McDougald v. Dillow et al

Filing 59

ORDER adopting Report and Recommendations re 55 Report and Recommendation granting 43 Motion for Summary Judgment and denying 34 Motion for Summary Judgment; finding as moot 40 Motion to Appoint Counsel; finding as moot 47 Motion to St rike; finding as moot 53 Motion to Amend/Correct; finding as moot 54 Motion to Amend/Correct; and finding as moot 58 Motion to Amend/Correct. Signed by Judge Michael R. Barrett on 9/20/18. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION CINCINNATI
JERONE MCDOUGALD,
Plaintiff,
Case No.1:16-CV-01099-MRB
vs.
Judge Michael R Barrett
MICHAEL DILLOW, ET AL.,
Defendants.
ORDER
This matter is before the Court on the magistrate judge’s report (Doc. 55) recommending
denial of Plaintiff’s motion for summary judgment (Doc. 34), and the granting of Defendants’
motion for summary judgment (Doc. 43). The magistrate judge recommended that the remainder
of Defendants’ motions (Docs. 40, 47, 53, 54) be denied as moot.
On August 15, 2018, Plaintiff filed objections to the R&R (Doc. 56), and Defendants
responded (Doc. 57). This matter is ripe for disposition.
I.

BACKGROUND
Plaintiff, an inmate at Southern Ohio Correctional Facility, alleges unconstitutional use of

excessive force, denial of medical care, and first amendment retaliation. (Doc. 1) Although the
Court will not reiterate the factual background of this case (which was accurately summarized by
the magistrate judge in the R&R), unless necessary to address specific objections, the Court does
wish to independently recognize Plaintiff’s lengthy litigation history in this and other courts. To
the extent that Plaintiff seeks leniency for defects in his papers, given his pro se status, the Court
finds his following bolded cases filed in the Southern District of Ohio relevant to his notice of
the rules governing summary judgment:
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(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)

1:08-cv-744 (claim of excessive force during arrest);
1:16-cv-317 (First Amendment retaliation claims);
1:16-cv-497 (Eighth Amendment claims regarding use of pepper spray on
multiple dates);
1:16-cv-500 (claim relating to medical care for colitis, including allegedly
prescribed high calorie diet);
2:16-cv-545 (claim regarding failure to provide kosher meals).
1:16-cv-900 (claims regarding use of pepper spray and retaliation);
1:17-cv-72 (involuntary blood draw);
1:17-cv-91 (alleged violation of due process rights in RIB hearing, and retaliation
claim);
1:17-cv-95 (claim regarding use of pepper spray);
1:17-cv-124 (claim regarding use of pepper spray);
1:17-cv-127 (claim regarding “flood of biocontaminate” in cell);
1:17-cv-196 (retaliation claim);
1:17-cv-464(involuntary blood draw);
1:18-cv-80 (pepper spray incident of August 7, 2017);
1:18-cv-93 (September 28, 2017 alleged attack and denial of medical treatment);
1:18-cv-135 (same September 28, 2017 incident);

The magistrate judge noted that Plaintiff appears to be equally litigious in state court, which
follows virtually identical summary judgment practices.

II.

STANDARD
When objections to a magistrate judge’s order are received on a dispositive matter, the

assigned district judge “must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review, the district judge
“may accept, reject, or modify the recommended decision; receive further evidence; or return the
matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
Rule 72 requires objections to be “specific”:
Each objection to the magistrate judge's recommendation should
include how the analysis is wrong, why it was wrong and how de
novo review will obtain a different result on that particular issue.
Merely restating arguments previously presented, stating a
disagreement with a magistrate judge's suggested resolution, or
simply summarizing what has been presented before is not a
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specific objection that alerts the district court to the alleged errors
on the part of the magistrate judge.
Martin v. E.W. Scripps Co., No. 1:12CV844, 2013 U.S. Dist. LEXIS 155673, at *5 (S.D. Ohio
Oct. 30, 2013) (citations omitted). “A general objection which does not specify the issues of
contention is tantamount to filing no objections at all and does not satisfy the requirement that
objections be filed.” Allen v. Ohio Dep't of Rehab. & Correction, 202 F.3d 267 (6th Cir. 1999).
III.

ANALYSIS
Plaintiff objects as follows: (1) “it was an error in the context of the entire record for [the]

magistrate [judge] to find that plaintiff failed to prove eighth amendment excessive force claims”
(Doc. 56, PageID 427); (2) “it was an error in the context of the entire record for the magistrate
[judge] to find that plaintiff’s claim for denial of medical care fails as a matter of law” (id. at
429) (3) “it was an error in the context of the entire record for the magistrate [judge] to fail to
allow plaintiff to amend his summary judgment and complaint to add the required declarations”
(id. at 430); (4) “it was an error in the context of the entire record for the magistrate [judge] to
find plaintiff failed to prove retaliation claims” (id. at 431); (5) “defendants are not entitled to
qualified immunity” (id. at 432).
The Court will begin with Plaintiff’s third objection, because Plaintiff’s reliance on his
prior allegations without the support of affidavits or declarations bears on his ability to sustain
his summary judgment obligations, both as a movant and as an opponent. 1 Plaintiff filed his
motion for summary judgment (Doc. 34) on January 16, 2018, without the support of any
affidavit or declaration. Over four months later, after Defendants filed their own motion for

1

The summary judgment standard was accurately stated by the magistrate judge. (Doc. 55, PageID 410-11).

