# Johnston v. Hamilton County Justice Center

> District Court, S.D. Ohio · October 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10376570

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DAMASO JOHNSTON,
Case No. 1:18-cv-864
Plaintiff,
Cole, J.
Bowman, M.J.
v.

HAMILTON COUNTY JUSTICE CENTER, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, an incarcerated individual who proceeds pro se, tendered a complaint
against multiple Defendants on December 6, 2018, presenting allegations regarding an
incident that occurred when Plaintiff was a pretrial detainee at the Hamilton County
Justice Center (“HCJC”) on September 7, 2018.1 Upon initial screening, the undersigned
recommended the dismissal of all claims except for Plaintiff’s claim that Defendant Deputy
Evers used excessive force against Plaintiff while breaking up a fight between Plaintiff
and another inmate. (Doc. 12). Plaintiff subsequently filed a motion to amend his
complaint. The undersigned granted the motion to amend, but continued to recommend
that all claims be dismissed on initial screening except for the excessive force claim
against Deputy Evers. (Doc. 21). That Report and Recommendation was adopted as the
opinion of the Court on August 30, 2019. (Doc. 30).
Following a period of discovery on the sole remaining claim, Defendant Evers filed
a motion for summary judgment. Although only one response to a motion is procedurally

1Plaintiff currently is incarcerated at the Pickaway Correctional Institution.
permitted, Plaintiff filed two responses in opposition to the motion, which Defendant
addressed in his reply.2 Pursuant to local practice, this case has been referred to the
undersigned for initial consideration and for a report and recommendation on any
dispositive motions. The undersigned now recommends that Defendant’s pending motion
for summary judgment be GRANTED, and that this case be dismissed.

I. Standard of Review

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

2Defendant waived any objection to the second response. However, on September 8, 2019, Plaintiff filed
a third “supplemental memorandum,” which the undersigned construes as an unauthorized sur-reply. (Doc.
62). This unauthorized memorandum is not only procedurally improper, but adds nothing new. Therefore,
it is not further considered.

2
insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the
nonmoving party. Id. at 252.
As a pro se litigant, Plaintiff’s 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)). Here, Defendant has submitted evidence to support
his motion, to which Plaintiff responds only with unsupported argument, as opposed to
admissible evidence or citation to evidence of record that could create an issue of fact for
trial.
II. Background
A. Evidence Submitted on Summary Judgment
As stated, on initial screening under the Prison Litigation Reform Act, the Court

determined that Plaintiff’s claim that Defendant Evers used excessive force was
deserving of further development.3 (Doc. 12). In support of his motion for summary
judgment, Defendant has submitted an Affidavit setting forth his version of events. (Doc.
51). Defendant also has submitted a number of official records compiled in the ordinary
course of business, including: 1) photographs of Plaintiff from the date of the incident; (2)
a Use of Force Report; (3) Medical Use of Force Report; (4) Defendant Evers’ Disciplinary
Incident Report; (5) Deputy Joshua Flinchum’s Disciplinary Incident Report; (6) Deputy

3The Court dismissed all claims against Defendant Evers in his official capacity, leaving only claims against
Evers in his individual capacity. (Doc. 12 at 6).
3
Eric Greer’s Disciplinary Incident Report; (7) Sgt. Melissa Kilday’s Disciplinary Incident
Report; (8) Plaintiff’s Grievance Report of 06/28/2018; and (9) Plaintiff’s Grievance
Response Form dated 7/2/2018. (Doc. 50). Defendant separately has filed the following
additional exhibits: (1) Sheriff’s Office Investigator’s Report of the incident; (2) Sheriff’s
Office Review Board Report; and (3) Sheriff’s Office Inmate Appeal Report. (Doc. 52).

Plaintiff has failed to rebut Defendant’s affidavit testimony or any other exhibit through the
submission of any contrary evidence of record. Therefore, to the extent that Defendant’s
motion is supported by unrebutted record evidence, Defendant’s version of facts is
accepted. However, to the extent that any issues of fact remain in the record,
notwithstanding Plaintiff’s failure to submit any evidence, all reasonable inferences have
been construed in favor of Plaintiff.
B. Findings of Fact
On September 7, 2018, Defendant Evers was leading Plaintiff and other inmates
to a “holding tank.” (Doc. 11; Doc. 51). Plaintiff alleges that he was walking directly behind

