# Anderson v. Spoljarik

> District Court, S.D. Ohio · February 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10374816

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** February 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10374816

## How later opinions describe it (automated extraction)

- reversing dismissal of Eighth Amendment claim where inmate alleged he was assaulted in retaliation for requesting a grievance form and emphasizing that judicial inquiry should focus on “the nature of the force rather than the extent of the injury.”
- concluding that issues of fact precluded summary judgment on claims by prisoner held on civil contempt that jail deputies applied force in violation of Eighth Amendment standards
- finding that a conversation constituted protected petitioning activity

## Opinion text

SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ARNOLD ANDERSON, Case No. 1:18-cv-380

Plaintiff, Cole, J.
Bowman, M.J.
v.

JEFF LAWLESS, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Arnold Anderson initiated this pro se lawsuit on December 5, 2017 in
Columbus, Ohio. However, venue was transferred to the Cincinnati division under S.D.
Ohio Local Rule 82.1(c) and 28 U.S.C. §1404. For the reasons stated below, the
undersigned recommends that the Defendants’ motion for summary judgment be granted
in part and denied in part, and that Plaintiff’s motion to strike Defendants’ motion,
Plaintiff’s motion for summary judgment, and Plaintiff’s motion to compel further discovery
be denied.
I. Background
During the brief time in which the case remained pending in the Eastern Division
of this Court, the Court screened Plaintiff’s claims under 28 U.S.C. § 1915A. (Docs. 6,
8). Some claims were dismissed, but the Court permitted an Eighth Amendment claim
and a First Amendment retaliation claim to proceed against three Defendants in their
individual capacities. Both claims arose on December 6-7, 2016, during a short period
of time in which Plaintiff was temporarily held in the custody of the Lawrence County,
Ohio, Sheriff’s Department at the Lawrence County Jail (“the jail”).
Plaintiff’s Eighth Amendment claim is based upon his allegation that on December
6, 2016, he was using the telephone when he and Officer Hatfield became embroiled in
a verbal dispute. Plaintiff generally alleges that in sequential incidents that took place
between December 6 and December 7, Defendants Hatfield, Spoljarik, and Akers used
excessive force against him. (See generally Doc. 6 at 2-6, citing complaint at 9-13). The

First Amendment claim is based upon Plaintiff’s allegations that the last use of force by
Defendant Spoljarik was in retaliation for Plaintiff’s attempted use of the jail’s grievance
system. (Doc. 6 at 9, citing complaint at 11).
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper
“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.” A dispute is “genuine” when “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505 (1986). A court must

view the evidence and draw all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348
(1986). The moving party has the burden of showing an absence of evidence to support
the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548
(1986). Once the moving party has met its burden of production, the nonmoving party
cannot rest on the pleadings, but must present significant probative evidence in support
of his case to defeat the motion for summary judgment. Anderson, 477 U.S. at 248-49.
The mere scintilla of evidence to support the nonmoving party’s position will be
insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the
2
nonmoving party. Id. at 252. As Plaintiff is a pro se litigant, his filings are liberally
construed. Spotts v. United States, 429 F.3d 248, 250 (6th Cir. 2005). However, his
status as a pro se litigant does not alter his burden of supporting his factual assertions
with admissible evidence when faced with a summary judgment motion. Maston v.
Montgomery Cnty. Jail Med. Staff Personnel, 832 F. Supp. 2d 846, 851-52 (S.D. Ohio

2011) (citing Viergutz v. Lucent Techs., Inc., 375 Fed. Appx. 482, 485 (6th Cir. 2010)).
III. Findings of Fact
The parties’ versions of the relevant facts often differ in the record presented. In
accordance with the above standard, where the evidence is disputed, all reasonable
inferences have been drawn in favor of the Plaintiff.
The incidents at issue occurred at the jail on December 6 and 7, 2016, at a time
when it appears that Plaintiff had been convicted and sentenced and was no longer a
pretrial detainee.1 As relevant background, both parties cite to a separate incident that
occurred a week earlier at the jail. During a separate brief incarceration in November

2016, Plaintiff became ill with pancreatitis and was admitted to a local hospital. Upon his
return to the jail on or about November 29, 2016, Plaintiff was involved in a fight with
another inmate, Clayton Hill, in which Hill bit Plaintiff’s ear. Plaintiff testified2 that Hill

1Plaintiff’s post-conviction status on the dates in question is highly relevant to his claims and the standards
applicable thereto. An excessive force claim against a free citizen arises under the Fourth Amendment,
whereas the Eighth Amendment governs excessive force claims filed by convicted persons. The
Fourteenth Amendment’s more generally applicable Due Process Clause governs excessive force claims
filed by pretrial detainees. See Hopper v. Phil Plummer, 887 F.3d 744, 751 (6th Cir. 2018).
2Plaintiff seeks to strike Defendants’ motion for summary judgment and objects to the use of his deposition
testimony on grounds that he did not have the ability to review that testimony and did not sign the transcript.
Defendants have filed records that reflect that the court reporter attempted to contact Plaintiff but did not
receive a response. (Doc. 65 at 7-9). Although it is undisputed that Plaintiff is indigent and did not receive
at least one of the court reporter’s letters, the undersigned finds no basis to exclude the deposition transcript
from consideration.
3
attacked him after Defendant Spoljaric yelled out that Plaintiff was an informant who
obtained drugs from Hill. (Plaintiff Dep., Doc. 47-1 at 66).3 Defendants maintain that
Plaintiff instigated the fight. (Doc. 48-9 at 4-5, incident report). Although an unknown
officer completed an Ohio Uniform Incident Report indicating his intent to charge Plaintiff
with violations of Ohio’s criminal code for assault and disorderly conduct, it is unclear

whether that report was filed with any prosecutor.4 Plaintiff was never formally charged
with any offense.
Defendants cite to the November incident as evidence of Plaintiff’s propensity to
fight, although Plaintiff testified he has never been in any other fight with an inmate before
or since. For his part, Plaintiff points to the incident as marking the escalation of conflict
with Defendants, including the improper use of the jail’s restraint chair when Spoljaric
allegedly “dropped” the chair intentionally, in the same manner as allegedly occurred in
the incidents at issue in this lawsuit. (Dep., Doc. 47-1 at 59). Plaintiff obtained a jail
grievance form in November but did not explain his grievance other than writing that

Defendant Spoljaric “scared me when he smiled.” (Id. at 57). Plaintiff left the incomplete
form in his cell on December 2, 2016 when he was transferred from the jail to the
Correction Reception Center (“CRC”) to serve out his sentence on drug-related offenses.

