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Lovett v. Barney

United States District Court, S.D. Ohio, Western Division

February 22, 2017

KELVIN LOVETT Plaintiff,
v.
BRIAN BARNEY, et al., Defendants.

          ORDER

          Michael R. Barrett, Judge

         This matter is before the Court on the Report and Recommendation (“R&R”) of the Magistrate Judge (Doc. 131). Defendant Brian Barney and interested party, the State of Ohio (hereinafter collectively referred to as “Defendants”) filed their Partial Objection to the R&R (Doc. 132) and Plaintiff filed a response (Doc. 133).

         I. BACKGROUND

         The Magistrate Judge set forth in great detail the facts of this case. The following is an abbreviated version of the facts as they relate to the instant motion. Plaintiff, an inmate at the Southern Ohio Correctional Facility (“SOCF”) brings this pro se action against Defendant Correctional Officer Brian Barney and Lt. Robert Setty, both employees at SOCF, pursuant to 42 U.S.C. § 1983 alleging excessive force was used against him in violation of the Eighth Amendment.

         Plaintiff's case involves an incident that occurred during recreation time on September 17, 2014. During transport to the recreation cages, inmates wore leg shackles and handcuffs, and were chained together with a chain connected to each set of handcuffs. Once they reached the recreation cages, the chains were removed and the inmates were ordered to proceed toward the available cages. The facts presented by the parties diverge when Plaintiff and Officer Barney turn the corner, outside the view of the prison's security cameras.

         Officer Barney attests that Plaintiff turned toward him and attempted to punch him with his right fist, Plaintiff's hands no longer cuffed behind him. When Plaintiff lunged toward him to land the punch, Officer Barney attests that Plaintiff missed and they both fell to the ground. According to Officer Barney, Plaintiff landed on his right side and Officer Barney landed on his left shoulder.

         Plaintiff, on the other hand, attests that once he and Officer Barney were out of view, Officer Barney punched him in the face. Then, Officer Barney slammed Plaintiff to the ground. Plaintiff's right side caught his fall because he was still handcuffed and shackled. Once on the ground, Plaintiff attests that Officer Barney again punched him in the face, kicked his ribs, and attempted to yank Plaintiff's handcuffs off of him.

         Less than a minute later, Plaintiff and Officer Barney are once against captured on the security cameras, and Officer Barney is seen escorting Plaintiff back to the prison. As Plaintiff, Officer Barney and another officer walk next to the recreation cages, jostling between Plaintiff and Officer Barney ensues. Officer Barney pushes Plaintiff against the fenced wall of the recreation cage.[1] Upon arriving at the segregation building, the parties again begin jostling. At this point, Defendant Lt. Setty takes Plaintiff's other arm, utilizing an escort technique, and he remains in that position for the duration of the walk. When they arrive at the strip search cage, Plaintiff is placed against the wall until the door opens and they enter.

         Both parties submitted declarations provided by witnesses in support of their positions. In addition, Defendants also filed color photographs of Plaintiff's injuries, as well as the available videotape evidence.

         The Magistrate Judge came to two different conclusions with respect to Defendant Barney and Defendant Setty. As for Defendant Barney, the Magistrate Judge concluded that he was not entitled to summary judgment because the facts surrounding the incident as it relates to his conduct are in dispute. The Magistrate Judge concluded that Defendant Setty, however, was entitled to summary judgment.[2]

         Officer Barney filed timely objections to the Magistrate Judge's conclusion.

         II. STANDARD

         When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to preserve any issues for review: “[a] general objection to the entirety of the Magistrate [Judge]'s report has the same effect as would a failure to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nevertheless, the objections of a petitioner appearing pro se will be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         III. ...


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