Austin v. Ashcraft et al

Filing 51

DECISION AND ENTRY adopting the Report and Recommendation of the United States Magistrate Judge (Doc. 42 ). Signed by Judge Timothy S. Black on 8/29/2024. (rrs)(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
JASON AUSTIN,
Plaintiff,

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vs.
JAMES ASHCRAFT, et al.,
Defendants.

Case No. 1:22-cv-159
Judge Timothy S. Black
Magistrate Judge Kimberly A.
Jolson

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 42).
This civil action is before the Court pursuant to the Order of General Reference to
United States Magistrate Judge Kimberly A. Jolson. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings and, on September 25, 2023, submitted a Report
and Recommendation (the “R&R”), recommending that Defendants’ motions for
summary judgment be granted in part. (Doc. 42). Defendants James Ashcraft and
Demetrius Yates filed objections. (Doc. 43). Plaintiff filed objections and supplemental
documentation with those objections. (Docs. 45, 46, 47).
I.

BACKGROUND

The Magistrate Judge provided a detailed factual background in the R&R, which
the undersigned incorporates herein. (Doc. 42 at 1-3). To provide a summary in the light
most favorable to Plaintiff as the non-moving party:
On December 10, 2021, Plaintiff was attacked by another inmate, requiring six
staples in his head. On December 14, 2021, while Plaintiff was in restrictive housing
pending investigation of the attack, Plaintiff had a seizure. Defendant Demetrius Yates

escorted Plaintiff to the infirmary, where Defendant James Ashcraft was stationed. After
Plaintiff was medically examined, Ashcraft and Yates began escorting Plaintiff back to
his cell when Plaintiff complained that he was lightheaded and dizzy. While still in the
infirmary, Ashcraft accused Plaintiff of faking his symptoms, slammed him to the
ground, and slapped his head several times. During the assault, Plaintiff was restrained
and not resisting. Yates witnessed the assault but did not intervene. Defendant John
Boykin, a dentist working in the infirmary, witnessed the assault from another room in
the infirmary but did not intervene.
After the assault, Yates escorted Plaintiff back to his cell. Defendant Berry
ordered Plaintiff’s cellmate, Michael Keister, to present his hands so Keister could be
restrained while Plaintiff was placed back in the cell. Keister refused to comply. Berry
warned Keister that he needed to comply or pepper spray would be used. Keister still
refused to comply, Berry sprayed Keister, and Keister was restrained and removed from
the cell. Plaintiff was then placed in the cell.
II.

STANDARDS OF REVIEW

A. Magistrate Judge’s R&R
Pursuant to 28 U.S.C. § 636(b), the District Court may refer dispositive motions to
a United States Magistrate Judge. Upon such reference, the Magistrate Judge must
timely submit a Report and Recommendation, providing a recommended disposition of
the motion, as well as proposed findings of fact. Id.; Fed. R. Civ. P. 72(b). Within 14
days of service of a Magistrate Judge's Report, the parties may serve and file specific
written objections to the Report for the District Judge's consideration. Id.
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If objections are filed, the District Judge “must determine de novo any part of the
magistrate judge's disposition that has been properly objected to...[and] may accept,
reject, or modify the recommended disposition....” Fed. R. Civ. P. 72(b)(3). Thus, the
district judge is not required to review de novo every issue raised in the original motion,
but only those matters from the Report and Recommendation that received proper
objections. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
“[W]hen no timely objection is filed, the court need only satisfy itself that there is
no clear error on the face of the record in order to accept the recommendation.” Fed. R.
Civ. P. 72 advisory committee’s notes (citations omitted). The Supreme Court has stated:
“It does not appear that Congress intended to require district court review of magistrate
judge's factual or legal conclusions, under a de novo or any other standard, when neither
party objects to these findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985).

B. Motion for Summary Judgment
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, 247–48 (1986). The moving party has the burden of showing the absence of
genuine disputes over facts which, under the substantive law governing the issue, might
affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must
be construed in a light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
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A party opposing a motion for summary judgment “may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 248.
III.

