Foster v. Ohio State of

Filing 126

REPORT AND RECOMMENDATIONS - IT IS RECOMMENDED THAT: (1) Defendants' Motion for Summary Judgment 113 should be GRANTED, with all remaining claims to be dismissed, and this case to be closed; (2) Plaintiff's (third) Motion for Summary Judg ment 108 should be DENIED; (3) Following the entry of judgment in favor of the Defendants, this case should be CLOSED; (4) Consistent with this Report and Recommendation, Plaintiff's motion to strike the Defendants' Notice and/or motion t o strike the video exhibit submitted in support of Defendants' motion for summary judgment 120 should be DENIED. Objections to R&R due by 1/4/2019. Signed by Magistrate Judge Stephanie K. Bowman on 12/21/2018. (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
CHRISTOPHER FOSTER,

Case No. 1:16-cv-920

Plaintiff,

Black, J.
Bowman, M.J.

v.

STATE OF OHIO, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff is a prolific prisoner litigant, filing multiple motions in numerous cases in
the state and federal courts.1

To date, the undersigned has filed six Report and

Recommendations (“R&Rs”) in this case, as well as numerous orders. This seventh
Report and Recommendation (“R&R”) addresses: (1) Plaintiff’s third motion for summary
judgment (Doc. 108) and Defendants’ motion for summary judgment on the only two
claims remaining in this case. (Doc. 113). For the reasons that follow, Defendants’
motion should be GRANTED, Plaintiff’s motion should be DENIED, and this case should
be DISMISSED.

1See,

e.g., Southern District of Ohio Case Nos: 1:14-cv-617; 1:14-cv-668; 1:14-cv-642; 1:15-cv-595; 1:15cv-713; 1:16-cv-835;1:16-cv-846 and Northern District of Ohio Case Nos. 3:15-cv-404; 3:16-cv-658; 3:16cv-2109; 3:16-cv-2168; 3:15-cv-2256; 3:16-cv-476; 3:16-cv-1535; 316-cv-1715. In addition, Plaintiff has
filed at least fourteen cases in the Ohio Court of Claims alone, plus many additional cases in the Franklin
Court of Common Pleas. Plaintiff has been sued by the Ohio Attorney General under Ohio Revised Code
R.C. §2323.52 for his vexatious litigation. See Ohio State Attorney General Mike Dewine v. Christopher
Foster, Case No. 16-cv-2732. Plaintiff also has litigated five actions in the Ohio Supreme Court. (Doc. 80
at 5-6). Not only has Plaintiff filed a large number of cases, but he inundates the courts with motions in the
cases that he pursues. Plaintiff had filed at least 43 separate motions in this record alone, not including
dozens of non-motion filings. Plaintiff’s filings continue to consume a disproportionately large amount of
this Court’s judicial resources as compared to other pro se or even the prisoner litigant population at large.

1

I. Background2
Plaintiff, who is currently incarcerated at the Southern Correctional Facility
(SOCF), filed this §1983 action alleging violations of his civil rights while he was
incarcerated at the Toledo Correctional Institution (ToCI), and after his transfer to SOCF.
Plaintiff previously had filed three or more cases that had been dismissed at the screening
stage, prompting initial review under 28 U.S.C. § 1915(g), a “three strikes” provision
included in the Prison Litigation Reform Act (“PLRA”) intended to prevent frivolous and/or
vexatious prisoner litigation.
Plaintiff’s original complaint in this case alleged that while at ToCI, Plaintiff suffered
poor treatment, including but not limited to the improper disposal of his legal work and
other property. In September 2014, he was transferred to SOCF, where Plaintiff alleged
that he was subjected to racist and derogatory remarks, and was physically assaulted by
a number of officers, including Defendants Rankin, Southworth, Neff, Parish, John Doe,
and possibly Workman. Plaintiff alleged that Defendant “Dr. Ahmed Fiscal” denied him
medical care after the assault and continues to deny him care for a skin disease. The
original complaint contains additional allegations regarding Plaintiff’s conditions of
confinement, as well as an attack on Plaintiff’s conviction and sentence. Plaintiff’s original
complaint identified more than thirty individual defendants and several institutional
defendants, including: the State of Ohio, Toledo Correctional Institution (ToCI), SOCF,
and “several State actors” including Warden John Coleman, Lt. Beiderman, Kelly
Robertson, several groups of unnamed correctional officers, Correctional Officers
(“C/Os”) Southworth, Rardin, Neff, T. Parish, Cpt. Workman, Roger Wilson, Dr. Ahmed
of this same background was set forth in the undersigned’s last R&R but is repeated herein for the
convenience of the Court.
2Most

2

Fiscal (later corrected to Dr. Faisal Ahmed), DWSS Cadogan, DWO Cool, WMA Davis,
Warden Morgan, C/O Steve Carter, Major Warren, Ms. Aldridge, Sgt. Bear, Sgt. Felts,
O’Connor, Oppy, Hammerick, Lt. Phillips, Nurse Coons, Danhoff, Ohio Attorney General
Mike DeWine, Assistant Attorney General Christopher Bagi, DWO Bowerman, Lt. Copley,
David Bobby, and Warden Erdos. (Docs. 1, 2).
Based upon the number of prior dismissals of Plaintiff’s frivolous lawsuits, the
undersigned filed an initial R&R more than two years ago, on October 11, 2016,
recommending that Plaintiff’s motion to proceed in forma pauperis in this case be denied,
and that this case be dismissed unless Plaintiff immediately paid the full filing fee. The
relevant statutory provision, 28 U.S.C. § 1915(g), prohibits frequent filers with a similar
history of dismissals from “proceeding IFP ‘unless the prisoner is under imminent danger
of serious physical injury.’” Bruce v. Samuels, 136 S. Ct. 627, 630 (2016) (citing 28 U.S.C.
§ 1915(g), emphasis added).
On December 5, 2016 the presiding district judge rejected that first R&R,
concluding that Plaintiff had alleged “imminent danger” in a manner that permitted him to
file this lawsuit without prepayment of a filing fee, based upon four separate documents
that were not before the undersigned at initial screening, but instead were filed in
response to the first R&R. (Doc. 9 at 3). The Court liberally construed the collection of
documents as objections, since “[e]ach of these filings attempt to address the
…recommendation that Plaintiff be denied in forma pauperis status pursuant to 28 U.S.C.
§ 1915(g).” (Doc. 9 at 1-2). The Court specifically cited new allegations that “[s]taff
members have been planning their next attack on me,” and that Plaintiff does not “know
when the C/Os that once attacked me previously or Bare [sic], the sergeant that threatens
3

to attack me regularly here is going to act,” (id., citing Docs. 7 and 8), as well as Plaintiff’s
reference to being denied medical treatment for a “skin disease.”3 (Id.)
Based upon the rejection of the R&R dismissing this lawsuit under 28 U.S.C.
§1915(g), the undersigned re-screened Plaintiff’s initial complaint, together with a new
document filed on January 27, 2017. (Doc. 10). The latter document was not captioned
as an amended complaint, but instead was captioned: “The Contemporaneous Imm[i]nent
Danger Described Has Occurred In Majority, Evolved & Escala[t]ed.” (Id.) Consistent with
the presiding district judge’s liberal construction of Plaintiff’s confusing assortment of
filings, the undersigned construed several new allegations contained in the document as
a supplement or amendment to Plaintiff’s original complaint. (See Doc. 12, discussing
Doc. 10).
Pursuant to a second R&R filed on February 28, 2017 and adopted on April 18,
2017, the Court dismissed most claims and defendants, but permitted certain claims to
go forward against Defendants Rardin, Southworth, Neff, Parish, John Doe, Workman,
Warden Erdos, Dyer, Bear, and Dr. Ahmed. Specifically, the Court permitted the following
four claims:
(1) Eighth Amendment excessive force claims against defendants
Rardin, Southworth, Neff, Parish, John Doe, and Workman based on
plaintiff’s allegation that these officers attacked him upon his arrival to
SOCF; (2) excessive force claim against Sgt. Bear based on the January
17, 2017 attack; (3) deliberate indifference claim against Dr. [Faisal
Ahmed]; and (4) conditions of confinement claims at SOCF, including
plaintiff’s claims regarding wheelchair accessibility, against defendants
Warden Erdos, Dyer, and Bear.

