Rogers v. Reed et al

Filing 50

REPORT AND RECOMMENDATION AND ORDER - The Magistrate Judge RECOMMENDS that 42 MOTION for Summary Judgment be GRANTED with respect to the claims against Sgt. Reed in his official capacity and DENIED in all other respects. Mr. Rogers' motion to proceed to trial (Doc. 38 ), Defendants' motion to compel (Doc. 39 ), and Mr. Rogers' motion to disclose (Doc. 40 ) are DENIED AS MOOT. Objections to R&R due by 7/5/2017. Signed by Magistrate Judge Terence P. Kemp on 6/21/2017. (agm)(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
Alterik Rogers,

:

Plaintiff,
v.

:
:

Sgt. Manard Reed, et al.,
Defendants.

Case No. 2:14-cv-2750

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION AND ORDER
Plaintiff, Alterik Rogers, currently an inmate at the
Belmont Correctional Institution, filed this action under 42
U.S.C. §1983 alleging that his constitutional rights were
violated during events which allegedly occurred while he was an
inmate at the Jefferson County Jail. This matter is now before
the Court on the following motions: (1) Mr. Rogers’ motion to
proceed to a jury trial; (2) Defendants’ motion to compel; (3)
Mr. Rogers’ motion to disclose; and (4) Defendants’ motion for
summary judgment. For the following reasons, it will be
recommended that Defendants’ motion for summary judgment (Doc.
42) be granted in part and denied in part. The motion to proceed
to a jury trial (Doc. 38), motion to compel (Doc. 39), and motion
to disclose (Doc. 40) will be denied as moot. Mr. Rogers’
malicious prosecution claim shall be stayed pending the
resolution of State v. Rogers, Jefferson Cty. Case No. 14CR012.
I.

Factual and Procedural Background

This case was filed by Mr. Rogers on December 29, 2014,
alleging that his constitutional rights were violated by Sgt.
Maynard Reed, Officer Reece Thompson, and the Jefferson County
Sheriff’s Department. (Doc. 1). He subsequently amended his
complaint to add the Jefferson County Prosecuting Attorney as a

defendant. (Doc. 6). A motion for partial dismissal was filed on
behalf of all defendants other than Sgt. Reed. (Doc. 14). The
Court subsequently dismissed all claims against the Jefferson
County Sheriff’s Department and the Jefferson County Prosecuting
Attorney, and all claims against Officer Thompson in his official
capacity. (Doc. 30, 32).
The facts of this case are summarized based on the pleadings
and evidence provided by the parties. The evidence submitted
includes a number of witness statements submitted by Mr. Rogers,
an affidavit of Mr. Rogers, incident reports prepared by
Defendants and another officer, the deposition of Mr. Rogers, and
various other documents.

On January 4, 2014, Mr. Rogers was

arrested in Jefferson County and charged with felonious assault,
contempt, having a weapon while under disability, tampering with
evidence, menacing by stalking, and a firearm specification.
(Doc. 42, Ex. A). He was subsequently indicted on February 5,
2014 for the charges of felonious assault and having a weapon
under a disability related to that arrest. Id., Ex. B. On the
same day, Mr. Rogers was indicted on a third count for menacing
by stalking, related to the events which occurred while he was
incarcerated at the Jefferson County jail on January 30, 2014,
which gave rise to this lawsuit. This last charge alleged that
Mr. Rogers made a physical threat or threats against Sgt. Reed.
Id. The menacing by stalking charge was subsequently severed into
a separate indictment. Following the filing of this lawsuit, the
Jefferson County Court of Common Pleas stayed the criminal case
until the resolution of this matter. Id., Ex. 7.

Mr. Rogers was

ultimately convicted by a jury of the charges of felonious
assault and having a weapon under a disability, and on June 30,
2014, he was sentenced to fourteen years’ incarceration. Id., Ex.
C.

-2-

The events giving rise to this case took place while Mr.
Rogers was held at the Jefferson County Jail following his
January 4, 2014 arrest. On January 30, 2014, Mr. Rogers was on
lockdown in a cell with other inmates, and some of them were
watching television. (Doc. 1, ¶9). By his own admission, Mr.
Rogers made a comment in the cell to other inmates that he was
going to “two-piece the drunk driver” (“drunk driver” referring
to the inmate who was operating the television remote control).
(Doc. 42, Ex J; hereinafter “Rogers Depo.”). According to Mr.
Rogers, “two-piece” is a slang term that means to stop. Id.
Defendants contest this definition, asserting that the term
actually means to punch someone twice. (Doc. 42, p. 3). Mr.
Rogers admits to making the statement, but claims that he did so
in jest and other inmates were laughing and joking along with
him. Rogers Depo., pp. 114-118, 122.

