Moore v. Morgan

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JOHN C. MOORE III,

Plaintiff,

v. Case No. 1:16–cv–655

JUDGE DOUGLAS R. COLE

DONALD MORGAN, et al., Magistrate Judge Litkovitz

Defendants.

OPINION AND ORDER

This cause comes before the Court pursuant to the Magistrate Judge’s Report

and Recommendation (the “R&R”) (Doc. 99) recommending that this Court grant

Defendants’ Motion for Summary Judgment (Doc. 91). On November 6, 2019, Plaintiff

John Moore filed his Objections (Doc. 102), to which the Defendants responded (Doc.

105). As discussed below, after conducting a de novo review pursuant to 28 U.S.C.

§ 636(b)(1) and Federal Rule of Civil Procedure 72(b), this Court OVERRULES the

Objections (Doc. 102), ADOPTS the Report and Recommendation (Doc. 99), and

GRANTS Defendants’ Motion for Summary Judgment (Doc. 102).

BACKGROUND

On June 27, 2016, Plaintiff John Moore, proceeding pro se, filed a Complaint

against seventeen individuals and entities, including: the leadership staff at

Southern Ohio Correctional Facility (“SOCF”); various SOCF corrections officers,

lieutenants, and inspectors; the Ohio Department of Rehabilitation and Corrections,

the Ohio State Highway Patrol, and several other individuals, many of whom were in

charge of those entities. (See Compl., Doc. 3, #101–021). He alleged Eighth

Amendment violations related to events that occurred in April 2014, which can be

grouped into two categories: an alleged Eighth Amendment violation for excessive

force related to an incident on April 10, 2014, and another Eighth Amendment

violation for inhumane conditions during a week-long stay in segregation, following

the April 10, 2014 incident.

A. April 10, 2014: Moore Assaulted Officer Conkle And Was Escorted To

Segregation.

On April 10, 2014, Officer Conkle was patrolling the L-7 cellblock after inmates

returned from lunch. (“Conkle Incident R.,” Doc. 91, Ex. C., #737). As the relevant

events occurred in a prison, there is video that captures much of them. This is a useful

piece of evidence in the Court’s consideration of the underlying facts. See Scott v.

Harris, 550 U.S. 372, 378–81 (2007) (noting video evidence can be useful when there

are conflicting descriptions of events and that the Court of Appeals “should have

viewed the facts in the light depicted by the videotape” at summary judgment).

The video of the initial assault includes two camera angles, the latter of which

is more helpful in reviewing that incident. (See “Video A,” Doc. 91-1, Ex. A; R&R at

#1282–83). The video from this angle shows several cell doors opening and a number

of inmates entering the “range.” (Id. at 10:042). Moore and Officer Conkle enter the

frame at nearly the same time—Moore is upstairs on one side of the range; Officer

1 Reference to PageID Number.

2 As there are multiple camera angles covering the same period of time, the timestamp here

refers to the time elapsed in the video, not the date and time shown in the recording.

Conkle is upstairs on the opposite side. (Id. at 10:25). Between the two men, the

second floor opens to the first floor below. (Id.). Moore walks along the upstairs tier,

arrives at his cell, throws something inside, and then proceeds back the way he came.

(Id. at 10:37). At one point, he turns around and looks in Officer Conkle’s direction.

(Id. at 10:40). Officer Conkle continues along the range on the other side of the second

floor and descends the staircase to the first floor. (Id. at 11:02).

Moore reenters the picture on the first floor, opposite the stairs Officer Conkle

just descended, and proceeds directly toward him. (Id. at 11:13). At first, the two

engage in what appears to be a heated discussion, with Moore gesturing upstairs

toward his cell. (Id. at 11:20). Moore then steps toward Officer Conkle, who backs

away. (Id. at 11:32). Moore continues toward Officer Conkle, who appears to deploy

OC spray; Moore backs away momentarily and Officer Conkle steps towards him. (Id.

at 11:41). Moore then stops, turns, and lunges at Officer Conkle, swinging with his

left hand; both men crash into the wall. As Moore continues swinging, Officer Conkle

retreats to the middle of the range, tripping and falling to the ground. (Id. at 11:47–

11:54). Moore then stands over Officer Conkle for the next 16 seconds, using his right

hand to hold him down and his left to punch toward his head and facial area. (Id. at

11:54–12:10). Officer Conkle’s head can be seen hitting the floor multiple times. (Id.).

Within seconds, two responding officers arrive, tackling Moore off Officer

Conkle and forcing him to the ground. (Id. at 12:14). About ten seconds later, two

more officers arrive. (Id. at 12:30). One tends to Officer Conkle; the other assists with

restraining Moore. (Id.). Several more officers arrive; some restrain Moore while

others tend to Officer Conkle, who remains on the floor bleeding. (Id. at 12:49).

