Opinion
Case No. 1:12-cv-628
05-07-2014
JIMMIE L. WASHINGTON, Plaintiff, v. C/O JOHN McCOY, Defendant.
Beckwith, J.
Litkovitz, M.J.
ORDER AND REPORT
AND RECOMMENDATION
This matter is before the Court on the parties' cross motions for summary judgment (Docs. 54, 65), their responses in opposition (Docs. 62, 75), and plaintiff's reply memorandum (Doc. 63). This matter is also before the Court on plaintiff's "response to defendant's motion for summary judgment and motion to strike combined" (Doc. 75), and plaintiff's motion to amend "his response to defendant's motion for summary judgment" (Doc. 77) and defendant's response in opposition (Doc. 78). Plaintiff's motion to amend (Doc. 77) pertains only to the arguments raised in connection with his motion to strike defendant's summary judgment motion and will therefore be considered in connection with only his motion to strike. The Court will first address plaintiff's motions to strike and to amend (Docs. 75, 77).
I. Plaintiff's Motion to Strike and Motion to Amend his Motion to Strike (Docs. 75, 77)
Plaintiff moves to strike defendant's motion for summary judgment asserting that it was not timely filed and that his constitutional due process rights require the Court to first rule on plaintiff's summary judgment motion before considering defendant's later filed motion. (Doc. 75 at 6). Plaintiff also maintains that defendant's summary judgment motion must be stricken under Federal Rule of Civil Procedure 12(f) as it is "scandalous" and fraudulent due to a purported inconsistency in the evidence proffered by defendant between the identity of the nurse who examined plaintiff and the signature on the medical examination forms. (Doc. 75 at 6-7). Plaintiff further asserts that affidavits attached to defendant's motion for summary judgment must be stricken as scandalous because he claims that the affiants did not have personal knowledge of the matters to which they attested. (Doc. 75 at 7-8). Lastly, plaintiff argues that the affidavit of Major David Warren and the video footage submitted by defendant in support of his summary judgment motion must be stricken because it has no possible relation to this lawsuit as the video footage documents events occurring between 10:26:03 a.m. and 10:28:46 a.m., which is inconsistent with Incident and Use of Force reports submitted by defendant reporting the time of the incident as 10:20 a.m. (Doc. 75 at 8, citing Doc. 65, Ex. 7 at 3-5). Plaintiff's arguments are not well-taken.
First, plaintiff's assertion that defendant's motion was not timely filed is contradicted by the calendar order governing this matter. The deadline for filing dispositive motions was March 7,2014. (Doc. 38). Defendant filed his motion for summary judgment on March 6, 2014. (Doc. 65). Accordingly, the motion was timely.
Second, as the Court stated in its March 31, 2014 Order, the fact that plaintiff filed his motion for summary judgment first in time has no bearing on the order in which the Court may consider the pending motions. See Doc. 73. Despite plaintiff's assertion to the contrary, his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution do not require the Court to resolve his motion for summary judgment before addressing defendant's. It is the Court's prerogative to resolve the pending summary judgment motions concurrently in the interest of judicial economy. See Winnett v. Caterpiller Inc., No. 3:06-235, 3:06-1113, 2011 WL 98586, at *1 (M.D. Tenn. Jan. 12, 2011).
Third, the discrepancies identified by plaintiff in the evidence submitted by defendant in support of his summary judgment motion are not "scandalous" such that the evidence must be stricken under Federal Rule 12(f). Rule 12(f) permits courts to strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored, however, and should be used sparingly and only in cases where the material at issue has "no possible relation to the controversy." Anderson v. U.S., 39 F. App'x 132, 135 (6th Cir. 2002) (quoting Brown v. Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 822 (6th Cir. 1953)). Nevertheless, it is well-established that district courts have inherent power to control their own docket; this power includes "determining whether to strike documents or portions of documents." Getachew v. Central Ohio Transit Authority, No. 2:11-cv-860, 2013 WL 819733, at *2 (S.D. Ohio Mar. 5, 2013) (citing Anthony v. BRT Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003)); see also In re Prevot, 59 F.3d 556, 566 (6th Cir. 1995).
