United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
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.
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,  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.
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.
Summary Judgment Standard and the Record Herein
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).
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).
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.
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.
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.
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.
Court begins with a summary of the facts alleged by Plaintiff
before turning to the evidence presented by Defendants in
favor of summary judgment.
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.
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
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).
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).
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).
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 ...