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Carlisle v. Bauer

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

November 1, 2017

CHARLIE L. CARLISLE, III, Plaintiff,
v.
WILLIAM BAUER, et al., Defendants.

          Barrett, J.

          ORDER AND REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Charles L. Carlisle III, an inmate at the Southern Ohio Correctional Facility (SOCF) in Lucasville, Ohio, brings this pro se civil rights action under 42 U.S.C. § 1983 against defendants William Bauer, Michael Dillow, Jeremy Eaches, Dr. Faisal Ahmed, and two "John Doe" defendants. Plaintiff alleges that defendants Bauer, Dillow and Eaches used excessive force against him on May 12, 2015, and defendant Ahmed refused to provide medical treatment for his injuries. (Doc. 5). This matter is before the Court on defendants' motion for summary judgment (Doc. 31), plaintiffs opposing memorandum (Doc. 34), and defendants' reply (Doc. 36). The matter is also before the Court on plaintiffs motion to proffer evidence. (Doc. 37).

         I. Defendants' motion for summary judgment

         A. Summary judgment standard

         A motion for summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if its resolution will affect the outcome of the lawsuit. Beans v. City of Massillon, No. 5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016), aff'd, No. 17-3088, 2017 WL 3726755 (6th Cir. Aug. 29, 2017) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When a party asserts that a fact cannot be or is genuinely disputed, the party must support its assertion by: "(A) citing to particular parts of materials in the record .. .; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). See also Beans, 2016 WL 7492503, at *5. The materials a party can rely on to establish the presence or absence of a genuine dispute include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, [and] interrogatory answers[.]" Fed.R.Civ.P. 56(c)(1)(A).

         The party who seeks summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In determining if there is a genuine dispute as to a material fact, all evidence in the record is viewed in the light most favorable to the nonmoving party, with all reasonable inferences drawn to that party's benefit. Combs v. Int'l Ins. Co., 354 F.3d 568, 576-77 (6th Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). To make its determination, the court "need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3).

         Summary judgment is appropriate only where the evidence presents no genuine disputes of material fact "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. The movant can carry its burden by showing that the non-moving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Shaeffer & Ebeling Co. L.P.A., 12 F.3d 1382, 1388-89 (6th Cir. 1993). The party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but. .. must set forth specific facts showing that there is a genuine issue for trial." First Nat 7 Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). In response to a properly supported summary judgment motion, the non-moving party "is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial." 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987) (quoting First Nat 7 Bank of Arizona, 391 U.S. at 288-89).

         Because plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) (pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings). However, a party's status as a pro se litigant does not alter the party's duty on a summary judgment motion to support his factual assertions with admissible evidence. Maston v. Montgomery Cnty. Jail Med. Staff Pers., 832 F.Supp.2d 846, 851-52 (S.D. Ohio 2011) (citing Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010)).

         B. Facts

         In support of their motion for summary judgment, defendants have submitted medical examination reports and photographs of plaintiff s injuries (Doc. 31, pp. 103-112, 122-125)[1]; the affidavit of William Cool, Deputy Warden of Operations for SOCF (Id., Exh. 4); the DVR recording of the May 12, 2015 use offeree incident and an audio recording of plaintiff s Rules Infraction Board (RIB hearing) (Doc. 31, Exh. 5); and documents from the Use of Force investigation and the RIB proceedings, including incident reports, investigation findings, employee statements, plaintiffs statements, conduct reports, and the RIB disposition (Id., Exh. 1, pp. 59-102, 114-121; Exh. 2, pp. 1-11). Plaintiff has submitted additional documents which include an Informal Complaint Resolution stating that he would have the opportunity to review his medical file and take notes and several pages of notes plaintiff appears to have copied from his medical file. (Doc. 34 at 22-27).

