Enyart v. Karnes et al

Filing 224

REPORT AND RECOMMENDATIONS re 212 MOTION for Summary Judgment filed by Deputy Dan Waldren, Daniel Thacker, 221 MOTION for Sanctions Against Defendants For Filing Second Motion For Summary Judgment filed by Richard E Enyart, Jr. It is RECOMMENDED that the Motion for Summary Judgment and the Motion for Sanctions be denied. Objections to R&R due by 3/16/2015. Signed by Magistrate Judge Norah McCann King on 2/25/2015. (nmk0)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, Jr.,
Plaintiff,
vs.

Case No. 2:09-cv-687
Judge Smith
Magistrate Judge King

SHERIFF JIM KARNES, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendant
Daniel Thacker and Daniel Waldren’s Motion for Summary Judgment
(“Defendants’ Motion for Summary Judgment”), Doc. No. 212, Plaintiff
Richard E. Enyart, Jr.’s Opposition to Defendants’ Second Motion for
Summary Judgment (“Plaintiff’s Response”), Doc. No. 220, and
defendants’ reply, Doc. No. 222.

This matter is also before the Court

on Plaintiff Richard E. Enyart, Jr.’s Motion for Rule 11 Sanctions
against Defendants for Filing Second Motion for Summary Judgment
(“Plaintiff’s Motion for Sanctions”), Doc. No. 221, and the Memorandum
in Opposition of Defendants Daniel Thacker and Daniel Waldren to
Plaintiff’s Motion for Rule 11 Sanctions (“Defendants’ Response”),
Doc. No. 223.

For the reasons that follow, it is RECOMMENDED that

both motions be DENIED.
I.

Background
The Court has previously set forth the background of this case:
Plaintiff, a state inmate . . ., brings this action under
42 U.S.C. § 1983, alleging that he was denied due process

in connection with an alleged assault by other inmates
while plaintiff was detained in the Franklin County jail.
The Amended Complaint, Doc. No. 76, which is signed under
penalty of perjury, alleges that plaintiff was arrested by
the Columbus Police on August 11, 2007 for “pandering and
voyeurism”1 and taken to Franklin County Corrections Center
I (“FCCCI”). Id. at ¶¶ 10-11. After spending the night in
a holding cell, plaintiff was moved to the fifth floor at
FCCCI.
Id. at ¶¶ 11-12.
Defendant Deputy Dan Waldren
allegedly walked plaintiff to his cell and said: “[W]hen
the other inmates find out what you are in for you will be
a dead little sick fuck – there won’t be any protection
here for you.”
Id. at ¶ 12.
Later that day, defendant
Waldren, who was allegedly accompanied by defendant Deputy
Daniel Thacker, see Affidavit of Richard E. Enyart Jr.
(“Enyart Affidavit”), attached to Doc. No. 183, at ¶¶ 4-9,
allegedly
“came
to
[plaintiff’s]
cell,
yelled
out
[plaintiff’s] name and said ‘the media wants to interview
you about those little kids you molested.’”
Amended
Complaint, ¶ 13.
“Immediately after [defendants] left,”
plaintiff “was viciously attacked by nine of the ten
inmates in [his] cell.” Id.; Enyart Affidavit, ¶¶ 4-5.
Defendants Waldren and Thacker allegedly returned to
plaintiff’s cell a few minutes after the assault.
Id.
Defendant Waldren ordered plaintiff out of the cell and
said: “You look like shit and smell like piss; what
happened did you fall off your bunk[?]” Id. Plaintiff was
unable to produce his “county issued items” because they
were “taken by other inmates,” so defendant Waldren “shut
the gate and left with [defendant] Thacker.”
Id.
Plaintiff was allegedly attacked again “[a]s soon as
[defendants] left.”
Id.
Shortly thereafter, the two
defendant deputies returned to the cell and took plaintiff
to the infirmary.
Id.
Plaintiff’s injuries were
photographed and he was taken to the hospital and treated
for injuries.
Id. at ¶¶ 14-16.
A few weeks after the
alleged
assault,
plaintiff
attempted
to
utilize
the
grievance process three times, but his attempts were
“ignored.” Id. at ¶¶ 17-18.
The Amended Complaint asserts claims against the Franklin
County Sheriff, employees of the Franklin County Sherriff’s
Office, and Franklin County.
Only the claims against
defendants Waldren and Thacker remain.
See Opinion and
Order, Doc. No. 92 (dismissing the Franklin County
Sherriff); Opinion and Order, Doc. No. 112 (dismissing
1

Plaintiff was actually charged with two felony counts of “illegal use of a
minor” in violation of R.C. § 2907.323. Affidavit of Major Michael K.
Herrell, Doc. No. 52-1, at ¶ 7; Doc. No. 52-2.