Sergeant Reed overheard Mr.

Rogers’ comment and yelled at him, accusing him of threatening
his porter, David Dameron, and ordered another officer to open
the cell. Rogers Depo. p. 114. Subsequently, Sgt. Reed and
Officer Thompson came to Mr. Rogers’ cell, ordered him to pack
his belongings, and told him he was going to solitary
confinement. Rogers Depo., p. 117. Mr. Rogers packed up his
belongings and began walking down the staircase, verbally
protesting and saying “I am going to the hole for what? This is
some pussy ass stuff. I didn’t do nothing to nobody.” Id. 118.
According to Mr. Rogers, at this point, and for no reason,
Sgt. Reed grabbed him by the neck, hit him in the head, and
dragged him down the stairs. Id. At some point while Mr. Rogers
was being dragged to the segregation cell, Sgt. Reed pushed his
head into the sally port door and Officer Thompson handcuffed him
from behind. Id. 120-126. Sgt. Reed then punched him in the back
of his head with a fist, struck him in the temple, hit him 7-8
times, and knocked him unconscious.
-3-

The beating continued when

Mr. Rogers was placed in the segregation cell, still handcuffed.
Id. 120-126, 129-130. Officer Thompson, who reported to Sgt.
Reed, held onto Mr. Rogers’ handcuffed wrists and stood by as
Sgt. Reed engaged in the attack. Id. 141-144; (Doc. 42, Ex. E).
Mr. Rogers has also submitted his own affidavit (Doc. 47-1)
and statement, as well as a number of signed statements from
individuals who were either in the group cell with him, or near
enough to see and/or hear at least portions of the incident.
These statements are from Francisco Ortiz, Duan Harris, Steven
West, Dustin Schockow, Randall Fazio, Jr., and Anthony Elmore.
(Doc. 1-1; Doc. 47-1). Duan Harris states that he was working the
remote control to the television when Mr. Rogers made the remark
about “two-piecing the drunk driver.” He explains that in this
context “driving drunk” means tuning into a television program
that no one wants to watch. Id. p. 7.

These individuals broadly

corroborate Mr. Roger’s version of events, stating that Mr.
Rogers did not threaten Sgt. Reed’s trustee/porter or Sgt. Reed.
Id. 7-8. However, none of the fellow inmates would have been able
to see the alleged attack that occurred in or near the
segregation cell.

Mr. Rogers also provides signed statements

from Zachary Hazeltine and William Vandyke which speak generally
to the reputation of Sgt. Reed as a corrections officer. (Doc. 11). Because those statements do not bear on the facts of this
case they will not be considered by the Court.
The majority of actions of Officer Thompson which give rise
to the allegations against him did not occur within view of any
of the fellow inmates who provided statements. Mr. Rogers
testified that once he and Defendants arrived at the entry to the
segregation cell, “they are pushing me, boom, boom....Reese
Thompson grabs my hands because your first reaction is to protect
yourself. Reese Thompson put my hands behind my back, put the
cuffs on... [Thompson] pushed me in there, held my hands,
-4-

[Thompson] - Sergeant Mana [sic] Reed started pushing me in my
head, started punching me in my temple.

Reese let go, because

Reese was in shock.” Rogers Depo, p. 130. Mr. Rogers speculated
that Officer Thompson was angry with Sgt. Reed for engaging in
the attack, but did not intervene to stop the assault. Id.
Defendants have submitted copies of Serious Incident Reports
prepared by Sgt. Reed, Officer Thompson, and Officer Debbie
Milewsky, which relay a very different version of events. (Doc.
42, Ex. D-F). These reports state that Mr. Dameron was changing
garbage bags within the group cell and Mr. Rogers asked him to
turn the television off, but Mr. Dameron did not comply and
continued to do his work. The officers assert that Mr. Rogers
threatened to “two-piece” Mr. Dameron, at which time Sgt. Reed
ordered Mr. Rogers into segregation for threatening a fellow
inmate.