Evers when Inmate Louis Carter came up behind Plaintiff, exchanged words, and began
punching Plaintiff on the left side of his jaw. (Doc. 11 at 5; Doc. 51 at ¶3). Plaintiff
responded by punching back. Defendant immediately called for backup to separate the
inmates, and used force “to attempt to stop Johnston from fighting.” (Doc. 51 at ¶6).
Plaintiff alleges that as he was trying to defend himself against Carter, Evers kneed
Plaintiff and repeatedly struck Plaintiff in the chin or jaw. (Doc. 11 at 5-6). Plaintiff’s
complaint alleges that he stood up after Carter let him go and asked Evers why he had
struck Plaintiff so many times, and Evers responded that it was because he had told
Plaintiff and Carter to stop their fight. (Id.) Although Plaintiff’s complaint alleges that
4
Defendant “never said stop,” (id. at 6), Defendant’s unrebutted affidavit attests that
Defendant used force only after “Inmate Johnston refused commands to stop and break
it up and kept fighting with inmate Carter.” (Doc. 51 at ¶4).4
Defendant’s affidavit further states that in the course of the fight with Carter,
Plaintiff “began wildly throwing punches, one of which hit me.” (Id. at ¶6). An incident

report completed by Defendant soon after the incident similarly states that Plaintiff refused
commands to stop and break up their fight, and that Plaintiff “was actively resisting and
kept throwing wild punches to where one of them hit myself so I delivered 2 closed fist
strikes to his facial region to stun Johnson, which worked.” (Doc. 50-4 at 1). Defendant
used force in order to successfully “stun” Plaintiff which resulted in Plaintiff “letting go of
Carter,” thereby allowing the deputies to separate the two inmates and handcuff Plaintiff.
(Id. at ¶7). Plaintiff then began making verbal threats toward Defendant and took a step
towards him, causing Defendant to push him back “to create space.” (Id. at ¶8). Plaintiff
was placed in a chair by non-party Deputy Greer, but “continued to make threats” towards

Defendant and attempted to get out of the chair to physically engage with Defendant. (Id.
at ¶9).
The Use of Force investigation described the incident as follows: “Inmates fighting
refuse verbal commands to stop. Deputy used two knee strikes with no result, then two
close hand strikes to the left side of [Plaintiff’s] face as a stun technique for control which
worked.” (Doc. 50-2 at 1). The investigation concluded that Defendant used “minimal
force to protect himself and another,” and that the force used was in compliance with

4Defendant also has filed incident reports and Use of Force documents that corroborate his testimony.
5
departmental general orders and policy. (Id.) Defendant sustained small abrasions to
his hand from striking Plaintiff, but required no medical treatment. (Id. at 2).
Plaintiff was provided with a medical examination and a band aid was applied to a
small abrasion on his nose. When he returned to his cell, Plaintiff alleges that he noticed
the right side of his chin was swollen, as was the left side of his temple. (Doc. 11 at 8).

However, pictures and contemporaneous Use of Force records, along with
contemporaneous medical records, do not reflect any visible injuries other than to
Plaintiff’s nose. (Doc. 50-1 at 3-4; Doc. 50-2). In fact, the report of the paramedic who
examined Plaintiff states that Plaintiff “denies any LOC, states not injurie[d],” despite the
visible small abrasion on the bridge of his nose. (Doc. 50-3). The report affirmatively
states “[n]o other vis[i]ble injuries seen or complained of.” (Id.)
Following the incident, Plaintiff was charged with six related violations, including:
(1) assault on a staff member; (2) assault on a fellow inmate; (3) attempt to influence,
intimidate or hinder an officer or staff member in the performance of their duties; (4)

conduct that disrupts the security or order of the facility; (5) cause another to believe that
the offender will cause physical harm to the person or property of another; and (6) fighting.
(Docs. 50-5, 50-6, 50-7). A report by an investigator, Sgt. Kilday, states that Plaintiff
maintained that Carter threw the first punch, and “does not recall the Deputies giving any
verbal commands.” (Doc. 50-7). A Review Board Report reflects that Plaintiff was initially
convicted and confined to 20 days of disciplinary segregation. (Doc. 52-2). That report
also states that Plaintiff “admits to fighting and not listening to Officer ordering him to
break it up and striking Officer swinging wildly.” (Id.) However, Plaintiff successfully
appealed, as the Appeals Board determined: “During your hearing you were found guilty
6
and given 20 days; however at the hearing there was no notation of which charges you
were found guilty of, therefore you are being released from lock in immediately.” (Doc.
52-3).
Discovery closed on April 17, 2020. (Doc. 35). However, by Order filed on June
22, 2020, the Court granted Plaintiff’s construed motion to compel and partially reopened

