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Brown v. Venable

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

August 27, 2019

IZELL BROWN, JR., Plaintiff,
v.
T. FRANCIS VENABLE, Defendant.

          George C. Smith Judge

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Izell Brown, Jr. (“Plaintiff”), an Ohio state prison inmate, brings this action under 42 U.S.C. § 1983 against Defendant Travis Venable, [1] a Captain at the Madison Correctional Institution, for use of excessive force in violation of the Eighth Amendment. Both parties have moved for summary judgment. (ECF Nos. 40, 49.) For the reasons that follow, it is RECOMMENDED that both Motions for Summary Judgment be DENIED.

         I. BACKGROUND

         The initial facts are undisputed. On April 9, 2018, Plaintiff was under “constant watch” in the Madison Correctional Institution's infirmary as a result of self-injurious behavior. That morning, Plaintiff began banging his head against the door of his cell. After he refused orders to stop, Corrections Officer Floyd Detty sprayed Plaintiff with oleoresin capsicum (“OC” or pepper spray), but the spray missed Plaintiff's face. Plaintiff was then escorted from his cell to the infirmary treatment room by Officer Detty, Captain Venable, and Corrections Officer Ahmed Camara. Plaintiff was decontaminated from the OC spray but otherwise refused medical treatment. Plaintiff was then escorted back to his cell. (See Pl.'s Dep. 12-17, ECF No. 51; Detty Dec. 2, ECF No. 49, PAGEID #283; Camara Dec. 2, ECF No. 49, PAGEID #279; Venable Dec. 3, ECF No. 49, PAGEID #273.) Plaintiff does not challenge the use of force in connection with the OC spray or the subsequent escort to and from the treatment room.

         After returning to his cell, Plaintiff admits he began smearing feces on the door of his cell, which obstructed the officers' view. Captain Venable then ordered Officer Detty to access the door. (Pl.'s Dep. 17-18, ECF No. 51.) From here, the parties' accounts diverge.

         A. Plaintiff's Account of the Force in Question

         According to Plaintiff, only Detty entered his cell and, although Plaintiff initially refused to offer his hands for cuffing, he gave no physical resistance and Detty was able to handcuff him without any use of force. (Id. at 18-19.) Venable, Detty, and Camara then escorted him back to the infirmary treatment room. During the walk back to the treatment room, Plaintiff contends that Captain Venable made verbal threats to him, stating that “[Venable was] tired of dealing with [Plaintiff]” and that “[Venable] wished that [Plaintiff would] do something to give [Venable] a reason to do-to pound [Plaintiff's] face in.” (Id. at 20-21.) Plaintiff did not say anything threatening to Venable in response, but Plaintiff admits he was trying to pull away from Venable and asked for a different supervisor to be present. (Id.)

         After arriving back in the treatment room, Captain Venable ordered Plaintiff to sit down in a chair. Plaintiff verbally refused: “I told him fuck off, I'm not sitting down in that chair.” (Id. at 22.) After he refused three orders to sit down, Plaintiff asserts that Captain Venable punched him in the face. (Id. at 23.) Plaintiff reports that he lost consciousness for a few seconds, but was still standing when he regained consciousness. (Id. at 23-24.) After that, Captain Venable “took [Plaintiff] to the ground, but he lift[ed Plaintiff] right back up.” (Id. at 24.) Plaintiff believes Captain Venable used a front-leg sweep to bring him close to the ground, but that Plaintiff never actually hit the ground because Captain Venable was still holding onto Plaintiff's arm. (Id. at 25-26.) After the leg sweep, Captain Venable once again told Plaintiff to sit in the chair, and this time Plaintiff complied. (Id. at 26-27.) At this point, Plaintiff admits to making “multiple threats” to Captain Venable, saying he was going to spit on him, but not otherwise threatening physical harm. (Id. at 27-28.) Gary Trentman, a nurse, was also in the treatment room at the time Plaintiff alleges the punch occurred. At his deposition, Plaintiff stated, “Trentman seen it. And at that time [Venable] was telling me, He's [Trentman's] on our side, laughing at me, and Trentman is saying in response, That's right, buddy. That's right, buddy.” (Id. at 53.) The officers requested a spit sock to prevent Plaintiff from spitting on anyone; according to Plaintiff, he sat in the chair in the treatment room for approximately ten minutes until the spit sock was obtained and did not spit or attempt to spit during that time. (Id. at 54.) Although Plaintiff's eye was swollen and his lip was bloody, Plaintiff refused medical treatment and was taken back to his cell. (Id. at 32, 42.) The injury to Plaintiff's eye took approximately one month to fully heal, and his lip healed in less time than that. (Id. at 44.)

         B. Officers' Account of the Force in Question

          In contrast to Plaintiff's account, the officers report physical resistance from Plaintiff throughout the second escort to the treatment room. After Officer Detty opened the door to Plaintiff's cell, Detty, Camara, and Venable state one cuff was placed on one of Plaintiff's wrists, at which point Plaintiff stated that he was not going to let the officers cuff him, and began jerking roughly away from the officers. (Detty Dec. 3, ECF No. 49, PAGEID #284.) Detty then gained control of Plaintiff's left arm, while Venable gained control of Plaintiff's right arm, allowing the officers to handcuff him. (Id.) During the walk to the treatment room, Plaintiff repeatedly cursed at Venable and threatened to spit on him and bite him. (Id.; Venable Dec. 3, ECF No. 49, PAGEID #273; Camara Dec. 3, ECF No. 49, PAGEID #280.) The officers had to hold their hands between Plaintiff and Venable's face to block any spitting attempts. (Id.) Plaintiff also repeatedly tried to bang his head against the hallway wall. (Id.)

         After arriving in the treatment room, Plaintiff refused Venable's orders to sit down. (Venable Dec. 3-4, ECF No. 49, PAGEID #273.) Instead, Plaintiff kicked over a chair and then attempted to kick Venable. (Id.; Camara Dec. 3, ECF No. 49, PAGEID #280.) Plaintiff also continued cursing at Venable and threatening to “spit in [Venable's] bitch ass face.” (Venable Dec. 3-4, ECF No. 49, PAGEID #273-74.) Venable then performed a front-leg sweep to take Plaintiff to the ground. (Id.; Camara Dec. 3, ECF No. 49, PAGEID #280.) Venable was able to regain control of Plaintiff and Plaintiff sat down in the chair. (Id.) Because Plaintiff kept threatening to spit, Venable requested a spit sock. (Id.) Plaintiff refused medical treatment and was escorted back to his cell. (Id.) At that point, Venable observed “slight swelling to [Plaintiff's] right eye and cheek, and a small amount of blood in his mouth.” (Venable Dec. 4, ECF No. 49, PAGEID #274.)

         C. The Present Motions

         After initial screening under 28 U.S.C. § 1915A, the Court dismissed all of Plaintiff's claims except for his claim for excessive force in violation of the Eighth Amendment against Captain Venable arising out of the alleged punch to Plaintiff's face. (ECF No. 4, 14.) Both Plaintiff and Venable have moved for summary judgment.

         II. STANDARD OF REVIEW

         Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment 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.” Fed.R.Civ.P. 56(a). “The moving party has the initial burden of proving that no genuine issue of material fact exists, and the court must draw all reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed. R. Civ. P. 56(e)(2) (providing that if a party ...


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