Plaintiff asserts that the Medical Exam Reports proffered by defendant, see Doc. 65, Ex. 7 at 7-8 (February 6, 2012 Medical Exam Reports) must be stricken because they were completed by Ben Wiget, RN, but defendant's responses to plaintiff's written deposition questions indicate that he was examined by a Nurse Joyner. See Doc. 54 at 38. Plaintiff maintains that the medical reports signed by Nurse Wiget are therefore "scandalous" and "fraudulent" and must be stricken. The Court disagrees.
Plaintiff fails to put forth evidence establishing that the medical reports signed by Ben Wiget are fraudulent. Plaintiff merely asserts that because he was examined by a Nurse Joyner, no other records should be admissible. However, he does not proffer any medical records signed by Nurse Joyner; instead, plaintiff proffers the very same medical reports at issue as evidence in support of his own motion for summary judgment. See Doc. 54 at 13-14. As plaintiff himself seeks to rely on this evidence in moving for summary judgment, the Court will consider it in ruling upon both parties' motions.
To the extent plaintiff seeks to strike defendant's video footage evidence and the affidavit of Major Warren due to a purported time discrepancy, plaintiff's request is denied. Notably, the Incident and Conduct Reports plaintiff refers to describe the time of the incident as "10:20 Approx" (Doc. 65, Ex. 7 at 4-5); the Court finds no discrepancy between approximately 10:20 and the time recorded on the video footage, 10:26:03 a.m. to 10:28:46 a.m. The undersigned further notes that such a minimal difference in time is irrelevant for purposes of analyzing plaintiff's excessive force claim.
For the above reasons, plaintiff's motions (Docs. 75, 77) are denied.
II. The Summary Judgment Motions (Docs. 54, 62)
Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), filed this case pro se alleging violations of his constitutional rights under 42 U.S.C. § 1983. Plaintiff alleges that on February 6, 2012, defendant John McCoy, an SOCF Correctional Officer, was escorting plaintiff within the confines of SOCF and that upon reaching the top of a stairwell, defendant pushed plaintiff into a cabinet and thrust his forearm into the back of plaintiff's neck. Plaintiff claims that defendant's actions constitute an excessive use of force and violate the Eighth Amendment's prohibition against cruel and unusual punishment. Plaintiff brings his claims against defendant in defendant's individual and official capacities. Plaintiff seeks declaratory and injunctive relief, as well as monetary relief in the amount of $850,000 for psychological injury and pain and suffering. (Doc. 3 at 5-10).
A. Factual Background
The following pertinent facts were taken from the allegations in plaintiff's verified complaint and from the evidence submitted by both parties in connection with their summary judgment motions.
On February 6, 2012, plaintiff was being escorted back to his cell by defendant following plaintiff's hearing with the SOCF Rules Infraction Board. (Doc. 3 at 5, Complaint; Doc. 54 at 32, Defendant's Responses to Interrogatories Nos. 1-3; Doc. 54 at 36, Defendant's Response to Deposition Question No. 1). The parties entered a stairwell that was not in view of any camera or other witnesses. (Doc. 3 at 5; Doc. 54 at 33, Defendant's Responses to Interrogatories Nos. 9-10; Doc. 54 at 37, Defendant's Response to Deposition Question No. 9). In a Conduct Report completed on February 6, 2012, defendant reported that plaintiff turned towards him in an aggressive manner and tried to pull his hands out of the cuffs. (Doc. 54 at 11; Doc. 65, Ex. C-1at 10, February 6, 2012 Conduct Report). Investigatory documents related to this incident include statements from plaintiff that plaintiff did not turn on defendant but was trying to get his legal work that was sitting on the stairs. (Doc. 65, Ex. A-1 at 5-7, Hearing Officer's Report and Testimony of Accused Inmate at Rules Infraction Board). After plaintiff turned towards defendant, defendant grabbed plaintiff's handcuffed wrists with one arm, turned plaintiff and pushed him against a cabinet, and defendant pressed his other arm against plaintiff's upper back or lower neck area. (Doc. 3 at 5; Doc. 54 at 37, Defendant's Response to Deposition Question No. 11)
After exiting the stairwell, defendant continued to escort plaintiff to his cell; this interaction was recorded and the digital video recordings are part of the instant record. (Doc. 65, Ex. D-2). This video shows plaintiff being escorted down a narrow hallway with arms cuffed behind his back; defendant is holding plaintiff's hands securely and guiding him down the hall and into the cell. (Id.). Plaintiff was then examined by a nurse. (Doc. 54 at 13-14; Doc. 65, Ex. C-1). Plaintiff reported having a sore neck but the nurse observed "no visible injury. [Plaintiff is] moving neck in all directions while talking loudly [and] inappropriate[ly]. [Plaintiff] moved neck downward [and] side to side." (Id.). No treatment was necessary. (Id.).
