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Evans v. Frantz

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

March 1, 2018

ROBERT LEE EVANS, PLAINTIFF,
v.
DEPUTY LISA FRANTZ, et al., DEFENDANTS.

          MEMORANDUM OPINION

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Proceeding pro se, plaintiff Robert Lee Evans (“Evans”) has brought this civil rights action seeking damages associated with his confinement in the Mahoning County Jail on January 2, 2015. Specifically, he challenges the actions taken by certain corrections officers and staff, insisting that he was subjected to excessive force and a deliberate indifference to his serious medical needs, in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

         Presently pending before the Court is the motion for summary judgment filed by defendants Deputy Lisa Frantz (“Frantz”), Deputy Louis Oxley (“Oxley”), Deputy Joshua Rivers (“Rivers”), Deputy George Cackovic (“Cackovic”), Deputy Sgt. Robert Kopey (“Kopey”), Deputy Lt. Matthew M. Dugan (“Dugan”), Deputy Damon Perry (“Perry”), Deputy Lee Hufnagel (“Hufnagel”), and Deputy James Mullins (“Mullins”) (collectively “Mahoning County Jail defendants”). (Doc. No. 70 [“MSJ”].)[1] Notwithstanding the fact that Evans was afforded several extensions of time in which to file a response (see Doc. No. 76; Non-doc. Order, dated July 3, 2017; Non-doc. Order, dated July 27, 2017), Evans did not file an opposition, and the time for filing such a responsive brief has passed. For the reasons set forth below, summary judgment is granted in favor of Mahoning County Jail defendants.

         I. Background

         On January 2, 2015, Evans was being held in the Mahoning County Jail under a supervised release violation of a federal conviction. (Doc. No. 57 (Second Amended Complaint [“SAC”]) ¶¶ 1, 13, 15.) Though the impetus for the transfer is disputed, it is clear that Oxley, who was assigned to work that day in a general population unit known as s-pod, requested assistance from various jail staff to transfer Evans from his cell in s-pod to a cell on the disciplinary unit known as “o-pod.” (Id. ¶¶ 15-20; Doc. No. 70-1 (Affidavit of Louis Oxley [“Oxley Aff.”]) ¶¶ 4-9; Doc. No. 70-4 (Affidavit of Joshua Rivers [“Rivers Aff.”]) ¶¶ 6-7; Doc. No. 70-6 (Affidavit of Robert Kopey [“Kopey Aff.”]) ¶¶ 4-6; Doc. No. 70-13 (Affidavit of Lisa Frantz [“Frantz Aff.”]) ¶¶ 4-6.) The Mahoning County Jail defendants all participated, in one way or another, in the transfer.[2] Evans raises claims of excessive force relating to four incidents during the transfer: (1) within his cell while housed within “s-pod” (id. ¶¶ 14-24, 43, 45-47); (2) within an elevator while being transported to o-pod (id. ¶¶ 25-27, 43, 47); (3) within the hallway vestibule after exiting the elevator (id. ¶¶ 27, 43); and (4) while being escorted to and within his cell on o-pod. (Id. ¶¶ 28-38, 43.)

         With respect to these claims, there is no dispute that, during the extraction from his cell on s-pod, Evans was subjected to a three-second burst of a chemical agent and eventually handcuffed. It is also beyond dispute that Evans was transported on foot through the facility to the booking room where he received a shower before being taken to the nurse's station. After he was examined by Mahoning County Jail medical staff, Evans was cleared to be transferred to o-pod and was placed in a cell on o-pod. Beyond these undisputed facts, the parties disagree as to the details of the events of January 2, 2015, including the extent and type of force used against Evans and the nature and extent of any injuries he sustained as a result. However, these factual disputes, to the extent they are not resolved by video footage from the jail, are academic as Evans failed to properly exhaust his administrative remedies.

         II. Discussion

         A. Summary Judgment Standard

         Under Fed.R.Civ.P. 56(a), when a motion for summary judgment is properly made and supported, it shall 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.” An opposing party may not rely on allegations or denials in its own pleading; rather, by affidavits or by materials in the record, the opposing party must set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1). Affidavits or declarations filed in support of or in opposition to a motion for summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). A movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

         In reviewing summary judgment motions, the Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict[.]” Id. at 252.

         Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, “[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record as it has been established that create a genuine issue of material Fact. Fulson v. City of Columbus, 801 F.Supp. 1, 4 (S.D. Ohio 1992) (citation omitted). The non-movant must show more than a scintilla of evidence to overcome summary judgment; it is not enough for the non-moving party to show that there is some metaphysical doubt as to material facts. Id. (citation omitted).

         B. The Verified Complaint and Video Evidence

         While Evans did not file an opposition to summary judgment, the SAC is verified and signed by him under penalty of perjury. (SAC at 431[3].) It is well settled that a properly verified complaint “carries the same weight as would an affidavit for the purposes of summary judgment.” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993)); see Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992) (“the handwritten complaint of a pro se prisoner may defeat a defendant's motion for summary judgment because it contained language that verified the complaint within the meaning of [28 U.S.C. § 1746]”) (citation omitted, emphasis in original). Proper verification generally requires two components: an assertion that the statements are true and correct, and an averment that the facts are made under penalty of perjury. United States v. 8 Gilcrease Lane, Quincy Fla. 32351, 587 F.Supp.2d 133, 139 (D.D.C. 2008) (citation omitted).

         In his signed SAC, Evans avers that he “declare[s] under the penalties of perjury that the statements and facts in this complaint are true and correct to the best of [his] knowledge and beliefs.” (SAC at 431, capitalization omitted.) While this averment meets the statutory requirements of 28 U.S.C. § 1746, it suggests that allegations contained therein may go beyond Evans' knowledge by including his beliefs, as well. “To constitute evidence sufficient to support or oppose a motion for summary judgment, an affidavit ‘must be made on personal knowledge, set out facts that would be admissible, and show that the affiant is competent to testify on the matters stated.'” Totman v. Louisville Jefferson Cnty. Metro. Gov't, 391 F. App'x 454, 464 (6th Cir. 2010) (rejecting allegations in a verified complaint that were not based on personal knowledge but, instead, represented mere speculation based on “beliefs”) (quoting former Fed.R.Civ.P. 56(e)(1)). For purposes of summary judgment, the Court ...


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