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Thompson v. Esham

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

January 12, 2018

GERALD THOMPSON, Plaintiff,
v.
LT. ESHAM, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         This civil rights action brought by Plaintiff Gerald Thompson (“Plaintiff”), who was an inmate at the Southern Ohio Correctional Facility and who is proceeding pro se and in forma pauperis, is now before the Court on the motion for summary judgment of Defendants Eshem, Hart, Rogers, Cool, and Davis (collectively, “Defendants”). (Doc. 71). Plaintiff has filed a response in opposition to Defendants' motion (Doc. 74), and Defendants have filed a reply in support of their motion (Doc. 75). For the following reasons, it is recommended that Defendants' motion be granted.

         I. Background and Facts

         Plaintiff, who was an inmate at the Southern Ohio Correctional Facility (SOCF), brings this civil rights action under 42 U.S.C. § 1983. In his pro se complaint, as amended by a subsequent complaint filed on October 23, 2015, Plaintiff names numerous staff members of SOCF as defendants. (Docs. 6, 10).[1] Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 5).

         The claims asserted by Plaintiff in the complaint, as amended, concerned multiple unrelated issues and incidents against various defendants. (Doc. 7, Report and Recommendation, PageId. 54-58; Doc. 13, Report and Recommendation, PageId. 103-11).[2] The claims that survived the Court's initial screening include: (1) a claim against Defendant Eshem based on his alleged use of excessive force during an incident that occurred on January 25, 2015 at SOCF; (2) a claim against two “John Doe” defendants based on their participation in the incident involving the alleged use of excessive force that occurred on January 25, 2015 at SOCF; (3) a claim against Defendant Hart for alleged denial of medical care relating to the alleged use of excessive force that occurred on January 25, 2015 at SOCF; (4) claims against Defendants Eshem and Rogers based on their alleged use of excessive force in an incident that occurred on June 11, 2015 at SOCF; and (5) claims against Defendants Cool and Davis for failing to protect Plaintiff from known risks to his safety. (Doc. 13, PageId. 112-13).

         With respect to these claims, the record evidence is as follows.

         A. January 25, 2015 Incident

         On January 25, 2015, at approximately 5:50 p.m., Plaintiff refused to come out of his cell. (Doc. 71-2, Eshem Use of Force Report, PageId. 649; Doc. 71-8, Eshem Affidavit, PageId. 719). Defendant Eshem gave Plaintiff an order to cuff up, but Plaintiff refused. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). Defendant Eshem was unable to make visual contact with Plaintiff because Plaintiff had a sheet across the door and window and had the lights covered up. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). Defendant Eshem ordered Plaintiff to remove the visual barriers and to cuff up. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). Plaintiff then stated: “I am going to kill myself.” (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). The door was partially opened at that time and the visual barrier fell to the floor. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). Defendant Eshem observed that Plaintiff had his cell floor soaped and flooded. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). Plaintiff was greased up and standing in the back of his cell with something in both hands. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). Plaintiff then began squirting milk out of a bag towards Defendant Eshem. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). Defendant Eshem deployed Oleoresin Capsicum (“OC”) spray in the facial area of Plaintiff. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 719). At that time, Plaintiff dropped the bags and the door was closed. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 720). Defendant Eshem and Correctional Officer Scott then ordered Plaintiff to cuff up, and he complied. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 720). Officer Scott next began escorting Plaintiff to segregation. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 720.). Although Plaintiff attempted to pull away several times, Officer Scott maintained control of Plaintiff. (Doc. 71-2, PageId. 649; Doc. 71-8, PageId. 720). Plaintiff then began dragging his feet. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720). Defendant Eshem ordered the officers to stop to allow Plaintiff to walk on his own several times, but Plaintiff would go to the floor and pull the officers down with him. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720). When Plaintiff eventually was placed in the J2 strip cage, he refused to strip. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720).

