Brooks v. Dalton et al

Filing 29

ORDER granting 26 Motion for Leave to File additional evidence in support of his motion for summary judgment against Defendant Dalton, with the attached exhibits to be considered in support of his prior 23 motion. Plaintiff's tw o motions for summary judgment 20 and 23 , shall be HELD IN ABEYANCE at this time pending Defendants' response. Plaintiff's motions for a court-appointed expert and for sanctions based upon alleged spoliation 21 and 22 are DENIED as moot for the reasons stated in Defendant's response in opposition, and in light of the Court's prior denial of the same motions in Case No. 1:15-cv-812. Defendants' Rule 56(d) motion to exte nd time to respond to Plaintiff's two motions for summary judgment 24 is GRANTED in part. Based upon the limited nature of the motions and the discovery deadline of April 3 in this case, Defendants shall file any response on or before 4/17/17. To the extent that the dismissal of closely related Case No. 1:15-cv-812 appears highly likely to impact some if not all of the claims asserted in this case, Defendants are encouraged to file any appropriate motio n relating to the prior case at their earliest convenience. Signed by Magistrate Judge Stephanie K. Bowman on 1/12/17. (sct)(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

ULIOUS BROOKS,
Case No. 1:16-cv-564
Black, J.
Bowman, M.J.

Plaintiff,
v.

JESSICA DALTON, et al.,
Defendants.

MEMORANDUM ORDER
Plaintiff, an SOCF inmate, is an experienced litigant, having filed two petitions for
writs of habeas corpus and five civil suits in this Court alone concerning conditions of
his confinement, as well as numerous state court lawsuits. The above-captioned case
relates closely to a prior case filed by Plaintiff, Case No. 1:15-cv-812. In Case No. 1:15cv-812, Plaintiff alleged that Correctional Officer Dillow used excessive force against
him in November 2015, and retaliated against him thereafter.
Several motions are pending in the above-captioned case. However, the recent
dismissal of all of Plaintiff’s claims in Case No. 1:15-cv-812 may impact all claims
presently asserted in this case, as discussed below.
I.

Background

In this case, Plaintiff filed multiple claims against three Defendants (Officer
Dalton, Warden Erdos, and Deputy Warden Cool), based upon evidence submitted in
response to Plaintiff’s discovery requests in related Case No. 1:15-cv-812. Specifically,

Plaintiff alleges herein that Defendant Jessica Dalton “wrote a false conduct report and
a false incident report ….and lied” about the incident that occurred between Dillow and
Plaintiff in November 2015, allegedly “at the request of Sgt. Dillow to cover up for his
misconduct.” (Doc. 1, at PageID 6, 8-9). In Claim Nos. 1-3, 9 and 12, Plaintiff alleges
that Defendant Dalton is liable for failing to act or to protect him from Dillow’s assault,
for conspiracy based on her participation in covering up the assault she witnessed, and
for libelous statements that she made against Plaintiff. (Doc. 1, at PageID 11, 14).
In an amended complaint, Plaintiff alleges that he discovered that the videotaped
evidence produced in Case No. 1:15-cv-812 concerning the incident with Dillow had
been “tampered with” based upon two brief gaps in the footage, including a 4-5 second
gap and a second 6-9 second gap.

Plaintiff alleges in the amended complaint that

Defendant Erdos had a “duty to review and store the D.V.R. footage” and therefore
“may have been the one to delete [scenes] from the D.V.R.” and a “failure to act” claim
based upon an allegation that Erdos failed to discipline staff for tampering with the
videotaped footage. (Doc. 6, at PageID 68). Plaintiff also alleged in his amended
complaint that either Dillow, or Defendant Cool, or both, caused the deletion of seconds
from the videotaped footage or “acted as a team to cover up the evidence against
Dillow,” and that Cool also “failed to act” because Cool should have noticed the gaps in
the videotape during the excessive force investigation.
The undersigned held that Plaintiff could not state a claim against Defendant
Dalton based upon her allegedly false conduct reports against Plaintiff, but nevertheless
permitted some of Plaintiff’s claims to proceed against Dalton on initial screening:

