Pullen v. Howard et al
Filing
100
ORDER and REPORT AND RECOMMENDATION re 92 AMENDED MOTION for Summary Judgment filed by Andrew Fultz, Church, Newsome, Gleason, Anthony Russell, Klinton Hill, Nathan A. Harris, David L. Rispress, Crystal Murphy and Lisa Howard in that it is RECOMMENDED that the motion be GRANTED IN PART AND DENIED IN PART; Plaintiff's Motions to Compel 76 81 are DENIED. Objections to R&R due by 9/30/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 9/13/16. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERRY TYRONE PULLEN, JR.,
Plaintiff,
Civil Action 2:14-cv-104
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers
v.
C/O LISA HOWARD,
Defendant.
ORDER and REPORT AND RECOMMENDATION
Plaintiff, Terry Tyrone Pullen, Jr., an Ohio inmate who is proceeding without the
assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983 against Defendants,
employees and former employees of the Ohio Department of Rehabilitation and Correction
(“ODRC”),1 alleging that he was subjected to excessive force in violation of the Eighth
Amendment. This matter is before the Court for consideration of Defendants’ Amended Motion
for Summary Judgment, Plaintiff’s Motions to Compel, and the parties’ briefing relating to these
Motions. (ECF Nos. 68, 76, 78, 79, 80, 81, 82, 88, 92, 93, 94, 95, and 98.) For the reasons set
forth below, it is RECOMMENDED that Defendants’ Amended Motion for Summary
Judgment be GRANTED IN PART AND DENIED IN PART. In addition, Plaintiff’s Motions
to Compel are DENIED AS MOOT.
1
Specifically, Plaintiff names corrections officers Lisa Howard, Andrew Fultz, Klinton Hill,
Anthony Russell, Nathan Harris, David Rispress, Gleason (no first name provided), Newsome
(no first name provided), Crystal Murphy, Church (no first name provided), R. Muphy, and C.
Ackley.
1
I.
The alleged events giving rise to this action occurred while Plaintiff was incarcerated at
the Correctional Reception Center located in Harrisburg, Ohio. The parties offer very different
accounts of the events. The Undersigned details the parties’ differing accounts before setting
forth the undisputed procedural background relating to this action, including Plaintiff’s Rules
Infraction Board (“RIB”) and state-court convictions arising from these events.
A.
Plaintiff’s Account
1.
Inside the Sally Port
According to Plaintiff’s verified Amended Complaint (ECF No. 35), on July 9, 2013,
Defendant Lisa Howard ordered him to step into a sally port in the B1 building upon his return
from the medical bay. After Plaintiff entered the sally port, Officer Howard hooked her left arm
into his arm, started screaming, and applied physical force while electronically signaling for
assistance. Officer Howard then kicked the back of his left knee, forcing him onto one knee.
Plaintiff alleges that Defendant Fultz arrived and started punching him on the right side
of his face and kicking his body while he was still on the floor. He alleges that he shielded the
left side of his face, “leaving only the rightside of [his] face exposed.” (Pl.’s Am. Coml. 6, ECF
No. 35.) Consistent with this allegation, in the signed testimonial statement he provided to the
RIB, Plaintiff states that while on the floor with Howard, he “was covered up in the fetal
position,” which he says explains “why the other side of [his] face isn’t f**ked up like the other
side.” (Pl.’s RIB Testimonial Statement, ECF No. 92-1 at 7.)
Plaintiff alleges that Defendant Hill entered the sally port next and also began kicking
and punching him. According to Plaintiff, Defendants Harris, Rispress, and Russell
subsequently arrived and also kicked and punched him. Defendant Russell then began to twist
2
his ankles and bend his legs while someone else pressed on his back. Defendants continued “for
5 min[utes] or longer,” when Defendant Howard told the other corrections officers to stop
because someone was coming. (Pl.’s Am. Compl. 6, ECF No. 35.) In an affidavit attached to his
Memorandum in Opposition to Defendants’ original Motion for Summary Judgment, Plaintiff
represents that these officers continued to punch and kick him for five-to-ten minutes until
Defendant Howard told them to stop because people were coming. (Pl.’s Aff. 2, ECF No. 79-1.)
Defendants then placed Plaintiff in handcuffs and ankle shackles and stood him up.
Defendants Hill and Harris held Plaintiff up against a wall while Officer Rispress punched him
four times in the face while telling him to “go to sleep.” (Id. at 2-3.) Following the fourth
punch, Defendants Newsome and Rispress led Plaintiff outside while Defendant C. Murphy
watched.
In his Memorandum in Opposition the Defendants’ original Motion for Summary
Judgment, Plaintiff acknowledges that he “was manipulating his genitals through his pants” and
“had his genitals exposed for a few brief seconds before entering the sally port.” (Pl.’s Mem. in
Opp. 3-4, ECF No. 79.) He states that he did not, however, approach Defendant Howard “with
his [genitals] out of his pants coming inside the sally port.” (Id. at 9.)
2.
After Leaving the Sally Port
Plaintiff alleges that he was then escorted to segregation by Defendants Newsome,
Gleason, and Harris. He represents that these officers bent his hands in one direction and his
thumbs in another while tightening the handcuffs so that they cut into his wrists. He alleges that
as a result of the pain, he fell to his knees during the escort. (Am. Compl. 7 at ¶ 33, ECF No.
35.) Plaintiff represents that as Defendants Harris, Gleason, and Harris lifted him back on his
feet, they told him “how [they are] going to cause [him] even more pain . . . once [he] got to
3
segregation.” (Pl.’s Aff. 3, ECF No. 79-1; Am. Compl. 7 at ¶ 33, ECF No. 34.)
Plaintiff represents that once he arrived “into segregation and through the sally port,”
Defendants Harris, Newsome, and Gleason “slammed [him] into a wall face first.” (Id.; see also
Pl.’s Am. Compl. 6, ECF No. 35.) He also states that Defendant Church was present.
Defendants R. Murphy and Ackley then took over his escort. Plaintiff alleges that upon
passing through the “s/c range door,” Defendants Ackley and R. Murphy “slammed [him] face
first into the floor and started punching and kicking [him]” and threating to kill him. (Pl.’s Am.
Compl. 6, ECF No. 35.) In his affidavit, Plaintiff states that this application of force occurred in
the presence of Defendant Church who then instructed Plaintiff to be placed in the strip cage.
(Pl.’s Aff. 3, ECF No. 79-1.) Plaintiff was then placed in the strip cage.
Plaintiff represents that a nurse examined him and told him that he only needed a
bandaid. He represents that his wrists were “cut and bleeding” and that he had injuries to his
face. (Id. at 3.) He alleges that injuries to his wrists were caused by the corrections officers
tightening his handcuffs “as tight as they would go while bending [his] wrist to add more
pressure.” (Pl.’s Am. Compl. 8, ECF No. 35.)
Plaintiff attaches the Medical Exam Report from the date of the incident to his
Memorandum in Opposition to Defendants’ original Motion for Summary Judgment. (ECF No.
79-1 at 2.) The Medical Exam Report reflects that Plaintiff reported that a corrections officer
grabbed him and then hit the “man down” alert. (Id.) Plaintiff complained that his wrists hurt.
The examining nurse observed “slight swelling under [right] eye” and cuff marks on Plaintiff’s
wrists. (Id.) She ordered x-rays of Plaintiff’s wrists in the morning. Plaintiff alleges that he was
unable to eat for three days because his jaw was sore and swollen. (Pl.’s Am. Compl. 8, ECF
No. 35; Pl.’s Aff. 4, ECF No. 79-1.)
4
Plaintiff represents that Lieutenant Murphy took pictures of his injuries. He attaches
these photographs as exhibits to his Memorandum in Opposition to Defendants’ original Motion
for Summary Judgment. (Photographs 3-10, ECF No. 79-1.) Defendants also provided these
same photographs and subsequently re-submitted them in color and with better resolution. (ECF
Nos. 68-13 and 98-1.) Consistent with the examining nurse’s examination notes, review of the
photographs shows some mild swelling and discoloration below Plaintiff’s right eye, cuts on the
sides of his wrists, and swelling in his hands.
B.
Defendants’ Account
1.
Inside the Sally Port
According to Defendant Lisa Howard, Plaintiff initiated an interaction with her in the
sally port. Plaintiff exposed his penis, pushed her up against the wall of the sally port, forced her
to the ground, and climbed on top of her body such that she was unable to move. (Howard Aff.
