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Soledad v. Webb

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

August 29, 2019

MAURICE LEE SOLEDAD, Plaintiff,
v.
LT. WEBB, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, an incarcerated individual who proceeds pro se, filed suit against various correctional officers employed at both the London Correctional Institution (LCI) and Warren Correctional Institution (WCI), alleging numerous claims spanning several years. (Docs. 1, 5). This case is now before the undersigned for reconsideration of a pending motion for summary judgment. (See Docs. 18, 30).

         I. Background

         Plaintiff's original complaint is voluminous, spanning some forty-two single-spaced handwritten pages, not including the attached ninety pages of exhibits. On May 1, 2018, the undersigned concluded that Plaintiff may proceed with an excessive force claim against two individuals at the Warren Correctional Institution (“WCI”), Correctional Officers Fryer and Moore. Multiple claims against nine additional individuals were dismissed. (See Docs. 5, 12). On September 4, 2018, the undersigned filed a second Report and Recommendation (“R&R”) that recommended that Plaintiff's motion for default judgment against Defendant Moore be denied; that R&R was also adopted by the Court. (Docs. 19, 23).

         The specific allegations giving rise to Plaintiff's excessive force claim against Defendant Fryer are scattered throughout his complaint at PageID 17-18, 27-28, and 31-35. In those allegations, Plaintiff alleges that on August 1, 2017, while at WCI, Fryer “kept twisting my wrist” during an escort to the captain's office, and “while walking in mid-stride…shove[d] me into the door frame, and when regain[ed] my balance with abrupt movement he shoved me into the door frame again.” (PageID 17). Plaintiff also alleges that on August 3, 2017, he was found guilty by the RIB in connection with the same incident. (PageID 18). Plaintiff alleges that he tried to report officer Fryer for pushing him into the door frame and filing a false conduct report, because when Fryer wrote him up, he “committed fraud on his conduct report by not listing his participation of the initial threat ‘take your hand off the wall it's going to be [a] bad day'….” (PageID 27; see also Doc. 5, R&R at 7, summarizing allegations). In his complaint, Plaintiff protests that he was wrongfully convicted of a conduct violation by the RIB based on Fryer's false report, and that Lt. Webb ignored Plaintiff's defense at the hearing. He alleges that he tried to appeal his conviction to the warden, and later, to the Director of the ODRC, Mr. Mohr, but that his appeals were rejected, apparently on grounds that the RIB conviction including Defendant Fryer's conduct did not violate any institutional policies. (See PageID 35).

         The initial screening R&R summarized Plaintiff's separate excessive force allegations against defendant Moore, concerning an unrelated incident, as follows:

[P]laintiff complains that on December 17, 2017, defendant officer Moore wrote a conduct report against him, stating that he saw plaintiff punch another inmate…. Plaintiff states that Moore ordered him to stop fighting twice, that plaintiff complied with his orders, and that Moore stated “I'm going to take you down.” … Plaintiff alleges that Moore subsequently “grabbed me by both arms around my waist take a couple steps and body slams me to the ground, I hit my head on the cement floor, and my side of my left eye socket bridge near my temple is bust wide open.” …According to plaintiff, defendant Lt. Nelson took a picture of his injuries and “a use of force was conduct by a Capt. Walker, he held a disposition (sic).”

(Doc. 5 at 8, citing complaint at PageID 38).

         On September 4, 2018, following a period of discovery, Defendants Moore and Fryer jointly moved for summary judgment. On October 9, 2018, the undersigned noted that Plaintiff had failed to file any timely response to Defendants' motion which “if granted, would be dispositive of all of Plaintiff's claims….” (Doc. 22). After Plaintiff failed to file a response to the “show cause” order, the undersigned filed a third R&R on January 11, 2019. (Doc. 24). In that R&R, the undersigned recommended that Defendants' motion for summary judgment for failure to exhaust administrative remedies should be granted, both because it was amply supported by Defendants' evidentiary exhibits and because it appeared to be unopposed. (Doc. 24 at 1, noting that “[t]he evidentiary exhibits attached to Defendants' motion strongly support their argument and compel the conclusion that Defendants are entitled to judgment on this basis.”; see also id. at 2).

         On August 28, 2019, the presiding district judge declined to adopt the third R&R. (Doc. 30). In his Order, Judge Barrett pointed out that in his September 14, 2018 Objections to the second R&R, Plaintiff had included what appeared to be “objections” to the Defendants' pending motion for summary judgment. (Doc. 30 at 2; see also Doc. 23, Order adopting second R&R, noting that since Plaintiff's “‘objections' do not relate to [the R&R on] his Motion for Default Judgment, the Court will not address them at this time.”). Judge Barrett acknowledged that Plaintiff's inclusion of “objections” to the motion for summary judgment was procedurally improper and did not excuse his subsequent failure to respond to the undersigned's prior “show cause” order. Nevertheless, the Court stated:

However, as the January 11, 2019 R&R recommends granting Defendants' Motion for Summary Judgment “in light of the lack of any opposition from Plaintiff and the undisputed evidence supporting Defendants' motion, ” (Doc. 24) and the fact that Plaintiff responded in opposition to Defendants' Motion for Summary Judgment, and specifically opposed Defendants' evidence supporting their Motion for Summary Judgment, (Doc. 21 at PageID 232-233), the Court will decline to adopt the January 11, 2019 R&R. Cf. S.D. Ohio Local Rule 7.2(a)(2) (“Failure to file a memorandum in opposition may result in the granting of any motion that would not result directly in entry of final judgment or an award of attorneys' fees.”). Instead, the Court will transfer Defendants' Motion for Summary Judgment back to the Magistrate Judge to complete the briefing and an additional R&R based on the parties' arguments.

(Doc. 30 at 4).[1]

         II. ...


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