Trenn v. Harkness
Filing
26
OPINION AND ORDER granting 22 Motion for Summary Judgment. Signed by Magistrate Judge Norah McCann King on 2/18/2014. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CODY TRENN,
Plaintiff,
vs.
Civil Action 2:13-CV-407
Magistrate Judge King
HERBERT H. HARKNESS,
Defendant.
OPINION AND ORDER
Plaintiff, an inmate at the Richland Correctional Institution
(“RCI”), brings this action under 42 U.S.C. § 1983 in connection with
an alleged attack by defendant Herbert Harkness, a former employee of
the Ohio Department of Youth Services (“ODYS”), while plaintiff was a
juvenile in the custody of ODYS.
Plaintiff alleges that defendant
Harkness used excessive force against plaintiff in violation of his
rights under the Eighth and Fourteenth Amendments to the United States
Constitution.
With the consent of the parties, see 28 U.S.C. §
636(c), this matter is now before the Court on Defendant, Herbert
Harkness’ Motion for Summary Judgment, Doc. No. 22 (“Motion for
Summary Judgment”).
Although plaintiff has had the opportunity to
respond to this motion, which was filed on December 20, 2013, and has
been advised of the consequences of his failure to respond, Order,
Doc. No. 25, there has nevertheless been no response to the Motion for
Summary Judgment.1
I.
FACTS
1
In fact, plaintiff has taken no action in this case since the original
filings.
1
The record reflects the following uncontroverted facts.
At all
times relevant to the Complaint, plaintiff was a juvenile in the
custody ODYS at the Circleville Juvenile Correctional Facility
(“CJCF”).
See, e.g., Exhibit A, attached to the Complaint; Affidavit
of Defendant, Herbert Harkness, ¶¶ 2, 6, attached as Exhibit A to the
Motion for Summary Judgment (“Harkness Affidavit”); Ohio Department of
Youth Services Report of Investigation, pp. 3, 97-100 (using Clerk’s
pagination), attached as Exhibit E to the Motion for Summary Judgment
(“Investigation Report”); Affidavit of Jennifer Fears, ¶ 8
(authenticating Investigation Report), attached as Exhibit F to the
Motion for Summary Judgment (“Fears Affidavit”).
Defendant was
employed by ODYS at CJCF as a General Activity Therapist II (“GAT
II”).
Harkness Affidavit, ¶¶ 2, 6.2
As a GAT II, defendant organized,
supervised and participated in the daily recreational activities of
detained youth.
Id. at ¶ 3.
Defendant had served as a GAT for
approximately twelve (12) years.
Id. at ¶ 2.
Defendant described the
training that he received during his employment:
Because of my twelve (12) years of experience working with
detained youth, and the training that I have received
regarding planned youth attacks on Youth Specialists and
other staff members, I would routinely sit with my back
against, or closest to a wall so as to prevent, as much as
possible, youth being out of my vision and thus being able
to approach me from behind. When I was participating in
activities with the youth I would try as much as possible
to keep all youth in my field of vision and to the greatest
extent possible, not permit youth to linger behind me.
Id. at ¶ 4.
2
Defendant has “never been disciplined for using excessive
Defendant has apparently now retired from ODYS.
2
Harkness Affidavit, ¶ 2.
force against detained youth, physically abusing detained youth,
inappropriate supervision, or threatening, intimidating, coercing, or
using abusive language to detained youth.”
Id. at ¶ 5.
On January 18, 2011, defendant was working his usual day shift at
CJCF and “was seated at a game table [in the gym] recording attendance
and participation of the detained youth.”
Id. at ¶ 6.
GAT II Timothy
Chelikowsky asked that plaintiff be escorted out of the gym.
Id.
As
plaintiff walked by defendant, plaintiff said, “That’s why I fucked
your Mama.”
Id.
According to defendant,
I was taken aback and surprised by Cody Trenn’s comment
because in the past I had not had any previous problems
with him and I had not played any role in him being asked
to leave the gym. As he passed by after making the comment
I asked him “What did you say?” Youth Cody Trenn did not
respond at that time and kept walking towards the exit
door. Once Cody Trenn left the gym with the Youth
Specialist I returned to my attendance and participation
records.
Id. at ¶ 7.
