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Smith v. State, Rehabilitation and Corrections

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

August 28, 2017

James Smith, Plaintiff,
v.
State of Ohio Rehabilitation and Corrections, et al., Defendants.

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE.

         On June 29, 2017, Magistrate Judge Deavers, to whom this case was referred, issued a Report and Recommendation ("R&R") recommending that the Court grant Officer Herren's ("Defendant") motion for summary judgment, ECF No. 29, and deny James Smith's ("Plaintiff') motion for summary judgment, ECF No. 34, in this prisoner civil rights case in which Plaintiff proceeds pro se. R&R, ECF No. 42.

         I. FACTS

         Magistrate Judge Deavers set forth the pertinent facts in this case in the R&R, which are as follows.

         According to Plaintiff's unverified Complaint, Defendant-unprovoked- verbally harassed Plaintiff after Plaintiff ate lunch at the Madison Correctional Institution's dining hall, threw Plaintiff to the ground, put his knee on Plaintiffs back, and choked Plaintiff, all in violation of Plaintiffs Eighth Amendment right to be free from excessive force. The Complaint further alleges that the altercation left Plaintiff with back pain that prevents him from playing basketball, which Plaintiff states was his method of controlling his diabetes, and will result in Plaintiff having to take diabetes medication.

         Defendant, however, filed a conduct report the day of the incident that tells a different story. The conduct report states that Defendant stopped Plaintiff for a pat-down search upon leaving the dining hall and that Plaintiff refused to answer whether "he had anything on him or in his pockets." Conduct Rpt., ECF No. 29-3, PAGEID # 176. Defendant told Plaintiff to "get on the wall" so Defendant could search him, but, during the search, Plaintiff "turned off the wall with a clenched fist." Id. At that point, Defendant put both hands on Plaintiff to guide him to the ground. Id. Plaintiff continued to resist and ignored orders to "cuff up, " and two additional correctional officers eventually helped effectuate the cuffing of Plaintiff. Id.

         Corrections Officer Weaver ("Officer Weaver"), who is not a party to this lawsuit, also filed an incident report concerning the altercation. Incident Report, ECF No. 29-2, PAGEID # 164. The incident report states that Officer Weaver heard Defendant give direct orders to Plaintiff to stop resisting. Id. Officer Weaver states that he then used both hands to cuff Plaintiffs left hand behind Plaintiffs back but that Plaintiff kept resisting the cuffing of his right hand, including ignoring Officer Weaver's direct orders to put his hands behind his back. Id. A third officer then helped secure Plaintiffs right hand, which Officer Weaver cuffed. Id. The incident report also states that Plaintiff was then taken to the infirmary, where he was seen by a nurse. Id.

         Also in the record is a Medical Exam Report that was completed by Nurse Curtiss. Med. Exam Rpt., ECF No. 29-2, PAGEID # 166. The Medical Exam Report is admittedly difficult to read but states that the nurse observed a small cut on Plaintiffs head and redness on his wrists. Id. The wound was cleaned with soap and water, and Plaintiff was released to segregation. Id. The Medical Exam Report does not note any injury to Plaintiffs neck or back.

         The Rules Infraction Board found Plaintiff guilty of violating "Rule 20" based on the conduct described in Defendant's conduct report. RIB Disposition, ECF No. 29-3, PAGEID # 174. The Warden affirmed that decision on appeal. Warden's Decision, ECF No. 29-3, PAGEID # 177. Moreover, a Use of Force Committee issued a report on the incident, concluding that Plaintiff aggressively turned from the wall during the search, that Plaintiffs MRI did not reveal injuries consistent with being choked, and that the use of force was justified and not excessive. Use of Force Rpt., ECF No. 29-2, ECF No. 160.

         II. STANDARD OF REVIEW

         Magistrate Judge Deavers issued the R&R pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). Under Rule 72(b), the Undersigned must determine de novo any part of the Magistrate Judge's disposition that has been properly objected to. Fed.R.Civ.P. 72(b)(3). The Undersigned may accept, reject, or modify the R&R, receive further evidence, or return the matter to the Magistrate Judge with instructions. Id.

         III. ANALYSIS

         Plaintiff submits eight objections, which the Court discusses out of turn.[1]First, Plaintiff contends that Defendant's version of the facts is impossible because Defendant could not have grabbed Plaintiff from behind to subdue him if Plaintiff, as Defendant contended, had turned from the wall toward Defendant with a clenched fist. The remainder of this objection repeats Plaintiffs version of the facts but, like Plaintiffs response to Defendant's motion and Plaintiffs own motion for summary judgment, Plaintiff offers no evidentiary support with his objection.

         Plaintiffs objection is not well taken. First, Defendant's conduct report did not say that he grabbed Plaintiff from behind. It stated that he "placed both hands and arms around inmate Smith guiding him to the ground." Conduct Rpt., ECF No. 29-3, PAGEID # 176. Nor did it state that Plaintiff turned completely around from facing the wall when Plaintiff turned with a clenched fist such that Plaintiff was directly facing Defendant at the time Defendant took Plaintiff to the ground. See Id. In sum, despite Plaintiffs argument, it is not ...


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