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Rogers v. Sgt. Manard Reed

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

June 21, 2017

Alterik Rogers, Plaintiff,
v.
Sgt. Manard Reed, et al., Defendants.

          MICHAEL H. WATSON JUDGE

          REPORT AND RECOMMENDATION AND ORDER

          Terence P. Kemp United States Magistrate Judge

         Plaintiff, Alterik Rogers, currently an inmate at the Belmont Correctional Institution, filed this action under 42 U.S.C. §1983 alleging that his constitutional rights were violated during events which allegedly occurred while he was an inmate at the Jefferson County Jail. This matter is now before the Court on the following motions: (1) Mr. Rogers' motion to proceed to a jury trial; (2) Defendants' motion to compel; (3) Mr. Rogers' motion to disclose; and (4) Defendants' motion for summary judgment. For the following reasons, it will be recommended that Defendants' motion for summary judgment (Doc. 42) be granted in part and denied in part. The motion to proceed to a jury trial (Doc. 38), motion to compel (Doc. 39), and motion to disclose (Doc. 40) will be denied as moot. Mr. Rogers' malicious prosecution claim shall be stayed pending the resolution of State v. Rogers, Jefferson Cty. Case No. 14CR012.

         I. Factual and Procedural Background

         This case was filed by Mr. Rogers on December 29, 2014, alleging that his constitutional rights were violated by Sgt. Maynard Reed, Officer Reece Thompson, and the Jefferson County Sheriff's Department. (Doc. 1). He subsequently amended his complaint to add the Jefferson County Prosecuting Attorney as a defendant. (Doc. 6). A motion for partial dismissal was filed on behalf of all defendants other than Sgt. Reed. (Doc. 14). The Court subsequently dismissed all claims against the Jefferson County Sheriff's Department and the Jefferson County Prosecuting Attorney, and all claims against Officer Thompson in his official capacity. (Doc. 30, 32).

         The facts of this case are summarized based on the pleadings and evidence provided by the parties. The evidence submitted includes a number of witness statements submitted by Mr. Rogers, an affidavit of Mr. Rogers, incident reports prepared by Defendants and another officer, the deposition of Mr. Rogers, and various other documents. On January 4, 2014, Mr. Rogers was arrested in Jefferson County and charged with felonious assault, contempt, having a weapon while under disability, tampering with evidence, menacing by stalking, and a firearm specification. (Doc. 42, Ex. A). He was subsequently indicted on February 5, 2014 for the charges of felonious assault and having a weapon under a disability related to that arrest. Id., Ex. B. On the same day, Mr. Rogers was indicted on a third count for menacing by stalking, related to the events which occurred while he was incarcerated at the Jefferson County jail on January 30, 2014, which gave rise to this lawsuit. This last charge alleged that Mr. Rogers made a physical threat or threats against Sgt. Reed. Id. The menacing by stalking charge was subsequently severed into a separate indictment. Following the filing of this lawsuit, the Jefferson County Court of Common Pleas stayed the criminal case until the resolution of this matter. Id., Ex. 7. Mr. Rogers was ultimately convicted by a jury of the charges of felonious assault and having a weapon under a disability, and on June 30, 2014, he was sentenced to fourteen years' incarceration. Id., Ex. C.

         The events giving rise to this case took place while Mr. Rogers was held at the Jefferson County Jail following his January 4, 2014 arrest. On January 30, 2014, Mr. Rogers was on lockdown in a cell with other inmates, and some of them were watching television. (Doc. 1, ¶9). By his own admission, Mr. Rogers made a comment in the cell to other inmates that he was going to “two-piece the drunk driver” (“drunk driver” referring to the inmate who was operating the television remote control). (Doc. 42, Ex J; hereinafter “Rogers Depo.”). According to Mr. Rogers, “two-piece” is a slang term that means to stop. Id. Defendants contest this definition, asserting that the term actually means to punch someone twice. (Doc. 42, p. 3). Mr. Rogers admits to making the statement, but claims that he did so in jest and other inmates were laughing and joking along with him. Rogers Depo., pp. 114-118, 122. Sergeant Reed overheard Mr. Rogers' comment and yelled at him, accusing him of threatening his porter, David Dameron, and ordered another officer to open the cell. Rogers Depo. p. 114. Subsequently, Sgt. Reed and Officer Thompson came to Mr. Rogers' cell, ordered him to pack his belongings, and told him he was going to solitary confinement. Rogers Depo., p. 117. Mr. Rogers packed up his belongings and began walking down the staircase, verbally protesting and saying “I am going to the hole for what? This is some pussy ass stuff. I didn't do nothing to nobody.” Id. 118.

         According to Mr. Rogers, at this point, and for no reason, Sgt. Reed grabbed him by the neck, hit him in the head, and dragged him down the stairs. Id. At some point while Mr. Rogers was being dragged to the segregation cell, Sgt. Reed pushed his head into the sally port door and Officer Thompson handcuffed him from behind. Id. 120-126. Sgt. Reed then punched him in the back of his head with a fist, struck him in the temple, hit him 7-8 times, and knocked him unconscious. The beating continued when Mr. Rogers was placed in the segregation cell, still handcuffed. Id. 120-126, 129-130. Officer Thompson, who reported to Sgt. Reed, held onto Mr. Rogers' handcuffed wrists and stood by as Sgt. Reed engaged in the attack. Id. 141-144; (Doc. 42, Ex. E).

