Moore v. Cruse et al

Filing 43

REPORT AND RECOMMENDATIONS re 31 First MOTION for Summary Judgment. It is RECOMMENDED that Defendants' Motion for Summary Judgment, Doc. No. 31 , be GRANTED. Objections to R&R due by 1/2/2014. Signed by Magistrate Judge Norah McCann King on 12/13/2013. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN PATRICK MOORE,
Plaintiff,
vs.

Civil Action 2:12-cv-609
Judge Marbley
Magistrate Judge King

BRENT CRUSE, et al.,
Defendants.

REPORT AND REOMMENDATION
John Patrick Moore (“Plaintiff”), now an inmate at the Southern
Ohio Correctional Facility, filed this civil rights action under 42
U.S.C. § 1983 on July 10, 2012 against Brent Cruse, Josh Pfeifer, John
Thornhill, and Jacob Walker (collectively, “Defendants”).
Doc. No. 5.

Complaint,

The Complaint asserts claims under § 1983 for violations

of the Eighth and First Amendments to the United States Constitution.
Plaintiff also asserts claims of conspiracy and defamation.

Id. at

pp. 5, 5A, 5C.
This matter is before the Court for consideration of Defendants
Cruse, Pfeifer, Thornhill, and Walker’s Motion for Summary Judgment
(“Motion for Summary Judgment”), Doc. No. 31.

Plaintiff was expressly

advised by the Court of the consequences of his failure to respond to
the motion, Opinion and Order, Doc. No. 37, p. 4, but has nevertheless
filed no response to the Motion for Summary Judgment.

For the reasons

that follow, it is RECOMMENDED that Defendants’ Motion for Summary
Judgment be GRANTED.

1

I.

Background
Plaintiff alleges that he was at Clever Gym of the Chillicothe

Correctional Institution wearing “religious headgear”1 when he was
stopped by Defendant Cruse.

Complaint, p. 5.

Upon observing

Plaintiff wearing religious headgear in the gym, Defendant Cruse
“informed [Plaintiff] that he is not permitted to wear headgear in the
gym.”

Declaration of Brent Cruse, Doc. No. 39-2, ¶ 6.

Defendant Cruse

“further informed Moore that in order to wear religious headgear in
the gym he must provide the proper religious affiliation paperwork.”
Id.

Plaintiff then “became irate, stated ‘fuck you,’ and attempted to

exit the building.

Id. at ¶ 7.

Defendant Cruse gave Plaintiff “a

direct order to stop, and he refused.”

Id at ¶ 8.

Defendant Cruse

“attempted to place Inmate Moore on the wall to be handcuffed.

At

that time Moore pulled away and punched [Defendant Cruse] in the left
side of [his] face.”

Id. at ¶ 9.

Plaintiff alleges that Defendant Cruse “proceeded to attempt to
slam him against the wall and then attempted to remove [Plaintiff’s]
koofi from [Plaintiff’s] head.

Complaint, p. 5.

Plaintiff “evaded

[Defendant Cruse’s] attempt and a struggle ensued.”

Id.

Defendant

Cruse “placed Moore on the floor and attempted a handcuff technique
with the assistance of [Defendants].”

Id.

Plaintiff “continued to

physically resist [Defendants’] orders and resisted [their] attempts

1

In this case, religious headgear refers to a “Muslim (‘koofi’).”
Complaint, p. 5. The word “is properly spelled kufi.” Wilson v. Moore, 270
F. Supp. 2d 1328, 1345 n. 16 (N.D. Fla. 2003). “The Kufi cap is a small,
round, head covering with religious significance for Muslims.” Muhammad v.
Lynaugh, 966 F.2d 901, 902 n. 1 (5th Cir. 1992).

2

to place handcuffs on him.”

Declaration of John Thornhill, Doc. No.

31-8, ¶ 7; See also Declaration of Jacob Walker, Doc. No. 31-9, ¶ 6;
Declaration of Josh Pfeifer, Doc. No. 39-3, ¶ 6; Declaration of Brent
Cruse, ¶ 10.
Defendant Thornhill “assisted [Defendant] Cruse and other
officers in order to control [Plaintiff’s] legs while he was placed on
the gym floor.”