3In

his response in opposition to Defendants’ motion for summary judgment, Plaintiff identifies his “skin
disease” as “contact dermatitis and eczema.” He states he previously has been prescribed medicated soap
that he uses when showering. (Doc. 116 at 10).

4

(Doc.

12

at

12,

adopted

at

25).4

Doc.

Ironically,

after

service

of

the

complaint/supplemental complaint on those four claims, the undersigned discovered that
Plaintiff had previously filed other similar complaints that had been dismissed based upon
the referenced “three strikes” provision and/or for failure to pay the requisite filing fee.5
As the undersigned previously explained, however, it is unclear whether the prior
dismissal(s) would bar the instant suit, given Plaintiff’s new assertion of “imminent
danger.” (See Doc. 43 at 6).
In any event, other than the four referenced claims, the Court found that Plaintiff
had failed to state a claim upon which relief may be granted and recommended full
dismissal of “the remainder of the complaint.” (Doc. 12 at 12). The Court determined that
Plaintiff could not recover monetary damages because the State of Ohio enjoys Eleventh
Amendment immunity. The Court also dismissed all claims against ToCI, SOCF and the
Ohio Department of Rehabilitation and Correction, since only “a person” acting under
color of state law is subject to suit or liability under 42 U.S.C. §1983. Additionally, the
Court dismissed Plaintiff's conspiracy claims as insufficient to state a claim upon which
relief may be granted. The Court dismissed Plaintiff's claims relating to the failure to
investigate and/or respond to his grievances as insufficient to state a claim under § 1983.

4Plaintiff

asserts that he requires a wheelchair based upon gunshot wounds suffered in 2011. (Doc. 1 at 2).
Foster v. Ohio, Case No. 1:15-cv-595, 2015 WL 6542408 (S.D. Ohio Oct. 29, 2015), Magistrate Judge
Litkovitz recommended the dismissal of an earlier complaint by Plaintiff that contained similar allegations.
The undersigned did not become aware of the similarity until subsequent review of this complaint and
comparison with Plaintiff’s past filings. In Case No. 1:15-cv-595, Judge Black severed claims against the
ToCI Defendants and transferred them to the Northern District of Ohio. However, upon initial screening in
that district, the Northern District also dismissed on the basis of the three strikes provision. See e.g., Foster
v. Ohio, Case No. 3:15-cv-2256, 2016 WL 537475 (N.D. Ohio Feb. 11, 2016). See also, generally, Northern
District of Ohio Case No. 3:16-cv-2168 (Order of 11/17/16 dismissing case as barred by three strikes rule
and as duplicative of Case No. 3:16-cv-2109, alleging that Plaintiff has been assaulted, pulled from his
wheelchair, thrown to the floor, punched and kicked upon transfer to LCCC, with property unlawfully taken,
with additional allegations that his wheelchair was taken and that he has not received medical treatment).
5In

5

The Court held that Plaintiff also failed to state a claim with respect to the alleged
destruction of his personal property, whether that claim was brought as a due process
claim or, with respect to the alleged destruction of his legal materials, as a First
Amendment right of access to the courts. The Court held that Plaintiff could not challenge
the validity of his criminal conviction or continued incarceration in this civil rights case.
The Court also dismissed any claims seeking to hold multiple defendants liable for threats
and verbal harassment, since such allegations are not sufficient to state a viable claim
under the Eighth Amendment. Finally, the Court dismissed a long list of “conclusory”
allegations against an even longer list of would-be individual defendants: Steve Carter,
Major Warren, Roger Wilson, O'Connor, Oppy, Hammerick, Lt. Phillips, Coons, Danhoff,
John Doe, Nurse Koons, Mike DeWine, Christopher Bagi, D.W.O. Bowerman, Lt. Copley,
and David Bobby. (See Doc. 12 at 11-12).
Initially, service was perfected only on Defendants Rardin, Parish, Bear, Erdos
and Dyer. Defendants John Doe and Southworth (who died in 2014) were dismissed
pursuant to a third R&R filed on June 12, 2017 and adopted on August 16, 2017. (Docs.
43, 56).

The Court also denied multiple motions filed by Plaintiff seeking default

judgments against various Defendants based upon their alleged failures to answer or
otherwise respond to Plaintiff’s complaint. (Id.) Summons was later issued to Defendants
Neff, Workman, and Dr. Ahmed. (Docs. 43, 44, 45). All Defendants then filed answers
and/or amended answers and moved for judgment on the pleadings. (Docs. 62, 63, 65,
66, 67).
Throughout this case, Plaintiff kept up a frenetic pace of motion practice. In an
Opinion and Order filed on November 2, 2017, the undersigned warned Plaintiff that future
6

repetitive and frivolous motions would be summarily denied. (Doc. 77 at 11). On the
same date, the undersigned filed a fourth R&R that recommended the denial of five of
Plaintiff’s dispositive motions. (Doc. 78).

Plaintiff filed multiple documents that were

again liberally construed by the presiding district judge as objections (and supplements
to objections) to the fourth R&R, all of which the Court found to be “without merit.” (Doc.
81 at 1, n.1). In overruling Plaintiff’s objections, the presiding district judge cautioned
Plaintiff, warning him that his filings have been in violation of Fed. R. Civ. P. 11, because
they “consist largely of foul, repetitive, and completely unsubstantiated denigrations of the
Magistrate Judge’s impartiality and character,” and placed him on notice that “[f]urther
such behavior will not be tolerated” and “will result in sanctions, potentially including the
summary dismissal of this case.” (Doc. 81 at 2, n.1).
On March 28, 2018, the undersigned filed a fifth R&R recommending that
Defendants’ motion for judgment on the pleadings be granted as to claims that multiple
Defendants employed excessive force against Plaintiff shortly after his arrival at SOCF in
September 2014 and that, also in 2014, Dr. Ahmed was deliberately indifferent to his
serious medical needs. The undersigned further recommended that judgment be granted
for all claims brought against Defendant Warden Erdos, whether in his individual or official
capacity. (Doc. 98). On May 18, 2018, U.S. District Judge Black overruled Plaintiff’s
objections and adopted that R&R for the opinion of the Court. (Doc. 101).
Following entry of Judge Black’s May 18, 2018 Decision and Entry Adopting the
fifth R&R, only two claims and two Defendants remain: (1) Plaintiff’s excessive force claim
against Defendant Sgt. Bear based upon an incident that allegedly occurred on January
19, 2017 that was detailed in the construed “supplement” to Plaintiff’s complaint and (2)
7

a general “conditions of confinement” claim against Defendants Dyer and Bear at SOCF,
including Plaintiff’s claims regarding wheelchair accessibility in disciplinary segregation.
Of note, neither claim appeared in Plaintiff’s original complaint. Instead, the two claims
that remain were alleged for the first time in the January 27, 2017 document construed
as an amendment or supplement to the original complaint. (See Doc. 10).
On September 12, 2018, the undersigned filed a sixth R&R in which I
recommended denying multiple additional dispositive motions filed by Plaintiff, including:
(1) a motion for sanctions; (2) a motion to reconsider the March 28, 2018 R&R and/or to
reverse Judge Black’s adoption of that R&R; (3) a motion for summary judgment in
Plaintiff’s favor on previously dismissed claims, and (4) a multi-part “Combined Motion
Trumping Penological Interest That are Not [Legit], Amending (Doc. 104) In Part and
Spitting Its Rule 56 Merits, And As to the Trump for ADA Transfer (Doc. 105).” (Doc.
112). In that same R&R, the undersigned stayed consideration of Plaintiff’s third motion
for summary judgment, (Doc. 108),6 pending the anticipated filing of a motion for summary
judgment by the Defendants.

Defendants filed the anticipated cross-motion on

September 13, 2018. (Doc. 113).
In this seventh R&R, I now recommend granting the motion of Defendants Dyer
and Bear for summary judgment and denying the Plaintiff’s repetitive third motion.