discovery by directing the Defendant to respond to a written discovery request included
in Plaintiff’s construed motion. (Doc. 49 at ¶1). In the same order, the Court extended
the dispositive motion deadline. (Id. at ¶2). On July 24, 2020, Defendant timely moved
for summary judgment in this case on grounds that Plaintiff failed to exhaust his
administrative remedies as required under the Prison Litigation Reform Act, and
alternatively, based on qualified immunity.
III. Analysis of Defendant’s Motion
A. Exhaustion of Administrative Remedies
Defendant first seeks judgment on grounds that Plaintiff failed 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, 122 S. Ct. 983 (2002).
7
It is well established that exhaustion is “mandatory under the PLRA and
unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 201, 211, 127
S. Ct. 910 (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 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).
The Ohio Department of Rehabilitation and Correction (“ODRC”) offers a three-
step grievance system to every inmate at each of its institutions, including the Hamilton
County Justice Center. See Ohio Admin. Code §5120-9-31(J). All inmates and staff
members receive a written explanation of the grievance system and instructions for its
use. Ohio Admin. Code § 5120-9-31(C). The first step of the grievance procedure allows
inmates to submit an informal complaint to the supervisor of the department or staff
member directly responsible for the issue concerning the inmate, but requires any such
8
complaint or grievance to be submitted no later than fourteen days from the date of the
event giving rise to the grievance. Ohio Admin. Code § 5120-9-31(J)(1). If an inmate is
dissatisfied at step one, he may proceed to step two by filing a notification of grievance
with the Inspector of Institutional Services. Id.; see also Ohio Admin. Code § 5120-9-
31(J)(2). Finally, if dissatisfied with the results at step two, the inmate may file an appeal

with the Office of Chief Inspector at ODRC. Ohio Admin. Code § 5120-9-31(J)(3). Only if
the inmate remains dissatisfied following receipt of the decision from the Chief Inspector
may an inmate file a civil lawsuit in federal court.
“When the defendants in prisoner civil rights litigation move for summary judgment
on administrative exhaustion grounds, they must prove that no reasonable jury could find
that the plaintiff exhausted his administrative remedies.” Mattox v. Edelman, 851 F.3d
583, 590 (6th Cir. 2017) (citing Surles v. Andison, 678 F.3d 452, 455-456 (6th Cir.
2012)); see also Fraley v. Ohio Dep’t of Corr., No. 16-4720, 2018 WL 2979902, at *2 (6th
Cir. Mar. 22, 2018) (defendant must prove non-exhaustion by preponderance of the

evidence); Quinn v. Eshem, 2016 WL 9709498, at *2 (6th Cir. Dec. 20, 2016)
(citing Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011) (burden of proof falls on
defendants)). Here, Defendant has failed to meet this burden of proof on the record
presented. Accord Ashdown v. Buchanan, 2019 WL 3718315 (S.D. Ohio Aug. 7, 2019)
(holding that genuine issues of material fact existed as to whether grievance process was
“available,” precluding summary judgment).
Defendant asserts that Plaintiff failed to file any timely grievances concerning the
excessive use of force by Defendant Evers. Defendant argues that “HCJC records show
that Plaintiff’s only grievance …came on June 26, 2018 about the unfair distribution of
9
uniforms.” (Doc. 54 at 7). However, despite including a copy of the unrelated June 26
grievance, Defendant has failed to support his argument that no other grievances exist
with a declaration or affidavit from any institutional custodian.
In contrast to Defendant’s argument, Plaintiff alleges in his complaint that he “wrote
Grievance about my chin fracture from the[ir] staff and I need some medical attention, no

answers back.” (Doc. 11 at 3).5 Relevant to the issue of grievances, the complaint also
alleges:
I been writing grievance since I was assaulted by a staff member and inmate
that was caught on tape September 7, 2018. They all working together,
because none of my grievances about staff member M. Evers hasn’t been
answered back and I put in alot [sic] of grievances to be taken over to UC
hospital for x-ray’s on my chin and see how bad this staff had fracture[d] my
chin with four closed fist than his knee!