3Plaintiff filed a supporting affidavit of Inmate Hill on 12/31/18, which Defendants moved to strike on
procedural grounds. The undersigned partially granted Defendants’ motion insofar as the affidavit was a
prematurely filed evidentiary exhibit, which could not be considered in the absence of relevance to any
pending motion. (Doc. 42, citing Doc. 31).
4Defendants erroneously state in their motion for summary judgment that as a result of the incident, “Plaintiff
was charged with two counts of assault on a peace officer, two counts of harassment, disorderly conduct
and resisting arrest causing injury to officers.” (Doc 48 at 24). In Defendants’ reply, counsel acknowledges
the misstatement and does not dispute Plaintiff’s position that no formal charges were ever filed. Counsel
explains: “These reports can be filed with the Prosecutor, but the report merely indicates the potential
charges that can ultimately be filed.” (Doc. 65 at 1, emphasis added).
4
The basis for this lawsuit arose four days later, on December 6, 2016, when
Plaintiff returned to the jail from CRC in order to attend a state court hearing on December
7. At that hearing, the state court denied Plaintiff’s motion for the appointment of counsel
on appeal and corrected an error in Plaintiff’s record regarding the severity of the offenses
on which he had been convicted.5 (Doc. 48-8). Plaintiff returned to CRC on December

7, 2016 to continue serving his sentence. (Doc. 47-1 at 21, 64).
When Plaintiff arrived at the jail, he had only a pre-existing abrasion on his ear
from the November 29 fight. (Id. at 64). Less than 24 hours later, he had numerous
injuries that - while mostly superficial - included swelling, cuts and bruises as well as a
broken finger. The primary dispute in this case is whether the injuries were caused by
the Defendants’ reasonable use of force, or by excessive and/or retaliatory force. The
record reflects a total of three incidents in which some force was used: (1) around 7 p.m.
on December 6, 2016 when two Defendants entered Plaintiff’s cell and became involved
in a physical altercation; (2) immediately after that altercation when Plaintiff was placed

in the jail’s restraint chair by all three Defendants for the first time; and (3) in the early
morning hours of December 7, in an incident between Plaintiff and Defendant Spoljaric
that led to Plaintiff being placed in the restraint chair for a second time.
The Altercation Between Plaintiff and Defendants Hatfield and Spoljaric
During the early evening of December 6, Plaintiff was sitting on a cooler in the
“isolation” cell talking on the phone to his girlfriend when Defendant Hatfield walked by.

5Plaintiff was convicted after trial of one or more fourth degree drug offenses, but that his record erroneously
reflected third degree offenses. (Doc. 47-1, Anderson Dep. at 18-19; Doc. 48-8). Contrary to Plaintiff’s
testimony in this case, the state court transcript does not comport with Plaintiff’s account that he alerted the
state court judge that he had been beaten by jail deputies. (Id.)
5
Plaintiff interrupted his phone conversation to verbally engage Hatfield in what quickly
became an argument about the charges on which Plaintiff was being held. Plaintiff stated
that he would alert a local news station based upon his belief that the jail had no authority
to hold him. Plaintiff also tried to order a soda from Hatfield, and reacted angrily when
Hatfield said Plaintiff had no money by asking why his money “keep[s] disappearing off

my books.” (Doc. 47-1 at 23). The conversation grew more heated, and Plaintiff returned
to his telephone conversation and asked, “are you recording this?”
I said Hatfield, here’s the deal, you can’t tell me, and I was a smartass about
this because I knew Hatfield had an assault in Federal Court in a lawsuit
that they had just lost. That pissed Hatfield off from what I’m assuming.
Hatfield hollers at Spoljaric and Akers.

(Id.)6 According to Plaintiff, Officers Hatfield and Spoljaric subsequently entered his cell
and proceeded to yank him off the cooler and beat him.
Defendants maintain that Plaintiff was “yelling” and “banging the phone on the
receiver in the cell” and “causing commotion,” which noise elicited an instruction “to quit
causing a disturbance.” (Spoljaric Affidavit, Doc. 48-4 at 1). “Anderson refused to calm
down and continued yelling and hitting the phone on the receiver.” (Hatfield Affidavit, Doc.
48-2 at 1; see also Akers Affidavit, Doc. 48-3; Doc. 48-6 at 3). Plaintiff denies causing
any disturbance and denies being non-compliant with any orders. (Doc. 47-1 at 31). A
December 6 incident report by Hatfield bearing the time of 1913 omits the reference to

6Plaintiff refers to a prior case in which Defendant Hatfield and two other Defendants were criminally
charged with civil rights violations, Case No. 1:14-cr-120-TSB based upon an August 16-17, 2014 incident
in which the Defendants were alleged to have used excessive force against an inmate identified as “L.K.”
Plaintiff includes a copy of the indictment as an exhibit in this case. (See Doc. 44-1). Hatfield and his co-
defendants were acquitted of all criminal charges in Case No. 1:14-cr-120 following a jury trial in October
2015. A closely related civil rights case presumably filed by the same inmate, Larry Kinstler, was resolved
through settlement and dismissed in March 2016. See Case No. 1:15-cv-139.
6
Plaintiff refusing a directive to “calm down” but does report that Plaintiff “was becoming
more agitated and had been screaming and yelling since he had been booked back into
jail today stating he cannot be held and we do not have a charge to hold him. He then
said tell it to WSAZ their [sic] going to call you.” (Doc. 54-1 at 17). The incident report
states that “due to Anderson’s behavior and starting to get the cell riled up and agitated,

officers were going to move him to the tank for observation.” (Id.) Hatfield states that
the officers’ intent was to prevent Plaintiff from “engag[ing in] fighting any of the inmates
putting their safety at risk due to Anderson’s irate behavior…” (Id.)
Defendants Spoljaric and Hatfield entered Plaintiff’s cell, an area that is not
monitored by video camera, while he was still on the phone. (Doc. 47-1 at 38). Plaintiff
testified that Hatfield and Spoljaric immediately began to assault him, with Hatfield
yanking him up off the cooler and both Defendants taking him down to the ground and
punching him repeatedly. However, Defendant Hatfield attests that only after Plaintiff
refused to stand and exit did he grab Plaintiff’s arm in an “attempt[] to escort him out of

the cell,” whereupon Plaintiff pulled away and “tackled” Spoljaric, falling on top of him and
punching him. (Hatfield Affidavit, Doc. 48-2; see also Doc. 54-1 at 17, incident report
stating that Defendants “advised” Plaintiff “to stand up and put down the phone, Anderson
refused then tensed up and lowered his head,” causing Hatfield to “physically grab him
by his left arm.”). Hatfield states that only after Plaintiff pulled away and tackled Spoljaric
did Hatfield punch Plaintiff three times in order to regain control and to protect Spoljaric.
Defendant Akers entered soon after, by which point Hatfield had regained a hold
of Plaintiff’s left arm. With Akers securing Plaintiff’s right arm, the altercation ended.
Plaintiff was handcuffed and the officers began to escort him out of the cell. Defendants
7
allege that Plaintiff shoved Spoljaric as they started walking. However, Plaintiff states that
he merely “bumped” into a piece of metal near a threshold and that in response, “Spoljaric
took my hands behind me, pulled them up, pulled me back on top of him,” causing both
to fall. (Doc. 47-1 at 36). Plaintiff does not claim injury from his brief fall in the hallway.
Hatfield’s incident report refers to Plaintiff’s “scratch injuries” including “on his left

outer forearm” and forehead, as well as injury to “a pre-existing scratch on his right ear
from…11-29-16.” (Doc. 48-10 at 2). Hatfield states that Plaintiff permitted his left arm to
be cleaned “after photos were taken but refused to let officers clean his forehead.” (Id.)
The report states: “Anderson did cause officers to get his blood on ourselves due to him
resisting and fighting with officers also causing Deputy [S]poljaric to receive injury to his
right knee causing swelling and pain.” (Id.)
The December 6, 2016 use of the Restraint Chair
After the physical altercation, Defendants placed Plaintiff in a restraint chair that
Plaintiff testified was also positioned out of view of video cameras. Plaintiff accuses

Spoljaric of excessive force during and after he was placed in the restraint chair.
Spoljaric walks to the back of the restraint chair, leans the restraint chair
back and drops it to the floor approximately about 12 inches. I’m 240
pounds at the time. Then he walks around to my feet and places pink
shackles on my legs. He takes his hand to my left leg and pushed it inwards
and as he shoving down he was clicking the chain – the locking mechanism
on the shackle – leg shackle.

