McCort v. Muskingum County et al

Filing 66

ORDER adopting and affirming the 34 Report and Recommendation in that 63 Defendants' Motion for Summary Judgment is granted in part and denied in part. Signed by Judge George C. Smith on 2/11/19. (sh)(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
DEANO MCCORT,
Plaintiff,
vs.

Case No.: 2:17-cv-620
JUDGE GEORGE C. SMITH
Magistrate Judge Jolson

MUSKINGUM COUNTY, et al.,
Defendants.

ORDER
On January 28, 2019, the United States Magistrate Judge issued a Report and
Recommendation recommending that Defendants Muskingum County, the Muskingum County
Sheriff’s Department, the Muskingum County Jail, Matt Lutz, David Soschi, and Travis
Nicholas’ Motion for Summary Judgment be granted in part and denied in part. (See Report and
Recommendation, Doc. 63). The parties were advised of their right to object to the Report and
Recommendation. This matter is now before the Court on Defendant Travis Nicholas’
Objections to the Report and Recommendation. (See Doc. 64). The Court will consider the
matter de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Defendant Travis Nicholas objects to the Magistrate Judge’s conclusion that summary
judgment on the excessive force claim against him should be denied. Defendant Nicholas’
objections are the same arguments presented in support of summary judgment, that Defendant
Nicholas did not see Plaintiff at the time of the incident and therefore he could not have been
deliberately indifferent to Plaintiff’s rights.

The Magistrate Judge correctly set forth the requirements to maintain a prima facie claim
for excessive force, a plaintiff must satisfy two elements: (1) that defendant(s) acted under color
of state law, and (2) that defendant(s) 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). Further, “a pretrial detainee must show only that force purposely
or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 135 S.
Ct. 2466, 2473 (2015).
Defendant Nicholas continues to argue that Plaintiff testified that Nicholas did not see
him and the Court agrees that the testimony suggests that Defendant Nicholas did not know that
Plaintiff was that close or that his hand was in the door. However, that is not the end of the
analysis. There has been no testimony that the open door posed a security threat, therefore no
need to use any force in shutting it, nor any force against Plaintiff. The evidence suggests that
Defendant Nicholas kicked a metal door shut crushing Plaintiff’s hand after a verbal altercation
with Plaintiff. The extent of Plaintiff’s injury could lead a jury to conclude Defendant Nicholas
used excessive force. See Kingsley, 125 S. Ct. at 2473.
Therefore, the Court agrees with the Magistrate Judge’s conclusion that there is a genuine
issue of material fact on Plaintiff’s excessive force claim against Defendant Nicholas. For the
reasons set forth above and as stated in the Report and Recommendation, this Court finds that
Defendant Nicholas’ objections are without merit and are hereby OVERRULED.
The Report and Recommendation, ECF No. 63, is ADOPTED and AFFIRMED.
Defendants’ Motion for Summary Judgment is GRANTED IN PART AND DENIED IN
PART.

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Judgment shall be entered in favor of all Defendants except Defendant Nicholas.
Plaintiff’s claim for excessive force against Defendant Nicholas remains pending.
The Court encourages the parties to participate in mediation on this remaining claim.
The parties shall contact Magistrate Judge Jolson’s chambers to schedule.
The Clerk shall remove Documents 34, 63, and 64 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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