Johnson v. Ohio Department of Rehabilitation and Corrections et al

Filing 53

ORDER granting 37 Motion for Summary Judgment; denying 39 Motion for Summary Judgment; adopting Report and Recommendations re 50 Report and Recommendations. Signed by Senior Judge Peter C. Economus on 2/25/2015. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEROY JOHNSON, JR.,
Plaintiff,
Case No. 2:13-cv-583

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

Judge Peter C. Economus
ORDER

Defendants.

Plaintiff Leroy Johnson, an Ohio inmate at the Madison Correctional Institution, brought
this case alleging that Defendant Correctional Officer Herren attacked Plaintiff, and the other
defendants failed to investigate the matter appropriately. On August 6, 2013, the Court dismissed
all claims except those against Defendant Herren. (Doc. 8.) This matter is now before the Court
for consideration of Plaintiff’s request for appointment of counsel and objections (doc. 52) to the
Magistrate Judge’s Report and Recommendation (doc. 50) recommending that the Court grant
Defendant Herren’s motion for summary judgment (doc. 37), deny Plaintiff’s motion for
summary judgment (doc. 39), and dismiss this case.
I.

Request for Counsel
As an initial matter, Plaintiff’s objections contain a request for the appointment of

counsel. Plaintiff’s previous motions for appointment of counsel were denied without prejudice
due to the early stage of litigation. (Docs. 17, 36.) Because the Court finds that Plaintiff’s claim
has no merit, this request is DENIED. See Henry v. City of Detroit Manpower Dep’t, 763 F.2d
757, 760 (6th Cir. 1985) (in considering a request to appoint counsel, the court should consider
whether the plaintiff’s claim appears to have any merit, among other factors).

II.

Objection to Dismissal on Summary Judgment
Plaintiff fails to object to any specific issue or finding in the Report and

Recommendation. See Smith v. Detroit Fed’n of Teachers Local 231, Am. Fed’n of Teachers,
AFL-CIO, 829 F.2d 1370, 1373 (6th Cir. 1987) (“only those specific objections to the
magistrate’s report made to the district court will be preserved for appellate review”).
Nonetheless, the Court has reviewed the record de novo in accordance with 28 U.S.C.
§ 636(b)(1)(B), and finds that there is no genuine issue as to any material fact and that Defendant
is entitled to judgment as a matter of law.
A.

Standard

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ P. 56(c)(2). The court must “view
the evidence and draw all reasonable inferences therefrom in the light most favorable to the nonmoving party.” Little v. BP Exploration & Oil Co., 265 F.3d 357, 361 (6th Cir. 2001) (citing
Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000)). “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge . . . The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); accord Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d
552, 556–57 n.7 (6th Cir. 2000).
The central issue is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson, 477 U.S. at 251–52. “[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying those
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portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting FED. R. CIV. P. 56
(c)). For a dispute to be genuine, the evidence must be such that “a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
B.

