Haywood v. Gifford et al

Filing 53

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Defendants motion for summary judgment (Doc. 44 ) be DENIED as moot, and defendants amended motion for summary judgment (Doc. 46 ) be GRANTED. 2. Plaintiffs motion for summary judgm ent (Doc. 51 ) be DENIED. 3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Court Order adopting this Report and Recommendation would not be taken in good faith. Objections to R&R due by 8/4/2021. Signed by Magistrate Judge Karen L. Litkovitz on 07/19/2021 (bjc)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 1 of 15 PAGEID #: 374

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAYMOND HAYWOOD,
Plaintiff,
vs.
NICHOLAS GIFFORD,
Defendant.

Case No. 1:17-cv-398
Cole, J.
Litkovitz, M.J.
REPORT
AND RECOMMENDATION

Plaintiff Daymond Haywood, a former inmate at the Southern Ohio Correctional Facility
(“SOCF”), filed this pro se prisoner civil rights action under 42 U.S.C. § 1983 alleging that on
February 20, 2017, defendant SOCF Corrections Officer Nicholas Gifford (“Gifford”) used
excessive force against him in violation of his Eighth Amendment rights. (Doc. 10). 1 This
matter is before the Court on defendant’s amended motion for summary judgment (Doc. 46), 2
plaintiff’s response in opposition (Doc. 49), plaintiff’s motion for summary judgment (Doc. 51),
and defendant’s response memorandum (Doc. 52).
I. Factual Background
In support of his motion for summary judgment, Gifford has submitted his own
declaration (Doc. 44-4, Exh. D), the Use of Force Report (“UOF Report”) (Doc. 44-2, Exh. B), 3
and a video recording (Doc. 44-1, Exh. A) that captures the entire incident that occurred on
February 20, 2017.

Plaintiff’s remaining claims were dismissed on sua sponte screening of the complaint under 28 U.S.C. §§
1915(e)(2)(B), 1915A(b). (Docs. 11, 15).
2
The Court notes that defendant filed a motion for summary judgment (Doc. 44) and four days later filed an
amended motion for summary judgment (Doc. 46) without providing a reason why the motion was amended.
Defendant’s initial motion for summary judgment is denied as moot and this Report and Recommendation is before
the Court on defendant’s amended motion for summary judgment (Doc. 46).
3
The statements by plaintiff, defendant, and other individuals that are reflected in the UOF Report, which have been
offered as evidence on summary judgment, are not sworn statements. The Court therefore has not considered these
statements in determining whether there is a genuine factual dispute in the case.
1

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 2 of 15 PAGEID #: 375

On that day, Gifford was assigned to the K2 housing unit of SOCF where plaintiff was
housed. (Doc. 44-4, Exh. D Gifford Decl., ¶ 4). Gifford selected plaintiff’s cell as “one of the
random required daily searches for contraband[.]” (Id. at ¶ 5). Plaintiff was in the shower while
Gifford was conducting the search of plaintiff’s cell. (Id.). Gifford “found several items of
contraband including food trays and lids, empty milk cartons and a trash bag” inside plaintiff’s
cell. (Id. at ¶ 6). Gifford took these items out of plaintiff’s cell and placed them on a cart in the
hallway. (Id. at ¶ 11; Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:45:30-7:45:36). After returning
from the shower, plaintiff was placed in a nearby empty cell while Gifford finished searching
plaintiff’s cell. (Doc. 44-4, Exh. D Gifford Decl., ¶ 9). After removing the contraband from
plaintiff’s cell, Gifford “attempted to escort” plaintiff back to his assigned cell. (Id. at ¶¶ 12-13;
Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:45:56-7:45:59).
Plaintiff was handcuffed with his hands behind his back during the escort. (Doc. 44-1,
Exh. A. SOCF K-2 61-80, 7:45:56-7:46:02). Gifford states that during the escort, plaintiff made
a “verbal threat.” (Doc. 44-4, Exh. D Gifford Decl., ¶ 13). Plaintiff also “kicked a food tray that
was on the floor[.]” (Id.; Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:45:58-7:46:00). Plaintiff
continued walking past his assigned cell after kicking the food tray. (Id. at ¶¶ 13-14; Doc. 44-1,
Exh. A. SOCF K-2 61-80, 7:46:00-7:46:02). Gifford “attempted to escort [plaintiff] into his
assigned cell by placing [his] hands on [plaintiff’s] arms.” (Doc. 44-4, Exh. D Gifford Decl., ¶
14). Plaintiff turned toward Gifford and “began actively resisting with physical force.” (Id.;
Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:46:02-7:46:08). A struggle ensued between plaintiff and
Gifford. (Id.). Gifford eventually broke contact with plaintiff because he was unable to obtain
plaintiff’s compliance. (Id. at ¶ 15; Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:46:06-7:46:08).