3-5, ECF No. 68-4.) When Plaintiff ignored her verbal directives to stop, she called for
assistance. Defendant Howard represents that the responding officers were eventually able to
pull Plaintiff off of her. She did not observe any of the responding officers punch or kick or slam
Plaintiff against a wall. As a result of this incident, Defendant Howard sustained several injuries,
including a torn labrum, a torn rotator cuff requiring surgery, and a torn bicep. (Id. at 11.)
Inmates Albert Clark and Harry Wood provided statements within the context of the Use of
Force Committee’s investigation that corroborate Defendant Howard’s representations that
Plaintiff exposed his genitals, attacked her, and held her down until other officers responded.
(Use of Force Inmate Statements 21-21, ECF No. 68-13; Clark Decl. ¶¶ 1-3, ECF No. 68-16
(attesting that the statement contained in the Use of Force Inmate Statement he signed are true
and accurate); Wood Decl. ¶¶ 1-3, ECF No. 68-17 (same).)
5
The responding officers also submitted affidavits corroborating Defendant Howard’s
account. They indicate that when they arrived, Defendant Howard was on the floor and in
distress and that Plaintiff was uncooperative. They further represent that they did not witness
any corrections officer punch or kick or slam Plaintiff against a wall. (Gleason Aff. ¶¶ 3-5, ECF
No. 68-1; C. Murphy Aff. ¶¶ 3-6, ECF No. 68-3; Harris Aff. ¶¶ 3-6, ECF No. 68-5.) Defendant
Fultz, who was the first to respond to Defendant Howard’s screams, represents that Plaintiff
ignored his multiple verbal orders to Plaintiff to cease and that he “employed several close fist
strikes” to Plaintiff’s lower back in order to get him to remove himself from on top of Defendant
Howard. (Fultz Decl. ¶¶ 3-5, ECF No. 98-2.) When the other officers arrived, they were able to
pull Plaintiff off of Defendant Howard and guide him to the sally port wall to be cuffed. Plaintiff
continued to resist.
There are no surveillance cameras recording the inside of the sally port or the segregation
room. Defendants have submitted video recordings from the surveillance cameras that record the
exterior of the building. (CRC Video B, lodged with Court as reflected in ECF No. 68-14.) The
video shows Plaintiff entering the building last behind other inmates. He is visible for the last
ten seconds before he enters the building and appears to be using his hand to manipulate his
genitals through his pants during this time. (Id. at 20:01:04-1:15.) The video also demonstrates
that only three minutes and five seconds elapsed from when Plaintiff entered the building and
when he was escorted out. (Id. at 20:01:15-20:04:20.) In addition, in contrast with Plaintiff’s
representation that five-to-ten minutes elapsed between the time that the responding officers
arrived and when he was escorted out of the building, the video reflects that only one minute and
forty-two seconds elapsed. (Id. at 20:02:38-20:04:20.) The video shows three officers escorting
Plaintiff for approximately fifty seconds before he is out of the scene. The video does not show
6
the escorting officers kicking, punching, or otherwise applying unnecessary force during this
portion of the transport. (See id. at 20:04:21-20:05:09.)
2.
After Leaving the Sally Port
Defendant Gleason represents that Plaintiff “resisted . . . escort by refusing to walk and
hold up his bodyweight, becoming ‘deadweight,’” and ignoring multiple verbal directives to
stand up. (Gleason Aff. ¶ 8, ECF No. 68-1.) He also stated that no officer kicked or punched
Plaintiff during escort. Defendant Harris consistently represents Plaintiff resisted escort and that
as a result, he used “a modified wrist lock to prevent harm to [Plaintiff] and to compel his
cooperation in his escort to segregation when he refused to move.” (Harris Aff. ¶¶ 8-9, ECF No.
68-5.) He added that he did not observe any officer kick or punch Plaintiff during his escort to
segregation. The other officers who observed or assisted with Plaintiff’s escort to segregation
consistently represent that Plaintiff was uncooperative and that no officer kicked or punched him
during escort. (Church Aff. ¶¶ 3-10, ECF No. 68-6; R. Murphy Aff. 3-11, ECF No. 68-2.)
The DVD that Defendants manually filed with the Court contains several video clips
taken from different cameras throughout the property that show portions of Plaintiff’s journey
from the B1 building to segregation. (ECF No. 68-14.) Most of Plaintiff’s journey to the B1
building, where the incident with Defendant Howard occurred, can be observed by piecing clips
from the various cameras together. Significantly, none of the video clips show the escorting
officers kicking, punching, or otherwise applying unnecessary force during Plaintiff’s transport.
Video B, taken from an exterior camera, shows three officers escorting Plaintiff immediately
after the incident from the B1 building for approximately fifty seconds before he is out of the
scene. (Id. at Video B, 20:04:21-20:05:09.) Video C, taken from a different exterior camera,
picks up approximately a minute after Video B drops off and shows the officers continuing their
7
escort to the segregation. (Id. at Video C, 20:06:05-20:06:47; see also Camera D, 20:06:36–
20:06:44 (showing same portion of this journey from a different exterior camera).) Video E,
taken from another exterior camera, shows another ten seconds of Plaintiff’s journey to the
segregation building and picks up fifteen seconds after Video C. (See id. at Video E, 20:07:0220:07:12.) Video F, which picks up approximately thirty seconds after Video C, was recorded
from a camera positioned directly outside the entrance to the segregation building. (Id. at Video
F, 20:07:45- 20:07:53.) Video F shows the guards briefly placing Plaintiff up against the wall to
open the door and then escorting him into the building. Video Camera Twelve, which picks up
Plaintiff’s journey nineteen seconds after Video F, shows the officers briefly placing Plaintiff
against the wall as he comes through the door into the segregation building before continuing
their journey down a hallway. (See id. at Video Camera 12, 20:08:11-20:08:44.) Video Camera
Eleven picks up where Video Camera Twelves ends and shows the officers escorting Plaintiff
through a room inside the prison. (Id. at Camera 11, 20:08:43-20:08:50.) Video Camera Five,
which begins roughly ten seconds after Video Camera Eleven drops off, shows Plaintiff and his
escorting officers enter through a doorway into another hallway. Although the video image is of
poor quality, Plaintiff appears to drop to the floor for roughly ten seconds before he is lifted and
his journey appears to end. (See id. at Camera 5, 20:09:01-20:09:24.)
C.
Procedural History, Including the RIB and State-Court Convictions
As a result of the July 9, 2013 incidents discussed above, Plaintiff was charged with
violating several institutional rules. Following a hearing, the Rules Infraction Board (“RIB”)
found Plaintiff guilty of violating the following four institutional rules:
(3) Causing, or attempting to cause, serious physical harm to another.
*
*
8
*
(12)(a) Non-consensual sexual contact with another, whether compelled: (a) [b]y
force . . . .
*
*
*
(14) Seductive or obscene acts, including indecent exposure or masturbation;
including, but not limited, to any word, action, gesture or other behavior that is
sexual in nature and would be offensive to a reasonable person.
*
*
*
(20) Physical resistance to a direct order.
O.A.C. 5120-9-06; (RIB Disposition, ECF No. 92-1 at 4-5, 9.) In connection with their guilty
verdict, the RIB made the following factual findings:
The board believes that the inmate did violate rules 3, 12(a), 14, and 20. The
board believes the inmate did pull his penis out and jump on top of the officer in
an attacking manner. Also the board believes the inmate did refuse to get off of
the officer causing her to hit her head on the wall causing injury. The board also
believes the inmate did refuse all direct orders to get off of the officer and cuff up
resulting in the use of force.
(RIB Disposition, ECF No. 92-1 at 5.) The RIB sentenced Plaintiff to fifteen days in disciplinary
control and recommended that his security level be reviewed. (Id.)
On December 6, 2013, Plaintiff was indicted on felony assault charges brought by the
Pickaway County prosecutor’s office. The sole count of the indictment alleged that Plaintiff
caused or attempted to cause injury to Defendant Howard on July 9, 2013, in violation of Ohio
Revised Code Section 2903.13(A). (Dec. 6, 2013 Indictment, ECF No. 14-1). On August 14,
2014, the Pickaway County prosecutor dismissed the charges and filed a noelle prosequi.
According to Jayme Hartley Fountain, an assistant prosecutor for Pickaway County, the charges
were dismissed in order to collect additional evidence against Plaintiff. (Fountain Decl. ¶ 7, ECF
22-1).
Plaintiff filed this Section 1983 action on June 12, 2014, advancing excessive force
claims against Defendants arising from the events occurring on July 9, 2013. Plaintiff seeks
9
declaratory relief that his constitutional rights were violated, injunctive relief in the form of an
order compelling his transfer to another prison and camera installation in sally ports, and
monetary relief.