         Plaintiff was checked by Defendant Hart after the incident that same day. (Doc. 71-2, PageId. 664). At that time, Plaintiff reported: “My wrist got cut by those cuffs.” (Id.). Defendant Hart noted that Plaintiff was not in acute distress, his respiratory breaths were easy and regular, and he had a one-quarter inch abrasion on his left wrist that she advised be cleaned. (Id.).

         After being checked by medical and mental health, Plaintiff then stripped. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720). Coming out of the strip cage, Plaintiff refused to walk down the stairs. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720). Two officers took control of Plaintiff and placed him in the J2 42 on constant watch. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720). The decontamination process began immediately when Plaintiff was removed from the area. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720). Plaintiff was offered a shower but refused. (Doc. 71-2, PageId. 650; Doc. 71-8, PageId. 720).

         SOCF has a thirty-three page Use of Force Report packet and video footage for this incident, which have been submitted in support of Defendants' motion for summary judgment. (Doc. 71-2, PageId. 645-77; Doc. 72). The details of the incident described above are consistent with those contained throughout the Use of Force Report and depicted in the video footage. Plaintiff refused to make a Use of Force Statement. (Doc. 71-2, PageId. 671-72). The Deputy Warden of Operations Review of Use of Force form for the incident is signed by William Cool, Deputy Warden of Operations, on January 28, 2015, which indicates that the force was used to control or subdue an inmate who refused to obey prison rules and to control an inmate to prevent self-inflicted harm. (Id., PageId. 645). It recommends no further action be taken. (Id., PageId. 645). The Managing Officer concurred with Defendant Cool's recommendation. (Id., PageId. 645).

         This incident also was subject to review by the Rules Infraction Board (RIB). Upon review by the RIB, Plaintiff was found guilty of Inmate Rules of Conduct (7) Throwing any other liquid or material on or at another and (20) Physical resistance to a direct order. (Doc. 71-5, Greene Affidavit, PageId. 701-02; Doc. 71-6, RIB Disposition, PageId. 709).[3] That decision was affirmed by the Warden on February 18, 2015. (Doc. 71-6, Warden's Decision, PageId. 712).

         Plaintiff submitted an Informal Complaint Resolution form dated July 28, 2015 to prison officials, which provides details on his allegations about the January 25, 2015 incident. (Doc. 6-1, PageId. 46). In the informal complaint, Plaintiff claims that he was assaulted by Defendant Eshem and others “with mace in a heated cell - windows closed - then tray/slot closed”; that he was “stuck in cell with heated mace & no air - lungs collapsed”; and that when he was taken out of his cell he was “forced to walk” in handcuffs and leg irons “in spite of no eye sight - head continuously slammed into walls.” (Id.). He contends that Defendant Hart did not provide “mandatory eye flushing”; that he was not given a “decontamination shower” until February 15, 2015; and that he was not given any medical help until July 28, 2015. (Id.) He alleges he suffered the following untreated injuries: blurry vision, seizures, loss of memory and cognitive skills, vertigo, numb left wrist, and internal bleeding. (Id.).

         B. June 11, 2015 Incident

         On June 11, 2015, Defendant Eshem entered the K2 area while making rounds. (Doc. 71-3, Eshem Use of Force Report, PageId. 682-84; Doc. 71-8, Eshem Affidavit, PageId. 720). At that time, he observed feces and water on the range. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). Officer Henson and Officer Butterbaugh stated that Plaintiff had thrown feces at the porter and began flooding the range. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). When Defendant Eshem went to talk to Plaintiff, he observed Plaintiff jumping on his bed. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). Defendant Eshem told Plaintiff to cuff up. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). Plaintiff had a milk bag and squirted it towards Defendant Eshem. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). Although Defendant Eshem then deployed OC spray, it was ineffective. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). After the failed attempt to use OC spray, Defendant Eshem requested that a MK9 fogger be brought into the area. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). Plaintiff then stated: “I am going to cut one of you guys.” (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). Defendant Eshem again ordered Plaintiff to cuff up. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). After that order was made, Plaintiff walked towards the front of the cell, pulled a bottle from his pants, and pointed the bottle in the direction of Defendant Eshem. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 720). Defendant Eshem responded by deploying OC from the MK9, but Plaintiff turned quickly and the OC did not strike the desired area. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721). Defendant Eshem once again ordered Plaintiff to cuff up, at which time Plaintiff picked up the bottle. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721). When Defendant Eshem deployed the OC for the third time, it had the desired effect and Plaintiff cuffed up. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721). Defendant Eshem observed that Plaintiff had bent the bed, tore up his mattress, and stuffed the mattress in the toilet to flood the cell. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721).

