Thompson v. Esham et al

Filing 78

REPORT AND RECOMMENDATIONS re 71 Defendants' Motion for Summary Judgment. IT IS RECOMMENDED that Defendants' Motion for Summary Judgment 71 be GRANTED and that all claims against Defendants Eshem, Rogers, Hart, Cool and Davis be DISMI SSED with prejudice. Objections to R&R due by 1/26/2018. Signed by Magistrate Judge Stephanie K. Bowman on 1/12/2018. (km)(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

GERALD THOMPSON,

Civil Action No. 1:15-cv-553

Plaintiff,

Barrett, J.
Bowman, M.J

vs.
LT. ESHAM, et al.,
Defendants.
REPORT AND RECOMMENDATION
This civil rights action brought by Plaintiff Gerald Thompson (“Plaintiff”), who was
an inmate at the Southern Ohio Correctional Facility and who is proceeding pro se and
in forma pauperis, is now before the Court on the motion for summary judgment of
Defendants Eshem, Hart, Rogers, Cool, and Davis (collectively, “Defendants”). (Doc.
71). Plaintiff has filed a response in opposition to Defendants’ motion (Doc. 74), and
Defendants have filed a reply in support of their motion (Doc. 75). For the following
reasons, it is recommended that Defendants’ motion be granted.
I.

Background and Facts
Plaintiff, who was an inmate at the Southern Ohio Correctional Facility (SOCF),

brings this civil rights action under 42 U.S.C. § 1983.

In his pro se complaint, as

amended by a subsequent complaint filed on October 23, 2015, Plaintiff names
numerous staff members of SOCF as defendants. (Docs. 6, 10). 1 Plaintiff has been
granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 5).

1

Plaintiff also filed a second amendment to the complaint seeking to add claims against four new
defendants (Doc. 18), which the undersigned construed as a motion requesting leave to file an
amendment to the complaint and postponed ruling upon to provide an opportunity for the previously

1

The claims asserted by Plaintiff in the complaint, as amended, concerned
multiple unrelated issues and incidents against various defendants. (Doc. 7, Report and
Recommendation, PageId 54-58; Doc. 13, Report and Recommendation, PageId 10311). 2 The claims that survived the Court’s initial screening include: (1) a claim against
Defendant Eshem based on his alleged use of excessive force during an incident that
occurred on January 25, 2015 at SOCF; (2) a claim against two “John Doe” defendants
based on their participation in the incident involving the alleged use of excessive force
that occurred on January 25, 2015 at SOCF; (3) a claim against Defendant Hart for
alleged denial of medical care relating to the alleged use of excessive force that
occurred on January 25, 2015 at SOCF; (4) claims against Defendants Eshem and
Rogers based on their alleged use of excessive force in an incident that occurred on
June 11, 2015 at SOCF; and (5) claims against Defendants Cool and Davis for failing to
protect Plaintiff from known risks to his safety. (Doc. 13, PageId 112-13).
With respect to these claims, the record evidence is as follows.
A. January 25, 2015 Incident
On January 25, 2015, at approximately 5:50 p.m., Plaintiff refused to come out of
his cell.

(Doc. 71-2, Eshem Use of Force Report, PageId 649; Doc. 71-8, Eshem

Affidavit, PageId 719). Defendant Eshem gave Plaintiff an order to cuff up, but Plaintiff
refused. (Doc. 71-2, PageId 649; Doc. 71-8, PageId 719). Defendant Eshem was
unable to make visual contact with Plaintiff because Plaintiff had a sheet across the
door and window and had the lights covered up. (Doc. 71-2, PageId 649; Doc. 71-8,

identified defendants to respond (Doc. 21). As that motion is pending, Defendants do not address the
allegations in or seek summary judgment on behalf of the four new defendants identified in the second
amendment to the complaint.
2
These R&Rs were subsequently adopted by the district judge over the objections of Plaintiff. (Doc. 23).

2

PageId 719). Defendant Eshem ordered Plaintiff to remove the visual barriers and to
cuff up. (Doc. 71-2, PageId 649; Doc. 71-8, PageId 719). Plaintiff then stated: “I am
going to kill myself.” (Doc. 71-2, PageId 649; Doc. 71-8, PageId 719). The door was
partially opened at that time and the visual barrier fell to the floor. (Doc. 71-2, PageId
649; Doc. 71-8, PageId 719). Defendant Eshem observed that Plaintiff had his cell floor
soaped and flooded. (Doc. 71-2, PageId 649; Doc. 71-8, PageId 719). Plaintiff was
greased up and standing in the back of his cell with something in both hands. (Doc. 712, PageId 649; Doc. 71-8, PageId 719). Plaintiff then began squirting milk out of a bag
towards Defendant Eshem. (Doc. 71-2, PageId 649; Doc. 71-8, PageId 719).
Defendant Eshem deployed Oleoresin Capsicum (“OC”) spray in the facial area of
Plaintiff.

(Doc. 71-2, PageId 649; Doc. 71-8, PageId 719).

At that time, Plaintiff

dropped the bags and the door was closed. (Doc. 71-2, PageId 649; Doc. 71-8, PageId
720). Defendant Eshem and Correctional Officer Scott then ordered Plaintiff to cuff up,
and he complied. (Doc. 71-2, PageId 649; Doc. 71-8, PageId 720). Officer Scott next
began escorting Plaintiff to segregation. (Doc. 71-2, PageId 649; Doc. 71-8, PageId
720.). Although Plaintiff attempted to pull away several times, Officer Scott maintained
control of Plaintiff. (Doc. 71-2, PageId 649; Doc. 71-8, PageId 720). Plaintiff then
began dragging his feet. (Doc. 71-2, PageId 650; Doc. 71-8, PageId 720). Defendant
Eshem ordered the officers to stop to allow Plaintiff to walk on his own several times,
but Plaintiff would go to the floor and pull the officers down with him. (Doc. 71-2,
PageId 650; Doc. 71-8, PageId 720). When Plaintiff eventually was placed in the J2
strip cage, he refused to strip. (Doc. 71-2, PageId 650; Doc. 71-8, PageId 720).