(Doc. 47-1 at 39). Plaintiff claims that he screamed so loudly to other inmates asking
them to call the Ohio State Patrol that “Hatfield or someone in that booking area” shut off
the phones to the jail. (Id. at 40). Plaintiff alleges that he remained upside down in the
chair while Spoljaric tightened the leg shackle for some period of time, all the while “acting
8
as if he’s broke his key or his key was stuck in the shackle and that’s why it’s still at my
feet and I’m upside down in that chair.” (Id. at 41). Defendants subsequently righted the
chair back toward the camera. (Id. at 42).
In support of his account, Plaintiff has filed as exhibits the April 10, 2019 Affidavit
of Major William Winters and a letter written by an unidentified female inmate. Winters

was the Jail Administrator from August 2016 until March 2019. (Doc. 69-5). Winters
acknowledges receipt of the two-page undated letter from a “Jane Doe” witness.7 The
letter writer accuses Spoljaric of taking out his frustration on others whenever he is angry.
The inmate complains that Spoljaric took out the cable for a week as punishment for one
female inmate “responding to her brother who was at the time restrained in the chair &
was apparently [sic] from the screams & sounds of terror….” (Id.) The letter goes on:
[Spoljaric] had him placed right up against the dressing room or actually
inside the dressing room because when the male inmate (Ray Anderson)
spoke/screamed it seemed as if he was right up against our B-1 cat-walk
door. At that point inmate Roy Anderson had yelled out “Help!!”, “Can
anyone hear me!” He also stated very loudly with anguish that Officer
[Spoljaric] had broke his ankle & we could hear [Spoljaric] repeatedly
tighting up his cuffs &/ shackles making them tighter & tighter & the inmate
wasn’t even resisting b/c he was already IN THE CHAIR! What this officer
done to this inmate in my opinion was un-called for, cruel & inhumane.
Being placed in the chair due to unrulyness or being combative upon
booking or whatever is one thing. But to be placed in the chair, restrained,
having absolutely no free movement of your body & then to have an officer
of the law who you are suppost to trust & look up to for help take full
advantage of an inmate full bodily restrained & take it up on his self (the
officer) to decide to physically hit him in the head & face as well it just down
right disgusting! And I think it’s wrong just b/c we were concerned & scared

7Plaintiff asserts that the letter is missing the last page on which the inmate’s signature would have
appeared. Major Winters states that to “the best of his knowledge, belief, and recollection” more than two
years later, the two pages “were all that I received.” (Doc. 69-5 at 1). The undersigned previously denied
Plaintiff’s motion to compel the “missing” page despite acknowledging that “the letter appears to be
incomplete.” The order denied the motion to compel in part because the issue had only recently been raised
by Plaintiff and based upon the Court’s confidence in “the ability of both parties to resolve this minor issue
extrajudicially.” (Doc. 42 at 6).
9
for the fellow inmate right smack against our cell) that we in b-1 have to be
punished for what officer [Spoljaric] wrongly chose to do.

(Doc. 69-12, spelling, grammar and punctuation original).
Plaintiff testified that he remained in the chair with his left leg twisted for three and
a half to four hours prior to being released shortly before midnight on December 6. (Doc.
47-1 at 42, 45). However, a printed “Inmate Chair Check” report reflects that Plaintiff was
placed in the chair at 1913 on December 6, 2016 and was released approximately 2 hours
later, at 2109. (Doc. 69-4).
During Plaintiff’s first restraint, Defendants moved the chair to the holding tank.
(Doc. 47-1 at 44). Spoljaric and Hatfield sprayed a solution on Plaintiff’s bleeding
(reinjured) right ear and on other injuries before taking pictures. (Doc. 47-1 at 51).
Hatfield’s incident report explains that he and Spoljaric cleaned a “left arm scratch after
photos were taken” but that Plaintiff “refused to let officers clean his forehead.” (Doc. 48-
10 at 2).
Plaintiff testified that during his first confinement in the restraint chair, he could
hear Hatfield and Spoljaric “taunting” him and threatening “to charge me with assault on
police officers, harassment by inmate, escape, all kinds of stuff,” including “resisting
arrest.” (Doc. 47-1 at 46). Hatfield’s incident report of 12/6/16 indicates that Plaintiff “is
being charged with” four criminal offenses. (Doc. 48-10 at 2). Hatfield also completed an
Ohio Uniform Incident Report that asserted that Plaintiff had committed the following

criminal offenses: (1) Assault on a Peace Officer; (2) Harassment by Inmate; (3)
Disorderly Conduct; (4) Resisting Arrest – Causes Physical Harm to Law Enforcement
Officer By Means of Deadly Weapon. (Doc. 54-1). Notwithstanding those reports, no
10
charges were ever pursued and Plaintiff was never prosecuted.8 Both Hatfield and Akers
went off duty prior to Plaintiff’s release from the restraint chair by non-party officers on
December 6, 2016, but Defendant Spoljaric remained on duty.
Some evidence suggests that Plaintiff may have verbally complained to Winters,
the Jail Administrator, about the force used against him, although the timing of that

complaint remains unclear. Defendants have attached to their motion as an exhibit a
“Grievance Response” form from Winters that reflects a “Grievance Date” of 12/06/16 and
Grievance “Time” of 1945.9 In that form, Winters states that he has reviewed “the camera
system in front of [the] tank and locker room area” and that he “had another supervisor
view the film,” but saw “no evidence to where inmate Arnold Anderson was assaulted or
mistreated or bleeding as they [sic] have stated. I did observe he was left in a position
for a little too long and that will be addressed to officer Spoljaric. The complaint was
verbal.” (Doc. 48-16 at 1).10 Given Winters’ denial of any evidence of an assault or
bleeding, it is unclear whether Winters reviewed Hatfield’s Incident Report, which

referenced Plaintiff causing “officers to get his blood on ourselves” during the incident.
(Doc. 48-10 at 2).

8As with the state Incident Report dated 11/29/16, there is no indication whether formal “charges” actually
were filed with a prosecutor’s office. As Plaintiff points out, Hatfield’s statement in the incident report that
charges were “also” filed against Anderson on 11-29-16 was incorrect
9The referenced time and date are somewhat confusing, insofar as Defendants deny that Plaintiff filed any
grievance on December 6, and log books reflect he did not request a grievance form until just before
midnight on December 6, hours later than the time reflected in Winters’ “Grievance Response.” The
additional date of “11/16/16” is listed under the title “Jail Administrator.” (Doc. 48-16).
10In addition to Winters’ “Grievance Response,” Defendants have offered an unsworn but signed statement
from “Corporal Robert Bowles,” dated March 6, 2017, that states that Bowles walked into an office on an
unknown date “believe[d]” to be sometime “in December of 2016” and recalls seeing Winters “reviewing
some recordings from the Jail cameras.” Bowles states that during “the short time that I was in the office,
I didn’t see anything,” but admits that he “didn’t watch the entirety of the video.” (Doc. 48-17).
11
Second Use of Restraint Chair on December 7, 2016
Plaintiff testified that he remained free from restraint for only 30-60 minutes before
being placed in the restraint chair a second time by Spoljaric just after midnight in the
early morning hours of December 7. (Doc. 47-1 at 45).
After he was freed, Plaintiff knocked on the cell door to request Tylenol, but testified

that Spoljaric said “no, quit kicking the door” and shut the door abruptly so that the door
struck Plaintiff’s head. (Doc. 47-1 at 47). Plaintiff next requested a sick call and grievance
forms, which Spoljaric also denied. (Id. at 55, 59-60). Soon after, Spoljaric appeared
with a tazer along with Ironton Police Officer Jamie Pruitt. Plaintiff submitted to removal
from the holding tank and placement in the restraint chair a second time. (Id. at 47). Once
again, Spoljaric leaned the chair back, ostensibly to place leg shackles on Plaintiff, and
let it drop, causing further pain to Plaintiff’s head and neck. (Id. at 47-49). Spoljaric then
righted the chair and placed Plaintiff in the chair back in the holding tank. (Id. at 50).
In a December 7 incident report, Spoljaric explained the events as follows:

…I was walking past the TA when [Plaintiff] began knocking on the TA door.
At that time he politely asked me for a Tylenol. At that time I went to the
med room and opened the TA door…to give [Plaintiff] a Tylenol. At that
time [Plaintiff] began cussing me and demanding I do something about his
arm (that he was using fine and had no apparent major injuries.) I advised
[Plaintiff to take the meds or I would shut the door and he would not get any.
[Plaintiff continued to cuss and be rude. A[t] that time I attempted to shut
the door…and [Plaintiff] threw himself against the door and screamed
“Spoljaric what are you doing ouch quit.” [Plaintiff] then began hitting the
TA door with enough force to harm himself. To prevent injury to officers
and inmate a Taser was brought into the jail and [Plaintiff] was ordered to
the ground and cuffed behind his back without further incident.