Eventually, officers get Moore to his feet and proceed to escort him out of the

range. (Id. at 13:06). They appear to lose their grip on him, forcing Moore against the

wall so they can regain control. (Id. at 13:10). Switching to the other camera angle,

the officers’ tussle with Moore continues. (Id. at 3:58). After regaining control, the

officers continue escorting Moore, who appears to continue struggling against them.

(Id. at 4:12). As the group approaches the stairs, the officers escorting Moore place

him against the wall at the base of the stairs so a medical gurney can pass. (Id. at

4:34). The pad to the gurney falls down the stairs, where it is retrieved by an officer,

and the officers escorting Moore attempt to ascend the stairs. (See id.). Either the

officers, Moore, or both, appear to lose their footing, and the group falls to the floor.

(Id. at 4:42). After again regaining control, the officers again stand Moore up,

continue up the stairs, and proceed out of the camera’s view. (Id. at 4:54–5:51).

There is no video in the record after Moore leaves the range, but officer incident

reports indicate that when they made it to the “L Corridor,” Lt. Dyer took over

escorting Moore. (Brabson Incident R., Doc. 91-3, #742). The group then headed to

the segregation unit, when Moore “again started pulling away and struggling and

had to be placed on the wall multiple times to maintain control of him.” (Dyer Incident

R., Doc. 91-3, #744). After placing Moore in the “strip cage” and conducting a strip

search, Moore was placed in “J2 cell 1.” (Id.). He was then checked by someone from

the SOCF medical team. (See, e.g., Brabson Incident R. at #742 (“ … all checked by

medical[.]”); Dyer Incident R. at #744 (“Staff and Inmate checked by Medical.”)).

Moore maintains that he suffered substantial injuries as a result of this

incident, including “pain, swelling, blood inside [his] mouth, and a black eye.” (Moore

Aff., Doc. 3, #116). Some injuries are corroborated by the Medical Exam Report taken

shortly after the incident. (See Med. Exam R., Doc. 3, #133–37). That report states

Moore had an “area under right eye with [a] swollen and bruised nickel sized swollen

knot by bottom lid. Inside of mouth cut right side. Left wrist swollen and bruised.

Right arm swollen and bruised.” (Id. at #133). Medical staff also x-rayed Moore’s left

hand, right forearm, and left wrist, which revealed “no acute findings.” (Id. at #134–

37).

B. April 10, 2014, Through April 17, 2014: Moore Was Housed In J-2,

SOCF’s Segregation Unit.

Following this incident, Moore was housed in a segregation unit known as J-2.

(Compl. at #107; Am. Compl., Doc. #36, #329). He was initially assigned, as noted

above, to cell J-2-1 and placed on “Constant Watch” for his own protection. (Compl.

at #107). While there, Moore alleges that he was deprived of all food, with the

exception of two “meals” over the course of seven days. (Id.). He alleges that he

received “scraps” of food, specifically “2x [he] got trays that had either been discarded

by someone else or that was missing the main entree.” (Id.). Moore was later

transferred to another cell, J-2-41, where he alleges that he was again denied “food,

bedding, hygiene products, writting [sic] utensils and clothing.” (Id. at #107–08). He

also alleges, at multiple points, that he was denied various medications. (Id.). In

support of these allegations, Moore submitted with his Complaint an affidavit in

which he avers that he was “held in J-2 segregation block from 4-10-14 thru [sic] 4-

17-14 without water, food clothing, bedding, hygiene and stationary products. The

cell’s toilet did not flush.” (Moore Aff., Doc. 3, #116). He further avers that he spoke

to prison employees about this, but “no-one took action to stop the abuse.” (Id.).

At the Magistrate Judge’s direction, Moore filed an amended complaint, which

makes similar, generalized allegations that he was deprived food, water (the water

in his cell was shut off), and hygiene products, that officers would not flush his toilet,

and that he was not permitted to go to “rec,” shower, or “wash up.” (Am. Compl. at

#329). The Amended Complaint does not track the initial Complaint and is devoid of

any allegation about deprivations of medicine. (See id.). These general arguments,

along with allegations of staged, forged, and withheld evidence, are repeated

throughout Moore’s response to Defendants’ Motion for Summary Judgment. (See

generally Pl.’s Resp. to Defs.’ Mot. for Summ. J., Doc. 95, #802).

Conversely, the Defendants offered video evidence from J-2 block and

Cadogan’s unsworn statement in support of summary judgment. As for the video, it

shows Moore disposing of food trays and boxes on April 11th. (“Video B,” Doc. 91-2,

Ex. B, #733, 00:10–00:523). It also shows him receiving food boxes on April 12th, 15th,

and 17th. (Id. at 01:01–01:47). In fact, the video from April 17th shows Moore

rejecting a meal, shoving the just-delivered food box out of the slot in his cell door.

