Johnson v. Ohio Department of Rehabilitation and Corrections et al

Filing 50

REPORT AND RECOMMENDATIONS: Plaintiffs motion for polygraph tests, 41 is DENIED. It is RECOMMENDED that Defendants Motion for Summary Judgment, 37 be GRANTED and that Plaintiffs Motion for Summary Judgment, 39 be DENIED and that this action be dismissed - objections due w/in fourteen (14) days. Signed by Magistrate Judge Norah McCann King on 11/06/2014. (sr1)

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

LEROY JOHNSON, JR.,
Plaintiff,
vs.

Civil Action 2:13-cv-583
Judge Economus
Magistrate Judge King

OHIO DEPARTMENT OF
REHABILITATION AND CORRECTIONS,
et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, an inmate at the Madison Correctional Institution
(“MaCI”), brings this action under 42 U.S.C. § 1983 in connection with
an alleged attack by defendant Correctional Officer Chris Herren.1
This matter is now before the Court on plaintiff’s motion for
polygraph tests, ECF 41, and on the parties’ cross-motions for summary
judgment.

Defendant’s Motion for Summary Judgment, ECF 37

(“Defendant’s Motion”), and Plaintiff’s Motion for Summary Judgment,
ECF 39 (“Plaintiff’s Motion”).
I.

BACKGROUND
On October 19, 2012, defendant and two other correctional

officers “were conducting searches of inmates as” the inmates left a
dining hall at MaCI.

Declaration of Chris Herren, ¶¶ 2-3, attached as

1

This Court previously dismissed all other named defendants. See Order and
Report and Recommendation, ECF 5; Order, ECF 8 (adopting recommended
dismissal).

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Exhibit A to Defendant’s Motion (“Herren Declaration”).

According to

defendant, “[t]his is a normal search that is conducted of most
inmates as they leave the dining hall.
deter inmates from stealing food.”

The searches are intended to

Id. at ¶ 3.

When plaintiff exited the dining hall, defendant ordered
plaintiff to stop and be searched.

Id. at ¶ 4.

More specifically,

defendant ordered plaintiff to face and place his arms on the wall.
Id. at ¶ 5.

Although the parties dispute exactly what happened next,

they both apparently agree that defendant ultimately employed an “arm
bar hold” on plaintiff, which involved defendant placing his right
hand on plaintiff’s right wrist and defendant’s left hand on
plaintiff’s upper right arm by his tricep and extending plaintiff’s
right arm so that it was parallel to his torso.
Complaint, ECF 4, p. 3.2

Id. at ¶ 8;

Defendant then used some degree of force to

place plaintiff on the ground in a prone position.
Declaration, ¶ 8; Complaint, p. 3.

Herren

While plaintiff remained on the

ground, defendant and another corrections officer placed plaintiff in
handcuffs.
the area.

Herren Declaration, ¶ 9.

Plaintiff was escorted out of

Id.

Later that day, a nurse examined plaintiff.

Exhibit B, at

PAGEID#:143 (document entitled “Medical Exam Report”).

During the

medical exam, plaintiff reported that a corrections officer “put me on
the ground.”

Id.

The examination revealed an abrasion on plaintiff’s

right elbow with “no redness, bruising or injuries noted.”

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The Complaint is verified.

See id. at 4.

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Id.

No

other injuries were reported and no medical treatment was
administered.

Id.; Exhibit C, p. 8 (plaintiff’s answers to

Interrogatory Nos. 7 and 8), attached to Defendant’s Motion.
In accordance with a policy promulgated by the Ohio Department of
Rehabilitation and Correction (“ODRC”), ODRC Policy 63-UOF-03, a
committee investigated defendant’s use of force against plaintiff on
October 19, 2012.

Id. at ¶ 10; Exhibit B, at PAGEID#:131 (document

entitled, “Use of Force Committee Report” dated November 19, 2012),
PAGEID#:156 (certification of authenticity), attached to Defendant’s
Motion.