2

Franklin
County);
Opinion
and
Order,
Doc.
No.
148
(dismissing defendant Mandy Miller). On December 17, 2012,
defendant Thacker filed a motion to dismiss or, in the
alternative, for summary judgment, Doc. No. 180. The Court
denied that motion without prejudice to renewal, noting
that the discovery completion date had not yet passed and
that plaintiff was seeking additional discovery pursuant to
Fed. R. Civ. P. 56(d).
Opinion and Order, Doc. No. 189
(adopting without objection Report and Recommendation, Doc.
No. 187).
Discovery closed on June 30, 2013.
Scheduling
Order, Doc. No. 178.
[Defendants filed a motion for
summary judgment] on July 30, 2013, i.e., one day prior to
the deadline for filing dispositive motions.
Scheduling
Order, Doc No. 178.
Report and Recommendation, Doc. No. 195, pp. 1-3, adopted and affirmed
Order, Doc. No. 197.
The Court denied defendant’s July 30, 2013 motion for summary
judgment, reasoning that there were genuine issues of material fact
regarding whether the failure to protect plaintiff from risk of harm
was sufficiently serious and whether defendants knew of and
disregarded a substantial risk of serious harm to plaintiff.

The

Court specifically found that “the facts alleged by plaintiff and
sworn to in his affidavit, if proven, could constitute a violation of
a constitutional right that was well established at the time the
events at issue in this case are alleged to have occurred.”

Report

and Recommendation, Doc. No. 195, p. 12, adopted and affirmed Order,
Doc. No. 197.

The Court thereafter appointed counsel for plaintiff

and issued a Preliminary Pretrial Order, Doc. No. 200, on April 15,
2014, reopening discovery and requiring that motions for summary
judgment be filed, if at all, no later than October 31, 2014.

Id.

Defendants’ Motion for Summary Judgment was filed on October 31, 2014.
Defendants’ Motion for Summary Judgment relies primarily on the
same evidence as did their July 30, 2013 motion, except that

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defendants now also proffer the Affidavit of Major Chad Thompson
(“Thompson Affidavit”), attached to Defendants’ Motion for Summary
Judgment as Exhibit C.

The Thompson Affidavit and the attached

“Franklin County Sheriff’s Office Daily Schedule Main Jail A Co.” show
that neither defendant worked the first shift, i.e., from 7:00 a.m.
until 3:00 p.m., at FCCCI on August 12, 2007.

According to

defendants, this evidence demonstrates that neither defendant could
have escorted plaintiff to his cell on the fifth floor at FCCCI or
made the comment that plaintiff would be at risk of injury and without
protection if the other inmates found out the nature of the charges
against plaintiff.
II.

Defendants’ Motion for Summary Judgment, p. 9.

Defendants’ Motion for Summary Judgment
A.

Standard

The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “The court shall grant summary
judgment 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.”

Fed. R. Civ. P. 56(a).

In making this determination, the

evidence “must be viewed in the light most favorable” to the nonmoving party.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

Summary judgment will not lie if the dispute about a material fact is
genuine, “that is, if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.”
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

However, summary judgment is

appropriate if the opposing party “fails to make a showing sufficient

4

to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The “mere

existence of a scintilla of evidence in support of the [opposing
party’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [opposing party].”
Anderson, 477 U.S. at 252.
The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record that demonstrate
“the absence of a genuine issue of material fact.”
U.S. at 323.

Celotex Corp., 477

The burden then shifts to the nonmoving party who “must

set forth specific facts showing that there is a genuine issue for
trial.”

Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)).

“Once the moving party has proved that no material facts exist, the
non-moving party must do more than raise a metaphysical or conjectural
doubt about issues requiring resolution at trial.”

Agristor Fin.

Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).

Instead, the non-moving party must support the assertion

that a fact is genuinely disputed.

Fed. R. Civ. P. 56(c)(1).

In ruling on a motion for summary judgment “ʽ[a] district court
is not . . . obligated to wade through and search the entire record
for some specific facts that might support the nonmoving party’s
claim.’”

