Bates v. Shostak et al
ORDER adopting Report and Recommendation re 22 Report and Recommendation denying 15 Motion for Summary Judgment. Signed by Judge Michael R. Barrett on 9/21/17. (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. 1:16CV534
JUDGE MICHAEL R. BARRETT
ROMAN SHOSTAK, et al.,
OPINION AND ORDER
This matter is before the Court on the Magistrate Judge’s Report and Recommendation
(“R&R”) (Doc. 22) and Plaintiff’s Motion in Opposition to Report and Recommendation of
Magistrate Judge Stephanie K. Bowman (Doc. 23), which the Court treats as objections to the
R&R. Plaintiff subsequently filed what he calls “important circumstantial evidence,” (Doc. 33)
which the Court treats as a supplement to his objections.
Plaintiff, formerly an inmate at Warren Correctional Institution, brings this civil rights
action pursuant to 42 U.S.C. § 1983 against four prison officials alleging they used excessive
force against him in violation of the Eighth Amendment. The Magistrate Judge set forth the
facts in sufficient detail and the same will not be repeated here except as necessary to address the
objections raised. Briefly, Plaintiff’s complaint alleges a verbal altercation between he and
Defendants ensued, but as the incident progressed, Defendants entered Plaintiff’s cell and
allegedly punched and maced Plaintiff. He alleges his head was smashed against a glass door,
his handcuffs tightened so his circulation was cut off, and that he suffered additional blows
administered by Defendants. Plaintiff’s motion for summary judgment argues that based upon
the findings in the “Investigation Summary Report Use of Force” (“UOF report”), he is entitled
to judgment against all four Defendants.
The Magistrate Judge reached two primary conclusions in recommending Plaintiff’s
motion be denied. First, she concluded that the UOF report did not establish the lack of any
genuine issue of material fact with respect to the objective component of an Eighth Amendment
claim nor did the UOF report establish the subjective component of his claim. Second, the
Magistrate Judge concluded that Plaintiff’s motion should be denied based upon Defendants’
assertion of qualified immunity, at least at this stage.
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)).
The Court first notes that Plaintiff appears to possess a fundamental misunderstanding of
the purpose of summary judgment. On the one hand, Plaintiff argues he is entitled to summary
judgment. But sprinkled throughout his response are requests for a jury trial. For example,
Plaintiff contends that he intends to present certain evidence at trial to establish his claim. (Doc.
23, PageID147) (“See video footage and view (use of force) report. Both of which plaintiff
intends to introduce at trial as clear and convincing evidence to support his claim.”). Plaintiff
also argues that a reasonable jury could find in his favor. (Id. at PageID 148) (“Plaintiff believes
a jury could reasonably find that all defendants went beyond a good-faith attempt to restore order
and acted with a malicious and sadistic desire to inflict harm…”). While this may be true,
summary judgment entitles the moving party to judgment as a matter of law – that means
judgment in lieu of proceeding to a jury trial. Thus, it is unclear whether Plaintiff is actually
disagreeing with the Magistrate Judge’s conclusion that he is not entitled to summary judgment.
To the extent Plaintiff does appear object to the Magistrate Judge’s R&R, Plaintiff argues
once again that the findings in UOF report entitle him to summary judgment. He argues on
numerous occasions that the force used was administered with malicious and sadistic intent.
(See e.g. Doc. 23, PageID 146) (“[The force] was maliciously and sadistically used to cause
harm and inflict pain…”). Plaintiff also appears to argue that because Defendants violated
institutional policy, they also violated his Eighth Amendment rights as a matter of law.
Plaintiff does not specifically object to any portion of the Magistrate Judge’s R&R.
Construing his response liberally, however, the Court interprets Plaintiff’s multiple references to
Defendants’ malicious and sadistic intent as an objection to the Magistrate Judge’s conclusion
that Plaintiff did not establish the subjective component of his claim. Plaintiff, however, does
not explain how the Magistrate Judge erred in reaching her conclusion. As the Magistrate Judge
correctly noted, the UOF report concludes that “The Officers did have good intentions due to the
concern for inmate Bates[‘] safety…” (Doc. 22, PageID 137). Plaintiff does not provide any
evidence in support of his argument that Defendants indeed acted with malicious and sadistic
intent. Instead, he argues Defendants made certain comments that establish Defendants’ intent.
For example, he argues Defendant Shostak stated, “[t]ake this motherfucker, this is what you
want…” and that that statement can be “interpreted reasonably” as establishing a malicious and
sadistic intent. (Doc. 23, PageID 148). As the Magistrate Judge correctly explained, however,
summary judgment is not appropriate 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
(1986). Plaintiff effectively concedes there is more than one reasonable interpretation of the
evidence. Thus, summary judgment is not appropriate.
Moreover, Plaintiff attaches to his response (Doc. 23) the same exhibits considered by the
Magistrate Judge when deciding his motion for summary judgment, none of which establish the
subjective component of Plaintiff’s claim. His supplemental exhibits likewise do not establish
the intent necessary for an Eighth Amendment claim. (Doc. 33). The pictures and medical
records, if considered by the Court, go to the objective component of Plaintiff’s claim – that is,
that the pain inflicted was “sufficiently serious.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011). Accordingly, upon review, Plaintiff’s objections on this point are OVERRULED.
Plaintiff also argues that the use of force report, medical reports, photos, and DVR video
footage establish that Defendants are not entitled to qualified immunity. Upon review, the Court
disagrees, and finds that the Magistrate Judge properly concluded that the evidence in the record
does not overcome Defendants’ qualified immunity defense at this stage. Plaintiff’s objections
as to this issue are OVERRULED.
To the extent Plaintiff attempts to object to the Magistrate Judge’s R&R on any other
basis, the Court finds such objections are insufficient to direct the Court’s attention to any
particular issues contained therein and thus, are OVERRULED.
Consistent with the foregoing, Plaintiff’s objections (Doc. 23) are OVERRULED and the
Magistrate Judge’s R&R (Doc. 22) is ADOPTED IN ITS ENTIRETY. Therefore, it is hereby
ORDERED that Plaintiff’s motion for summary judgment (Doc. 15) is DENIED.
IT IS SO ORDERED.
s/Michael R. Barrett
MICHAEL R BARRETT
United States District Judge
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