Haywood v. Gifford et al

Filing 54

ORDER adopting 53 Report and Recommendation, granting 46 Gifford's Amended Motion for Summary Judgment, denying as moot 44 Gifford's original Motion for Summary Judgment, and denying 51 Haywood's Motion for Summary Judgment. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Order would not be taken in good faith. Signed by Judge Douglas R. Cole on 9/29/21. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAYMOND HAYWOOD,
Plaintiff,
Case No. 1:17-cv-398
JUDGE DOUGLAS R. COLE
Magistrate Judge Litkovitz

v.
NICHOLAS GIFFORD,
Defendant.

ORDER
This cause comes before the Court on the Magistrate Judge’s July 21, 2021,
Report and Recommendation (“R&R”) (Doc. 53). The Magistrate Judge recommends
that the Court DENY AS MOOT defendant Gifford’s Motion for Summary Judgment
(Doc. 44), GRANT defendant Gifford’s Amended Motion for Summary Judgment
(Doc. 46), DENY plaintiff Haywood’s Motion for Summary Judgment (Doc. 51), and
CERTIFY pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of this Order would not
be taken in good faith.
The R&R advised both parties that failing to object within the 14 days
specified by the R&R could result in forfeiture of rights on appeal, which includes the
right to District Court review. (See Doc. 53, #388). See also Thomas v. Arn, 474 U.S.
140, 152 (1985) (“There is no indication that Congress, in enacting § 636(b)(1)(C),
intended to require a district judge to review a magistrate’s report to which no
objections are filed.”); Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (noting
“fail[ure] to file an objection to the magistrate judge’s R&R … is forfeiture”); 28 U.S.C.

§ 636(b)(1)(C). Accordingly, the parties here needed to object by August 4, 2021. The
time for filing objections has since passed, and no party has objected.
Although no party has objected, the advisory committee notes to Federal Rule
of Civil Procedure 72(b) suggest that the Court still must “satisfy itself that there is
no clear error on the face of the record in order to accept the recommendation.” See
also Mavrakis v. Warden, No. 5:17-cv-2398, 2018 WL 4104187, at *3 (N.D. Ohio Aug.
28, 2018) (reviewing for clear error absent an objection to a Magistrate Judge’s R&R);
Mason v. Comm’r. Soc. Sec., No. 1:10 CV 2456, 2011 WL 3022016, at *1 (N.D. Ohio
July 22, 2011) (same); Malone v. Nike, No. 2:18-cv-02505-TLP-cgc, 2020 WL 4106316,
at *2 (W.D. Tenn. July 20, 2020) (same).
The Court has reviewed the Magistrate Judge’s R&R and determined that it
does not contain “clear error on [its] face.” Fed. R. Civ. P. 72(b) (advisory committee
notes). Haywood sues under 42 U.S.C. § 1983, which prohibits any person “under
color of any statute, ordinance, regulation, custom, or usage, of any State” from
depriving a United States citizen or other person within the jurisdiction thereof “of
any rights, privileges or immunities secured by the Constitution and laws.” According
to Haywood, Gifford transgressed that statutory command by violating the Eighth
Amendment.
As the R&R explains, the Eighth Amendment protects a prisoner’s right to be
free from the use of “excessive force” by prison officials. (See Doc. 53, #381 (citing
Whitley v. Albers, 475 U.S. 312, 327 (1986))). In determining whether the use of force
at issue in a given suit was “excessive,” the “core judicial inquiry is … whether force

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was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).
In a thorough and well-reasoned opinion, the Magistrate Judge concludes that
there is no genuine dispute of material fact that Gifford used the force at issue here
in a good-faith effort to restore discipline. Haywood has testified that he “acted out”
and actively resisted Gifford’s efforts to return Haywood to his cell, including
disobeying Gifford’s direct order to return to his cell. (See Pl. Deposition, Doc. 40-1,
#173–74). This interaction was recorded on video, which confirms Haywood’s
acknowledgment that he physically resisted Gifford’s efforts to return him to his cell.
(See Def. Mot. for Summ. J., Doc. 44-1, Ex. A).
In short, the Court finds no clear error in the Magistrate Judge’s determination
that the use of force here was consistent with the Eighth Amendment. Accordingly,
the Court ADOPTS the Report and Recommendation (Doc. 53). The Court thus
GRANTS Gifford’s Amended Motion for Summary Judgment (Doc. 46) and DENIES
AS MOOT Gifford’s original Motion for Summary Judgment (Doc. 44). The Court
further DENIES Haywood’s Motion for Summary Judgment (Doc. 51). Finally, the
Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons
an appeal of this Order would not be taken in good faith.
The Court ORDERS the Clerk to enter final judgment in Gifford’s favor and
to TERMINATE this case on the docket.

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SO ORDERED.
September 29, 2021
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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