A “voluntary statement” given by Mr. Dameron confirmed

that Mr. Rogers said he was going to “two piece” him (Mr.
Dameron). (Doc. 42, Ex. K). Mr. Rogers disputes this. He asserts
that he did not say anything to Mr. Dameron. Rogers Depo, pp.
116-117. The officers’ accounts reflect that Mr. Rogers resisted
being removed from the cell and verbally threatened Sgt. Reed,
stating that he would “see you in the streets” and “send bullets
your way.” Id. Defendants assert that the least amount of force
necessary was used to get Mr. Rogers into the segregation cell.
Id.
Mr. Rogers alleges that the attack caused him injuries
including dizziness, blurred vision, loss of balance, headaches,
memory loss, slurred speech, and swelling of the cranium, all
injuries consistent with head trauma. Rogers Depo. 139-147.

He

identified at his deposition a video screen shot of a knot on his
head following the incident. Id. 131.

Mr. Rogers asserts that he

was denied medical treatment despite his requests for help.

Id.

Defendants argue that Mr. Rogers was unable to distinguish any
-5-

alleged injuries from this incident from alleged injuries
sustained in a car accident approximately two weeks earlier.
Rogers Depo. 146. Defendants have also provided medical records
from Jefferson County Jail and Belmont Correctional Institution
(where he was eventually transferred) which do not reflect any
reported pain or injury related to the alleged attack by Sgt.
Reed.
In addition to the physical assault, Mr. Rogers also alleges
that Sgt. Reed falsified charges against him in relation to the
incident which prompted the Jefferson County Prosecutor to indict
him for menacing by stalking. Mr. Rogers asserts that prior to
being incarcerated, he lived five blocks from Sgt. Reed and knew
him and some of his family members. Additionally, the individual
with whom Mr. Rogers was charged with assaulting while in the
Jefferson County Jail was married to Sgt. Reed’s first cousin.
Mr. Rogers asserts that this situation caused Sgt. Reed to
retaliate against him, which is why he physically attacked him at
the jail, then falsely reported that Mr. Rogers had threatened
him, and convinced the prosecutor to bring the menacing by
stalking charge against him. Rogers Depo. P. 124-125, Doc. 47-1.
Mr. Rogers provides a number of affidavits from other inmates,
confirming that they were aware that Sgt. Reed wanted to do harm
to Mr. Rogers, and that they never heard Mr. Rogers threaten Sgt.
Reed. These affidavits support Mr. Rogers’ version of events, and
some inmates state that they specifically heard Sgt. Reed
threatening to go to the prosecutor to convince her to charge Mr.
Rogers with something. (Doc. 47-1; Affids. of Willis Stackhouse,
William Hughes, Steven West, Francesco Ortiz, Dustin Schockow,
and Randall Fazio, Jr.).
The original complaint further alleged that Jefferson County
Sheriff Abdalla, in his official capacity, was responsible for
the actions of Sgt. Reed and Officer Thompson.
-6-

Mr. Rogers also

alleged that Sgt. Reed and Ms. Hanlin, the Jefferson County
Prosecuting Attorney, conspired to maliciously prosecute him
based on false written statements created by Sgt. Reed. (Doc. 6).
The Court previously dismissed all claims against the Jefferson
County Sheriff’s Department and the Jefferson County Prosecuting
Attorney, and all claims against Officer Thompson in his official
capacity. Rogers v. Reed, 2015 WL 6144922 (S.D. Ohio Oct. 20,
2015), adopted, 2015 WL 7069668 (S.D. Ohio Nov. 13, 2015).

For

the remainder of this Report and Recommendation and Order,
“Defendants” shall refer to the remaining defendants, Sgt. Reed
and Officer Thompson.
Defendants filed their motion for summary judgment on
January 31, 2017, the deadline for such motions according to the
Court’s scheduling Order. (Doc. 42). As of April 6, 2017, Mr.
Rogers had not responded. The certificate of service in
Defendants’ motion showed that it had been mailed to the
Jefferson County Jail, so the Court directed Defendants to serve
Mr. Rogers at Belmont Correctional Institution, where he is now
incarcerated. Defendants filed a notice informing the Court that
it had originally served the motion for summary judgment on Mr.
Rogers at the correct address, but the certificate of service was
incorrect. Mr. Rogers filed a document entitled “motion for
summary judgment” on May 4, 2017. (Doc. 47). Because the deadline
for filing motions for summary judgment has passed, the Court
construes this as a response to Defendants’ motion for summary
judgment. Defendants argue that Mr. Rogers’ response to the
redelivered motion was untimely because it should have been filed
by May 1, 2017. Defendants filed a timely reply on May 19, 2017.
Mr. Rogers filed another document on June 13, 2017, as an
additional memorandum in opposition to Defendants’ motion for
summary judgment.