Declaration of John Thornhill, ¶ 6.

Defendant

Pfeifer “was eventually able to secure Inmate Moore’s right arm and
placed handcuffs on both arms.”

Declaration of Josh Pfeifer, ¶ 7.

Defendant Walker assisted in “placing Inmate Moore on the ground” and
“assisted in escorting him to Post 5.”
¶¶ 6, 8.

Declaration of Jacob Walker,

Each Defendant states that he “used only the amount of force

that was necessary to restrain [Plaintiff] while he physically
resisted [their] orders and attempts to place handcuffs on him.”
Declaration of Jacob Walker, ¶ 10; See also Declaration of John
Thornhill, ¶ 9; Declaration of Josh Pfeifer, ¶ 9; Declaration of Brent
Cruse, ¶ 12.

Defendants did not “make any comments to [Plaintiff]

regarding his religious beliefs.”

Declaration of Jacob Walker, ¶ 11;

See also Declaration of John Thornhill, ¶ 11; Declaration of Josh
Pfeifer, ¶ 10; Declaration of Brent Cruse, ¶ 13.
not attempt to remove Inmate Moore’s headgear.”

Defendant Cruse “did
Declaration of Brent

Cruse, ¶ 13.
As a result of the incident, “the left side of [Defendant
Cruse’s] face was injured.”

Declaration of Brent Cruse, ¶ 11; See

also Use of Force Committee Report (“UOFC Record”), attached to Motion
for Summary Judgment as Exhibit C-2, at p. 35.

3

The Medical Exam

Report indicates that Plaintiff’s eye was bruised and he had facial
abrasions.

UOFC Record, p. 31.

Following the incident, “a Use of

Force Committee determined that the force utilized by [Defendants] in
order to control the incident was justified, appropriate, and not
excessive.”

Declaration of Brent Cruse, ¶ 14; See also UOFC Record,

p. 3 (“[I]t is the conclusion of this committee that the force
utilized in order to control this incident was justified and not
inappropriate and/or excessive.”).

The Rules Infraction Board found

Plaintiff guilty of physical resistance to a direct order,
disobedience of a direct order, and causing, or attempting to cause,
physical harm to another.

Disposition of the Rules Infraction Board

(“RIB Record”), attached to Motion for Summary Judgment at Exhibit C1, at p. 1 (citing Ohio Admin. Code 5120-9-06(C)(4), (20), (21)).
II.

Standard of Review

The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides that “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law.”
R. Civ. P 56(a).

Fed.

In making this determination, the evidence “must be

viewed in the light most favorable” to the non-moving party.
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

Adickes

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.”
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

However, summary judgment is appropriate if the opposing

4

party “fails to make a showing sufficient 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.”
477 U.S. 317, 322 (1986).

Celotex Corp. v. Catrett,

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 which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the non-

moving party who “must set forth specific facts showing that there is
a genuine issue for trial.”
R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting Fed.

“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)).
III. Discussion
As noted supra, Plaintiff has not responded to Defendants’ Motion
for Summary Judgment. The facts stated in the affidavits and other
papers submitted in support of the Motion for Summary Judgment will
therefore be accepted as true by the Court.
56(c).

5

See Fed. R. Civ. P.

Plaintiff brings this action under 42 U.S.C § 1983, which
provides in pertinent 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.

A prima facie case under § 1983 requires evidence of

(1) conduct by an individual acting under color of state law that
causes (2) 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)).

Because § 1983 is a method for vindicating federal

rights, and is not itself a source of substantive rights, the first
step

in

an

action

under

§

1983

is

to

constitutional right allegedly infringed.

identify

the

specific

Albright v. Oliver, 510

U.S. 266, 271 (1994).
Plaintiff

asserts

claims

under

§

1983

for

violations

of

the

Eighth and First Amendments to the United States Constitution; he also
asserts

claims

of

conspiracy

and

defamation.

Each

claim

will

be

discussed in turn.
A.

Eighth Amendment Excessive Force Claim

Plaintiff brings an excessive force claim under the Eighth
Amendment, which applies to the states through the Due Process Clause
of the Fourteenth Amendment.
665 (1962).