2

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 3 of 15 PAGEID #: 376

Gifford deployed a burst of oleoresin capsicum (“OC”) spray to plaintiff’s face. (Id.;
Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:46:08-7:46:10). Plaintiff, still handcuffed, turned around
with his back facing Gifford. (Id.; Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:46:12-7:46:17).
Gifford “again attempted to place [plaintiff] in his cell using an arm escort technique.” (Id. at ¶
15). Plaintiff, however, placed “one hand and both knees on the cell doorway, prohibiting
[Gifford] from placing [plaintiff] in his assigned cell.” (Id. at ¶ 16; Doc. 44-1, Exh. A. SOCF K2 61-80, 7:46:19-7:46:29). Gifford continued to “use verbal commands along with escort
techniques to gain [plaintiff’s] compliance.” (Id. at ¶ 17). Gifford pushed plaintiff against the
bars that lined the hallway. (Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:46:30-7:46:53). Plaintiff
fell to the floor. (Id.). Gifford again pushed plaintiff into the hallway bars but was unable to
gain plaintiff’s compliance. (Id.). Plaintiff turned his back to Gifford and grabbed the hallway
bars. (Id.; Doc. 44-4, Exh. D Gifford Decl., ¶ 17). Gifford deployed a second burst of OC spray
onto plaintiff in an attempt to gain plaintiff’s compliance. (Doc. 44-4, Exh. D Gifford Decl., ¶
18). Plaintiff kicked items on the ground and continued to hold onto the hallway bars. (Doc. 441, Exh. A. SOCF K-2 61-80, 7:46:55-7:47:14). Three additional corrections officers ran down
the hallway and assisted Gifford. (Id. at 7:46:55-7:47:20). Plaintiff was eventually “placed into
his cell after another corrections officer pried [plaintiff’s] hands from the hallway bars and
escorted [plaintiff] in his assigned cell.” (Id. at ¶ 19).
The UOF Report includes a Medical Exam Report which indicates that plaintiff was
evaluated by a nurse following the use of force incident. (Doc. 44-2, Exh. B at PAGEID 303).
The nurse made objective physical findings that plaintiff was alert and oriented; his respirations
were even and unlabored; he had visible redness to his face and neck area related to OC
contamination; and he had open abrasions on the lateral sides of his left wrist. (Id.).

