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Burfitt v. Bear

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

May 31, 2017

LAWRENCE BURFITT, Plaintiff,
v.
SGT. BEAR, et al., Defendants.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         I. Background

         Plaintiff, presently incarcerated at the Southern Ohio Correctional Facility ("SOCF") and proceeding pro se, filed suit in November 2015 against multiple individual Defendants, concerning his conditions of confinement. Plaintiff alleged that he was placed with severely mentally ill inmates for no justifiable reason. He also complained about several incidents in February, March, and May 2015.

         Upon initial screening under the Prison Litigation Reform Act of 1995, 28 U.S.C. §1915(e)(2)(B) and §1915A(b), the undersigned determined that Plaintiff had stated an Eighth Amendment claim for excessive force against three defendants: Sgt. Bears, Sgt. Felts, [1] and Sgt. Sammons, concerning two physical altercations that occurred on March 27, 2015 and May 7, 2015. Aside from the Eighth Amendment claims against the referenced three Defendants, the undersigned initially determined that Plaintiff had stated a “plausible” failure to protect claim against Defendants identified as Ms. Gladman and Ms. Susan Felts. However, the Court later dismissed those two Defendants pursuant to their separately filed motion to dismiss and motion for judgment on the pleadings. (See Docs. 52, 59). Because allegations against all other Defendants were dismissed on initial screening, (Docs. 5, 11), the only claims that were permitted to proceed through discovery were the Eighth Amendment claims asserted against Defendants Bear, Sammons, and Felts.

         Discovery has now closed and the three remaining Defendants have moved for summary judgment. (Doc. 66). Plaintiff has filed a response in opposition to the motion, to which Defendants have filed a reply. (Docs. 66). The undersigned recommends that summary judgment be partially granted on qualified immunity grounds, but otherwise DENIED.

         II. Analysis

         A. Summary Judgment Standard and the Record Herein

         Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A dispute is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

         Rule 56(c) explains in relevant part that a party asserting that a fact cannot be genuinely disputed must support the assertion by citing to “particular parts of materials in the record, including depositions, documents…affidavits or declarations, stipulations…, admissions, interrogatory answers, or other materials” or alternatively by showing that the adverse party “cannot produce admissible evidence to support the fact.” This Court must consider the cited materials, but “may” consider other materials in the record. Rule 56(c)(3).

         Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248-49. The mere existence of a scintilla of evidence to support the non-moving party's position will be insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the nonmoving party. Id. at 252.

         The crux of this case revolves around who initiated two physical altercations between a shackled inmate and several correctional officers. According to Plaintiff, Defendant Sgt. Bear threw the first punch on March 27, provoked only by Plaintiff's words. Similarly, Plaintiff maintains that Defendant Felts threw the first punch on May 7. Contradicting Plaintiff's account, Sgt. Bear states that he physically engaged Plaintiff on March 27 only after Plaintiff initiated contact by spitting on him. Sgt. Felts similarly asserts that on May 7, Plaintiff initiated physical contact by lunging and attempting to head butt Felts.

         In support of their motion for summary judgment in this case, Defendants do not rely upon affidavits, depositions, or other sworn testimony. Instead, Defendants rely primarily upon other documentary evidence in the record, including institutional reports called “Investigation Summary Report Use of Force” (“UOF reports”), as well as related disciplinary records from the two incidents. The first UOF report consists of 51 pages of documents from the March 27, 2015 incident; the second includes 136 pages from the May 7, 2015 incident. The UOF reports contain unsworn witness statements, incident reports, and related institutional documents. The investigating officers who authored the UOF reports generally credited the officers' statements and discredited the inmate's account, concluding that the force used against Plaintiff on both occasions was reasonable and justified.

         In his response in opposition to Defendants' motion, Plaintiff challenges the statements made by Defendants in the UOF reports, arguing that they “lied to investigators to facilitate a purposefully plotted attack against Plaintiff Burfitt.” (Doc. 71 at 1). Plaintiff has attached to his response 44 pages of exhibits, the majority of which pertain to unrelated complaints about Plaintiff's mental health treatment rather than the Eighth Amendment claims that remain at issue in this lawsuit. Nevertheless, the undersigned concludes that some genuine issues of material fact remain concerning the events of March 27 and May 7.

