United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE.
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.
Judge Deavers set forth the pertinent facts in this case in
the R&R, which are as follows.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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
submits eight objections, which the Court discusses out of
turn.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.
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 ...