United States District Court, S.D. Ohio, Western Division
CHARLIE L. CARLISLE, III, Plaintiff,
WILLIAM BAUER, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE
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).
Defendants' motion for summary judgment
Summary judgment standard
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).
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).
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).
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)).
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); 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).
following facts are shown by the record to be undisputed,
except where otherwise noted. 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.,
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).
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).
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").
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.).
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).
"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).
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 ...