Robinson v. California, 370 U.S. 660,

The Eighth Amendment prohibits the infliction of “cruel

6

and unusual punishments.”

U.S. Const. amend. VIII.

To constitute an

excessive force claim under the Eighth Amendment, “the offending
conduct must reflect an ‘unnecessary and wanton infliction of pain.’”
Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993) (quoting Ingraham
v. Wright, 430 U.S. 651, 670 (1977)).
A claim of excessive force has both an objective and subjective
component.

Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).

The subjective component requires that the “offending conduct . . . be
wanton.” Wilson, 501 U.S. at 302.

“Whether the measure taken

inflicted unnecessary and wanton pain and suffering turns on ‘whether
force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of
causing harm.’”

Whitley v. Albers, 475 U.S. 312, 320—21 (1986)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir. 1973)).
“Factors to consider in determining whether the use of force was
wanton and unnecessary include the extent of the injury suffered by an
inmate, ‘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 the forceful response.’”

Combs v. Wilkinson, 315 F.3d

548, 557 (6th Cir. 2002) (quoting Hudson v. McMillian, 503 U.S. 1, 7
(1992)).
In the case presently before the Court, Plaintiff was given a
“direct order to stop and he refused” and “attempted to exit the
building.”

Declaration of Brent Cruse, ¶ 7—8.

Defendant Cruse

“attempted to place Inmate Moore on the wall to be handcuffed,” at

7

which point Plaintiff “punched [Defendant Cruse] in the left side of
[his] face.”

Id at ¶ 9.

Defendant Thornhill then “assisted

[Defendant] Cruse and other officers in order to control [Plaintiff’s]
legs while he was placed on the gym floor.”
Thornhill, ¶ 6.

Declaration of John

Defendant Pfeifer “was eventually able to secure

Inmate Moore’s right arm and placed handcuffs on both arms.”
Declaration of Josh Pfeifer, ¶ 7.

Defendant Walker assisted in

“placing Inmate Moore on the ground” and “assisted in escorting him to
Post 5.”

Declaration of Jacob Walker, ¶¶ 5, 8.

Plaintiff’s injuries

included a bruised eye and facial abrasions, while Defendant Walker
suffered a hand injury and Defendant Cruse suffered injuries to the
ear, head, and knee.

UOFC Record, pp. 31, 33, 35.

In analyzing the Defendants’ conduct under the factors
articulated above, it is apparent that force was applied in “a good
faith effort to maintain or restore discipline” and that the force
used by each Defendant was justified by a legitimate penological
concern for order within the prison.

See Whitley, 475 U.S. at 320—21.

There was a need for application of force based on the threat that
Plaintiff posed to prison discipline and security after Plaintiff hit
Defendant Cruse in the face.

Declaration of Brent Cruse, ¶ 9.

Moreover, Plaintiff demonstrated a clear disregard for direct orders
in refusing Defendant Cruse’s “direct order to stop” and “physically
resist[ing] [Defendants’] direct orders to comply.”
Brent Cruse, ¶¶ 8, 10.

Declaration of

As Plaintiff physically resisted, it required

the efforts of four Defendants to control Plaintiff’s legs, place him
on the ground, and handcuff him before escorting him from the

8

premises.

Declaration of John Thornhill, ¶ 6; Declaration of Josh

Pfeifer, ¶ 7; Declaration of Jacob Walker, ¶¶ 5, 8.

The eye bruise

and facial abrasions suffered by Plaintiff were relatively non-severe.
The amount of force used was proportionate to the threat posed by
Plaintiff.

Based on the forgoing analysis, there is no evidence that

Defendants’ actions “inflicted unnecessary and wanton pain and
suffering” on Plaintiff; to the contrary, the Court concludes that
Defendants applied force “in a good faith effort to restore
discipline.”

See Whitley, 475 U.S. 320—21.

The objective component of an Eighth Amendment claim “requires
that the pain be serious.”

Moore, 2 F.3d at 700.

This objective

inquiry is “contextual and responsive to contemporary standards of
decency;” however, not “every malevolent touch by a prison guard gives
rise to a federal cause of action.”
Johnson, 481 F.2d at 1033).