3

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 4 of 15 PAGEID #: 377

Plaintiff has not submitted any evidence in response to Gifford’s motion for summary
judgment. As best the Court can discern, it appears that plaintiff relies on the sworn allegations
in his verified complaint. 4 Plaintiff alleges that he was “assaulted multiple times” by Gifford on
February 20, 2017. (Doc. 10 at PAGEID 77). Specifically, plaintiff alleges that Gifford was
“shaking [his] cell down” when he was being escorted back from the shower. (Id.). Plaintiff
states that Gifford balled up paper and flushed the toilet multiple times after Gifford said, “so
you wanna write up my officers[?]” (Id.). Plaintiff further alleges that Gifford “said racial
comments about [his] property” and was then “sprayed with Oleoresin capsirum.” (Id.).
Plaintiff states that Gifford “assaulted” plaintiff with his bare hands, tried to “slam” him, and put
him “in a choke hold” causing the handcuffs to “ripe (sic) through [his] flesh around [his] wrists
until his right wrist flared up and swolled (sic) up, as well as [his] lower fore arm.” (Id.).
Plaintiff alleges he went limp when Gifford placed him in a choke hold. (Id.). Plaintiff alleges
he was sprayed with “O/C again” after he stood up. (Id.).
Defendant deposed plaintiff on September 30, 2020. (Doc. 40-1; see also Doc. 44-3,
Exh. C). Plaintiff testified that on February 20, 2017, he observed Gifford searching the inside
of plaintiff’s cell after plaintiff had returned from the shower. (Doc. 40-1, Pltf. Depo. at
PAGEID 163-64). Plaintiff was placed in a nearby cell while Gifford was finishing the search of
plaintiff’s cell. Plaintiff heard paper being ripped up and the toilet in his cell flush. (Id. at
PAGEID 164). Plaintiff testified that he did not witness Gifford destroy his property or mail.
(Id. at PAGEID 171). While being escorted, plaintiff kicked a tray out of anger and frustration
after hearing his property being ripped up and flushed down the toilet. (Id. at PAGEID 164).

Plaintiff’s verified complaint has the same force and effect as an affidavit for purposes of responding to a motion
for summary judgment under Fed. R. Civ. P. 56(e). Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993);
Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992).

4

4

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 5 of 15 PAGEID #: 378

Plaintiff said that his “shower shoe” came off when he kicked the tray and he went beyond his
cell to put his “shower shoe” back on. (Id. at PAGEID 209).
Plaintiff testified that he “refused to go [to his own cell] due to the fact that [he] heard
[Gifford] ripping up all [of his] property.” (Id. at PAGEID 168). Specifically, plaintiff testified:
“I acted out. I refused to go in the cell. When he [Gifford] tried to put me in the cell, I refused
to go and I asked for a white shirt.” (Id. at PAGEID 174). Plaintiff testified that he wanted a
“white shirt” to make sure “things was (sic) handled in the right way.” (Id. at PAGEID 164). 5
Plaintiff acknowledged that he disobeyed Gifford’s direct order to return to his cell. (Id. at
PAGEID 174). Plaintiff testified that he “did everything that [he] could not to go in the cell.”
(Id. at PAGEID 188).
Plaintiff testified that Gifford stepped back and “immediately” and “instantly” sprayed
him after he kicked the tray on the ground. (Id. at PAGEID 189, 197, 203). Plaintiff specified
that Gifford told him to go in his cell “three times.” (Id. at PAGEID 183). Later in the
deposition, however, plaintiff recalled only “one directive order” from Gifford to go into his cell.
(Id. at PAGEID 191). Plaintiff testified that he blacked out after Gifford sprayed him. (Id. at
PAGEID 186). Plaintiff clarified that “blackout” meant he remembered everything but could not
see anything. (Id. at PAGEID 186-87). Plaintiff testified, “I spazzed out where I just refused to
do anything he [Gifford] told me to do. He told me to go in the cell. I refused to go in the cell.
He tried to push me in the cell, force me in the cell, I refused to go, and then it turned into an
assault.” (Id. at PAGEID 187). Plaintiff testified that Gifford grabbed him by the arm trying to
push plaintiff into his cell. (Id. at PAGEID 210). Plaintiff testified that Gifford started punching
him and tried to slam him to the ground. Plaintiff stated that Gifford punched him again, and

5

The Court understands the phrase “white shirt” to mean a supervisory correctional officer.