Defendant describes what happened next:
Within a few seconds, I saw in my peripheral vision someone
approaching my position at the table. I then saw this
person lean towards me from a standing position to my
right. I then heard this person say “I said, that’s why I
fucked your Mama,” and upon hearing that comment and
looking up I saw that it was Cody Trenn. Cody Trenn had
obviously[,] against orders, re-entered the gym and had
immediately approached me. As soon as I saw that it was
Cody Trenn, together with his comment repeating what he had
said to me seconds earlier upon his first exit from the
gym, I was concerned that he was about to assault me.
Id. at ¶ 8.
Defendant’s right hand made contact with the left side of
plaintiff’s face.
Id.
After defendant stood up and moved around the
3
table “to keep distance between Cody Trenn and myself, I used verbal
strategies to de-escalate the situation and to attempt to gain Cody
Trenn’s compliance with orders that he remain outside the gym.
There
were no further disturbances between Cody Trenn and myself and Cody
Trenn then left the gym without any additional intervention.”
¶ 11.
Id. at
According to defendant, this encounter with plaintiff “lasted
no more than a few seconds[.]”
Id.
Plaintiff submitted a grievance on the day of the incident.
Investigation Report, pp. 97-100.
However, defendant explains that
plaintiff later apologized:
Cody Trenn approached me in my office in the gym during a
recreational period and apologized for making those
comments to me. We had a brief discussion about why he
should not make such comments to others. Thereafter I
continued supervising Cody Trenn’s recreational activities
and had no further problems between us.
Id. at ¶ 13.
On April 30, 2013, after plaintiff had been released from ODYS
confinement and admitted to the custody and control of the Ohio
Department of Rehabilitation and Correction (“ODRC”), plaintiff filed
this action against defendant in his individual capacity.
Doc. No. 4, p. 1, ¶ 6.3
Complaint,
Plaintiff seeks “[a]n award of non-economic
damages, including pain and suffering and emotional distress, in an
amount to be determined by a jury; [a]n award of punitive damages in
an amount to be determined by a jury; [a]n award of attorney’s fees
(if applicable) and costs permitted by law; and [a]ll other relief
3
The Complaint is not verified.
4
available under law or equity under the circumstances.”
II.
Id. at 5.
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 non-moving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (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.”
477 U.S. 242 (1986).
Anderson v. Liberty Lobby, Inc.,
However, summary judgment is appropriate if the
opposing 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.
Catrett, 477 U.S. 317, 322 (1986).
Celotex Corp. v.
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 251.
The party moving for 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.
5
Catrett, 477 U.S. at
323.
Once the moving party has met its initial burden, 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 former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995) (“nonmoving party
must present evidence that creates a genuine issue of material fact
making it necessary to resolve the difference at trial”).
“Once the
burden of production has so shifted, the party opposing summary
judgment cannot rest on the pleadings or merely reassert the previous
allegations.
It is not sufficient to ‘simply show that there is some
metaphysical doubt as to the material facts.’”
Glover v. Speedway
Super Am. LLC, 284 F. Supp.2d 858, 862 (S.D. Ohio 2003)(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 “[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.”
Glover, 284 F. Supp. 2d at 862 (citing InteRoyal Corp. v. Sponseller,
889 F.2d 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.”
Id. See also Fed. R. Civ. P. 56(c)(3).
6
III. DISCUSSION
Plaintiff, a juvenile at the time of the events giving rise to
this action, alleges that defendant violated his rights under the
Eighth and Fourteenth Amendments when defendant struck plaintiff’s
face on January 18, 2011.
This Court has previously considered
whether the Eighth Amendment or Fourteenth Amendment applies to a
claim for excessive force raised by a plaintiff who was a juvenile in
the custody of ODYS at the time of the alleged use of excessive force:
[Such a plaintiff] was presumably committed to the custody
of ODYS after being adjudicated delinquent as the result of
having committed an act that, if committed by an adult,
would constitute a felony. See J.P. v. Taft, 439 F.Supp.2d
793, 796 n.3 (S.D. Ohio 2006). His status falls somewhere
in between an adult prisoner and a pretrial detainee.
Compare Nelson v. Heyne, 491 F.2d 352, 354-55 (7th Cir.
1974) (applying Eighth Amendment analysis to supervised
beatings in juvenile reformatory) with K.M. v. Alabama
Dep’t of Youth Services, 360 F. Supp.2d 1253, 1258-59 (M.D.
