United States District Court, S.D. Ohio, Western Division
LAWRENCE R. BURFITT, II, Plaintiff,
C/0 M. ERVING, et al., Defendants.
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
a former inmate at the Southern Ohio Correctional Facility
("SOCF") proceeding pro se, filed this civil rights
action under 42 U.S.C. § 1983 alleging that defendants
Ervin, Ruckel, Parish, Esaum, Buroughton, Sparks, and Warren
used excessive force against him, and defendant Nolan failed
to protect him from this alleged excessive force. (Doc. 4).
This matter is before the Court on defendants' motion for
summary judgment (Doc. 38), plaintiffs response in opposition
(Doc. 43), defendants' reply memorandum (Doc. 45). and
plaintiffs supplemental memorandum (Doc. 46).
lawsuit arises out of an incident that occurred at SOCF in
September 2017. The following facts are
September 19, 2017, defendant Ervin worked in the L-4 Unit
and escorted plaintiff to the shower for a shakedown around
2:00 P.M. (Use of Force Investigation Summary Report, Doc.
38-1 at 1-2). While walking towards the shower, defendant
Ervin gave plaintiff multiple orders to face forward and
cease arguing with him. (Id.). Defendant Ervin then
took out his Oleoresin Capsicum ("OC") spray as a
precaution but did not immediately discharge it.
(Id.). Plaintiff then turned his body and
"squared up" with defendant Ervin, which made
defendant Ervin deploy the OC spray to plaintiffs face.
(Id.; Doc. 38 at 3). Plaintiff then began to punch
defendant Ervin and defendant Ervin exchanged punches in
return. (Id.). Plaintiff then attempted to gain
control of defendant Ervin's baton, but defendant Ervin
was able to regain control of it. (Doc. 38-1 at 2). Plaintiff
does not dispute that he struck defendant Ervin in the face
and took his baton. (Notification of Grievance, Doc. 38-8 at
2). Plaintiff then wrapped his arms around defendant
Ervin's neck in a chokehold, causing a laceration to
defendant Ervin's lip. (Doc. 38-1 at 2, Doc. 38-8 at 2;
Doc. 43-1 at 8). Defendant Ervin then struck plaintiff in the
abdomen with his baton, which caused plaintiff to release the
chokehold. (Doc. 38-1 at 1-2). Defendant Ervin then pushed
plaintiff against the wall and delivered "closed fist
strikes" to plaintiffs face. (Id.). Recreation
Supervisor Mummert arrived on the scene to assist defendant
Ervin in "subduing" plaintiff. (Id. at 2).
According to Mummert, he observed defendant Ervin pushed up
against the railing of the top range, and it looked as if
plaintiff was attempting to push defendant Ervin off the
rail. (Id.). Mummert then apprehended plaintiff and
brought him to the ground. (Id.). Plaintiff
continued to resist orders to cuff up. (Id.)
Defendant Ervin struck plaintiffs arm with his baton and was
able to place him in handcuffs. (Id.).
officers transported plaintiff to the infirmary. (Doc. 38-1
at 2-4). Several Officers responded to the Signal 3 "man
down alarm," including Correction Officers Goodwin,
Parish, Ruckel, and Fri, Sergeant Sammons, and Lieutenant
Joseph. (Doc. 38-1 at 2-4). Plaintiff refused to walk and
resisted while being escorted to the infirmary.
(Id.). Upon entering the infirmary, plaintiff turned
and kicked Officer Fri. (Id. at 3). Officer Fri and
defendant Parish then took plaintiff to the ground. (Doc.
38-1 at 2-3). According to Officer Fri, while on the ground,
plaintiff grabbed his hand and was given several orders to
let go, but he refused. (Id.). Officer Fri responded
by administering a "palm heal strike" to plaintiffs
shoulder, causing plaintiff to eventually comply.
(Id.). In his inmate use of force statement,
plaintiff stated, "I pray God strikes you all down dead.
I was trying to get you guys to kill me. I am too proud to
kill myself" (Doc. 38-1 at 33).
assessed in the infirmary, Nurse Practitioner David Conley
determined that plaintiff should be sent to the Ohio State
University Medical Center due to possible facial fractures.
(Conley Affidavit, Doc. 38-13 at ¶ 6; Medical Exam
Report, Doc. 38-1 at 50). A CAT scan was performed at the
hospital, which revealed mandible (jaw), zygomatic arch
fracture (cheekbone), and nasal fractures. (Doc. 38-11 at 3).
Plaintiff underwent four procedures to address each fracture
- the cheekbone and nasal fractures were closed, and
plaintiffs jaw was plated with a compression plate and
tension band. (Id.). Plaintiff had no complications
from the procedures and was discharged from the hospital on
September 21, 2017. (Id.).
September 26, 2017, the Rules Infraction Board found
plaintiff guilty of violating inmate rules 3, 21, and 61.
(Doc. 38-9 at 7). On June 29, 2018, Investigating Official
Captain Gary Daniel completed a Use of Force Investigation
and deemed the force justified. (Doc. 38-1 at 4). The Warden
subsequently reviewed these findings and concurred.
(Id. at 5).
