Wallace v. Montgomery County Ohio/Montgomery County Board of Commissioners et al

Filing 49

ENTRY AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 28 OF DEFENDANTS MONTGOMERY COUNTY, OHIO AND THE MONTGOMERY COUNTY BOARD OF COMMISSIONERS AND MONTGOMERY COUNTY SHERIFF PHIL PLUMMER. Signed by Judge Thomas M. Rose on 11-5-2018. (de)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DARYL WALLACE,
Plaintiff,
v.
MONTGOMERY COUNTY, OHIO,
et al.,
Defendants.

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Case No. 3:17-cv-183
Judge Thomas M. Rose

ENTRY AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
(DOC. 28) OF DEFENDANTS MONTGOMERY COUNTY, OHIO AND THE
MONTGOMERY COUNTY BOARD OF COMMISSIONERS AND
MONTGOMERY COUNTY SHERIFF PHIL PLUMMER

This case is before the Court on the Motion for Summary Judgment (Doc. 28) filed by
Defendants Montgomery County, Ohio and Montgomery County Board of Commissioners and
Montgomery County Sheriff Phil Plummer (“Montgomery County Defendants”). The case arises
out of an incident at the Montgomery County Jail on September 28, 2015 involving Plaintiff Daryl
Wallace (“Plaintiff”), a detainee at the jail, and former corrections officer Jerrid Campbell.
Plaintiff brought this action under 42 U.S.C. § 1983 against the Montgomery County Defendants
and Campbell for an alleged violation of his civil rights.
On October 31, 2017, the Montgomery County Defendants and Plaintiff entered into a
settlement agreement, which resolved the claims between them as well as all of Plaintiff’s claims
against Campbell. (Doc. 28 at 10.) Shortly thereafter, the Court granted Plaintiff’s Motion to
Dismiss his claims against all Defendants. (Docs. 23-24.) Due to pending cross-claims between
the Montgomery County Defendants and Campbell, the dismissal of Plaintiff’s claims did not

resolve the case.
On February 14, 2018, the Court granted Campbell’s Motion for Judgment on the
Pleadings, which dismissed the Montgomery County Defendants’ Cross-Claim. (Doc. 33.) In
the same Order, the Court also granted the Montgomery County Defendants’ Motion to Dismiss
Count III of Campbell’s Cross-Claim. As a result, the only remaining claims in this case are
Counts I, II, and IV through VIII of Campbell’s Cross-Claim.
The Motion for Summary Judgment now before the Court is directed at Counts I and II of
Campbell’s Cross-Claim. In Count I, Campbell alleges that Montgomery County has a duty to
provide representation for him under Ohio Rev. Code 2744.07. In Count II, he alleges that
Montgomery County has a duty to indemnify him under the same statute. In his Opposition to
the Motion for Summary Judgment, however, Campbell conceded that his indemnification claim
is now moot.

(Doc. 34.)

The Montgomery County Defendants’ Reply therefore focuses

exclusively on the claim for representation. (Doc. 37.) Campbell later requested leave to file an
affidavit in support of his Opposition, which the Court granted.

(Docs. 40-41.)

The

Montgomery County Defendants filed a Response (Doc. 42) to the affidavit; no reply was
permitted. On November 2, 2018, at Campbell’s request, the Court held a hearing on the Motion
for Summary Judgment and, specifically, Montgomery County’s duty to defend under Ohio Rev.
Code 2744.07. This matter is now fully briefed and ripe for review.
As discussed below, no genuine issue of material fact exists concerning Montgomery
County’s duty to defend under Ohio Rev. Code 2744.07, which provides that an employee is
entitled to representation only “if the act or omission occurred while the employee was acting both
in good faith and not manifestly outside the scope of employment or official responsibilities.”

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Ohio Rev. Code 2744.07(C). Under the facts in this case and in line with relevant Sixth Circuit
precedent, no reasonable juror could find that Campbell acted in good faith during the incident at
the Montgomery County Jail. The Court therefore GRANTS the Motion for Summary Judgment
(Doc. 28) and DISMISSES Counts I and II of Campbell’s Cross-Claim.
I.