3

Plaintiff was checked by Defendant Hart after the incident that same day. (Doc.
71-2, PageId 664). At that time, Plaintiff reported: “My wrist got cut by those cuffs.”
(Id.).

Defendant Hart noted that Plaintiff was not in acute distress, his respiratory

breaths were easy and regular, and he had a one-quarter inch abrasion on his left wrist
that she advised be cleaned. (Id.).
After being checked by medical and mental health, Plaintiff then stripped. (Doc.
71-2, PageId 650; Doc. 71-8, PageId 720).

Coming out of the strip cage, Plaintiff

refused to walk down the stairs. (Doc. 71-2, PageId 650; Doc. 71-8, PageId 720). Two
officers took control of Plaintiff and placed him in the J2 42 on constant watch. (Doc.
71-2, PageId 650; Doc. 71-8, PageId 720).

The decontamination process began

immediately when Plaintiff was removed from the area. (Doc. 71-2, PageId 650; Doc.
71-8, PageId 720). Plaintiff was offered a shower but refused. (Doc. 71-2, PageId 650;
Doc. 71-8, PageId 720).
SOCF has a thirty-three page Use of Force Report packet and video footage for
this incident, which have been submitted in support of Defendants’ motion for summary
judgment. (Doc. 71-2, PageId 645-77; Doc. 72). The details of the incident described
above are consistent with those contained throughout the Use of Force Report and
depicted in the video footage. Plaintiff refused to make a Use of Force Statement.
(Doc. 71-2, PageId 671-72). The Deputy Warden of Operations Review of Use of Force
form for the incident is signed by William Cool, Deputy Warden of Operations, on
January 28, 2015, which indicates that the force was used to control or subdue an
inmate who refused to obey prison rules and to control an inmate to prevent selfinflicted harm. (Id., PageId 645). It recommends no further action be taken. (Id.,

4

PageId 645). The Managing Officer concurred with Defendant Cool’s recommendation.
(Id., PageId 645).
This incident also was subject to review by the Rules Infraction Board (RIB).
Upon review by the RIB, Plaintiff was found guilty of Inmate Rules of Conduct (7)
Throwing any other liquid or material on or at another and (20) Physical resistance to a
direct order. (Doc. 71-5, Greene Affidavit, PageId 701-02; Doc. 71-6, RIB Disposition,
PageId 709). 3 That decision was affirmed by the Warden on February 18, 2015. (Doc.
71-6, Warden’s Decision, PageId 712).
Plaintiff submitted an Informal Complaint Resolution form dated July 28, 2015 to
prison officials, which provides details on his allegations about the January 25, 2015
incident. (Doc. 6-1, PageId 46). In the informal complaint, Plaintiff claims that he was
assaulted by Defendant Eshem and others “with mace in a heated cell – windows
closed – then tray/slot closed”; that he was “stuck in cell with heated mace & no air –
lungs collapsed”; and that when he was taken out of his cell he was “forced to walk” in
handcuffs and leg irons “in spite of no eye sight – head continuously slammed into
walls.”

(Id.).

He contends that Defendant Hart did not provide “mandatory eye

flushing”; that he was not given a “decontamination shower” until February 15, 2015;
and that he was not given any medical help until July 28, 2015. (Id.) He alleges he
suffered the following untreated injuries: blurry vision, seizures, loss of memory and
cognitive skills, vertigo, numb left wrist, and internal bleeding. (Id.).
B. June 11, 2015 Incident
On June 11, 2015, Defendant Eshem entered the K2 area while making rounds.
(Doc. 71-3, Eshem Use of Force Report, PageId 682-84; Doc. 71-8, Eshem Affidavit,
3

These Inmate Rules of Conduct are set forth in Ohio Admin. Code § 5120-9-06(C)(7) and (20).

5

PageId 720). At that time, he observed feces and water on the range. (Doc. 71-3,
PageId 682-84; Doc. 71-8, PageId 720). Officer Henson and Officer Butterbaugh stated
that Plaintiff had thrown feces at the porter and began flooding the range. (Doc. 71-3,
PageId 682-84; Doc. 71-8, PageId 720).

When Defendant Eshem went to talk to

Plaintiff, he observed Plaintiff jumping on his bed. (Doc. 71-3, PageId 682-84; Doc. 718, PageId 720). Defendant Eshem told Plaintiff to cuff up. (Doc. 71-3, PageId 682-84;
Doc. 71-8, PageId 720). Plaintiff had a milk bag and squirted it towards Defendant
Eshem.

(Doc. 71-3, PageId 682-84; Doc. 71-8, PageId 720).

Although Defendant

Eshem then deployed OC spray, it was ineffective. (Doc. 71-3, PageId 682-84; Doc.
71-8, PageId 720).

