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Smith v. Southern Ohio Correctional Facility Officer Bigham

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

May 7, 2018

THEODORE W. SMITH, III, Plaintiff,
v.
SOUTHERN OHIO CORRECTIONAL FACILITY OFFICER BIGHAM, Defendant.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         On 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.[1] 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 rights.

         The 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.

         I. 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).

         Rule 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).

         Once 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.

         November 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).

         Other than the limited testimony contained in the two Declarations, [2] 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-

         3).

         II. Background

         A. Allegations of the Complaint

         The 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 equitable.

(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).

         B. ...


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