Hudson, 503 U.S. at 8—9 (quoting

In addition to looking at the seriousness

of the injury, a court must look to “the nature of the force.”
Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (citing Hudson, 503 U.S. at
9).
Because prison officials “must make their decisions in
haste, under pressure, and frequently without the luxury of
a second chance,” we must grant them “wide-ranging
deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.”
Combs, 315 F.3d at 557 (quoting Hudson, 503 U.S. at 6).
In the case presently before the Court, the objective component
of the excessive force standard has not been satisfied.

The

uncontroverted record establishes that Plaintiff punched Defendant

9

Cruse in the face and “continued to physically resist [Defendants’]
orders and [their] attempts to place handcuffs on him.” Declaration of
John Thornhill, ¶ 7.

Defendant Thornhill “assisted [Defendant] Cruse

and other officers in order to control [Plaintiff’s] legs while he was
placed on the gym floor.”

Id. at ¶ 6.

Defendant Pfeifer “was

eventually able to place handcuffs on [Plaintiff]” and Defendant
Walker “assisted in escorting him to Post 5.”
Walker, ¶ 7—8.
minor.

Declaration of Jacob

Plaintiff’s injuries were, as noted supra, relatively

UOFC Record, p. 31.

Plaintiff’s relatively minor injuries were a result of
Defendants’ efforts to maintain prison safety and security; therefore,
it is reasonable to conclude that “the force used by Defendants was
minimal and proper.”

See Quinn v. Tackett, No. 1:10-CV-590, 2013 WL

5353053, at *5 (S.D. Ohio Sept. 24, 2013).

Indeed, there is no

evidence that Defendants used excessive force or more force than was
necessary under the circumstances.

In short, Plaintiff has not

presented “a genuine issue of material fact regarding the objective
seriousness of the harm inflicted on him” on his Eighth Amendment
excessive force claim. See id. Defendants are therefore entitled to
summary judgment on this claim.
B.

First Amendment Free Exercise Claim

Plaintiff alleges that Defendants violated his rights under the
First Amendment when Defendant Cruse told Plaintiff that he had “to
have paperwork” for his religious headgear (specifically, a “koofi”).
Complaint, p. 5.

The First Amendment, which is applicable to the

states through the Fourteenth Amendment, provides that “Congress shall

10

make no law respecting an establishment of religion, or prohibiting
the free exercise thereof . . . .”

U.S. Const. amend. I. “Prisoners

retain the First Amendment right to the free exercise of their
religion.”

Hayes v. Tennessee, 424 F. App’x 546, 549 (6th Cir. 2011)

(citing Walker v. Mintzes, 771 F.2d 920, 929 (6th Cir. 1985)).
However, “[i]t is well-settled that prisoners' rights under the Free
Exercise Clause [of the First Amendment] may be subject to reasonable
restrictions.”

Weinberger v. Grimes, No. 07–6461, 2009 WL 331632, at

*4 (6th Cir. Feb. 10, 2009) (citing O'Lone v. Estate of Shabazz, 482
U.S. 342, 352 (1987); Abdur–Rahman v. Mich. Dep't of Corr., 65 F.3d
489, 491 (6th Cir. 1995)).

Prisoners’ First Amendment rights are “not

violated if the challenged polices [are] reasonably related to
legitimate penological interests.”

Id. (citing Turner v. Safley, 482

U.S. 78, 89 (1987); Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir.
2005)).
In the case presently before the court, Defendants’ actions did
not unconstitutionally infringe Plaintiff’s free exercise of religion.
Significantly, Defendant Cruse did not prohibit Plaintiff from all use
of religious headgear; rather, Defendant Cruse informed Plaintiff that
“in order to wear religious headgear in the gym he must provide the
proper religious affiliation paperwork.”
¶ 6.

Declaration of Brent Cruse,

This requirement did not substantially burden Plaintiff’s

freedom to wear the religious headgear.

See Treesh v. Bobb-Itt, No.