On September 11, 2015, Plaintiff was again indicted on felony assault charges brought by
the Pickaway County prosecutor’s office. (ECF No. 92-3.) The sole count in the Indictment
provided as follows:
COUNT ONE: ASSAULT ON CORRECTIONS OFFICER
On or about the 9th day of July, 2013, at the county of Pickaway, or by
some manner enumerated in Section 2901.12 of the Ohio Revised Code whereby
proper venue is placed in the county aforementioned, Terry T. Pullen did
knowingly cause or attempt to cause physical harm to Corrections Officer Lisa
Howard, the said victim being an employee of the Department of Rehabilitation
and Correction. Further, the offense was committed on the grounds of a state
correctional institution, and the offense was committed by a person incarcerated
in the state correctional institution;
Contrary to and in violation of Section 2903.13(A) of the Ohio Revised Code and
being a Felony of the Third Degree, being against the peace and dignity of the
state of Ohio.
(Id.) On March 9, 2016, Plaintiff entered a plea of “No Contest, with a Stipulation of Guilt,” to
the offense set forth in the indictment. (ECF No. 92-2.) In its March 10, 2016 Judgment Entry,
the Court of Common Pleas for Pickaway County, Ohio indicated that it accepted Plaintiff’s plea
of No Contest after a hearing in which the state court explained to him that “such a plea is an
admission of the truth of the facts alleged in the indictment . . . .” (Id. at 3.) The Pickaway
County Common Pleas Court sentenced Plaintiff to nine months to be served consecutive to his
original sentence. (Id. at 4.)
Defendants originally moved for summary judgment in December 2015, before Plaintiff
entered and the state-court accepted his guilty plea. In their original motion, Defendants argue
that Plaintiff has failed to produce sufficient evidence to create an issue of fact regarding whether
10
he was subjected to excessive force. (ECF No. 68.) Defendants maintain that instead, the
evidence establishes that the force Defendants employed was applied in good faith to maintain
control of the situation. Following the state-court’s acceptance of Plaintiff’s guilty plea,
Defendants filed the subject Amended Motion for Summary Judgment, arguing that the United
States Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 2364 (1994), operates to bar
Plaintiff’s claims against Defendant Howard and also the responding officers. (ECF No. 92.)
Plaintiff does not dispute that he pled guilty to the assault charges, but asserts that he did
so because “it was in his best interest.” (Pl.’s Mem. in Opp. to Am. Mot. for Summ. J. 5, ECF
No. 94.) He explains that he “was being tried in a small town,” that he did not have the evidence
he needed, and that the state court was conspiring with the prosecutor’s office and his own
counsel to sabotage his trial. (Id. at 5-8.) He urges the Court not to apply Heck, citing his
indigence and the unfairness of his conviction. (Id. at 9.) Relying on his own allegations and the
photos of his injuries, Plaintiff maintains that summary judgment is not proper. Plaintiff further
asserts that Defendants have failed to produce video footage that would corroborate his
allegations that Defendant Howard called him into the sally port. He submits that the Court
should therefore not issue a ruling in this case until Defendants have produced camera footage
from the B-1 building.2 (Id. at 16.) Plaintiff also acknowledges the RIB’s conviction, but
suggests that the RIB’s findings are not fair because it relied upon conduct reports rather than
“DVR footage from all angles.” (Id. at 15-16.) He also posits that the RIB always finds inmates
2
On this point, Defendants represent that Plaintiff was permitted to view all video footage
recovered and that he and a witness signed a statement to this effect. (Defs.’ Opp. To Pl.’s Mot
to Compel 2-3, ECF No. 82). Defendants attached the signed statement, which reflects that
Plaintiff reviewed a copy of the at-issue video surveillance. (Pl.’s Statement, ECF No. 78-5.) In
addition, in Plaintiff’s Reply in Support of his Motion to Compel, he acknowledged that he was
permitted to review the video footage twice. (ECF No. 88 at p. 3.) As discussed above, the
video footage that Defendants recovered was filed with the Court. (ECF No. 68-14.)
11
guilty when an inmate is accused of assaulting an officer.
II.
Under Federal Rule of Civil Procedure 56, “[t]he 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). “The moving party has the initial
burden of proving that no genuine issue of material fact exists, and the court must draw all
reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air
Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.
Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s
assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).
“Once the moving party meets its initial burden, the nonmovant must ‘designate specific
facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, 439 F. App’x 492,
495–96 (6th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)); see also
Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely disputed to “cit[e] to
particular parts of materials in the record”). “The nonmovant must, however, do more than
simply show that there is some metaphysical doubt as to the material facts, . . . there must be
evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to
create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x
435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted). “When a motion for
summary judgment is properly made and supported and the nonmoving party fails to respond
with a showing sufficient to establish an essential element of its case, summary judgment is
appropriate.” Stansberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at 322–23).
12
III.
As set forth above, Defendants maintain that Plaintiff’s claims against Defendant Howard
and the Defendants who initially responded to this incident are barred under Heck v. Humphrey
and that the evidence they have offered establishes that they are entitled to summary judgment
on the remaining claims. This Court must, as a threshold matter, address Defendants’ assertion
that Heck v. Humphrey operates to bar these claims before evaluating whether genuine issues of
fact preclude an entry judgment as a matter of law on any remaining claims and whether
Defendants’ are entitled to qualified immunity. Last, the Undersigned considers the merits of
Plaintiff’s Motions to Compel.
A.
Applicability of Heck v. Humphrey
In Heck, the United States Supreme Court held that, in assessing a claim under 42 U.S.C.
§ 1983, a court “must consider whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence.” Heck v. Humphrey, 512 U.S. 477, 487
(1994). If the claim would render a conviction or sentence invalid, “the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Id. Courts now refer to this requirement as the “favorable termination rule.”
Here, Plaintiff has alleged that Defendants employed excessive force in violation of the
Eighth Amendment. Generally, “Eighth Amendment claims do not run afoul of Heck because
the question of the degree of force used by a police or corrections officer is analytically distinct
from the question whether the plaintiff violated the law.” Huey v. Stine, 230 F.3d 226, 230 (6th
Cir. 2000), overruled in part on other grounds by Muhammad v. Close, 540 U.S. 749, 754–55
(2004); Swiecicki v. Delgado, 463 F.3d 489, 493 (6th Cir. 2006), abrogated on other grounds by
Wallace v. Kato, 549 U.S. 384 (2007) (noting that “a claim of excessive force does not
13
necessarily relate to the validity of the underlying conviction and therefore may be immediately
cognizable” (citation omitted)). In other terms, “[w]here there is room for the facts alleged by
the plaintiff and the facts essential to the judgment . . . to peacefully co-exist, the § 1983 [claim]
must be allowed to go forward.” Lockett v. Suardini, 526 F.3d 866, 873 (6th Cir. 2008) (internal
citations and quotations omitted).
If, however, excessive force is an affirmative defense to the crime or the criminal
provision makes the absence of excessive force an element of the crime, a criminal conviction
would preempt § 1983 claims for excessive force arising from the same events. Schrieber v.
Moe, 596 F.3d 323, 334 (6th Cir. 2010) (citations omitted); Hayward v. Cleveland Clinic Found.,
759 F.3d 601, 609 (6th Cir. 2014) (“[I]n this Circuit, if a plaintiff asserts a claim that contradicts
an element of an underlying criminal offense, or if that claim could have been asserted in
criminal court as an affirmative defense, Heck applies to bar the § 1983 suit.”); Parvin v.
Campbell, 641 F. App’x 446, 449 (6th Cir. 2016) (same). Courts must therefore “look both to
the claims raised under § 1983 and to the specific offenses for which the § 1983 claimant was
convicted.” Schrieber, 596 F.3d at 334 (internal quotation marks and citation omitted).
1.
Excessive Force Claims Against Defendant Howard
Applying the foregoing authority, the Undersigned concludes that if Plaintiff succeeds on
his § 1983 against Defendant Howard, it would imply the invalidity of his state-court conviction.
Both Plaintiff’s conviction for assault and his excessive force claim against Defendant Howard
arose out of the same July 9, 2013 incident and are therefore inextricably intertwined. Plaintiff
could have raised excessive force as a defense to his assault charge, but instead entered a plea of
No Contest with a Stipulation of Guilt. (Pl.’s March 9, 2016 No Contest Plea, ECF No. 92-2.)