         Mr. Rogers has also submitted his own affidavit (Doc. 47-1) and statement, as well as a number of signed statements from individuals who were either in the group cell with him, or near enough to see and/or hear at least portions of the incident. These statements are from Francisco Ortiz, Duan Harris, Steven West, Dustin Schockow, Randall Fazio, Jr., and Anthony Elmore. (Doc. 1-1; Doc. 47-1). Duan Harris states that he was working the remote control to the television when Mr. Rogers made the remark about “two-piecing the drunk driver.” He explains that in this context “driving drunk” means tuning into a television program that no one wants to watch. Id. p. 7. These individuals broadly corroborate Mr. Roger's version of events, stating that Mr. Rogers did not threaten Sgt. Reed's trustee/porter or Sgt. Reed. Id. 7-8. However, none of the fellow inmates would have been able to see the alleged attack that occurred in or near the segregation cell. Mr. Rogers also provides signed statements from Zachary Hazeltine and William Vandyke which speak generally to the reputation of Sgt. Reed as a corrections officer. (Doc. 1-1). Because those statements do not bear on the facts of this case they will not be considered by the Court.

         The majority of actions of Officer Thompson which give rise to the allegations against him did not occur within view of any of the fellow inmates who provided statements. Mr. Rogers testified that once he and Defendants arrived at the entry to the segregation cell, “they are pushing me, boom, boom....Reese Thompson grabs my hands because your first reaction is to protect yourself. Reese Thompson put my hands behind my back, put the cuffs on... [Thompson] pushed me in there, held my hands, [Thompson] - Sergeant Mana [sic] Reed started pushing me in my head, started punching me in my temple. Reese let go, because Reese was in shock.” Rogers Depo, p. 130. Mr. Rogers speculated that Officer Thompson was angry with Sgt. Reed for engaging in the attack, but did not intervene to stop the assault. Id.

         Defendants have submitted copies of Serious Incident Reports prepared by Sgt. Reed, Officer Thompson, and Officer Debbie Milewsky, which relay a very different version of events. (Doc. 42, Ex. D-F). These reports state that Mr. Dameron was changing garbage bags within the group cell and Mr. Rogers asked him to turn the television off, but Mr. Dameron did not comply and continued to do his work. The officers assert that Mr. Rogers threatened to “two-piece” Mr. Dameron, at which time Sgt. Reed ordered Mr. Rogers into segregation for threatening a fellow inmate. A “voluntary statement” given by Mr. Dameron confirmed that Mr. Rogers said he was going to “two piece” him (Mr. Dameron). (Doc. 42, Ex. K). Mr. Rogers disputes this. He asserts that he did not say anything to Mr. Dameron. Rogers Depo, pp. 116-117. The officers' accounts reflect that Mr. Rogers resisted being removed from the cell and verbally threatened Sgt. Reed, stating that he would “see you in the streets” and “send bullets your way.” Id. Defendants assert that the least amount of force necessary was used to get Mr. Rogers into the segregation cell. Id.

         Mr. Rogers alleges that the attack caused him injuries including dizziness, blurred vision, loss of balance, headaches, memory loss, slurred speech, and swelling of the cranium, all injuries consistent with head trauma. Rogers Depo. 139-147. He identified at his deposition a video screen shot of a knot on his head following the incident. Id. 131. Mr. Rogers asserts that he was denied medical treatment despite his requests for help. Id. Defendants argue that Mr. Rogers was unable to distinguish any alleged injuries from this incident from alleged injuries sustained in a car accident approximately two weeks earlier. Rogers Depo. 146. Defendants have also provided medical records from Jefferson County Jail and Belmont Correctional Institution (where he was eventually transferred) which do not reflect any reported pain or injury related to the alleged attack by Sgt. Reed.

         In addition to the physical assault, Mr. Rogers also alleges that Sgt. Reed falsified charges against him in relation to the incident which prompted the Jefferson County Prosecutor to indict him for menacing by stalking. Mr. Rogers asserts that prior to being incarcerated, he lived five blocks from Sgt. Reed and knew him and some of his family members. Additionally, the individual with whom Mr. Rogers was charged with assaulting while in the Jefferson County Jail was married to Sgt. Reed's first cousin. Mr. Rogers asserts that this situation caused Sgt. Reed to retaliate against him, which is why he physically attacked him at the jail, then falsely reported that Mr. Rogers had threatened him, and convinced the prosecutor to bring the menacing by stalking charge against him. Rogers Depo. P. 124-125, Doc. 47-1. Mr. Rogers provides a number of affidavits from other inmates, confirming that they were aware that Sgt. Reed wanted to do harm to Mr. Rogers, and that they never heard Mr. Rogers threaten Sgt. Reed. These affidavits support Mr. Rogers' version of events, and some inmates state that they specifically heard Sgt. Reed threatening to go to the prosecutor to convince her to charge Mr. Rogers with something. (Doc. 47-1; Affids. of Willis Stackhouse, William Hughes, Steven West, Francesco Ortiz, Dustin Schockow, and Randall Fazio, Jr.).

         The original complaint further alleged that Jefferson County Sheriff Abdalla, in his official capacity, was responsible for the actions of Sgt. Reed and Officer Thompson. Mr. Rogers also alleged that Sgt. Reed and Ms. Hanlin, the Jefferson County Prosecuting Attorney, conspired to maliciously prosecute him based on false written statements created by Sgt. Reed. (Doc. 6). The Court previously dismissed all claims against the Jefferson County Sheriff's Department and the Jefferson County Prosecuting Attorney, and all claims against Officer Thompson in his official capacity. Rogers v. Reed, 2015 WL 6144922 (S.D. Ohio Oct. 20, 2015), adopted, 2015 WL 7069668 (S.D. ...


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