(Doc. 48-12).
12
Plaintiff testified that he was left in the chair on December 7 for nearly six hours
without monitoring or any opportunity for circulation to be checked. (Id. at 54). At the
bottom of Spoljaric’s incident report is handwritten notation stating that the “Chair Check
will not Print went in @ 0039 out @ 0200.” (Id.) Although there is no typed Chair Check
report, a handwritten log indicates that Plaintiff was placed in the chair at 0039 and was

released approximately an hour and a half later at 0203, when he was given a sick call
form based upon his complaint of pain in his left arm. (Doc. 48-6 at 4).
Plaintiff testified that his left arm was so badly swollen from the restraint straps by
the time he was released that a paramedic who works at the jail, Deputy Ray Jones,
ordered an x-ray on Plaintiff’s arm when he arrived at work that morning. (Doc. 47-1 at
53). Plaintiff completed a sick call request complaining of an “abnormality to my left arm,
lesions on my head, right ring finger is bruised and swollen, knots on my chin. Cut on
back of left arm.” (Id. at 69-6, Doc. 47-2 at 10, ex. 4). However, he was transported back
to CRC by Hatfield prior to any x-rays being taken at the jail. (Doc. 69-6 at 1).

Plaintiff has submitted several records that confirm that he sought medical care
immediately upon his return to CRC. In an “Incident Report” authored by Lt. Erik Baratle
dated 12/7/16 at 1:10 p.m., for example, Lt. Baratle reports that Plaintiff “stated he was
beat up by deputies at the county,” and “has marks on his ear, arms and forehead.” (Doc.
69-7 at 2). Plaintiff also reported that he thought his jaw might be broken. Lt. Baratle
states he “had the inmate write a voluntary statement,” and “had pictures taken of his
visible injuries and had the inmate get a medical evaluation.” (Id.) The report concludes
with a handwritten statement that the incident was “reported to Investigator Thompson
[illegible]..It was a documented UOF at County.” Plaintiff’s handwritten statement reads
13
in part:
I was on a …phone call talking to my fiancé and son. C/O Deputy Hatfield
came to panhole asking for razors from where I was sitting on a cooler & on
the phone. I had to look up, I ask if I could get some information on when
I’m going to court; and if I could buy soda; Hatfield told me to hand phone
up. I asked why. He yelled for C/O Deputy Spoljari[c]. He arrived with Joey
Akers at door. Hatfield came from left. Spoljari[c] hung phone up. Hatfield
slammed me to the floor. Spoljari[c] commenced punching me repeatedly
yelling give me your hands. [Illegible] stepped on my left hand. Cell was
full. After taken to chair. I was shackled with left leg twisted to right
shackled till couldn’t go anymore repeatedly squeezing [illegible] left arm
strapped dropped in chair placed in holding tank strapped; then back to
chair after released.

(Doc. 69-7 at 3).
Medical records from CRC similarly reflect Plaintiff’s report of “trauma to the head,
[left] arm and [left] chest when he was allegedly beaten by 2 county officers after he made
some type of remark. Has pain and swelling of lt arm and pain and swelling lt lower leg
area. He reports lacerations of the [left] forearm and forehead.” (Doc. 69-3 at 1; see also
Doc. 69-6). In examination notes, Dr. Cullen at CRC noted swelling in Plaintiff’s leg with
circular markings on the leg, dried blood, lacerations, and swelling in Plaintiff’s left
forearm, and a swollen right finger, as well as injuries of the face and neck. (Doc. 69-3
at 2). A second Medical Exam Report also dated 12/7/16 restates Plaintiff’s subjective
report that he “was beaten up by two deputies from Lawrence County Jail.” (Doc. 48-18).
That report includes objective findings of pain to Plaintiff’s left rib, left leg, left shoulder,
bruises on Plaintiff’s forehead and left middle finger, knots on the back of his head, and
a superficial laceration to his left lower arm about three inches long. (Id.) Plaintiff was
treated with ibuprofen and triple antibiotic ointment bandages and x-rays were ordered.
(Id.)
14
The X-rays11 confirmed no fracture to Plaintiff’s left wrist but did reveal a fracture
to the fourth finger in Plaintiff’s right hand, which was treated with a splint. (Doc. 47-1 at
72; see also Doc. 69-3 at 3, 7 “X-ray showed Nondisplaced tuft fracture of right distal
fourth digit. No swelling or redness. Tenderness only”). Plaintiff testified that over time,
he has received medications for the nerve damage in his left arm and other medication

related to the injuries he suffered on December 6-7, 2016. (Id. at 71, 87-89, 99). Other
records reflect Plaintiff’s report of mental health symptoms in the months following the
alleged assault, including increased anxiety and fear of “going back to the jail due to what
happened.” (Doc. 69-3 at 10).
The Lack of Photographic or Video Evidence
Notwithstanding Winters’ December 6 “Grievance Response” indicating his review
of some video, the jail did not preserve any video records from December 6 or 7, 2016.
The jail suggests that it had no duty to do so,12 but Plaintiff argues that the failure to retain
video footage violated Ohio Corrections and Rehabilitation Department regulations.

Those regulations require the retention for 10 years for any investigation files, including
those “involving an employee or offender’s alleged violation of policy, procedure, or Ohio
Revised Code.” (Doc. 54-1 at 3). Based upon a referral by CRC for “investigation,” as
well as the relatively serious criminal code violations reported by Hatfield, Plaintiff argues

11Defendants argue that “there is nothing in the record establishing that the Plaintiff ever had any x-rays” at
CRC after leaving the jail. Despite the apparent absence of the x-rays themselves, the referenced records
provide strong circumstantial evidence that x-rays were taken.
12Attached to Defendants’ motion for summary judgment is an unsworn and unsigned “Memo” dated
03/06/17 bearing the typed name of Jail Administrator Winters. The memo states that Winters reviewed
the video of Plaintiff “on 12/07/2017 and at that time there was no evidence to back up his statement that
he was assaulted n\by [sic] officers. I tried to review this footage again to copy for you but our system only
goes back for 30 days so this film is no longer able to recover.” (Doc. 47-2, Ex. 2). The latter reference to
“2017” is presumed to be a typographical error.
15
that video evidence should have been retained. (See, e.g., Doc. 69-7 at 2, handwritten
notation on CRC report stating that incident was “reported to Investigator Thompson” as
“a documented UOF in County”). The undersigned expresses no opinion on this
evidentiary issue, finding it to be beyond the scope of this R&R.
In addition to the lack of video evidence, no photographic evidence exists despite

multiple photos having been taken. (See Doc. 69-4, 12/6/16 Inmate Chair Check report
that Defendants Hatfield and Spoljaric took “more photos” at 2037, implying the existence
of earlier photos; see also id., noting an additional photo was taken of “a mark on left leg”;
Doc. 48-6 at 3, stating that Hatfield and Spoljaric went “to get more Photos of Anderson”;
Doc. 48-10 at 2, noting “photos were taken”; Doc. 69-7 at 2, Incident Report by Officer
Erik Baratle at CRC dated 12/7/16 at 1:10 pm., stating Plaintiff’s report that he was “beat
up by deputies at the county,” and “has marks on his ear, arms and forehead” and “thinks
his jaw may be broken,” and directing photos to be “taken of his visible injuries”).
Winters’ 2019 Affidavit attempts to explain the lack of photographic evidence.