5

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 6 of 15 PAGEID #: 379

plaintiff landed on his feet or knees and held onto the bars. Plaintiff testified that he “was trying
to get [his] shower shoe.” (Id. at PAGEID 211). He further testified that Gifford was shaking
and punching him (Id.); Gifford put plaintiff into a chokehold to try to pull him up from the bars;
and Gifford sprayed plaintiff a second time when plaintiff did not let go of the bars. (Id. at
PAGEID 189). Plaintiff testified that additional corrections officers grabbed plaintiff and put
him in his cell. (Id. at PAGEID 205-06).
II. Summary Judgment Standard
A motion for summary judgment should be granted if the evidence submitted to the Court
demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A grant of
summary judgment is proper unless the nonmoving party “establish[es] genuinely disputed
material facts by ‘citing to particular parts of materials in the record . . . or . . . showing that the
materials cited do not establish the absence . . . of a genuine dispute.’” United Specialty Ins. Co.
v. Cole’s Place, Inc., 936 F.3d 386, 403 (6th Cir. 2019) (quoting Fed. R. Civ. P. 56(c)(1)). The
Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable
to the non-moving party. Satterfield v. Tenn., 295 F.3d 611, 615 (6th Cir. 2002); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v.
OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).
The trial judge’s function is not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at
249. The trial court need not search the entire record for material issues of fact, Street v. J.C.

6

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 7 of 15 PAGEID #: 380

Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587. “When
opposing parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007). Where videotape evidence is submitted, courts view “the facts in the light depicted by
the videotape” for purposes of ruling on a motion for summary judgment. Id. at 380-81. See
also Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012) (“But where, as here, there is “a
videotape capturing the events in question,” the court must “view[] the facts in the light depicted
by the videotape.”) (quoting Id.).
Because plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United
States, 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999)
(pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings).
However, a party’s status as a pro se litigant does not alter the party’s duty on a summary
judgment motion to support his factual assertions with admissible evidence. Maston v.
Montgomery Cty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 851-52 (S.D. Ohio 2011) (citing
Viergutz v. Lucent Techs., Inc., 375 F. App’x 482, 485 (6th Cir. 2010)).
III. Eighth Amendment
Plaintiff’s Eighth Amendment claim is brought under 42 U.S.C. § 1983, which prohibits
any person “under color of any statute, ordinance, regulation, custom, or usage, of any State”

7

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 8 of 15 PAGEID #: 381

from depriving a United States citizen “of any rights, privileges or immunities secured by the
constitution and laws.” To prevail on a § 1983 claim, plaintiff must demonstrate “(1) the
deprivation of a right secured by the Constitution or laws of the United States (2) caused by a
person acting under the color of state law.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549
(6th Cir. 2009) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)).
A convicted prisoner’s right to be free from the use of excessive force by prison officials
is governed by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327 (1986). The “core
judicial inquiry” whenever a prison official stands accused of using excessive force is “whether
force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v.
McMillian, 503 U.S. 1, 7 (1992)); see also Roberson v. Torres, 770 F.3d 398, 406 (6th Cir. 2014)
(quoting Jennings v. Mitchell, 93 F. App’x 723, 725 (6th Cir. 2004)) (defendant corrections
officers applied force—spraying the prisoner with pepper spray—in a “good faith effort to
maintain or restore discipline, not to maliciously cause pain,” where the prisoner repeatedly
disobeyed the defendants’ direct orders to “sit cross-legged on his bunk and face the wall.”).
An Eighth Amendment claim has both an objective and subjective component. Cordell v.
McKinney, 759 F.3d 573, 580 (6th Cir. 2014) (citing Santiago v. Ringle, 734 F.3d 585, 590 (6th
Cir. 2013)). For an Eighth Amendment claim to survive the summary judgment stage, “the
prisoner must satisfy both [the] objective and a subjective component[s].” Brevaldo v.
Muskingum Cnty. Sheriff’s Off., No. 2:18-cv-446, 2020 WL 264352, at *5 (S.D. Ohio Jan. 17,
2020), report and recommendation adopted, 2020 WL 6536475 (S.D. Ohio Nov. 6, 2020)