BACKGROUND
On September 28, 2015, Plaintiff Daryl Wallace was a detainee at the Montgomery County

Jail, where Campbell worked as a Corrections Officer. That day Campbell supervised the “Delta
Pod” of inmates, which included Plaintiff. The pod was on “lockdown” for certain periods due
to an incident the previous day. Plaintiff asked Campbell why they were on lockdown and
complained that his water had been cold for the last couple days. When Campbell replied that
maintenance would not be able to come right away, Plaintiff became agitated.
Several hours later, Campbell observed Plaintiff being “very loud and disruptive” while
out of his cell to get medication.

Plaintiff approached Campbell’s desk, which prompted

Campbell to instruct him to “Get back!” Plaintiff replied, “I been to prison before and I’ll act a
fool in here, I don’t give a shit.” Plaintiff’s statement made Campbell fearful. Campbell ordered
Plaintiff to return to his cell. Plaintiff ultimately complied and slammed his cell door.
Later still, during a mealtime, Campbell observed Plaintiff yelling obscenities, some of
which were directed at Campbell. Campbell ordered the inmates to turn in their food trays for a
lockdown. Plaintiff approached Campbell’s desk and demanded that maintenance fix the water
in his cell. Campbell told him that maintenance was not coming to his cell and ordered him to
“lockdown.” Campbell told Plaintiff to lockdown six to seven more times, which he refused.
Campbell called for additional officers to assist with an inmate refusing to lockdown. Campbell

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then ordered the other inmates to lockdown, which they ignored. Campbell became scared at this
moment and ordered Plaintiff to lockdown.
Plaintiff again refused to return to his cell. Campbell told Plaintiff to put his hands
behind his back, which he also refused to do. At this point, a jail security camera captured the
incident between Campbell and Plaintiff. The video shows Plaintiff entering into view in the rear
right portion of the screen in front of the staircase leading up to the second floor of Delta Pod.
Within seconds, Campbell enters the screen from behind the staircase, meeting Plaintiff at its base.
Campbell removes his handcuffs from his belt as Plaintiff walks away from him, directly in front
of a bay of windows. Plaintiff and Campbell briefly stop, face each other, and appear to exchange
words—the video does not have audio. Without any visible movement from Plaintiff, Campbell
quickly raises his arms and pushes Plaintiff’s head, causing Plaintiff’s upper torso to bend to his
right (the left of the screen) before he stumbles and begins falling to the ground. Campbell moves
quickly toward Plaintiff as he stumbles and pushes him all the way to the ground. While Plaintiff
remains on the ground, Campbell throws a series of alternating punches with his right and left
hands at Plaintiff’s head and upper body. Reflections from the handcuffs in Campbell’s right
hand are visible while he throws punches; it is unclear, however, how they are positioned.
After two or three solid punches to the back of his head, Plaintiff pushes Campbell off of
him and regains his footing. Campbell backpedals away, loses his balance, and knocks two chairs
out of their place in a common area while falling to the ground. Campbell quickly gets back up,
however, and walks back to confront Plaintiff, who is now standing. Plaintiff and Campbell stand
face-to-face and possibly exchange words, then Campbell pushes Plaintiff again. Just as they
faced each other, another corrections officer walked briskly toward them from the right side of the