Pursuant to the Local Rule 7.2(a)(2) of this

Court, additional memoranda beyond the response and reply to a
-7-

motion are not permitted without leave of Court. Thus, the Court
will not consider the June 13, 2017, filing in its consideration
of Defendants’ motion.

However, the Court will exercise its

discretion to consider Mr. Rogers’ May 4, 2017, response to the
motion for summary judgment.
II.

Motion for Summary Judgment
A. Legal Standard

Summary judgment is not a substitute for a trial when facts
material to the Court’s ultimate resolution of the case are in
dispute.

It may be rendered only when appropriate evidentiary

materials, as described in Fed. R. Civ. P. 56(c), demonstrate the
absence of a material factual dispute and the moving party is
entitled to judgment as a matter of law.
Broad. Sys., Inc., 368 U.S. 464 (1962).

Poller v. Columbia
The moving party bears

the burden of demonstrating that no material facts are in
dispute, and the evidence submitted must be viewed in the light
most favorable to the nonmoving party.
Co., 398 U.S. 144 (1970).

Adickes v. S.H. Kress &

“[I]f the evidence is insufficient to

reasonably support a jury verdict in favor of the nonmoving
party, the motion for summary judgment will be granted.”

Cox v.

Kentucky Dept. of Transp., 53 F.3d 146, 150 (6th Cir. 1995)
(citation omitted).

Additionally, the Court must draw all

reasonable inferences from that evidence in favor of the
nonmoving party.
(1962).

United States v. Diebold, Inc., 369 U.S. 654

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in support
of any material element of a claim or defense on which that party
would bear the burden of proof at trial, even if the moving party
has not submitted evidence to negate the existence of that
material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
course, since “a party seeking summary judgment ... bears the
-8-

Of

initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a genuine
issue of material fact,” Celotex, 477 U.S. at 323, the responding
party is only required to respond to those issues clearly
identified by the moving party as being subject to the motion.
It is with these standards in mind that the instant motion must
be decided.
B.

Discussion

Defendants argue that summary judgment should be granted in
their favor because Mr. Rogers cannot provide evidence to satisfy
the components of an excessive force claim and because Defendants
are entitled to qualified immunity. Defendants do not address Mr.
Rogers’ malicious prosecution claim, i.e. that Sgt. Reed filed a
false statement against him, resulting in him being indicted for
menacing by stalking.
1. Official Capacity Claims Against Sgt. Reed
Sgt. Reed was not a movant in the previously ruled upon
motion to dismiss. To the extent that Mr. Rogers intends to sue
Sgt. Reed in his official capacity, the suit is treated as one
against the municipality, i.e. Jefferson County.

See, e.g.,

Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the
government entity receives notice and an opportunity to respond,
an official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity” (citation omitted)). The
Court undertook a full analysis of the official capacity claims
in its Report and Recommendation ruling on the motion to dismiss.
(Doc. 30). Mr. Rogers has not alleged that he was harmed by a
policy or custom of Jefferson County. Janis v. Marcum, 77
Fed.App’x 308, 310 (6th Cir. 2003). He has also not requested any
prospective relief, which may also allow a lawsuit to go forward
against a defendant in his or her official capacity. Gean v.
-9-

Hattaway, 330 F.3d 758, 776 (6th Cir. 2003). Without fully
revisiting the analysis therein, for the reasons set forth
previously by the Court in its Report and Recommendation (Doc.
30) with respect to the official capacity claims against other
defendants, the Court will recommend dismissal of all claims
against Sgt. Reed in his official capacity.
2. Excessive Force
To establish a prima facie claim under §1983, a plaintiff
must satisfy two elements: (1) that defendants acted under color
of state law, and (2) that defendants deprived plaintiff of a
federal statutory or constitutional right.