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summary judgment and Plaintiff opposed, 2 Plaintiff requested leave to submit an untimely
declaration—blaming his failure to submit his declaration earlier on the prison notary who
refused to notarize Plaintiff’s declaration. (Doc. 53, PageID 397). The Court is unmoved by
Plaintiff’s plea for leniency, for the following reasons: (1) having filed at least seventeen civil
rights cases in this Court, Plaintiff is well aware of the important role declarations play at the
summary judgment phase; (2) if Plaintiff had timely sought notarization of his papers, Plaintiff
could and should have apprised the Court of the notary’s refusal in his motion (Doc. 34) and/or
opposition (Doc. 52), rather than waiting four months to seek leave to file his declaration; (3)
Plaintiff’s motion for leave tellingly omits information regarding when he approached the prison
notary, and was allegedly refused the requested notarization; and (4) legally, declarations need
not be notarized if they otherwise comply with 28 U.S.C. § 1746. See, e.g., Enyart v. Franklin
Cty., No. 2:09-CV-687, 2012 U.S. Dist. LEXIS 70937, at *2-3 n.1 (S.D. Ohio May 22, 2012)
(“The affidavit need not be notarized. It is sufficient if the affiant makes an unsworn declaration
under penalty of perjury in the following form: ‘I declare under penalty of perjury under the laws
of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature).’”). Accordingly, Plaintiff’s third objection is not well taken.
Plaintiff’s reliance on conclusory assertions is fatal to the remainder of his objections, as
he fails to offer other evidence creating genuine disputes of material fact on his claims of
excessive force, denial of medical care, and retaliation. Defendants offer significant evidence in
the form of incident reports and medical evaluation forms supporting that: (a) pepper spray was
used to subdue Plaintiff after he endangered corrections officers by refusing to let go of a loose

2

It bears noting that, initially, Plaintiff did not file a memorandum in opposition to Defendants’ motion for summary
judgment. He was prompted to file by the magistrate judge’s show cause order. (Doc. 48).

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cuff; and (b) despite Plaintiff’s obstructive behavior, Plaintiff was offered decontamination and
was seen by a nurse shortly after he was sprayed (Doc. 43-7; PageID 296, 298-301, 304) (Doc.
43-3, PageID 271)(Doc. 43-2, PageID 268)(Doc. 43-1, PageID 264). Defendants also submitted
video footage consistent with Defendants’ assertions that Plaintiff was sprayed after he refused
to release a loose cuff. (Doc. 43-11) (see 8:16:09-8:16:23). 3 In response to this evidence,
Plaintiff offers conclusory allegations (again, without even the support of an affidavit or
declaration). Specifically, on the excessive force claim, Plaintiff asserts that Defendants gave a
“fabricated version of events” (Doc. 52, PageID 385, 389); on the denial of medical care claim,
Plaintiff asserts that Defendants (in particular Nurse Reiter) gave false information (id. at 385);
and, on the retaliation claim, Plaintiff offers only conclusory allegations that the use of pepper
spray was motivated by “filing lawsuits” (Doc. 52, PageID 391) rather than his violation of
penological rules (i.e., his failure to release a loose cuff). On this record, Plaintiff simply cannot
sustain his summary judgment burden. Likewise, Plaintiff’s arguments regarding qualified
immunity also fail, because it is Plaintiff’s burden to show that Defendants are not entitled to
qualified immunity. Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009) (“When, as here, a
defendant raises qualified immunity as a defense, the plaintiff bears the burden of demonstrating
that the defendant is not entitled to qualified immunity.”). Accordingly, the remainder of
Plaintiff’s objections are not well taken. 4

3

Plaintiff claims that “Defendant Osborne . . . places the pair of cuffs up to the cell entrance to make it look like
Plaintiff had a hold of the handcuffs[.]” (Doc. 56, PageID 425). The officers were visible during the relevant period
of time. The video footage does not show any officer “placing cuffs” up to the cell.
4
It bears noting that the Court is not entirely convinced that Plaintiff’s objections comply with Rule 72’s specificity
requirement. Nonetheless, the Court still considered the merits of the objections.

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IV.

CONCLUSION
Therefore, consistent with the above, Plaintiff’s objections (Doc. 56) are OVERRULED

and the R&R (Doc. 55) is ADOPTED IN ITS ENTIRETY. Accordingly:
(a) Plaintiff’s motion for summary judgment (Doc. 34) is DENIED;
(b) Defendants’ motion for summary judgment (Doc. 43) is GRANTED; and
(c) The remainder of the pending motions (Doc. 40, 47, 53-54, 58) are DENIED AS
MOOT.
This matter is closed and terminated from the active docket of this Court.
IT IS SO ORDERED.
s/Michael R. Barrett
__________________________
United States District Judge

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