(Doc. 11-1 at 1, 6). In opposition to Defendant’s motion, he similarly maintains that he
wrote multiple grievances but received no responses:
I’d wrote ‘Grievance Complaints’ to the Sergeant, Lieutenant, and Captain
from September 2018 until November 2018, leaving a two month window
for a respond back….and nobody came to address the matter or gave any
copies of the “Grievance Complaints’’ to let me know if something was going
to be done. I even filed a Grievance saying that I wanted to press assault
charges against the Defendant Deputy Mark Evers, an[d] nobody respond.
I wrote a Grievance on Medical about my x-ray, as the Supervisor Nurse on
first shift did come to respond and she did not give me no cop[y] of that
Grievance, but she said the Doctor told her, I had no fra[c]ture.

(Doc. 56 at 1). Plaintiff insists he complied with the requisite Grievance procedure by
writing “three complaints” prior to filing a civil suit, including his complaint to the
Defendant’s supervisor (the Sergeant), followed by a complaint to the Sergeant’s

5In screening Plaintiff’s claims, the Court determined that Plaintiff had failed to state a claim for the denial
of medical care because he had not identified anyone who allegedly had denied him requested treatment.
(Doc. 12 at 4, n.2).
10
supervisor (the Lieutenant) and last by a complaint to the Captain, in addition to separate
complaints to the Internal Affairs Office and the Supreme Court of Ohio. (Id. at 2-3; see
also Doc. 60 at 2). Plaintiff’s argument is reasonably construed as an assertion that he
exhausted all administrative remedies that were “available” to him, and that any failure to
exhaust is attributable to the institution.

Under the PLRA, inmates must exhaust only “available” administrative remedies.
In Ross, the Supreme Court …clarified that “available” meant that the
administrative remedy was one that was “capable of use” to obtain “some
relief for the action complained of.” 136 S.Ct. at 1859 (quoting Booth, 532
U.S. at 738, 121 S.Ct. 1819) (internal quotations omitted). In noting that the
reality of the prison grievance systems may render some of
the available administrative remedies unavailable, the Supreme Court laid
out three circumstances providing an exception to the PLRA's exhaustion
requirement. Id. at 1859. These three circumstances are: 1) “when (despite
what regulations or guidance materials may promise) it operates as a simple
dead end—with officers unable or consistently unwilling to provide any relief
to aggrieved inmates”; 2) when “an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of use[—i.e.,] some
mechanism exists to provide relief, but no ordinary prisoner can discern or
navigate it”; and 3) “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation,
or intimidation.” Id. at 1859-60.

Blissit v. Fiquris, 345 F.Supp.3d 931, 939-40 (S.D. Ohio, 2018).
The parties’ contrasting arguments present a factual issue concerning the third
exception to the PLRA’s exhaustion requirement: the possibility that jail administrators
deliberately ignored or discarded Plaintiff’s grievances. Unfortunately, neither Plaintiff nor
Defendant point to any evidence by which the undersigned can resolve this issue on
summary judgment. Just as Defendant has failed to supply any declaration or affidavit
from an institutional records custodian, Plaintiff likewise has failed to submit a sworn
declaration or other evidence that would support his contention that he submitted
11
numerous grievances. Contrast Troche v. Crabtree, 814 F.3d 795 (6th Cir. 2016)
(explaining that despite records custodian attesting that plaintiff had not submitted any
grievances, inmate’s sworn declaration that he submitted grievances on specific dates to
specific individuals was sufficient to create a genuine issue of material fact that precluded
summary judgment).

It is true that Plaintiff’s argument that the institution failed to respond to his step
one grievances might not excuse his failure to follow through with an appeal at step two
or step three. Ohio’s grievance process states that if no response to a step one grievance
is received by an inmate within eleven days, “the informal complaint step is automatically
waived and the inmate may proceed to step two.” Ohio Admin. Code 5120-9-31(J)(1).6
However, step two must be completed “no later than fourteen calendar days from the date
of…waiver of the informal complaint step.” O.A.C. 5120-9-31(J)(2). If an inmate does
not receive a decision on step two “after a total of twenty eight days from the receipt of
the grievance,…the inmate may proceed to step three of the process.” Id.

