Easley v. Zimmerman

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

DAVID EASLEY, CASE NO. 3:18 CV 2050

Plaintiff,

v. JUDGE JAMES R. KNEPP II

NICHOLAS ZIMMERMAN, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Plaintiff David Easley, a prisoner incarcerated at Toledo Correctional Institution, brings

this action against twelve prison employees under 42 U.S.C. § 1983. See Doc. 31 (Amended

Complaint). Currently pending before the Court is Defendants’ Motion for Summary Judgment,

filed on March 30, 2021. (Doc. 38). Plaintiff has not filed an opposition despite multiple

extensions, and the time in which to do so has expired. See Non-document entries dated June 22,

2021, August 25, 2021, September 2, 2021, September 9, 2021.

For the reasons discussed below, Defendants’ Motion is granted.

BACKGROUND

At all times relevant to the instant case, Plaintiff was an inmate at the Toledo Correctional

Institution (“TCI”). He brings this suit against Defendant Correctional Officers Nicholas

Zimmerman, Steve Hughes, Mark Poupard, Kent Wallace, and Mr. Creegold; and prison medical

providers Elizabeth Peterson Hughes, Lasha Johnson, Maggie Jedlinsky, Teresa Jamison

Moorman, Meredith Rinna, Stephen Stocker, and Dr. Cheryl Lee. See Doc. 31.

In his Amended Complaint (Doc. 31), Plaintiff asserts multiple actions and inactions by

prison officials from 2017 to 2019 violated his constitutional rights. He broadly alleges certain

Defendants were deliberately indifferent to his serious medical needs, both physical and mental.

He additionally asserts he was unfairly disciplined for actions related to his mental health issues,

including the removal of a mattress from his cell. He further brings retaliation claims related to an

increased security level status. Finally, Plaintiff brings claims that certain Defendants used

excessive force against him on two separate occasions.

Defendants move for summary judgment, arguing Plaintiff failed to exhaust many of his

claims, and that he cannot demonstrate an issue of material fact about the remainder. They cite and

attach the following in support: (1) the Affidavit of Sonrisa Sehlmeyer, Warden’s Assistant at TCI

(Doc. 38-1); (2) the Affidavit of Michael Jenkins, Institutional Inspector at TCI (Doc. 38-2); (3)

Plaintiff’s grievance history (Ex. A, Doc. 38-3); (4) a query regarding use of force reports

involving Plaintiff (Ex. B, Doc. 38-4): (5) reports regarding the use of force against Plaintiff on

November 20, 2017 and June 18, 2018, respectively (Exs. C & D, Docs. 38-5 & 38-6); and (6)

Plaintiff’s prison disciplinary history (Ex. E, Doc. 38-7).

Sehlmeyer authenticates Defendants’ Exhibits B through E (Doc. 38-1), and Jenkins

authenticates Defendants’ Exhibit A, Plaintiff’s grievance history (Doc. 38-2). Jenkins further

avers he has thoroughly reviewed Plaintiff’s grievance history, and Plaintiff “failed to exhaust his

administrative remedies as it relates to all allegations in his Complaint against Defendants Rinna,

Lee, Jamison, Stocker, Jedlinsky” and “failed to exhaust Deliberate Indifference claims against

Defendants Hughes, Cregold [sic], Johnson, Wallace, Zimmerman, and Poupard.”. Id. at ¶ 12.

Given the number of independent claims and in the interest of clarity, the Court sets forth

the relevant factual background of each claim below in conjunction with its discussion thereof.

STANDARD OF REVIEW

Summary judgment is appropriate where there is “no genuine issue as to any material fact”

and “the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When

considering a motion for summary judgment, the Court must draw all inferences from the record

in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or determine

the truth of any matter in dispute; rather, the Court determines only whether the case contains

sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party bears the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be discharged by ‘showing’

– that is, pointing out to the district court – that there is an absence of evidence to support the

nonmoving party’s case.” Id. The nonmoving party must go beyond the pleadings and “present

affirmative evidence in order to defeat a properly supported motion for summary judgment.”

Anderson, 477 U.S. at 257. Further, the nonmoving party has an affirmative duty to direct the

Court’s attention to those specific portions of the record upon which it seeks to rely to create a

genuine issue of material fact. See Fed R. Civ. P. 56(c)(3) (noting the court “need consider only

the cited materials”).

