Brooks v. Dalton et al

Filing 39

REPORT AND RECOMMENDATIONS re 20 23 Plaintiff's Motions for Summary Judgment, 35 Plaintiff's Motion for Default Judgment, 34 Defendants' Motion for Summary Judgment. IT IS RECOMMENDED THAT: (1) Plaintiff's two motions for summary judgment, filed 10/27/2016 and 10/28/2016 20 23 should be DENIED; (2) Plaintiff's motion for default judgment 35 should be DENIED as moot; (3) Defendants' motion for summary judgment 34 should be GRANTED for the reasons sta ted, with all claims dismissed with prejudice except for Plaintiff's pendent state law claim of libel against Defendant Dalton, which should be dismissed without prejudice; (4) Consistent with this Report and Recommendation, this case should be CLOSED. Objections to R&R due by 6/26/2017. Signed by Magistrate Judge Stephanie K. Bowman on 6/12/2017. (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

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

Plaintiff,
v.

JESSICA DALTON, et al.,
Defendants.

REPORT AND RECOMMENDATION
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.

Both Plaintiff and

Defendants have filed motions for summary judgment in this case. Plaintiff also has
filed a motion for default judgment against all Defendants. For the reasons that follow,
the undersigned now recommends that Defendants’ motion be granted, and that
Plaintiff’s three motions be denied.
I.

Background 1

Initiated on May 19, 2016, the above-captioned case relates closely to a prior
case filed by Plaintiff, Case No. 1:15-cv-812, on which judgment was entered in
Defendant’s favor on December 2, 2016.
812).
1

(See Docs. 74, 75, 76 in Case No. 1:15-cv-

In the related case, Plaintiff alleged that Sergeant Mike Dillow used excessive

The same background was set forth in the Order filed on January 12, 2017 (Doc. 29), but is repeated for
the convenience of this Court.

force against him, in violation of the Eighth Amendment in November 2015. In granting
summary judgment to Dillow, this Court determined that no genuine issue of material
fact existed, and that Dillow had used only “de minimis” force during the incident about
which Plaintiff had complained.
Prior to the filing of Dillow’s dispositive motion in the related case, Plaintiff filed
this new lawsuit against three additional SOCF employees (Officer Dalton, Warden
Erdos, and Deputy Warden Cool), based upon evidence submitted in response to
Plaintiff’s discovery requests in Case No. 1:15-cv-812.

Specifically, Plaintiff alleges

here 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,
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
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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:
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
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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).
As explained in this Court’s last Order of January 12, 2017, the subsequent grant
of summary judgment to Sgt. Dillow in Case No. 1:15-cv-812 drew into serious question
the continuing viability of Plaintiff’s claims in this case.

In dismissing all claims of

excessive force as well as Plaintiff’s claims of retaliation against Dillow on December 2,
2016, the Court agreed that “no reasonable trier of fact could conclude that the force
used by [Dillow] objectively rose to the level of a constitutional violation,” and that 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 Dillow in the related case, 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
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prior case, the Defendant offered a credible explanation for both of the two short time
gaps, supported by evidence. Though Plaintiff generally disputed the Defendant’s
explanation, he offered no contrary evidence. 2
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. (See generally Docs. 74, 85 in Case No. 1:15-cv-812).
At the time the above-captioned case was first filed, Case No. 1:15-cv-812 was
still ongoing. Therefore, on initial screening of the instant complaint, the undersigned

2

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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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 claims to Dillow in Case No. 1:15-cv-812
significantly impacts the original interpretation of Plaintiff’s allegations in the instant
case. 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. Thus, the core underpinnings of Plaintiff’s claims against
Defendants Dalton, Erdos, and Cool in this case have unraveled.
In the January 12, 2017 Order, the undersigned explained the issues, but
declined to grant summary judgment sua sponte to the Defendants without allowing all
parties further opportunity to brief the issues:
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 above-captioned case without allowing time for
briefing by both parties. This is particularly true because Plaintiff in this
case has already filed two dispositive motions in this case, to which
Defendants have yet to file any response.
(Doc. 29 at 6-7).

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All parties have now fully briefed the issues. On April 26, 2017, Defendants filed
a combined response in opposition to Plaintiff’s pending motions for summary judgment,
as well as a counter-motion for summary judgment. Plaintiff also filed a response in
opposition to Defendants’ motion, to which Defendants filed a reply.
II.

The Parties’ Pending Dispositive Motions
A. 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 (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 (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 (1986).
Once the moving party has met its burden of production, the non-moving party
cannot rest on his pleadings, but must present significant probative evidence in support
of his complaint to defeat the motion for summary judgment.
Lobby, Inc., 477 U.S. at 248-49.

