McDougald v. Clagg

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERONE MCDOUGALD, Case No. 1:18-cv-93

Plaintiff,

Cole, J.

v. Bowman, M.J.

ROSEANNA CLAGG et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff Jerome McDougald, who is a frequent pro se filer in this Court,1 filed an

action under 42 U.S.C. § 1983 alleging various violations of his civil rights while

incarcerated at the Southern Ohio Correctional Facility. On March 15, 2019, Defendants

Roseanna Clagg, David Conley, Nurse L. Hart, Jeremy Eaches, William Bauer, and Jason

Joseph (collectively “Defendants”) filed a motion for summary judgment (Doc. 55). For

the following reasons, the undersigned RECOMMENDS THAT Defendants’ motion for

summary judgement be granted and that his case be dismissed.

1 As of this date, plaintiff has filed over 20 cases in the Southern District of Ohio. See McDougald .v Eddy,

2:19-cv-257 (TSB; SKB) (S.D. Ohio Oct. 21, 2019); McDougald v. Erdos, 1:19-cv-107 (TSB; SKB) (S.D.

Ohio Feb. 11, 2019); McDougald v. Eddy, 2:19-cv-257 (TSB; SKB) (S.D. Ohio Jan. 25, 2019); McDougald

v. Smoot, 1:19-cv-50 (SJD; KLL) (S.D. Ohio Jan. 22, 2019); McDougald v. Bear, 1:18-cv-498 (TSB; KLL)

(S.D. Ohio July 23, 2018); McDougald v. Erdos, 1:18-cv-135 (MRB; SKB) (S.D. Ohio Feb. 23, 2018);

McDougald v. Clagg, 1:18-cv-93 (TSB; SKB) (S.D. Ohio Feb. 9, 2018); McDougald v. Eaches, 1:18-cv-80

(MRB; SKB) (S.D. Ohio Feb. 5, 2018); McDougald v. Erdos, 1:17-cv-464 (MRB; SKB) (S.D. Ohio July 10,

2017); McDougald v. Dillow, 1:17-cv-196 (MRB; KLL) (S.D. Ohio Mar. 27, 2017); McDougald v. Dunlap,

1:17-cv-127 (MRB; SKB) (S.D. Ohio Feb. 24, 2017); McDougald v. Bear, 1:17-cv-124 (MRB; SKB) (S.D.

Ohio Feb. 21, 2017); McDougald v. Erdos, 1:17-cv-95 (SJD; SKB) (S.D. Ohio Feb. 10, 2017); McDougald

v. Sammons, 1:17-cv-91 (MRB; SKB) (S.D. Ohio Feb. 10, 2017); McDougald v. Lt. Stone, 1:17-cv-72 (SJD;

SKB) (S.D. Ohio Feb. 1, 2017); McDougald v. Dillow, 1:16-cv-1099 (MRB; SKB) (S.D. Ohio Nov. 23, 2016);

McDougald v. Eaches, 1:16-cv-900 (SJD; KLL) (S.D. Ohio Sept. 6, 2016); McDougald v. Davis, 1:16-cv-

633 (SJD) (June 10, 2016); McDougald v. Davis, 2:16-cv-545 (GCS; KAJ) (S.D. Ohio June 10, 2016);

McDougald v. Ahmad, 1:16-cv-500 (SJD; SKB) (S.D. Ohio Apr. 28, 2016); McDougald v. Esham, 1:16-cv-

497 (SJD; KLL) (S.D. Ohio Apr. 27, 2016); McDougald v. Mahlman, 1:16-cv-317 (TSB; SKB) (S.D. Ohio

Feb. 16, 2016); McDougald v. Timberlake, 1:08-cv-744 (MRB; JGW) (S.D. Ohio Oct. 29, 2008).

I. Background

Plaintiff’s complaint contains rambling, conclusory allegations and is devoid of

factual explanation of the incident leading to his suit. (See Doc. 1). Therefore, the

background facts provided here are supported by declarations and affidavits submitted

by the various Defendants, along with Plaintiff’s medical records. On September 28, 2017,

Officers Jason Joseph (“Joseph”), Jeremy Eaches (“Eaches”), and William Bauer

(“Bauer”) approached Plaintiff’s cell after reports that he smeared feces on the wall.