See, e.g., Cummings v. City of Akron, 418 F.3d 676, 682-83 (6th Cir. 2005) (concluding Ohio
14
state-law assault conviction barred an excessive-force claim where the plaintiff had failed to
raise the defense of excessive force because excessive force was available as a defense to the
assault claim); Anderson v. Weiner, No. 1:14-cv-1597, 2015 WL 4546873, at *2, (N.D. Ohio
July 28, 2015) (“By pleading guilty [to assault under Ohio law], plaintiff essentially conceded
“the absence of excessive or unnecessary force.” (internal quotation marks and citation
omitted)); Calixte v. Briggs, No. 3:10-cv-2838, 2011 WL 4732852, at *1-2 (N.D. Ohio Oct. 5,
2011) (finding the plaintiff’s § 1983 excessive force claims Heck-barred where he had entered an
Alford plea to assault charges under Ohio law). Consequently, Plaintiff cannot pursue a § 1983
against Defendant Howard without first demonstrating that “the conviction or sentence has
already been invalidated.” Heck, 512 U.S. at 487.
Plaintiff’s contention that the Court should decline to apply Heck in light of his indigence
and the alleged unfairness of his state-court conviction is unavailing. On this point, the Heck
Court stated as follows:
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus, 28 U.S.C. § 2254.
512 U.S. at 486-87. Plaintiff has offered no evidence demonstrating that he has successfully
appealed his conviction or that it has been called into question by the issuance of a writ of habeas
corpus.
It is therefore RECOMMENDED that the Court find Plaintiff’s excessive force claim
against Defendant Howard to be Heck-barred and grant summary judgment to her on this claim.
15
2.
Excessive Force Claims Against Responding Defendants
The Undersigned reaches a different conclusion, however, with regard to the responding
officers. Claims for excessive force are not subject to Heck’s bar when the alleged excessive
force was applied after the activity giving rise to the conviction. Sigley v. Kuhn, Nos. 98–3977,
99–3531, 2000 WL 145187, at *4 (6th Cir. Jan. 31, 2000) (holding that excessive force occurring
after the plaintiff’s resistance and arrest would not necessarily imply the invalidity of the
underlying conviction for resisting arrest); Lassen v. Lorain Cnty., Ohio, No. 1:13-cv-1938, 2014
WL 3511010, at *4 (N.D. Ohio July 14, 2014) (“Heck’s bar does not apply when the alleged
excessive force was applied after an arrest.” (citing Michaels v. City of Vermillion, 539 F. Supp.
2d 975, 992 (N.D. Ohio 2008)). Thus, “a court must carefully examine the facts and the
temporal sequence of the underlying offense and the alleged unconstitutional conduct . . . .”
Hayward, 759 F.3d at 612.
The Undersigned finds that Plaintiff’s § 1983 claims against the responding officers do
not constitute a collateral attack on his state-court conviction for assault on Defendant Howard.
Plaintiff alleges that the responding officers employed excessive force after the activity giving
rise to his conviction, namely, his struggle with Defendant Howard. Thus, he could succeed on
those claims without undermining his state-court assault conviction. The Undersigned therefore
concludes that Plaintiff’s state-court conviction for assault does not bar his § 1983 claims against
the responding officers pursuant to Heck v. Humphrey.
Defendants alternatively argue that Plaintiff’s RIB conviction bars his claims against the
responding officers under the Heck doctrine. In support of this contention, Defendants point out
that Plaintiff was convicted of physical resistance to a direct order under O.A.C. 5120-9-06 and
that the RIB found that Plaintiff “did refuse all direct orders to get off of the officer and cuff up
16
resulting in use of force.” (Defs.’ Am. Mot. for Summ. J. 9-10, ECF No. 92 (citing RIB
Disposition, ECF No. 92-1 at 5).) Citing a trial court decision3 relying upon Bell v. Wilkinson,
154 F. App’x 169 (2005), and Ohio Revised Code § 2967.19, Defendants contend that the RIB’s
conviction “can undoubtedly impact [Plaintiff’s] good time credit, parole potential, and judicial
release, all affecting the duration of his confinement under Ohio law.” (Id. at 11.) The
Undersigned finds Defendants’ alternative contention to be without merit.
The United States Supreme Court’s decisions in Edwards v. Balisok, 520 U.S. 641
(1997), Muhammad v. Close, 540 U.S. 749 (2004), and Wilkinson v. Dotson, 544 U.S. 74 (2005),
read together, establish the boundaries of Heck’s favorable termination rule as applied to prison
disciplinary proceedings. In Edwards v. Balisok, the United States Supreme Court extended
Heck’s favorable termination rule to prison disciplinary proceedings where the proceedings
resulted in the deprivation of good-time credits and the inmate’s allegations necessarily implied
the invalidity of the deprivation. 520 U.S. at 648.
In Muhammad v. Close, 540 U.S. 749 (2004) (per curiam), the Supreme Court reversed
the Sixth Circuit’s application of Heck to prison disciplinary proceedings “in the absence of any
implication going to the fact or duration of any underlying sentence.” 540 U.S. at 754. The
Muhammad Court noted that “although [administrative determinations] may affect the duration
of time to be served (by bearing on the award or revocation of good-time credits) that is not
necessarily so.” Id. The Court went on to explain that because no good-time credits were
3
Specifically, Plaintiff relies upon dicta in Thompson v. Joseph, No. 1:12-cv-992, 2014 WL
1685918 (S.D. Ohio Apr. 29, 2014). In Thompson, after concluding that the defendant was
entitled to summary judgment on the merits, the Magistrate Judge relied upon Bell to
alternatively recommend summary judgment in the defendant’s favor “because Plaintiff’s
requested relief would undermine the validity of his RIB conviction.” Id. at *11. Notably, the
report and recommendation made no findings concerning whether the RIB’s conviction impacted
the length of the inmate’s conviction.
17
eliminated in that case, the inmate’s § 1983 action could not “be construed as seeking a judgment
at odds with his conviction or with the State’s calculation of time to be served in accordance with
the underlying sentence.” Id. 754-55. The Muhammad Court therefore concluded the inmate
had consequently not raised a claim “on which habeas relief could have been granted on any
recognized theory” such that “Heck’s favorable termination requirement was inapplicable.” Id.
Finally, in Wilkinson v. Dotson, the Supreme Court more definitively outlined the
contours of Heck’s favorable termination rule within the context of an inmate’s challenge to a
prison’s administrative proceedings. Focusing on its precedent, the Wilkinson Court concluded
that “Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would
necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence.”
544 U.S. at 81. Applying this principle, among others, the Court concluded that the inmates’
challenges to their parole-eligibility proceedings under § 1983 were not Heck-barred where the
inmates did not seek a speedier release into the community and where “a favorable judgment will
not necessarily imply the invalidity of their convictions or sentences.” Id. at 81-82 (internal
quotation marks and citation omitted). In reaching this conclusion, the Court acknowledged that
success on these claims could mean a speedier consideration of a new parole application in
which the Ohio parole authorities could exercise their discretion to shorten the inmates’ terms.
Id. at 82. The Wilkinson Court also rejected the State of Ohio’s invitation to extend Heck’s
application to parole proceedings on the grounds that these proceedings are part of an inmates’
sentence that could have been invalidated had the inmate’s § 1983 action been successful. The
Wilkinson Court instead concluded that the term “sentence” as used in Heck referred to
“substantive determinations as to the length of confinement.” Id. at 83 (citation omitted). The
Court explained that such an interpretation is consistent with the Court’s holding in Balisok
18
because in that case, the Court “held the prisoner’s suit Heck-barred not because it sought
nullification of the disciplinary procedures but rather because nullification of the disciplinary
procedures would lead necessarily to the restoration of good-time credits and hence the
shortening of the prisoner’s sentence.” Id. at 84 (citation omitted).
Thus, read together, Balisok, Muhammed, and Wilkinson, establish that Heck’s favorable
termination rule does not apply to prison disciplinary proceedings unless (1) those proceedings
resulted in affirmative action that necessarily impacted the length of confinement, and (2) the §
1983 claims the inmate seeks to assert, if successful, necessarily imply the invalidity of the
affirmative action taken. Cf. Taylor v. Lantagne, 418 F. App’x 408, 411 (6th Cir. 2011) (“[T]he
Heck/Wilkinson favorable termination rule only bars a § 1983 action when the civil rights action
would necessarily challenge the validity of a prisoner’s confinement or its duration.” (citing
Wilkinson, 544 U.S. at 81–82)).
Applied here, the Undersigned concludes that neither of these prerequisites are satisfied.