ANALYSIS

A.

Defendants Ashcraft and Yates

Plaintiff asserts an excessive use of force claim against Defendant Ashcraft and a
failure to intervene claim against Defendant Yates. The Magistrate Judge recommends
that summary judgment be denied as to Ashcraft and Yates because these claims “hinge[]
on a credibility determination that is reserved for a jury.” (Doc. 42 at 8). The Magistrate
Judge also recommends that these Defendants are not entitled to qualified immunity until
the factual disputes surrounding the assault are resolved because “there is sufficient
caselaw surrounding assaults on nonresistant or restrained plaintiffs to put Ashcraft on
notice that the force alleged violated the Eighth Amendment.” (Id. at 8-9).
Ashcraft and Yates first object to the Magistrate Judge’s recommendation, arguing
that summary judgment should be granted in their favor because “the legal issue is not
one of the credibility of the witnesses, but Plaintiff failing to offer [Fed. R. Civ. P.] 56
quality evidence that corroborates his version of the facts.” (Doc. 43 at 2).
This objection is not well-taken. Pursuant to Fed. R. Civ. P. 56(c)(4): “An
affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” And a “prisoner’s sworn
affidavit, standing alone, may create a genuine dispute of material fact that forecloses
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summary judgment…even if the record lacks corroborating evidence.” Lamb v.
Kendrick, 52 F.4th 286, 296 (6th Cir. 2022). Here, Plaintiff’s affidavit is made on
personal knowledge and, as the Magistrate Judge correctly recognized, creates a genuine
issue of material fact.
Ashcraft and Yates also argue that the Magistrate Judge erred by “ignor[ing] the
objective medical evidence demonstrating no assault occurred against Plaintiff.” (Doc.
43 at 7). But the Magistrate Judge did not ignore the medical evidence. (Doc. 42 at 5, 67). 1 And the Court agrees with the Magistrate Judge’s conclusion that, when viewing all
the evidence in light most favorable to Plaintiff, a reasonable jury could find that
Defendant Ashcraft used excessive force and Defendant Yates failed to intervene. 2
Accordingly, Ashcraft and Yates’s objections are OVERRULED.

B. Dr. Boykin
Plaintiff asserts that Defendant Dr. Boykin failed to intervene or report Plaintiff’s
assault after witnessing it. The Magistrate Judge recommends that Dr. Boykin’s motion
for summary judgment be granted because no reasonable juror could conclude that Dr.
Boykin “had reason to know the force he allegedly observed was excessive” or that Dr.
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Indeed, Ashcraft and Yates’s objections generally restate their prior arguments and are
essentially a disagreement with the Magistrate Judge’s conclusion. And a “party’s objections are
not sufficiently specific if they merely restate the claims made in the initial petition, ‘disput[e]
the correctness’ of a report and recommendation without specifying the findings purportedly in
error, or simply ‘object[ ] to the report and recommendation and refer[ ] to several of the issues
in the case.’” Bradley v. United States, No. 18-1444, 2018 WL 5084806, at *3 (6th Cir. Sept. 17,
2018) (quoting Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).
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The Magistrate Judge also recommends that the Court should grant summary judgment with
respect to any failure to report claim against Defendant Yates. (Doc. 42 at 11). Plaintiff did not
object to this conclusion.