After the failed attempt to use OC spray, Defendant Eshem

requested that a MK9 fogger be brought into the area. (Doc. 71-3, PageId 682-84; Doc.
71-8, PageId 720). Plaintiff then stated: “I am going to cut one of you guys.” (Doc. 713, PageId 682-84; Doc. 71-8, PageId 720). Defendant Eshem again ordered Plaintiff to
cuff up. (Doc. 71-3, PageId 682-84; Doc. 71-8, PageId 720). After that order was
made, Plaintiff walked towards the front of the cell, pulled a bottle from his pants, and
pointed the bottle in the direction of Defendant Eshem. (Doc. 71-3, PageId 682-84;
Doc. 71-8, PageId 720). Defendant Eshem responded by deploying OC from the MK9,
but Plaintiff turned quickly and the OC did not strike the desired area. (Doc. 71-3,
PageId 682-84; Doc. 71-8, PageId 721). Defendant Eshem once again ordered Plaintiff
to cuff up, at which time Plaintiff picked up the bottle. (Doc. 71-3, PageId 682-84; Doc.
71-8, PageId 721). When Defendant Eshem deployed the OC for the third time, it had
the desired effect and Plaintiff cuffed up. (Doc. 71-3, PageId 682-84; Doc. 71-8, PageId
721). Defendant Eshem observed that Plaintiff had bent the bed, tore up his mattress,

6

and stuffed the mattress in the toilet to flood the cell. (Doc. 71-3, PageId 682-84; Doc.
71-8, PageId 721).
All property was removed from Plaintiff’s cell following the incident. (Doc. 71-3,
PageId 682-84; Doc. 71-8, PageId 721). His cell also was aired out for a few minutes.
(Doc. 71-3, PageId 682-84; Doc. 71-8, PageId 721). Plaintiff was offered a shower but
he refused it. (Doc. 71-3, PageId 682-84; Doc. 71-8, PageId 721). He was placed on
property restriction for twenty-four hours and returned to his cell with assistance from
Defendant Rogers. (Doc. 71-3, PageId 682-84; Doc. 71-8, PageId 721).
When Defendant Hart examined Plaintiff that same day, Plaintiff reported “I got
no injuries.” (Doc. 71-3, PageId 682-84, 694). Defendant Hart also noted that Plaintiff
was healthy with no acute distress and no injuries. (Id., PageId 694).
SOCF has a twenty page Use of Force Report packet and video footage for this
incident, which have been submitted in support of Defendants’ motion for summary
judgment. (Id., PageId 678-97; Doc. 72). The details of the incident described above
are consistent with those contained throughout the Use of Force Report and in the video
footage. Plaintiff refused to make a Use of Force Statement. (Doc. 71-3, PageId 691).
The Deputy Warden of Operations Review of Use of Force form for the incident is
signed by William Cool, Deputy Warden of Operations, on June 12, 2015, which
indicates that the force was used to control or subdue an inmate who refused to obey
prison rules. (Id., PageId 678). It recommends no further action be taken. (Id.). The
Managing Officer concurred with Defendant Cool’s recommendation. (Id.).
This incident also was subject to review by the RIB. Upon review by the RIB,
Plaintiff was found guilty of Inmate Rules of Conduct (7) Throwing any other liquid or

7

material on or at another, (21) Disobedience of a direct order, (26) Disrespect to an
officer, staff member, visitor, or other inmate, and (49) Destruction, alteration, or misuse
of property.

(Doc. 71-5, Greene Affidavit, PageId 702; Doc. 71-7, RIB Disposition,

PageId 717). 4 That decision was affirmed by the Warden on July 2, 2015. (Doc. 71-7,
Warden’s Decision, PageId 718).
Plaintiff submitted an Informal Complaint Resolution form dated July 28, 2015 to
prison officials, which provides details on his allegations about the June 11, 2015
incident. (Doc. 6-1, PageId 50). In the informal complaint, Plaintiff claims that “C.O.’s
Henson & Butterbaugh start a ritual of laying food tray on tray slot then Henson comes
by cell and boldly whistles at me and finally when Henson walks by and opens tray slots
of I/M . . . to receive dinner tray he refuses me my dinner.” (Doc. 6-1, PageId 46). He
continues: “But on this particular day I am reading the holy Quran outloud in Arabic” and
when Defendant Eshem approached he “spray feces and urine in a humid plexee glass
cell with no out.” (Id.). He claims the “mattress molded[,]” the “water turned off[,]” and
the “toilet [was] leaking with feces & urine[.]” (Id.). He then states “they press the sinks
water button from the back ‘hard’ to make the sink over flow/flood cell.” (Id.). He
contends Defendant Eshem, along with Defendant Rogers, then sprayed him twice with
mace, took him out of the cell, and took all of his items. (Id.). He states that there also
was a “customary denial of medical.” (Id., PageId 51). In the Amended Complaint,
Plaintiff alleges that his “lungs collapsed” and that he suffered “untreated . . . internal
bleeding.” (Doc. 10, PageId 68-69).

4

These Inmate Rules of Conduct are set forth in Ohio Admin. Code § 5120-9-06(C)(7), (21), (26), and
(49).

8

C. Failure to Protect
Plaintiff claims that Defendant Cool failed to properly supervise SOCF
correctional officers and investigate alleged excessive uses of force as well as ongoing
threats to hurt or kill plaintiff. (Doc. 10, PageId 68-69, 71, 74-76). Plaintiff also claims
that Defendant Davis failed to assign him to protective custody. (Doc. 10, PageId 71,
73-76).
Defendant Cool is the Deputy Warden of Operations for SOCF. (Doc. 71-1, Cool
Affidavit, PageId 642).

As part of his job duties, he facilitates the reporting and

investigation of all incidents involving the use of force by any corrections officer against
any prison inmate.

(Id.).