(Id. at 02:34–02:44). Defendants also submitted an unsworn statement by Cadogan,

3 Again, as the video file contains multiple videos over multiple days, the timestamp refers

to the time elapsed in the video file, not the timestamp shown in the video itself.

who stated that on “Friday, April 11, 2014 [he] made rounds in the J-2 segregation

housing area between 12:28 PM and 12:38 PM.” (Cadogan Decl., ¶ 11, Doc. 91-4,

#771). He further stated that he did not work, and therefore did not make rounds, on

April 12th or April 13th. (Id. at ¶ 12.). And although he worked April 14th through

April 17th, he did not conduct rounds in J-2 segregation any of those days. (Id. at

¶¶ 13–14). Cadogan further stated that Moore did not raise any issues or complaints

to him, and if he had, that he would have taken the appropriate steps to address

them. (Id. at ¶ 10). Last, Defendants submitted the employee visit record for J-2,

during Moore’s time there, which indicates there was “med pass” by jail staff on April

12th, 13th, 14th, 15th, and 16th. (See Employee Visit R., Doc. 91-5, #773–782).4 Moore

disputes this and maintains that these incidents were violations of his Eighth

Amendment rights.

C. Procedural History.

Moore filed suit on June 17, 2016, but because he is incarcerated and

proceeding pro se, the action was referred to the Magistrate Judge by local rule. She

immediately dismissed the Ohio Department of Rehabilitation and Corrections, the

Ohio State Highway Patrol, SOCF Warden Gary Mohr, Keith Fellure, Sgt. Michael

Maughmer, Charles Miller, Lienna Mahlman, Joe Hale, and Antonio5 Lee. (See June

27 Order & R.&R., Doc. 5, #183–94, adopted, Doc. 16, #232). The Magistrate Judge

allowed Moore’s claim to proceed against Lt. Dyer, Sgt. Messer, and Officers Van

4 The R&R did not specifically address whether Moore received his medications on any given

day during his time in J-2, which is addressed below.

5 Mr. Lee is referred to as “Anthony,” “Antonin” and “Antonio” in different documents. This

is, it appears, the same person.

Sickle, Patrick, Morgan, and Deputy Warden Cadogan, plus unidentified John Doe

supervisors and corrections officers. (See id.).

Moore then attempted to amend his complaint by adding 19 more named

defendants (the “Additional Officers”), whom the Magistrate Judge permitted Moore

to serve on July 7, 2017. (See Order, Doc. 42, #360). This was immediately met with

a motion to dismiss by all the newly-added defendants. (See Doc. 45). The Magistrate

Judge recommended denying that motion, which Judge Dlott adopted.6 (See Doc. 64,

#591). After discovery, several Defendants were dismissed because Moore failed to

serve them. (See Doc. 89, #707).

On January 18, 2019, the remaining Defendants moved for summary

judgment. (See Defs.’ Mot. for Summ. J., Doc. 91, #710). At that time, the only

remaining claims were: (1) an Eighth Amendment inhumane treatment claim

asserted against Cadogan and the Additional Officers (McCoy, Lute, Richardson,

Barney, Faye, Laswell, Thornhill, Rowland, Shaw, Hoover, Scott, Crabtree, Miller,

Uhrig, Hale, and Cooper) based on Moore’s time in segregation; and (2) an Eighth

Amendment excessive force claim against Lt. Dyer, Sgt. Messer, and Officers Van

Sickle and Patrick, based on the role each played in connection with the response to

Moore’s attack on Officer Conkle. As to the inhumane treatment claim, Cadogan

argued that there were insufficient facts to establish that he was deliberately

indifferent, and the Additional Officers argued that Moore had not specifically named

them as participating in the alleged events. (See Defs.’ Mot. at #717). Lt. Dyer, Sgt.

6 This matter was reassigned to the undersigned judge on December 11, 2019.

Messer, and Officers Van Sickle and Patrick, on the other hand, sought to dismiss the

Eighth Amendment excessive force claim on the grounds that the undisputed facts

showed they had applied appropriate force. (Id.).

Four days later, on January 22, 2019, the Magistrate Judge issued a Notice to

Moore regarding the Defendants’ filing, warning him that failure to respond or doing

so and merely “rest[ing] on the allegations in [his] Complaint” could result in

judgment being entered against him. (Doc. 92, #793).

On February 27, 2019, Moore filed his Response. (See Pl.’s Resp., Doc. 95,

#797–812). In that filing, Moore provided detailed annotations of the videos

Defendants’ submitted, various General Orders issued by the United States District

Court for the Southern District of Ohio, several kites (prison complaint forms),

administrative appeals records, and two affidavits of other prisoners attesting to their

own experiences in the J-2 segregation block. (See id. at #813–833). He also attached

transcripts and exhibits from his jury trial stemming from his assault of Officer

Conkle. (See id. Ex. 1, 2, Docs. 95-1, 95-2, #834–1270). Defendants did not reply.