Winters states that he never saw any photographs taken on December 6, 2016, and that
jail records do not contain photos from that date. (Doc. 69-5). He further states his
“belie[f]” that photographs from that date “were not downloaded from the camera’s SD
card onto the external hard drive due to the SD card malfunctioning,” based on his
“recollection” that sometime “around December of 2016, the SD cards used in the camera
were malfunctioning and the pictures on the SD card were corrupt.” (Id., emphasis
added). Aside from the general reference to the month of December, the Affidavit does
not otherwise refer specifically to photos that may have been taken on December 7, 2016.

16
IV. Defendants’ Motion for Summary Judgment
A. Exhaustion of Administrative Remedies
The undersigned begins by addressing the procedural argument that the
Defendants are entitled to judgment based upon Plaintiff’s failure to exhaust his
administrative remedies. Pursuant to the PLRA, prisoners are required to fully exhaust

available institutional remedies prior to filing suit in federal court. See 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 Supreme Court has held that the “PLRA’s exhaustion requirement applies to all
inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002).
It is well established that such exhaustion is “mandatory under the PLRA and

unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 201, 211 (2007).
The PLRA requires “proper exhaustion of administrative remedies,” meaning all
applicable procedures and deadlines must be followed. Woodford v. Ngo, 548 U.S. 81,
84, 90-91 (2002). The exhaustion requirement’s goals can be achieved “only if the prison
grievance system is given a fair opportunity to consider the grievance.” Id. at 82. “That
cannot happen unless the grievant complies with the system’s critical procedural rules.”
Id. If a prisoner fails to exhaust available administrative remedies before filing a complaint
in federal court, or only partially exhausts them, then dismissal of the complaint is
appropriate. Hopkins v. Ohio Dep’t of Corr., 84 Fed. Appx. 526, 527 (6th Cir. 2003) (citing
17
42 U.S.C. § 1997e(a) and White v. McGinnis, 131 F.3d 593, 595 (6th Cir. 1997)).
“Exhaustion may not be completed after a federal complaint has been filed.” Hopkins, 84
Fed. Appx. at 527 (citing Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)). “In a
claim by a prisoner, failure to exhaust administrative remedies under the PLRA is an
affirmative defense that must be established by the defendants.” Napier v. Laurel Cnty.,

636 F.3d 218, 225 (6th Cir. 2011) (citing Jones, 549 U.S. at 204); see also Does 8-10 v.
Snyder, ___ F.3d ___, 2019 WL 68853227 (6th Cir. December 18, 2019) (holding that the
defendants bear the burden of proof, reversing summary judgment based upon disputed
issues of fact concerning plaintiffs’ attempts to exhaust).
The Lawrence County Jail has a two-step inmate grievance policy (Policy # J-66-
2) intended “to address problems or complaints of any nature in reference to … treatment
during incarceration [at the Jail].” (Doc. 48-5). Defendants assert that a handbook
containing the policy is provided to all inmates entering the jail, although Plaintiff denies
such receipt.13 Pursuant to the policy,14 an inmate must request and submit an “Inmate

Grievance Form.” (Id.) If at the first step the complaint is not resolved by the Shift
Supervisor, the inmate may appeal to the Jail Administrator for a final decision. (Id.)
Plaintiff asserts that Defendant Spoljaric was the Shift Supervisor at the time; Defendants
deny that assertion but do not identify who filled that role.
A jail log confirms that Plaintiff requested a grievance form near midnight on the

13Plaintiff filed a declaration that he has “never seen a Lawrence County Jail handbook or anything informing
me of a grievance procedure.” (Doc. 69-7). Plaintiff does not dispute that he was aware of the existence
of grievance forms, having partially completed a form in November, and having requested a form from
Spoljaric on December 6.
14The policy attached to Defendants’ motion reflects a “Revised” date of October 3, 2018. (Doc. 48-5 at 1).
18
night of December 6, 2016, at 11:53 p.m. (Doc. 48-6 at 4, Lawrence County Jails Log for
12/6/16, stating “Anderson asked for Grievance”). However, Defendant Spoljaric attests
that he does not “recall” Plaintiff ever asking for a grievance form.15 (Doc. 48-4). Plaintiff
testified that Spoljaric denied his request for the form. (Plaintiff Dep., Doc. 47-1 at 59-64).
In any event, the jail has no record of Plaintiff actually filing a written grievance on

December 6 or December 7. In another contradiction, Plaintiff reports that he completed
a grievance form and slid it out under the cell door along with the sick call form provided
to him on December 7. (Doc. 69-7 at 1).
There is no dispute that Plaintiff filed a written complaint after he returned to CRC.
In that complaint, Plaintiff alleged he was beaten by jail staff in retaliation for filing a
grievance, and that he had filed grievances at the jail that went unanswered. (Doc. 69-7
at 4). In response, the Jail Inspector of the Ohio Department of Rehabilitation &
Corrections undertook an investigation by contacting the jail. (Doc. 69-7 at 6). The Jail
Inspector informed Plaintiff that the jail denied that he had been beaten in retaliation for

filing a grievance:
Major Winters disputes this allegation. He reported he can find nothing
indicating you ever expressed a concern of being assaulted during your
incarceration at the Lawrence County Jail. Major Winters investigated your
alleged complaint once it was brought to his attention and was not able to
find any evidence of an assault between the jail staff and yourself. Major
Winters indicated he reviewed jail video and found no such assaults.

(Doc. 69-7 at 7). The ORDC response also explains that Major Winters also disputed a

15Defendants’ memorandum in support of summary judgment erroneously asserts that “Spoljaric maintains
that the Plaintiff never requested a sick call and/or grievance from him on December 6-7, 2016.” (Doc. 48
at 15, emphasis added). However, Spoljaric’s affidavit states only that he could not “recall” Plaintiff’s
request. Defendants argue that “even if Plaintiff was denied a grievance form, it does not excuse his failure
to exhaust.” (Doc. 48 at 15). But binding Sixth Circuit case law holds to the contrary. See Does 8-10 v.
Snyder, supra at **8-11.
19
separate complaint that Plaintiff’s grievances went unanswered. “Major Winters stated
your grievance was personally addressed by him. He further claims he told you no
violations had occurred.” (Id.)
Somewhat curiously in light of other evidence submitted by Defendants that
Winters denied Plaintiff’s verbal grievance on 12/6, Winters’ response to the investigative

inquiry from CRC on January 3 implies that he previously was unaware of any complaint
from Plaintiff. The response states that Winters reported “find[ing] nothing indicating you
ever expressed a concern of being assaulted during your incarceration at the Lawrence
County Jail.” (Doc. 69-7 at 7). After the issue was brought to his attention [presumably
by the State Jail Inspector], Winters reported that he reviewed “jail video” but “was not
able to find any evidence of an assault between the jail staff and yourself.” (Id.)
The Defendants are not entitled to summary judgment based upon Plaintiff’s
alleged failure to exhaust because they have not carried their burden “to establish the
absence of a genuine dispute of material fact” on the issue. Accord Does 8-10 v. Snyder,