September 12, 2018 R&R noted that Plaintiff had filed two separate “reply” memoranda in support of
his motion for summary judgment, together with what appears to be 28 pages of identical exhibits attached
to each reply. In addition, the undersigned stated that “[i]n the interests of justice, the undersigned will
consider the Exhibits attached as Doc. 105-1 in connection with Plaintiff’s most recent (third) iteration of his
motion for summary judgment, to the extent that the exhibits may be relevant to his claims or argument
presented.” (Doc. 112 at 13 and n.1). In the context of this seventh R&R, the undersigned has fully
considered both reply memoranda and all of the referenced exhibits. (See Docs. 105-1, Docs. 110-111).
6The

8

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 (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
(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
(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). 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, 851-52 (S.D. Ohio
2011) (citing Viergutz v. Lucent Techs., Inc., 375 Fed. Appx. 482, 485 (6th Cir. 2010)).
In this case, both Plaintiff and Defendants are moving parties. The undersigned
9

has evaluated each of the respective motions for summary judgment according to the
above standards of review. Because the undersigned has concluded that Defendants’
motion should be granted, the undersigned has construed all reasonable factual
inferences in Plaintiff’s favor.
III. Plaintiff’s liberally construed “amendment” to his complaint (Doc. 10)
Prior to stating the findings of fact supported by the record in this case, the
undersigned first restates the allegations relevant to the only two remaining claims. As
stated, neither claim was included in Plaintiff’s original complaint; Defendant Dyer was
not even mentioned in that pleading. 7 Instead, the two claims were newly alleged in an
8-page, handwritten single-spaced document that was docketed on January 27, 2017 as
“The Contemporaneous Immenent [sic] Danger Described has Occurred in Majority,
Evolved & Escaladed [sic].” (Doc. 10). The undersigned construed and re-screened those
new allegations as an “amendment” to Plaintiff’s original complaint.

Although the

document is somewhat rambling in nature, the construed amendment contains the sole
allegations that state any non-frivolous claim against Defendants Bear and Dyer.
The allegations against Bear and Dyer not only are distant in time from the events
detailed in the original complaint, but occurred just days prior to the filing of the construed
amended complaint.8 In relevant part, Plaintiff alleges:

7In

objections to the sixth R&R, Plaintiff points out that the undersigned erred in overlooking (in that R&R,
though not in prior R&Rs) a cursory reference to Defendant Bear in the original complaint. (Doc. 1 at 4).
Plaintiff is correct. To be fair, his original complaint referenced 30 individuals, plus numerous “John Does”
plus three entity defendants. (See Docs. 1, 12). Still, included in the original complaint was an accusation
that Bear “threatened me and enforced torture” on an unspecified date. Along with other conclusory
allegations, the original allegation against Bear was dismissed for failure to state any claim. (Doc. 12 at
11). Aside from the failure to note the cursory reference to Bear, the sixth R&R accurately details the
unusual procedural history of this case, including the construction of Plaintiff’s allegations in the document
filed on January 27, 2017 as asserting new claims against both Sgt. Bear and Officer Dyer. (See generally,
Doc. 98 at 13-16 (discussing Doc. 10)).
8As the undersigned has previously noted, Plaintiff’s original complaint primarily concerned events that

10

…The State is literally putting forth efforts to do more than estopple
[sic], they are disabling me in attempt.
But I am negative and in full resistance of their efforts. The Sgt’s
Bear and Felts mentioned in the complaint of this litigation were notified that
case 1:16-cv-846 would have specific requirements on the 18th of January.
So they continued to send staff to go to the cell I was housed in & harass
me so to induce panic. On the (19th) nineteen at 6 am, Thursday of January
last week, I reported for my hygiene so that I could go take a shower. I was
told that I can use toothbrush, toothpaste, soap, deodorant etc., and at that
time I requested to see a Lt., whom came shortly after. Lt. Dyer made
disrespectful remarks while walking past the cell and blatantly denying me
my property and hygiene. I was distraught, minutes later Sgt. Bear came
through the cage directly to the bars at the cell I was housed. He replied,
“fuck you Bitch! We not letting you do shit motherfucker.” He then began to
dispense mace from a very large “fogger can” into my face. I saw a battery
nearest me and threw it at him to make him stop. Sgt. Bear left for a few
minutes and returned, immediately with another can of mace aimed directly
at me in the cell, saying cuff the fuck up bitch, so I can put you out of your
misery.” Before I could get a word out of my mouth he emptied the can
drowning me in mace. I refused to cuff, as I continued to try getting the
mace out of my face. The entire unit of … inmates began to go bonkers at
the CO’s. Then a group of CO’s came with Lt. Dyer, the guy I described
that came before [Bear]. They had a big gun, vests, shield, helmets,
etcetera, ordering me to cuff up. Once I wheeled over to them in my
wheelchair and cuffed up, they opened the cell, wheeled me to the steps of
the unit & grabbed me out of the wheelchair spontaneously, dragging me
up the stairs (both my hands and ankles shackled).
They wheeled me to K-2, another unit (from J-3 cell3 handicap cell).
Entering K-2, they (with help of D. Smith) pulled me out of the wheelchair
spontaneously and dragged me down the stepps [sic], this time making sure
my feet hit every step, all the way to cell 6. In this cell 6 of the multiple
tortfeasors, stripped me naked and after discarding my boxers, socks,
thermals etc. gave me a jail shirt and jail pants. I was left in the cell with no
wheelchair or Amer. With Dis. Act. Accessibility (nowhere in this unit, nor
my property) (keep in mind I was injured after being pistol shot 16 times at
point blank range by a malicious individual…). I sat on the steel bunk, only
to observe the blood all over the floor walls and sink of this disgusting
occurred in 2014 upon Plaintiff’s transfer to SOCF, whereas the construed amendment, dated January 25
and filed January 27, 2017, concerns an incident that occurred days earlier. Ordinarily, the PLRA precludes
an inmate from bringing any federal claim prior to exhausting an administrative grievance procedure. It
would have been logistically impossible for Plaintiff to have administratively exhausted his January 2017
claims. Defendants previously raised a “failure to exhaust” defense, among many other affirmative
defenses. (See generally Docs. 34, 51, 66, 67). However, they appear to have waived that defense by
failing to raise it on summary judgment.

11

condemned moldy cell. I happen to speak to a guy on the range who yelled
from his cell informing me he had just wrote an ICR about the dude whom
spilled his blood all in the cell by cutting himself. I attached what he filed to
the institution; answer as well.
I just received an envelope and some paper/pen, from a neighboring
inmate to write this. I am in a cell (Cell 6- K2). No wheelchair, or
accessibility, confined strictly to a bed. I was given nothing but a mattress
(dirty and old) and one sheet, one blanket, my undergarments, legal work,
property, wheelchair, etcetera, are at large. I am not allowed to access
phone, commissary, a shower, or medical needs for my skin disease.
I am sure that it will get worse as they have informed me they are
going to destroy me after they finish blocking my legal work….
(Doc. 10 at 2-4). In what he captions as a conclusion, Plaintiff pleads “for the state
tortfeasors to be summonsed so that they pull back on the death blow they have in store.
I am a major asset to the United States as a Nation in a selfless meaning, concerning
strengthening as an aid to the U.S. culture.” (Id. at 4).
IV. Findings of Fact
As reflected in the exhibits filed by Defendants as well as some exhibits filed by
Plaintiff, most of the allegations contained in the construed amended complaint are
contradicted by the record.
During the early morning hours of January 19, 2017, Plaintiff was being housed in
cell 3 of Unit J3 of SOCF. Although neither Plaintiff’s original nor construed amendment
to his complaint make any reference to non-party C/O Malone, there is no dispute that
Plaintiff’s interaction with C/O Malone (and not Dyer as Plaintiff alleged) precipitated the
incident at issue. Specifically, around the time he was to be escorted to the shower by
C/O Malone, Plaintiff requested a bar of medicated soap that Plaintiff maintains he
requires for his contact dermatitis and eczema. (Doc. 116 at 12-13). However, C/O
Malone “denied” Plaintiff soap, eliciting an angry reaction from Plaintiff. (Doc. 113-2 at
12

