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Clark v. Burke

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

May 4, 2018

CARLOS CLARK, Plaintiff,
v.
DANIEL BURKE, et al., Defendants.

          Black, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge

         I. Introduction

         Plaintiff, an inmate at the Southern Ohio Correctional Facility ("SOCF"), brings this pro se action under 42 U.S.C. § 1983 against defendants, Correctional Officers Daniel Burke and J. Ewen, alleging violations of his civil rights during his incarceration at the Warren Correctional Institution ("WCI"). (Doc. 3). Plaintiff was granted leave to amend the complaint to clarify the relief he is seeking.[1] (Doc. 14). The Court subsequently granted defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) as to plaintiffs (1) Eighth Amendment claim for deliberate indifference to his medical needs, and (2) Eighth Amendment claims against defendants in their official capacities. (Docs. 21, 22). The only claim remaining is plaintiffs Eighth Amendment claim for use of excessive force against defendants in their individual capacities. This matter is before the Court on defendants' motion for summary judgment on plaintiffs excessive force claim (Doc. 48), plaintiffs opposing memorandum (Doc. 50), and defendants' reply (Doc. 55). Defendants move for summary judgment under Fed.R.Civ.P. 56(a) on the grounds that (1) plaintiff failed to exhaust his administrative remedies as to that claim, and (2) defendants are entitled to qualified immunity on the claim because plaintiffs complaint fails to state a claim for relief under the Eighth Amendment.

         II. Summary judgment standard

         A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).

         The trial judge's function is not to weigh the evidence and determine the truth of the matter, but it is to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249; Little Caesar Enterprises, Inc., 219 F.3d at 551. The trial court need not search the entire record for material issues of fact, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial."' Matsushita, 475 U.S. at 587. "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007). However, "[f]acts that are not blatantly contradicted by [the evidence] remain entitled to an interpretation most favorable to the non-moving party." Coble v. City of White House, Term., 634 F.3d 865, 870 (6th Cir. 2011).

         Because plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Raines v. Kerner, 404 U.S. 519, 520 (1972) (stating that the Court holds pleadings of pro se litigants to less stringent standards than formal pleadings drafted by lawyers)); 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 his duty to support his factual assertions with admissible evidence. Maston v. Montgomery Cty. 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)). When opposing a motion for summary judgment, a pro se party cannot rely on allegations or denials in unsworn filings. Id. (citing Viergutz, 375 Fed.Appx. at 485).

         III. Facts

         Plaintiff has not submitted an affidavit or other evidence in opposition to defendants' summary judgment motion. However, defendants do not appear to dispute the following facts alleged in the complaint: On December 19, 2015, defendants Burke and Ewen stopped plaintiff as he was returning to his unit from lunch because of a suspicious bulge under his shirt. (Doc. 3 at 5). Burke instructed plaintiff that he was going to frisk him. (Id.). Burke found six potatoes, a yellow bag of coffee, a bar of soap, an embossed envelope, and a USB cord under plaintiffs shirt. (Id.). Burke confiscated the items and informed plaintiff the potatoes were contraband, plaintiff would need to speak with a unit sergeant to have the USB cord returned, and plaintiff would need to produce a receipt for the rest of the items. (Id.). Officer Burke then gave plaintiff a direct order to return to his cell. (Id.). En route to his cell, plaintiff said, "Ya'll two on some real bitch ass shit today." (Id.). Plaintiff alleges that Ewen ordered plaintiff to turn around and come to him, but plaintiff noticed Officer Burke had "O.C. spray" (oleoresin capsicum or pepper spray) in his hand. (Id.). Plaintiff ran from the officers while they began to pursue him and spray him with pepper spray several times. (Id.). Plaintiff alleges that Ewen "gain contact, " and plaintiff swung a trash can at Ewen and then struck him with a closed fist. (Id.).

         The parties' versions of the facts diverge at this point. Plaintiff alleges: "Immediately I was leveled with the ground, my head was slamed [sic] into the ground and then I was handcuffed when the C/O continued to spray my face with O.C. spray and kicked me several times in the face as well." (Id. at 5-6). Plaintiff yelled at the officers to stop and "that it hurt, " at which point they lifted plaintiff up and "began towards medical." (Id. at 6). Defendants offer a differing version of the facts and supporting documentation which includes WCI Use of Force documentation of the incident (Doc. 48, Exh. B, pp. 4-5, 8, 9); the Incident Reports of WCI corrections officers Justin Holdren, Jon Ledford, James Jones II, and Jerry Gault, all of whom responded to the incident (Id., Exh. E, pp. 3, 6, 9, 12); and these responding officers' declarations (Id., Exh. E, pp. 1-2, 4-5, 7-8, 10-11). According to this documentation and the officers' statements, defendant Burke deployed O.C. spray before plaintiff assaulted defendant Ewen. (Id., Exh. B, p. 9). After plaintiff punched him, Ewen employed a balance displacement technique which took plaintiff to the ground. (Id., pp. 8-9). Plaintiff resisted attempts to handcuff him and kicked his legs, so that defendants and the other officers had to physically hold plaintiff down as he was thrashing in order to handcuff him and restore security. (Id., pp. 5, 8-9; Exh. E, pp. 1, 4-5, 7, 10). No officer punched or kicked plaintiff at any time and no officer sprayed O.C. spray at plaintiff after he was handcuffed. (Id., pp. 1-2, 5, 7-8, 11). Plaintiff pled guilty to several rules infractions before the Rules Infraction Board and was found guilty of those rules violations. (Doc. 3, Attachments). Plaintiff also pled guilty to one count of assault in connection with the incident and was convicted on this count in the Warren County, Ohio Court of Common Pleas. (Id., Exh. D).

         Defendants have offered photographic evidence to show that Ewen suffered lacerations and two swollen black eyes as a result of plaintiff s punch to his face and plaintiff suffered a swollen and bruised right eye as a result of the altercation.[2] (Doc. 48 at 5, citing Exhs. F, G). Plaintiff alleges he suffered "a bloody nose, " a "bloody mouth, " and "swollen, and blood shot red" eyes. (Doc. 3 at 6). However, plaintiff has offered no evidence to corroborate these alleged injuries.

         IV. Defendants are entitled to summary judgment on exhaustion grounds

         Defendants contend that they are entitled to summary judgment on plaintiffs remaining Eighth Amendment claim because plaintiff failed to exhaust his administrative remedies before filing suit. Exhaustion of administrative remedies "is mandatory under the [Prison Litigation Reform Act ("PLRA")] and . . . unexhausted claims cannot be brought in court." Jones v. Bock,549 U.S. 199, 211 (2007) (citing Porter v. Nussle,534 U.S. 516, 524 (2002)). "[A] prisoner confined in any jail, prison, or other correctional facility" is barred from filing a lawsuit alleging constitutional violations under 42 U.S.C. § 1983 "or any other Federal law ... until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about ...


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