2019 WL 6885327 at *7. In Snyder, the court explained that the PLRA’s “unavailability
exception” applies in several circumstances, including but not limited to “when prison
administrators thwart inmates from taking advantage of a grievance process…” Id. at *9,
quoting Ross v. Blake, 136 S. Ct. 1850, 1860 (2016)). The “unavailability exception” to
exhaustion also may apply when a grievance process is “incapable of use.” Id. at *10.
Whether or not Plaintiff was prevented by Defendants from exhausting the only
available jail grievance procedure remains in dispute. In addition, Plaintiff was held at the
jail for less than 24 hours. (Doc. 69 at 9). Even if Defendants had provided Plaintiff with
the grievance form near midnight on December 6, the Defendants have failed to establish
20
that Plaintiff had sufficient time to file the grievance, receive a written response from the
Shift Supervisor, and then pursue a formal appeal in the few hours that remained prior to
his return to CRC on December 7, 2016.16
B. Excessive Force Claim Against Defendant Akers
Turning to the merits, Defendant Akers argues that he is entitled to summary

judgment based upon Plaintiff’s admissions that Akers was not personally involved in the
alleged excessive use of force on December 6-7, 2016. The complaint alleges that Akers
“entered the cell to assist and stamped on the plaintiff[’s] right [hand]” which resulted in a
fracture. (Complaint at ¶37). However, Plaintiff’s deposition testimony clarifies that
Defendant Akers lacked any subjective intent to harm Plaintiff.
Specifically, Plaintiff testified that Spoljaric and Hatfield entered his cell first. (Doc.
47-1 at 27). Hatfield grabbed Plaintiff’s arm and yanked him off the water cooler on which
he had been seated while using the phone, and both Hatfield and Spoljaric began
assaulting him. Plaintiff was pinned by Hatfield and Spoljarik with his head on the floor

and his hand near the cell entrance by the time that Akers entered the cell. (Doc. 47-1 at
27-28). Based on his head position, Plaintiff could not see who stepped on his hand. He
testified that he felt excruciating pain when someone (presumed to be Akers) stepped on
his hand. (Id. at 29). However, Plaintiff could not discern whether that contact was
accidental, or whether that action caused the fracture to his finger versus some other
portion of the use of force incident. (Doc. 47-1 at 28-29).

16Plaintiff alternatively argues that the steps he took to grieve the issues immediately upon his return to
CRC were sufficient, but the undersigned finds no need to review this issue in light of Defendants’ failure
to carry their burden on the issue.
21
A…When Akers stepped into the cell, Hatfield was kneeing me or kicking
me or something in the back. Spoljaric is kicking me over here on the left
side. Akers is going -- I don’t know if it’s when I went down that fractured
my hand right here or if it’s when he stepped in and stepped on my hand.

Q You’re saying Hatfield stepped on your hand?

A Akers stepped through the door. I’m not sure. I can’t say for positive that
he stepped on my hand. I know there was excruciating pain through my
right hand.

Q And it could have been when you fell?

A It could have been when I went down. Yes.

(Doc. 47-1 at 25, lines 13-23).17
Plaintiff reiterates in opposition to summary judgment that he “cannot say if
defendant Akers intentionally stamped on plaintiff[’]s hand….” (Doc. 69 at 4). In other
testimony, Plaintiff clarifies that he does not hold Akers responsible for anything other
than for failing to intervene when Defendants Hatfield and Spoljaric used force. “Akers
never – when this, the initial use of force took place Akers was not involved. And I want
for the record, Akers did not do anything wrong other than failure to intervene.” (Doc. 47-
1 at 27, emphasis added). Akers was not present in the cell when Hatfield and Spoljaric
were assaulting him, and “did not witness this take down.” (Id. at 29).
Defendant Akers attests that he assisted Deputy Hatfield in securing Plaintiff’s
hands behind his back and placing him in handcuffs after Defendant Hatfield and Spoljaric
skirmished with Plaintiff in the cell. (Doc. 48-3). In one discrepancy from Plaintiff’s
testimony, Defendant Akers attests that he was the deputy who tilted the restraint chair

17Plaintiff disagreed with counsel’s characterization of a “fall”, denying that he fell and testifying that he was
“slammed and kicked and beat down” by Hatfield and Spoljarik. (Id. at 28).
22
back in order to allow Defendant Spoljaric to apply ankle restraints. (Id.)18 However,
Akers denies dropping the chair, and there is no dispute that his shift ended prior to
Plaintiff’s release from the chair. (Id.)
Defendant Akers is entitled to judgment as a matter of law based upon the lack of
evidence that he had any personal involvement or responsibility for any excessive use of

force by Defendants Hatfield and Spoljaric. The parties agree that Akers was not present
when Hatfield and Spoljaric entered Plaintiff’s cell. To the extent that Akers might have
caused Plaintiff any injury by stepping on Plaintiff’s hand, that occurred when Akers
entered the cell to assist after being summoned by his fellow officers during a brief
physical altercation. Subjective intent to harm is a central element of any Eighth
Amendment claim. Based upon the uncontested evidence and Plaintiff’s own testimony,
Defendant Akers had no subjective intent to harm Plaintiff on December 6, and his shift
concluded before Plaintiff’s release from the restraint chair on that date.
In opposition to summary judgment, Plaintiff argues that judgment should not be

entered in favor of Akers based upon Akers’ testimony that he leaned back the restraint
chair. But Plaintiff does not allege that “leaning back” the chair caused any harm. So to
the extent that a factfinder were to accept Akers’ version of events, he did nothing that
would have violated the Eighth Amendment. Of course, Plaintiff testified that it was
Spoljaric who leaned the chair back and intentionally dropped it 12 inches to the floor,
resulting in pain and injury to Plaintiff’s head and neck. Thus, if Plaintiff’s version of events

18Akers’ affidavit differs from Defendants’ Answer in which they “admit that…Spoljar[ic] did lean the chair
back to allow for the restraint of the Plaintiffs feet.” (Doc. 16 at ¶42).
23
is accepted, Akers still did nothing violative of the Eighth Amendment. Because Akers
did nothing wrong in either version of events, he is entitled to summary judgment.
Plaintiff’s additional assertions that Akers’ conduct violated jail policies or
procedures concerning the placement of the chair or Plaintiff’s medical treatment does
not preclude judgment in Akers’ favor. Plaintiff’s claim against Akers is limited to the

excessive use of force; the complaint does not allege that Plaintiff advised Akers of any
serious medical need.19
C. Eighth Amendment Claims Against Spoljaric and Hatfield
Plaintiff’s Eighth Amendment claims against Spoljaric and Hatfield are based upon
his testimony that those two Defendants entered his cell and physically assaulted him
without cause, and with a subjective intent to harm him, in reaction to Plaintiff’s verbal
“smart ass” remark to Hatfield. (Doc. 47-1 at 23). Plaintiff claims that both Hatfield and
Spoljaric used excessive force and caused physical harm during the assault in the cell,
and subsequently, when he was first placed in a restraint chair and Spoljaric “dropped”

the chair and applied excessively tight restraints with a subjective intent to cause him
pain.20 Plaintiff further alleges that Spoljaric (but not Hatfield) violated the Eighth
Amendment by restraining him a second time in the chair during the early morning hours
of December 7, when Spoljaric again intentionally dropped the chair backwards, secured
him with excessively tight restraints, and left him unattended for hours without checking
on his condition.