         The following facts are shown by the record to be undisputed, except where otherwise noted.[2] This lawsuit arises out of an incident that occurred at SOCF on May 12, 2015. On that date, plaintiff was escorted to the unit at SOCF by Officer Miller after an employee reported that plaintiff had attempted to establish a relationship with her. (Doc. 31, Exh. 1, pp. 60-61, 76, 118). After plaintiff arrived in J2 and was placed in the strip cage, defendant Bauer assembled a negotiator, a camera operator, and a five-man team comprised of Officers Tackett, Eaches, Ruckel, Henderson and Dillow. (Doc. 31, Exh. 5, DVR recording, 1:10-1:58). Defendant Bauer explained at the beginning of the recording that plaintiff had become agitated as he was being escorted to 12, he had refused to walk, and he had begun making threats toward staff and refused to comply with strip search procedures once he was in the J2 strip cage. (Id., 00:20-00:36). Bauer explained that the plan was to attempt to negotiate with plaintiff to persuade him to comply with strip search procedures and come out of the strip cage and, if negotiations failed, to use OC (oleoresin capsicum) spray and to then have the five-man team enter the strip cage if plaintiff still refused to come out. (Id., 00:36-1:02).

         After Bauer explained the plan, the negotiator approached the strip cage to speak to plaintiff. (Id., 2:22-3:30). Plaintiff stood up from the floor of the strip cage, faced the camera, stated his name, asserted that he would not comply with orders, said he was going to lie back down, and told the negotiator he would say nothing else until he talked to a lawyer. (Id.). Plaintiff then lay back down on the floor of the strip cage. At one point, he asked the negotiator if he was hungry and held out a sandwich. The negotiator reported that negotiations had failed, at which time Bauer gave plaintiff an order to stand up and be strip searched. (Id., 3:25-3:42). After plaintiff refused to comply, Bauer sprayed OC spray toward plaintiff for approximately two seconds. (Id., 3:45-3:47). Plaintiff stood up and faced away from the officers. Defendant Bauer gave plaintiff a final order to comply with strip search procedures. (Id., 4:00-4:10). The five man team then entered the strip cage, plaintiff was taken to the floor, his arms and legs were secured, and he was assisted to his feet and escorted to J2-13 to have his clothes cut off. (Id., 4:12-5:25).

         In J2-13, plaintiff was placed face down on the bed so that his clothes could be removed. (Id., 6:20). As Officers Eaches, Dillow, Ruckel, Henderson and Tackett worked together to cut plaintiffs clothes, plaintiff repeatedly stated he was crazy and asked for help. (Id., 6:35-7:42). Mental health staff was then paged. (Id., 7:42). Bauer also instructed the officers that a nurse would need to check plaintiff. (Id., 8:10). Although the tape does not clearly show everything that happened next, the parties do not dispute that Officer Ruckel struck plaintiff twice with a closed fist 35 seconds later. (Id., 8:45-8:47). According to defendants, as the team was attempting to cut plaintiffs clothes while he was face down on the bed, plaintiff tried to bite defendant Eaches' hand which was on plaintiffs right shoulder. (Doc. 31 at 11; Exh. 5, DVR recording, 8:45; Exh. 1, p. 82, Incident Report, Eaches Statement). Defendants allege that Officer Ruckel struck plaintiffs face with a closed fist in response to plaintiffs action and then immediately struck him a second time with a closed fist because he was still being aggressive with his teeth showing. (Doc. 31 at 11, citing Exh. 1, p. 79, Incident Report Supplement, Ruckel Statement). Plaintiff denies in his response to the motion for summary judgment that he ever attempted to bite Eaches' hand or otherwise cause harm while he was in restraints. (Doc. 34 at 3, 7). Plaintiff alleges that his mouth appeared to be open with his teeth showing before Ruckel struck him because he "was grasping for air to breath [sic], while being face/pinned down after mace[/]OC was deployed by LT. William Bauer." (Id. at 3). Plaintiff alleges that in addition to the OC making it difficult to breathe, Ruckel was applying pressure to his upper right body and Eaches was applying pressure with his right hand to plaintiffs right shoulder. (Id.). Plaintiff alleges Ruckel corroborated that it was difficult to breathe due to OC contact by explaining after the incident that he gave no verbal commands because he was having a hard time breathing due to the "mace" in his lungs. (Id., citing Doc. 31, Exh. 1, p. 79, Incident Report Supplement, Ruckel Statement).