(Exhibit B, Declaration of William Cool; Exhibit C, Use of Force Packet; Exhibit D, RIB

Packet; Affidavit of Jeremy Eaches at ¶2, Doc. 52; McDougald Dep., pp. 28:1-10, 30:9-

13, Doc. 54). When they arrived, Plaintiff requested to see mental health. (Doc. 55,

Exhibit C; Eaches Aff. at ¶5, Doc. 52; McDougald Dep., p. 28:14-15, Doc. 54). Officers

requested that Plaintiff come to the front of his cell, but Plaintiff failed to comply, resulting

in Joseph disbursing pepper spray into the cell. (Doc. 55, Exhibit C; Eaches Aff. at ¶8,

Doc. 52). Plaintiff tried to run out of his cell and, as he was running toward the cell door,

he grabbed for Joseph, causing all officers to take Plaintiff to the ground. (Doc. 55, Exhibit

C; Eaches Aff. at ¶9, Doc. 52). While on the ground, McDougald tucked his arms

underneath his body and refused orders to remove his arms so he could be handcuffed.

Id.

The struggle with Plaintiff resulted in Plaintiff being struck with a PR-24 baton as

well as fists of the officers. Id. at ¶¶ 10-13. The officers then escorted Plaintiff to the

infirmary, during which Plaintiff repeatedly went limp, causing both himself and Joseph to

fall down. Id. at ¶¶ 14-17. Plaintiff received treatment at Adena Pike Regional Medical

Center and OSU Wexner Medical Center and was diagnosed with a fractured orbital

bone, swollen shoulder, swollen hands, a chipped tooth, and swollen jaw. (Doc. 54,

McDougald Dep., p. 70:7-16, Exhibit E, Declaration of Bertha Goodman; Exhibit F,

McDougald’s medical records from SOCF, pp. 224-225). Plaintiff received follow-up

medical care at SOCF with no indication that outside care was necessary. (Doc. 55,

Exhibit F, McDougald’s SOCF medical records).

II. Standard of Review

Summary judgment is appropriate when “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The party seeking summary judgment bears the initial “responsibility of informing

the district court of the basis for its motion, and identifying those portions” of the record

that demonstrate “the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmoving party to “set

forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986); see id. at 255 (“The evidence of the nonmovant is

to be believed, and all justifiable inferences are to be drawn in his favor.”) (citing Adickes

v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). A genuine issue of material fact exists

if a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at

248. Consequently, the central issue is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Id. at 251–52.

A. Judicial Notice of Similar Claims by Plaintiff

Prior to examining the specific facts at issue here, the undersigned takes judicial

notice that Plaintiff has filed many other cases in this Court containing similar allegations.

Plaintiff has alleged that various SOCF officials have used excessive force against him

by using pepper spray and exhibited deliberate indifference to his serious medical needs.

Compare, e.g., McDougald v. Dillow, Case No. 1:17-cv-19 6, 2018 WL 3825894 (S.D.

Ohio Aug. 10, 2018) (summary judgment granted on claims that prison officials deployed

pepper spray and conducted a cell search in retaliation for plaintiff’s history of filing

institutional complaints); McDougald v. Esham, Case No. 1:16-cv-497, 2018 WL 1010214

(S.D. Ohio Feb. 21, 2018) (summary judgment granted on claims that prison officials used

excessive force in spraying plaintiff with pepper spray on two occasions, and denied him

medical treatment following the exposure); McDougald v. Eaches, Case No. 1:16-cv-900,

2018 WL 3966245 (S.D. Ohio Aug. 17, 2018) (summary judgment granted on First and

Eighth Amendment claims relating to use of pepper spray and alleged denial of

decontamination); McDougald v. Dillow, Case No. 1:16-cv-1099, 2018 WL 3676084 (S.D.

Ohio Aug. 2, 2018) (summary judgment granted on First and Eighth Amendment claims

relating to use of pepper spray and alleged refusal to provide decontamination);

McDougald v. Erdos, Case No. 1:17-cv95, 2018 WL 3772181 (S.D. Ohio Aug. 9, 2018)

(summary judgment granted on Eighth and Fourteenth Amendment claims relating to use

of pepper spray and alleged refusal of medical attention and decontamination);

McDougald v. Bear, Case No. 1:17-cv-124, 2019 WL 652501 (S.D. Ohio Feb. 15, 2019)

(granting summary judgment on claim that defendants used excessive force and were

deliberately indifferent to his medical needs in pepper spray incident); McDougald v.