17, Incident Report stating that Malone informed Plaintiff that they were “out” of the soap;
contrast Doc. 116 at 10, asserting that Malone was “denying Foster his medicated soap”).
Malone stated in a contemporaneously dated Incident Report that Plaintiff grabbed
at Malone through his cell bars. (Doc. 113-2 at 17). When Sgt. Bear arrived to do his
usual rounds, Malone informed him of Foster’s agitated response. (Doc. 113-2 at 9; see
also Doc. 113-2 at 86). Accompanying Malone, Sgt. Bear returned to Plaintiff’s cell shortly
thereafter, whereupon Plaintiff threw batteries at both officers, striking Malone and/or
Bear.9 Reacting, Sgt. Bear deployed his OC spray10 for the first time; both Malone and
Bear left the range shortly thereafter.
Among the exhibits that support the findings of fact in this case is a video record
filed by Defendants in support of their motion, which contains three video clips, identified
as Videos A, B, and C. (See Doc. 119-1).11 Plaintiff has repeatedly claimed both in one
of his responses to the Defendants’ motion for summary judgment, and in a subsequent
“motion to strike” the video evidence, that he has been denied adequate opportunities to

9Malone

variously stated that a battery struck him in the lower left leg and/or his left foot. Bear also reported
to the Use of Force Committee that he was struck in the leg. Additionally, Malone stated that he informed
Bear that Plaintiff had initially grabbed him, whereas Bear’s report states that when Bear first arrived for his
rounds on the range, Malone informed him that Plaintiff had thrown a battery in anger, and that was why
he accompanied Malone back to Plaintiff’s cell. Plaintiff focuses on these minor inconsistencies in
opposition to summary judgment. (Doc. 116 at 11-12). However, minor inconsistencies in the officers’
statements about the nature of the altercation between Malone and Plaintiff prior to Bear’s arrival, or the
accuracy of Plaintiff’s aim with the batteries, do not create any genuine issue of material fact that would
preclude summary judgment in this case. There is no dispute that after Bear arrived, Plaintiff threw batteries
at both officers, eliciting Bear’s first deployment of OC spray.
10Oleoresin capsicum spray, or “OC spray,” is a form of pepper spray, sometimes inaccurately referred to
by Plaintiff as “mace.”
11Due to a technical issue in the readability of Defendants’ original Exhibit 4, the undersigned directed
Defendants to re-file the video, which they did on November 8, 2018. As Plaintiff points out, the affidavit of
William Cool that is intended to authenticate the video record, describes the video as a recording involving
Plaintiff during “an incident that occurred on January 19, 2017, involving Inmate Foster…and Corrections
Lieutenant Dyer and Corrections Sargent Bear in K2, Cell 6.” (Doc. 113-5 at ¶5). The undersigned finds
the affidavit reference to the K2 unit to be immaterial, and relies on the video as clearly reflecting the events
that occurred on the J3 unit, immediately prior to Plaintiff’s transfer to the K2 segregation unit.

13

review the videos.

The undersigned directed Defendants to provide two additional

opportunities to review the videos, and now concludes that Plaintiff has been afforded a
total of three opportunities to review the exhibit but has deliberately refused to do so.
(See generally, Docs. 124, 125). Even if a reviewing court were to disagree and conclude
that Plaintiff should be provided a fourth opportunity to review this evidence, that fact
would not alter this Court’s review of the video record.
Video A shows Malone and Bear entering Plaintiff’s cell range at 7:14 a.m.
Defendant Bear is holding a canister of O/C spray in his left hand, down at his side, and
begins conversing with Plaintiff. At 7:14:17, Plaintiff stands up out of his wheelchair.
Seven seconds later, on the video frame recorded at 7:14:24:58, Plaintiff makes an
aggressive sudden move, which Bear and Malone both report as throwing a battery.
Based on the positions of the parties, the undersigned cannot see Plaintiff’s hand, but the
frame-by-frame video record is consistent with Plaintiff throwing something. Also visible
on the frame-by-frame record is Bear’s clearly reactive motion. Thus, when Plaintiff leans
back and appears to move his arm suddenly, Bear appears to flinch before raising the
OC spray in his left hand. For approximately one second, Defendant Bear discharges
spray through the bars toward Plaintiff. (See Video A, 7:14:25:081 to 7:14:26:082). In
the same second in which he reactively discharges OC spray, Bear is retreating away
from Plaintiff’s cell, as is Malone. In the ensuing seconds, both officers head toward an
exit door to further distance themselves from Plaintiff’s cell.
As he retreats, Bear depresses the trigger on his OC spray two additional times.
While aimed in Plaintiff’s direction, it is unclear whether either of the additional short bursts
of OC spray made contact with Plaintiff due to the increasing distance and fact that Bear
14

was rapidly retreating rather than stopping to aim his spray. After reacting to the initial
use of OC spray, the video shows Plaintiff lunging back toward the front of his cell,
extending his arm, and throwing a single small battery at the retreating officers. An
incident report completed by C/O Randy Cooper reflects that he packed up Plaintiff’s cell
at approximately 9:45 am, at which time he found two batteries hidden on Plaintiff’s bed,
and two additional batteries “on the range across from [Plaintiff’s] cell,” consistent with
the Defendants’ report that Plaintiff had thrown at least two batteries. (Doc. 113-2 at 21).
Approximately eight minutes later, Bear and Malone returned to the range in order
to direct Plaintiff to be transported to Unit K2 (disciplinary segregation). Clearly aware of
their approach, Video B shows Plaintiff again moving to the front of his cell and standing
up from his wheelchair at 7:22:17, just before the officers entered the range at 7:22:24.
This time, Bear carries a canister of OC spray in his right hand. Bear directed Plaintiff to
cuff up to be transported to disciplinary segregation. Still agitated, Plaintiff spit at both
officers, eliciting another reactive use of OC spray by Bear. (Doc. 113-2 at 2, 16; see
also Video B at 7:22:33 to 7:22:35). After Bear deploys his OC spray on Video B, the
record reflects that he and Malone retreated a few steps from Plaintiff’s cell but remained
in the cell block for several seconds, observing Plaintiff. During that time frame, Plaintiff
retreats to his wheelchair towards the back of his cell and can be seen wiping his face
with a white cloth, presumably in an attempt to wipe off OC spray. (Id.)
Two neighboring inmates on the J3 range are visible in the videos; both appear to
be calm and neither appears to be going “bonkers” as Plaintiff alleges in the amended
complaint. At 7:23:00 on Video B, Malone opens the door to one of the neighboring cells
to escort its occupant down the hallway. That inmate has covered his face with white
15

cloth in a presumed attempt to shield his face from any lingering effects of OC spray as
he is led calmly down the hallway. By 7:23:17, both Bear and Malone have exited the
frame of Video B, accompanying the unknown inmate.
Based upon Plaintiff’s behavior, Defendant Bear sought and obtained
authorization for a planned Use of Force in order to extract Plaintiff from his cell and
transport him to the K2 disciplinary segregation unit. A five-man team was formed. Video
C begins more than an hour after Video B leaves off, and reflects a large team response
assembling at 8:35:17 a.m. Five men in riot gear (complete with face masks and chest
shields) appear, together with a five more staff members not wearing gear. Two staff
members gave Plaintiff a direct order to be moved, which Plaintiff initially refused.
However, in view of the large show of force exhibited by the extraction team, Plaintiff soon
agreed to be moved and no additional force was used, other than the escort techniques
used to transport Plaintiff. (See Doc. 113-2 at 1; Video C).
Both Unit J3 and Unit K2 are physically located next to a set of stairs. Therefore,
C/Os Bradley and Dunlap, both of whom were part of the authorized extraction team,
removed Plaintiff from his wheelchair at the bottom of the staircase. While standing next
to him, each held one of Plaintiff’s arms to escort him up a flight of eight steps from Unit
J3. The same two officers then placed Plaintiff back in his wheelchair to transport him
down a hallway to Unit K2. Upon arrival at the segregation unit, Plaintiff was again
removed from his wheelchair and escorted down the stairs to Cell 6, where he was placed
on the bed. (Doc. 113-2 at 5). He was then strip searched. During the search, Plaintiff
was found to be in possession of three bars of soap and deodorant, which were logged
as four items of contraband. (See Doc. 113-2 at 91; Doc.105-1 at 18). Plaintiff was issued
16