See, e.g., Flagg

Bros. v. Brooks, 436 U.S. 149, 155 (1978); Searcy v. City of
Dayton, 38 F.3d 282, 286 (6th Cir. 1994); United of Omaha Life
Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992) (per
curiam).

Conclusory allegations are insufficient to state a

claim under §1983.

Rhodes v. Chapman, 452 U.S. 337 (1981). Mr.

Rogers alleges that his constitutional rights were violated when
the Defendants used excessive force against him while he was
incarcerated at the Jefferson County Jail.
The substantive constitutional right raised by Mr. Rogers in
his excessive force claim arises under the Due Process Clause of
the Fourteenth Amendment, because he was a pretrial detainee at
the time of the incident.

While Estelle v. Gamble, 429 U.S. 97

(1976) and the Eighth Amendment Cruel and Unusual Punishment
clause, by their terms, apply only to persons who have been
convicted of a crime and, therefore, are subject to punishment,
persons who are incarcerated while awaiting trial cannot be
treated less favorably than persons who are in prison following
conviction. Consequently, although they are not protected by the
Eighth Amendment, pretrial detainees are protected by the
Fourteenth Amendment Due Process Clause.

See Bell v. Wolfish,

441 U.S. 520, 535-37 (1979); see also Leary v. Livingston Cnty.,
-10-

528 F.3d 438, 443 (6th Cir. 2008) (explaining that pretrial
detainees bring excessive-force claims under the Fourteenth
Amendment Due Process clause, whereas, “convicted prisoners may
bring excessive-force claims under the Eighth Amendment . . . and
‘free citizen[s]’ may bring such claims under the Fourth
Amendment”).

“The substantive component of Fourteenth Amendment

due process protects citizens against conduct by law enforcement
officers that ‘shocks the conscience.’”

Harris v. City of

Circleville, 583 F.3d 356, 365 (6th Cir. 2009) (citations
omitted).

The Court of Appeals has held that the Due Process

Clause protects a pretrial detainee from “excessive force that
amounts to punishment.”

Id. (citations omitted).

Under the Due

Process Clause, “an excessive-force claimant must show something
more than de minimis force.”

Leary, 528 F.3d at 443 (citations

omitted). A de minimus use of force by a prison official is not
normally a constitutional violation, but a §1983 plaintiff may
succeed on his claim even if he suffers only a minor injury.
Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).
Defendants argue that, even by Mr. Rogers’ own description
of the events, the use of force was de minimus. They assert that
Mr. Rogers’ allegations that he was hit in the head multiple
times to the point of unconsciousness are “wholly unsupported.”
Accepting Mr. Rogers’ testimony as true for these purposes, the
majority of the alleged excessive force occurred at the entrance
to and in the segregation cell, which was up to about 100 yards
from the cell he had been removed from. Rogers Depo., p. 125.
However, there is corroboration from other inmate witnesses that
Sgt. Reed’s use of force was excessive:
“...[Sgt. Reed] then grabs him by the neck of the shirt
collar dragging him out of the door. Once out the door
I also watch Sgt. Reed push and drag inmate Alterik
Rogers down the hallway by the shirt collar until I
could not see a visual of him anymore.”

-11-

Doc. 1-1; Statement of Francisco Ortiz.
“...when they finally got to the cell Sgt. Maynard Reed
and C/O Thompson went into the cell, I heard another
commotion like it was a physical altercation inside the
cell, I then hear inmate [Rogers] say ‘now what was
that for’ and begin to laugh. I know [Rogers]
personally, so when I hear the commotion I asked him
‘what’s up and is he alright?’ He stated to me ‘he was
good’ and that ‘Sgt. Reed has just beat me in my
head.’”
Id. Statement of Anthony Elmore.
Defendants assert that because Mr. Rogers admits that he
laughed during the attack and because he did not seek medical
attention, this proves that the force used was de minimus.
However, Mr. Rogers testified that his reaction to being punched
was to laugh because he was in “so much pain.” Rogers Depo., pp.
131-132. He also alleges that despite his requests for medical
assistance he was not permitted to see a nurse or doctor for his
head injuries. The lack of reference to head injuries in the
medical records submitted by Defendants is also not conclusive.
Those medical records were purportedly gathered in relation to
another lawsuit filed by Mr. Rogers arising from a car accident
while in the custody of Jefferson County. The fact that nothing
was written down in those records regarding head injuries does
not necessarily lead to a conclusion that no injury existed. In
addition, in his deposition, Mr. Rogers’ identified a knot on his
head from some video footage taken after the alleged incident.
Rogers Depo. 130-131.
Defendants further argue that there is no question that
there was a rational basis for the use of force against Mr.
Rogers because he admitted to making a threat against another
inmate (i.e. the “two-piece” comment) and he threatened Sgt.
Reed.