19Plaintiff testified that he first asked Spoljaric for Tylenol and a sick call form after his release from the
restraint chair hours later –by which time Akers’ shift had concluded.
20Defendant Hatfield was present during the first restraint on December 6 but Plaintiff does not allege his
involvement in the second restraint.
24
In Williams v. Curtin, 631 F.3d 380 (6th Cir. 2011), the Sixth Circuit summarized
the subjective and objective elements required to prove an Eighth Amendment claim:
Although prison discipline may require that inmates endure relatively
greater physical contact, the Eighth Amendment is nonetheless violated if
the “offending conduct reflects an unnecessary and wanton infliction of
pain.” Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir.1995) (internal
alterations and quotation marks omitted). To make out a claim under the
Eighth Amendment, the prisoner must satisfy both an objective and a
subjective component. See, e.g., Moore v. Holbrook, 2 F.3d 697, 700 (6th
Cir.1993).

The subjective component focuses on the state of mind of the prison
officials. The relevant inquiry is “whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6, 112
S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal quotation marks omitted).
Courts may consider “the need for the application of force, the relationship
between the need and the amount of force that was used, and the extent of
injury inflicted.” Whitley, 475 U.S. at 321, 106 S.Ct. 1078. Courts may also
consider the circumstances “as reasonably perceived by the responsible
officials on the basis of the facts known to them, and any efforts made to
temper the severity of a forceful response.” Id.

The objective component requires the pain inflicted to be “sufficiently
serious.” Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d
271 (1991). This is a “contextual” inquiry that is “responsive to contemporary
standards of decency.” Hudson, 503 U.S. at 8–9, 112 S.Ct. 995 (internal
citation and quotation marks omitted). The seriousness of the injuries are
not dispositive; as the Supreme Court has held, “[w]hen prison officials
maliciously and sadistically use force to cause harm, contemporary
standards of decency always are violated ... whether or not significant injury
is evident.” Id. at 9, 112 S.Ct. 995; see also Wilkins v. Gaddy, 559 U.S. 34,
130 S.Ct. 1175, 1178, 175 L.Ed.2d 995 (2010) (per curiam).

Id., 631 F.3d at 383.

Defendants argue that there is insufficient evidence of any malevolent subjective
intent, citing the affidavits of Hatfield and Spoljaric that the only force they used was
“reasonably necessary” in order to secure a combative inmate who initiated a physical
attack when they entered his cell in order to remove him for “observation” and in order to
25
quell his verbal “commotion.” However, on summary judgment, the Court cannot merely
consider the Defendants’ affidavits and evidence; the Court also must consider any
contrary evidence, including but not limited to Plaintiff’s testimony. The record as a whole
reveals significant disputed issues of material fact concerning Defendants’ subjective
intentions both when they first entered Plaintiff’s cell on December 6, and when they later

placed Plaintiff in the restraint chair. In short, the undersigned cannot grant judgment to
Defendants Hatfield and Spoljaric because the record is unclear as to whether their
actions were undertaken “maliciously and sadistically” and amounted to the “unnecessary
and wanton infliction of pain.” See, e.g., Hammond v. Lapeer County, 133 F. Supp. 899
(E.D. Mich. 2015) (concluding that issues of fact precluded summary judgment on claims
by prisoner held on civil contempt that jail deputies applied force in violation of Eighth
Amendment standards), abrogated in part by Hopper v. Phil Plummer when it established
that Fourteenth Amendment standard, and not Eighth Amendment, should apply to civil
contemnors.

Although the objective component presents a somewhat closer issue, Defendants
also are not entitled to summary judgment on that element. Defendants argue that
Plaintiff offers insufficient evidence of “sufficiently serious” injury. In support for that
premise, Defendants cite a logbook entry that Plaintiff “refused medical treatment” while
at the jail. (Doc. 71 at 9). However, Plaintiff testified that the Defendants falsely recorded
that he refused medical treatment at the jail, and there are a number of records that
suggest that Plaintiff did in fact request such treatment prior to his departure from the jail
on December 7 as well as upon his arrival at CRC.

26
Medical records reflect lacerations, bruises, and swelling sufficiently serious for the
medical examiners to order x-rays, even though x-rays confirmed the absence of any
broken bones other than a finger in Plaintiff’s right hand. Although Plaintiff’s injuries
appear to have been relatively minor, the undersigned cannot say that the injuries were
so “de minimis” that no claim can lie, particularly in light of the unresolved issues

concerning Defendants’ subjective intentions.21 The Supreme Court has rejected a higher
threshold for injury, explaining that otherwise, “the Eighth Amendment would permit any
physical punishment, no matter how diabolic or inhuman, inflicting less than some
arbitrary quantity of injury.” Hudson v. McMillian, 503 U.S. at 9, 112 S.Ct. 995; see also
Wilkins v. Gaddy, 130 S.Ct. at 1177 (reversing dismissal of Eighth Amendment claim
where inmate alleged he was assaulted in retaliation for requesting a grievance form and
emphasizing that judicial inquiry should focus on “the nature of the force rather than the
extent of the injury.”).
Injury and force… are only imperfectly correlated, and it is the latter that
ultimately counts. An inmate who is gratuitously beaten by guards does
not lose his ability to pursue an excessive force claim merely because he
has the good fortune to escape without serious injury.

Id., 130 S.Ct. at 1178-79.
The alleged use of excessively tight restraints presents similarly close issues.
Although most cases of excessively tight restraints arise under the Fourth Amendment as
opposed to the Eighth Amendment, Sixth Circuit precedent makes clear that evidence of
swelling and bruising often is sufficient to overcome summary judgment on such claims:

21Plaintiff also testified to continuing nerve damage in his arm, for which he complains he has been unable
to obtain an MRI and alleges a continuing exacerbation of mental health symptoms.
27
Our precedent establishes that this evidence is sufficient for Baynes to
survive summary judgment. See Morrison, 583 F.3d at 402–403 (holding
that the plaintiff's testimony that she suffered wrist marks and bruising from
the handcuffs was sufficient to establish the necessary “physical
injury”); Martin v. Heideman, 106 F.3d 1308, 1310, 1312–13 (6th Cir.1997)
(reversing the district court's award of qualified immunity, ruling that a
genuine issue of material fact existed as to whether the defendant officer
used excessive force under the circumstances where plaintiff complained
of excessive force by being handcuffed so tightly that his hands became
numb and swollen during the ride to jail and wait in a holding cell).

Baynes v. Cleland, 799 F.3d 600, 609 (6th Cir. 2015); Morrison v. Board of Trustees of
Green Tp., 583 F.3d 394, 403 (6th Cir. 2009) (collecting cases and holding that bruising
can support excessive use of force claim based on handcuffing). Based upon Plaintiff’s
testimony, the undersigned concludes that summary judgment cannot be granted on
Plaintiff’s Eighth Amendment claims against Hatfield and Spoljaric.
D. First Amendment Claim Against Akers and Hatfield
In his First Amendment retaliation claim, Plaintiff alleges that the Defendants
retaliated against him asking for medication, a sick call form, and a grievance close to
midnight on December 6. Plaintiff testified that he made these requests to Defendant
Spoljaric, and that it was Spoljaric who subsequently placed Plaintiff back in the restraint
chair for 5-6 hours in retaliation for his requests. There is no dispute that neither Akers
nor Hatfield were present at the jail by the time Plaintiff was released from the restraint
chair the first time. (Doc. 47-1 at 45-47). Unsurprisingly since they appear to have left
the premises, Plaintiff does not allege that Hatfield or Akers took part in placing him in the
restraint chair a second time on December 7. Because neither of those Defendants
played any role in the alleged First Amendment violation, both are entitled to summary
judgment on this claim.
28
E. First Amendment Claim Against Spoljaric
By contrast, Defendant Spoljaric is not entitled to summary judgment on Plaintiff’s
First Amendment claim. Defendants argue that this Court should grant judgment in
Spoljaric’s favor because Plaintiff’s claims are “unsubstantiated” and based upon
“contradictory stories” between the Complaint and Plaintiff’s testimony.22 (Doc. 48 at 17).