         All property was removed from Plaintiff's cell following the incident. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721). His cell also was aired out for a few minutes. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721). Plaintiff was offered a shower but he refused it. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721). He was placed on property restriction for twenty-four hours and returned to his cell with assistance from Defendant Rogers. (Doc. 71-3, PageId. 682-84; Doc. 71-8, PageId. 721).

         When Defendant Hart examined Plaintiff that same day, Plaintiff reported “I got no injuries.” (Doc. 71-3, PageId. 682-84, 694). Defendant Hart also noted that Plaintiff was healthy with no acute distress and no injuries. (Id., PageId. 694).

         SOCF has a twenty page Use of Force Report packet and video footage for this incident, which have been submitted in support of Defendants' motion for summary judgment. (Id., PageId. 678-97; Doc. 72). The details of the incident described above are consistent with those contained throughout the Use of Force Report and in the video footage. Plaintiff refused to make a Use of Force Statement. (Doc. 71-3, PageId. 691). The Deputy Warden of Operations Review of Use of Force form for the incident is signed by William Cool, Deputy Warden of Operations, on June 12, 2015, which indicates that the force was used to control or subdue an inmate who refused to obey prison rules. (Id., PageId. 678). It recommends no further action be taken. (Id.). The Managing Officer concurred with Defendant Cool's recommendation. (Id.).

         This incident also was subject to review by the RIB. Upon review by the RIB, Plaintiff was found guilty of Inmate Rules of Conduct (7) Throwing any other liquid or material on or at another, (21) Disobedience of a direct order, (26) Disrespect to an officer, staff member, visitor, or other inmate, and (49) Destruction, alteration, or misuse of property. (Doc. 71-5, Greene Affidavit, PageId. 702; Doc. 71-7, RIB Disposition, PageId. 717).[4] That decision was affirmed by the Warden on July 2, 2015. (Doc. 71-7, Warden's Decision, PageId. 718).

         Plaintiff submitted an Informal Complaint Resolution form dated July 28, 2015 to prison officials, which provides details on his allegations about the June 11, 2015 incident. (Doc. 6-1, PageId. 50). In the informal complaint, Plaintiff claims that “C.O.'s Henson & Butterbaugh start a ritual of laying food tray on tray slot then Henson comes by cell and boldly whistles at me and finally when Henson walks by and opens tray slots of I/M . . . to receive dinner tray he refuses me my dinner.” (Doc. 6-1, PageId. 46). He continues: “But on this particular day I am reading the holy Quran outloud in Arabic” and when Defendant Eshem approached he “spray feces and urine in a humid plexee glass cell with no out.” (Id.). He claims the “mattress molded[, ]” the “water turned off[, ]” and the “toilet [was] leaking with feces & urine[.]” (Id.). He then states “they press the sinks water button from the back ‘hard' to make the sink over flow/flood cell.” (Id.). He contends Defendant Eshem, along with Defendant Rogers, then sprayed him twice with mace, took him out of the cell, and took all of his items. (Id.). He states that there also was a “customary denial of medical.” (Id., PageId. 51). In the Amended Complaint, Plaintiff alleges that his “lungs collapsed” and that he suffered “untreated . . . internal bleeding.” (Doc. 10, PageId. 68-69).

         C. ...


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