When faced with an unopposed motion for summary judgment, the Court may not use the

party’s failure to respond as a reason for granting summary judgment “without first examining all

the materials properly before it under Rule 56(c).” FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611,

630 (6th Cir. 2014) (quoting Smith v. Hudson, 600 F.2d 60, 65 (6th Cir. 1979)). This is so because

“[a] party is never required to respond to a motion for summary judgment in order to prevail since

the burden of establishing the nonexistence of a material factual dispute always rests with the

movant.” Id. (quoting Smith, 600 F.2d at 64). Therefore, even where a motion for summary

judgment is unopposed, a court must carefully review the portions of the record submitted by the

moving party to determine whether a genuine dispute of material fact exists. Id. However,

“[n]either the trial nor appellate court . . . will sua sponte comb the record from the partisan

perspective of an advocate for the non-moving party.” Guarino v. Brookfield Twp. Trs., 980 F.2d

399, 410 (6th Cir. 1992).

DISCUSSION

Plaintiff asserts three counts in his Amended Complaint, each based on various allegations:

(1) deliberate indifference to serious medical needs, (2) excessive force, and (3) retaliation.

Defendants move for summary judgment on all counts, under several theories. First, they assert

any “official capacity” claims are barred by sovereign immunity and the Eleventh Amendment.

Second, they assert entitlement to qualified immunity on Plaintiff’s claims. Third, they assert

Plaintiff only properly exhausted his excessive force claims against Zimmerman, Poupard,

Wallace, Hughes, and Creegold and the remaining claims must be dismissed as unexhausted.

Fourth, they contend on the merits Plaintiff cannot show a genuine issue of material fact regarding

any claim. Again, Plaintiff has not responded to the pending motion. For the reasons discussed

below, the Court finds Defendants are entitled to summary judgment.

Sovereign Immunity (“Official Capacity” Claims)

Defendants first contend any “official capacity” claims are barred by the Eleventh

Amendment. This is so, they assert, because “Ohio has not waived its sovereign immunity, and

Congress did not disturb the states’ Eleventh Amendment immunity when it passed 42 U.S.C. §

1983.” (Doc. 38, at 10) (citing Wolfel v. Morris, 972 F.2d 712, 718 (6th Cir. 1992)).

Plaintiff asserts claims against Defendants in their “professional” as well an individual

capacities. (Doc. 31, at 1-3).1 A suit against a state official operates as an action against the State

itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989). The State of Ohio has

not waived its sovereign immunity, nor has it consented to civil rights suits in federal court. Mixon

v. Ohio, 193 F.3d 389, 397 (6th Cir. 1999). Thus, Plaintiff’s official capacity claims are barred by

sovereign immunity, and Defendants are therefore entitled to summary judgment thereon. WCI,

Inc. v. Ohio Dep’t of Pub. Safety, -- F.4th --, 2021 WL 5351864, at *2 (6th Cir. Nov. 17, 2021).2

Unexhausted Claims

Next, Defendants contend most of Plaintiff’s claims are barred by the Prison Litigation

Reform Act’s (“PLRA”) exhaustion requirement. Upon review, the Court agrees.

Before bringing a civil rights action under 42 U.S.C § 1983, an inmate must exhaust

available administrative remedies. Booth v. Churner, 532 U.S. 731, 736 (2001); PLRA, 42 U.S.C.

§ 1997e(a). “An inmate exhausts a claim by taking advantage of each step the prison holds out for

resolving the claim internally and by following the ‘critical procedural rules’ of the prison’s

grievance process to permit prison officials to review and, if necessary, correct the grievance ‘on

the merits’ in the first instance.” Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)

1. The Court interprets Plaintiff’s use of “professional capacity” as the equivalent of “official

capacity”.

2. The Sixth Circuit recently explained that although “courts have often treated Eleventh

Amendment immunity and sovereign immunity as interchangeable . . . . as a matter of original

meaning, the two are conceptually distinct.” WCI, Inc., 2021 WL 5351864, at *2. It distinguished

immunity under the Eleventh Amendment as sounding in subject-matter jurisdiction and

containing a diversity requirement from sovereign immunity which “refers to a state’s right ‘not

to be amenable to the suit of an individual without its consent’”, sounds in personal jurisdiction,

and does not require diversity. Id. (citing The Federalist No. 81, at 486 (Alexander Hamilton)

(Clinton Rossiter ed., 1961) (emphasis omitted)). Here, Plaintiff is housed in an Ohio prison and

sues Ohio prison officials. Therefore “[b]ecause the parties are not diverse, sovereign immunity

applies, and the Eleventh Amendment, by its plain terms, does not.” Id. at *3.

