United States District Court, S.D. Ohio, Western Division
Michael R. Barrett, Judge
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.
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
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
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.
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.
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. 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.
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.
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.
Barney filed timely objections to the Magistrate Judge's
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