United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman, United States Magistrate Judge
an SOCF inmate, is an experienced litigant, having filed two
petitions for writs of habeas corpus and five civil suits in
this Court alone concerning conditions of his confinement, as
well as numerous state court lawsuits. Both Plaintiff and
Defendants have filed motions for summary judgment in this
case. Plaintiff also has filed a motion for default judgment
against all Defendants. For the reasons that follow, the
undersigned now recommends that Defendants' motion be
granted, and that Plaintiff's three motions be denied.
on May 19, 2016, the above-captioned case relates closely to
a prior case filed by Plaintiff, Case No. 1:15-cv-812, on
which judgment was entered in Defendant's favor on
December 2, 2016. (See Docs. 74, 75, 76 in Case No.
1:15-cv-812). In the related case, Plaintiff alleged that
Sergeant Mike Dillow used excessive force against him, in
violation of the Eighth Amendment in November 2015. In
granting summary judgment to Dillow, this Court determined
that no genuine issue of material fact existed, and that
Dillow had used only “de minimis” force
during the incident about which Plaintiff had complained.
to the filing of Dillow's dispositive motion in the
related case, Plaintiff filed this new lawsuit against three
additional SOCF employees (Officer Dalton, Warden Erdos, and
Deputy Warden Cool), based upon evidence submitted in
response to Plaintiff's discovery requests in Case No.
1:15-cv-812. Specifically, Plaintiff alleges here that
Defendant Jessica Dalton “wrote a false conduct report
and a false incident report ….and lied” about
the incident that occurred between Dillow and Plaintiff,
allegedly “at the request of Sgt. Dillow to cover up
for his misconduct.” (Doc. 1, at PageID 6, 8-9). In
Claim Nos. 1-3, 9 and 12, Plaintiff alleges that Defendant
Dalton is liable for failing to act or to protect him from
Dillow's assault, for conspiracy based on her
participation in covering up the assault she witnessed, and
for libelous statements that she made against Plaintiff.
(Doc. 1, at PageID 11, 14).
amended complaint, Plaintiff alleges that he discovered that
the videotaped evidence produced in Case No. 1:15-cv-812
concerning the incident with Dillow had been “tampered
with” based upon two brief gaps in the footage,
including a 4-5 second gap and a second 6-9 second gap.
Plaintiff alleges in the amended complaint that Defendant
Erdos had a “duty to review and store the D.V.R.
footage” and therefore “may have been the one to
delete [scenes] from the D.V.R.” and a “failure
to act” claim based upon an allegation that Erdos
failed to discipline staff for tampering with the videotaped
footage. (Doc. 6, at PageID 68). Plaintiff also alleged in
his amended complaint that either Dillow, or Defendant Cool,
or both, caused the deletion of seconds from the videotaped
footage or “acted as a team to cover up the evidence
against Dillow, ” and that Cool also “failed to
act” because Cool should have noticed the gaps in the
videotape during the excessive force investigation.
undersigned held that Plaintiff could not state a claim
against Defendant Dalton based upon her allegedly false
conduct reports against Plaintiff, but nevertheless permitted
some of Plaintiff's claims to proceed against Dalton on
Upon review of the complaint, as amended, and without the
benefit of briefing by the parties, the undersigned concludes
that the original complaint's “Claim Nos. 1-3, 9
and 12” for damages against defendant Jessica Dalton
for failure to protect, conspiracy and libel are deserving of
further development and may proceed at this early stage in
(Doc. 8, R&R at 6, PageID 83). The undersigned clarified
that Plaintiff's allegations concerning the allegedly
false conduct report survived “only to the extent that
plaintiff (1) has alleged that Dalton witnessed the incident
that occurred on November 24, 2015 and falsified reports of
what she saw as part of a conspiracy to cover-up Dillow's
use of excessive force, and (2) has brought a pendent
state-law libel claim against Dalton.” (Id. at
the claims that Plaintiff alleged against Defendants Erdos
and Cool were dismissed on initial screening, including all
of the claims that Plaintiff alleged against those two
Defendants in his original complaint. However, the
undersigned permitted a “conspiracy” claim in
Plaintiff's amended complaint to proceed beyond
screening, despite describing the claim as “tenuous and
The conspiracy claims alleged in the amended complaint
against defendants Erdos and Cool are more tenuous and
speculative, based solely on the allegation that they were
the only people, besides Dillow, who could have deleted
portions of the videotape recording of the use-of-force
incident to cover up Dillow's misconduct in that
incident. Nevertheless, out of an abundance of caution at
this early stage in the proceedings, the undersigned
concludes that the amended complaint's conspiracy claims
against defendants Erdos and Cool may also proceed. However,
all other claims alleged in the complaint and amended
complaint against those two supervisory officials should be
dismissed for failure to state a claim upon which relief may
be granted by this Court.
(Doc. 8 at 7, PageID 84).
explained in this Court's last Order of January 12, 2017,
the subsequent grant of summary judgment to Sgt. Dillow in
Case No. 1:15-cv-812 drew into serious question the
continuing viability of Plaintiff's claims in this case.
In dismissing all claims of excessive force as well as
Plaintiff's claims of retaliation against Dillow on
December 2, 2016, the Court agreed that “no reasonable
trier of fact could conclude that the force used by [Dillow]
objectively rose to the level of a constitutional violation,
” and that the “force of which Plaintiff
complains was brief and de minimis.” (Doc. 74
in Case No. 1:15-cv-812, at PageID 498).
The record …presents a nearly textbook example of an
inmate who complains of a “push or shove” that
has caused no discernible injury. In addition to failing to
so much as allege any injury, the record confirms that
Plaintiff suffered no injury as a result of the Defendant
placing him against the wall on two occasions (on the
stairway and in the corridor), or as a result of the force
allegedly used by Defendant “pushing” and/or
“rushing” Plaintiff down the hallway during part
of the escort.
(Id. at PageID 501, citing Wilkins v.
Gaddy, 559 U.S. 34, 37-38 (2010)).
granting summary judgment to Dillow in the related case, the
Court examined the momentary gaps in the videotaped footage
of the November 24, 2015 incident between Dillow and
Plaintiff. Two gaps were observed - a 4-5 second gap
beginning at 12:00:00, and a second gap of approximately 6
seconds beginning at 12:00:13. In the prior case, the
Defendant offered a credible explanation for both of the two
short time gaps, supported ...