         After Ruckel struck plaintiff, defendants continued to cut off plaintiff s clothes. (Doc. 32, DVR Recording, 8:45-11:05). Plaintiff was assisted to his feet and his handcuffs were taken off so that his shirt could be removed. (Id., 11:05-12:45). Plaintiff became agitated when defendants attempted to remove his cuffs and shirt. Plaintiff was placed back on the bed and medical staff assessed his injuries. (Id., 13:00). Plaintiff stated to medical staff: "I banged my head into the wall.. . suicide . .. Ain't none of these officers ... did shit... I did this to myself, I banged my head into my wall." (Id., 13:15-13:32). Plaintiff was then dressed in pants and handcuffs, leg irons were put on him, and he was escorted to J2-41, where medical staff assessed him and he was placed under constant watch until later that day. (Id., 13:48-19:20; Doc. 31, Exh. 1, p. 113, "Authorization for Crisis Precaution").

         Plaintiff was medically examined by nurses twice during the time he was under watch. (Doc. 31, Exh. 1, pp. 111, 112, Medical Exam Reports). The first exam was performed at 12:00 p.m. (Id., p. 111). The report notes that plaintiff stated, "I did this myself. I banged my head on the wall because I'm crazy." (Id.). In the objective physical findings section, the nurse reported it was difficult to assess plaintiff because of the OC contact and blood on his head and face. (Id.). The physical findings noted were multiple superficial lacerations to the forehead and facial area and swelling in both orbital areas and the right forehead. (Id.). The nurse assessed plaintiff as ambulating and talking without difficulty. (Id.). The nurse reported that plaintiff was instructed to rinse his face and head with water to reveal his wounds but he refused. (Id.). Plaintiff was to be brought to the infirmary when the possible security threat he posed decreased. (Id.).

         Plaintiff was examined again at 1:00 p.m. (Id., p. 112). According to the medical exam notes, plaintiff verbalized no complaints to the medical staff. (Id.). The injuries noted were a laceration above the right brow, mid-forehead, and above the left ear; edema on the right jawline; and chin irritation due to OC contact. (Id.). Plaintiff had full range of motion of the head, neck and jaw; there were two points of tenderness to the orbits or along the jawline; and he was ambulatory with a steady gait and had clear speech. (Id.). Plaintiff was decontaminated in the infirmary for OC contact; his wounds were cleaned, closed with "skin stitch, " and secured with "steri strips"; an x-ray was ordered; and over-the-counter Motrin was prescribed for pain and edema. (Id.). Photographs of plaintiff s injuries were taken. (Id., pp. 122-25). Plaintiff alleges that in addition to the injuries reflected in the medical reports, he suffered injuries to his right eye when he was struck in that eye resulting in "bad vision" and seeing black spots on that side, which are not documented in the Medical Exam Reports. (Doc. 34 at 7, citing Doc. 31, Exh. 1, p. 112).

         An "Investigative Summary Report" for "Use of Force" was generated on June 1, 2015. (Doc. 31, Exh. 1, pp. 59-68). Captain Robert Clagg chaired the committee investigation. (Id.). Clagg gathered evidence related to the incident, including employee and plaintiffs statements. (Id.). The Committee found that (1) the use offeree was justified in accordance with Ohio Administrative Code 5120-09-01 and 02, and (2) the force used was not excessive under the circumstances. (Id., p. 62). The Committee concluded:

The evidence regarding both of these issues is conclusive. The force by Officer Miller and the 5 man team was justifiable. The DVR clearly shows that inmate Carlisle was refusing direct orders causing force to be used to move him out of the holding cage and remove his clothing.

(Id.). The Warden concurred with the Committee's findings. (Id., pp. 62-63).

         At his RIB hearing, plaintiff pled guilty to Inmate Rule of Conduct 8: Threatening bodily harm to another (with or without a weapon) and was convicted of violating three Rules of Conduct: (1) Inmate Rule of Conduct 20: Physical resistance to a direct order; (2) Inmate Rule of Conduct 21: Disobedience of a direct order; and (3) Inmate Rule of Conduct 24: Establishing or attempting to establish ...


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