B. Plaintiff's Motion (Doc. 54)
Plaintiff moves for summary judgment on his excessive force claim against defendant, asserting that the responses of defendant and Larry Greene, the Warden's Assistant at SOCF, to his interrogatories and written deposition questions establish that defendant's use of force was unjustified. Plaintiff further asserts that the force used by defendant was excessive because plaintiff did not pose a threat of harm to defendant or any other individual at the time force was used. Plaintiff contends that because there is no evidence to substantiate defendant's claims that plaintiff was trying to slip out of his handcuffs and turned towards defendant in an aggressive manner, the Court must find as a matter of law that defendant's use of force was unjustified and excessive. (Doc. 54 at 2-5).
Plaintiff supports his motion with the following:
(1) a February 6, 2012 Conduct Report completed by defendant detailing the use of force incident (Doc. 54 at 11);(Doc. 54 at 11-41). Further, plaintiff's verified complaint has the same force and effect as an affidavit for purposes of considering the pending summary judgment motions under Fed. R. Civ. P. 56(e). Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993); Williams v. Bowman, 981 F.2d 901, 905 (6th Cir. 1992).
(2) a February 6, 2012 Incident Report completed by defendant (Doc. 54 at 12);
(3) two Medical Exam Reports from February 6, 2012 completed by Ben Wiget, RN, which include plaintiff's subjective reports that his neck was sore following the incident with
defendant and objective findings of "no physical injury. [Plaintiff] moving neck in all directions while talking loudly [and] inappropriately]. [Plaintiff] moved neck downward [and] side to side]." No treatment was provided. (Doc. 54 at 13-14);
(4) internal SOCF documents documenting defendant's report to the SOCF Rules Infraction Board and plaintiff's grievance regarding the February 6, 2012 incident (Doc. 54 at 15-20);
(5) Larry Greene's answers to plaintiff's written deposition questions (Doc. 54 at 24-32);
(6) defendant's answers to plaintiff's interrogatories (Doc. 54 at 32-36); and
(7) defendant's answers to plaintiff's written deposition questions (Doc. 54 at 36-41).
The narrative portion of the Conduct Report provides:
On the above date and approximate time [February 6, 2012 at approximately 10:20 a.m.], I C/O McCoy was taking [plaintiff] back to Cell 39. While escorting [plaintiff] up the stairs when [plaintiff] turned towards me in an aggressive manner trying to pull his hands out of the cuff. At this time I . . . placed [plaintiff] on the wall and gave him a direct order to stop resisting, [plaintiff] responded by telling me to 'get your fucking hands off me McCoy,' while still trying to pull away from me. I then placed one hand on the cuffs and the other hand on [plaintiff]'s left arm and escorted him back to the cell. No other force was used or witnessed. End of report. (Doc. 54 at
The narrative portion of the Incident Report is substantially similar to that of the Conduct Report. See Doc. 54 at 12.
The Rules Infraction Board found that plaintiff was guilty of resisting defendant's commands; this decision was later reversed due to insufficient evidence. (Doc. 54 at 15-17).
Plaintiff's grievance was denied by the SOCF Institutional Inspector. This decision was affirmed by the Chief Inspector following plaintiff's appeal. (Doc. 54 at 20).