He also supervises the process of such reporting and

investigations, and ensures that all required steps have been completed prior to
submitting completed investigations together with any of his recommendations to the
Warden of SOCF for final disposition. (Id.). At no point during his review of the January
15, 2015 or the June 11, 2015 incident did Defendant Cool have reason to believe or
suspect that any reporting was inaccurate or false.

(Id.).

Further, the review or

consideration of protective custody requests does not fall within the scope of his job
duties as Deputy Warden of Operations. (Id., PageId 644).
Defendant Davis is a Unit Management Chief at SOCF.

(Doc. 71-9, Davis

Affidavit, PageId 723). Defendant Davis did not deny Plaintiff protective custody at any
time.

(Id.).

Any requests for protective custody would have been made by the

protective control committee and subsequently approved by the Warden.

(Id.).

Defendant Davis is not nor has she ever been a member of the protective control
committee. (Id.).

9

II.

Standard of Review
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.” A dispute is “genuine” when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed.2d 202
(1986). A court must view the evidence and draw all reasonable inferences in favor of
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). The moving party has the burden of
showing an absence of evidence to support the nonmoving party’s case. Celotex Corp.
v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986).
Once the moving party has met its burden of production, the nonmoving party
cannot rest on the pleadings, but must present significant probative evidence in support
of his case to defeat the motion for summary judgment. Anderson, 477 U.S. at 248-49.
The mere scintilla of evidence to support the nonmoving party’s position will be
insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the
nonmoving party. Id. at 252.
As Plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United
States, 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir.
1999). However, his status as a pro se litigant does not alter his burden of supporting
his factual assertions with admissible evidence when faced with a summary judgment
motion. Maston v. Montgomery Cnty. Jail Med. Staff Personnel, 832 F. Supp. 2d 846,

10

851-52 (S.D. Ohio 2011) (citing Viergutz v. Lucent Techs., Inc., 375 F. App’s 482, 485
(6th Cir. 2010)).
III.

Analysis
Defendants’ motion for summary judgment asserts that Plaintiff’s action should

be dismissed because (1) he failed to exhaust his administrative remedies in
compliance with the Prisoner Litigation Reform Act (PLRA); (2) his claims are barred by
Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994); (3)
the force used against him in the January 25, 2015 and the June 11, 2015 incidents was
in pursuit of valid disciplinary objectives and did not violate the Eighth Amendment; (4)
Defendant Hart was not deliberately indifferent to Plaintiff’s medical needs following the
January 25, 2015 incident; (5) Defendants Cool and Davis cannot be liable in their
supervisory capacity for failure to protect and no evidence exists of any active
participation by either in the alleged unconstitutional conduct; and (6) Defendants are
entitled to qualified immunity. For the following reasons, the undersigned finds that
Defendants’ motion is well-taken. 5
5

As Defendants have not demonstrated that Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S.
477, 486-87, 114 S. Ct. 2364, 129 L.Ed.2d 383 (1994), that issue is not included in the below analysis. In
Heck, the Supreme Court held that a plaintiff’s claim for damages for a prior unconstitutional conviction or
sentence, or other harm arising therefrom, is not cognizable under 42 U.S.C. § 1983 if “a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the
plaintiff can show that the underlying conviction or sentence was overturned. 512 U.S. at 486-87.
However, if “the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed.” Id. at 487 (emphasis in
original). This holding is equally applicable to prison disciplinary hearings, the outcome of which have
affected the duration of a plaintiff’s term of incarceration. See Edwards v. Balisok, 520 U.S. 541, 643,
117 S. Ct. 1517, 137 L.Ed.2d 771 (1997); Muhammad v. Close, 540 U.S. 749, 751-52, 124 S. Ct. 1303,
158 L.Ed.2d 32 (2004). Several courts, however, have found that Heck does not automatically bar all
Eighth Amendment claims whenever an inmate has been convicted of related disciplinary infractions.
Clarke v. Burke, No. 1:16-cv-547, 2017 WL 397407, at *3-4 (S.D. Ohio Jan. 10, 2017), report and
recommendation adopted at 2017 WL 386838 (S.D. Ohio Jan. 27, 2017); Pullen v. Howard, No. 2:14-cv104, 2016 WL 4764894, at *9-10 (S.D. Ohio Sept. 13, 2016), report and recommendation adopted at
2017 WL 44855 (S.D. Ohio Jan. 3, 2017); Mitchell v. Craft, No. 1:12-cv-943, 2015 WL 4743045, at *3-5
(S.D. Ohio Aug. 10, 2015). Although Defendants have shown that there are RIB decisions relating to the
two incidents at issue here, they have not explained how Plaintiff’s claims in this case would necessarily

11

A.

Plaintiff failed to exhaust his administrative remedies.

Pursuant to the PLRA, prisoners are required to fully exhaust available
institutional remedies prior to filing suit in federal court. See 42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.”). The
Supreme Court has held that the “PLRA’s exhaustion requirement applies to all inmate
suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L.Ed.2d 12 (2002). It is well established
that such exhaustion is “mandatory under the PLRA and unexhausted claims cannot be
brought in court.” Jones v. Bock, 549 U.S. 201, 211, 127 S. Ct. 910, 166 L.Ed.2d 798
(2007).
The PLRA requires “proper exhaustion of administrative remedies,” meaning all
applicable procedures and deadlines must be followed. Woodford v. Ngo, 548 U.S. 81,
84, 90-91, 126 S. Ct. 2378, 165 L.Ed.2d 368 (2002). The exhaustion requirement’s
goals can be achieved “only if the prison grievance system is given a fair opportunity to
consider the grievance.” Id. at 82. “That cannot happen unless the grievant complies
with the system’s critical procedural rules.” Id. at 82. If a prisoner fails to exhaust
available administrative remedies before filing a complaint in federal court, or only
partially exhausts them, then dismissal of the complaint is appropriate. Hopkins v. Ohio

imply the invalidity of those decisions or whether those RIB decisions affected the duration of Plaintiff’s
term of incarceration. But regardless, Defendants are entitled to summary judgment on Plaintiff’s claims
on the other grounds explained herein.