Anderson v. Liberty

The mere existence of a scintilla of evidence to

support the non-moving 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.
Summary judgment is appropriate whenever the nonmoving party fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
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and on which that party will bear the burden of proof at trial. Celotex Corp., 477 U.S. at
322.
B. Plaintiff’s Motions for Summary Judgment and for Default
Judgment
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 January 12, 2017, the undersigned granted
Plaintiff’s motion to submit a copy of the conduct report authored by Dalton as additional
evidence in support of his motion. (Docs. 26, 29).
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, 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-cv812 by Dillow and those submitted by Dalton. (Doc. 23). The referenced discovery
responses from the prior case are attached as exhibits to the motion.

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This Court initially granted Defendants’ motion to extend time to respond to
Plaintiff’s two motions for summary judgment up to and including April 17, 2017. (Doc.
29). When Defendants failed to timely respond, on April 26, 2017 the undersigned
directed them to “SHOW CAUSE” why Plaintiff’s motions should not be considered
unopposed and potentially granted. (Doc. 30). On the same date, Defendants promptly
filed a response to that Order and tendered their response to Plaintiff’s motions, along
with a motion seeking leave to file the tardy response instantur.

(Doc. 31, 32).

Defendants combined their response in opposition to Plaintiff’s motions with a countermotion for summary judgment. The Court granted Defendants’ motion for leave to file
the response and counter-motion the same day.
On April 27, 2017, Plaintiff filed a motion seeking a default judgment against all
Defendants on grounds that they had filed to timely respond to his motions for summary
judgment. To be fair, it appears that Plaintiff was not aware either of the Court’s show
cause order, Defendants’ rapid response thereto, or the accepted filing of Defendants’
belated response and counter-motion on April 26. Given those proceedings, Plaintiff’s
motion for default judgment is moot.
C. Defendants’ Motion for Summary Judgment
In the combined response to Plaintiff’s motions and counter-motion for summary
judgment, Defendants persuasively argue that Plaintiff’s motions must be denied, and
Defendants’ motion must be granted, based upon the entry of judgment in the closely
related Case No. 1:15-cv-812. As stated, that unappealed judgment determined after
review of the video evidence that Dillow did not assault Plaintiff in violation of the Eighth
Amendment. Moreover, the Court deemed the allegedly “deleted” or “missing” seconds
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of videotape to be immaterial and irrelevant, holding as a matter of law that the
“missing” evidence could not have supported any Eighth Amendment claim, and that the
de minimis force used by Dillow was reasonable under the circumstances.
Again, the only claim against Defendants Erdos and Cool was a conspiracy claim
that the undersigned described as “tenuous and speculative” on initial screening but
permitted to proceed at a time that the underlying Eighth Amendment claim in Case No.
1:15-cv-812 was still pending. Plaintiff alleged three claims against Defendant Dalton,
which also were derivative of Plaintiff’s Eighth Amendment claim against Dillow: (1) a
“failure to protect” claim based on Dalton’s alleged failure to protect Plaintiff from
Dillow’s excessive force; (2) a conspiracy claim relating to the “missing” videotape tape
and/or conduct report against Plaintiff; and (3) a pendent state-law libel claim.
To prove his conspiracy claims under 42 U.S.C. § 1983, Plaintiff is required to
show: (1) the existence of a conspiracy; and (2) an actual deprivation of a constitutional
right.
A civil conspiracy is an agreement between two or more people to injure
another individual by unlawful action. See Collyer v. Darling, 98 F.3d 211,
229 (6th Cir.1996), cert. denied, 520 U.S. 1267, 117 S.Ct. 2439, 138
L.Ed.2d 199 (1997). To state a claim for conspiracy to violate a right
protected by § 1983, plaintiff must allege facts showing a single plan
existed, that the alleged coconspirator shared in the general conspiratorial
objective, and that an overt act was committed in furtherance of
the conspiracy that caused injury to him. Id. Moreover, plaintiff must
allege facts showing not only an agreement by defendants to violate
plaintiff's constitutional rights, but also an actual deprivation of
a constitutional right. Stone v. Holzberger, 807 F.Supp. 1325, 1340
(S.D.Ohio 1992) (Spiegel, J.) (“plaintiff must allege and prove both
a conspiracy and an actual deprivation of rights; mere proof
of conspiracy is insufficient to establish a section 1983 claim”). In addition,
“conspiracy claims must be pled with some degree of specificity” and
“vague and conclusory allegations unsupported by material facts will not
be sufficient to state such a claim under § 1983. Accordingly, pleading
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requirements governing civil conspiracies are relatively strict.” Fieger v.
Cox, 524 F.3d 770, 776 (6th Cir.2008) (internal citations and quotations
omitted). Plaintiff must provide factual support respecting the material
elements of his conspiracy claim. See Moldowan v. City of Warren, 578
F.3d 351, 395 (6th Cir.2009).
Anderson v. County of Hamilton, 780 F.Supp.2d 635, 652 (S.D.Ohio 2011).
Because the underlying Eighth Amendment claim on which all of the claims in
this case are based was rejected by this Court in Case No. 1:15-cv-812, Plaintiff is
unable to demonstrate an actual deprivation of any constitutional right to support his
conspiracy claims. This Court has previously determined not only that Dillow did not
violate Plaintiff’s Eighth Amendment rights, and did not “assault” Plaintiff, but also that
the allegedly “missing” videotape was immaterial and irrelevant, insofar as it could not
have contained any support for any Eighth Amendment claim. Even if Plaintiff could
prove (contrary to the evidence in Case No. 1:15-cv-812) that any of the named
Defendants in this case had anything to do with the two brief lapses in the videotape
record of the incident with Dillow, there is no constitutional duty to preserve immaterial
evidence. Accord Wiley v. Oberlin Police Dept., 330 Fed. Appx. 524, 530 (6th Cir.
2009) (summary judgment granted on conspiracy claim where plaintiff could not prove
underlying constitutional violation); Meyers v. Mitrovich, No. 1:14-cv-1604, 2015 WL
413804 at *13 (Jan. 30, 2015, S.D. Ohio) (where officer did not use excessive force,
defendants could not be held liable for conspiring to cover up his actions).
For the same reasons, Plaintiff’s “failure to protect” claim against Dalton fails as a
matter of law. A failure to protect or failure to intervene is actionable only when: “(1) the
officer observed or had reason to know that excessive force would be or was being
used; and (2) the officer had both the opportunity and the means to prevent the harm
11