         B. Plaintiff's Allegations

         The Court begins with a summary of the facts alleged by Plaintiff before turning to the evidence presented by Defendants in favor of summary judgment.

         Plaintiff's original complaint alleges that he was placed in a K-4, RTU block for severely mentally ill inmates for no justifiable reason. (Doc. 3 at 5). Plaintiff alleges that, due to excessively noisy inmates on the K-4 block, he had to “act out” in order to be relocated. Id. Apparently in response to Plaintiff's “act[ing] out” on the mental health unit, on March 27, 2015, Plaintiff was transported “in irons” to Sgt. Bear's office to attend a conduct report hearing. The parties agree that they had no prior negative contact or interactions with each other prior to March 27, 2015.

         Plaintiff alleges that once he arrived in Sgt. Bear's office, “out of retaliation [for] the Conduct Report, ” Sgt. Bear began to verbally insult Plaintiff and his mother. (Doc. 3 at 5). Plaintiff alleges in his original and amended complaints that, after Plaintiff verbally responded, Defendant Bear closed his office door and punched Plaintiff “in the face.” (Doc. 3; see also Doc. 27 at 5).

         Defendant Sgt. Brian Felts was present in Bear's office at the time. Plaintiff alleges that Felts assisted Bear “in attacking me.” (Id.). In his amended complaint, Plaintiff states that since he was bound and shackled at the time, Plaintiff “took my only few defenses, ” and “kicked and bit” Sgt. Bear, and “spat on” Bear as well. In response, Defendants Bear and Felts allegedly stood Plaintiff up and placed him against a wall by the office door. (Doc. 27 at 5). Plaintiff alleges that “[a]fter they finished Jumping on me, They hit the ‘man down' and from there I was taken to a strip cage, then back to my cell.” (Doc. 3 at 5; see also Doc. 27 at 5).

         Plaintiff alleged that other mistreatment occurred between March 27 and May 7, with his water being cut off, dinner trays refused, and missing laundry. However, those allegations were deemed insufficient to state any claim on initial screening. (See generally Docs. 5, 11).

         On May 7, 2015, Plaintiff alleges that he was again physically assaulted by Defendants Felts and Bear when he appeared for a hearing before the Rules Infraction Board for a “Rule 6” violation that apparently related to a prior incident with Ms. Gladman on the mental health unit. (Doc. 27 at 6). In his original complaint, Plaintiff alleges:

I was again punched on by Sgt. [Felts], the same person who assisted Bear's attack on 3-27-15. After the board panel found me guilty, Sgt. Sammons cuts the tape off. I assume I was to be placed back in my cell but Sammons orders me to sit down. Sgt. [Felts] opens the office door and calls other officers to “come join the fun.” Sammons then nods to [Felts] and he punches me in the face and dares me not to get up. Out of nature and self defense, I get up and attempted to head butt Sgt. [Felts], still while bound by irons, present in the RIB room was Ms. Gladman, representing mental health and Ms. [Felts] a chair member of the RIB panel. Both carelessly watched the attack on me off camera. The man down was hit and others come and applied excessive force on me. Upon being placed back in my cell I was held against the wall outside the block….

(Doc. 3 at 6) (spelling and punctuation errors corrected).

         Plaintiff's amended complaint includes similar allegations regarding the May 7, 2015 incident:

As I was waiting on Gladman to appear [on] behalf of mental health, I watched officers twirl their PR-24 billyclubs while giving me menacing looks. After Ms. Gladman arrives, Brian Felts walks in the interviewing room with us. I'm asked by Gladman “if I knew what was going on, ” etc. I reply yes and state some of the atrocities I'm taking a stand against. Both respond with no care to the complaints I stated. R.I.B. started and was conducted, upon the end of the hearing “Sammons” cut the tape off. Sgt. Felts opens the door inviting other officers to “join the fun.” After returning and shutting the door, Sgt. Felts punched me in the face after “Sammons” gave him a nod of approval. Once knocked from the stool and Felts dared me not to get up; of course I attempted to head butt him rather than use me as his punching bag. From there Sammons is the first to help Sgt. Felts jump on me as Ms. Felts and Gladman just watched these actions take place. Subsequently the man down was hit and others responded. I of course took my defenses by kicking and obtaining and using ...

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