(quoting Woodford v. Ngo, 548 U.S. 81, 90, 95 (2006)); see also Risher v. Lappin, 639 F.3d 236,

240 (6th Cir. 2011) (“A prisoner must adhere to the institutional grievance policy . . .”).

Ohio has a three-step prison grievance system: (1) an informal complaint (or “ICR”); (2) a

notification of grievance to the inspector of institutional services (or “grievance”); and (3) finally,

an appeal to the office of chief inspector (or “appeal”). Ohio Admin. Code § 5120-9-31(J)(1)-(3).

Thus, the Ohio administrative grievance process is satisfied, and a claim fully exhausted, only

when an inmate pursues review at all three levels. See Pack v. Martin, 174 F. App’x 256, 262 (6th

Cir. 2006) (noting the Sixth Circuit “has interpreted the PLRA’s exhaustion requirement to be

satisfied if a Plaintiff files a grievance granting the prison ‘fair notice’ of the claim and appeals the

denial of the grievance to the highest possible level”).

“The level of detail necessary in a grievance to comply with the grievance procedures will

vary from system to system and claim to claim, but it is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).

Under Ohio’s grievance procedure,

[i]nformal complaints and grievances must contain specific information; dates,

times, places, the event giving rise to the complaint and, if applicable, the name or

names of personnel involved and the name or names of any witnesses. Specificity

of the complaint provides institutional staff the opportunity to investigate the

complaint and to take corrective action to address a valid complaint.

Ohio Admin. Code § 5120-9-31(K).

Exhaustion is mandatory under the PLRA, and unexhausted claims will not be heard in

court. Bock, 549 U.S. at 211; 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to

prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies as are available

are exhausted.”). The “dominant concern” of the PLRA is “to promote administrative redress, filter

out groundless claims, and foster better prepared litigation of claims aired in court.” Porter v.

Nussle, 534 U.S. 516, 528 (2002); see also Reed-Bey, 603 F.3d at 324 (“The point of the PLRA

exhaustion requirement is to allow prison officials a fair opportunity to address grievances on the

merits, to correct prison errors that can and should be corrected and to create an administrative

record for those disputes that eventually end up in court.”) (internal citation and quotation omitted).

Requiring inmates to exhaust remedies in the manner the State provides “by, say, identifying all

relevant defendants—not only furthers these objectives, but it also prevents inmates from

undermining these goals by intentionally defaulting their claims at each step of the grievance

process, prompting unnecessary and wasteful federal litigation in the process.” Reed-Bey, 603 F.3d

at 324-25.

Because “[n]on-exhaustion is an affirmative defense under the PLRA”, Defendants bear

the burden of proof, and thus “summary judgment is appropriate only if [Defendants] establish[]

the absence of a ‘genuine dispute as to any material fact’ regarding non-exhaustion.” Troche v.

Crabtree, 814 F.3d 795, 798 (6th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).

Defendants assert Plaintiff has only properly exhausted his excessive force claims against

Defendants Zimmerman, Poupard, Wallace, Hughes, and Creegold for the events of November 20,

2017 and June 18, 2018, and that all other claims must be dismissed as not properly exhausted.

(Doc. 38, at 6).3 The Court therefore turns first to these allegedly unexhausted claims.

3. Whether by accident or intentionally, the prior Judge assigned to this case did not mention

Defendant Creegold in an earlier partial dismissal order (Doc. 5) despite Creegold being named in

the original complaint (Doc. 1, at 6). Defendants therefore “assume claims against Defendant

Creegold were not permitted to proceed” (Doc. 38, at 9); however, they also address those claims

on the merits, see, e.g., Doc. 38, at 17. In an abundance of caution and the interest of completeness,

the Court will consider the claims against Defendant Creegold.