D. Moore’s “Objections” And The Defendants’ Response.

The Magistrate Judge issued her Report and Recommendation on September

6, 2019, recommending this Court grant the Defendants’ Motion for Summary

Judgment. (See R&R at #1280–96). Specifically, she recommended that summary

judgment was proper as to the excessive force claim because “the officer[s] used

minimal force to restrain [P]laintiff and protect Officer Conkle” and Moore “failed to

submit any evidence that creates a genuine issue of fact as to whether [D]efendants’

use of force was reasonable under the circumstances.” (See id. at #1290).

She further recommended granting summary judgment as to the inhumane

treatment against Cadogan because Moore could not establish either the objective or

subjective prongs of that claim. First, she found that Moore did not suffer from

objectively inhumane treatment while in solitary confinement. (Id. at #1292). The

Magistrate Judge further found that even if he had, Cadogan did not act with

deliberate indifference to Moore’s conditions of confinement. (Id. at #1293–94).

Finally, the Magistrate Judge recommended summary judgment for the Additional

Officers because Moore failed to show that they were individually involved with, let

alone deliberately indifferent to, his conditions of confinement while he was in

segregation. (Id. at #1293–94).

Moore responded to the R&R by filing a “Motion In Opposition To Summary

Judgement.” (See Pl.’s Mot. in Opp. to Summ. J. (“Obj.”), Doc. 102, #1300–15). While

that is not the appropriate label for his filing, as Moore is appearing pro se, the Court

construes this as an objection to the R&R. See, e.g., Walker v. Joyce, No. 3:15-cv-136,

2016 WL 8669788, at *1 n.1 (S.D. Ohio July 8, 2016) (construing a pro se plaintiff’s

memorandum in opposition to a motion to dismiss, filed while the R&R was pending,

instead as an objection to the R&R). Instead of objecting to specific portions of the

R&R, however, Moore instead makes a more general objection, claiming the

Magistrate Judge did not view the evidence in a light most favorable to him as the

non-moving party. (Obj. at #1300). He then goes on to relitigate his Complaint,

describe a litany of issues he has with this action in general, and accuse Defendants

of withholding evidence, tampering with evidence, and committing perjury. (See

generally id. at #1300–15). By way of reply to his Objection, Defendants note that

Moore failed to “present any case law precedent that undermines or directly

contradicts the rationale of the Magistrate Judge” and that Moore was “unable to

meet his rebuttal burden.” (Doc. 105, #1326–28). This, they argue, is insufficient to

warrant rejecting the R&R. (Id. at #1327–28).

LAW AND ANALYSIS

Objections to a Report and Recommendation are reviewed de novo. “A judge of

the court shall make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.” 28

U.S.C.§ 636(b)(1); see also Fed. R. Civ. P. 72(b). “A judge of the court may accept,

reject, or modify, in whole or in part, the findings or recommendations to which

objection is made.” 28 U.S.C. § 636(b)(1).

A. Procedural Requirements For A Pro Se Prisoner Litigant At The

Summary Judgment Stage.

“The leniency granted to pro se petitioners … is not boundless.” Martin v.

Overton, 391 F.3d 710, 714 (6th Cir. 2004). “Pro se plaintiffs are treated to less

stringent standards but ‘they are not automatically entitled to take every case to

trial.’” Id. (quoting Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)). There are

two procedural aspects to Moore’s Complaint, Amended Complaint, Response to

Defendants’ Motion for Summary Judgment, and Objections that warrant brief

discussion. The first point has to do with what is expected of Moore at the summary

judgment stage. The latter is related to the nature and specificity of his Objections.

1. Moore’s Responsibilities At Summary Judgment.

Federal Rule of Civil Procedure 56(c) provides that summary judgment is

proper “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Fed R. Civ. P. 56(c). When faced with a motion for summary judgment, the non-

moving party cannot “rest upon the mere allegations or denials of his pleading,

but … must set forth specific facts showing there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A litigant proceeding pro se is not held to a lesser or different standard. See

Viergutz v. Lucent Tech., Inc., 375 F. App’x 482, 485 (6th Cir. 2010) (noting that fact

a litigant is proceeding pro se “does not alter his duty on a summary judgment

motion”). While not held to any lesser standard, pro se prisoners are afforded notice

from the court about what is required of them at the summary judgment stage. See

United States v. Ninety Three Firearms, 330 F.3d 414, 426–28 (6th Cir. 2003).