a 24-hour modified property restriction and given a clean pair of orange pants,
orange/white shirt, and blue shoes, as well as a single sheet and blanket, and toilet paper.
Plaintiff does not dispute that he was provided these items, but complains that he was not
provided underwear or additional blankets or sheets.
Plaintiff further complains (and the undersigned assumes for purposes of
Defendants’ pending motion) that the cell had not been adequately cleaned after the
departure of its prior occupant. Therefore, the cell was “dirty” with visible bloodstains left
from its prior occupant having cut himself,12 and Plaintiff observed some areas of mold.
Plaintiff verbally complained of pain upon his arrival to the cell, but does not appear
to have made any complaint about the allegedly unsanitary conditions of the cell until the
next day. During a physical exam by Nurse Tipton within minutes of his placement in the
segregation cell, Plaintiff showed no signs of distress, no edema, no open areas, and no
drainage or redness. (Doc. 113-2 at 8, 27; see also Doc. 105-1 at 9). There is some
evidence that Plaintiff was offered an x-ray but refused that offer, (Doc. 105-1 at 13), but
there is no evidence that he sustained any injury. Nurse Tipton documented that both his
legs and arms appeared “normal.”13 Plaintiff was provided with over the counter pain
relief and advised to wash the areas of his skin that had been impacted by the OC spray.
(Doc. 105-1 at 9-10).
As a result of throwing batteries and spitting toward Defendant Bear and C/O
Malone, Plaintiff was charged with violations of Rules 5, 6, and 7.14 In his response in

12Plaintiff

alleges that a neighboring cellmate in K2 told Plaintiff that he had already filed a grievance
complaining about the blood stains.
13Plaintiff at times disputed whether he had been examined by Nurse Tipton, but he also has filed her
medical report as one of his exhibits.
14Rule 5 prohibits causing, or attempting to cause, physical harm to another with a weapon. Rule 6 prohibits
throwing, expelling, or otherwise causing a bodily substance to come into contact with another. Rule 7

17

opposition to summary judgment, Plaintiff attached the disposition of his Rules Infraction
Board proceeding. The RIB panel judged Plaintiff guilty of all three Rule violations and
specifically found that Plaintiff “did spit and throw batteries at SGT. Bear while he was in
front of his cell,” following review of video evidence and related Conduct and Incident
Reports from the officers involved. (Doc. 116 at 69).
A Use of Force Committee later investigated the incident and concluded that the
force was reasonable under the circumstances presented. In an interview dated nearly
two months after the incident, on March 13, 2017, Plaintiff provided the following
statement:
Cell door popped open & went to shower. I was getting along with officers.
They made up …false restrictions on me. Asked C/O Malone about
hyg[i]ene, he was disrespectful to me. I told him he couldn’t deny my
hyg[i]ene. Told them to get a supervisor down here. Sgt. Bear came down
& said you ain’t getting anything and sprayed me. He had the mace out
already. I [threw] some stuff at him.
Question: When asked to move from J3-3 to K2 did you refuse?
I don’t recall being asked to move to K2 – did not have legal authority to
move me to non[] accessible block.
Question: Did you throw batteries at Sgt. Bear and C/O Malone, hitting C/O
Malone?
I black out so I’m not sure what I threw at him. Sgt. Bear came back later
& sprayed me a second time. Sgt. Bear was cussing at me.
Question: Did you spit at Sgt. Bear?
I don’t recall everything ex[cept], the team came and got me and put me in
K2 without a mattress or anything.15
prohibits throwing any other liquid or material on or at another. See Ohio Admin. Code, § 5120-9-06, Inmate
Rules of Conduct.
15Despite his assertion that the cell lacked a mattress during his Use of Force Interview in March 2017,
Plaintiff’s January 2017 construed amended complaint does not allege that the cell lacked a mattress, but
instead alleges that Defendant Dyer violated his Eighth Amendment rights by placing him in a cell that was
dirty, with an “old dirty” mattress which had only one sheet and one blanket. Plaintiff further complains that

18

(Doc. 113-2 at 31-32). The Use of Force Committee noted that when interviewed, Plaintiff
stated that he had PTSD and sort of “blacked out” when the incident happened and did
not remember all details. (Doc. 113-2 at 9). Given the discovery of contraband soap and
deodorant in Plaintiff’s clothing when he was strip searched in disciplinary segregation,
and Plaintiff’s agitated state, the Use of Force Committee determined it was “more than
likely” that Plaintiff “planned on throwing these items at staff also.” (Id.)
V. Defendants’ Motion for Summary Judgment
Defendants Bear and Dyer have filed a joint motion for summary judgment on the
two remaining claims against them. (Doc. 113). The motion is supported by 100 pages
of exhibits,16 as well as a DVD of the video footage of the January 19, 2017 incident.
Plaintiff filed a 34-page single spaced, handwritten “response” in opposition to
Defendant’s motion, which document also constitutes his objections to the sixth R&R.
(Doc.

116,

Notation

Order

of

10/26/18).

Attached

to

Plaintiff’s

combined

response/objections are 31 pages of exhibits. In addition to Plaintiff’s formal response to
Defendants’ motion, the undersigned has reviewed and considered exhibits attached by
Plaintiff to his “Motion Trumping Penological Interest that Aren’t Legit,” and two reply
memoranda filed in support of Plaintiff’s motion for summary judgment.

(Docs. 105-1,

110, 111).

the cell was not wheelchair accessible, and that without his wheelchair, he was confined to the bed. (Doc.
10 at 2-3).
16Unfortunately, Defendants’ citations to those exhibits lack appropriate page numbers. A reference to
“Exhibit 1” might be adequate in a case where the referenced exhibit consists of a single page but is not
adequate when the exhibit spans 92 pages. Counsel is strongly cautioned that this Court will not tolerate
such lax citations in the future.

19

Much of Plaintiff’s response and the majority of his exhibits focus on previously
dismissed claims and Defendants. The undersigned declines to reiterate the analysis of
prior R&Rs, and therefore limits the majority of her analysis to the only two Defendants
and claims that remain at issue.
A. Judgment Should be Granted on Eighth Amendment Claims
1. The Components of an Eighth Amendment Claim
An Eighth Amendment excessive force claim has both a subjective and an
objective component. Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014). 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 (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 v. Albers, 475 U.S.
312, 320 (1986). The Eighth Amendment does not prohibit a de minimis use of force
“provided that the use of 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
v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), 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,
20

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. At the same time, courts have repeatedly explained
that “not… every malevolent touch by a prison guard gives rise to a federal cause of
action.” Hudson, 503 U.S. at 9. “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional
rights.” Pelfrey v. Chambers, 43 F.3d 1034, 1039 (6th Cir. 1995) (internal quotation marks
and citation omitted).
2. No Evidence Supports Either Subjective or Objective Elements
of Plaintiff’s Excessive Force Eighth Amendment Claims
It is undisputed that Defendant Bear responded to Plaintiff’s cell after Plaintiff
engaged in some form of dispute or altercation with C/O Malone concerning Plaintiff’s
belief that Malone was improperly denying him access to his medicated soap. It is further
undisputed that when Bear responded by accompanying Malone back to Plaintiff’s cell,
Plaintiff threw batteries at Bear. (Video A; see also Doc. 116 at 20, denying a physical
altercation with Malone and arguing that “[t]he only …altercation was Foster throwing a
battery at Bear to deter his unreasonable attack of discrimination”).

In response to

Plaintiff’s throwing a battery at him and/or Malone, Bear deployed OC spray and left the
range. (Video A).