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Boykin “had the means and opportunity to intervene and prevent the assault.” (Doc. 42
at 13-14). Plaintiff objects to the Magistrate Judge’s recommendation, arguing that any
reasonable person should recognize that force is excessive when used on a restrained
person and that any person with Dr. Boykin’s training would know to intervene. (Doc.
45 at 4-5).
As cited by the Magistrate Judge, for Dr. Boykin to be liable for failure to
intervene, Plaintiff must demonstrate that (1) Dr. Boykin observed or had reason to know
that excessive force would be or was being used, and (2) Dr. Boykin had both the
opportunity and the means to prevent the harm from occurring. Turner v. Scott, 119 F.3d
425, 429 (6th Cir. 1997)
Here, when viewing the record in Plaintiff’s favor, Dr. Boykin was in another
room when he witnessed Plaintiff being struck while he was shackled, on the ground, and
not resisting. And the Court agrees with Plaintiff that a reasonable jury could conclude
that, because Plaintiff was struck while shackled, on the ground, and not resisting, Dr.
Boykin observed or had reason to know that the force being used was excessive.
However, when viewing the record in Plaintiff’s favor, Dr. Boykin was not directly
involved in the circumstances surrounding the assault. Unlike Yates, who was in the
room while Ashcraft assaulted Plaintiff, Dr. Boykin was across the hallway. (See Doc.
42 at 14 (collecting cases)). And there are no facts suggesting that Ashcraft’s application
of force was prolonged to the point that Dr. Boykin would have opportunity and means to
prevent the assault. Accordingly, after de novo review, the Court agrees with the
Magistrate Judge that no reasonable jury could conclude that Dr. Boykin had both the
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opportunity and the means to prevent the harm from occurring and that Dr. Boykin is
entitled to summary judgment on Plaintiff’s failure to intervene claim. (Id. at 13-14).
Plaintiff’s objection as to Dr. Boykin is OVERRULED.

C.Quinlann Berry
Plaintiff asserts that Defendant Berry subjected him to cruel and usual punishment
when Defendant Berry ordered Plaintiff to enter a cell that had residual pepper spray.
The Magistrate Judge recommends that Berry’s motion for summary judgment be granted
because “a reasonable jury could not find that Berry’s actions, even viewed in light most
favorable to Plaintiff, give rise to liability under the Eighth Amendment.” (Doc. 42 at
15). Plaintiff objects, arguing that the Magistrate Judge did not consider the unique
circumstances of his case—namely that the pepper spray exacerbated his head wound and
dizziness, causing him to urinate on himself. (Doc. 45 at 7).
Plaintiff’s objection is not well taken. The Magistrate Judge considered Plaintiff’s
argument that he was suffering from a head wound when Berry placed him in a cell,
which cell had pepper spray residue following Berry’s use of pepper spray on another
inmate. (Doc. 42 at 16-17). And the Magistrate Judge correctly concluded that Plaintiff
had failed to establish both the objective and subjective components of his claim because
Plaintiff failed to demonstrate a genuine dispute that any residual pepper spray in the cell
posed a substantially serious risk to Plaintiff, that Berry knew residual pepper spray
posed a serious risk to Plaintiff, or that Berry disregarded any risk. (Id.) Indeed, as the
Magistrate Judge noted, although Plaintiff argued that he complained about the pepper
spray and requested medical treatment related to it, Plaintiff never named the officer who
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declined medical treatment and Plaintiff never suggested that he made any further
attempts to seek medical care. (Id. at 17).
Accordingly, Plaintiff’s objection as to Defendant Berry is OVERRULED.
IV.

CONCLUSION

Based upon the foregoing:
1. The Report and Recommendation (Doc. 42) is ADOPTED, consistent with
this Decision & Entry.
2. Defendants Ashcraft and Yates’s objections (Doc. 43) are OVERRULED.
3. Plaintiff’s objections (Doc. 45, 46, 47) are OVERRULED.
4. Defendants Ashcraft, Yates, and Berry’s motion for summary judgment (Doc.
30) is DENIED as to Plaintiff’s excessive force claim against Defendant
Ashcraft and failure to intervene claim against Defendant Yates. The motion
(Doc. 30) is GRANTED as to Plaintiff’s failure to report the claim against
Defendant Yates and all claims against Defendant Berry. 3
5. Defendant Boykin’s motion for summary judgment (Doc. 31) is GRANTED.
IT IS SO ORDERED.
Date:

s/Timothy S. Black
Timothy S. Black
United States District Judge

8/29/2024

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Defendants’ first-filed motion (Doc. 28), which was not text searchable and not in compliance
with Local Rule 5.1(c), shall be terminated as moot.

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