Erdos, Case No. 1:19-cv-107 (Doc. 2, R&R filed Feb. 28, 2019, denying motion to proceed

in forma pauperis on Eighth Amendment claims involving alleged use of pepper spray on

August 7, 2017 and four other dates); McDougald v. Smoot, Case No. 1:19-cv-50, 2019

WL 955030 (S.D. Ohio Feb. 27, 2019) (R&R recommending denial of in forma pauperis

status for claims alleging use of pepper spray and failure to provide medical attention on

numerous occasions); McDougald v. Bear, Case No. 1:18-cv-498, 2019 WL 954748 (S.D.

Ohio Feb. 27, 2019) (dismissal of pepper spray claim due to “three strikes” history). Here,

the use of pepper spray and failure to provide medical attention is included as one of

several Eighth Amendment claims.

Notwithstanding the similarity of these cases, the undersigned takes seriously this

Court’s obligation to examine the facts and evidence presented in each case on its own

merits. In other words, the undersigned does not assume that because Plaintiff has made

such similar claims in the past, he is “crying wolf” in this case, nor does the undersigned

assume that “where there is smoke, there is fire.” Rather, the undersigned takes judicial

notice of the prior similar cases because, examining closely the well-supported motion for

summary judgment filed in this case, the Court’s prior legal analysis applies equally to the

facts presented here.

B. Defendants’ Motion for Summary Judgment

1. Plaintiff Cannot Show Excessive Use of Force

All Defendants are entitled to summary judgment for many of the same reasons

stated in other pepper spray cases involving Plaintiff; namely, that the undisputed facts

reflect that the use of pepper spray was appropriate and proportional to Plaintiff’s

disruptive behavior. The evidence of record shows that Defendant Joseph deployed

pepper spray in direct response to Plaintiff’s actions, which included smearing feces on

the wall and self-inflicting injury by banging his head against the wall. (See Doc. 55, Exs.

A, B, C).

The Eighth Amendment prohibition against cruel and unusual punishment prohibits

only the deliberate use of force by a prison official that is “excessive and unjustified.”

Cornwall v. Dahlberg, 963 F.2d 912, 915 (6th Cir. 1992) (internal quotation marks and

additional citation omitted). On the other hand, “the good faith use of physical force in

pursuit of valid penological or institutional goals will rarely, if ever, violate the Eighth

Amendment.” Parris v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986).

All of the evidence, including the video, support Defendants’ version of the facts.

In opposing Defendants’ properly supported motion for summary judgment, Plaintiff must

“designate specific facts in affidavits, depositions, interrogatories, or other factual

material” from which a reasonable jury could find in his favor. Maston v. Montgomery

Cnty. Jail Med. Staff Personnel, 832 F. Supp. 2d 846, 849 (S.D. Ohio 2011). In this case,

Plaintiff merely responded by reemphasizing his conclusory allegations that Defendants

are participating in a “cover up” (Doc. 78 at 7) and that Defendants “fabricated a false

version of events” (Doc. 78 at 4). In response to Defendants’ motion for summary

judgement, Plaintiff provided declarations from fellow inmates. See Doc. 78, Ex. 1; Doc.

79, Ex. 1). Notably, none of the inmate declarants actually witnessed the events that

occurred between the officers and McDougald inside of McDougald’s cell. (Doc. 78-1,

Page ID # 951-953). While the declarants each claim they heard McDougald yell that “he

was not resisting,” none of the declarants can provide statements regarding whether

McDougald actually resisted any of the officers’ commands, as they could not see inside

McDougald’s cell. Id. Any statements based on whether McDougald complied with or

resisted any direct commands are purely speculative.

Moreover, as noted by Defendants, despite video evidence to the contrary, three

of the declarants, in surprisingly similar terms, stated he witnessed a sheet wrapped

around McDougald’s neck when he was escorted out of his cell.

• “he had a sheet around his neck that he didn’t have the first time he was

out of his cell attempting to escape…” (Declaration of Cory Black, Doc. 78-

1; Page ID # 951).