The issue of exhaustion is relatively close because Plaintiff does not argue that he
timely complied with either step two or step three after the requisite time period expired
without a response to his step one grievances. However, exhaustion is an affirmative
defense. Defendant does not argue that Plaintiff failed to timely complete steps two or
three, but instead limits his argument to the assertion that Plaintiff never complied with
step one. Based upon the Defendant’s failure to submit probative evidence, a genuine
issue of material fact remains in dispute on that issue. Because the Defendant has failed

6Defendant has not filed a copy of HCJC’s grievance procedure but asserts it is identical to Ohio’s current
grievance process.
12
to carry his burden of proof, Defendant is not entitled to summary judgment on this
ground. Accord Anderson v. Lawless, 2020 WL 1130328 (S.D. Ohio March 6, 2020)
(denying summary judgment on failure-to-exhaust issues, holding that Defendants failed
to carry their burden of proof on the issue).
B. Defendant Evers is Entitled to Qualified Immunity

Despite Defendant’s failure to carry his burden of proof on the affirmative defense
of exhaustion, Defendant is entitled to summary judgment based upon his assertion of
qualified immunity. On this issue, Defendant has submitted evidence that shows only
minimal force was used to break up a fist fight between two combatant inmates after
Plaintiff ignored a verbal command to stop fighting.
“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, 129 S.Ct. 808, 815, 555 U.S. 223, 231 (U.S. 2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982)). Qualified immunity “‘gives ample
room for mistaken judgments by protecting ‘all but the plainly incompetent or those who
knowingly violate the law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v.
Briggs, 475 U.S. 335, 343, 341 (1986)); see also Dorsey v. Barber, 517 F.3d 389, 394
(6th Cir. 2008). Qualified immunity applies regardless of whether the official's error was
a mistake of law or a mistake of fact, or a mistake based on mixed questions of law and
fact. Pearson, 555 U.S. at 231.
It is well established that the excessive use of force by a prison official constitutes
the “unnecessary and wanton infliction of pain” in violation of the Eighth Amendment’s
13
prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104,
97 S. Ct. 285 (1976). Through the Due Process Clause of the Fourteenth
Amendment, pretrial detainees are entitled to the same Eighth Amendment rights as are
other inmates. Thompson v. Cty. of Medina, Ohio, 29 F.3d 238, 242 (6th Cir. 1994).
“Thus, Supreme Court precedents governing prisoners' Eighth Amendment rights also

govern the Fourteenth Amendment rights of pretrial detainees.” Ruiz-Bueno v. Scott, 639
Fed. Appx. 354, 358 (6th Cir. 2016).
In order to make out a claim of excessive force that violates the Eighth
Amendment, an inmate must allege conduct that would satisfy both an objective and a
subjective component. In Williams v. Curtin, 631 F.3d 380 (6th Cir. 2011), the Sixth
Circuit summarized these two elements:
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 (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 (1991). This
14
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.
Evaluating whether a prison official used excessive force in breaking up a fight
between two inmates or in quelling some other violent disturbance can be difficult,
particularly where an inmate has sustained a significant injury from that use of force. On
the other hand, when the record strongly supports the need for some physical force, and
reflects that no more than a de minimis injury was actually inflicted from the necessary
use of force, courts are less likely to second-guess the amount of force employed. “An
inmate who complains of a ‘push or shove’ that causes no discernible injury almost
certainly fails to state a valid excessive force claim.” Wilkins, 559 U.S. at 38 (additional
internal quotation marks and citation omitted). In fact, the Supreme Court has cautioned
against second-guessing correctional officers when, in acting to quell a physical
disturbance, they are required to make split-second decisions in a fast-paced and
pressure-filled environment. Hudson, 503 U.S. at 6; Whitley, 475 U.S. at 320-22.
Here, the record reflects that Defendant resorted to the force of his fists only after
Plaintiff ignored verbal commands to stop fighting, and also ignored Defendant’s initial
use of lesser physical force (his knee) to separate and subdue the combatants.7 During

7Even if the Defendant had not first issued an unheeded verbal command, Defendant’s use of physical
force to stop two brawling inmates not be unreasonable unless the facts demonstrated that the force
employed was unnecessary and used to justify the wanton infliction of pain.
15
the brief melee, Plaintiff was “swinging wildly” at Carter, and connected with Defendant.8
Because Plaintiff does not point to any evidence of record that contradicts the evidence
submitted by Defendant, there is no genuine issue of material fact remaining for trial.9 At
the summary judgment stage, if the relevant facts are undisputed, the objective
reasonableness of an officer’s use of force “is a pure question of law.” Dunn v. Matatal,