Gover v. Speedway Super Am., LLC, 284 F. Supp. 2d 858, 862

(S.D. Ohio 2003) (quoting InterRoyal Corp. v. Sponseller, 889 F.2d

5

108, 111 (6th Cir. 1989)).

Instead, a “court is entitled to rely, in

determining whether a genuine issue of material fact exists on a
particular issue, only upon those portions of the verified pleadings,
depositions, answers to interrogatories and admissions on file,
together with any affidavits submitted, specifically called to its
attention by the parties.”
B.

Id.

See also Fed. R. Civ. P. 56(c)(3).

Discussion

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

Section 1983 merely provides a vehicle for

enforcing individual rights found elsewhere and does not itself
establish any substantive rights.
273, 285 (2002).

See Gonzaga Univ. v. Doe, 536 U.S.

A prima facie case under § 1983 requires evidence of

(1) conduct by an individual acting under color of state law that (2)
causes (3) the deprivation of a right secured by the Constitution or
laws of the United States.

Day v. Wayne Cnty. Bd. of Auditors, 749

F.2d 1199, 1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S.
527, 535 (1981)).
In the case presently before the Court, plaintiff alleges that,
while incarcerated as a pre-trial detainee at FCCCI, he was assaulted
by other inmates as a result of defendants’ deliberate indifference to

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his safety needs.

Plaintiff is proceeding against defendants Waldren

and Thacker in their individual capacities.

Plaintiff’s Response, p.

3.
The Amended Complaint alleges that defendants Waldren and Thacker
violated plaintiff’s Eighth Amendment rights2 by making other prisoners
aware of plaintiff’s criminal charges, by failing to protect plaintiff
from known risks posed by other inmates, and by failing to remove
plaintiff from his cell after he was initially assaulted.
Complaint, ¶¶ 21-27.

See Amended

Defendants move for summary judgment on the

basis of qualified immunity.
The doctrine of qualified immunity provides that, in civil suits
for monetary damages, government officials performing discretionary
functions are generally shielded from liability for monetary damages
“unless the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct.”
Reichle v. Howards, 132 S.Ct. 2088, 2093 (2012) (citing Ashcroft v.
al-Kidd, 131 S.Ct. 2074, 2080 (2011)).

“Thus, a defendant is entitled

to qualified immunity on summary judgment unless the facts, when
viewed in the light most favorable to the plaintiff, would permit a
reasonable juror to find that: (1) the defendant violated a
constitutional right; and (2) the right was clearly established.”
Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011) (citing Pearson v.
2

As a pretrial detainee at the time of the allege acts, plaintiff’s claims
actually arise under the Due Process Clause of the Fourteenth Amendment;
however, plaintiff’s claims are analyzed by reference to the standard of the
Eighth Amendment, which is applied to pretrial detainees through the
Fourteenth Amendment Due Process Clause. See Essex v. Cnty. of Livingston,
518 F. App’x 351, 353 n.2 (6th Cir. 2013); Ford v. Cnty. of Grand Traverse,
535 F.3d 483, 495 (6th Cir. 2008); Lucas v. Nichols, 181 F.3d 102 (6th Cir.
Apr. 23, 1999).

7

Callahan, 555 U.S. 223 (2009)).

A court may exercise discretion in

determining which prong of the test it will first address in light of
the circumstances of the case.

Pearson, 555 U.S. at 236.

“Furthermore, ‘prison officials who actually knew of a substantial
risk to inmate health or safety may be found free from liability if
they responded reasonably to the risk, even if the harm ultimately was
not averted.’”

Bishop, 636 F.3d at 765 (quoting Farmer v. Brennan,

511 U.S. 825, 844 (1994)).
To avoid summary judgment on the basis of qualified immunity, a
plaintiff must establish facts sufficient for a reasonable jury to
determine that defendants violated a constitutional right.

“To raise

a cognizable constitutional claim for deliberate indifference to an
inmate's safety, an inmate must make a two-part showing: (1) the
alleged mistreatment was objectively serious; and (2) the defendant
subjectively ignored the risk to the inmate's safety.”
F.3d at 766 (citing Farmer, 511 U.S. at 834).

Bishop, 636

See also Leary v.

Livingston Cnty., 528 F.3d 438, 442 (6th Cir. 2008) (citing Farmer,
511 U.S. at 834).

Plaintiff has satisfied these requirements.