• “McDougald was brung out of his cell looking as though he was severely

beaten with a sheet wrapped around his neck that wasn’t there when I saw

him on the range attempting to escape…” (Declaration of Jacob Tolle, Doc.

78-1, Page ID # 952).

• “He appeared unconscious with something around his neck he didn’t have

the first time I saw him out the cell.” (Declaration of Phillip Bloodworth, Doc.

78-1, PAGE ID # 953).

Despite these assertions, Video 524-171 directly contradicts these statements.

Video 524-17 does show McDougald’s arm and foot extend beyond the door of his cell.

(Video 524-17 at 5:36:13-5:36-16). It also shows McDougald’s backside and leg as

officers attempt to restrain McDougald and prevent his attempted escape. (Video 524-17

at 5:36:17-5:36-33). At no time does McDougald’s torso, head, or neck emerge from the

interior of his cell. Additionally, the video clearly shows that a white object - whether it is

a sheet or McDougald’s shirt is unclear - is wrapped around McDougald’s shoulders, and

behind his head, not around his neck. (Video 524-17 at 5:39:25-5:39:27). Furthermore,

McDougald has not made any allegations that any sheet or other cloth object was used

in any exhibit of force against him.

This Court and others repeatedly have held that the use of pepper spray in

response to an inmate who is disruptive, aggressive, and spitting at corrections officers

is not disproportionate to the need to control an unruly inmate and does not satisfy the

subjective component of an Eighth Amendment claim. See Easley v. Little, 2016 WL

4006676 at *7 (S.D. Ohio 2016) (“A short burst of pepper spray is not disproportionate to

the need to control an inmate who has failed to obey an order.”); McDougald v. Bear,

Case No. 1:17-cv-124 (R&R filed Feb. 15, 2019) (collecting cases); McDougald v. Erdos,

1:17-CV-95, (R&R filed 8/9/18 at 9-10 (same)); McDougald v. Dillow, Case No. 1:16-cv-

1099 (R&R filed 8/2/18 at 7, 10-11 (same)); McDougald v. Eaches, Case No. 1:16-cv-900

(R&R filed 8/17/18 at 10 (same)). Here, Plaintiff was engaging in unruly and aggressive

behavior, which warrants the authorized use of pepper spray in this case.

As set forth in Defendants’ Motion for Summary Judgment, a thorough use of force

investigation was conducted and the investigation found that the force used by Joseph,

Eaches, and Bauer was reasonable and justified based on McDougald’s behavior and

repeated failure to follow direct orders and his violation of multiple rules of the Inmate

Code of Conduct. (See Doc. 55, Exhibit C; Exhibit D, Exhibit G to Defendants’ Motion for

Summary Judgment). The investigation resulted in a finding that McDougald violated

multiple rules of the Inmate Rules of Conduct regarding his interactions with Joseph,

Eaches, and Bauer on September 28, 2017. Specifically, McDougald was found to have

violated Rules 3, 20 and 21. (See Defendants’ Motion for Summary Judgment, Exhibit D,

RIB Packet; Exhibit G, Inmate Rules of Conduct, Oh. Admin. Code 5120-9-06).

McDougald does not dispute these facts.

2. Plaintiff Cannot Show Deliberate Indifference to Medical Needs

To establish a violation of Eighth Amendment rights from a denial of medical care,

McDougald must show that prison officials acted with “deliberate indifference to his

serious medical needs.” McDougald v. Erdos, S.D. Ohio, No. 1:17-CV-95, 2018 WL

3772181, at *4 (Aug. 9, 2018), report and recommendation adopted, S.D. Ohio, No.

1:17CV95, 2018 WL 4334606 (Sept. 11, 2018), quoting Estelle v. Gamble, 429 U.S. 97,

104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A constitutional claim for denial of medical care

has both objective and subjective components. Id. (citing Farmer v. Brennan, 511 U.S.

825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The objective component requires

the existence of a “sufficiently serious” medical need. Farmer, 511 U.S. at 834, 114 S.Ct.

1970. The subjective component requires an inmate to show that prison officials had “a

sufficiently culpable state of mind” in denying medical care by showing that the official:

(a) subjectively knew of a risk to the prisoner’s health; (b) drew the inference that a

substantial risk of harm to the prisoner existed; and (c) consciously disregarded that risk.