Ala. 2005)(juvenile detainee’s right to bodily integrity
properly analyzed under due process clause of Fourteenth
Amendment) and Jackson v. Johnson, 118 F. Supp.2d 278, 287
(N.D.N.Y. 2000)(Eighth Amendment ban on cruel and unusual
punishment inapplicable where plaintiff was placed in state
custody following adjudication as juvenile delinquent).
However, it is not really necessary to choose between these
standards given their similarity in application.
Gregg v. Ohio Dep’t Youth Servs., 661 F. Supp.2d 842, 854 (S.D. Ohio
2009).
See also Leary v. Livingston County, 528 F.3d 438, 443 (6th
Cir. 2008) (“Under either constitutional guarantee, an excessive-force
claimant must show something more than de minimis force.”).
In so
concluding, this Court applied the standard for analyzing excessive
force claims under the Eighth Amendment.
McMillian, 503 U.S. 1 (1992)).
Id. (citing Hudson v.
The Court sees no reason to depart
from this analysis in this case.
7
The Eighth Amendment, which applies to the states through the Due
Process Clause of the Fourteenth Amendment, Robinson v. California,
370 U.S. 660, 666 (1962), prohibits the infliction of “cruel and
unusual punishments” on those convicted of crimes.
VIII.
U.S. Const. amend.
An Eighth Amendment claim of excessive force by a prison
official contains both an objective and a subjective component. Moore
v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993).
The state of mind of
the prison official is the focus of the subjective component.
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011).
Under this
component, a court must examine “‘whether force was applied in a goodfaith effort to maintain or restore discipline or maliciously and
sadistically to cause harm.’”
Id. (quoting Hudson, 503 U.S. at 7).
This component requires consideration of such factors as “the need for
the application of force, the relationship between the need and the
amount of force that was used, and the extent of injury inflicted.”
Id. (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)) (internal
quotation marks omitted).
“Courts may also consider the circumstances
as reasonably perceived by the responsible officials on the basis of
the facts known to them, and any efforts made to temper the severity
of a forceful response.”
Id. (quoting Whitley, 475 U.S. at 321)
(internal quotation marks omitted).
In the case sub judice, defendant admits that he used force
against plaintiff.
Harkness Affidavit, ¶¶ 8-14.
As recounted supra,
shortly before this physical contact, plaintiff had been escorted out
of the gym, had used profanity against defendant and had re-entered
8
the gym without permission.
Harkness Affidavit, ¶¶ 6-8.
Plaintiff
approached defendant, who was still seated, and repeated the
profanity.
Id. at ¶ 8.
In reacting to what he believed to be an
imminent assault from plaintiff, defendant averred that he
instinctively
extended my right arm with an open hand and thrust it in
Cody Trenn’s direction in order to move him away from me.
My right hand made contact with the left side of Cody
Trenn’s face. I stood up and moved away from the table
creating more distance between Cody Trenn and [me].
Id.4
Defendant emphasizes that his
reaction was intended to keep Cody from advancing further
into my space, and unfortunately my extended right hand did
make contact with the left side of Cody Trenn’s face. It
was never my intent to cause or attempt to cause physical
harm to Cody Trenn, and the inadvertent contact with Cody
Trenn’s face caused no injury.
Id. at ¶ 10.
See also id. at ¶ 11 (“[M]y instinctive reaction in
extending my right arm towards Cody Tree was a defensive action
only[.]”).
The record before this Court contains no evidence that defendant
used force “maliciously and sadistically to cause harm.” See, e.g.,
Williams, 631 F.3d at 383 (internal quotation marks omitted).
Rather,
defendant’s use of force was justified by plaintiff’s misconduct and
reflected a legitimate concern for restoring order. Defendant used no
4
The Court has reviewed the security camera video in the gym taken on January
18, 2011, which was submitted with the Motion for Summary Judgment. See
Exhibit D (filed manually). The Court finds that this video of the incident,
which is taken from a distance and not very clear, is inconclusive; it does
not clearly show the contact between plaintiff and defendant. See, e.g.,
Exhibit D at 15:26:09. See also Harkness Affidavit, ¶ 9 (identifying the
portion of the video capturing the interaction and admitting that the video
“does not clearly show” the physical contact).
9
more force than was necessary.
According to defendant, the incident
caused no injury to plaintiff,
Harkness Affidavit, ¶ 10, an
uncontroverted fact that underscores the conclusion that defendant did
not use force maliciously and sadistically.
The evidence of record
establishes that defendant’s use of force was proportionate to the
danger posed by plaintiff’s misconduct and was applied in a good faith
effort to restore discipline.
