United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
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. (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.
Summary judgment standard
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).
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).
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).
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
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).
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. (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.
Defendants are entitled to summary judgment on exhaustion
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 ...