First, as a result of the hearing, the RIB sentenced Plaintiff to confinement in disciplinary control
for fifteen days. Although Defendants represent that that placement in disciplinary control could
impact an inmate’s good-time credit and parole potential, which could, in turn, affect the
duration of an inmate’s confinement, they offer no evidence to show that placement in
disciplinary control necessarily has such an impact. Nor have Defendants provided any evidence
that in this case, the RIB’s sentence ultimately resulted in the elimination of Plaintiff’s good-time
credit or otherwise impacted the duration of his sentence. Because Defendants have offered no
evidence reflecting that Plaintiff’s placement in disciplinary control for fifteen days impacted the
duration of his confinement, it follows that any collateral attack on the RIB conviction does not
19
necessarily imply the invalidity of his continuing confinement or imprisonment such that Heck
does not apply.
Defendants’ reliance upon Ohio Revised Code § 2967.19 fails to persuade the
Undersigned to reach a different conclusion. Section § 2967.19 sets forth Ohio’s Eighty Percent
Release Procedure and provides that certain inmates may become eligible for judicial release
“after having served eighty percent” of their prison term, which entails a hearing by the
sentencing court in which that court retains discretion over whether to grant early release. Ohio
Rev. Code § 2967.19. Although the statute reflects that the sentencing court will consider the
“institutional summary report” that covers both “rehabilitative activities and any disciplinary
action taken against the offender,” it in no way compels the sentencing court consider any
disciplinary action taken to be outcome-determinative. Ohio Rev. Code § 2967.19(D). Thus,
even if the Court assumes that Defendants had demonstrated that Plaintiff is eligible for early
judicial release under § 2967.19, because the sentencing court retains discretion over whether to
grant release, Heck would not bar his § 1983 claims. Cf. Muhammed, 540 U.S. at 754-55
(holding that where “the Magistrate Judge expressly found or assumed that no good-time credits
were eliminated” by the prison disciplinary board’s action, the inmate’s “§ 1983 suit challenging
the action could not . . . be construed as seeking a judgment at odds with his conviction or with
the State’s calculation of time to be served in accordance with the underlying sentence”);
Wilkinson, 544 U.S. at 82 (finding Heck inapplicable where success on the inmate’s § 1983 claim
“does not mean immediate release from confinement or a shorter stay in prison” even where it
could have resulted in eligibility for a new parole hearing and a speedier consideration of a new
parole application “at which Ohio parole authorities may” exercise their discretion to reduce the
duration of confinement); Taylor, 418 F. App’x at 411 (relying on Wilkinson to conclude Heck
20
did not apply where inmate did not lose any good-time credits as a result of his misconduct
violation conviction and instead only accrued “disciplinary time,” removal of which would have
only given him a cleaner recorder before the parole board).
Plaintiff’s reliance upon Bell v. Wilkinson, 145 F. App’x 169 (2005), and trial courts
relying upon Bell likewise fail to persuade.4 In Bell, the Sixth Circuit concluded that Heck’s
favorable termination rule would apply to an RIB conviction where the sentence involved
confinement in disciplinary control. 157 F. App’x at 170. The Bell Court reasoned that because
prisoners confined in disciplinary control cannot earn good-time credits under Ohio
Administrative Code § 5120-2-07(c)(1), RIB convictions resulting in confinement to disciplinary
control do impact that duration of an inmate’s confinement. Id. The Bell Court concluded that
Muhammad therefore did not apply. Bell is inapposite for several reasons. First, Ohio
Administrative Code § 5120-2-07(c)(1), does not apply to Plaintiff because he is imprisoned for
offenses he committed after July 1, 1996. See Ohio Admin. Code § 5120-2-07(J) (“This rule
does not apply to any offense committed on or after July 1, 1996.”). Second, the Bell Court
offered little analysis in support of its conclusion that Muhammad did not apply. Third, the Bell
Court issued its decision without consideration of the Supreme Court’s decision in Wilkinson, an
intervening case that issued just five months prior to Bell. As discussed above, Wilkinson better
defined the contours of the complicated jurisprudence surrounding Heck’s application to prison
4
Defendants also rely upon two other unreported cases from the Sixth Circuit, Denham v.
Shroad, 56 F. App’x 692 (2003), and Jennings v. Mitchell, 93 F. App’x 723 (2004). In both
cases, the Sixth Circuit relied upon its earlier holding in Huey v. Stine, 230 F.3d 226 (6th Cir.
2000) to conclude that the inmate’s § 1983 was Heck-barred because it would call into question
the validity of his disciplinary conviction without consideration of whether the disciplinary
convictions impacted the inmate’s sentence. As discussed above, however, in Muhammad, the
Supreme Court expressly overruled Huey’s holding that Heck applies categorically to all suits
challenging prison disciplinary proceedings. Thus, the Undersigned concludes that Defendants’
reliance upon Jennings and Denham to be misplaced.
21
disciplinary proceedings. Finally, in a recent, reported decision, Peterson v. Johnson, 714 F.3d
905 (6th Cir. 2013), the Sixth Circuit acknowledged, albeit in dicta, that Heck did not operate to
bar a § 1983 claim for excessive force under similar circumstances as are presented here,
reasoning as follows:
[Heck’s favorable termination] rule applies only where a prisoner’s § 1983
challenge “threatens . . . his conviction or the duration of his sentence.”
Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam). Peterson’s
challenge threatens neither. He does not seek relief for any effect that the assaultand-battery conviction may have had on good-time credits nor does anything in
the record show that good-time credits were implicated, and there is no indication
that his underlying murder conviction or sentence is in any way affected by his
claim. Instead, Peterson seeks solely financial damages for Johnson’s alleged
excessive force. Thus, the Heck/Edwards rule has no relevance here.
Id. at 918. Accordingly, in the absence of any evidence reflecting that Plaintiff’s fifteen days in
disciplinary control lengthened his sentence, the Undersigned declines to rely upon Bell to
conclude that Plaintiff’s § 1983 assault claims against the responding officers are Heck-barred.
Second, success on Plaintiff’s excessive force claims does not necessarily imply the
invalidity of his RIB conviction. Plaintiff does not seek expungement or reversal of his RIB
conviction. Nor does he seek a speedier release from prison. And like the inmate in Peterson,
Plaintiff does not challenge any effect that his conviction could have potentially had on any
accumulation of good-time credits. Instead, Plaintiff seeks monetary relief for the excessive
force he alleges. Moreover, the RIB’s conviction of Plaintiff for “[p]hysical resistance to a direct
order,” (RIB Disposition, ECF No. 92-1 at 5), does not necessarily compel the conclusion that
the responding officers did not employ excessive force. Put another way, whether Plaintiff
resisted a direct order is analytically distinct from whether the responding officers responded
with excessive force such that “there is room for the facts alleged by [Plaintiff] and the facts
essential to the judgment of the [RIB] to peacefully co-exist.” Lockett, 526 at 873; Peterson, 714
22
F.3d at 917 (“[A]n assault-and-battery conviction is analytically distinct from an excessive force
claim; a prisoner can commit the former and simultaneously be the victim of a guard’s excessive
force.”); see also Mitchell v. Craft, No. 1:12–ccv–943, 2015 WL 4743045, at *4 (S.D. Ohio,
Aug. 10, 2015) (“[E]ven if Plaintiff were the aggressor in the incident, Heck does not bar a §
1983 claim alleging that excessive force was used after the apparent need for force had
subsided.”); Quinn v. Eshem, No. 1:13-cv-864, 2015 WL 9951611, at *14 (S.D. Ohio Nov. 13,
2015) (“[T]he degree of force with which Defendants responded as they transported Plaintiff to
multiple locations (aside from perhaps the first reactive use of O.C. spray by Officer Hale), is
analytically distinct from Plaintiff’s initial assault on Miller, and Plaintiff’s excessive force
claims would not necessarily undermine his disciplinary convictions for striking Miller.”).
In sum, because Plaintiff’s § 1983 claims against the responding officers, if successful,
would not necessarily impact the fact or duration of his confinement, it is RECOMMENDED
that the Court reject Defendants’ argument that the claims are Heck-barred.
B.
Merits of Remaining Excessive Force Claims
The Court now considers Defendants’ assertion that they are entitled to judgment as a
matter of law with regards to Plaintiff’s remaining excessive force claims.
“The Eighth Amendment prohibition on cruel and unusual punishment protects prisoners
from the ‘unnecessary and wanton infliction of pain.’” Barker v. Goodrich, 649 F.3d 428, 434
(6th Cir. 2011) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). “Whether [a defendant’s]
alleged conduct constitute[s] excessive force in violation of the Eighth Amendment depends on
‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.’” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)); see
also Roberson v. Torres, 770 F.3d 398, 406 (6th Cir. 2014) (“Corrections officers do not violate
23
a prisoner’s Eighth Amendment rights when they apply force in a good-faith effort to maintain or
restore discipline.” (internal quotation marks and citation omitted)). Relevant factors in this
analysis include “the extent of 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 a forceful response.”