8

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 9 of 15 PAGEID #: 382

(emphasis added) (quoting Rafferty v. Trumbull Cnty., Ohio, 915 F.3d 1087, 1093 (6th Cir.
2019)).
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. (quoting
Hudson, 503 U.S. at 7). See also Wilkins, 559 U.S. at 37. In making this inquiry, the Court
should 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, the extent of the injury
inflicted, and any efforts made to temper the severity of a forceful response. See Hudson, 503
U.S. at 7; Whitley, 475 U.S. at 319-21. The inmate is not required to suffer a serious injury, but
the extent of his injuries may be considered in determining whether the force used was wanton
and unnecessary. Wilkins, 559 U.S. at 38-40; Hudson, 503 U.S. at 7.
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); Hudson, 503 U.S. at 8). “The Eighth Amendment’s
‘prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.” Smith v. Bigham, No. 1:17-cv-128, 2018 WL
2100518, at *6 (S.D. Ohio May 7, 2018), report and recommendation adopted, 2018 WL
2735648 (S.D. Ohio June 7, 2018) (emphasis in original) (quoting Wilkins, 559 U.S. at 37-38).
But “the de minimis inquiry is based on the nature of the force rather than the extent of the
injury.” Montgomery v. Whitman, No. 2:19-cv-129, 2020 WL 5250461, at *4 (S.D. Ohio Sept.
3, 2020) (emphasis added) (quoting Wilkins, 559 U.S. at 34). “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.” Cordell, 759 F.3d at 580-81 (citing
9

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 10 of 15 PAGEID #: 383

Wilkins, 559 U.S. at 37). “When prison officials maliciously and sadistically use force to cause
harm, contemporary standards of decency always are violated . . . [w]hether or not significant
injury is evident. 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
581 (internal quotations omitted) (quoting Hudson, 503 U.S. at 9). “[T]he key inquiry is whether
the force was objectively unreasonable in the circumstances.” Bullocks v. Hale, 478 F. Supp. 3d
639, 647 (S.D. Ohio 2020), aff’d, No. 20-3428, 2021 WL 1578198 (6th Cir. Mar. 1, 2021).
IV. Analysis
Defendant Gifford is entitled to summary judgment on plaintiff’s Eighth Amendment
excessive force claim as a matter of law. Plaintiff has not produced evidence to show there is a
genuine factual dispute as to whether Gifford violated plaintiff’s Eighth Amendment rights.
Gifford’s uses of force were reasonable under the circumstances to gain control over a
recalcitrant prisoner who was actively resisting direct orders to return to his cell.
The undisputed evidence shows that the force used by Gifford occurred in response to
plaintiff’s repeated failure to obey the direct orders of Gifford for plaintiff to return to his cell.
Specifically, the video recording demonstrates that Gifford was escorting plaintiff back to his
own cell when plaintiff kicked a tray that was on the ground and continued walking past the
opening to his cell. (Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:45:58-7:46:02). Gifford placed his
hands on plaintiff’s arms in an attempt to escort him into his assigned cell. (Id. at 7:46:027:46:03). The video shows plaintiff turning toward Gifford, then start to pull away. Gifford
attempts to place plaintiff against the wall while plaintiff continues to struggle. Gifford loses his
hold on plaintiff, steps away, and deploys a shot of OC spray at plaintiff.