That notice reiterates to pro se prisoners that they cannot rest on the facts

alleged in their complaint alone. But if the complaint is verified, it can be

appropriately considered at the summary judgment stage. See Miller v. Jones, 483

F. App’x 202, 203 (6th Cir. 2012). A verified complaint warrants consideration at

summary judgment “even if the prisoner fails to cite that evidence in response to a

motion for summary judgment.” Id. The requirements that a complaint must meet to

constitute a verified complaint are relaxed for prisoners. See Williams v. Browman,

981 F.2d 901, 905 (6th Cir. 1992) (recognizing a pro se prisoner’s complaint is a

verified complaint merely when it recites the requisite statutory language).

Here, neither the Complaint nor Amended Complaint are verified, as both

notarization and the requisite statutory language are missing. (See Compl. at #115;

Am. Compl. at #330). Moore did submit a separate notarized affidavit attached to his

initial Complaint, which should be considered at summary judgment. (See Compl. at

#116). Absent verification, though, it was appropriate for the Magistrate Judge to

disregard the factual assertions in the Complaint and Amended Complaint.

2. Moore’s Option To Object To The Report And Recommendation.

“Like the filings of many pro se prisoners,” objections to reports and

recommendations are often “written in a stream of consciousness style that tries to

throw as broad of a legal reach as possible by citing to legal principles that are not

directly applicable or are only tangentially related to the merits of [a] case.” Jones v.

City of Fairlawn, No. 5:03-cv-1976, 2005 WL 3543970, at *1 (N.D. Ohio Dec. 28, 2005).

When a prisoner litigant offers only general objections, it “has the same effect[] as

would a failure to object.” Howard v. Sec’y of Health & Human Servs., 932 F.2d 505,

509 (6th Cir. 1991); Boyd v. United States, No. 1:16-cv-802, 2017 WL 680634, at *1

(S.D. Ohio Feb. 21, 2017) (citing Howard, but noting “the objections of a petitioner

appearing pro se will be construed liberally” (citing Erickson v. Pardus, 551 U.S. 89,

94 (2007))). “[A] general objection to the entirety of a magistrate judge’s report,

without specifying a single issue of contention, fails to satisfy” this specificity

requirement. Howard, 932 F.2d at 509.

Moore begins his objections here by stating that he opposes summary judgment

because “the [Magistrate Judge] must consider all pleadings, depositions, affidavits,

all admissions on file and interrogatories and answers. [sic] In the ‘light most

favorable to the nonmovant [sic] party.’” (Obj. at #1300 (emphasis in original)

(quoting Satterfield v. Tenn., 295 F.3d 611 (6th Cir. 2002))). Construing Moore’s filing

as favorably to him as possible, the Court finds that this language appears to be an

objection to how the Magistrate Judge reviewed the evidence in her decision to grant

Defendants’ Motion. Moore makes no specific objection other than this. Thus, in light

of this understanding of Moore’s objection, the Court will conduct a de novo review of

the R&R to determine whether the Magistrate Judge failed to construe the record

evidence in the light most favorable to Moore, or if instead, she viewed the evidence

in Moore’s favor, yet still recommended summary judgment.

B. Defendants Did Not Violate Moore’s Eighth Amendment Rights When

Responding To His Assault On Officer Conkle Or While Escorting Him

To Segregation.

The Eighth Amendment to the United States Constitution prohibits the

imposition of “cruel and unusual punishments” on prisoners. U.S. Const. amend. VIII.

“But not every shove or restraint gives rise to a constitutional violation.” Cordell v.

McKinney, 759 F.3d 573, 580 (6th Cir. 2014). “Where a prison security measure is

undertaken to resolve a disturbance … that indisputably poses significant risks to

the safety of inmates and prison staff.” Whitley v. Albers, 475 U.S. 312, 320–21 (1986).

The proper analysis when faced with an Eighth Amendment claim in that setting is

“whether the measure taken inflicted unnecessary and wanton pain and suffering.”

Id. (citation and quotation omitted). This “ultimately turns on whether force was

applied in a good faith effort to maintain or restore discipline or maliciously and

sadistically for the purpose of causing harm.” Id.; Hudson v. McMillian, 503 U.S. 1,

6–7 (1992) (“[W]henever prison officials stand accused of using excessive physical

force in violation of the Cruel and Unusual Punishments Clause, the core judicial

inquiry is set out in Whitley: whether the force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.”).7

Analyzing excessive force claims requires both a subjective and an objective

inquiry. The subjective component looks to the state of mind of prison officials, while

the objective component analyzes whether the pain inflicted on the prisoner was

“sufficiently serious.” Cordell, 759 F.3d at 580. The objective inquiry is relative based

on the context in which the force is used. See id. This can include, for example,

considering “the need for the application of force, the relationship between the need

and the amount of force that was used, and the extent of the injury inflicted.” Whitley,