Deliberate Indifference – November 20, 2017

Plaintiff asserts a deliberate indifference claim against Defendants Poupard, Zimmerman,

and Wallace for their actions on November 20, 2017. See Doc. 31, at ¶¶ 19-20, 37.4 He alleges he

requested mental health medical care and his request was ignored. See id.

Although Plaintiff filed a grievance about the November 20, 2017 incident, he only

described facts related to being assaulted and sprayed with mace. See Ex. A, Doc. 38-3, at 5-6, 21,

22); (Jenkins Aff., Doc. 38-2, at ¶ 12). He did not include facts or complaints related to any requests

for – and denial of – medical care. See id. As such, he did not properly exhaust this claim and the

Defendants are entitled to summary judgment. See Reed-Bey, 603 F.3d at 324 (inmate must “tak[e]

advantage of each step the prison holds out for resolving the claim internally”); Ohio Admin. Code.

§ 5120-9-31(K).

Deliberate Indifference/Retaliation Claim Regarding Removal of Mattress

Plaintiff asserts both a deliberate indifference and a retaliation claim against Defendant

Rinna for the removal of his mattress from his cell from November 6 to 14, 2017. (Doc. 31, at ¶¶

26, 35, 52). Plaintiff did not properly exhaust this claim. Although Plaintiff raised claims regarding

the mattress removal at both the informal complaint level and the grievance level, he never raised

such a claim to the third level – an appeal. See Ex. A, Doc. 38-3, at 4-6, 21-22; Jenkins Affidavit,

4. The Court cites the allegations in Plaintiff’s Amended Complaint simply to provide context for

the claims raised; the Amended Complaint itself is not admissible evidence the Court can consider.

See, e.g., Shreve v. Franklin County, 743 F. 3d 126, 131 (6th Cir. 2014) (“[T] the evidence in the

record, not the pleadings, governs whether a party has raised a genuine dispute of material fact

sufficient to survive a motion for summary judgment.”).

Doc. 38-2, at ¶¶ 6, 12. As such, Defendant Rinna is entitled to summary judgment on these claims.5

See Pack, 174 F. App’x at 262.

Deliberate Indifference for Failure to Provide Medical Treatment (Aug.-Nov. 2017)

Plaintiff asserts a deliberate indifference claim against Defendants Rinna and Lee for

failure to provide mental health medications and medical treatment. See Doc. 31, at ¶¶ 22, 23, 35,

36, 38, 40. Specifically, he asserts from August to November 2017, Lee and Rinna refused to

provide Plaintiff his necessary mental health medications, and, as a result, his mental state

deteriorated and he was placed on suicide watch. See id. at ¶¶ 22-23.

Defendants argue that, although Plaintiff did attempt to pursue all three steps of the

administrative grievance process on this claim, he did so outside of the required fourteen-day time

frame required and thus the claim was not properly exhausted. This is accurate. On August 13,

2017, Plaintiff filed an ICR asserting Lee “wrote false reports” regarding Plaintiff’s blood draw

levels and he was denied medications as a result. (Ex. A, Doc. 38-3, at 28). This ICR was denied,

id., and Plaintiff did not pursue it further, see id. at 12. On December 27, 2017, Plaintiff filed a

second ICR asserting Lee and Rinna refused him medication and lied in medical reports in order

to withhold medication. Id. at 26. The ICR was denied, id., and Plaintiff again did not pursue it

further, see id. at 12. On January 11, 2018, Plaintiff filed a third ICR, asserting similar claims. (Ex.

A, Doc. 38-3, at 7) (“[D]octor Lee took my medication [due] to a blood draw I never had in

[September] 2017 . . . [and] Rinna made false claims to justify and back [L]ee up[.]”). The ICR

was denied because as filed beyond the fourteen-day timeframe set forth in Ohio Administrative

5. Even were the Court to reach the merits of this claim, it would fail. See, e.g., Jones v. Toombs,

77 F.3d 482 (6th Cir. 1996) (unpublished table disposition) (finding denial of a mattress and

requiring inmate to sleep on the floor for up to four weeks does not violate the Eighth Amendment).

Code § 5120-9-31. Id. Plaintiff attempted to escalate this claim to a grievance and again to an

appeal, but was denied each time based on the untimeliness of the original ICR. See id. at 7-8.