549 F.3d 348, 350 (6th Cir. 2008) (quoting Scott v. Harris, 550 U.S. 372, 381 n.8).
Although Plaintiff denies that he struck Defendant, Defendant has submitted an
unrebutted affidavit that avers that one of Plaintiff’s punches landed on him. On the record
presented, Defendant’s use of his knee and fists to break up the fight and protect himself
and others was objectively both necessary and reasonable. Still, Plaintiff protests that
Defendant landed too many punches, and acted “out of ang[er] and not self defense.”
(Doc. 60 at 3). Plaintiff asserts that Defendant punched him five times, not just twice as
reported. Defendant’s affidavit does not specifically detail the number of punches he
threw, but contemporaneous incident reports in support of summary judgment put the

number at two. Plaintiff has submitted no contrary evidence.
The lack of any injury provides additional context and supports the grant of
summary judgment. The complaint alleges that the Defendant’s blows caused an

8Plaintiff denies that occurred, but the unrebutted evidence is that it did. The fact that Defendant was not
injured by the contact does not negate the issue of reasonably perceived danger that Plaintiff’s actions
posed to the deputies as well as to the other inmate.
9Video evidence can often settle fact disputes created by conflicting witness accounts on summary
judgment. See Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769 (2007). Here, neither party has submitted
any video evidence. Plaintiff complains about the absence of video evidence, but the record suggests that
Plaintiff failed to comply with discovery rules within the allotted period that would have allowed him to obtain
that video. And, although Plaintiff alleges that video evidence should have existed, he also alleges in his
amended complaint that Captain Kerr reported that the video showed that Inmate Carter struck first, but did
not show the use of force by Defendant that Plaintiff had alleged. (Doc. 20 at 1-2). Here, summary
judgment is appropriate despite the absence of video because Plaintiff has failed to submit any evidence
that contradicts Defendant’s well-supported account.
16
objectively serious injury - a fracture of Plaintiff’s chin. However, Plaintiff has offered no
evidence to substantiate any injury at all. By contrast, Defendant has submitted a
contemporaneous medical record that reflects that Plaintiff suffered no more than a de
minimis injury to his nose (from the other inmate), for which a band-aid was applied. No
follow-up care was required. The pictures filed by Defendant as well as the medical

record confirm that Plaintiff affirmatively denied any other injury at the time and that no
other injury was observed.
Although Plaintiff alleges in his complaint that HCJC personnel refused to take him
to the hospital for x-rays of his chin, there is no evidence to substantiate that he submitted
any medical requests to HCJC for treatment for his alleged chin injury, or that he made
any formal complaints to HCJC regarding his medical care.10 Plaintiff also has failed to
submit any medical or other records that would corroborate his alleged later discovery of
his injury. Even if Plaintiff believed that HCJC would not provide adequate treatment, the
record reflects that Plaintiff has been incarcerated at the Pickering Correctional Facility

since September 2019, where presumably he could have sought additional medical
attention that could have substantiated his allegation of a previously broken and/or
improperly healed jaw bone.11 On summary judgment, Plaintiff may not rely on
unsupported allegations in the face of Defendant’s contrary evidence that Plaintiff had no

10Plaintiff’s requests to this Court after he initiated suit are not evidence that he made timely requests to
HCJC. (See e.g., Doc. 4 (motion filed 1/4/19 seeking to “get x-rays done to see how bad my injury is.”);
Doc. 9 (letter complaining that HCJC had not taken him to UC for imaging as requested); Doc. 16 (document
captioned “Appeal Evidence” in which Plaintiff states that “there may also be a fracture of my chin” and
seeks “a proper x-ray by a bone specialist.”)).
11Ordinarily, the Ohio Department of Rehabilitation and Correction conducts a medical assessment when a
new inmate is transferred into a facility. However, neither party has offered any medical evidence from
Plaintiff’s current place of incarceration.
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discernible injury. A reasonable officer would not have believed that the use of force to
break up a fist fight between Plaintiff and Inmate Carter, where the amount of force
resulted in no injury, violated the Eighth Amendment. Considering the uncontested record
submitted by Defendant and the lack of any evidence to support Plaintiff’s account,
Defendant appears entitled to qualified immunity and to judgment as a matter of law.

