United States District Court, S.D. Ohio, Western Division
THEODORE W. SMITH, III, Plaintiff,
SOUTHERN OHIO CORRECTIONAL FACILITY OFFICER BIGHAM, Defendant.
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
February 24, 2017, Plaintiff, an individual previously
incarcerated at the Southern Ohio Correctional Facility
(“SOCF”) who proceeds pro se, tendered a
complaint against SOCF Correctional Officer
Bigham. Plaintiff's complaint alleges that on
November 14, 2016, Defendant Bigham used excessive force
against him by discharging “mace” without
provocation, in violation of Plaintiff's constitutional
Court granted Plaintiff leave to proceed in forma
pauperis, directed the parties to complete discovery by
November 30, 2017, and to file dispositive motions by
February 14, 2018. (See Docs. 2, 4, 10, 20, Notation
Order of 1/30/18). On February 13, 2018, the Defendant Bigham
timely filed a motion for summary judgment. For the reasons
that follow, the undersigned recommends that Defendant's
motion be granted only in part, and that additional pretrial
and trial dates be scheduled if this R&R is adopted.
Summary Judgment Standard and the Record Herein
Federal Rule of Civil Procedure 56(a) provides that summary
judgment is proper “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.” A dispute is
“genuine” when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A court must view the evidence and draw
all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The moving party has the burden of
showing an absence of evidence to support the non-moving
party's case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986).
56(c) explains in relevant part that a party asserting that a
fact cannot be genuinely disputed must support the assertion
by citing to “particular parts of materials in the
record, including depositions, documents…affidavits or
declarations, stipulations…, admissions, interrogatory
answers, or other materials” or alternatively by
showing that the adverse party “cannot produce
admissible evidence to support the fact.” This Court
must consider the cited materials, but “may”
consider other materials in the record. Rule 56(c)(3).
the moving party has met its burden of production, the
non-moving party cannot rest on his pleadings, but must
present significant probative evidence in support of his
complaint to defeat the motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 248-49.
The mere existence of a scintilla of evidence to support the
non-moving party's position will be insufficient; the
evidence must be sufficient for a jury to reasonably find in
favor of the nonmoving party. Id. at 252.
14, 2016 was a busy night at SOCF. Defendant Bingham admits
that he was involved in two separate “use of
force” incidents that evening. In support of his motion
for summary judgment, Defendant offers two Declarations
submitted under penalty of perjury by SOCF Institutional
Inspector Mahlman, and by SOCF Paralegal Sherri Bishop, which
Declarations concern the two “use of force”
incidents to which Bigham admits. Ms. Mahlman's
Declaration also states that she investigated an internal
grievance regarding a third (undocumented) incident about
which Plaintiff complains. During the two documented
“use of force” incidents, which occurred on or
around 6:45 p.m. and on or about 9:05 p.m., respectively, two
different correctional officers (not Defendant) employed
pepper spray against two different inmates (not Plaintiff).
than the limited testimony contained in the two Declarations,
Defendant primarily relies upon other institutional records:
(1) Plaintiff's “offender movement history”
reflecting his housing at SOCF; (2) Plaintiff's November
21, 2016 Informal Complaint Resolution (“ICR”)
form, alleging he was “maced (without
reason/provocation) by a [unspecified] corrections
officer” who failed to report that use of force, and an
institutional response stating that Inspector Mahlman
“is aware of the circumstances…and the matter is
being addressed…”; (3) Plaintiff's
Notification of Grievance appealing the response to his ICR
and the 12/20/16 response by Inspector Mahlman; (4)
Plaintiff's final appeal to the Chief Inspector and the
institutional response dated 2/15/17; (5), a Conduct Report
regarding the 6:45 p.m. reported use of force by Defendant
Bigham; and (6) a second Conduct Report regarding the 9:05
p.m. reported used of force by C/O Bigham. (See
generally Exhibits to motion, Docs. 22-1, 22-2, 22-
Allegations of the Complaint
Court begins with the facts alleged by Plaintiff before
turning to the evidence presented by Defendant in support of
summary judgment. Plaintiff's complaint alleges, in
relevant part, that Plaintiff was housed in the
“sensory deprivation area” of the
“J-2” housing unit at SOCF on November 14, 2016.
(Doc. 3 at 5). On that date, Plaintiff alleges that an
unidentified “Corrections Officer”
“discharged his mace in the J-2 Seg. Area.”
Id. at 6. The complaint further alleges:
I and inmates Lattimer…and Elswich… complained
of burning eyes and difficulty breathing. I asked the officer
to open the window or turn on the fan. He refused. I
retreated to the back of my cell to take advantage of the air
circulation coming from below under the desk in the cell.
After Officer Bigham entered the area behind the cells he
sprayed mace to the vent directly into my eye. No.
explanation was given for the officer's use of force and
as of this date no conduct report has been issued by the
Officer [illegible] for misconduct.
Wherefore Mr. Smith prays this court enter judgment granting
(1) declaration that the acts and omissions described herein
violated plaintiff's rights under the constitution and
laws of the United States; (2) compensatory damages in the
amount of $125, 000.000; (3) Punitive damages in the amount
of $250, 000.00; (4) a jury trial on all the issues triable
by jury; (5) Plaintiff's costs… and (6) any
additional relief this court deems just, proper and
(Doc. 3 at 6). The undersigned construed Plaintiff's
claim under 42 U.S.C. § 1983, as a claim seeking
monetary damages for the alleged excessive use of force by
Officer Bigham, in violation of Plaintiff's Eighth
Amendment rights. (Doc. 4).