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screen. Before the other officer arrived, however, Campbell already pushed Plaintiff, causing him
to fall into some chairs along the wall and under the bay of windows. Campbell lands additional
punches on Plaintiff while the other officer assists in restraining Plaintiff on the ground.
Campbell attests that Plaintiff cursed at him repeatedly during the incident and threatened
him bodily harm. Campbell claims that Plaintiff initially “took an aggressive stance and moved
his upper torso forward” in a threatening manner, which prompted Campbell to shove him. The
video, however, does not show Plaintiff making any movement toward Campbell to provoke the
incident. Campbell also attests that he was in fear for his life—due to threats from Plaintiff and
inmates watching the incident—and felt dazed and confused after falling into the chairs.
Plaintiff alleged that Campbell used the handcuffs as makeshift brass knuckles. The video
does not contain the level of detail necessary to confirm this allegation. The video does show,
during the first series of punches, Campbell landing two or three solid punches with his right hand
to the back of Plaintiff’s head. Later, the EMT who examined Plaintiff documented a cut to the
back of Plaintiff’s head, which is consistent with the handcuffs being wielded as a weapon.
Montgomery County Sheriff’s Office Sergeant Scott Chapman, who was the officer
assigned as the Second Watch Housing Sergeant at the time of the incident, reviewed the video on
the day it occurred. Sergeant Chapman authored a memorandum, dated November 28, 2015,
which opined that Campbell violated the Jail’s Confrontational Policy and possibly its Use of
Force Policy. This memorandum was ultimately delivered to Chief Deputy Rob Streck, who
oversees the operations of the Montgomery County Sheriff’s Office Inspectional Services Unit.
On September 29, 2015, Chief Deputy Streck assigned the incident to the Inspectional
Services Unit for further investigation. Sergeant Dave Parin and Detective Bryan Cavender

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conducted witness interviews, including an interview of Campbell, and reviewed the video footage
and incident reports to determine if Campbell’s conduct complied with Montgomery County
Sheriff’s Office and Montgomery County Jail Policy.
Following an initial administrative review, Detective Walt Steele of the Montgomery
County Sheriff’s Office also conducted an investigation—which included fifty-six interviews—
and presented his findings to the Montgomery County Prosecutor’s Office for review. The
Prosecutor’s Office did not accept the filing of any felony charges relating to Campbell’s conduct.
Detective Steele then presented the case to the Dayton Prosecutor’s Office, which declined to
accept any misdemeanor charges for Campbell’s conduct.
Despite the fact that no criminal charges were accepted, the Montgomery County Sheriff’s
Office’s internal investigation concluded that Campbell violated Montgomery County Jail’s
Confrontational Policy and Montgomery County Sheriff’s Office Professional Conduct Rule 1
Violation of Rules. (Ex. A-1; Ex. A-3.)
The internal investigation also made the following factual findings:
[…] Officer Campbell did not notify his supervisor, Sergeant Judy Sealey, of the
issues he was having with Mr. Wallace during his shift […]
[. . .] Officer Campbell’s response to Mr. Wallace’s refusal to obey commands was
excessive. Mr. Wallace was not threatening or physically fighting with Officer
Campbell.
Officer Campbell immediately closed in on Mr. Wallace as he (Wallace) fell into
the chairs. Mr. Wallace attempted to get back up and Officer Campbell pushed Mr.
Wallace again and then started punching Mr. Wallace in the head and upper body
with closed fists. Again Officer Campbell’s response to Mr. Wallace was excessive
for Mr. Wallace’s actions of trying to stand-up.
[…] Officer Walker assisted Officer Campbell take Mr. Wallace to the ground,
Officer Campbell then delivered two more closed fist strike[s] to the right side of
Mr. Wallace. Mr. Wallace did not appear to be resisting at that time. Officer

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Campbell’s action of delivering two closed fist strikes as Mr. Wallace was taken to
the ground was excessive.
In Officer Campbell’s report, he wrote Mr. Wallace moved his upper body toward
him. Officer Campbell wrote he felt as if Mr. Wallace threatened him (Campbell)
by his actions and that is why he pushed Mr. Wallace into the chairs. I reviewed the
video and did not see Mr. Wallace move his upper body toward Officer Campbell.
Mr. Wallace stood looking up at Officer Campbell with his arms at his side before
Officer Campbell pushed Mr. Wallace into the chairs.
The Montgomery County Sheriff’s Office trains its employees to follow the ActionResponse Continuum. In this case, Officer Campbell did not follow the continuum
as trained. Officer Campbell’s force was not in response to Mr. Wallace’s actions.
(Ex. A-3.) Based on these findings, the internal investigation also concluded that Campbell
violated Montgomery County Sheriff’s Office Policy 1.1.3 Use of Force, Section A. (Ex. A-1;
Ex. A-3 at 16-17.)