The committee concluded that defendant’s use of force had

been justified and was neither inappropriate and/or excessive.
Exhibit B, at PAGEID#:131, PAGEID#:133-PAGEID#:134 (documents
regarding the committee’s and deputy warden’s review of defendant’s
use of force).

The Warden concurred with the committee’s findings and

did not discipline defendant.

Id. at PAGEID#:131.

Thereafter, plaintiff filed this action, alleging that defendant
had violated plaintiff’s rights by using excessive force against him.
Complaint.

The parties have filed cross-motions for summary judgment

that are now at issue.

Plaintiff has also filed a motion asking that

polygraph tests be administered to the parties, ECF 41. The Court will
address that motion first.
II.

MOTION FOR POLYGRAPH TESTS
Plaintiff asks defendant Herren to voluntarily take a polygraph

test or, in the alternative, seeks an order compelling defendant to
submit to such a test.

ECF 41, p. 1.

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See also plaintiff’s reply in

support of his motion, ECF 49.

Plaintiff represents that he is

willing to take a polygraph test in order to establish his
truthfulness.

ECF 41, p. 1.

Defendant opposes plaintiff’s motion for

polygraph tests, responding that he will not voluntarily undergo a
polygraph examination and that this Court lacks authority to order
such a test.

ECF 48.

In reply, plaintiff insists that “the federal

rules” authorize polygraph testing as “necessary in civil actions[.]”
ECF 49 (citing Fed. R. Civ. P. 26(a), (e) and Calbillo v. Cavender
Oldsmobile,Inc., No. SA-99-CA-85-FB, 2000 U.S. Dist. LEXIS 20939 (W.D.
Tex. Sept. 29, 2000)).
Plaintiff’s arguments are not well-taken.

As an initial matter,

plaintiff’s motion, which is apparently intended to disclose
information, is essentially a discovery motion.

However, the

opportunity for discovery in this action closed on July 31, 2014.
Order, ECF 31, p. 1.

Plaintiff’s motion, filed on September 30, 2014,

is therefore untimely and plaintiff has not established the necessary
good cause for his untimely request.

See, e.g., Fed. R. Civ. P.

16(b)(4) (requiring good cause and the judge’s consent to modify a
case schedule); Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir.
2002) (“‘The primary measure of Rule 16’s ‘good cause’ standard is the
moving party’s diligence in attempting to meet the case management
order's requirements.’”) (quoting Bradford v. DANA Corp., 249 F.3d
807, 809 (8th Cir. 2001)).
More significant, however, is the fact that plaintiff has pointed
to no persuasive authority for his request to compel a party to

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undergo a polygraph examination.

See, e.g., Sango v. Johnson, No. 13-

12808, 2014 U.S. Dist. LEXIS 130401, at *6 (E.D. Mich. May 22, 2014)
(“The Federal Rules of Civil Procedure do not provide for discovery in
the form of compelling polygraph examinations of parties or other
individuals, and Sango has provided the Court with no other valid
basis for ordering one in this case.”), adopted by Sango v. Johnson,
No. 13-12808, 2014 U.S. Dist. LEXIS 129939 (S.D. Ohio Sept. 17, 2014).
The facts presented in the case to which plaintiff refers are
inapposite. See Calbillo, 2000 U.S. Dist. LEXIS 20939, at *8-9
(detailing that, prior to the filing of the action, the defendant
employer had demanded that the plaintiff employee submit to a
polygraph test and fired the employee after he allegedly failed the
test).

Plaintiff’s reliance on Fed. R. Civ. P. 26(a) and (e), which

address required disclosures and supplementing disclosures and
responses, is equally unavailing.

Although the Federal Rules of Civil

Procedure establish tools for obtaining discovery through a party’s
sworn testimony, see, e.g., Fed. R. Civ. P. 30 (depositions by oral
examination), 31 (deposition by written questions), 33
(interrogatories) and 36 (requests for admission), compulsory
polygraph tests are not among those tools.
Plaintiff’s motion also asks this Court to arrange a polygraph
test for plaintiff in order “to prove that he is telling the true
[sic].” ECF 41, p. 1. Plaintiff had the opportunity to submit an
affidavit or declaration detailing his sworn testimony.