Farmer, 511 U.S. at 834-37

Objectively, despite the (intentional) immediate impact of the pepper spray, there

is no evidence that it caused anything more than temporary discomfort. The Court takes

note of strikingly similar and conclusory allegations made in Plaintiff’s prior cases, in

which Plaintiff also failed to come forward with evidence that would create a genuine issue

of material fact in opposition to motions for summary judgment. See McDougald v.

Eaches, Doc. 58 at 12-14 (R&R holding that Defendants were entitled to summary

judgment on pepper spray claim, based upon evidence that Plaintiff was offered

decontamination and was seen by a nurse shortly after being pepper spray, and failure

of plaintiff to establish that “any medical diagnosis made him particularly vulnerable to

chemical agent exposure” or any “serious medical need beyond the normal effects

associated with pepper spray exposure”). McDougald received pepper spray

decontamination procedures at the infirmary. (Doc. 55, Exhibit C; Eaches Aff. at ¶18, Doc.

52). Defendant L. Hart (“Hart”) assessed McDougald, and determined it was necessary

to send him to an outside medical facility for treatment. (Doc. 55, Exhibit C, pp. 065-066;

Eaches Aff. at ¶19). McDougald was only waiting in infirmary for about thirty minutes

before a proper transport could be arranged, and he was promptly transferred to Adena

Pike Medical Center for treatment. (Exhibit A). Thus, Plaintiff was timely transported to

receive outside medical care after the main incident and continued to receive follow-up

treatment. The behavior of Defendants after the incident does not show deliberate

indifference to medical needs. Rather, Plaintiff was adequately cared for by Defendants

both within SOCF and the external medical facilities.

3. Plaintiff Cannot Prove a Failure to Protect Claim

The Eighth Amendment requires prison officials to “take reasonable measures to

guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct.

1970 (1994). To establish an Eighth Amendment, claim against prison officials based

upon their failure to protect him from attack by other correctional officers, Plaintiff would

be required to present evidence showing that the officers’ conduct amounted to

“deliberate indifference” to a known risk of harm. Id. at 837.

Plaintiff cannot make this showing. There is no evidence that any of the

Defendants knew or should have known that Plaintiff faced an excessive risk of harm

during the incident at issue, during Joseph’s reactive deployment of pepper spray, or

immediately following the use of pepper spray. In fact, the only harm to Plaintiff was the

risk which Plaintiff himself created by his own rule violations and unruly behavior.

Therefore, Defendants are entitled to summary judgment on Plaintiff’s “failure to protect”

claim.

4. Qualified Immunity

There is no clearly established law that prohibits correctional officers from using

pepper spray in a reactive fashion as occurred in this case, following an inmate’s

commission of rule violations. Thompson v. Joseph, 2014 WL1685918 at *7 (S.D. Ohio

Apr. 29, 2014) (R&R), adopted at 2014 WL 2172894 (S.D. Ohio May 23, 2014) (qualified

immunity granted where “no reasonable officer would have understood that it violated the

Eighth Amendment to reactively aim chemical spray at Plaintiff in his cell for less than two

seconds…, in order to force a threatening inmate to retreat and restore order”);

McDougald v. Dillow, Case No. 1:16-cv-1099, Doc. 55 at 16 (R&R recommending that

Defendants be granted qualified immunity in light of Plaintiff’s failure of to show violation

of any clearly established constitutional right).

Because Plaintiff has failed to show any violation of his Eighth Amendment rights,

all defendants are also entitled to qualified immunity. See Phillips v. Roane County, 534

F.3d 531, 539 (6th Cir. 2008) (stating that in order to determine whether government

officials are entitled to qualified immunity, the court must first determine whether there

was any constitutional violation).

III. Conclusion and Recommendation

Accordingly, IT IS RECOMMENDED THAT Defendants’ motion for summary

judgment (Doc. 55) be GRANTED; Plaintiff’s motion to Proceed to Judgment (Doc. 89)

be DENIED as MOOT; and and that this case be CLOSED.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERONE MCDOUGALD, Case No. 1:18-cv-93

Plaintiff,

Cole, J.

v. Bowman, M.J.

ROSEANNA CLAGG ET AL.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS

of the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).