Lastly, the internal investigation determined Campbell violated the

Montgomery County Sheriff’s Office Professional Conduct Rule 36, governing use of force. (Ex.
A-1; Ex. A-3 at 17.)
Based on the findings of the internal investigation, Campbell received a written Order of
Suspension, which included a ten working day unpaid suspension and remedial training. (Ex. A2; Ex. A.) The Order of Suspension states that Campbell is suspended due to the incident
involving Plaintiff and another, unrelated incident regarding use of force at the Montgomery
County Jail. Campbell has since been terminated from his employment with the Montgomery
County Sheriff’s Office for continued violations of Montgomery County Sheriff’s Office and
Montgomery County Jail Policy. (Ex. A.)
II.

LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Alternatively, summary judgment is denied “[i]f there are any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986)).
The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file together with the affidavits which it believes demonstrate
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The burden then shifts to the nonmoving party who “must set forth specific facts showing
that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P. 56(e)).
Once the burden of production has shifted, the party opposing summary judgment cannot rest on
its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go
beyond the [unverified] pleadings” and present some type of evidentiary material in support of its
position. Celotex Corp., 477 U.S. at 324.
In determining whether a genuine issue of material fact exists, a court must assume as true
the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party.
Anderson, 477 U.S. at 255. If the parties present conflicting evidence, a court may not decide
which evidence to believe by determining which parties’ affirmations are more credible. 10A

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Wright & Miller, Federal Practice and Procedure, § 2726. Rather, credibility determinations
must be left to the fact-finder. Id. However, the mere existence of a scintilla of evidence in
support of the nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S.
at 252. “There must be evidence on which the jury could reasonably find for the plaintiff.” Id.
The inquiry, then, is whether reasonable jurors could find by a preponderance of the evidence that
the nonmoving party is entitled to a verdict. Id.
In ruling on a motion for summary judgment, “[a] district court is not ... obligated to wade
through and search the entire record for some specific facts that might support the nonmoving
party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied,
494 U.S. 1091 (1990). Thus, the court is entitled to rely upon the Rule 56 evidence specifically
called to its attention by the parties. The Rule 56 evidence includes the verified pleadings,
depositions, answers to interrogatories and admissions on file, together with any affidavits
submitted. Fed. R. Civ. P. 56(c).
III.

ANALYSIS
As discussed, the parties agree that Count II of Campbell’s Cross-Claim, for

indemnification under Ohio Rev. Code 2744.07, is moot.

That claim will be dismissed.