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Upon review of the complaint, as amended, and without the benefit of
briefing by the parties, the undersigned concludes that the original
complaint’s “Claim Nos. 1-3, 9 and 12” for damages against defendant
Jessica Dalton for failure to protect, conspiracy and libel are deserving of
further development and may proceed at this early stage in the
proceedings.
(Doc. 8, R&R at 6, PageID 83). The undersigned clarified that Plaintiff’s allegations
concerning the allegedly false conduct report survived “only to the extent that plaintiff (1)
has alleged that Dalton witnessed the incident that occurred on November 24, 2015 and
falsified reports of what she saw as part of a conspiracy to cover-up Dillow’s use of
excessive force, and (2) has brought a pendent state-law libel claim against Dalton.”
(Id. at n.1).
Most of the claims that Plaintiff alleged against Defendants Erdos and Cool were
dismissed on initial screening, including all of the claims that Plaintiff alleged against
those two Defendants in his original complaint. However, the undersigned permitted a
“conspiracy” claim in Plaintiff’s amended complaint to proceed beyond screening,
despite describing the claim as “tenuous and speculative”:
The conspiracy claims alleged in the amended complaint against
defendants Erdos and Cool are more tenuous and speculative, based
solely on the allegation that they were the only people, besides Dillow,
who could have deleted portions of the videotape recording of the use-offorce incident to cover up Dillow’s misconduct in that incident.
Nevertheless, out of an abundance of caution at this early stage in the
proceedings, the undersigned concludes that the amended complaint’s
conspiracy claims against defendants Erdos and Cool may also proceed.
However, all other claims alleged in the complaint and amended complaint
against those two supervisory officials should be dismissed for failure to
state a claim upon which relief may be granted by this Court.
(Doc. 8 at 7, PageID 84).

3

Subsequent developments in the closely related Case No. 15-cv-812 now draw
into question the continuing viability of all of Plaintiff’s claims in this case. On November
2, 2016, the undersigned filed a Report and Recommendation that recommended
granting judgment to Defendant Dillow as a matter of law on all claims. Plaintiff filed no
timely objections to that R&R.

On December 2, 2016, the presiding district judge

adopted the R&R and granted judgment to Dillow, dismissing all claims of excessive
force as well as Plaintiff’s claims of retaliation. The Court agreed with the determination
of the undersigned that “no reasonable trier of fact could conclude that the force used
by [Dillow] objectively rose to the level of a constitutional violation,” as the “force of
which Plaintiff complains was brief and de minimis.” (Doc. 74 in Case No. 1:15-cv-812,
at PageID 498).
The record …presents a nearly textbook example of an inmate who
complains of a “push or shove” that has caused no discernible injury. In
addition to failing to so much as allege any injury, the record confirms that
Plaintiff suffered no injury as a result of the Defendant placing him against
the wall on two occasions (on the stairway and in the corridor), or as a
result of the force allegedly used by Defendant “pushing” and/or “rushing”
Plaintiff down the hallway during part of the escort.
(Id. at PageID 501, citing Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010)).
In granting summary judgment to the Defendant in Case No. 15-cv-812, the
Court examined the momentary gaps in the videotaped footage of the November 24,
2015 incident between Dillow and Plaintiff. Two gaps were observed – a 4-5 second
gap beginning at 12:00:00, and a second gap of approximately 6 seconds beginning at
12:00:13. In the prior case, the Defendant offered a credible explanation for both of the

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two short time gaps, supported by evidence. Though Plaintiff generally disputed the
Defendant’s explanation, he offered no contrary evidence. 1
In its opinion granting summary judgment, this Court ultimately found the two
short gaps to be immaterial to any fact relating to Plaintiff’s excessive use of force claim.
With respect to the first gap, the undersigned wrote:
There is a gap in the video record from 12:00:00 until 12:00:05, during
which the parties do not appear to have moved from their positions. The
technical basis for the 4-5 second gap has been explained by an affidavit
offered by Defendant. (Doc. 58-7). While Plaintiff disputes the Defendant’s
technical explanation, the undersigned concludes that the gap is not
material. Plaintiff alleges only one interaction that occurred on the stairwell
in which he alleges that Defendant “rammed” him against the wall and
pushed and/or “rushed” Plaintiff down the stairs. The entirety of the
actions about which Plaintiff complains are fully reflected in the video.
(Doc. 74, at 23, n. 9, PageID 504). With respect to the second lapse, the undersigned
similarly wrote: “No significant change in the parties’ positions occurs during that 6second interval, (12:00:13 to 12:00:19), and Plaintiff does not allege any further force
was employed on the stairs, other than rushing him down the last few stairs.” Thus,
because no relevant portion of Plaintiff’s excessive force claim occurred during the
extremely short time gaps in the videotape recordings, the allegedly “deleted” seconds
of videotape were not material. Summary judgment was granted to Defendant Dillow
based upon this Court’s conclusion that no material facts remained in dispute, and that
the force employed did not violate Constitutional standards as a matter of law. (Docs.
74, 85).