Combs v. Wilkinson, 315 F.3d 548, 556-57 (6th Cir. 2002) (internal quotation marks and citation
omitted).
A claimant need not establish a “significant injury” to prove an excessive-force violation.
Wilkins v. Gaddy, 559 U.S. 34, 37-40 (2010). The Supreme Court, however, has cautioned that
the extent of the injury is still meaningful in the analysis:
This is not to say that the “absence of serious injury” is irrelevant to the Eighth
Amendment inquiry. [Hudson, 503 U.S. at 7] “[T]he extent of injury suffered by
an inmate is one factor that may suggest ‘whether the use of force could plausibly
have been thought necessary’ in a particular situation.” Id. (quoting Whitley, 475
U.S. at 321). The extent of injury may also provide some indication of the
amount of force applied. As we stated in Hudson, not “every malevolent touch by
a prison guard gives rise to a federal cause of action.” 503 U.S. at 9. “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments 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. (some internal quotation marks omitted). An inmate who
complains of a “push or shove” that causes no discernible injury almost certainly
fails to state a valid excessive force claim. Id. (quoting Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir. 1973)).
Id. at 37-38.
In the instant case, Plaintiff alleges several discrete instances of excessive force. The
Undersigned considers these alleged incidents in the order in which Plaintiff contends they
occurred.
24
1.
The Responding Officers’ Alleged Use of Force
The Undersigned finds that the officers who responded to the struggle between Plaintiff
and Officer Howard are entitled to judgment as a matter of law with regards to the force they
employed to bring Plaintiff under control. The Undersigned reaches this conclusion because the
threat reasonably perceived by the responding officers, together with the minor injury Plaintiff
suffered, requires the conclusion that the responding officers’ application of force did not rise to
a level sufficient to sustain his § 1983 Eighth Amendment claims.
As discussed above, Plaintiff pled “No Contest, with a Stipulation of Guilt,” to the statecourt indictment for felony assault on Defendant Howard, with the effect being that he admitted
of the truth of the facts alleged in the indictment. (ECF Nos. 92-2 and 92-3.) He is therefore
precluded from arguing in this case that he did not assault Defendant Howard. Thus, an
assessment of whether the force Plaintiff alleges the responding officers employed was excessive
begins with the premise that those officers were responding to Plaintiff’s assault on Defendant
Howard. The undisputed evidence also reflects that Defendant Howard, a woman, sustained
serious injuries as a result of Plaintiff’s assault, including a torn labrum, a torn rotator cuff
requiring surgery, and a torn bicep, which further demonstrates the gravity of the situation the
responding officers encountered. (See Howard Aff. 11, ECF No. 68-4.) In Griffin v. Hardrick,
604 F.3d 949 (6th Cir. 2010), the Sixth Circuit explained the deference owed to a prison
official’s decision to employ force upon encountering a prison disturbance as follows:
[O]fficials confronted with a prison disturbance must balance the threat
[that] unrest poses to inmates, prison workers, administrators, and visitors against
the harm inmates may suffer if guards use force. 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 that in their judgment are needed to preserve internal order
and discipline and to maintain institutional security.
25
604 F.3d at 954 (quoting Combs, 315 F.3d at 557 (citations and internal quotation marks
omitted)). Here, the undisputed evidence reflects that the responding officers reasonably
perceived a serious threat that necessitated utilization of force.
The Undersigned now considers “the extent of the injuries Plaintiff suffered,” which
“provide[s] some indication of the amount of force applied,” and also bears on whether the
officers employing the force “could have plausibly . . . thought [it] necessary.” Wilkins, 559 U.S.
at 37-38 (citations and internal quotation marks omitted)). Plaintiff’s allegation that the injuries
to his wrists were caused during his journey to segregation, (Pl.’s Am. Compl. 8, ECF No. 35),
means that the initial utilization of force resulted in only the injuries to his face. Plaintiff alleges
that in addition to swelling below his right eye, he also suffered a more serious jaw injury that
prevented him from eating for three days. His allegations of a serious jaw injury, however, are
neither supported by the evidence nor plausible for a number of reasons. First, the undisputed
photographic evidence upon which both Plaintiff and Defendants rely shows only minor swelling
and discoloration below his right eye, which Plaintiff alleges he suffered when the first
responder, Defendant Fultz, punched him in the face while he was still on the floor with
Defendant Howard. (See Photographs, ECF No. 79-1 at 3-10 and ECF Nos. 68-13 and 98-1;
Pl.’s Am. Coml. 6, ECF No. 35 (alleging that Defendant Fultz was the first individual who
entered the sally port and that he punched him on the right side of his face); Pl.’s RIB
Testimonial Statement, ECF No. 92-1 at 7 (acknowledging that only the right side of his face
was injured and that the injury occurred while he was laying on the floor in the sally port).)
Second, the Medical Exam Report Plaintiff included as an attachment reflects that he did not
complain of any jaw injury or jaw pain. (ECF No. 79-1 at 2.) Third, this same Medical Report
reflects that the examining nurse observed only “slight swelling under r[ight] eye” and that she
26
only recommended follow-up treatment for his wrists in the form of x-rays. (Id.) Finally,
despite Plaintiff’s allegations that he was unable to eat for three days due to the jaw injury, he
did not seek follow-up medical treatment.
The swelling and discoloration below Plaintiff’s right eye lend credibility to his
allegations that Defendant Fultz, the first responding officer, punched him on the right side of his
face. The absence of any evidence reflecting that Plaintiff sustained or complained of more
significant injuries to the nurse, however, demonstrates that there are no genuine issues for tiral
regarding his implausible allegations that he was kicked and punched for five-to-ten minutes and
subsequently punched in the face four times before leaving the sally port. The irrefutable video
evidence further discredits Plaintiff’s allegations. As discussed above, in contrast to Plaintiff’s
allegations that the responding officers kicked and punched him for five-to-ten minutes, (Pl.’s
Am. Compl. 6, ECF No. 35; Pl.’s Aff. 2, ECF No. 79-1), the video recordings from the
surveillance cameras demonstrate that only one minute and forty-two seconds elapsed between
when the responding officers arrived and when he was escorted out of the building. (CRC Video
B, lodged with Court as reflected in ECF No. 68-14 at 20:02:38-20:04:20.) See Scott v. Harris,
550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).
In summary, accepting Plaintiff’s plausible allegations as true and considering the gravity
of the threat the responding officers reasonably perceived together with the minor injury Plaintiff
sustained and the swiftness with which the responding officers entered and brought Plaintiff
under control before emerging from the sally port, the Undersigned finds that the force utilized,
including punching and kicking Plaintiff, was justified and reasonably “applied in a good-faith
27
effort to maintain or restore discipline,” not “maliciously or sadistically to cause harm.” Whitley,
475 U.S. at 319. Accordingly, it is RECOMMENDED that the Court conclude that the
responding officers (Defendants Fultz, Hill, Harris, Rispress, Russell, Newsome, and C. Murphy)
are entitled to summary judgment with regard to Plaintiff’s § 1983 excessive force claims
premised upon the utilization of force in the sally port.
The Undersigned further finds that Defendant C. Murphy, who Plaintiff represents
watched him be led outside the sally port, is entitled to judgment in his favor for the additional
reason that Plaintiff has failed to allege or offer any evidence showing that he is liable for
excessive force under § 1983. In order to plead a cause of action under § 1983, a plaintiff must
plead two elements: “(1) deprivation of a right secured by the Constitution or laws of the United
States (2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch.
Dist. Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch.,
433 F.3d 460, 463 (6th Cir. 2006)). To sufficiently plead the second element, a plaintiff must
allege “personal involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation
omitted). This is because Ҥ 1983 liability cannot be imposed under a theory of respondeat
superior.” Id. (citation omitted). Thus, to hold a supervisor liable under § 1983, a plaintiff
“must show that the official at least implicitly authorized, approved, or knowingly acquiesced in
the unconstitutional conduct . . . .” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009). Here,
neither Plaintiff’s Amended Complaint nor other any of the materials in the record provide
sufficient factual content or context from which the Court could reasonably infer that Defendant
C. Murphy was personally involved in any violation of Plaintiff’s rights. Accordingly, for this
additional reason, it is RECOMMENDED that Defendant C. Murphy be DISMISSED WITH
PREJUDICE.
28
2.