Accordingly, the Court’s analysis addresses only Count I for representation under Section 2744.07.
Section 2744.07(A)(1) of the Ohio Revised Code states:
. . . a political subdivision shall provide for the defense of an employee, in any state
or federal court, in any civil action or proceeding which contains an allegation for
damages for injury, death, or loss to person or property caused by an act or omission
of the employee in connection with a governmental or proprietary function. The
political subdivision has the duty to defend the employee if the act or omission
occurred while the employee was acting both in good faith and not manifestly
outside the scope of employment or official responsibilities. Amounts expended by
a political subdivision in the defense of its employees shall be from funds
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appropriated for this purpose or from proceeds of insurance. The duty to provide
for the defense of an employee specified in this division does not apply in a civil
action or proceeding that is commenced by or on behalf of a political subdivision.
Ohio Rev. Code 2744.07(A)(1). Assuming the lawsuit meets the requirements set forth in the
first sentence of the paragraph, an employee is entitled to representation if, at the time of the
alleged act or omission, he was acting (1) in good faith, and (2) not manifestly outside the scope
of employment or official responsibilities. Id. Under Section 2744.07(C), “[t]he pleadings shall
not be determinative of whether the employee acted in good faith or was manifestly outside the
scope of employment or official responsibilities.” Ohio Rev. Code 2744.07(C). Both the good
faith and scope of employment prong must be met; accordingly the failure to establish either prong
is fatal to a demand for representation. The Montgomery County Defendants argue they are
entitled to summary judgment because no reasonable juror could find that Campbell was acting
either in good faith or not manifestly outside the scope of his employment when he engaged
Plaintiff on September 28, 2015. Campbell disagrees as to both prongs. 1
Bad faith is “[t]he opposite of ‘good faith,’ generally implying or involving actual or
constructive fraud, or a design to mislead or deceive another, * * * not prompted by an honest
mistake as to one's rights or duties, but by some interested or sinister motive.” Lowry v. Ohio
State Highway Patrol, No. 96API07-835, 1997 WL 84656, at *5 (Ohio Ct. App. Feb. 27, 1997)
(quoting Black’s Law Dictionary (5th Ed.1979), 127).
Here, even assuming that Campbell’s conduct was not manifestly outside the scope of his
duties, no genuine issue exists regarding the fact that he failed to act in good faith. As to this

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Campbell also argued that his claim should not be dismissed because he was entitled to a hearing under Ohio Rev.
Code 2744.07(C). As mentioned, on November 2, 2018, the Court held a hearing on the Motion for Summary
Judgment and Montgomery County’s duty to defend. Campbell’s argument that he is entitled to a hearing is
therefore moot.

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issue, the Court is guided by the Sixth Circuit’s recent decision in Anderson v. Sutton, 717 F. App’x
548 (6th Cir. 2017), in which it overturned a district court’s finding, after a bench trial, that an
officer at a county jail acted in good faith during an altercation with an inmate.
In Anderson, the defendant, Connie Sutton, was a corrections officer in a county jail. The
plaintiff, Holly Anderson, was an inmate at the jail under Sutton’s supervision. Anderson brought
claims against Officer Sutton for violation of her civil rights under 42 U.S.C. § 1983. Officer
Sutton sought a legal defense from the county under Ohio Rev. Code 2744.07(A)(1).
The Sixth Circuit’s recitation of the facts in Anderson shows the similarities between it and
this case:
On June 13, 2012, corrections officer Connie Sutton was responsible for overseeing
the female section of the Portage County Jail. She was the only officer on duty at
the time of the incident in question, and the unit was overcrowded: it had capacity
for 34 inmates but housed 52, resulting in cramped conditions. Inmates reportedly
were angry about the overcrowding.
At around 8:00 pm, Anderson was in the prison’s common area. She then walked
through an open doorway to Sutton’s desk, to ask permission to attend a church
service. Sutton refused, saying church was a privilege and Anderson had been
“nasty” all day. Anderson returned to the common area. A few minutes later, she
went back to Sutton’s desk to request prison grievance forms for herself and a
friend. Sutton gave a form to Anderson, but said the friend would have to request
one herself. What happened next was captured on two different video cameras.
Anderson returned to the common area and said something to Sutton. She continued
walking away, then turned and said something else. According to Sutton, Anderson
called her a “n[***] bitch” and vowed to “take her down.” Sutton called *550
Anderson a “bald-headed heifer.” Anderson walked away, towards cell #43. A
moment later, Sutton also walked in that direction, holding a grievance form to give
to the inmate in that cell. Anderson turned to face Sutton, seeming to impede her
progress. At that point, she may have poked Sutton in the chest. The two traded
insults, inches apart, until Sutton pushed Anderson away. They then advanced
towards each other until Sutton again pushed Anderson away.
A fight ensued. Both Sutton and Anderson threw punches. After about 10 seconds,
Sutton wrestled Anderson to the ground. While Anderson was on the ground,