After Bear returned to order Plaintiff to move to a disciplinary

segregation unit approximately 8-10 minutes later, Plaintiff spit at Bear and Malone. Bear
then deployed his OC spray a second time. (Video B).
Based upon Plaintiff’s behavior and initial refusal to be moved to disciplinary
segregation, a “Use of Force” authorization was given for a five-man extraction team to
21

transport Plaintiff to segregation. Soon after that team arrived, Plaintiff complied with the
order to be moved. He was removed from his wheelchair, with two officers escorting him
up eight steps in order to leave Unit J3, wheeled down the hall and again escorted down
a second set of steps to Unit K2, and physically placed on the bed in Cell 6. During a
subsequent strip search, he was found to be in possession of four items of contraband
(soap and deodorant) and was issued a 24-hour modified property restriction and
provided with clean pants, shirt, and shoes. He was also provided with a sheet, a blanket,
and toilet paper.
Nurse Tipton examined Plaintiff in his cell. Despite verbal complaints of pain,
Plaintiff had no discernable injuries on examination. Indeed, he does not allege any
particular injury but primarily complains about the alleged “risk” of injury from being
escorted up and down stairways at SOCF as opposed to being transported entirely via
wheelchair. Given his lack of visible injury, Nurse Tipton provided Plaintiff with pain relief
and advised him to wash any areas that were impacted by OC spray.
As this Court explained more than a year ago in denying preliminary injunctive
relief: “The use of pepper spray to restore discipline, including for the failure to comply
with the order of a correctional officer rarely (if ever) will violate an inmate’s constitutional
rights.”

(Doc. 78, R&R at 14, internal citation omitted).

On the undisputed facts

presented, Defendant Bear exerted a de minimis use of force (OC spray) to restore order
in the face of assaultive behavior by Plaintiff. Such force is insufficient as a matter of law
to establish either the objective or subjective elements of Plaintiff’s claim.
Plaintiff accuses Bear and Dyer of using additional force to transport him to the
disciplinary segregation cell in K2. However, the record reflects that it was C/Os Bradley
22

and Dunlap, and not either of the two Defendants, who physically held Plaintiff’s arms
during his escort up and down the two flights of stairs required to reach K2. Even if it had
been Bear and Dyer, such minimal force would not violate the Eighth Amendment given
Plaintiff’s initial repeated refusal to be transported to disciplinary segregation. While the
de minimis nature of the force is critical, the record further reflects that Plaintiff sustained
no injury other than the transient discomfort of the OC spray, which the evidence reflects
he had the means to wash off, despite being temporarily denied access to his medicated
soap.17 Thus, Plaintiff cannot satisfy the objective component of his claim: that the harm
suffered was sufficiently “serious.”
Plaintiff also cannot show any malicious and sadistic intent to harm him by either
of the Defendants, and therefore cannot prove the subjective component of his Eighth
Amendment claim.18 Plaintiff was charged with and found guilty of three separate rule
violations based on the incident. The use of OC spray in the face of an agitated inmate
throwing batteries and attempting to spit at officers does not violate the Eighth
Amendment. Multiple cases hold that OC spray may be deployed in order to maintain
order and restore discipline, including for rule violations, and even when an inmate
remains in his cell. See, e.g., Davis v. Agosto, 89 Fed. Appx. 523, 526 (6th Cir. 2004)
(collecting cases and holding use of mace against inmate who failed to place hands next
to the tray slot as directed while in his cell was a good-faith effort to maintain or restore

his response in opposition to summary judgment, Plaintiff asserts that “the nurse tried to get me to let
them…lift him upstairs to go to a chronic care visit” but that Plaintiff refused and “informed her he would not
take that risk because there is no [wheelchair] ramp.” (Doc. 116 at 25).
18In Plaintiff’s response in opposition to Defendant’s motion, he argues that Defendants have waived most
defenses, including the argument that Plaintiff has failed to prove the subjective element of his Eighth
Amendment claim. (Doc. 116 at 14-15). Plaintiff is mistaken. Although the undersigned has noted that
Defendants appear to have waived an exhaustion defense in their current motion for summary judgment,
they did not waive other defenses by failing to present every possible argument in their opposition to
Plaintiff’s third motion for summary judgment.
17In

23

discipline). As recognized in Davis, courts have repeatedly upheld the use of pepper
spray or mace to avert a threat or to force a recalcitrant inmate to comply with an order.
See generally, e.g., Brown v. Perez, 2017 WL 3378994 (6th Cir. April 17, 2017) (affirming
sua sponte dismissal of pro se prisoner complaint on initial screening under PLRA, 28
U.S.C. §§ 1915A(b) and 1915(e)(2)(B)(ii); officers’ alleged use of tear gas and physical
restraints did not constitute violation of Eighth Amendment where allegations indicated
that force was to maintain or restore discipline rather than maliciously and sadistically to
cause harm); McDougald v. Dillow, Case No. 1:16-cv-1099 (S.D. Ohio Aug. 2, 2018)
(summary judgment granted to defendants for use of pepper spray); McDougald v. Erdos,
Case No. 1:17-cv-95, 2018 WL 3772181 (S.D. Ohio Aug. 9, 2018) (same); Thompson v.
Esham, Case No. 1:15-cv-553, 2018 WL 398439 (S.D. Ohio Jan. 12, 2018) (summary
judgment granted despite use of multiple short bursts of pepper spray); Payne v. Gifford,
Case No. 1:16-cv-514, 2017 WL 4329631 (S.D. Ohio Sept. 5, 2017) (holding that onesecond use of pepper spray demonstrated neither subjective nor objective components
of Eighth Amendment claim); Phillips v. Sammons, Case No. 1:16-cv-1034 at *11 (S.D.
Ohio Jan. 11, 2018) (granting summary judgment where officer deployed chemical spray
for less than two seconds).
As the undersigned wrote in a similar case:
To be clear, when pepper spray or some other chemical agent is used
against a prisoner, that use of force might support the objective component
of an Eighth Amendment claim when combined with other force (i.e., a
“violent extraction”), or if the spray was used for an excessive length of time,
employed in some obviously malicious manner, or under circumstances that
demonstrate a more objectively significant incident. See e.g., Freeman v.
Collins, 2009 WL 414325 (S.D.OH Feb. 17, 2009) (denying qualified
immunity to officer who sprayed inmate with mace based on disputed
issues; inmate had medical documentation prohibiting use of chemical
agents, and allegedly was denied medical treatment after the incident).
24

However…, where it is clear that some manner of threat by Plaintiff
occasioned the briefest reactive use of pepper spray by a single prison
guard, with no other force used by that guard or by anyone else, the
undersigned concludes that the force used was akin to a “push or shove”
that causes “no discernible injury” and that falls short of what is required to
state a valid Eighth Amendment claim.
Thompson v. Joseph, Case No. 1:12-cv-992, 2014 WL 1685918 (S.D. Ohio, April 29,
2014), R&R adopted at 2014 WL 2172894 (discussing OC spray cases and granting
summary judgment in light of evidence that use of force was de minimis because it was
in response to the inmate’s verbal threat and/or attempt to spit); accord Easley v. Little,
2016 WL 4006676 at *7 (S.D. Ohio June 28, 2016) (citing Jennings v. Mitchell, 93 Fed.
Appx. 723, 724 (6th Cir. 2004) and similar pepper spray cases).
Like the cited cases, the undisputed record in this case reflects that a single officer
(Bear) deployed short bursts of pepper spray against Plaintiff in response to clear threats
(batteries being thrown and Plaintiff spitting) as well as Plaintiff’s refusal to be removed
and transported to disciplinary segregation.

Once the extraction team arrived, Plaintiff

complied with the removal order without further incident or use of any force other than a
de minimis physical escort technique used by other officers (not the Defendants) to
transport him up and down two short flights of stairs. Therefore, Defendant Bear is
entitled to summary judgment on Plaintiff’s claim that he used excessive force in violation
of the Eighth Amendment.
3. No Evidence to Support Conditions of Confinement Claim
Both Defendants Bear and Dyer are also entitled to summary judgment on
Plaintiff’s conditions-of-confinement claim, which is based upon multiple underlying
presumptions that are not supported by the record. For example, Plaintiff asserts that the
State of Ohio is required to house him in a handicap-accessible cell, in a different prison
25

than SOCF (which Plaintiff asserts has no suitable cell blocks) and provide him with
access to his personal wheelchair at all times. (See, e.g., Doc. 116 at 16). As a
foundational premise to his claim against the two Defendants, Plaintiff decries Dr.
Ahmed’s medical determination beginning in 2014 and reiterated in a document dated
January 19, 2017, that Plaintiff requires a wheelchair only for long distances and not at
all times. Plaintiff alleges that medical decision itself violates the Eighth Amendment.
(See e.g., Doc. 116 at 38-42 (grievances complaining in 2014 that Dr. Ahmed took away
wheelchair and medicated shampoo); Id. at 47, 53-54 (Medical Exam notes and
Restriction dated September 2014 stating that wheelchair “for long distance ambulation
due to refusal to walk”); see also Doc. 116 at 73 (7/20/17 Nurse Progress note relating
medical history of left leg paralysis resolved 8/2011. Not paralyzed on exam 9/26/2014”).
To support his assertion that Defendants Bear and Dyer violated his Eighth
Amendment by not permitting him to retain his wheelchair in disciplinary segregation,
Plaintiff cites to a medical exhibit, dated 09/09/16, that states that Plaintiff is to be
“[a]llow[ed] to use wheelchair in cell” due to his muscle weakness and history of chronic
pain. However, even assuming that the same allowance continued through January 19,
2017, evidence that Plaintiff was allowed use of a wheelchair in his cell in Unit J3 is not
the equivalent of a medical requirement for wheelchair use in Unit K2. In fact, the 2016
physical examination findings reflected on the medical note “allowing” the wheelchair
reflect a “normal” gait and full range of motion, despite some atrophy in Plaintiff’s left leg.
(Doc. 116 at 65).19 Most importantly, regardless of what Plaintiff believes regarding
whether his placement at SOCF is appropriate or whether Dr. Ahmed erred in his medical