According to the Amended Complaint, defendant Waldren, who
plaintiff contends was accompanied by defendant Thacker, see Enyart
Affidavit, ¶¶ 4-9, allegedly “came to [plaintiff’s] cell, yelled out
[plaintiff’s] name and said ‘the media wants to interview you about
those little kids you molested.’”

Amended Complaint, ¶ 13.

Enyart Deposition, Doc. No. 219-1, PAGEID 1508.

See also

Defendant Waldren

allegedly confirmed that other inmates’ knowledge of the charges
against plaintiff created an objectively serious risk of harm when he

8

stated: “[W]hen the other inmates find out what you [i.e., plaintiff]
are in for you will be a dead little sick fuck – there won’t be any
protection here for you.”
PAGEID 1506.

Amended Complaint, ¶ 12; Enyart Deposition,

According to plaintiff, this statement was made by

defendant Waldren as he escorted plaintiff to his cell on the fifth
floor of FCCCI.

Amended Complaint, ¶ 12.

Defendant Waldren denies characterizing plaintiff as a child
molester, Affidavit of Daniel Waldren, attached to Defendants’ Motion
for Summary Judgment as Exhibit A, at ¶ 8, defendant Thacker denies
being aware of any such statement by defendant Waldren, Affidavit of
Daniel Thacker, attached to Defendants’ Motion for Summary Judgment as
Exhibit B, at ¶ 8, and both defendants argue that, in any event,
plaintiff has not presented evidence sufficient to establish that
other inmates heard any such alleged statement.

Defendants’ Motion

for Summary Judgment, p. 3.
Defendants also present evidence that neither worked from 7:00
a.m. until 3:00 p.m., at FCCCI on August 12, 2007.
Affidavit, ¶¶ 5-7.

Thompson

See also Affidavit of Daniel Waldren, ¶ 4;

Affidavit of Daniel Thacker, ¶ 5.

This evidence is consistent with

plaintiff’s January 4, 2013 assertion that defendants “were second
shift deputies assigned to the fifth floor” at FCCCI, Enyart
Affidavit, ¶ 3, and contradicts plaintiff’s October 1, 2014 deposition
testimony that it was defendant Waldren who escorted plaintiff to his
cell on the fifth floor on the morning of August 12, 2007.
Deposition, PAGEID 1504-05.

See Enyart

Defendants argue that they are entitled

to summary judgment because neither defendant could have escorted

9

plaintiff to his cell on the fifth floor at FCCCI on the morning of
August 12, 2007, nor could they have made the comment alleged by
plaintiff, i.e., that plaintiff would be at risk of injury and without
protection if the other inmates found out the nature of the charges
against plaintiff.

Defendants’ Motion for Summary Judgment, p. 9.

Plaintiff has offered some evidence that it was defendant Waldren
who escorted him to the fifth floor cell and who confirmed that other
inmates’ knowledge of the charges against plaintiff created an
objectively serious risk of harm.

See Enyart Deposition, PAGEID 1506.

See also Amended Complaint, ¶ 12.

Although defendants may have

pointed to a potential inconsistency in plaintiff’s allegations and
evidence regarding the time of day that plaintiff was escorted to the
fifth floor of FCCCI, the Court finds that plaintiff has nevertheless
raised an issue of fact as to whether the failure to protect him from
risk of harm was sufficiently serious.

See Leary, 528 F.3d at 442

(finding objectively serious the harm facing an inmate plaintiff when
deputies told two inmates that the plaintiff had been charged with
raping a nine-year-old girl).
In order to establish the subjective component of a
“constitutional violation based on failure to protect, a plaintiff . .
. must show that prison officials acted with ‘deliberate indifference’
to inmate health or safety.”
511 U.S. at 834).

Bishop, 636 F.3d at 766 (quoting Farmer,

An official is deliberately indifferent if he

“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 serious harm exists, and he

10

must also draw the inference.”

Farmer, 511 U.S. at 837.

“[A]

factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.”

Id. at 842.

“However, a prison official who was unaware of a substantial risk of
harm to an inmate may not be held liable under the Eighth Amendment
even if the risk was obvious and a reasonable prison official would
have noticed it.”
841-42).

Bishop, 636 F.3d at 767 (citing Farmer, 511 U.S. at

Where, as here, multiple defendants assert qualified

immunity as a defense, courts must consider whether each individual
defendant had a sufficiently culpable state of mind.