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Sutton got on top of Anderson, put her hands around Anderson’s neck, and
repeatedly punched and slapped her in the face. She appeared to choke Anderson,
who was squirming beneath her, largely helpless. Anderson eventually managed to
crawl a few feet away, at which point she pushed Sutton backward with her feet.
She then turned to look at her elbow, which was apparently injured. She made no
attempt to get up or otherwise resume the confrontation. While Anderson was lying
on the ground, not resisting, Sutton slowly and deliberately walked over and
sprayed her in the face with “OC spray,” i.e., pepper spray. Anderson shook her
head back and forth in an attempt to avoid the spray and then sat on her knees,
hunched over and exhausted. Again, she made no attempt to get up or otherwise
resume the confrontation. Nonetheless, Sutton walked around her and again
sprayed her in the face with pepper spray. At that point, the altercation ended.
Anderson was hunched over panting, repeatedly saying “I can’t breathe.”
Within 24 hours, the County put Sutton on administrative leave. Two days later,
Sutton was fired. She was later convicted in Ohio state court of aggravated
felonious assault on Anderson. The jury in that case rejected Sutton’s defense that
her use of force was justified.
Anderson, 717 F. App’x at 549–50.
The district court in Anderson denied the county’s motion for summary judgment on
Officer Sutton’s duty-to-defend claim, which then proceeded to a bench trial. After the bench
trial, the district court found that Officer Sutton was entitled to a defense. In its findings, the
district court “blamed Anderson for the fight, finding that she had crossed the red line surrounding
Sutton’s desk, refused Sutton’s orders, escalated the confrontation by poking Sutton’s shoulder,
and invaded Sutton’s reactionary gap.” Anderson, 717 F. App’x at 552. The Sixth Circuit
observed that the district court also found, at least implicitly, that Officer Sutton used pepper spray
to subdue Anderson, not to inflict gratuitous punishment. Id.
The Sixth Circuit held that the district court’s findings were clearly erroneous and reversed
on the issue of good faith. The Sixth Circuit held, “our review of the video convinces us that
[Sutton] failed to act in good faith when she twice walked over to Anderson to administer pepper
sprays that were clearly unnecessary.” Id. The Sixth Circuit continued, “The video of the

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incident […] shows that when Sutton first sprayed Anderson, Anderson was lying on her back,
holding her elbow. She was not a threat. When Sutton sprayed Anderson the second time,
Anderson was on her knees, hunched over, looking at the ground. Again, she was not a threat.”
Id. The Sixth Circuit concluded, in its analysis of this video evidence, that “we are convinced
that Sutton was attempting to punish or retaliate against Anderson for Anderson’s role in the fight.
And because we find that Sutton was attempting to inflict gratuitous physical punishment, we
conclude that she was not acting in good faith. Therefore, the County has no obligation to defend
her.” Id.
The similarities between Anderson and this case are (or should be) obvious. In both cases,
a corrections officer at a county jail was involved in an altercation with an inmate. In both cases,
the inmate and corrections officer exchanged hostile or abusive words, confronted each other, and
that confrontation rose to physical violence.

There are differences between the cases.

In

Anderson, Officer Sutton used pepper spray against the inmate after it was no longer necessary to
control the situation. Here, Campbell did not use pepper spray. Instead, he used his fists, one of
which was holding handcuffs. The difference in the weapons used is not material. The same
question must be answered in both cases – namely, was the use of force so far beyond what was
necessary to further a legitimate penological interest that a reasonable juror could not infer that the
officer acted in good faith?
As in Anderson, a reasonable juror in this case could not find that Campbell acted in good
faith. A review of the policies and procedures governing the use of force by Montgomery
County’s corrections officers is helpful in framing the issue in this case. Under Montgomery
County Sheriff’s Office Policy 1.1.3 Use of Force, Section A, Force to Effect Lawful Objectives,