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In his opposition to plaintiff's motion, defendant agrees there is no genuine dispute as to whether defendant used force against plaintiff on February 6, 2012, but disputes plaintiff's assertion that his use of force was not justified. Defendant maintains that he used slight force against plaintiff due to plaintiff's physical resistance and that the Incident Report and Conduct Report proffered by plaintiff support this version of the incident. Defendant further maintains that the interrogatory responses and deposition answers plaintiff relies upon do not support plaintiff's assertion that defendant had no justification for using force; rather, defendant claims these documents show "that the slight force used by [defendant] was not excessive" given plaintiff's physical resistance. Defendant also argues that to the extent plaintiff seeks to establish that he did not resist by relying on the Rules Infraction Board's determination, their finding of insufficient evidence of plaintiff s misconduct does not equate to a finding that plaintiff did not resist defendant. Defendant further maintains that plaintiff is not entitled to summary judgment because plaintiff sustained no injury from defendant's slight use of force. (Doc. 62). Defendant supports his opposition with the affidavit of Roseanna Clagg, the Health Care Administrator for SOCF (Doc. 62, Ex. 1) and plaintiff's medical records from February 2, 2012 to June 2012. (Doc. 62, Ex. 2).
In his reply memorandum, plaintiff draws the Court's attention to purported inconsistencies between defendant's statements in the Incident Report, Conduct Report, and defendant's discovery responses regarding whether defendant pushed plaintiff against a wall or a cabinet or whether defendant put his arm against plaintiff's arm or against plaintiff's back and/or neck. Plaintiff maintains that these discrepancies should weigh against defendant's credibility whereas plaintiff's consistent reports regarding the incident should weigh in favor of his own credibility. Plaintiff stresses that defendant has failed to establish that plaintiff resisted defendant and, thus, there is no evidentiary basis for finding that the use of force was justified which requires a finding in favor of plaintiff. Plaintiff further claims that the evidence shows that he was handcuffed and that, if he were handcuffed according to protocol per defendant's discovery responses, there was no possibility that he could have escaped his handcuffs, which contradicts defendant's assertion that force was used because plaintiff was attempting to escape his handcuffs. (Doc. 63).
C. Defendant's Motion (Doc. 65)
Defendant argues that plaintiff's official capacity claims against defendant fail because he is immune from a suit for damages under the Eleventh Amendment. Defendant further argues that he is entitled to qualified immunity on plaintiff's excessive force claim against him in his individual capacity because there is no genuine dispute that plaintiff initiated the incident with defendant by turning towards defendant or that the minimal force used in response was not excessive as a matter of law. Defendant contends that plaintiff's own statements to the Rules Infraction Board that he was simply turning to pick up legal documents supports defendant's version of the facts. Defendant further asserts that plaintiff cannot establish an excessive force claim because the minimal force used by defendant and the lack of injury to plaintiff is insufficient to prove an Eighth Amendment violation.
Defendant supports his motion with his responses to plaintiff's discovery requests; the affidavit of Larry Greene; documentation from the SOCF Rules Infraction Board regarding the February 6, 2012 incident; the affidavit of Linnea Mahlman, the SOCF Institutional Inspector; documentation from plaintiff's grievances filed in connection with the February 6, 2012 incident; the affidavit of William Cool, the SOCF Deputy Warden of Operations; documentation from the Ohio Department of Rehabilitation and Correction's use of force investigation; the affidavit of David Warrant, Corrections Major with the Ohio Department of Rehabilitation and Correction; and the February 6, 2012 video recording of defendant escorting plaintiff after defendant's purported use of force. (Doc. 65, Exhs. A-G).
Plaintiff's response in opposition to defendant's motion simply asserts that the proper response to defendant's motion is a motion to strike. See Doc. 75 at 4. As the Court has addressed these arguments above, they will not be reiterated here.
D. Summary Judgment Standard
The 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). An assertion of a undisputed fact must be supported by citations to particular parts of the record, including depositions, affidavits, admissions, and interrogatory answers. The party opposing a properly supported summary judgment motion '"may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation omitted).