Plaintiff’s deliberate indifference claims regarding denied medications, withheld

medications, and falsified medical records were not fully exhausted. See Ex. A, Doc. 38-3, at 7-8,

12, 26, 28. Thus, Defendants Lee and Rinna are entitled to summary judgment on this claim. See

Risher, 639 F.3d at 240 (“To exhaust his administrative remedies, a prisoner must adhere to the

institutional grievance policy, including any time limitations.”).

Retaliation & Disclosure of Confidential Information

Plaintiff’s Amended Complaint asserts Defendants Jedlindky, Rinna, and Lee retaliated

against him and caused the Rules Infraction Board to increase his security level. (Doc. 31, at ¶¶

27-29). He further asserts that on November 18, 2017, Jedlinsky and Rinna “disclosed private and

confidential information to two Officers of the Disciplinary Panel . . . and disclosing it put plaintiff

at risk of harm from other inmates” and they “further failed to protect plaintiff’s confidentialities

and privacy rights by conducting plaintiff’s counseling sessions in front of 15 to 20 inmates and

C.O.s.” Id. at ¶¶ 30-31.

Defendants contend Plaintiff has failed to exhaust any such claim and none of the

allegations appear in any grievance documents filed around the given date of November 18, 2017.

Plaintiff filed two complaints in the month of November and neither of them were against these

Defendants. See Ex. A, Doc. 38-3, at 12; see also id. at 21 (raising claims regarding mattress denial

and alleged assault by Zimmerman and Poupard); Jenkins Aff., Doc. 38-2, at ¶ 12. Plaintiff has

not pointed to any contrary evidence demonstrating he exhausted such a claim, and therefore has

not demonstrated a genuine issue of material fact. Defendants are entitled to summary judgment

on this claim.

Deliberate Indifference/Retaliation for Failure to Provide Medical Treatment - April 2018

Plaintiff asserts that on April 16, 2018, while being held in solitary confinement,

Defendants Jamison, Rinna, and Stocker failed to provide him with medical or mental health

treatment after he set himself on fire. (Doc. 31, at ¶¶ 32, 25, 52). He asserts this both as a deliberate

indifference and retaliation claim. See id.

As Defendants point out, Plaintiff filed an ICR regarding this incident, but did not name

any specific individual in the complaint, nor did he pursue administrative exhaustion beyond the

initial step. See Ex. A, Doc. 38-3, at 9; Jenkins Aff., Doc. 38-2, at ¶ 12. Defendants Jamison, Rinna,

and Stocker are therefore entitled to summary judgment on this claim.

Deliberate Indifference – June 2018 Incident

Plaintiff asserts that, following an assault on June 18, 2018, he requested medical treatment

from Defendants Johnson, Hughes, and Creegold, and it was denied. (Doc. 31, at ¶ 33).

Although Plaintiff pursued a claim regarding the June 2018 alleged assault through all three

levels of the prison grievance process, he did not include his claim for denial of medical treatment

therein. See Ex. A, Doc. 38-3, at 10-11; Jenkins Aff., Doc. 38-2, at ¶ 12. Rather, he only asserted

the named Defendants falsified documents and assaulted him. See id. Because Plaintiff failed to

exhaust this claim, Defendants Johnson, Hughes, and Creegold are entitled to summary judgment

thereon.

Retaliation Claim for Alleged Disciplinary Violations for Attempted Suicides

Plaintiff also brings a retaliation claim for alleged disciplinary violations related to his self-

harm and suicide attempts. See Doc. 31, at ¶¶ 23-25, 53.

Although Plaintiff raised two informal complaints related to self-harm and disciplinary

violations for suicide attempts, he did not pursue either beyond the first step of the administrative

exhaustion process. See Ex. A, Doc. 38-2, at 4, 25. As such, Defendants6 are entitled to summary

judgment on this retaliation claim.

Because Defendants have “establish[ed] the absence of a ‘genuine dispute as to any

material fact’ regarding non-exhaustion.” Troche, 814 F.3d at 798 (quoting Fed. R. Civ. P. 56(a)),

they are entitled to summary judgment on the above claims.

Excessive Force Claims

This leaves remaining Plaintiff’s two (at least arguably) properly-exhausted excessive

force claims related to the events November 20, 2017 and June 18, 2018. Defendants contend they

are entitled to summary judgment on these claims because Plaintiff has not provided evidence of

a constitutional violation. The Court agrees.