12

Dep’t of Corr., 84 F. App’x 526, 527 (6th Cir. 2003) (citing 42 U.S.C. § 1997e(a) and
White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997)).
“Exhaustion may not be completed after a federal complaint has been filed.”
Hopkins, 84 F. App’x at 527 (citing Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.
1999)). “In a claim by a prisoner, failure to exhaust administrative remedies under the
PLRA is an affirmative defense that must be established by the defendants.” Napier v.
Laurel Cnty., 636 F.3d 218, 225 (6th Cir. 2011) (citing Jones, 549 U.S. at 204).
The Ohio Department of Rehabilitation and Correction (“ODRC”) offers a threestep grievance system to every inmate at each of its institutions. Ohio Admin. Code §
5120-9-31(K) (2013). All inmates and staff members receive a written explanation of
the grievance system and instructions for its use. Ohio Admin. Code § 5120-9-31(C).
The first step of the grievance procedure allows inmates to submit an informal
complaint to the supervisor of the department or staff member directly responsible for
the issue concerning the inmate, but requires any such complaint or grievance to be
submitted no later than fourteen days from the date of the event giving rise to the
grievance. Ohio Admin. Code § 5120-9-31(K)(1).
Inmates dissatisfied with the results of step one may proceed to step two by
obtaining a Notification of Grievance form from the Inspector of Institutional Services,
and filing a formal grievance at the prison where the inmate is confined. Ohio Admin.
Code § 5120-9-31(K)(2). Formal grievances must be submitted within fourteen days
from the date an inmate receives a response to his informal complaint at step one.
Ohio Admin. Code § 5120-9-31(K)(2).

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If dissatisfied with the results of his formal complaint at step two, the inmate may
proceed to step three of the grievance process by requesting an appeal form from the
Office of Inspector of Institutional Services and submitting the appeal form to the Office
of the Chief Inspector at ODRC. Ohio Admin. Code § 5120-9-31(K)(3). The step three
appeal must be filed within fourteen days of the date of the disposition of his formal
complaint. Ohio Admin. Code § 5120-9-31(K)(3). The Chief Inspector is to provide a
written response within thirty calendar days of receiving an appeal, unless he extends
the timeframe for good cause and notifies the inmate. Ohio Admin. Code § 5120-931(K)(3). Decisions of the Chief Inspector are final, meaning that the Ohio
Administrative Code provides no further means for appeal. Ohio Admin. Code § 51209-31(K)(3).
As noted by Defendants, Plaintiff filed eleven informal complaints between
January 1, 2015 and February 1, 2016, the date of his last amended complaint. (Doc.
71-11, Hunyadi Affidavit, PageId 728). Of those eleven informal complaints, only three
raised issues relating to use of force. (Id.). Plaintiff did not proceed to step two of the
administrative procedure (formal grievance) on any of the informal complaints relating to
use of force. (Id.). Further, the informal complaint attached to Plaintiff’s complaint is
dated July 28, 2015, which is well beyond the fourteen-day period set forth in Ohio
Admin. Code § 5120-9-31(K)(1) for filing such complaints after the event occurs.
Plaintiff has therefore failed to exhaust his administrative remedies on issues relating to
the two use-of-force incidents at issue in this case. (Id.). Given that Plaintiff’s claims
against Defendants Eshem, Rogers, Hart, Cool, and Davis concern the use of force
against him, they must be dismissed for failure to exhaust administrative remedies.

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B.

The January 25, 2015 and June 11, 2015 uses of force against
Plaintiff did not violate the Eighth Amendment.

A prisoner may state an Eighth Amendment claim for excessive force under 42
U.S.C. § 1983 by alleging that he has been assaulted by a corrections officer. Farmer
v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994); Whitley v.
Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 89 L.Ed.2d 251 (1986). Not every shove or
restraint gives rise to a constitutional violation, however. Cordell v. McKinney, 759 F.3d
573, 580 (6th Cir. 2014).

On occasion, “[t]he maintenance of prison security and

discipline may require that inmates be subjected to physical contact actionable as
assault under common law.” Id. (quoting Combs v. Wilkinson, 315 F.3d 548, 556 (6th
Cir. 2002)) (internal quotations omitted). Prison officials nonetheless violate the Eighth
Amendment when their “offending conduct reflects an unnecessary and wanton infliction
of pain.” Id. (quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.2011)) (internal
quotations omitted).
An Eighth Amendment excessive force claim has both a subjective and an
objective component. Cordell, 759 F.3d at 580. The subjective component focuses on
“whether force was applied in a good faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Id.; see also Hudson v. McMillian, 503 U.S.
1, 6, 112 S. Ct. 995, 117 L.Ed.2d 156 (1992). In making this inquiry, the Court must
consider the need for the use of force; the relationship between that need and the type
and amount of the force used; the threat reasonably perceived by the official; and the
extent of the injury inflicted. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 320. The
Eighth Amendment does not prohibit a de minimis use of force “provided that the use of