The only allegation that gives the undersigned some pause is Plaintiff’s allegation
that Defendant “choke[d]” him after Plaintiff was handcuffed and placed in a chair by
another deputy. (Doc. 11 at 7). Plaintiff’s complaint alleges that he continued to ask
Defendant “why you knee me in my chin like that” when Defendant “started getting loud
with me!” (Id.) He further alleges:
While I am hand cuff behind my back and sitting in the chair when
[Defendant] walk down on me all aggressive saying mutha fucker I told you
to stop and I told him that you never said nothing and why did you hit me in
my face does many times! I told him you seen that guy had a grip of my
face and that aint give you a reason for all them punches to my face, as he
got smart with me and I told him you hit me all them time trying to knock
me out and that don’t make you a man for striking me like that. So he got
mad and choked me out the chair when we both looked up at the camera
and he let me go….

(Doc. 11-1 at 3-4). Plaintiff’s complaint does not allege any difficulty breathing or any
bruising or any other type of injury from the allegedly brief “choking.”
Defendant’s affidavit does not explicitly address this allegation, nor do the other
documents submitted on summary judgment. Applying a chokehold to a fully subdued,
restrained and compliant inmate, in an effort to inflict pain rather than to restore order,
undoubtedly would run afoul of the Eighth Amendment. However, notwithstanding
Defendant’s failure to explicitly deny the allegation, his affidavit contains an implicit denial
that he touched Plaintiff after he was placed in the chair. In addition, Defendant
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contradicts any suggestion that Plaintiff was fully subdued and compliant. Chronologically
detailing the events, Defendant’s affidavit states:
Deputy Greer …placed [Plaintiff] in a chair, where he continued to make
threats towards me and attempt[ed] to get out of the chair to come at me.

At that point I walked down towards the cages to wait for the supervisors.

(Doc. 51 at 2, ¶¶8-9). Defendant’s sworn statement that Plaintiff continued to make
threats and attempted to physically “come at” Defendant is unrebutted. If the Court
accepts the implicit denial that in reaction to Plaintiff’s physical attempt to “come at”
Defendant, that “[a]t that point” Defendant walked away, then the undersigned would
conclude that Defendant is entitled to qualified immunity because the choking did not
occur.
However, even if a reviewing court were to determine that Defendant’s implicit
denial is not sufficient to resolve the issue of whether (as Plaintiff alleges) he reactively
“choked” Plaintiff before leaving the area, it is undisputed that Plaintiff was not subdued
but remained combative despite being handcuffed. In addition, Plaintiff’s own allegations
reflect an exceptionally brief incident in which Defendant “let…go” immediately after
seeing himself on video camera. Also, the lone injury alleged by Plaintiff was to his chin
from Defendant’s punches; Plaintiff does not allege that the “choking” was so severe that
Plaintiff could not breathe, or that the incident left any mark or bruising or caused any
injury at all.12

12The undersigned, like virtually all citizens of the United States at this time in history, is acutely aware of
incidents in which various members of law enforcement in our country have been accused of choking black
men quite literally to death. The Court’s legal analysis is in no way intended to condone the unnecessary
use of violence against inmates, or the use of a chokehold even if the use of force is not unconstitutional
on the record presented. Here, the undersigned emphasizes that the analysis is limited to discerning
whether Defendant is entitled to qualified immunity on the constitutional claim asserted.
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The second part of an Eighth Amendment claim – the objective component-
requires that the “pain inflicted to be ‘sufficiently serious’ ” to offend “contemporary
standards of decency.” Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014)
(quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), and Hudson, 503 U.S. at
8). As the Supreme Court has explained, not every “malevolent touch” by a prison guard

gives rise to a federal cause of action. Hudson, 503 U.S. at 9 (citing Johnson v. Glick,
481 F.2d 1028, 1031 (2d Cir. 1973) (“Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional
rights.”)). Based upon the uncontested facts that Plaintiff was verbally threatening
Defendant and remained physically combative, and even crediting Plaintiff’s account that
Defendant reacted by briefly choking him before letting go without causing any
discernable injury, Defendant would remain entitled to qualified immunity because the
alleged “malevolent touch” does not rise to the level of an Eighth Amendment injury.
IV. Conclusion and Recommendations

For the reasons stated, IT IS RECOMMENDED THAT Defendant’s motion for
summary judgment (Doc. 54) be GRANTED and that this case be CLOSED.

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

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DAMASO JOHNSTON,
Case No. 1:18-cv-864
Plaintiff,
Cole, J.
Bowman, M.J.
v.

HAMILTON COUNTY JUSTICE CENTER, et al.,

Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. 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 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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376570. Public record. Not legal advice.