19On

the same date, the examiner diagnosed contact dermatitis and other unspecified eczema, and
prescribed medicated shampoo. (Id.)

26

assessments that Plaintiff did not technically “require” access to his wheelchair at all
times, no claims relating to those beliefs remain at issue in this case.
In the lone claim that remains, Plaintiff alleges that Defendant Dyer (and possibly
Bear)20 were part of the team who transported Plaintiff to a cell that was not “handicap
accessible.” Again relying solely on evidence that he previously had been allowed access
to his wheelchair in his cell in Unit J3,21 Plaintiff argues that the removal of that access in
Unit K2 violated the Eighth Amendment. Plaintiff also asserts that he “could not take a
shower” because he needed “his medicated shampoo, etc.” (Doc. 116 at 24). In his
construed amended complaint, Plaintiff further alleges that his Eighth Amendment rights
were violated because the K2 cell was “dirty” and had not been adequately cleaned after
its last occupant moved out. Plaintiff alleges that he observed bloodstains, dirt, and areas
of mold.22 He further alleges that he was provided with clothes but not with underwear
and was provided only a single sheet and blanket for the bed.
Both Defendant Dyer and Bear are clearly entitled to summary judgment on this
claim. In order to prove the objective element of his conditions of confinement claim,
Plaintiff must demonstrate that the harm to which he was subjected was “objectively,
sufficiently serious,” such “a prison official's act or omission must result in the denial of

20It

is unclear from the amended complaint whether Plaintiff believes that Bear was part of the transport
team. The record suggests that only Dyer, and not Bear, accompanied Plaintiff to Unit K2.
21Plaintiff does not deny that he stood up multiple times while in his J3 cell, but insists that he “used his
good leg” to do so, and otherwise requires access to his wheelchair at all times despite Dr. Ahmed’s contrary
opinions. (See Doc. 113-2 at 86).
22Defendants have offered recent pictures of the offending cell as an exhibit, which pictures Plaintiff
maintains do not fully reflect the condition of the cell on January 19, 2017. Nevertheless, Plaintiff relies on
the same pictures as providing proof of what Plaintiff alleges are small areas of mold on a rear vent, on the
bookshelf, and on the sink. Other than some darkened areas of unknown origin near the bookshelf, the
referenced areas are impossible to detect. Even if the areas are mold as Plaintiff alleges, for the reasons
discussed and based on established law, the undersigned does not find that such conditions are so horrific
that they would violate the Eighth Amendment, even if Plaintiff had proven the subjective component of his
claim (which he has not).

27

‘the minimal civilized measure of life's necessities,’” Farmer v. Brennan, 511 U.S. 825,
833, 114 S.Ct. 1970, 1977 (1994) (quoting Rhodes, supra, 452 U.S. at 347, additional
internal quotation marks and citations omitted). Put another way, for a claim “based on a
failure to prevent harm, the inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm.” Id. at 834, citing Helling, supra, 509 U.S. at
35.
Plaintiff does not allege that he requested his wheelchair or other amenities from
Bear and Dyer. However, with respect to any part that those two Defendants may have
played in failing to allow Plaintiff to access his wheelchair in his disciplinary segregation
cell, Plaintiff has failed to offer any evidence that his lack of access posed a substantial
risk of serious harm.

Defendants Bear and Dyer were entitled to rely upon the

assessments made by medical personnel at SOCF, including the nurse who examined
Plaintiff at the time he was placed in the disciplinary cell and Dr. Ahmed’s assessment
later that day that Plaintiff did not require continuous access to his wheelchair while
housed in disciplinary segregation.23
Both Defendants Bear and Dyer also are entitled to judgment with respect to
Plaintiff’s complaints that he was temporarily deprived of underwear despite being
provided a clean shirt and pants, and that he should have been provided with more than
one sheet and blanket. Again, Plaintiff fails to allege that he asked Bear or Dyer for
underwear or for additional sheets or blankets, or indeed, that he voiced any complaint at

23Plaintiff

points out that Dr. Ahmed’s January 19, 2017 assessment that his wheelchair was not required
while Plaintiff was in segregation was not signed until 2 p.m., several hours after Plaintiff was transported
to Unit K2. (Doc. 113-4 at 1). However, the assessment is nearly identical to a prior assessment dated in
2014, and Plaintiff offers absolutely no evidence that he was medically required to have access to his
wheelchair at all times, or that he suffered any actual harm or risk of serious harm.

28

all to either Defendant about the allegedly unsanitary conditions of the cell. However,
even if there were evidence that Bear or Dyer had any personal involvement in the alleged
deprivations (a prerequisite to liability), the alleged temporary discomfort does not rise to
the level of an Eighth Amendment violation.
It is true that conditions-of-confinement cases are highly fact-specific. However,
“[i]n general, the severity and duration of deprivations are inversely proportional, so that
minor deprivations suffered for short periods would not rise to an Eighth Amendment
violation, while ‘substantial deprivations of shelter, food, drinking water, and sanitation’
may meet the standard despite a shorter duration.” DeSpain v. Uphoff, 264 F.3d 965, 974
(10th Cir. 2001) (emphasis added internal citation omitted). The initial placement of
Plaintiff in a disciplinary cell with clean clothing but without undergarments, and/or without
more than one sheet and blanket, is not a “substantial deprivation” under the requisite
standards. See Grissom v. Davis, 55 Fed. Appx. 756, 757 (6th Cir. 2003)(deprivation of
a mattress, blankets or other bedding for six days did not violate the Eighth Amendment).
Leaving aside for a moment the question of whether dirt, bloodstains, and mold
could up the ante sufficiently to meet the objectively “serious” standard required by the
Eighth Amendment, there is no question that both Defendants also are entitled to
summary judgment based upon Plaintiff’s failure to prove the subjective element of his
claim.

“A

prison

official

cannot

be

found

liable...

for

denying

an

inmate

humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of harm exists, and he must
also draw the inference.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1979. Plaintiff has
29

produced no evidence to suggest that either Bear or Dyer were aware of any serious
health or safety concern posed by Plaintiff’s placement in the cell. Proof of the subjective
component as to each Defendant is required, as the Supreme Court has long rejected “a
reading of the Eighth Amendment that would allow liability to be imposed on prison
officials solely because of the presence of objectively inhumane prison conditions.” Id. at
838 (quoting Wilson v. Seiter, 501 U.S. 294, 299-300, 111 S. Ct. 2321, 2324-2326
(1991)).
Not only is there no evidence that either Bear or Dyer were actually aware of
inhumane conditions, but Plaintiff does not even allege that he complained to Bear or
Dyer, or that he requested any cleaning supplies or change to a different K2 cell. Instead,
Plaintiff’s construed amended complaint alleges that after he was “left in the cell,” he “sat
on the steel bunk, only to observe the blood all over the floor walls and sink of this
disgusting condemned moldy cell.” (Doc. 10). In other words, Plaintiff implies that only
after he was left alone in the cell did he first observe the allegedly unsanitary conditions.
It is beyond dispute that liability under § 1983 must be based on active unconstitutional
behavior, not on a failure to act. See Green v. Barber, 310 F.3d 889, 899 (6th Cir.
2002); Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998) (liability must be
based upon active unconstitutional behavior).
A copy of a grievance submitted by Plaintiff in opposition to summary judgment is
consistent with the conclusion that neither Bear nor Dyer were aware of Plaintiff’s
complaints or actively caused the conditions about which Plaintiff complains.