The Eighth Amendment prohibits punishments that “‘involve the unnecessary and wanton

infliction of pain,’ including inflictions of pain that ‘are totally without penological

justification.’” Lockett v. Suardini, 526 F.3d 866, 875 (6th Cir. 2008) (quoting Rhodes v.

Chapman, 452 U.S. 337, 346 (1981)). An Eighth Amendment excessive force claim has subjective

and objective components. Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). The

subjective component focuses on whether the prison official used force in a “good faith effort to

maintain or restore discipline or maliciously and sadistically for the very purpose of causing

harm.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Hudson v. McMillian, 503

U.S. 1, 6 (1992)); see also Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014) (“[t]he

subjective component focuses on the state of mind of the prison officials”). “To determine such

motivations on the part of correctional officers, courts should consider the reasons or motivation

6. Furthermore, Plaintiff’s Amended Complaint does not specifically name any current Defendant

to this case who he asserts took this retaliatory disciplinary action.

for the conduct, the type and extent of force applied, and the extent of inflicted injury.” Caldwell

v. Moore, 968 F.2d 595, 600 (6th Cir. 1992).

The objective component requires the prisoner to prove “sufficiently serious” pain was

inflicted. Williams, 631 F.3d at 383. “[D]e minimis uses of physical force” do not satisfy the

objective component, as long as “the use of force is not of a sort ‘repugnant to the conscience of

mankind.’” Hudson, 503 U.S. at 10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986)). Not

“every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503

U.S. at 9. Nevertheless, “[w]hen prison officials maliciously and sadistically use force to cause

harm, contemporary standards of decency always are violated . . . [w]hether or not significant

injury is evident.” Id.

A significant injury is not the threshold requirement for an excessive force claim; instead,

“[t]he 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.” Id. at 7. In evaluating

Defendants’ actions, the Court is mindful that “prison officials ‘must make their decisions in haste

under pressure, and frequently without the luxury of a second chance.’” Combs v. Wilkinson, 315

F.3d 548, 556 (6th Cir. 2002). Therefore, “[t]he issue is . . . not whether the force was absolutely

necessary in hindsight, but whether the use of force could plausibly have been thought

necessary”. Griffin v. Hardrick, 604 F.3d 949, 954 (6th Cir. 2010).

Plaintiff claims excessive force was used against him twice: on November 20, 2017 and on

June 18, 2018. Each is addressed below.

November 20, 2017 Incident7

Plaintiff alleges, around November 20, 2017, Plaintiff kicked a shelf in his cell, which

made noise and drew the attention of Defendants Zimmerman, Poupard, and Wallace. (Doc. 31, at

¶ 21). He alleges Defendants responded by spraying mace through the food slot into his cell, then

entering the cell, punching him in the groin, spraying mace again, handcuffing him, and dragging

him to the medical unit. Id. He alleges he was struck by objects along the way, causing cuts and

bruises. Id. He further alleges that after he was in the medical unit, he was slammed to the floor

resulting in a bloody nose, bruising, and scratches. Id.

Defendants contend Plaintiff has not provided evidence of a constitutional violation. Upon

review, the Court agrees.

First, Plaintiff has not responded to the motion and has presented no evidence in support

of the version of events alleged in his Amended Complaint.

Second, on the undisputed evidence before the Court, there is no issue of material fact

regarding the subjective component of an excessive force claim. Defendants have submitted

evidence Plaintiff resisted officers’ attempts to handcuff him, grabbed Defendant Wallace, and

resisted officers’ attempt to transport him to the medical unit. (Ex. C, Doc. 38-5, at 2-3); see also

Sehlmeyer Aff., Doc. 38-1, at ¶¶ 5-6. They have further provided a medical examination report

from immediately after the incident in question. See Ex. C, Doc. 38-5, at 18. That report indicates

Plaintiff reported an assault on his groin, but on assessment, medical staff found “no swelling,

lacerations, or discolorations.” Id. Medical staff documented “a small cut on [the] left thumb”,

which was cleaned and covered with a band-aid. Id. Because prison officials must take immediate

7. The Court finds it at least arguable that Plaintiff exhausted this claim through the prison

grievance process as he attempted to raise it to all three levels of the process. See Ex. A, Doc. 38-

3, at 5-6, 21-22. As such, the Court addresses this claim on the merits.

action to maintain order, they are given “wide-ranging deference in the adoption and execution of

policies and practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security.” Hudson, 503 U.S. at 6 (internal quotation omitted). A

consideration of the relevant factors – “the reasons or motivation for the conduct, the type and

extent of force applied, and the extent of inflicted injury”, Caldwell, 968 F.2d at 600 –

demonstrates Defendants’ actions were taken in “good faith effort to maintain or restore discipline”

rather than “maliciously and sadistically for the very purpose of causing harm.” Williams, 631 F.3d

at 383 (quoting Hudson, 503 U.S. at 6).