15

force is not of a sort repugnant to the conscience of mankind.” Hudson, 501 U.S. at 10
(quoting Whitley, 475 U.S. at 327) (internal quotations omitted).
The objective component requires the “pain inflicted to be ‘sufficiently serious’” to
offend “contemporary standards of decency.” Cordell, 759 F.3d at 580 (quoting
Williams, 631 F.3d at 383, and Hudson, 503 U.S. at 8). “While the extent of a prisoner’s
injury may help determine the amount of force used by the prison official, it is not
dispositive of whether an Eighth Amendment violation has occurred.” Id. at 580-81.
“‘When prison officials maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated . . . [w]hether or not significant
injury is evident.’” Hudson, 503 U.S. at 9. “Otherwise, the Eighth Amendment would
permit any physical punishment, no matter how diabolic or inhuman, inflicting less than
some arbitrary quantity of injury.” Id.
Here, Plaintiff has failed to establish either the subjective or objective component
of an Eighth Amendment claim with respect to the January 25, 2015 incident and the
June 11, 2015 incident.
The record evidence as to the January 25, 2015 incident establishes that
Defendant Eshem gave Plaintiff several orders, and Plaintiff failed to comply with such
orders. Notably, instead of complying with the orders, Plaintiff had soaped and flooded
his cell floor and began squirting milk on Defendant Eshem as he entered Plaintiff’s cell.
As a result, Defendant Eshem deployed a burst of pepper spray on Plaintiff to prevent
him from continuing to engage in such conduct.

After the pepper spray had been

deployed, Plaintiff initially complied with orders from Defendant Eshem and was cuffed.
After being immediately removed from his cell, however, Plaintiff continued to resist

16

officers as he was escorted to a strip cage. The record evidence further reflects that he
was given a medical examination afterwards where Plaintiff reported only an injury to
his wrist from the handcuffs, which was noted to be a one-quarter inch abrasion to his
left wrist.

He was otherwise noted to be in good medical condition. There is no

evidence to support Plaintiff’s allegations that he suffered any more serious injuries as a
result of the January 25, 2015 incident, such as internal bleeding and seizures. In light
of the foregoing, the undersigned finds that Defendant Eshem used de minimis force in
a good faith effort to maintain or restore discipline, which resulted in no injuries to
Plaintiff. The sole injury to Plaintiff was the small abrasion from the handcuffs being
placed on Plaintiff after the pepper spray had been deployed by Defendant Eshem,
rather than a result of the pepper spray itself. That separate and minor injury does not
demonstrate any excessive force was used by Defendant Eshem.
Similarly, with respect to the June 11, 2015 incident, the record evidence
establishes that Defendants Eshem and Rogers responded to Plaintiff’s cell after
learning Plaintiff had thrown feces and began flooding the range. When Defendant
Eshem arrived, Plaintiff was jumping on his bed. Plaintiff was given orders with which
he did not comply. Instead, Plaintiff had a milk bag that he squirted towards Defendant
Eshem. Although Defendant Eshem deployed a burst of pepper spray towards Plaintiff,
it was ineffective. Plaintiff was given additional orders but still failed to comply. Plaintiff
then made a threat of harm to Defendant Eshem, pulled a bottle from his pants, and
pointed the bottle towards Defendant Eshem. At that time, Defendant Eshem deployed
the pepper spray towards Plaintiff for the second time, but it did not strike Plaintiff in the
desired area. Plaintiff then was given additional orders to comply, which he did not do.

17

Instead, he picked up the bottle again. Defendant Eshem deployed the pepper spray
for the third time, which had the desired effect. Defendant Eshem therefore deployed
only one dose of pepper spray towards Plaintiff that was effective.

Plaintiff was

removed from his cell at that time. Defendant Rogers assisted in placing Plaintiff back
in his cell after he refused a decontamination shower and his property had been
removed. When Plaintiff was examined by Defendant Hart that same day, he reported:
“I got no injuries.” (Doc. 71-3, PageId 694). Defendant Hart also noted that Plaintiff
was healthy with no acute distress and no injuries. There is no record evidence to
support Plaintiff’s allegations that he suffered any more serious injuries as a result of the
June 11, 2015 incident, such as internal bleeding and collapsed lungs. In light of the
foregoing, the undersigned finds that Defendant Rogers used no force against Plaintiff
and that Defendant Eshem used de minimis force in a good faith effort to maintain or
restore discipline, which resulted in no injuries to Plaintiff.
Neither the January 25, 2015 nor the June 11, 2015 de minimis use of force in a
good faith effort to maintain or restore discipline can support a finding of an Eighth
Amendment violation. Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002) (finding
no Eighth Amendment violation when officer sprayed an inmate in the eyes and face
with liquid mace as a measure of prisoner control); Thompson v. Joseph, No. 12-cv992, 2014 WL 1685918, at *8-10 (S.D. Ohio Apr. 29, 2014) (finding one short burst of
pepper spray by a single guard to restore discipline, absent other aggravating factors,
was insufficient to state a valid Eighth Amendment claim). Accordingly, Plaintiff has
failed to establish a § 1983 claim against either Defendant Eshem or Defendant Rogers
based on excessive force under the Eighth Amendment.

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C.

Defendant Hart was not deliberately indifferent to Plaintiff’s medical
needs following the January 25, 2015 use of force.

A prisoner may maintain an Eighth Amendment claim against a prison doctor
under 42 U.S.C. § 1983 when the prison doctor exhibits “deliberate indifference to [the]
serious medical needs” of a prisoner. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct.
285, 50 L.Ed.2d 251 (1976). An Eighth Amendment claim concerning medical care by a
prison doctor has an objective component and a subjective component. Comstock v.
McCrary, 273 F.3d 693, 702 (6th Cir.2001).