The

grievance is dated January 20, 2017, the day after he was moved to the offending cell.
The Informal Complaint Resolution (“ICR”) is addressed to the Warden and Institutional
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Inspector Mahlman, not to Defendants. In his ICR, Plaintiff complains that he was moved
to a cell
without my wheelchair or any accessibility. Furthermore these conditions
are too much for anyone to go through. The cells and ground are corroded,
and depressing, blood, mold & guck are on the entire surface of this unit.
No recreation. No TV. No phone, J-pays are not being returned with reply
stamp. I have not had my hygiene, or legal property etcetera. No change
of uniforms, no letters, no electronics, constant lights. You are purposely
ruining our relationships all for the purpose of oppression. No blanket,
sheet. Inappropriate supervising CO’s etcetera, nurses, and supervisors
threatening and disrespecting 24 hours. If you are not going to do anything
about this we need grievances because we had enough. Do something or
send Grievance form. This is extreme and outrageous.
The ICR bears the names of six inmates. (Doc. 116 at 74). The response by Warden
Erdos instructs the six inmates (including Plaintiff) that grievances must be individual in
nature, and submitted to the appropriate supervisor. The response also explains how to
obtain additional grievance forms in order to make an individual complaint.
Even if Plaintiff had produced evidence that Bear and Dyer possessed a “sadistic
and malicious” intent to harm him when they placed him in the disciplinary segregation
cell, and/or that they were made aware of the allegedly unsanitary conditions and refused
to provide a remedy, the Defendants still would be entitled to judgment because Plaintiff
cannot prove the objective component of his claim. While the alleged filth arguably was
a more serious deprivation than the temporary denial of underwear, the conditions of
which Plaintiff complains still fail to rise to the level of a constitutional deprivation, in the
absence of any showing of harm.
Cases alleging unsanitary prison conditions are quite common. Yet few cases rise
to the level of a constitutional deprivation. That is because the Eighth Amendment is only
concerned with “deprivations of essential food, medical care, sanitation,” or “other
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conditions intolerable for prison confinement.” Rhodes v. Chapman, 452 U.S. 337, 348,
101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). “Not every unpleasant experience a prisoner might
endure while incarcerated constitutes cruel and unusual punishment within the meaning
of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir.1987).

Not

infrequently, inmates deliberately cause unsanitary conditions as a means of protest, or
because they are mentally ill. Colloquially speaking, the “yuck” factor influences the
assessment of the severity of the deprivation to sanitation and level of risk to health and
safety. For example, cases involving large amounts of raw sewage tend to evoke greater
concern than small puddles or stains.
In assessing the objective risk, courts take a commonsense approach. Here,
Plaintiff has not alleged that he suffered any injury from his alleged exposure to grime
and bloodstains. There is no dispute that the cell was equipped with a working sink. And
Plaintiff does not allege that he requested cleaning supplies or a cell change, or that he
made any complaint to anyone prior to his submission of the January 20, 2017 ICR.
In a multitude of cases, courts have held that even fairly long exposure to
unsanitary conditions will not satisfy the objective component of the Eighth Amendment
in the absence of any physical harm. See e.g. Keel v. Davidson County Sheriff’s Office,
2015 WL 799724 *3 (M.D. Tenn. Feb. 25, 2015) (“Multiple courts have found that
exposure to leaking sewage in a prison cell with no accompanying physical harm is
insufficient to satisfy the objective component of a constitutional violation,” collecting
cases and granting summary judgment to defendants where inmate complained of
sewage leak above his cell for 3 weeks before a work order was placed, but alleged no
physical harm); Antonelli v. Walters, 2009 WL 921103 at *20 (E.D. Ky. March 31, 2009)
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(claim of leak and raw sewage in cell resulting from failure to maintain pipe chase failed
to state Eighth Amendment violation in the absence of allegation of physical harm);
Gofarth v. Sumner County, 2013 WL 1943020 at *3 (M.D. Tenn. May 9, 2013)
(confinement in cell with door covered with feces failed to state claim under 8th
Amendment where no injury occurred); Lamb v. Howe, 677 Fed. Appx. 204 (6th Cir. 2017)
(upholding dismissal for failure to state a claim, when prisoner alleged that he was denied
a mop with which to clean up a cell flooded with several inches of toilet water by
neighboring inmates who intentionally flooded their cell, and that he slipped and fell
causing head injury that required stitches).

Based on the referenced case law, as

unpleasant and distasteful as Plaintiff’s cell conditions may have been, they were not so
inhumane or intolerable as to violate the objective standards of the Eighth Amendment
as a matter of law, in the absence of any physical injury.

Accord McGowan v. Cantrell,

2007 WL 2509704 at *11 (E.D. Tenn. Aug. 30, 2007) (“Although the smearing of feces,
urine, blood, and other body fluids on the prisons walls contributes to an unhealthy
environment, McGowan has not shown that it presented a substantial serious risk to his
health and defendants knew of and disregarded that risk.”)
4. Qualified Immunity
Last, Defendants Bear and Dyer are entitled to qualified immunity on both claims.
The purpose of qualified immunity is to provide governmental officials with the ability
“reasonably to anticipate when their conduct may give rise to liability for damages.” See
Anderson v. Creighton, 483 U.S. 635, 646 (1987) (internal quotation omitted). Thus, a
governmental official performing discretionary functions will be entitled to qualified
immunity unless his actions violate “clearly established statutory or constitutional rights
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of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). A governmental official is entitled to immunity if the facts alleged do not make
out a violation of a constitutional right, or if the alleged constitutional right was not clearly
established at the time of the defendant’s alleged misconduct. Pearson v. Callahan, 129
S.Ct. 808 (2009).
Plaintiff does not suggest that the Defendants acted outside their authority as
correctional officers. For the reasons previously discussed, Plaintiff’s allegations fall short
of establishing any Eighth Amendment claim. Moreover, because neither Defendant is
alleged to have had any personal involvement in the conditions of the disciplinary
segregation cell, both Defendants are entitled to qualified immunity on that claim. See
also, generally, Ruiz-Bueno III v. Scott, 639 Fed. Appx. 354 (6th Cir. Feb. 2, 2016)
(holding that defendants were entitled to qualified immunity because confinement in a cell
that fell below minimal standards of decency did not violate clearly established law).
V. Plaintiff’s Third Motion for Summary Judgment
Given the extensive analysis provided above, there is little more to say about
Plaintiff’s third motion for summary judgment. As with his prior motions for summary
judgment, the vast majority of Plaintiff’s third motion concerns claims and Defendants
previously dismissed by this Court under prior rulings, including but not limited to prior
screenings under 28 U.S.C. § 1915 and the Court’s grant of judgment on multiple claims
to most Defendants. Most of Plaintiff’s exhibits predate the time frame and/or do not
concern any issue that remains in this case. The few exhibits that are relevant to the two
remaining claims against Defendants Bear and Dyer have been fully considered in the
context of Defendants’ motion.
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VI. Conclusion and Recommendations
For the reasons discussed above, IT IS RECOMMENDED THAT:
1. Defendants’ Motion for Summary Judgment (Doc. 113) should be GRANTED,
with all remaining claims to be dismissed, and this case to be closed;
2. Plaintiff’s (third) Motion for Summary Judgment (Doc. 108) should be DENIED;
3. Following the entry of judgment in favor of the Defendants, this case should be
CLOSED;
4. Consistent with this Report and Recommendation, Plaintiff’s motion to strike
the Defendants’ Notice and/or motion to strike the video exhibit submitted in
support of Defendants’ motion for summary judgment (Doc. 120) should be
DENIED.

/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
CHRISTOPHER FOSTER,

Case No. 1:16-cv-920

Plaintiff,

Black, J.
Bowman, M.J.

v.
STATE OF OHIO, 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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