10

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 11 of 15 PAGEID #: 384

There is no dispute that plaintiff actively resisted Gifford’s direct orders to return to his
cell. (Id. at 7:46:02-7:46:07; Doc. 44-4, Exh. D Gifford Decl., ¶¶ 14-15). Plaintiff testified:
Q. So explain to me what you mean by you acted out? What did you do?
A. I acted out. I refused to go in the cell. When he [Gifford] tried to put me in the
cell, I refused to go and I asked for a white shirt.
Q. So you actively resisted?
A. Right. But that didn’t give him [Gifford] no reason to assault me because I
refused, you know. He could have escorted me to the shower, locked me in the
shower, white shirt would have came.
***
Q. He gave you a direct order and you disobeyed that?
A. Right.
(Doc. 40-1, Pltf. Depo. at PAGEID 173-74). Plaintiff also testified: “I did everything that I
could not to go in the cell” (Id. at PAGEID 188), and “I did what I could not to go in the cell.
And that even pissed him [Gifford] off more.” (Id. at PAGEID 190).
There is also no dispute of fact that Gifford’s use of physical force in attempting to gain
control over plaintiff and his use of OC spray was reasonable under the circumstances. It was
only after plaintiff kicked the tray, walked past his cell, refused Gifford’s orders, and actively
resisted that Gifford used physical force and OC spray to gain control over plaintiff. See
Jennings, 93 F. App’x at 725 (“The videotape squarely demonstrates that [the plaintiff]
disobeyed repeated direct orders prior to the use of pepper spray.”). 6 By his own admission,
plaintiff physically resisted entering his cell. When Gifford was unable to physically place and
secure plaintiff against the wall, he then deployed OC spray to gain plaintiff’s compliance.
Courts have found the tailored use of chemical agents objectively reasonable in circumstances
involving threatening or aggressive behavior. See, e.g., Roberson, 770 F.3d at 406 (“the use of . .

Plaintiff’s allegations in his verified complaint, and testimony contained in his deposition, that he was immediately
and instantly sprayed with OC after he kicked the tray on the ground (Doc. 40-1, Pltf. Depo. at PAGEID 189, 197,
203; see Doc. 10 at PAGEID 77), is clearly refuted by the video evidence such that no reasonable jury could believe
it. Scott, 550 U.S. at 380. The video of the incident demonstrates that ten seconds elapsed between plaintiff kicking
the tray and Gifford’s use of OC spray. (Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:45:58-7:46:08).

6

11

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 12 of 15 PAGEID #: 385

. chemical agents against recalcitrant prisoners d[oes] not violate the Eighth Amendment”)
(emphasis added) (internal quotation marks and citation omitted); Thomas v. Greene, 201 F.3d
441 (6th Cir. 1999) (Table) (soaking a plaintiff’s back side with mace was objectively reasonable
where the plaintiff “was threatening and uncooperative throughout the [use of force]
incident[.]”). See also Jeter v. Ohio Dep’t of Rehab. & Corr., No. 1:17-cv-756, 2019 WL
5066851, at *6 (S.D. Ohio Oct. 9, 2019), report and recommendation adopted, 2020 WL 633300
(S.D. Ohio Feb. 11, 2020) (“Multiple courts including the Sixth Circuit repeatedly have held that
a short burst of pepper spray is not disproportionate to the need to control an inmate who has
failed to obey an order.”) (collecting cases). Plaintiff has not submitted evidence sufficient to
create a genuine issue of material fact as to whether Gifford’s use of physical force and first
deployment of OC spray was objectively unreasonable.
Plaintiff also alleges that Gifford used excessive force when he placed him in a
“chokehold” following Gifford’s first deployment of OC spray. (Doc. 10 at PAGEID 77; see
also Doc. 51 at PAGEID 358). Immediately following Gifford’s use of OC spray, the video
shows that plaintiff continued to be noncompliant with Gifford’s orders to return to his cell.
Plaintiff admitted that he “spazzed out” and “refused to do anything he [Gifford] told me to do.
He told me to go in the cell. I refused to go in the cell. He tried to push me in the cell, force me
in the cell, I refused to go, and then it turned into an assault.” (Doc. 40-1, Pltf. Depo. at
PAGEID 187). Gifford’s declaration and the video evidence further establish that Gifford
attempted to place plaintiff into his cell using an arm escort technique. Plaintiff actively resisted
by placing his hands and knees on the cell doorway. Gifford continued to use various escort
techniques to gain plaintiff’s compliance. Plaintiff fell to the ground and landed on his knees.
Gifford placed one hand on plaintiff’s arm and attempted to lift plaintiff’s upper body with his