The Escorting Officers’ Alleged Excessively Forceful Handcuffing
As discussed above, Plaintiff alleges that after he was already handcuffed, shackled, and
en route to segregation, Defendants Newsome, Gleason, and Harris bent his hands in one
direction and his thumbs in another while tightening his handcuffs so that they cut into his wrists.
As a result of the pain, Plaintiff screamed and dropped to his knees. According to Plaintiff, as
the officers lifted him back to his feet, they told him “how [they are] going to cause [him] even
more pain . . . once [he] got to segregation.” (Pl.’s Aff. 3, ECF No. 79-1; Am. Compl. 7 at ¶ 33,
ECF No. 34.) The Undersigned concludes that viewing the facts in the lights most favorable to
Plaintiff, material issues of fact preclude an entry of summary judgment in favor of Defendants
Newsome, Gleason, and Harris with regard to this alleged handcuffing incident.
At this stage of the litigation, the parties genuinely dispute whether there was a need for
the application of force. According to Plaintiff, Defendants’ bending and twisting of his fingers
and excessive tightening of his handcuffs was unprovoked, and he dropped to his knees after the
application of force due to the pain. Defendants, on the other hand, maintain that “the
overwhelming evidence demonstrates that Defendants were escorting a violent and
uncooperative inmate who refused to hold up his body weight,” (Defs.’ Mot for Summ. J. 17,
ECF No. 68), and that “Plaintiff dropped to deadweight several times during his escort from the
B1 building to the segregation building,” (Defs.’ Reply in Support of Mot for Summ. J. 4, ECF
No. 80). Thus, Defendants maintain that Plaintiff dropped to his knees and became dead weight
before they applied force. Although Defendants did not offer Affidavits or Declarations
disputing that they threatened Plaintiff with more pain as they lifted him back to his feet, they
denied these allegations in their Answer to Plaintiff’s Amended Complaint. (Defs.’ Answer ¶ 8,
ECF No. 41.) Thus, whether Defendants maliciously bent Plaintiff hands and thumbs while
29
excessively tightening his handcuffs in order to cause pain or employed this force in response to
Plaintiff’s resistance to escort is a genuine issue of material fact that a jury must decide.
Defendants’ assertion that that summary judgment in their favor is warranted with regard
to this alleged incident because “Plaintiff has failed to put forth any evidence showing that
excessive force was used against him in violation of the Eighth Amendment,” (Defs.’ Reply in
Support of Mot for Summ. J. 4, ECF No. 80), lacks merit. To begin, Plaintiff’s Amended
Complaint supports his allegations and is verified. (ECF No. 35.) Because it is verified, it can
be relied upon at the summary judgment stage to assert that a fact is genuinely disputed. See El
Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (“His verified complaint therefore carries the
same weight as would an affidavit for the purposes of summary judgment.” (citation omitted));
Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (“[S]ince [the plaintiff] filed a verified
complaint his allegations ‘have the same force and effect as an affidavit’ for purposes of
responding to a motion for summary judgment.” (quoting Williams v. Browman, 981 F.2d 901,
905 (6th Cir. 1992)). In addition, the affidavit Plaintiff attached to his Memorandum in
Opposition to Defendants’ Motion for Summary Judgment also supports his allegations. (ECF
No. 68-2.) Plaintiff’s signed testimonial statement to the RIB in which he represents that during
his journey to escort, despite “follow[ing] their rules,” they applied a wrist lock with so much
pressure that he was screaming and fell to his knees further supports his allegations. (Pl.’s RIB
Testimonial Statement, ECF No. 92-1 at 7.) The photographs, which reflect cuts on Plaintiff’s
wrists and swollen hands likewise provide some evidence regarding his allegations concerning
the extent of the force employed. (See Photographs, ECF No. 79-1 at 3-10 and ECF Nos. 68-13
and 98-1); Cf. Morrison v. Bd. of Tr.’s of Green Twp., 583 F.3d 394, 402–03 (6th Cir. 2009)
(finding, within context of a Fourth Amendment excessive force handcuffing claim, that
30
allegations of bruising and wrist marks create a genuine issue of material fact). The Medical
Exam Report Plaintiff offered, which reflects that he complained of wrist pain and that the nurse
observed “cuff marks” on both of his wrists further supports his allegations. (ECF No. 79-1 at
2.) Finally, although the video footage is incomplete and of poor quality, it does not support
Defendants’ assertion that they were “escorting a violent and uncooperative inmate who refused
to hold up his body weight,” (Defs.’ Mot for Summ. J. 17, ECF No. 68), or that “Plaintiff
dropped to deadweight several times during his escort,” (Defs.’ Reply in Support of Mot for
Summ. J. 4, ECF No. 80). (See Manually filed DVD, ECF No. 68-14 at Videos B, C, D, F, 12,
11, and 5.)
In sum, Plaintiff has satisfied his burden of demonstrating that genuine issues of fact exist
for trial and that a reasonable jury could return a verdict in his favor with regards to his claim of
excessive force premised upon his allegations that Defendants Newsome, Gleason, and Harris
bent his hands in one direction and his thumbs in another while tightening his handcuffs so that
they cut into his wrists. It is therefore RECOMMENDED that the Court DENY summary
judgment to Defendants Newsome, Gleason, and Harris with regards to Plaintiff’s § 1983 claims
premised upon these allegations.
3.
The Escorting Officers’ Alleged Continued Use of Force
The Undersigned reaches the opposite conclusion, however, with regard to the incidents
of force Plaintiff alleges occurred subsequent to the handcuffing incident. According to Plaintiff,
after the handcuffing incident, he was subjected to excessive force when Defendants Harris,
Newsome, and Gleason slammed his face into a wall, (Pl.’s Aff 3, ECF No. 79-1; Pl.’s Am.
Compl. 6, ECF No. 35), and again after Defendants Murphy and Ackley took over his escort
when they purportedly slammed his face into the floor and punched and kicked him while
31
threatening to kill him. (Pl.’s Am. Compl. 6, ECF No. 35.). No reasonable jury could believe
these assertions in view of the record evidence.
As discussed above, the record evidence reflects that beyond the injuries to his wrists
(which Plaintiff alleges occurred during the excessively forceful handcuffing incident), he
suffered only the injury below his right eye, which he alleges occurred when Defendant Fultz
punched him in the sally port. Although a claimant is not required to show that he suffered a
significant injury to prove an excessive-force violation, the absence of any record evidence
reflecting that Plaintiff suffered any additional discernable injury from these alleged incidents of
force belies his allegations that his face was slammed into a wall and again into the floor and that
he was subsequently punched and kicked. See Wilkins, 559 U.S. at 38 (“An inmate who
complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a
valid excessive force claim.” (internal quotation marks and citation omitted)); Richmond v.
Settles, 450 F. App’x 448, 454 (6th Cir. 2011) (“Every malevolent touch by a prison guard does
not give rise to an Eighth Amendment cause of action and a prisoner must allege that he
sustained more than de minimis injury in order to state a viable excessive force claim.” (citations
omitted)); Corsetti v. Tessmer, 41 F. App’x 753, 755 (6th Cir. 2002) (“[C]onsistent with Eighth
Amendment jurisprudence, the predicate injury need not be significant, but must be more than de
minimis.” (citations omitted)); Rogers v. Shostak, No. 1:14-cv-213, 2015 WL 3604057, at *8-9
(S.D. Ohio June 5, 2015) (granting summary judgment and explaining that even if the Court
accepted as true that the inmate was pushed and punched “hard” on his chest, the record reflected
that despite his allegations of chest pain, there was “no evidence that plaintiff suffered a chest
injury or chest pain of sufficient severity to require any type of medical attention or treatment”).
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As discussed above, Plaintiff did not report these alleged assaults nor complain of any
injuries beyond the cuts on his wrist and the swelling below his right eye when he saw the nurse.
(Medical Exam Report, ECF No. 79-1 at 2.) Nor did the nurse identify any additional injury.
(Id.) Further, the record does not reflect that Plaintiff sought follow-up medical treatment.
Indeed, Plaintiff fails to identify what injuries he sustained as a result of these alleged incidents
of force that were separate from and additional to the injuries he alleges he sustained in the sally
port. Moreover, Plaintiff failed to even mention these alleged incidents in his signed Testimonial
Statement to the RIB. (ECF No. 92-1 at 7.) Finally, although the video footage is incomplete
and therefore does not rule out the possibility that the alleged incidents could have occurred
during periods where Plaintiff’s journey was not captured, the footage that was recovered offers
no support for Plaintiff’s allegations. (See Manually filed DVD, ECF No. 68-14 at Videos B, C,
D, F, 12, 11, and 5.)