The Court is not duty bound to search the entire record in an effort to establish a lack of material facts. Guarino v. Brookfleld Township Trs., 980 F.2d 399, 404 (6th Cir. 1992). Rather, the burden is on the non-moving party to "present affirmative evidence to defeat a properly supported motion for summary judgment," Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court construes the evidence presented in the light most favorable to the non-movant and draws all justifiable inferences in the non-movanf s favor. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The Court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The Court must assess "whether there is the need for trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. "If the evidence is merely colorable,... or is not significantly probative, . . . the court may grant judgment." Anderson, 477 U.S. at 249-50 (citations omitted).
The Court must assess cross-motions for summary judgment on their own merits. See Federal Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Group, 415 F.3d 487, 493 (6th Cir. 2005); Spectrum Health Continuing Care Group v. Anna Marie Bowling Irrevocable Trust, 410 F.3d 304, 309 (6th Cir. 2005). "'[T]he filing of cross-motions for summary judgment does not necessarily mean that an award of summary judgment is appropriate.'" Bowling Irrevocable Trust, 410 F.3d at 309 (quoting Beck v. City of Cleveland, 390 F.3d 912, 917 (6th Cir. 2004)); see Appoloni v. United States, 450 F.3d 185, 189 (6th Cir. 2006).
E. Resolution
As stated above, defendant asserts that plaintiff's excessive force claim fails as a matter of law and that summary judgment in his favor is appropriate because plaintiff's claim against him in his official capacity is barred by the Eleventh Amendment. Defendant further asserts he is entitled to qualified immunity on plaintiff's claim against him in his individual capacity because plaintiff cannot establish his Eighth Amendment excessive force claim. The Court will first address plaintiff's official capacity excessive force claim.
It is well settled that "a suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 940 (6th Cir. 1990) (quoting Quern v. Jordan, 440 U.S. 332, 337 (1979)), overruled on other grounds by Hafer v. Melo, 502 U.S. 21, 27 (1991); see also Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment serves to prohibit a federal court from hearing a damages claim against a state and its entities except where Congress has explicitly abrogated a state's immunity to suit on the face of a statute or where the state itself has consented to suit. Cowan, 900 F.2d at 940; see also Atascadero State Hospital v. Scanlon, 473 U.S. 234. 238 (1985). Congress did not abrogate state immunity to suit under 42 U.S.C. § 1983, see Will v. Mich. Dept. of State Police, 491 U.S. 58, 66-67 (1989) and Quern, 440 U.S. at 340-41, and the State of Ohio has neither constitutionally nor statutorily waived its Eleventh Amendment immunity in the federal courts. See Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d 449 (6th Cir. 1982). A suit against defendant in his official capacity would, in reality, be a way of pleading the action against the entity of which defendant is an agent, i.e., the State of Ohio. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 (1978). Thus, actions against state officials in their official capacity are included in this bar. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989); Scheuer v. Rhodes, 416 U.S. 232 (1974). Therefore, defendant in his official capacity is immune from a suit for damages under the Eleventh Amendment. Barker v. Goodrich, 649 F.3d 428, 433 (6th Cir. 2011). See also Thiokol Corp. v. Dept. of Treasury, State of Mich., 987 F.2d 376, 381 (6th Cir. 1993) (noting that the Eleventh Amendment "also bars suits for monetary relief against state officials sued in their official capacity"). Accordingly, plaintiff's damages claim against defendant in his official capacity should be dismissed.
The Court now turns to plaintiff's excessive force claim against defendant in his individual capacity.
The Eighth Amendment prohibition against cruel and unusual punishment governs an inmate's claim of excessive force. Pelfrey v. Chambers, 43 F.3d 1034, 1036-37 (6th Cir. 1995); Cornwell v. Dahlberg, 963 F.2d 912, 915-916 (6th Cir. 1992). To state a claim for excessive force, the inmate must establish that the force was applied maliciously and sadistically to cause harm, rather than in a good faith effort to maintain or restore discipline. Hudson v. McMillian, 501 U.S. 1, 7 (1992); Pelfrey, 43 F.3d at 1037; Caldwell v. Moore, 968 F.2d 595, 599-601 (6th Cir. 1992). In making this determination, a court must consider the reasons for the use of force, the type and amount of the force used, and the extent of the injury inflicted. See Hudson, 501 U.S. at 7; Whitley v. Alters, 475 U.S. 312, 320-322 (1986); Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993).