The objective component requires a

plaintiff to prove a “sufficiently serious” medical need.

Id. at 702 (citing Farmer v.

Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L.Ed.2d 811 (1994)) (internal
quotations omitted). This type of medical need has been defined as one “‘that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a
lay person would easily recognize the necessity for a doctor’s attention.’” Jones v.
Muskegon County, 625 F.3d 935, 941 (6th Cir. 2010) (quoting Harrison v. Ash, 539 F.3d
510, 518 (6th Cir. 2008)). The subjective component requires a plaintiff to prove that
the doctors had a “sufficiently culpable state of mind.” Comstock, 273 F.3d at 703
(citing Farmer, 511 U.S. at 834) (internal quotations omitted).

To satisfy this

component, the prison doctor must have been more than negligent. Estelle, 429 U.S. at
109 (“[A] complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment under the Eighth
Amendment.”); Farmer, 511 U.S. at 835 (noting that deliberate indifference “describes a
state of mind more blameworthy than negligence”). Rather, the prison doctor must have
acted with a state of mind similar to recklessness. Farmer, 511 U.S. at 835. To prove
this requisite level of culpability, a plaintiff must show that the prison doctor:
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(1)

subjectively knew of a risk to the inmate’s health, (2) drew the inference that a
substantial risk of harm to the inmate existed, and (3) consciously disregarded that risk.
Jones, 625 F.3d at 941 (citing Farmer, 511 U.S. at 835).
Here, Plaintiff has failed to establish either the subjective or objective component
of an Eighth Amendment deliberate indifference claim against Defendant Hart with
respect to the January 25, 2015 incident. First, Plaintiff has not shown that his medical
needs were sufficiently serious. The record evidence plainly shows that Plaintiff was
timely examined by Defendant Hart. The only injury reported by Plaintiff at that time
was a cut on the wrist caused by the handcuffs. Defendant Hart noted the cut on wrist
in the record and advised that it be cleaned. She otherwise noted that Plaintiff was in
good medical condition, and she advised Plaintiff to follow up if any complications
arose. Plaintiff also was offered a decontamination shower, but he refused. There is no
evidence in the record that Plaintiff followed up to report additional injuries to Defendant
Hart. Nor is there any medical evidence in the record substantiating Plaintiff’s claim that
he suffered from other maladies, such as internal bleeding or seizures, from the burst of
pepper spray at any point in time following the incident.
Second, even if Plaintiff did suffer medical needs that were sufficiently serious,
no record evidence shows that Defendant Hart knew of and disregarded a substantial
risk of harm to Plaintiff’s health. The extent of the injuries noted by Defendant Hart in
the medical examination was the cut on Plaintiff’s wrist. He was otherwise noted to be
in good condition. To the extent Plaintiff claims more serious injuries existed, those
injuries were not readily observable from an external examination. Plaintiff has not
presented any evidence that would show Defendant Hart knew of those alleged injuries,

20

believed a substantial risk of harm existed, and consciously disregarded a substantial
risk of harm to Plaintiff. At best, Defendant Hart could be said to have acted negligently
with regard to any of the alleged injuries, which is not enough to sustain a claim based
upon deliberate indifference to medical needs under the Eighth Amendment.
In light of the foregoing, the undersigned finds that Plaintiff has failed to establish
his § 1983 claim against Defendant Hart for deliberate indifference to medical needs
under the Eighth Amendment.
D.

Defendants Cool and Davis cannot be held liable for failure to
protect.

Inmates have a constitutionally protected right to personal safety grounded in the
Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128
L.Ed.2d 811 (1994).

Prison staff are obliged “to take reasonable measures to

guarantee the safety of the inmates” in their care. Hudson v. Palmer, 468 U.S. 517,
526–27, 104 S. Ct. 3194, 82 L.Ed.2d 393 (1984). To maintain an Eighth Amendment
claim against Defendants Cool and Davis under 42 U.S.C. § 1983, Plaintiff must
establish that Defendants acted with “deliberate indifference” to a known risk of harm to
Plaintiff. Farmer, 511 U.S. at 825-26; Woods v. Lecureux, 110 F.3d 1215, 1222 (6th
Cir. 1997).

As with the other Eighth Amendment claims, this claim has both an

objective component and a subjective component. Woods, 110 F.3d at 1222. The
objective component requires that the deprivation be “sufficiently serious.” Id. (citing
Farmer, 511 U.S. at 834). The subjective component requires that the prison officials
have “a sufficiently culpable state of mind.” Id. (citing Farmer, 511 U.S. at 834) (internal
quotations omitted). A prison official may be found to have the requisite state of mind if

21

he or she knows the prisoner faces “a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.
However, it is well established that the doctrine of respondeat superior does not
apply in § 1983 lawsuits to impute liability onto supervisory personnel. See, e.g., Wingo
v. Tennessee Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012) (per curiam) (citing
Polk Cnty. v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 70 L.Ed.2d 509 (1981)). “In
order to find supervisory personnel liable, a plaintiff must allege that the supervisors
were somehow personally involved in the unconstitutional activity of a subordinate, or at
least acquiesced in the alleged unconstitutional activity of a subordinate.” Id. (citing
Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir. 1982) and Bellamy v. Bradley, 729
F.2d 416, 421 (6th Cir. 1984)) (internal citations omitted); see also Colvin v. Caruso,
605 F.3d 282, 292 (6th Cir. 2010) (quoting Cardinal v. Metrish, 564 F.3d 794, 803 (6th
Cir. 2009)) (to succeed on a claim against supervisory state prison officials, the plaintiff
must show the officials “at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending officers”). Prison officials
whose only roles “involve their denial of administrative grievances and their failure to
remedy the alleged [unconstitutional] behavior” cannot be liable under § 1983. Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). An alleged failure of a prison official to
adequately investigate claims of misconduct also does not rise to the level of
“encouragement” that would make the official liable for such misconduct.