475 U.S. at 321 (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.),

7 Supreme Court precedent also cautions against second-guessing corrections officials who

must make split-second decisions in a fast-paced and pressure-filled environment. See

Hudson, 503 U.S. at 6 (“[O]fficials confronted with a prison disturbance must balance the

threat unrest poses to inmates, prison workers, administrators, and visitors against the harm

inmates may suffer if guards use force.”). “[C]orrections officials must make their decisions

‘in haste, under pressure, and frequently without the luxury of a second chance.’” Id. (quoting

Whitley, 475 U.S. at 319).

cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973), abrogated on other

grounds as stated in Pelfrey v. Chambers, 43 F.3d 1034, 1036–37 (6th Cir. 1995)).

Based on the evidence before her, the Magistrate Judge determined summary

judgment was appropriate on the excessive force claim because Moore failed to

establish a genuine issue of fact as to either the subjective or the objective component.

(See R&R at #1287–90). As to the former, the Magistrate Judge found the video

evidence compelling. As noted above, the subjective component asks whether the pain

was inflicted for legitimate penological purposes, or instead merely to sadistically

cause harm. Here, the Magistrate judge found that the video indisputably showed

that it was the former—that Moore’s attack on Officer Conkle “justified the officers’

use of force to separate [Moore] from Conkle and regain control over [him].” (Id. at

#1288). She also went on to find that Moore’s “version of events is blatantly

contradicted by the video evidence such that no reasonable jury could believe” his

rendition. (Id. at #1289). As for the objective component, the Magistrate Judge noted

“the minor nature of [Moore’s] injuries,” which was confirmed by his medical reports.

(Id. at #1289–90). She determined that no reasonable jury could conclude that the

responding officers violated Moore’s Eighth Amendment rights.

After conducting a de novo review of the record evidence, this Court agrees.

The officers’ use of force did not violate Moore’s Eighth Amendment rights. Certainly,

protecting a fellow correctional officer from an inmate attack constitutes a legitimate

penological purpose for using some level of force. And here, the video reveals that the

officers’ attempts to stop Moore’s assault and to prevent him from further assaulting

Officer Conkle, as well as their subsequent efforts to restrain and remove him from

the range, were proportional to the needs of the situation. And on the objective front,

Moore’s medical examination following that assault indeed confirms the relatively

minor nature of his injuries. (See Med. Exam R. at #133–35 (noting some swelling,

bruising, and a cut inside Moore’s mouth and prescribing x-rays (which showed no

damage), an ice pack, and Motrin)). In short, Moore failed to identify any record

evidence, however interpreted, that creates a genuine issue of fact as to either prong

of the Eighth Amendment framework. Accordingly, his Objection that the Magistrate

Judge did not view the evidence in the appropriate light is overruled, and Lt. Dyer,

Sgt. Messer, and Officers Van Sickle and Patrick are entitled to summary judgment

on this claim.

C. Defendants Did Not Violate Moore’s Eighth Amendment Rights

During His Time In Segregation.

The Eighth Amendment also requires prison officials “to provide humane

conditions of confinement” to inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994).

But “[n]ot every unpleasant experience a prisoner might endure while incarcerated

constitutes cruel and unusual punishment within the meaning of the Eighth

Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Instead, the Eighth

Amendment “is concerned only with deprivations of essential food, medical care, or

sanitation, or other conditions intolerable for prison confinement.” Richmond v.

Settles, 450 F. App’x 448, 455–56 (6th Cir. 2011) (citation and quotation omitted).

In making the “tolerability” determination, “‘the severity and duration of

deprivations are inversely proportional.’” Lamb v. Howe, 677 F. App’x 204, 209 (6th

Cir. 2017) (quoting parenthetically DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir.

2001)). “‘[M]inor deprivations suffered for short periods would not rise to an Eighth

Amendment violation, while substantial deprivations of shelter, food, drinking water,

and sanitation may meet the standard despite a shorter duration.’” Id. (quoting

parenthetically DeSpain, 264 F.3d at 974). For example, “[a] filthy, overcrowded cell

and a diet of ‘grue’ [a substance created by mashing meat, potatoes, oleo, syrup,

vegetables, eggs, and seasoning into a paste and baking the mixture in a pan] might

be tolerable for a few days and intolerably cruel for weeks or months.” Hutto v. Finney,

437 U.S. 678, 686–87 (1978).

Against this backdrop, the Eighth Amendment framework for inhumane

condition claims once again requires the prisoner to make both an objective and

subjective showing.8 That is, Moore must demonstrate that Defendants denied him

“the minimal civilized measure of life’s necessities” (i.e., an objective inquiry) and did

so wantonly or with deliberate indifference (a subjective inquiry). Id. Satisfying the

latter inquiry requires Moore to offer some evidence, even circumstantial evidence, to

the effect that Cadogan or each Officer of the Additional Officers “(1) … subjectively

perceived facts from which to infer a substantial risk to the prisoner, (2) that [they]

‘did in fact draw the inference,’ and (3) … ‘then disregarded that risk.’” Richko v.