The existence of certain statements contained within the
Investigation Report does not militate a different result.
Defendant
acknowledged that he told an investigator examining the January 18,
2011 incident that he (defendant) “hit Cody in the mouth.”
Affidavit, ¶ 10.
Harkness
See also Investigation Report, pp. 5, 19, 26.
Defendant now explains that any physical contact between him and
plaintiff was inadvertent and was merely the result of an instinctive
gesture intended to create distance from plaintiff.
14.
This sworn explanation is uncontroverted.
Id. at ¶¶ 8, 10,
The Complaint, which
alleges that defendant punched plaintiff with a closed fist, ¶ 12, is
unverified.
Moreover, plaintiff has not responded to or otherwise
offered any evidence in opposition to the Motion for Summary Judgment.5
Finally, there is no evidence that any of the statements contained in
the Investigation Report were made under oath.
Although the
Investigation Report has been authenticated, Fears Affidavit, ¶ 8, the
Court may not consider unsworn, inadmissible statements at the summary
5
Indeed, having filed nothing in this action since the initial filings in
April 2013, it appears that plaintiff may have abandoned the litigation.
10
judgment stage.
Fed. R. Civ. P. 56(c), (e).
See also Harris v. J.B.
Robinson Jewelers, 627 F.3d 235, 239 n.1 (6th Cir. 2010) (“‘[A] court
may not consider unsworn statements when ruling on a motion for
summary judgment.’”) (quoting Dole v. Elliott Travel & Tours, Inc.,
942 F.2d 962, 968-69 (6th Cir. 1991)).
Accordingly, unsworn
statements contained in the Investigation Report do not alter this
Court’s conclusion that defendant’s use of force was warranted under
the circumstances presented on January 18, 2011 and not undertaken
maliciously and sadistically to cause harm.
6
Having concluded that the subjective component has not been met,
the Court now considers whether plaintiff has satisfied the objective
component of his claim, which requires that the force be “sufficiently
serious.”
Wilson v. Seiter, 501 U.S. 294, 298 (1991).
This component
is “contextual and responsive to ‘contemporary standards of decency.’”
Hudson, 503 U.S. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103
(1976)).
Not “every malevolent touch by a prison guard gives rise to
a federal cause of action.”
Id. at 9.
“The Eighth Amendment’s
prohibition of ‘cruel and unusual’ punishment necessarily excludes
from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort ‘repugnant to the
conscience of mankind.’”
Id. at 9-10 (quoting Whitley v. Albers, 475
6
The Investigation Report’s conclusion that defendant used “inappropriate
force” against plaintiff, id. at 22-23, is likewise insufficient to create a
genuine issue of material fact as to the subjective component. As discussed
supra, the investigator relied on unsworn statements, which are inadmissible
at this stage of these proceedings. Moreover, the investigator’s conclusion
that “inappropriate force” was used is not tantamount to a finding of a
violation of the Eighth Amendment’s prohibition against excessive force.
11
U.S. 312, 327 (1986)).
See also Wilkins v. Gaddy, 559 U.S. 34, 34
(2010) (noting that Hudson requires courts “decide excessive force
claims based on the nature of the force rather than the extent of the
injury”).
Here, the objective component of plaintiff’s claim has not been
satisfied. Defendant’s sworn statement that his inadvertent contact
with plaintiff’s face resulted in no injury, id. at ¶ 10, is
uncontroverted.
Although the Investigation Report refers to
plaintiff’s complaint of a “slightly puffed” lip that bled on the
inside, id. at 6, 30, the report also indicates that plaintiff himself
believed that he “was not quite injured[,]” that there were no visible
signs of injury following the incident and that plaintiff declined
offers of medical help.
Id. at 3, 6, 66, 81, 90.
Moreover, as
discussed supra, those statements are unsworn and may not be
considered on summary judgment.
There is no evidence that defendant’s
use of de minimis force was “repugnant to the conscience of mankind.”
See Hudson, 503 U.S. at 9-10 (internal quotation marks excluded).
In short, the uncontroverted evidence establishes that defendant
is entitled to summary judgment on plaintiff’s claim.
WHEREUPON, Defendant, Herbert Harkness’ Motion for Summary
Judgment, Doc. No. 22, is GRANTED.
The Clerk is DIRECTED to enter
summary judgment in favor of defendant and against plaintiff.
February 18, 2014
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
12
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