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Brooks v. Dalton

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

June 12, 2017

JESSICA DALTON, et al., Defendants.

          Black, J.


          Stephanie K. Bowman, United States Magistrate Judge

         Plaintiff, 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.

         I. Background[1]

         Initiated 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.

         Prior 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).

         In an 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.

         The 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 initial screening:

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 the proceedings.

(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 n.1).

         Most of 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 speculative”:

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).

         As 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)).

         In 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 ...

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