Because the record fails to reflect that Plaintiff suffered any injury as a result of these
alleged incidents of force, and because it defies commonsense that he would suffer no injuries as
a result of his face being slammed into a wall and again into the floor before being punched in
kicked, the Undersigned concludes that Plaintiff has failed to come forward with evidence
beyond his implausible allegations to refute Defendants’ evidence. See Scott, 550 U.S. at 38081. It is therefore RECOMMENDED that the Court conclude that Defendants are entitled to
summary judgment on Plaintiff’s excessive force claims premised upon his allegations of the
escorting officers’ continued use of force.
The Undersigned further concludes that Defendant Church is entitled to judgment in his
favor for the additional reason that Plaintiff failed to offer evidence or even sufficiently allege
that he is liable for excessive force under § 1983. Instead, Plaintiff alleges, without more, that
33
some of the incidents of force occurred in his presence. (Pl.’s Aff. 3, ECF No. 79-1.) As
discussed above, “§ 1983 liability cannot be imposed under a theory of respondeat superior.”
Grinter, 532 F.3d at 575. Thus, for this additional reason, it is RECOMMENDED that
Defendant Church, like Defendant C. Murphy be DISMISSED WITH PREJUDICE.
C.
Qualified Immunity
Defendants submit that they are “entitled to qualified immunity as they had a good faith
reasonable belief that their actions were necessary to protect a correctional officer and restore
order.” (Defs.’ Mot. Summ. J. 18, ECF No. 68.)
“Qualified immunity shields an officer from suit when he or she makes a decision that,
even if constitutionally deficient, reasonably misapprehends the law governing the circumstances
that the officer confronted.” Roberson, 770 F.3d at 406 (citing Brosseau v. Haugen, 543 U.S.
194, 198 (2004)). “In determining whether qualified immunity applies, the court employs a twopart test, asking (1) whether, considering the allegations in a light most favorable to the party
injured, a constitutional right has been violated, and (2) whether that right was clearly
established.” Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009) (citations and quotation and
alteration marks omitted).
The Undersigned need only address Defendants’ assertion of qualified immunity as it
relates to Plaintiff’s claims premised upon his allegations that after he was already handcuffed,
shackled, and en route to segregation, Defendants Newsome, Gleason, and Harris bent his hands
in one direction and his thumbs in another while tightening his handcuffs so that they cut into his
wrists. With regard to this incident, Defendants assert that “[w]hen escorting Defendants took
the uncooperative Plaintiff to segregation, they reasonably believed that grabbing his wrists to
prevent him from falling was lawful and necessary in order to transport him.” (Id. at 20.)
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Defendants’ claim of qualified immunity is impermissibly premised upon their version of
the highly disputed facts. At the summary judgment stage, however, this Court must view the
facts in the light most favorable to Plaintiff as the non-moving party. Stansberry, 651 F.3d at
486. As discussed above, whether Defendants maliciously bent Plaintiff hands and thumbs while
excessively tightening his handcuffs in order to cause pain remains a genuine issue of material
fact. Because it is well settled that inmates have a constitutional right to be free from the
unnecessary and wanton infliction of pain, Defendants are not entitled to qualified immunity at
this juncture. See Barker, 649 F.3d at 434 (Eighth Amendments protects inmates from the
“unnecessary and wanton infliction of pain” (internal quotation marks and citation omitted)); see
also Johnson v. Perry, 106 F. App’x 467, 469 (6th Cir. 2004) (“An unprovoked application of
force to a handcuffed and shackled prisoner would violate clearly established law under the
Eighth Amendment.”) Accordingly, it is RECOMMENDED that Defendants’ request for
qualified immunity be DENIED.
D.
Plaintiff’s Motions to Compel
As a threshold matter, the Court DENIES Plaintiff’s Motions to Compel (ECF Nos. 76
and 81) because he failed to include a certification that he has attempted to confer in good faith
with Defendants regarding the document requests at issue. As this Court advised in its
December 17, 2015 Order denying Plaintiff’s earlier-filed Motion to Compel without prejudice:
Federal Rule of Civil Procedure 37 permits a party to file a motion for an
order compelling discovery if another party fails to respond to discovery requests,
provided that the motion to compel includes a certification that the movant has, in
good faith, conferred or attempted to confer with the party failing to respond to
the requests. Fed. R. Civ. P. 37(a)(1).
This requirement is not waived simply because the moving party is an
inmate proceeding without counsel. See, e.g., Hughes v. Lavender, No. 2:10-cv674, 2011 WL 1233481, at *3 (S.D. Ohio Mar. 29, 2011) (denying pro se
inmate’s motion to compel without prejudice to renewal after Rule 37(a)35
mandated conference had occurred and inmate made requisite certification);
Sneed v. Moore, No. 1:09-cv-043, 2009 WL 3599476, at *1 (S.D. Ohio Oct. 26,
2009) (denying pro se inmate’s motion to compel, in part, because he failed to
conclude a certification of good faith pursuant to Rule 37(a)); Lewis v. Randle,
No. C2-01-161, 2002 WL 483542, at *2 (S.D. Ohio Mar. 13, 2002) (same); see
also Rones v. Schrubbe, 451 F. App’x 585, 587 (7th Cir. 2011) (affirming trial
court’s denial of pro se inmate’s motion to compel on the grounds that he failed to
comply with Rule 37(a)’s requirement that he certify that he had conferred with
the opposing party).
(Dec. 17, 2015 Order, ECF No. 65.)
Notwithstanding this deficiency, review of the Motions to Compel reveals that the
information Plaintiff seeks to obtain through his pending Motions to Compel would not alter the
Undersigned’s foregoing recommendations. Thus, Plaintiff’s Motions to Compel are
alternatively DENIED AS MOOT.
For example, Plaintiff seeks to compel production of video footage that he maintains will
corroborate his allegations that Defendant Howard called him into the sally port. As discussed
above, Plaintiff acknowledges that he has had the opportunity to review the subject footage
twice. In addition, Defendants have filed all recovered video footage with the Court. (ECF No.
68-14.) With regard to the claims for which the Undersigned recommends judgment in
Defendants’ favor, the video evidence does not support Plaintiff’s alleged version of the events.
Moreover, as discussed above, his claims against Defendant Howard are Heck-barred. For this
same reason, Plaintiff’s request for an order compelling production of Defendant Howard’s
medical records lacks relevance.
In addition, Plaintiff asks this Court to compel a copy of the building B-1 inmate cell
location roster from July 9, 2013. Defendants have represented, however, that no such roster
exists. As Defendants point out, they do not have a duty to create documents that do not exist
simply to comply with a discovery request. See Miller v. Experian Info. Solutions, Inc., No.
36
3:13-cv-90, 2014 WL 5513477, at *2 (S.D. Ohio Oct. 31, 2014) (collecting cases establishing
that “[p]arties have no duty to create documents simply to comply with another party’s discovery
request.”); see also Brown v. Warden Ross Corr. Inst., No. 2:10–cv–822, 2011 WL 1877706, at
*5 (S.D. Ohio May 16, 2011) (“Defendants have represented that they do not have the
information Plaintiff seeks. The Court cannot require them to produce what they do not have.”).
Defendants’ objection to Plaintiff’s request for all disciplinary reports, informal
complaints, and grievances relating to all Defendants on the grounds that the request lacks
relevance, is overbroad, is unduly burdensome, and potentially implicates confidentiality
interests is sustained. Brooks v. Yates, No. 1:09-cv-922, 2011 WL 6257684, at *1 (S.D. Ohio
Dec. 15, 2011) (sustaining correction officers objection to inmate’s request for production of
officer’s disciplinary records on grounds of relevancy and overbreadth where inmate sought
records to demonstrate that the officers had a history of violent acts). Defendants’ objection to
Plaintiff’s request for the names of all of Defendants’ family members is likewise sustained on
relevance grounds.
In sum, Plaintiff’s Motions to Compel are DENIED, and the Clerk therefore is directed
to remove ECF Nos. 76 and 81 from the Court’s pending Motions list.
IV.
For the reasons set forth above, it is RECOMMENDED that Defendants’ Amended
Motion for Summary Judgment (ECF No. 92) be GRANTED IN PART AND DENIED IN
PART as detailed herein. In addition, Plaintiff’s Motions to Compel (ECF Nos. 76 and 81) are
DENIED, and the Clerk therefore is directed to remove ECF Nos. 76 and 81 from the Court’s
pending Motions list.
37
PROCEDURE ON OBJECTIONS
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).
IT IS SO ORDERED.
Date: September 13, 2016
/s/ Elizabeth A. Preston Deavers
_ _
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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