from occurring.” Goodwin v. City of Painesville, 781 F.3d 314, 328 (6th Cir. 2015)
(quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997)). Plaintiff’s underlying
premise, that Dillow assaulted him, has been disproven and Plaintiff suffered no injury.
Dalton cannot be held liable for failing to protect Plaintiff from an event that did not
happen.
Plaintiff’s response in opposition to Defendants’ motion argues that even though
he suffered no injuries and this Court found no conduct by Dillow in violation of the
Eighth Amendment, “the defendants still worked together to delete scenes from the
footage, and wrote false reports in order to help Sergeant Dillow” and “violated the First
Amendment of the Constitution.” (Doc. 36 at 1). However, this Court has not previously
recognized any “First Amendment” claims in this case, and is not inclined to do so now.
In short, all related claims against all Defendants fail as a matter of law in this case,
based upon this Court’s findings and conclusions of law in Case No. 1:15-cv-812 that
Dillow did not assault Plaintiff, and that the allegedly “missing” video evidence was
immaterial and irrelevant.
Defendants concede that Plaintiff’s pendant state law claim for libel against
Defendant Dalton may not be as easily dismissed as wholly derivative of the claim in
Case No. 1:15-cv-812.

However, the undersigned agrees that based upon the

dismissal of all of Plaintiff’s other federal claims, this Court should not retain jurisdiction
over any remaining state claim. In his response in opposition to Defendants’ motion,
Plaintiff asserts that his claim is a “Federal Libel claim,” but that is contrary to the record
of this case, as well as unsupported by federal law. Therefore, all claims filed against
all Defendants in this case should be dismissed.
12

Based upon the above analysis, the undersigned finds no cause to reach
Defendants’ alternative arguments that they are entitled to qualified immunity on all
claims, that Plaintiff’s conspiracy claims fail under the Intracorporate Conspiracy
Doctrine, or that Plaintiff’s conspiracy claims also fail under 42 U.S.C. § 1985(3).
III.

Conclusion and Recommendations

For the reasons discussed herein, IT IS RECOMMENDED THAT:
1. Plaintiff’s two motions for summary judgment, filed October 27, 2016 and
October 28, 2016 (Docs. 20, 23) should be DENIED;
2. Plaintiff’s motion for default judgment (Doc. 35) should be DENIED as moot;
3. Defendants’ motion for summary judgment (Doc. 34) should be GRANTED
for the reasons stated, with all claims dismissed with prejudice except for
Plaintiff’s pendent state law claim of libel against Defendant Dalton, which
should be dismissed without prejudice;
4. Consistent with this Report and Recommendation, this case should be
CLOSED.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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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.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. 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 (14) 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).

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