Analysis

An Eighth Amendment excessive force claim includes both subjective and objective
components. First, regarding Defendant’s subjective state of mind, Plaintiff must show that
Defendant applied force “maliciously and sadistically to cause harm,” rather than “in a goodfaith effort to maintain or restore discipline.” Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir.
2014) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “Second, [t]he objective component
requires the pain inflicted to be sufficiently serious.” Id. (quoting Williams v. Curtin, 631 F.3d
380, 383 (6th Cir. 2011) (internal quotation marks omitted)). The objective “component requires
a contextual investigation, one that is responsive to contemporary standards of decency.” Id.
(quoting Hudson, 503 U.S. at 8) (internal quotation marks omitted).
As the Sixth Circuit explained in Cordell, the Supreme Court recently held in Wilkins v.
Gaddy that, “[w]hile the extent of a prisoner’s injury may help determine the amount of force
used by the prison official, it is not dispositive of whether an Eighth Amendment violation has
occurred.” Cordell, 759 F.3d at 580–81 (citing Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)).
“When prison officials maliciously and sadistically use force to cause harm,” contemporary
standards of decency “always are violated . . . whether or not significant injury is evident.”
Hudson, 503 U.S. at 9; Cordell, 759 F.3d at 581. Therefore, Plaintiff’s failure to show more than
a de minimis physical injury is not, by itself, fatal to his claim.
However, the Court finds that the record contains no evidence that Plaintiff can satisfy
either the subjective or objective component of his claim. It is undisputed that, during a search of
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inmates exiting the dining hall, Plaintiff and Defendant were involved in a confrontation, and
Defendant used some amount of force to put Plaintiff on the ground. Another officer then
handcuffed Plaintiff. (Doc. 37 at 2 (citing Declaration of Chris Herren); doc. 39 at 2.)
Plaintiff has submitted no evidence that Defendant used force “maliciously and
sadistically to cause harm,” or that the pain inflicted was sufficiently serious to violate
contemporary standards of decency. To support his motion, Plaintiff submitted (1) affidavits
from two other inmates, neither of whom witnessed the incident; (2) Plaintiff’s conduct report
records, which show that he was convicted of a rule violation from this incident; and (3) records
of Plaintiff’s extensive use of the prison’s grievance system, which demonstrate only that he
filed grievances, and do not provide evidence that their content is accurate. (Doc. 39 at 8–68; see
Winfrey v. Cermak Health Servs. of Cook Cnty., No. 07 C 3255, 2009 WL 498014, at *4 (N.D.
Ill. Feb. 24, 2009).)
Plaintiff submitted no sworn statements of his own, and cannot rely on allegations in
unsworn filings. See Maston v. Montgomery Cnty. Jail Med. Staff Pers., 832 F. Supp. 2d 846,
851 – 52 (S.D. Ohio 2011) (citing Viergutz v. Lucent Technologies, Inc., 375 F. App’x 482, 485
(6th Cir. 2010)). Even considering Plaintiff’s unsworn statements, however, his story appears to
indicate that he failed to comply with Defendant’s instructions, questioned Defendant’s
authority, or both. (Doc. 39 at 2 (“[Plaintiff] told [Defendant] that all he had to do is ask
[Plaintiff] to show him his diet snack”; “now because [Plaintiff] would not quit because
[Defendant] was talke disrespectful to inmate”) (sic)).
Moreover, a medical exam of Plaintiff after the incident revealed no injuries except an
abrasion on his elbow (doc. 37-2 at 13), and Plaintiff stated in an interrogatory response that he
did not receive any injuries (doc. 37-3 at 8).
Because Plaintiff has submitted no evidence showing that Defendant either (1) used force
“maliciously and sadistically to cause harm” or (2) inflicted pain sufficiently serious to violate

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contemporary standards of decency, the Court finds that there is no genuine issue as to any
material fact and that Defendant is entitled to judgment as a matter of law. 1
III.

Conclusion
For the reasons stated above, the Court DENIES Plaintiff’s request for the appointment

of counsel, ADOPTS the Magistrate Judge’s Report and Recommendation (doc. 50), GRANTS
Defendant Herren’s motion for summary judgment (doc. 37), DENIES Plaintiff’s motion for
summary judgment (doc. 39), and DISMISSES this case. The Court directs the Clerk to enter
judgment.
IT IS SO ORDERED.

1

Because Plaintiff has not shown a violation of a constitutionally protected right, the Court need not further analyze
the application of qualified immunity. See Cass v. City of Dayton, 770 F.3d 368, 374 (6th Cir. 2014) (citing Saucier
v. Katz, 533 U.S. 194, 201–02 (2001)); Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999); Mattox v. City of
Forest Park, 183 F.3d 515, 520 (6th Cir. 1999) (before deciding whether qualified immunity applies, a court must
first answer the threshold inquiry of whether the plaintiff sufficiently alleges violation of a protected right; where the
plaintiff has failed to allege a constitutional violation, such failure is fatal to her case); see also Pearson v. Callahan,
555 U.S. 223, 236 (2009) (holding that courts may “exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular
case at hand”).

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