Gyekye v. Gilliam et al

Filing 43

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 34 in that 30 Motion for Summary Judgment filed by Virginia Workman, John Doe, Jondrea Parrish, Lisa Gilliam and John Doe Verssah is GRANTED and 33 Motion to Strike filed by Virginia Workman, John Doe, Jondrea Parrish, Lisa Gilliam and John Doe Verssah is DENIED AS MOOT. This case is DISMISSED. Signed by Judge Gregory L Frost on 10/30/12. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kofi Gyekye,
Plaintiff,
v.

Case No. 2:11-cv-353

Lisa Gilliam, et al.,

JUDGE GREGORY L. FROST
Magistrate Judge Kemp

Defendants.
OPINION AND ORDER
The case is before the Court on the Report and Recommendation of the Magistrate Judge,
who recommends that the case be dismissed, and Mr. Gyekye's objection to that
recommendation. For the following reasons, Mr. Gyekye's objections will be overruled and the
case will be dismissed.
I.
The facts of this case are fairly summarized in the Report and Recommendation and will
not be repeated here. Briefly, Mr. Gyekye, a state prisoner, asserts that while he was an inmate
at the Madison Correctional Institution, he was verbally abused and subjected to an excessive
use of force in violation of his Eighth Amendment rights. He also asserts that this conduct was
in retaliation for his filing of grievances. Further, he contends that his request for an extra
footlocker for the storage of his legal materials was denied and his legal materials were
destroyed. The Report and Recommendation concluded that no issues of material fact existed as
to any of Mr. Gyekye’s claims, and that, construing the facts in the light most favorable to Mr.
Gyekye, the defendants were entitled to summary judgment. Because Mr. Gyekye has filed an
objection to these findings, the Court will decide de novo the issue of whether the complaint
states a viable claim. 28 U.S.C. §636(b)(1)(B); Fed.R.Civ.P. 72(b).
II.
Mr. Gyekye’s objection appears to be directed only to the Magistrate Judge’s conclusion
that he failed to demonstrate a genuine issue of material fact with respect to his excessive use of
force claim. This claim, as construed by the Magistrate Judge, related to the actions of only two