8 The Magistrate Judge’s R&R focuses almost entirely on the objective component of this

inquiry, namely, whether the alleged deprivation of food was sufficient to give rise to an

Eighth Amendment violation. (See R&R at #1290–94). The Defendants submitted video

evidence regarding this point, too. Quizzically, however, Defendants also specifically noted

they were reserving argument on the “objective component argument regarding alleged

deprivation of food and water for a later date.” (Defs.’ Mot. for Summ. J. at #723 n.4).

Wayne Cty., 819 F.3d 907, 915 (6th Cir. 2016) (quoting Rouster v. Cty. of Saginaw,

749 F.3d 437, 446 (6th Cir. 2014) (discussing failure to protect claims)). “Critical to

the subjective inquiry is the requirement of specific evidence that each individual

defendant acted with deliberate indifference.” Ruiz-Bueno v. Scott, 639 F. App’x 354,

359 (6th Cir. 2016) (emphasis in original). This requires a district court to “‘consider

whether each individual defendant had a sufficiently culpable state of mind.’” Id.

(quoting Phillips v. Roane Cty., 534 F.3d 531, 542 (6th Cir. 2008)).

Starting with the objective component of his claim, here Moore makes several

allegations about his conditions of incarceration during his week-long stay in

segregation, including that he was deprived of food and water, that his toilet would

not flush, and that he was not given clothes or stationary products. (See Am. Compl.

at #329).9 Although the Magistrate Judge found that these were insufficient to satisfy

the objective prong of the Eighth Amendment inquiry (see R&R at #1293 (“Plaintiff

thus fails to establish he was subjected to conditions of confinement that were

sufficiently serious to meet the objective component of his Eighth Amendment

claim.”)), the Court is less certain on that front. But as discussed immediately below,

9 In his initial Complaint, Moore alleges that he was deprived of medication. (Compl. at #108).

He does not raise this issue in his Amended Complaint, which the Magistrate Judge directed

him to file after adding several defendants. As neither complaint are verified complaints, the

Court does not consider them at this point. Defendants submitted video evidence they claim

purports to show Moore receiving medicine on April 17th. (Defs.’ Mem., Doc. 91, #715). They

also submitted employee logs for J-2 during Moore’s confinement that indicate “med pass”

(i.e., medicine distribution) occurred each day he was housed there. (Employee Log, Doc. 91-

5, #773–82). Moore must come forward with something more than his pleadings to

substantiate his claim that he was deprived medicine. To the extent he initially claimed he

was deprived medicine, Moore does raise this issue in his Response to the Defendants’ Motion

for Summary Judgment. Like much of his memorandum, he cites no evidence to support, let

alone a genuine dispute of material fact, as to these claims.

the Court need not reach that issue, as the Court agrees with the Magistrate Judge

that Moore’s claim fails on the subjective prong.

To survive summary judgment on the subjective prong of the inhumane

conditions claim, it was incumbent on Moore “to present some evidence from which a

reasonable juror could conclude that the individual defendants were deliberately

indifferent” to his conditions of confinement. Richko, 819 F.3d at 915 (emphasis

added). Absent an express admission by a prison official that they disregarded an

inmate’s inhumane conditions of confinement, Moore could demonstrate deliberate

indifference “in the usual ways, including [by] inference from circumstantial

evidence[.]” Id. (quotation omitted) (citing Dominguez v. Corr. Med. Servs., 555 F.3d

543, 550 (6th Cir. 2009)).

On that front, Moore asserts that he “spoke to … Deputy Warden Anthony

Cadogan and State Trooper Keith Fellure accompanied by Jail Investigator Charles

Miller.” (Moore Aff., Doc. 3, #116). He further states that they “[a]ll were informed of

my treatment, but no-one took action to stop the abuse.” (Id.). But Moore’s first

problem is that Keith Fellure and Charles Miller were previously dismissed from this

suit. And the statement that he told Cadogan, Fellure, and Miller does not establish

any knowledge on the part of the Additional Officers. But there is nothing else in the

Amended Complaint or record, let alone “specific evidence,” that any of those

Additional Officers knew of, let alone deliberately disregarded, the allegedly

inhumane conditions related to Moore’s confinement.10 This lack of specificity and

dearth of evidence is insufficient to raise a jury question as to the Additional Officers.