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personnel “may use force only to protect themselves and others, or to effect an arrest and detain
an individual.” (Doc. 28-1 at 5.) In addition, “[a]ll personnel should view force as continuous
succession or a continuum, where the escalation of force is in direct proportion to an appropriate
objective.” Id. Under Montgomery County Sheriff’s Office Professional Conduct Rule 36,
“[e]mployees must never use more force in any situation than is reasonable under the
circumstances.” (Doc. 28-2 at 31.)
The Montgomery County Jail Manual contains similar guidelines, emphasizes defusing a
potentially hostile situation, and directs officers to remove themselves from a confrontation
whenever possible. It states, “When a staff member realizes that his communication with a
prisoner is escalating into a confrontation, he attempts to defuse the situation by using his
interpersonal communication and body language skills.” (Doc. 28-2 at 24-25.) It continues, “If
the staff member’s attempt to defuse the situation fails, he immediately ends communication with
the prisoner and if possible, removes himself from the area of confrontation.” (Id.) On Use of
Force, the Manual provides “Jail staff members must use force as a last resort in controlling
inmates.” (Id.) Lastly, it states that “[i]n no event is physical force justifiable as punishment.”
(Id.)
The jail security video establishes that Campbell’s conduct fell far outside the policies and
procedures governing his use of force as a corrections officer at the Montgomery County Jail.
Campbell claims that Wallace initiated the physical confrontation, but the video evidence does not
support that assertion. Instead, Campbell first pushed Wallace to the floor. Campbell threw
many punches at Wallace while he was on the ground, but Wallace does not throw any punches at
Campbell. Wallace’s only physical movement toward Campbell is to push him away—which

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occurred after Campbell landed punches to the back of Wallace’s head. Campbell was the
aggressor and used excessive force, even before taking into consideration that fact that he held
handcuffs in his right hand.
If the incident ended with Wallace pushing Campbell away, the consideration of this issue
would be more difficult. As shown in the video, however, it did not. Instead, Campbell briskly
returns to Wallace and resumes the physical assault on him. It is evident that this second assault
could not have served any penological purpose but must have originated out of a desire to punish
Wallace for his insubordination or some other self-interested motive.

At this point in the

altercation, Wallace does not pose a threat to Campbell or anyone else. Campbell is far enough
away that he is not within striking distance of Wallace—if, Wallace, had ever attempted to strike
him. Shortly after Campbell resumes the confrontation, another officer arrives. Campbell knew
this assistance was on its way because he requested it. (Doc. 41-1 at 4.) He did not need to
approach Wallace again without backup.
Campbell’s unnecessary resumption of the confrontation is similar to the unnecessary use
of pepper spray in Anderson, after the inmate was clearly no longer a threat. The results of the
internal investigation completed by the Montgomery County Sheriff’s Office further supports the
conclusion that Campbell cannot prove good faith. 2
Campbell cites Thomas v. Ohio Department of Rehabilitation & Corrections, 48 Ohio App.
3d 86, 548 N.E.2d 991 (Ohio Ct. App. 1991). That case, however, is distinguishable. In Thomas,
the Ohio court of appeals considered whether a law enforcement officer could be held liable under

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Campbell objects to the various reports and memoranda relating to the internal investigation as inadmissible
hearsay. The Court does not consider the memoranda, however, as evidence of what occurred during the incident.
Rather, they are evidence of the results of an internal investigation into the incident. Campbell does not object to
the authenticity of the internal investigation memoranda as genuine business records.

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Ohio Revised Code 9.86, not whether the officer was entitled to a legal defense under Ohio Rev.
Code 2744.07. In addition, the case did not involve a fact pattern wherein an officer continued to
engage in an altercation after an opportunity to de-escalate the situation.
Campbell has failed to create a genuine issue of fact as to whether he can establish good
faith as required under Ohio Rev. Code 2744.07(A)(1). That failure alone is sufficient to warrant
summary judgment in the Montgomery County Defendants’ favor. The Court therefore does not
consider whether Campbell could also show that his actions were not manifestly outside the scope
of his employment.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS the Montgomery County Defendants’

Motion for Summary Judgment (Doc. 28).
DONE and ORDERED in Dayton, Ohio, this Monday, November 5, 2018.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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