Summary Judgment Standard
motion for summary judgment should be granted if the evidence
submitted to the Court demonstrates that there is no genuine
issue as to any material fact, and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). A grant of summary judgment is proper if
"the pleadings, depositions, answers to interrogatories,
and admissions of file, together with the affidavits, if any,
show that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law." Satterfield v. Tennessee, 295 F.3d 611,
615 (6th Cir. 2002). The Court must evaluate the evidence,
and all inferences drawn therefrom, in the light most
favorable to the non-moving party. Satterfield, 295
F.3d at 615; Matushita Elec. Indus. Co., Ltd. v. Zenith
Radio, A15 U.S. 574, 587 (1986); Little Caesar
Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir.
trial judge's function is not to weigh the evidence and
determine the truth of the matter, but to determine whether
there is a genuine factual issue for trial.
Anderson, 477 U.S. at 249. The trial court need not
search the entire record for material issues of fact,
Street v. J.C. Bradford & Co., 886 F.2d 1472,
1479-80 (6th Cir. 1989), but must 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 251-252. "Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
'genuine issue for trial."' Matsushita,
A15 U.S. at 587. "When opposing parties tell two
different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment." Scott
v. Harris, 550 U.S. 372, 380 (2007). However,
"[f]acts that are not blatantly contradicted by [the
evidence] remain entitled to an interpretation most favorable
to the non-moving party." Coble v. City of White
House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011).
"In response to a properly supported summary judgment
motion, the non-moving party 4s required to present some
significant probative evidence which makes it necessary to
resolve the parties' differing versions of the dispute at
trial.'" Matson v. Montgomery Cty. Jail Med.
Staff Pers., 832 F.Supp.2d 846, 849 (S.D. Ohio 2011)
(quoting Sixty Ivy St. Corp. v. Alexander, 822 F.2d
1432, 1435 (6th Cir. 1987)).
plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248,
250 (6th Cir. 2005) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972) (stating that the Court holds pleadings
of pro se litigants to less stringent standards than formal
pleadings drafted by lawyers)); Boswell v. Mayer,
169 F.3d 384, 387 (6th Cir. 1999) (pro se plaintiffs enjoy
the benefit of a liberal construction of their pleadings and
filings). However, a party's status as a pro se litigant
does not alter his duty to support his factual assertions
with admissible evidence. Matson, 832 F.Supp.2d at
851-52 (citing Viergutz v. Lucent Techs., Inc, 375
Fed.Appx. 482, 485 (6th Cir. 2010)). When opposing a motion
for summary judgment, a pro se party cannot rely on
allegations or denials in unsworn filings. Id.
(citing Viergutz, 375 Fed.Appx. at 485).
outset, the undersigned notes that plaintiff has failed to
support his opposition to defendants' motion for summary
judgment as required by the Federal Rules of Civil Procedure.
In particular, Rule 56(c) provides that a party asserting
there exist facts that are genuinely disputed must support
his assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials; or (B)
showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c). The Court recognizes that plaintiff is
proceeding pro se. Regardless, he is required to set forth
admissible evidence that supports his claims and raises
genuine issues for trial in opposing defendants' properly
supported summary judgment motion. See McKinnie v.
Roadway Express, Inc., 341 F.3d 554, 558 (6th Cir. 2003)
(pro se litigants "are not entitled to special
treatment, including assistance in regards to responding to
March 14, 2019, this Court notified plaintiff of his
obligation to respond to the instant summary judgment motion.
(Doc. 40). This notice specifically advised plaintiff of his
obligation to not rest upon the allegations in his complaint
but to provide evidence setting forth specific facts showing
that there is a genuine issue for trial. See also
Anderson, 477 U.S. at 248. Plaintiffs response fails to
satisfy this obligation. Plaintiff does not identify or
proffer any evidence supporting his claims in this case.
Plaintiffs declaration does not set forth specific facts
showing a genuine dispute for trial. Plaintiff avers that his
cell was searched and "badly" destroyed on
September 14, 2017 by an unnamed officer because plaintiff
"bragged about suing his partner." (Doc. 43 at 9).
Plaintiff then states that on September 19, 2017,
"Officer Hitch" came to plaintiffs cell and told
him that his cell was searched because another officer
accused plaintiff of masturbating in front of her. Plaintiff
states, "Apparently, they told second shift and this
prompted Officer Ervin's unprofessional behavior towards
me." (Id.). The hearsay statement from
"Officer Hitch" is inadmissible and cannot be
considered on summary judgment. In addition, plaintiffs
statement that the second shift, and by extension, Officer
Ervin, was "apparently" advised of this information
is mere speculation about Officer Ervin's motives that
does not create a genuine issue for trial resolution. See
Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir.
2003) (Sixth Circuit has long held that "[m]ere
conclusory and unsupported allegations, rooted in
speculation" do not meet burden of setting forth
specific facts showing a genuine issue for trial) (quoting
Bryant v. Com. of Ky., 490 F.2d 1273, 1274 (6th Cir.
1974) (per curiam)). The remainder of plaintiff s declaration
and the other inmate declarations submitted by plaintiff
(Doc. 43-1 at 17, 77) include assertions unrelated to the
incidents in this lawsuit. Finally, plaintiffs unsworn
complaint, which was not signed under penalty of perjury,
does not constitute evidence to show that there is a genuine
issue of material fact for trial. See Maston, 832
F.Supp.2d at 851-52 (holding that a pro se party cannot rely
on allegations or denials in unsworn filings when opposing a
motion for summary judgment). Therefore, defendants'
evidence stands unrebutted.
Exhaustion of ...