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Burfitt v. Erving

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

December 2, 2019

LAWRENCE R. BURFITT, II, Plaintiff,
v.
C/0 M. ERVING, et al., Defendants.

          Barrett, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).[1]

         I. Facts

         This lawsuit arises out of an incident that occurred at SOCF in September 2017. The following facts are undisputed.[2]

         On 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.).

         Next, 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).

         Once 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.).

         On 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).

         II. Summary Judgment Standard

         A 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. 2000).

         The 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)).

         Because 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).

         III. Analysis

         At the 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 dispositive motions.").

         On 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.

         A. Exhaustion of ...


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