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McDougald v. Dillow

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

August 2, 2018

JERONE MCDOUGALD, Plaintiff,
v.
MICHAEL DILLOW, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Plaintiff, a prisoner at the Southern Correctional Facility (SOCF) and frequent litigant in this Court, [1] filed this civil rights action in November 2016. This matter is now before the Court on cross-motions for summary judgment. (Docs. 34, 43).

         I. Background and Facts

         Plaintiff is currently in the custody of the Ohio Department of Rehabilitation and Correction (“ODRC”) and is serving his prison sentence at Southern Ohio Correction Facility (“SOCF”), Lucasville, Ohio.

         On November 23, 2016, McDougald filed his complaint alleging various violations of his First and Eighth Amendment rights relating to pepper spray (“use of force”) deployed against him on October 7, 2016 while incarcerated at SOCF. (Doc. 1). Following the Court's initial screening Order (Doc. 6), McDougald's allegations include: Deliberate Medical Indifference (Sgt. Dillow, Osborne, Nurse Reiter, Bauer, Rogers); Excessive Force (Sgt. Dillow, Osborne); and Retaliation (Sgt. Dillow, Osborne). McDougald names various Defendants including Bauer, Lt., Dillow, Rogers, Lt., Osborne, and Nurse Reiter[2] and sues each in their individual capacity for $50, 000 punitive damages. Id. Defendants answered McDougald's complaint on January 17, 2107, which included several affirmative defenses. (Doc. 9).

         McDougald alleges that Osborne bent McDougald's wrist back “for no reason” during a cuffing incident on October 7, 2016. McDougald alleges Sgt. Dillow came up to the cell door and pepper sprayed him followed by both Dillow and Osborne stating “this is for filing lawsuits.” McDougald alleges that Dillow and Osborne applied excessive force in violation of his Eighth Amendment rights. McDougald also alleges he was left in a cell with difficulty breathing and that his requests for help were ignored. (Doc. 1 at 2). McDougald claims that he requested help when Nurse Reiter and Osborne looked into his cell during the time that he was suffering the effects of pepper spray but that both Reiter and Osborne ignored McDougald's request for help. McDougald believes that Nurse Reiter violated his Constitutional rights (8th and 14th Amendments) by being deliberately indifferent to his medical needs. Id. McDougald claims that when Bauer and Rogers returned to his cell post-application of pepper spray both Bauer and Rogers ignored his requests for medical attention and decontamination. McDougald claims that his Eight Amendment rights were violated as such alleged conduct was cruel and unusual punishment (Doc. 1 at 2).

         Defendants' however, set forth a different version of facts relating to this incident. Defendants contend that McDougald, on October 7, 2016, in process of cuffing him at his cell entrance, began to pull away from the officer and took hold of the remaining cuff that was not fastened and refused to let go. McDougald refused several direct orders to release the cuff that he held in his hand. In light of McDougald's behavior and the danger of the metal handcuff he maintained in his hand McDougald received a short burst of OC (“pepper spray”) from Officer Dillow. (Doc. 43, Ex. A, Dillow Interrog. #4, 5, and 6; Ex. B, Osborne Interrog. #1, 2, 4, 5, 6 and 7; Ex. E, Rules Infraction Board (“RIB”) Pkt. p. 002; Ex. G, Use of Force (“UoF”) Pkt. pp. 002, 004, 005, 006, 007, and 010); and Def. Ex. K, Institutional Camera Footage).

         Thereafter, Officer Dillow asked Plaintiff if he wanted a decontamination shower, to which Plaintiff replied “go fuck yourself.” (Doc. 43, Ex. G at 2). Defendant Dillow then contacted medical staff to have Plaintiff examined. Id. RN Reiter provides in her medical examination report that McDougald was not interested in decontamination nor a medical check. Moreover, RN Reiter noted that McDougald was in his cell laughing and clapping and stating words to the effect “I have my lawsuit now.” (See Doc. 43, Ex. G, UoF w/ MER, p. 010; Ex. C, RN Reiter Interrog ¶¶ 2, 3, 5, 6, 8, 10).

         McDougald's conduct was reviewed by the Rules Infraction Board (“RIB”). The RIB found (and the Warden's designee concurred) that McDougald violated a number of inmate rules. (Doc. 43, Ex. F, Ohio Adm. Code; rules 6, 60; Ex. E, RIB, pp. 003-008, 010-0011). McDougald refused to attend the RIB hearings and offer his testimony. (Id, RIB packet, p. 003). The Use of Force Packet provides pertinent information as to findings of guilt against McDougald regarding the acts complained of in this case. (Doc. 43, Ex. E, RIB, pp. 003-008, 010-0011; Ex. F, Ohio Adm. Code; rules 6, 60; Ex. G).

         Based on the foregoing, Defendants assert that they acted reasonable under the circumstance and are therefore entitled to judgment as a matter of law. The undersigned agrees.

         II. Defendants motion for Summary Judgment is well-taken

         A. Standard of Review

         A motion for summary judgment should be granted if the evidence submitted to the court demonstrates that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24748, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party must demonstrate the absence of genuine disputes over facts which, under the substantive law governing the issue, could affect the outcome of the action. Celotex Corp., 477 U.S. at 323.

         In response to a properly supported summary judgment motion, the non-moving party “‘is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial.'” Harris v. Adams, 873 F.2d 929, 931 (6th Cir.1989) (quoting Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987)). The Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir.2002); Little Caesar Enterprises, Inc. v. OPPC, LLC, 219 F.3d 547, 551 (6th Cir.2000).

         If, after an appropriate time for discovery, the opposing party is unable to demonstrate a prima facie case, summary judgment is warranted. St. v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989) (citing Celotex and Anderson). A principal purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 323-24. The moving party need not support its motion with evidence disproving the opposing party's claims. Rather, the moving party need only point out there is an absence of evidence supporting such claims. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996) (citing Celotex Corp., 477 U.S. at 325). Nor must the Court search the entire record for material issues of fact. Street, 886 F.2d at 1479-80. The court need only 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 ...


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