2:10-cv-211, 2011 WL 3837099, at *4 (S.D. Ohio Aug. 29, 2011).
A prison regulation requiring paperwork for religious headgear is
reasonably related to legitimate penological interests.

11

See

Weinberger, 2009 WL 331632, at *4.

“The needs of the institution and

penological objectives must be balanced against the right of the
individual prisoner.”
1981).

Jihaad v. O’Brien, 645 F.2d 556, 564 (6th Cir.

Allowing inmates to wear religious headgear in areas outside

their cells and during activities other than religious services
“conceivably could undermine the [prison’s] legitimate penological
interests, primarily its overriding concern for prison security.”
Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992) (holding that
“prison regulations restricting the use of Kufi caps and religious
insignia bore reasonable relationship to legitimate penological
interest of prison security.”).
In sum, Plaintiff’s First Amendment claim fails for two reasons.
First, Plaintiff has presented no evidence that his free exercise of
religion was substantially burdened.

Second, a requirement that an

inmate request and obtain permission in order to wear religious
headgear is “reasonably related to legitimate penological interests.”
See Turner, 482 U.S. at 78.

Under these circumstances, there is no

genuine dispute as to any material fact on this claim and Defendants
are entitled to summary judgment. See Fed. R. Civ. P 56(a).
C.

Conspiracy Claim

Plaintiff alleges that Defendants were “gunning for [him],”
Complaint, p. 5B, and that he was “made aware” that he “should ‘watch
out’” and that “this incident was an obvious set up by officers.”
at 5A, 5B.

Id.

In order to establish a civil conspiracy claim under 42

U.S.C. § 1983, a plaintiff must show that there was a single plan to
deprive plaintiff of his constitutional rights, that the alleged

12

coconspirator shared in the general conspiratorial objective, and that
an overt act was committed in furtherance of the conspiracy that
caused injury to the complainant.

Bazzi v. City of Dearborn, 658 F.3d

598, 602 (6th Cir. 2011)(citing Hooks v. Hooks, 771 F.2d 935, 944 (6th
Cir. 1985)). “Vague and conclusory allegations unsupported by material
facts are insufficient to state a [§ 1983 civil conspiracy] claim.”
Hamilton v. City of Romulus, 409 F. App’x 826, 835 (6th Cir. 2010)
(citing Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003)).
Because, for the reasons stated supra, Plaintiff has failed to
establish a deprivation of his constitutional rights, it follows that
he cannot established an actionable claim for civil conspiracy under
42 U.S.C. § 1983. Defendants are therefore entitled to judgment as a
matter of law on this claim.
D.

Defamation Claim

Plaintiff also asserts a defamation claim, alleging that he “was
charged with assaulting [D]efendant Cruse in an attempt to further
take the blame off of the defendants.”

Complaint, p. 5C. However, it

is well-settled that defamation, without more, does not state a claim
under 42 U.S.C. § 1983.

Paul v. Davis, 424 U.S. 693 (1976).

“‘Reputation alone, apart from some more tangible interests,’ [is]
neither liberty nor property by itself sufficient to invoke the
procedural protection of the Due Process Clause.”

Naegele Outdoor

Advertising Co. of Louisville, a Div. of Naegele, Inc. v. Moulton, 773
F.2d 692, 701 (quoting Paul v. Davis, 424 U.S. 693). Plaintiff’s
conclusory allegation of defamation is insufficient to state a claim
under 42 U.S.C. § 1983.

13

Moreover, Plaintiff may not pursue a state law claim of
defamation against Defendants unless and until the Ohio Court of
Claims determines that these state employees are not entitled to civil
immunity under O.R.C. § 9.86.

See O.R.C. § 2743.02(F); Haynes v.

Marshall, 887 F.2d 700, 704 (6th Cir. 1989)(state employees enjoy
immunity from suit in a claim under Ohio law); Johns v. University of
Cincinnati Med. Assocs., 804 N.E.2d 19, 24 (Ohio 2004).
In short, Defendants are entitled to judgment as a matter of law
on this claim.

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

It is therefore RECOMMENDED that Defendants’ Motion for Summary
Judgment, Doc. No. 31, be GRANTED.

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

28

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

14

Teachers.

Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

December 13, 2013

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

15