An inmate may suffer a violation of his Eighth Amendment rights even though he did not suffer a serious injury at the hands of corrections officers. Hudson, 501 U.S. at 9-10. The extent of injury suffered by an inmate is one factor that may suggest "whether the use of force could plausibly have been thought necessary" in a particular situation, "or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321. The Eighth Amendment does not prohibit a de minimis use of force "provided that the use of force is not of a sort 'repugnant to the conscience of mankind."' Id. at 10. What constitutes a de minimis use of force depends upon the circumstances of each case. "[T]he core judicial inquiry is . . . whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. For example, a guard who needlessly beats a handcuffed, submissive prisoner causing bruises, swelling, loosened teeth, and a cracked dental plate inflicts injuries that are more than de minimis for Eighth Amendment purposes. Id. at 10. See also Moore v. Holbrook, 2 F.3d 697 (6th Cir. 1993).
Defendant asserts he is entitled to qualified immunity on plaintiff's excessive force claim brought against him in his individual capacity. Qualified immunity protects government officials performing discretionary functions "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity insulates government officials not only from individual liability for money damages, but also from the burdens and expenses of litigation and trial. Saucier v. Katz, 533 U.S. 194, 200-201 (2001), abrogated in part by Pearson v. Callahan, 555 U.S. 223 (2009). Once the defense is raised, the burden is on the plaintiff to demonstrate that the qualified immunity defense is unwarranted. Roth v. Guzman, 650 F.3d 603, 609 (6th Cir. 2011). The facts must show that the defendant violated a constitutional right and that the right was clearly established, Saucier v. Katz, 533 U.S. 194, 201 (2001), but the analysis need not proceed in that order. Pearson, 555 U.S. 223 (allowing courts the discretion to decide which of the two steps in the qualified-immunity analysis should be addressed first). A right is clearly established when "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202.
Defendant argues that "[t]here is no constitutional, statutory, or common law right to be free from the application of reasonable and necessary de minimis force in order to maintain order and restore discipline. . . ." (Doc. 65 at 19). Yet, it is also true that plaintiff has a clearly established Eighth Amendment right to be free from the use of excessive force. The relevant inquiry is, thus, whether, in consideration of the totality of the circumstances, the force used by defendant was excessive.
The undisputed facts in this case reflect that plaintiff turned around on the stairwell and defendant responded by pushing plaintiff against a cabinet or wall and, using his other arm, applied force to plaintiff's upper back lower neck area. Due to defendant's use of force, plaintiff complained of a sore neck. The parties do not dispute that plaintiff made some movement in the stairwell prior to defendant's use of force, but they dispute plaintiff's intent in making said movement. The evidence of record includes plaintiff's statements that he was simply picking up paper work from the stairwell while defendant's statements reflect that plaintiff turned toward defendant in an aggressive manner and attempted to escape his handcuffs. The Court finds that the undisputed facts establish that defendant is entitled to qualified immunity on plaintiff's excessive force claim under Hudson, regardless of whether plaintiff purposefully resisted defendant or was simply attempting to pick up paperwork.