However, all of the supporting statements and affidavits

of inmate witnesses to the incident corroborate Mr. Rogers’

-12-

assertion that the “two-piece” comment was made in jest and that
he did not resist or threaten Mr. Dameron or Sgt. Reed. When
“reviewing a summary judgment motion, credibility judgments and
weighing of the evidence are prohibited.” Schreiber v. Moe, 596
F.3d 323, 333 (6th Cir. 2010) (internal citations and quotation
marks omitted). Here, there is clearly a dispute over what
happened. The incident reports filed by the corrections officers
state that Mr. Rogers threatened Mr. Dameron and Sgt. Reed, and
resisted being moved to segregation. This is directly
contradicted by Mr. Rogers’ and the other inmates’ accounts of
the events.

The Sixth Circuit Court of Appeals considered a

similar case involving a claim of excessive force by an inmate,
in which there were directly conflicting accounts of the events
by inmates as opposed to corrections officers.

Alspaugh v.

McConnell, 643 F.3d 162 (6th Cir. 2011) (reversing the District
Court’s grant of summary judgment for the defendants because it
had engaged in an improper credibility determination). Similar to
Mr. Rogers, the plaintiff in Alsbaugh contended that he was not
resisting the officer, and he showed evidence that he suffered an
injury. There is narrow exception to the Alspaugh holding where
the inmate plaintiff concedes that the use of force was
necessary, minimal force was applied, and only minimal injuries
occurred, but that is not the case here. See Lockett v. Suardini,
526 F.3d 866 (6th Cir. 2008) (dispute between statements of
corrections officers and inmates was insufficient to overcome
defendants’ motion for summary judgment where those concessions
were made by the plaintiff). Mr. Rogers does not concede that any
force was necessary or that minimal force was applied. Sgt. Reed
was the primary actor in the alleged excessive use of force, and
clearly there exists a genuine factual dispute as to whether he
did what Mr. Rogers claims he did.

-13-

Officer Thompson’s role was much more limited, according to
Mr. Rogers, and involved restraining him from behind, handcuffing
him, pushing him into the segregation cell, and failing to
intervene to stop the alleged assault. The Court of Appeals has
recognized that a correctional officer who observes an unlawful
beating may be liable under §1983 notwithstanding the fact that
he or she did not entirely participate in the assault. Gregg v.
Ohio Dept. of Youth Services, 661 F.Supp.2d 842, 855 (S.D. Ohio
2009), citing McHenry v. Chadwick, 896 F.2d 184, 187 (6th Cir.
1990). In McHenry, only one officer was alleged to have actively
beaten the plaintiff, but other officers were present and did not
intervene to stop the assault. Those officers were also found
liable because they breached their duty to protect the plaintiff.
Id. In this case, the Court previously denied the defendants’
motion to dismiss the claims against Officer Thompson because it
stated a plausible claim on the fact of the pleading for an
alleged failure to intervene.

The Court stated that “at best,

Officer Thompson did not intervene to stop the alleged assault he
was witnessing and, at worst, made it easier for Sgt. Reed to
carry out the assault.” (Doc. 30, p. 12). Mr. Rogers did not
articulate in the complaint or amended complaint that Officer
Thompson participated in the assault, only that he restrained Mr.
Rogers and failed to intervene. However, in his deposition he
testified that Officer Thompson pushed him into the segregation
cell. Defendants’ accounts of the events is squarely at odds with
that of Mr. Rogers.

As discussed above, summary judgment is not

the appropriate forum in which to make credibility
determinations.
Because there are genuine issues of material fact in dispute
which go to the crux of the allegations of excessive force, it
will be recommended that Defendants’ motion for summary judgment
be denied as to that claim.
-14-

-15-

3. Malicious Prosecution
Defendants do not address Mr. Rogers’ malicious prosecution
claim in their motion for summary judgment. “In order to prevail
on a §1983 claim of malicious prosecution, a plaintiff must show
that the defendants prosecuted [him] with malice and without
probable cause, and that they did so for the purpose of denying
[him] equal protection or another specific constitutional right.
Malicious prosecution actions are not limited to suits against
prosecutors but may be brought, as here, against other persons
who have wrongfully caused the charges to be filed.” Awabdy v.
City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (internal
citations and quotations omitted).