12

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 13 of 15 PAGEID #: 386

other arm. Plaintiff continued to actively resist Gifford’s attempts to place plaintiff into his cell.
Gifford placed plaintiff against the cell bars, stepped back, and deployed a second short burst of
OC spray.
Additional corrections officers arrived and assisted Gifford. Gifford grabbed plaintiff’s
arms from behind, but plaintiff continued to hold onto the bars and would not let go. Another
corrections officer pried plaintiff’s hands from the bars before plaintiff was eventually placed
into his cell. (Doc. 44-1, Exh. A. SOCF K-2 61-80, 7:46:18-7:47:18). At no point in time does
the videotape show Gifford using his baton. (See Doc. 44-4, Exh. D Gifford Decl., ¶ 18).
Further, Gifford did not kick, hit, punch, or strike plaintiff in his efforts to gain plaintiff’s
compliance with his direct orders. In considering plaintiff’s disruptive course of conduct,
Gifford’s restraining technique was reasonably “applied in a good faith effort to maintain or
restore disciple” and not to “maliciously or sadistically cause harm.” Whitley, 475 U.S. at 319.
See Williams, 981 F.2d at 905 (holding, “in the prison context, good faith use of physical force
may be necessary to maintain prison security and discipline[.]”).
Plaintiff’s deposition testimony corroborates Gifford’s declaration and video evidence
showing the force used by Gifford was in response to plaintiff’s resistance. Plaintiff testified,
“And when he [Gifford] sprayed me, he told me to get in the cell. I said, I ain’t going in the cell
unless I see a white shirt. He grabbed me, tried to force me in the cell. When he grabbed me,
tried to force me in the cell, I did – I did everything that I could not to go in the cell.” (Doc. 401, Pltf. Depo. at PAGEID 188). There is no genuine dispute of fact that the force used by
Gifford was reasonable given plaintiff’s admittedly recalcitrant actions and refusal to obey direct
orders. See Burfitt v. Erving, No. 1:18-cv-260, 2019 WL 6481380, at *7 (S.D. Ohio Dec. 2,
2019), report and recommendation adopted, 2019 WL 7020383 (S.D. Ohio Dec. 20, 2019) (“The

13

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 14 of 15 PAGEID #: 387

undisputed evidence shows that plaintiff’s injuries were the result of defendants’ good faith
efforts to maintain and restore discipline.”).
Plaintiff has not introduced any evidence to counter the video and declarations showing
that Gifford’s use of force was reasonable. Accordingly, because plaintiff has failed to establish
a genuine issue of fact as to whether Gifford used excessive force during the February 20, 2017
incident at SOCF, summary judgment should be granted in favor of Gifford on plaintiff’s Eighth
Amendment excessive force claim.
V. Conclusion
The undisputed evidence shows that Gifford did not violate plaintiff’s Eighth
Amendment rights. Gifford is therefore entitled to summary judgment on plaintiff’s claim
against him.
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant’s motion for summary judgment (Doc. 44) be DENIED as moot, and defendant’s
amended motion for summary judgment (Doc. 46) be GRANTED.
2. Plaintiff’s motion for summary judgment (Doc. 51) be DENIED.
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal
of any Court Order adopting this Report and Recommendation would not be taken in good faith.
See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Date: 7/19/2021

_________________________
Karen L. Litkovitz
Chief United States Magistrate Judge

14

Case: 1:17-cv-00398-DRC-KLL Doc #: 53 Filed: 07/21/21 Page: 15 of 15 PAGEID #: 388

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAYMOND HAYWOOD,
Plaintiff,

Case No. 1:17-cv-398
Cole, J.
Litkovitz, M.J.

vs.
NICHOLAS GIFFORD,
Defendant.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation within FOURTEEN (14) DAYS after being
served with a copy thereof. This period may be extended further by the Court on timely motion
by either side for an extension of time. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party's objections WITHIN 14 DAYS after being served with a copy thereof. 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).

15