The Court finds Defendants have pointed to evidence that the force used “could plausibly

have been thought necessary” in this instance, and Plaintiff has presented no evidence to the

contrary (and indeed, has presented no evidence at all). Griffin, 604 F.3d at 954; see also Lockett

v. Suardini, 526 F.3d 866, 874-76 (6th Cir. 2008) (finding summary judgment appropriate on

excessive-force claim where plaintiff alleged that he was attacked by guards with only enough

force to almost break his eyeglasses and where plaintiff otherwise suffered only minor lacerations

and cuts); Johnson v. Unknown Coolman, 102 F. App’x 460, 461 (6th Cir. 2004) (denying a

prisoner’s excessive-force claim where the prison officers pushed him into his cell, pulled hard on

his restraints, hurt his wrists, and tried to bend his thumb back, all in a “legitimate attempt to return

him to his cell”); Williams v. Johnson, 55 F. App’x 736, 736-37 (6th Cir. 2003) (denying

excessive-force claim where prisoner was being argumentative and the officer grabbed his arm

and attempted to shove him into a closed door; this was determined to be a de minimis use of force

reasonably related to a security need).

On the undisputed evidence before the Court, Defendants actions were taken in a “good

faith effort to maintain or restore discipline”, not “maliciously and sadistically for the very purpose

of causing harm.” Williams, 631 F.3d at 383. As such, Defendants Zimmerman, Wallace, and

Poupard are entitled to summary judgment on Plaintiff’s Eighth Amendment excessive force claim

regarding the November 20, 2017 incident.

June 18, 2018 Incident8

In his second excessive force claim, Plaintiff alleges Defendants Hughes and Creegold

assaulted him on June 18, 2018 while he was receiving medical care. (Doc. 31, at ¶ 33). He alleges

Hughes sprayed mace at his face, threw him to the floor, and jumped up and down on his back. Id.

He further alleges that while Creegold held his ankles, Hughes sprayed mace in his rectum. Id.

Plaintiff has again failed to provide any admissible evidence to support the version of

events set forth in his Amended Complaint. On the evidence before the Court, this claim also fails

to meet the subjective component of an Eighth Amendment excessive force claim. Defendants

have submitted evidence their actions were taken in response to Plaintiff lunging toward Nurse

Johnson. See Doc. 38-6, at 4 (use of force investigation conclusion that Officers Hughes and

Creegold9 reacted to Plaintiff’s actions by deploying mace, gaining control of Plaintiff, and placing

him on the ground). Plaintiff has not provided any admissible evidence of injuries suffered, nor

has he presented evidence of the version of events presented in his Amended Complaint10, or to

contradict that Defendants’ use of force “could plausibly have been thought necessary”, Griffin,

604 F.3d at 954. See, e.g., Davis v. Agosto, 89 F. App’x 523, 525 (6th Cir. 2004) (use of mace to

8. Plaintiff properly exhausted this claim through all levels of the prison grievance system. See Ex.

A, Doc. 38-3, at 10-11.

9. The Use of Force report identifies this officer as Officer “Creego”. (Doc. 28-6, at 1). The Court

assumes this is the same individual the Amended Complaint identifies as Officer Creegold.

10. In particular, there is no admissible evidence before the Court to support the more egregious

allegations in Plaintiff’s Amended Complaint that Officer Hughes sprayed mace in Plaintiff’s

rectum or jumped up and down on Plaintiff’s back.

attain control of a prisoner not malicious or sadistic when made in a good-faith effort to restore

discipline); see also Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir 2002); Hicks v. Goff, 2019

WL 5685383, at *3 (S.D. Ohio) (dismissing excessive force claim where “Defendants could have

reasonably perceived a serious threat that necessitated utilization of force, including their

deployment of mace”).