Knop v.

Johnson, 977 F.2d 996, 1014 (6th Cir. 1992); Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984).

22

Here, Plaintiff has failed to establish that either Defendant Cool or Defendant
Davis was personally involved in or acquiesced in the unconstitutional activity of a
subordinate. Plaintiff alleges that Defendant Cool failed to properly supervise SOCF
correctional officers and investigate alleged excessive uses of force against inmate as
well as ongoing threats to hurt or kill plaintiff. (Doc. 10, PageId 68-69, 71, 74-76).
There is, however, no record evidence that Defendant Cool acted beyond his
supervisory capacity with respect to Plaintiff. Defendant Cool, as Deputy Warden at
SOCF, facilitates the reporting and investigation of all use of force incidents and
supervises the process of such reporting and investigations. In that role, he did not
have reason to believe that the reporting of use of force with respect to either the
January 25, 2015 or the June 11, 2015 incident involving Plaintiff was inaccurate or
false. Defendant Cool also is not involved in the review or consideration of protective
custody for prisoners in his role at SOCF. Plaintiff has pointed to no evidence that
would demonstrate any personal involvement or active participation by Defendant Cool
in any alleged misconduct. Defendant Cool’s alleged failure to remedy unconstitutional
behavior and alleged failure to adequately investigate are insufficient to impose § 1983
liability upon him.
As for Defendant Davis, Plaintiff alleges she failed to assign him to protective
custody.

The record evidence, however, reflects that Defendant Davis, the Unit

Management Chief at SOCF, is not involved in any way in protective custody
investigations or decisions. She therefore did not personally deny Plaintiff protective
custody on any occasion. Plaintiff has pointed to no evidence that would demonstrate

23

any personal involvement or active participation by Defendant Davis in any alleged
failure to assign him to protective custody.
Indeed, the evidence shows that Plaintiff’s sole request for protective custody in
the past three years was on May 10, 2017 when he was housed at the Madison
Correctional Institution, which belies any allegation that either Defendant Davis or
Defendant Cool was personally involved or actively participated in denying Plaintiff
protective custody at SOCF. (Doc. 71-10, Freeman Affidavit, PageId 724).
In light of the foregoing, the undersigned finds that Plaintiff has failed to establish
a viable § 1983 claim against either Defendant Cool or Defendant Davis for failure to
protect under the Eighth Amendment.
E.

Defendants are entitled to qualified immunity.

Qualified immunity protects government officials “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, 102 S. Ct. 2727, 73 L.Ed.2d 396 (1982).

Qualified immunity insulates

government officials not only from individual liability for money damages, but also from
the burdens and expenses of litigation and trial. Saucier v. Katz, 533 U.S. 194, 200-01,
121 S. Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, 555
U.S. 223, 129 S. Ct. 808, 172 L.Ed.2d 565 (2009). The doctrine of qualified immunity is
intended to balance two competing interests:

“the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably.”
Pearson, 555 U.S. at 231.

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Qualified immunity “‘gives ample room for mistaken judgments’ by protecting ‘all
but the plainly incompetent or those who knowingly violate the law.’” Hunter v. Bryant,
502 U.S. 224, 229, 112 S. Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs,
475 U.S. 335, 341, 343, 106 S. Ct. 1092, 89 L.Ed.2d 271 (1986)); see also Dorsey v.
Barber, 517 F.3d 389, 394 (6th Cir. 2008). Qualified immunity applies regardless of
whether the official’s error was a mistake of law, a mistake of fact, or a mistake based
on mixed questions of law and fact. Pearson, 555 U.S. at 231.
Here, the record evidence plainly establishes that Defendants’ acts or failures to
act did not violate the Eighth Amendment. First, no force was used by Defendant
Rogers, and the de minimis use of force by Defendant Eshem “was applied in a goodfaith effort to maintain or restore discipline” and not “maliciously and sadistically to
cause harm.” Hudson, 503 U.S. at 6. Second, Defendant Hart timely provided Plaintiff
with a medical examination following the January 25, 2015 incident and recommended
appropriate treatment for Plaintiff’s small wrist abrasion, which is the sole injury reported
by Plaintiff and the only readily observable injury following the incident. There is no
evidence she knew of and consciously disregarded a substantial risk to Plaintiff’s health.
Third, Defendants Cool and Davis were not personally involved and did not otherwise
actively participate in any unconstitutional activity directed towards Plaintiff.
Given the absence of any Eighth Amendment violation, Plaintiff cannot show he
suffered a deprivation of any clearly established statutory or constitutional rights of
which a reasonable prison official would have known. Therefore, Defendants are
immune from Plaintiff’s § 1983 claims under the Eighth Amendment.

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IV.

Conclusion
For the foregoing reasons, IT IS RECOMMENDED that Defendants’ Motion for

Summary Judgment (Doc. 71) be GRANTED and that all claims against Defendants
Eshem, Rogers, Hart, Cool and Davis be DISMISSED with prejudice.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

GERALD THOMPSON,

Civil Action No. 1:15-cv-553

Plaintiff,

Barrett, J.
Bowman, M.J

vs.
LT. ESHAM, et al.,
Defendants.
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
after being served with a copy thereof. 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 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).

27