Id. (“The

district court erred in this case by failing to evaluate the liability
of each Deputy individually.”) (citing Phillips v. Roane Cnty., 534
F.3d 531, 541 (6th Cir. 2008) (“Where . . . the district court is
faced with multiple defendants asserting qualified immunity defenses,
the court should consider whether each individual defendant had a
sufficiently culpable state of mind.”); Garretson v. City of Madison
Heights, 407 F.3d 789, 797 (6th Cir. 2005)).
As to defendant Waldren, plaintiff has presented evidence that
this defendant made statements suggesting that he was “aware of facts
from which the inference could be drawn that a substantial risk of
serious harm exist[ed]” and that he “dr[ew] the inference.”
Farmer, 511 U.S. at 837.

See

Once other inmates learned of the nature of

the charges against plaintiff, defendant Waldren had reason to know
that plaintiff would need “protection.” See Amended Complaint, ¶ 12
(“[W]hen the other inmates find out what you [i.e., plaintiff] are in
for you will be a dead little sick fuck – there won’t be any

11

protection here for you.”); see also Enyart Deposition, PAGEID 1506.
Defendant Waldren allegedly nevertheless persisted in informing
plaintiff’s cellmates of the charges against plaintiff.
Complaint, ¶ 13; Enyart Deposition, PAGEID 1508.

See Amended

It is true that

defendants have presented evidence to the contrary.

Defendant Waldren

denies making the statement to plaintiff that he would be in danger if
other inmates learned of the charges, and defendants have produced
some evidence that it could not have been defendant Waldren who made
the alleged statement.

See Affidavit of Major Chad Thompson, ¶¶ 5-7;

Defendants’ Motion for Summary Judgment, p. 9.

Nevertheless, there

exists a genuine issue of material fact in this regard. See Leary, 528
F.3d at 442 (denying summary judgment based on qualified immunity
where the defendant deputy told inmates about the plaintiff’s charges
with reason to believe the plaintiff would need protection after the
inmates found out about the charges).
As to defendant Thacker, plaintiff has presented evidence that
defendant Thacker “did not speak,” but “was present at all times” when
defendant Waldren made the alleged statement that the media wanted to
interview plaintiff about the charges against him and visited
plaintiff’s cell before and after both alleged assaults.
Affidavit, ¶¶ 4-9.

Enyart

Notably, plaintiff has offered evidence that

defendant Thacker heard defendant Waldren tell other inmates that
plaintiff had molested children and that defendant Thacker was with
defendant Waldren after the first alleged assault when defendant
Waldren “acknowledged” plaintiff’s injuries, told him that he
“look[ed] like shit and smell[ed] like piss,” asked if plaintiff had

12

fallen off his bunk, “laughed” at plaintiff, and then returned
plaintiff to the same cell in which he had allegedly been initially
assaulted.

See id.; Amended Complaint, ¶ 13; Enyart Deposition,

PAGEID 1507.

Defendants challenge the evidence offered by plaintiff

and they have proffered evidence in stark contrast to that presented
by plaintiff.

This dispute merely confirms, however, the existence of

a genuine dispute of material fact that serves to preclude summary
judgment. See Farmer, 511 U.S. at 842 (“Whether a prison official had
the requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference from
circumstantial evidence, . . . and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that the
risk was obvious.”) (citations omitted).
Furthermore, a pretrial detainee’s right to be free from the
deliberate indifference of jail officials is clearly established.

The

United States Supreme Court and the United States Court of Appeals for
the Sixth Circuit have held that “prison officials have a duty . . .
to protect prisoners from violence at the hands of other prisoners.”
Farmer, 511 U.S. at 833 (internal quotation marks and citation
omitted); Bishop, 636 F.3d at 766; Leary, 528 F.3d at 442.

See also

Doe v. Bowles, 254 F.3d 617, 620 (6th Cir. 2001); Walker v. Norris,
917 F.2d 1449, 1453 (6th Cir. 1990).
Based on the foregoing, the Court concludes that the facts
alleged by plaintiff, sworn to in his affidavit, and testified to on
deposition, if proven, would give rise to a violation of a
constitutional right that was well established at the time the events

13

at issue in this case are alleged to have occurred.

The Court

therefore cannot conclude that defendants are entitled to summary
judgment on the basis of qualified immunity.

It is therefore

RECOMMENDED that Defendants’ Motion for Summary Judgment, Doc. No.
212, be DENIED.
III. Plaintiff’s Motion for Sanctions
Plaintiff’s Motion for Sanctions seeks sanctions under Rule 11 of
the Federal Rules of Civil Procedure.