Again, a consideration of the relevant factors – “the reasons or motivation for the conduct,

the type and extent of force applied, and the extent of inflicted injury”, Caldwell, 968 F.2d at 600

– demonstrates Defendants’ actions were taken in “good faith effort to maintain or restore

discipline” rather than “maliciously and sadistically for the very purpose of causing

harm.” Williams, 631 F.3d at 383 (quoting Hudson, 503 U.S. at 6). As such, Defendants are

entitled to summary judgment.

Qualified Immunity

In addition to the above arguments, Defendants raise the affirmative defense of qualified

immunity. (Doc. 38, at 11-13). They assert Plaintiff has failed to show an Eighth Amendment

violation, and even assuming arguendo that he could do so, he has not shown the right violated

was clearly established at the time the force was used or that Defendants’ actions were

unreasonable. Id.

“The doctrine of qualified immunity protects government officials 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.” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (internal quotation omitted). There are two prongs to the analysis: (1) do the facts, viewed

in the light most favorable to plaintiff make out a violation of a constitutional right; and (2) was

that right clearly established at the time of the alleged misconduct. Id. at 232. A right is clearly

established when it is “sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015).

Once a defendant properly raises a defense of qualified immunity, the burden shifts to

plaintiff to demonstrate the defendant is not entitled to qualified immunity. Livermore ex rel. Rohn

v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007). The bald assertion of qualified immunity is not

sufficient to shift the burden, however. “A defendant bears the initial burden of putting forth facts

that suggest that he was acting within the scope of his discretionary authority.” Stoudemire v.

Michigan Dep’t of Corr., 705 F.3d 560, 568 (6th Cir. 2013). Once a defendant has done so, “[t]he

burden of convincing a court that the law was clearly established rests squarely with the

plaintiff.” Key v. Grayson, 179 F.3d 996, 1000 (6th Cir. 1999) (citation and internal quotation

omitted).

The Court finds Defendants have properly invoked qualified immunity on the excessive

force claims here by putting forth facts to suggest they were acting within the scope of their

discretionary authority and responding to maintain order as set forth above. And Plaintiff has

presented no evidence or argument in response. Although the Court cannot grant summary

judgment for Defendant simply because Plaintiff failed to respond because Defendant bears the

burden on such a motion of the nonexistence of a material factual dispute, E.M.A. Nationwide,

Inc., 767 F.3d at 630, the proper assertion of qualified immunity shifts the burden of proof to

plaintiff, Livermore, 476 F.2d at 403.

Because Plaintiff has failed to satisfy his burden in this regard – to show the law was clearly

established such that it would have been “sufficiently clear that every reasonable official would

have understood that [their actions] violate[d] that right”, Mullenix, 577 U.S. at 11 – qualified

immunity provides an additional (and alternative) basis for granting Defendants summary

judgment. See, e.g., Campbell v. Hines, 2013 WL 7899224, at *4 (6th Cir.) (“[T]he district court

properly declined to address the merits of Campbell’s equal protection claim, because he failed to

respond to the defendants’ argument that they were entitled to qualified immunity.”); Winter v.

City of Westlake, 2018 WL 838283, at *9 (N.D. Ohio) (“Defendants have moved for judgment

based on qualified immunity, contending they did not violate Plaintiffs’ clearly established rights.

. . [T]he plaintiff has the burden of demonstrating the defendant is not entitled to qualified

immunity. . . . Defendants have raised the defense and the Plaintiffs’ failure to respond militates

in favor of judgment for Defendants since Plaintiffs have not met their burden. Therefore, in the

absence of any evidence of a constitutional violation and in the absence of any evidence or

argument against Defendants’ qualified immunity defense, the Court grants summary judgment

for Defendants and against Plaintiffs on all Plaintiffs’ federal claims.”); Allison v. Berrong, 2009

WL 1874061, at *3 (E.D. Tenn.) (“Also, Plaintiff Allison’s failure to respond to the motion to

dismiss further demonstrates his failure to meet the burden necessary to defeat Defendant

Berrong’s qualified immunity claim in this case.”).

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion for Summary Judgment (Doc. 38), be and the same

hereby is, GRANTED; and the Court further

CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could

not be taken in good faith.

s/ James R. Knepp

UNITED STATES DISTRICT JUDGE