First, the undisputed facts show that defendant used force in response to plaintiff's physical movement in the stairwell. See Doc. 54 at 11, Conduct Report (defendant reported that plaintiff turned toward him); Doc. 54 at 39, Defendant's Response to Deposition Question No. 20 (defendant testified that plaintiff's turned towards defendant); Doc. 65, Ex. A-1 at 5-7, Hearing Officer's Report and Testimony of Accused Inmate at Rules Infraction Board (plaintiff stated that he bent down to pick up paper work on the steps). Regardless of why or in what manner plaintiff made this motion, it is clear that defendant's use of force was prompted by plaintiff's physical movement in the stairwell. Even assuming that defendant incorrectly interpreted plaintiff's movement as aggressive, the undisputed facts nevertheless show that defendant had a rational basis for using force as plaintiff's act in bending over would necessarily disrupt defendant's duty to escort plaintiff to his cell. In consideration of these facts and Hudson's admonition that corrections officers are to be given "wide-ranging deference" to take steps "that in their judgment are needed to preserve internal order and discipline and to maintain institutional security," the Court finds that plaintiff has failed to present a genuine issue of material fact as to whether defendant applied force maliciously and sadistically with the intent to cause harm. Hudson, 503 U.S. at 6. See also Cordell v. McKinney, No. 3:11-cv-231, 2013 WL 5366125, at *5 (S.D. Ohio Sept. 24, 2013) (granting summary judgment for corrections officer where undisputed facts established that the plaintiff prisoner initiated defendant's use of force by turning around while being escorted to a cell).
Second, the undisputed facts show that defendant used a minimal amount of force. Plaintiff's own verified complaint establishes that defendant merely "pushed [plaintiff] into a cabinet and thrust his forearm to the back of [plaintiff's] neck." (Doc. 3 at 5). A de minimis use of force does not violate the Eighth Amendment. Hudson, 503 U.S. at 9 ("not every malevolent touch by a prison guard gives rise to a federal cause of action . . . . The Eight Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.'") (internal citations and quotations omitted).
Here, defendant's push and application of pressure to plaintiff's neck area was a de minimis use of force. Defendant was charged with escorting plaintiff to his cell and, while in a stairwell, plaintiff made some action, whether it was bending down or turning around, which disrupted defendant's discharge of his duty. The fact that the parties were in a stair well is relevant as even minor resistance from plaintiff at this location could have resulted in significant injury had either or both parties fallen. The Court notes that defendant did not strike, kick, or taser plaintiff; rather, he pushed plaintiff against the wall and applied pressure to his upper back/lower neck area with his forearm in response to plaintiff's movement. Defendant's use of force, taken in context, was de minimis. See Leary v. Livingston Cty., 528 F.3d 438, 443 (6th Cir. 2008) (classifying a prison guards single "karate chop" strike to the back of a prisoner's neck as a de minimis use of force insufficient to establish an Eighth Amendment excessive force claim).
Third, the undisputed facts establish that plaintiff suffered no objective injury and required no medical treatment due to defendant's use of force. See Moore, 2 F.3d at 704 ("[w]hile not dispositive of the issue, de minimis injuries suggest de minimis use of force by defendants."). Plaintiff was examined shortly after the incident with defendant by a nurse at SOCF. While plaintiff stated his neck was sore, there was no visible injury and plaintiff was able to move his neck in all directions. (Doc. 54 at 13-14; Doc. 65, Ex. C-1). Further, plaintiff required no medical treatment for his neck pain. (Id.). No reasonable jury could view these undisputed facts and determine that plaintiff suffered any significant injury from defendant's use of force.
As the undisputed facts demonstrate that defendant had a justification for the force used against plaintiff, the force used was minimal, and plaintiff sustained no injury therefrom, the undersigned finds that plaintiff has failed to establish an Eighth Amendment claim for excessive force. Hudson, 501 U.S. at 7. Defendant is therefore entitled to qualified immunity on plaintiff's excessive force claim brought against him in his individual capacity. Saucier, 533 U.S. at 201. Accordingly, this Court should deny plaintiff's motion for summary judgment and grant summary judgment in favor of defendant.
III. Conclusion
For the reasons stated herein, IT IS ORDERED THAT plaintiff's motions to strike (Docs. 75, 77) are DENIED.
Further, IT IS RECOMMENDED THAT:
1. Plaintiff's motion for summary judgment (Doc. 54) be DENIED;
2. Defendant's motion for summary judgment (Doc. 65) be GRANTED;
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997); and
4. This case be DISMISSED on the docket of the Court.
__________
Karen L. Litkovitz
United States Magistrate Judge
JIMMIE L. WASHINGTON, Plaintiff,
v.
C/O JOHN McCOY, Defendant.
Case No. 1:12-cv-628
Beckwith, J.
Litkovitz, M.J.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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