Plaintiff argues that it was

not reasonable for defendants to file Defendant’s Motion for Summary
Judgment because “1) it raises no new issue of fact the Defendants
could not have presented in their first Motion for Summary Judgment;
and 2) even if the thrust of the [Second] Motion For Summary Judgment
were based on new information, there nevertheless plainly remain
genuine issues of material fact that preclude entry of summary
judgment.”

Plaintiff’s Motion for Sanctions, p. 1.

Plaintiff

represents that his counsel contacted defendants on November 6, 2014,
to request that defendants withdraw Defendants’ Motion for Summary
Judgment, and that he served a copy of Plaintiff’s Motion for
Sanctions on defendants on November 18, 2014.

Id. at pp. 1-2.

Plaintiff filed his motion for sanctions on December 16, 2014, five
days after he responded to Defendants’ Motion for Summary Judgment.
Nevertheless, plaintiff requests that defendants withdraw their motion
“before Plaintiff’s counsel is required to do any more work in
response to it.”

Id. at p. 11.

Plaintiff also argues that responding

to Defendants’ Motion for Summary Judgment “will impose a considerable
cost of time on Mr. Enyart’s counsel.”

14

Id. at p. 9.

Plaintiff

requests that “the Court direct the Defendants to withdraw their
second Motion for Summary Judgment or impose monetary sanctions on the
Defendants pursuant to Rule 11 for the fees Plaintiff’s counsel incurs
in responding to it.”

Id. at p. 11.

Rule 11 “affords the district court the discretion to award
sanctions when a party submits to the court pleadings, motions or
papers that are presented for an improper purpose, are not warranted
by existing law or a nonfrivolous extension of the law, or if the
allegations and factual contentions do not have evidentiary support.”
First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d
501, 510 (6th Cir. 2002) (citing Fed. R. Civ. P. 11(b)(1)-(b)(3)).
“[T]he imposition of Rule 11 sanctions requires a showing of
‘objectively unreasonable conduct.’”

Id. at 517 (quoting United

States v. Kouri–Perez, 187 F.3d 1, 8 (1st Cir.1999)).

“A sanction

imposed under this rule must be limited to what suffices to deter
repetition of the conduct or comparable conduct by others similarly
situated.”

Fed. R. Civ. P. 11(b)(4).

As noted supra, defendants filed their motion for summary
judgment on October 31, 2014.

Plaintiff argues that it was

unreasonable for defendants to file Defendants’ Motion for Summary
Judgment because defendants raised no new issues of fact and there
“plainly remain genuine issues of material fact that preclude entry of
summary judgment.”

Plaintiff’s Motion for Sanctions, p. 1.

Indeed,

Defendants’ Motion for Summary Judgment relies on much of the same
evidence as did defendants’ previous motion for summary judgment.
However, defendants also presented new evidence that suggests that it

15

was not defendant Waldren who made the statement to plaintiff. See
Affidavit of Major Chad Thompson, ¶¶ 5-7; Defendants’ Motion for
Summary Judgment, p. 9.

Defendants also pointed out apparent

inconsistencies between plaintiff’s deposition, in which he testified
that defendant Waldren made the alleged statement in the morning, see
Enyart Deposition, PAGEID 1504-05, and his affidavit, in which he
averred that defendant Waldren was a second shift employee.
Enyart Affidavit, ¶ 3.

See

Although the Court concludes that genuine

issues of material fact remain for resolution, the Court cannot
conclude that Defendants’ Motion for Summary Judgment was filed for an
improper purpose, was not warranted by existing law or a nonfrivolous
extension of the law, or lacked evidentiary support. Moreover, the
Preliminary Pretrial Order, Doc. No. 200, contemplated the possibility
of additional dispositive motions and plaintiff did not seek to amend
that order.

Under these circumstances, the Court concludes that an

award of sanctions is unwarranted.
It is RECOMMENDED that Defendant Daniel Thacker and Daniel
Waldren’s Motion for Summary Judgment, Doc. No. 212, be DENIED.

It is

further RECOMMENDED that Plaintiff Richard E. Enyart, Jr.’s Motion for
Rule 11 Sanctions against Defendants for Filing Second Motion for
Summary Judgment, Doc. No. 221, be DENIED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.

16

28

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

February 25, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

17