of the named defendants, only one of whom was properly served. The extent of Mr. Gyekye’s
objection is that he has raised a genuine issue of material fact with respect to this claim because
“[t]he affidavits of the plaintiff’s and the defendant’s are squarely contradictory as to what force
was used, when it was used, and why it was used.” See Objection, ECF No. 41, p.3.
The defendants have filed a response to the objections noting that Mr. Gyekye did not
directly respond to the motion for summary judgment nor did he file any affidavit or declaration
in support of his claims with the Court. Further, they note that his complaint is not verified.
Accordingly, they argue that their “multiple declarations and extensive documentary evidence”
stand uncontroverted. See Response in Opposition, ECF No. 42, p.4. Additionally, they assert,
without authority, that because Mr. Gyekye did not respond to the motion for summary
judgment, he is not entitled to a de novo review.
III.
The Magistrate Judge accurately summarized the legal standard applicable to Mr.
Gyekye’s use of force claim as follows:
The standard used to analyze excessive force claims under the Eighth
Amendment requires the Court to determine whether the officers acted in a good
faith effort to maintain or restore discipline, or whether they acted maliciously
and sadistically to cause harm. Hudson v. McMillian, 503 U.S. 1, 8 (1992); see
also Wilkins v. Gaddy, ––– U.S. ––––, ––––, 130 S.Ct. 1175, 1178, 175 L.Ed.2d
995 (2010). That is not to suggest that every angry touch by a prison guard gives
rise to a federal cause of action. Prison officials may often be required to use
physical contact to insure prison security. Id. at 9. The physical contact will rise
to the level of an Eighth Amendment violation only if the contact represents an
"unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 103,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In determining whether the use of force
was wanton and unnecessary, the extent of injury suffered by an inmate is one
factor that may be considered, along with other factors including "the need for
application of force, the relationship between that need and the amount of force
used, the threat ‘reasonably perceived by the responsible officials,' and ‘any
efforts made to temper the severity of a forceful response.'" Hudson, 503 U.S. at 7
quoting Whitley v. Albers, 475 U.S. 312, 321 (1986). Generally, if the force
applied is grossly disproportionate to the offense committed by the prisoner, a
plaintiff states a cause of action for use of excessive force. Rhodes v. Chapman,
452 U.S. 337, 345 (1981).
Further, the Magistrate Judge acknowledged Mr. Gyekye’s failure to respond directly to
the motion for summary judgment, but, as required under Carver v. Bunch, 946 F.2d 451 (6th
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Cir. 1991), reviewed the defendants’ evidence, concluding that they had met their burden of
demonstrating the absence of a genuine issue of material fact. In reaching this conclusion, the
Magistrate Judge described the evidence submitted by the defendants as follows:
In support of their position, defendants have submitted the declaration of
Shawn Vassar, the use of force committee reports including Mr. Gyekye's
statement of the incident, an incident report from a nurse present in the infirmary
at the time of the incident, and Mr. Gyekye's use of force medical exam report.
According to Officer Vassar's declaration, when he entered the infirmary, he
heard Officer Follrod and Mr. Gyekye shouting at each other. Officer Follrod
was directing Mr. Gyekye to leave and Mr. Gyekye was refusing and appeared to
be prepared to offer physical resistance. Mr. Vassar witnessed Officer Follrod
grab Mr. Gyekye, spin him around, grab him by his shirt and jacket, and place
him against the wall to handcuff him. Mr. Vassar assisted in placing Mr. Gyekye
in handcuffs and escorted him to segregation. According to Mr. Vassar, this use
of force was routine under the circumstances of a prisoner demonstrating
resistance and the amount of force used was minimal.
Defendants' additional documentation relating to this issue is consistent
with Officer Vassar's description of the events. The incident report completed by
the nurse states that Mr. Gyekye was resisting the officers. Further, Mr. Gyekye's
own statement of the incident indicates that he did not leave the infirmary as
instructed by Officer Follrod. Additionally, the medical exam report completed
immediately following the use of force states that Mr. Gyekye had no marks or
signs of trauma and did not require medical treatment.
As further support, the Magistrate Judge noted that the defendants' version of the events
was not inconsistent with the allegations of Mr. Gyekye’s complaint. As explained by the
Magistrate Judge:
In his complaint, Mr. Gyekye admits that he "voiced his opinion and disapproval"
to Officer Follrod. Further, although he makes a conclusory statement that
Officer Follrod "slammed him against the wall," Mr. Gyekye provides no detail.
As noted above the medical reports do not suggest any injuries consistent with
being "slammed" against a wall and Mr. Gyekye does not provide any evidence
of, or even allege, any resulting injury. For all of these reasons, the Court will
recommend that the defendants' motion for summary judgment be granted on this
issue.
In his objection, Mr. Gyekye has failed to direct the Court’s attention to any
evidentiary materials he presented which the Magistrate Judge failed to consider and
which demonstrate a genuine issue of material fact precluding summary judgment in
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defendants’ favor. Additionally, Mr. Gyekye has failed to raise any other specific
challenge to the Magistrate Judge’s recommendation regarding his excessive use of force
claim. Consequently, Mr. Gyekye’s objection will be overruled.
The Court also notes that Mr. Gyekye states in passing that he has asserted a
“colorable claim” for abuse by the use of racial slurs and a claim for inappropriate
supervision. He does not, however, assert any specific challenge to the Magistrate
Judge’s recommendation that these claims be dismissed. Objections to a report and
recommendation must be specific. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
General objections are insufficient and result in waiver of further review. Id. Similarly,
to the extent that Mr. Gyekye makes vague reference to a “cover-up,” issues or
arguments raised for the first time in an objection to a report and recommendation are
deemed waived. Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); United
States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998).
Finally, the Court notes that Mr. Gyekye also suggests that this case should be
stayed to allow him to locate and serve defendant “‘John Doe Fullrod’” and that he needs
appointed counsel to help him address the summary judgment issues because he is from
Ghana and has difficulties with the English language. Because, as set forth above, Mr.
Gyekye’s objection will be overruled, the Court will not consider these requests.
IV.
For all these reasons, plaintiff's objection (ECF No. 41) to the Report and
Recommendation (ECF No. 34) are OVERRULED. The Report and Recommendation
is ADOPTED AND AFFIRMED. Defendants’ motion for summary judgment (ECF
No. 30) is GRANTED and the motion to strike (ECF No. 33) is DENIED AS MOOT.
This case is DISMISSED.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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