1

The technical explanation for both time gaps is that the camera was set to a “sensitivity level…too low to
detect only movement of Correctional Officer Mike Dillow’s lips,” meaning that the camera momentarily
turned off when it did not detect physical body movement. (Case No. 1:15-cv-812, Doc. 58-7, PageID
379).

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At the time the above-captioned related case was first filed, discovery in Case
No. 1:15-cv-812 was still ongoing and Defendant Dillow had not yet filed his motion for
summary judgment.

Therefore, on initial screening of the instant complaint, the

undersigned was bound to assume the veracity of Plaintiff’s allegations, including but
not limited to the underlying premise that Sergeant Dillow (who is not a party herein)
had in fact violated Plaintiff’s constitutional rights by using excessive force against
Plaintiff on November 24, 2015.
The grant of summary judgment on all excessive force claims to Defendant
Dillow in Case No. 1:15-cv-812 significantly impacts the original interpretation of
Plaintiff’s allegations in the instant case. Because this Court has now determined as a
matter of law that no excessive force by Dillow occurred, and that the “missing” seconds
of videotape were irrelevant to the excessive force claim, the underpinnings of Plaintiff’s
claims against Defendants Dalton, Erdos, and Cool in this case are also suspect.
Frankly, it is difficult to conceive of any continuing “failure to protect” claim or conspiracy
claims against any of the three Defendants identified in the instant case given that the
Court has already determined that Dillow did not engage in excessive force against
Plaintiff on November 24, 2015. The undersigned is not aware of any constitutional
duty to preserve immaterial videotaped evidence, or precisely how a conspiracy claim
could arise concerning the alleged destruction of immaterial evidence.
While it is appropriate to take judicial notice of the potential impact of the change
in the posture of the now-dismissed underlying case on which the instant case is based,
the undersigned is reluctant to sua sponte issue any dispositive rulings in the abovecaptioned case without allowing time for briefing by both parties. This is particularly true
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because Plaintiff in this case has already filed two dispositive motions in this case, to
which Defendants have yet to file any response.
II.

Pending Motions

In other cases filed by Plaintiff and most recently in Case No. 15-cv-812, the
undersigned has noted the “frenetic pace of filing what have frequently been determined
to be frivolous and/or procedurally improper documents and motions.” (Doc. 74 in Case
No. 1:15-cv-812 at PageID 483). Plaintiff exhibits a similar pace of filing in the abovecaptioned case.
On October 27, 2016, Plaintiff filed his first 4-page motion for summary judgment,
arguing that he is entitled to judgment against Defendant Dalton based upon the
discrepancies between her statement and/or conduct report and statements given by
Defendant Dillow in Case No. 1:15-cv-812. Plaintiff argues that because Dalton was
present, there is no dispute that she “failed to act, and to protect [Plaintiff] from being
attacked by Mike Dillow.” (Doc. 20 at 2, PageID 133). Similarly, Plaintiff relies on
discovery responses filed in Case No. 1:15-cv-812 to support his allegations that
Defendants Erdos and Cool must have reviewed the videotaped evidence, and
therefore are responsible for conspiring to “destroy evidence” insofar as the videotape
indisputably contains brief time gaps.
On the same October 27, 2016 date, Plaintiff filed a “motion for sanctions based
off spoliation,” which again is based upon the gaps in the videotaped evidence, arguing
that an unidentified SOCF employee must have worked in concert with non-party Dillow
to delete the referenced seconds. Plaintiff seeks “for this Court to draw an adverse
inference based on spoliation” including the grant of summary judgment against
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Defendant Dalton. (Doc. 21). On the same date, Plaintiff filed a third motion, seeking a
“court appointed expert” under Federal Rule 706 in order to examine the videotape and
determine “whether the D.V.R. videotape was purposely tampered with,” resulting in the
referenced brief gaps in the recordings of November 24, 2015. (Doc. 22).
Defendants have filed a response to the latter two motions. In their response,
filed shortly after the R&R was filed by the undersigned that recommended dismissal of
all claims in Case No. 1:15-cv-812, Defendants point out that Plaintiff filed the same
motions in the prior case. However, in Case No. 1:15-cv-812, the Court denied both
motions as moot in light of the dismissal of the underlying claims, and the conclusion
that the “missing” seconds of videotape were immaterial to Plaintiff’s excessive force
claims against Dillow. (Doc. 74).

