather, the confrontation between Plaintiff and Officer Barney that
occurred outside the view of the security cameras. Thus, what the video evidence depicts is not
wholly relevant to the issue before the Court. And as the Magistrate Judge correctly explained,
“[f]acts that are not blatantly contradicted by [a video] recording remain entitled to an
interpretation most favorable to the non-moving party.” Coble v. City of White House, Tenn.,
634 F.3d 865, 870 (6th Cir. 2011).
2. Medical Evidence
Officer Barney next appears to object to the Magistrate Judge’s conclusion that a
reasonable jury could find in favor of Plaintiff. (Doc. 131, PageID 767). Officer Barney argues
that Plaintiff’s allegations do not comport with the objective medical record and thus, no genuine
issue of material fact exists. The Court disagrees.
The photographic evidence shows injuries to Plaintiff’s wrists, right shoulder and
(See DSC00094(2) (wrists), DSC00095(2) (shoulder), DSC00096(2) (forehead).
Plaintiff’s account of the incident provides explanations for each of these injuries. First, Plaintiff
alleges the injury to his right shoulder was caused by Plaintiff being slammed to the ground
while still handcuffed and shackled, thus causing his right shoulder to break the fall. (Doc. 3 at
¶ 25). He argues Officer Barney slammed and smashed his face and head into the ground more
than one time causing the injury to his forehead. (Id. at ¶ 26). As for the abrasion to his wrist,
Plaintiff alleges Officer Barney placed his knee on Plaintiff’s neck and attempted to remove
(Id. at ¶ 29).
Two inmates who witnessed the altercation, Harold
McGrapth and Jason Pope, corroborate Plaintiff’s version of events, and submitted declarations
to this effect. (Docs. 86-1, 86-3).
Nevertheless, Officer Barney argues the record does not allow a trier of fact to find that
Officer Barney was able to get in front of Plaintiff, punch him in the face, slam him to the
ground, smash Plaintiff’s face into the ground and cause only one singular knot. He also argues
other force allegedly used for which Plaintiff now complains, such as kicking him in the ribs and
kneeing him in the neck would have caused injuries if Plaintiff’s story was true. Finally, Officer
Barney argues that Plaintiff is unable to explain under his version of events how Officer
Barney’s injury to his left shoulder occurred during the incident.
Upon review of the evidence, the Court agrees with the Magistrate Judge that there exists
conflicting evidence with respect to the type and amount of force used and the extent of the
injury inflicted. (Doc. 131, PageID 768). The Court is not convinced that Plaintiff’s version of
events is blatantly contradicted by the medical record. For example, the Court can envision a
scenario where Plaintiff’s face being smashed into the ground multiple times in the same place
would cause one, large singular knot; or a scenario in which being kicked in the ribs or kneed in
the neck would not cause visible injuries.
Finally, it is plausible that Plaintiff offers no
explanation as to how Officer Barney sustained an injury to his left shoulder simply because
Plaintiff is unaware of the injury.
Rather, Officer Barney once again asks the Court to credit his version of events over
those of Plaintiff’s. While a jury might ultimately find Officer Barney’s version of events to be
more credible, the questions posed in Officer Barney’s objections do not convince the Court that
the Magistrate Judge was incorrect to conclude that a jury could find the amount of force used by
Officer Barney was excessive.
Instead, the questions presented by Officer Barney further
demonstrate the existence of disputed issues of material fact.
Thus, the Magistrate Judge
properly concluded that Officer Barney’s motion for summary judgment should be denied.
B. Qualified Immunity
Because Officer Barney argues Plaintiff’s allegations are contradicted by the record, he
also argues he is entitled to qualified immunity. Having concluded that the Magistrate Judge
correctly found that genuine issues of material fact exist, the Court also finds the Magistrate
Judge correctly concluded Officer Barney is not entitled to qualified immunity.
Magistrate Judge explained, “[i]f there is a genuine issue of fact as to whether an officer’s use of
force was objectively reasonable, then there naturally is a genuine issue of fact with respect to
whether a reasonable jail official would have known such conduct was wrongful.” Cordell, 759
F.3d at 588 (quoting Kostrzewa v. City of Troy, 247 F.3d 633, 642 (6th Cir. 2001). Accordingly,
Officer Barney’s objection on this point is not well taken.
C. Heck v. Humphrey
Finally, Officer Barney objects to the Magistrate Judge’s conclusion that the Supreme
Court’s decision in Heck v. Humphrey is not applicable in this case. As the Magistrate Judge
explained, a Section 1983 suit is Heck-barred if a judgment in a plaintiff’s favor would
“necessarily” invalidate the plaintiff’s conviction or sentence. Heck v. Humphrey, 512 U.S. 477,
Officer Barney argues that the Magistrate Judge improperly rejected his reliance on Bell
v. Wilkinson, 145 F. App’x 169, 170 (6th Cir. 2005), an unpublished Sixth Circuit opinion.
Contrary to Officer Barney’s assertion, however, the Magistrate Judge did not reject Officer
Barney’s reliance on Bell because it was an unpublished opinion. In fact, the Magistrate Judge
did not reject it at all. Rather, the Magistrate Judge found the facts in Bell inapposite to those
The Sixth Circuit in Bell found that suit was barred when a prisoner’s Rules Infraction
Board (“RIB”) conviction impacted the duration of his confinement.
See id. The Magistrate
Judge concluded that in this case, Plaintiff’s claims were not Heck-barred because the RIB
conviction did not affect the duration of Plaintiff’s confinement, but rather, the conditions of
Plaintiff’s confinement – namely, that Plaintiff was placed in disciplinary control for 15 days and
recreation restriction for 60 days. Upon review, the Court agrees with the Magistrate Judge. A
suit is barred by Heck if it affects the duration of incarceration ordered by the original judgment
When the Sixth Circuit decided Bell it did not consider Wilkinson v. Dotson, 544 U.S. 74 (2005), a United States
Supreme Court case decided a few months prior to Bell. In Wilkinson, the Court further clarified that a suit is barred
“if success in that action would necessarily demonstrate the invalidity of confinement or its duration”. Id. at 82.
of conviction. See Muhammad v. Close, 540 U.S. 749, 751-52 (2004) (per curiam). Officer
Barney has presented no evidence that the incident at issue affected the duration of Plaintiff’s
sentence imposed as a result of his original conviction. Thus, Officer Barney’s objection is
Consistent with the foregoing, Defendants’ Partial Objection to the R&R (Doc. 132) is
OVERRULED and the Magistrate Judge’s R&R (Doc. 131) is ADOPTED IN ITS
ENTIRETY. Accordingly, it is hereby ORDERED:
1. Plaintiff’s Motion for Summary Judgment (Doc. 108) is DENIED;
2. Defendants’ Motion for Summary Judgment (Doc. 127) is GRANTED as to
Plaintiff’s claim against Defendant Setty but DENIED as to his claim against
IT IS SO ORDERED.
s/Michael R. Barrett
Michael R. Barrett, Judge
United States District Court
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