That leaves Cadogan. He presents a somewhat different case on the subjective

component. Recall that establishing this prong requires a showing of both

(1) knowledge, and (2) deliberate indifference in the face of that knowledge. See

Richko, 819 F.3d at 915. Here, viewing the evidence in the light most favorable to

Moore, the former is present—Moore asserts that he complained directly to Cadogan

about the cell conditions on April 11, 2014. Cadogan says otherwise, but a Court

cannot resolve that dispute on summary judgment.

The problem for Moore, though, is that even crediting his testimony, his claim

nevertheless fails as a matter of law as he cannot show that Cadogan acted with

deliberate indifference when faced with this information. “The requisite state of

mind” for deliberate indifference lies somewhere beyond “mere negligence” but

beneath “acts or omissions for the very purpose of causing harm or with knowledge

that harm will result.” Farmer, 511 U.S. at 835. “Deliberate indifference is

characterized by obduracy or wantonness—it cannot be predicated on negligence,

inadvertence, or good faith error.” Reilly v. Vadlamudi, 680 F.3d 617, 624 (6th Cir.

2012). Importantly, “[f]or liability to attach, [Cadogan] must have been ‘aware of facts

from which the inference could be drawn that a substantial risk of serious harm

existed.’” Id. (quoting Farmer, 511 U.S. at 837) (emphasis added).

10 Moore did submit two other affidavits, one by Joshua P. Varney and another by Anthony

Randall, two other inmates at SOCF. They generally attest to the conditions of confinement

at SOCF and in J-2 specifically, but do not aver to know anything about Moore’s time in J-2,

or anything in particular about the allegations Moore raised. (See Pl.’s Resp. at #821–22).

The record contains no evidence that would allow Moore to clear this hurdle.

Moore’s response to the Summary Judgment Motion on this point is indicative of the

conclusory nature of his claims:

Warden Morgan + Cadogan made rounds in J-2 on 4-11-14. I informed

both, that I was not being fed, had no water, could not flush my toilet,

was not getting my meds and had not received my seg. pack-up.

(hygiene, stamps + stationary). I spoke to Cadogan first. He stated, “Tell

the Warden he’s making rounds.[’’] When Warden Morgan came by my

cell, I repeated everything to him. His response was “You’re lucky you’re

not dead.” These responses by the top two supervisors for the entire

prison amounts to tacit authorization to mistreat me.

….

Both objective + subjective requirements have been met when you read

this motion, original complaint and view the evidence submitted by

myself + defense counsel. All defendants are identified and their actions

and inaction are well documented.

(Pl.’s Resp. at #805 (emphasis in original)).

Even under Moore’s telling, Cadogan’s response does not reflect deliberate

indifference. Rather than ignoring Moore’s complaints, Cadogan tells Moore that the

Warden will be coming by, and encourages Moore to share his concerns with him.

Presumably, the Warden would have the power to remedy any problems with the cell,

to the extent that they existed. To be sure, if there was going to be a substantial

period of time that elapsed before the Warden appeared, or if the conditions were bad

enough that even a short delay would inflict unconstitutional harm, perhaps

Cadogan’s act of putting Moore off could constitute deliberate indifference. But

nothing in the record here suggests that was the case. To the contrary, from Moore’s

telling, it appears that the Warden came by shortly after Cadogan.

In fairness to Moore, the Warden’s alleged response, assuming Moore is

accurately conveying it, is perhaps a closer call on the subjective prong. Responding

to a complaint about conditions of confinement with “You’re lucky you’re not dead,”

facially suggests at least a certain level of indifference to a prisoner’s plight. But, as

noted above, the Sixth Circuit has made clear that deliberate indifference is an

individualized determination as to each defendant. Ruiz-Bueno, 639 F. App’x at 359.

Thus, even if the Warden’s comment is sufficient evidence from which a jury could

find that he had been deliberately indifferent (an issue that the Court does not reach),

that evidence does not suffice to justify a claim against Cadogan. And as for the

Warden, Moore never served him.

On the evidence before it, after conducting a de novo review, this Court agrees

with the ultimate recommendation of the Magistrate Judge, even though it reaches

that conclusion on somewhat different grounds. Summary judgment in favor of

Cadogan and the Additional Officers is appropriate. As the Court finds the

Defendants did not violate the Eighth Amendment, the Court need not, and thus does

not, consider the issue of qualified immunity.

CONCLUSION

Based on the above, this Court OVERRULES Moore’s Objections (Doc. 95),

ADOPTS the Magistrate Judge’s Report and Recommendation (Doc. 99), and

GRANTS summary judgment in favor of the Defendants (Doc. 91). This Court also

agrees with the Magistrate Judge’s recommendation that, pursuant to 28 U.S.C.

§ 1915(a)(8), any appeal may not proceed in forma pauperis, as that appeal would not

be taken in good faith. The Court DIRECTS the Clerk to enter judgment accordingly.

SO ORDERED.

August 21, 2020 :

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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