The undersigned agrees that the motions should

likewise be denied in this case.
On October 28, 2016, Plaintiff filed a second motion for summary judgment on
his slander and libel claim against Defendant Dalton. Like his first motion for summary
judgment, this 3-page motion seeks judgment in Plaintiff’s favor based solely upon
alleged discrepancies between statements provided in discovery responses submitted
in Case No. 1:15-cv-812 by Dillow and those submitted by Dalton. (Doc. 23). The
referenced discovery responses from the prior case are attached as exhibits to the
motion.
On November 17, 2016, Defendants Dalton, Cool, and Erdos filed a motion
seeking an extension of time, until either April 1 or June 1, 2017, 2 to respond to

2

The calendar order in this case sets forth a discovery deadline of April 3, 2017, and a dispositive motion
deadline, for motions not directed to the pleadings, of June 1, 2017. Defendant’s motion for an extension

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Plaintiff’s two pending motions for summary judgment.

As grounds for such an

extension of up to seven months, Defendants point out that discovery began only in
September in the above-captioned case. Defendants express an intent to file their own
counter-motion for summary judgment at the conclusion of discovery, and cite to
counsel’s heavy work-load as the reason why rushing the completion of discovery in this
case is impractical. 3
Given the current posture of this case as it relates to the now-dismissed earlier
case, and the discovery previously conducted in Case No. 1:15-cv-812 (on which
Plaintiff’s two motions solely rely), it is unclear what additional discovery would be
needed to respond to Plaintiff’s motions. Still, Defendants should be permitted to take
some discovery, to the extent needed, prior to being required to respond. However, the
length of the extension following the April 2017 close of discovery is excessive based
upon this Court’s preliminary review of the limited evidence offered to support Plaintiff’s
two short motions. The probable impact of the dismissal of all claims in Case No. 1:15cv-812 only adds to the Court’s concern with the length of the proposed extension.
Also, in view of Plaintiff’s demonstrated propensity to file motions at a frenetic pace, and
Defendants’ customary obligation to respond, a seven month extension to respond to
the pending dispositive motions could prove counterproductive to defense counsel’s
already heavy work-load, not to mention the workload of this Court.

of time refers to both April and June dates, but based upon the reference to the dispositive motion
deadline, is presumed to seek an extension through June 1.
3
The same defense counsel in the instant case represented Sgt. Dillow in the closely related and now
dismissed Case No. 1:15-cv-812.

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On December 5, 2016, Plaintiff filed a formal motion to submit additional
evidence in support of his motion for summary judgment concerning his slander, libel
and conspiracy claims against Defendant Dalton. (Doc. 26). Plaintiff has tendered the
additional evidence as an exhibit. The attachment includes a copy of the conduct report
authored by Dalton, which Plaintiff alleges is demonstrably false based upon the
absence of a case number written on it.
Last, Plaintiff has filed two “declarations” which will not be considered by this
Court as they are procedurally improper. (Docs. 27, 28).
III.

Conclusion and Order

For the reasons discussed herein, IT IS ORDERED THAT:
1. Plaintiff’s motion for leave to file additional evidence in support of his motion
for summary judgment against Defendant Dalton (Doc. 26) is GRANTED, with
the attached exhibits to be considered in support of his prior motion (Doc. 23);
2. Plaintiff’s two motions for summary judgment, filed October 27, 2016 and
October 28, 2016 (Docs. 20, 23) shall be HELD IN ABEYANCE at this time
pending Defendants’ response;
3. Plaintiff’s motions for a court-appointed expert and for sanctions based upon
alleged spoliation (Docs. 21, 22) are DENIED as moot for the reasons stated
in Defendant’s response in opposition, and in light of the Court’s prior denial
of the same motions in Case No. 1:15-cv-812;
4. Defendants’ Rule 56(d) motion to extend time to respond to Plaintiff’s two
motions for summary judgment (Doc. 24) is GRANTED in part. Based upon

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the limited nature of the motions and the discovery deadline of April 3 in this
case, Defendants shall file any response on or before April 17, 2017;
5. To the extent that the dismissal of closely related Case No. 1:15-cv-812
appears highly likely to impact some if not all of the claims asserted in this
case, Defendants are encouraged to file any appropriate motion relating to
the prior case at their earliest convenience.

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

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