To succeed on a malicious

prosecution claim under §1983, a plaintiff must prove that “(1)
the defendant made, influenced, or participated in the decision
to prosecute the plaintiff; (2) there was no probable cause for
the criminal prosecution; (3) as a consequence of the legal
proceedings, the plaintiff suffered a deprivation of liberty
apart from the initial arrest; and (4) the criminal proceeding
was resolved in the plaintiff's favor.” Webb v. United States,
789 F.3d 647, 659 (6th Cir. 2015) (citing Sykes v. Anderson, 625
F.3d at 308–09).
The problem with this claim is that so long as the state
case remains stayed, Mr. Rogers will be unable to satisfy the
final element of malicious prosecution, i.e. that the state
criminal proceeding was resolved in his favor.
claim has not yet accrued.

In essence, the

It is standard practice to stay

proceedings on such a claim until the state court criminal matter
is concluded.

See e.g. Kennedy v,. City of Villa Hills, 2008 WL

650341 (E.D. Ky. March 6, 2008). Consequently, further
proceedings on the malicious prosecution claim will be stayed
pending the resolution of the criminal case in the Jefferson
County Court of Common Pleas.
-16-

4.

Qualified Immunity

Defendants argue that they are entitled to qualified
immunity because “the undisputed facts show that Defendants used
a minimal amount of force...” (Doc. 42, p. 14). Ordinarily, the
Court must undertake a three-step analysis in determining whether
qualified immunity applies. First, the Court should identify the
specific constitutional right that the defendant or defendants
allegedly violated. Second, the Court should determine whether,
viewing the facts most favorably to the plaintiff, a violation of
that right has been established. Finally, the Court should decide
whether a reasonable state official would have known, at the time
the action occurred and in light of the “clearly established
law,” that the plaintiff's constitutional rights had been
violated. If so, qualified immunity is unavailable. See Dickerson
v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). This Court has
discretion to determine which of the prongs of the qualified
immunity analysis should be addressed first in view of the
particular circumstances of a given case. Pearson v. Callahan,
555 U.S. 223 (2009). As discussed above, there is a factual
dispute as to whether Defendants violated Mr. Rogers’
constitutional rights.

If the factual dispute is ultimately

resolved in Mr. Rogers’ favor then Defendants, as reasonable
state officials, would have known that their actions violated
clearly established law.

Thus, Defendants are not entitled to

qualified immunity.
III.

Recommendation and Order

For the foregoing reasons, it is recommended that
Defendants’ motion for summary judgment (Doc. 42) be granted with
respect to the claims against Sgt. Reed in his official capacity
and denied in all other respects. Mr. Rogers’ motion to proceed
to trial (Doc. 38), Defendants’ motion to compel (Doc. 39), and
Mr. Rogers’ motion to disclose (Doc. 40) are denied as moot.
-17-

Further, all proceedings on the malicious prosecution claim are
stayed pending the resolution of State v. Rogers, Jefferson Cty.
Case No. 14CR012.
PROCEDURE ON OBJECTIONS/MOTION FOR RECONSIDERATION
If any party objects to the Report and Recommendation on the
summary judgment motion, that party may, within fourteen days of
the date of this Report, file and serve on all parties written
objections to those specific proposed findings or recommendations
to which objection is made, together with supporting authority
for the objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.
Upon proper objections, a judge of this Court may accept, reject,
or modify, in whole or in part, the findings or recommendations
made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions.

28 U.S.C.

§636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
As to the orders issued, any party may, within fourteen days
after this Order is filed, file and serve on the opposing party a
motion for reconsideration by a District Judge.

28 U.S.C.

§636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division
Order No. 91-3, pt. I., F., 5.

The motion must specifically

designate the order or part in question and the basis for any
objection.

Responses to objections are due fourteen days after

objections are filed and replies by the objecting party are due
-18-

seven days thereafter.

The District Judge, upon consideration of

the motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp
United States Magistrate Judge

-19-