Indeed,

plaintiff’s verified Complaint constitutes such a document. The

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results of a polygraph test, which are not always admissible in
evidence, are not critical to the presentation of a party’s claims.
Cf. Wolfel v. Holbrook, 823 F.2d 970, 972 (6th Cir. 1987) (“Generally,
in the absence of an agreement and/or stipulation between the parties
to the contrary, results of polygraph examinations are inadmissible
into evidence.”).

For all these reasons, plaintiff’s motion for

polygraph tests, ECF 41, is DENIED.
III. MOTIONS FOR SUMMARY JUDGMENT
A.

Standard

Both parties have also moved for summary judgment.
for summary judgment is well established.

The standard

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.

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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 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.
323.

Catrett, 477 U.S. at

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

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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.”
B.

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

Discussion

Plaintiff brings his claim of excessive force against defendant
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 . . . 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.

To succeed on a claim under § 1983, a plaintiff

must establish that a person acting under color of state law deprived
him of his rights secured by the Constitution of the United States or
its laws.
Cir. 2001).

Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th
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 identify the specific
constitutional right allegedly infringed.
U.S. 266, 271 (1994).

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Albright v. Oliver, 510

For an inmate convicted of a criminal offense, “the Eighth
Amendment [to the United States Constitution] . . . serves as the
primary source of substantive protection . . . where the deliberate
use of force is challenged as excessive and unjustified.”
Albers, 475 U.S. 312, 327 (1986).

Whitley v.

Accordingly, it is the Eighth

Amendment that governs plaintiff’s claims.
An Eighth Amendment excessive force claim entails both an
objective and a subjective component.
298 (1991).

Wilson v. Seiter, 501 U.S. 294,

The defendant must have acted with a sufficiently

culpable state of mind and the alleged wrongdoing must have been
objectively harmful enough to establish a constitutional violation.
Hudson v. McMillian, 503 U.S. 1, 8 (1992). The plaintiff-prisoner must
show that the defendant acted “‘maliciously and sadistically for the
very purpose of causing harm,’” rather than “‘in a good faith effort
to maintain or restore discipline.’” Id. at 6 (quoting Whitley v.
Albers, 475 U.S. at 320-21).

Specifically, the plaintiff-prisoner

must demonstrate, inter alia, actual physical injury that is more than
de minimis.

Hudson, 503 U.S. at 9 – 10; Richmond v. Settles, 450 Fed.

Appx. 448 (6th Cir. Dec. 2, 2011)(No Eighth Amendment violation where
medical report reflected “small superficial abrasions” without
“redness, swelling, heat or abrasion”).
In the case presently before the Court, there is no evidence that
plaintiff suffered more than a de minimis injury.

The medical

examination, conducted on the same day as defendant’s alleged use of
force, revealed only an abrasion on plaintiff’s right elbow with “no

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redness, bruising or injuries noted.”

Exhibit B, at PAGEID#:143.

See

also Exhibit C, p. 8 (responding “None” to defendant’s Interrogatory
No. 7, which asked plaintiff to identify all physical injuries).
Plaintiff received no medical treatment for this abrasion.
at PAGEID#:143; Exhibit C, p. 8.

Exhibit B,

Because the uncontroverted record

establishes, at most, a de minimis physical injury, plaintiff’s Eighth
Amendment claim must fail.

WHEREUPON, plaintiff’s motion for polygraph tests, ECF 41, is
DENIED.

It is RECOMMENDED that Defendant’s Motion for Summary

Judgment, ECF 37, be GRANTED and that Plaintiff’s Motion for Summary
Judgment, ECF 39, be DENIED and that this action be dismissed.

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).

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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.

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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).

November 6, 2014

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

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