However, in many cases discrepancies will arise after discovery between the complaint
and the evidence presented on summary judgment or at trial. Rule 56 requires a focus
on the evidence; a complaint is not evidence. The fact that the record as developed
(including but not limited to Plaintiff’s own testimony) differs slightly from the allegations
in the complaint may provide grounds for cross-examination but does not provide grounds
for granting summary judgment.
In addition to pointing out the inconsistencies between the complaint and Plaintiff’s
testimony, Defendants argue that Spoljaric should be granted summary judgment based
upon his testimony that he does not “recall” Plaintiff asking him for a grievance from.

Defendants assert that because there is no record of Plaintiff having turned in a written
grievance, there is “no basis to establish” that Plaintiff ever asked Spoljaric for a
grievance. Defendants’ arguments ignore Plaintiff’s contrary deposition testimony, which
creates a genuine issue of material fact that precludes summary judgment.
Defendant further argues that he should be granted summary judgment because
there is no evidence that Plaintiff successfully filed a written grievance while still at the

22For example, the complaint alleges that Plaintiff requested a sick call and grievance form from Deputy
Brandt. (Complaint at ¶54). However, in his deposition testimony, Plaintiff clarified that he recalled asking
Defendant Spoljaric for the forms and that Spoljaric both denied his request and retaliated in anger.
29
jail. Defendant argues that “the First Amendment protects an individual from retaliation
for filing, not merely requesting, a grievance form.” (Doc. 48 at 18). Thus, Spoljaric
argues that even if he retaliated against Plaintiff with physical violence after denying
access to the jail’s grievance form, he could not be held liable so long as Plaintiff did not
somehow obtain a copy of the form from some other source and file it prior to the

retaliatory violence.23 Aside from the logical absurdity of that proposition, the relevant
case law does not support it.24
Nothing in the First Amendment itself suggests that the right to petition for
redress of grievances only attaches when the petitioning takes a specific
form.” Holzemer v. City of Memphis, 621 F.3d 512, 521 (6th Cir. 2010)
(finding that a conversation constituted protected petitioning activity)
(quoting Pearson, 471 F.3d at 741). While we recognize concerns about
opening the floodgates to frivolous prisoner lawsuits, “we are not persuaded
that an oral grievance should not receive constitutional protection solely
because it is lodged by a prisoner as opposed to a civilian.” Mack, 839 F.3d
at 298. A “prisoner[ ] retain[s] the constitutional right to petition the
government for the redress of grievances.”

Maben v. Thelen, 887 F.3d 252, 265 (6th Cir. 2018) (quoting Turner v. Safley, 482 U.S.
78, 84 (1987) (additional citation omitted)); see also Kennedy v. Bonevelle, 413 Fed.
Appx. 836, 839-840 (6th Cir. March 3, 2011).

F. Qualified Immunity

23Defendants argue that the only evidence of any grievance was Plaintiff’s verbal complaint to the Jail
Administrator after the incident occurred. Plaintiff testified that he made a verbal grievance to “Billy Winters
and Robert Bowles” on December 7, just before he was taken to state court. (Doc. 47-1 at 60-61). As
stated infra, Winters’ “Grievance Response” attached as an exhibit to Defendants’ motion is dated
December 6, coinciding with the date (but not the time) of the first incident and prior to Plaintiff being placed
in the restraint chair a second time. (Doc. 48-16).
24Defendant cites to case law that is based upon different “due process” claims filed by prisoners, rather
than the type of First Amendment retaliation claim at issue here.
30
Defendants argue that they are entitled to qualified immunity because “no
constitutional violation occurred.” For the reasons stated, the undersigned concludes that
significant issues of material fact preclude granting summary judgment on Plaintiff’s
Eighth Amendment claims against Defendants Hatfield and Spoljaric and on Plaintiff’s
First Amendment claim against Spoljaric. For the same reasons, summary judgment

cannot be granted on qualified immunity on those claims.25
G. Injunctive and Declaratory Relief
Defendants argue that they are also entitled to judgment on all claims for injunctive
and declaratory relief, because Plaintiff was only briefly incarcerated at the county jail and
remains in the custody of the state. The undersigned agrees that Plaintiff’s request for
injunctive and declaratory relief appears to be moot, assuming that the state does not
intend to move Plaintiff back to the jail. At the same time, if this R&R is adopted by the
presiding district judge, the Court is likely to appoint counsel for Plaintiff prior to trial on
the remaining claims. In order to allow prospective counsel to be heard on the issue of

whether the claims for injunctive and/or declaratory relief are fully moot, the undersigned
recommends denying this portion of Defendants’ motion without prejudice to renew.
V. Plaintiff’s Motion to Strike and Motion for Summary Judgment
Plaintiff has filed a motion to strike Defendants’ motion for summary judgment as
well as a counter-motion seeking summary judgment in Plaintiff’s favor. The undersigned
finds no basis for striking Defendants’ motion or for excluding use of the transcript of
Plaintiff’s deposition.

25Defendant Akers (alone) is entitled to qualified immunity based upon the lack of any evidence from which
a jury could find that he violated any clearly established constitutional right.
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Defendants declined to file any response to Plaintiff’s motion for summary
judgment, citing the motion’s untimeliness under this Court’s dispositive motion deadline.
Even if the undersigned were to fully consider Plaintiff’s untimely motion, the undersigned
would recommend denial of it for the same reasons that Defendants’ motion should be
denied. Thus, the existence of multiple genuine issues of material fact preclude the entry

of judgment to either party.
VI. Plaintiff’s Motion to Compel Additional Discovery
Plaintiff filed a motion to compel additional discovery, stating that he has “made
several attempts to propound the documents and answers and defendant have only
allowed discovery to toll and plaintiff unanswered.” (Doc. 54). In opposition to Plaintiff’s
motion, Defendants argue that Plaintiff has not fully exhausted “all” extrajudicial efforts to
resolve the discovery disputes and failed to first seek an informal telephone conference
prior to filing his motion.26 Without elaboration, Defendants further argue that they should
not be required to respond to requests to which they have previously responded.

Plaintiff’s motion to compel additional discovery will be denied at this time, without
prejudice to renew if this Report and Recommendation is adopted.
VII. Conclusion and Recommendations
Accordingly, IT IS RECOMMENDED THAT:
1. Defendants’ motion for summary judgment (Doc. 48) should be GRANTED in
part and DENIED in part;

26Local Rule 37.1 states that any party “may” first seek an informal telephone conference. Moreover, due
to Plaintiff’s current incarceration this request for an informal conference is typically waived.
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a. For the reasons stated, the undersigned concludes that significant issues
of material fact preclude granting summary judgment on Plaintiff’s Eighth
Amendment claims against Defendants Hatfield and Spoljaric and on
Plaintiff’s First Amendment claim against Spoljaric;
b. In order to allow prospective counsel to be heard on the issue of whether

the claims for injunctive and/or declaratory relief are fully moot, the
undersigned also recommends denying Defendants’ motion for summary
judgment on that claim, but without prejudice to renew;
c. In all other respects, the Defendants’ motion should be granted;
2. Plaintiff’s motion to strike and motion for summary judgment (Docs. 61, 69)
should be DENIED;
3. Plaintiff’s motion to compel (Doc. 54) should likewise be DENIED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374816. Public record. Not legal advice.