Coleman v. Oninku

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MARQUEZ COLEMAN, : Case No. 1:17-cv-599

:

Plaintiff, : Judge Timothy S. Black

:

vs. :

:

JONAS ONINKU, et al., :

:

Defendants. :

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT (Doc. 21)

This civil case is before the Court on Defendants Jonas Oninku, Edwin Bailey,

Brendan Kelly, Dustin Bennett, and Scott Drake’s motion for summary judgment (Doc.

21) and the parties’ responsive memoranda (Docs. 34, 35).

I. BACKGROUND1

On June 10, 2016, Plaintiff Marquez Coleman was an inmate at Lebanon

Correctional Institution when he was involved in a use of force event with Defendants

Oninku, Bailey, Kelly, Bennett, and Drake. (Doc. 21-10 at ¶¶ 1–2).

A. Use of Force Incident

At the time of the event, Bailey asked Coleman to step out of an inmate line for a

dress-code violation. (Id. at ¶ 3). Coleman stepped out of line and Bailey began a pat-

down search. (Id. at ¶ 4). During the search, Oninku approached Bailey and Coleman,

1 Pursuant to the Court’s Standing Order, Defendants filed a Statement of Proposed Undisputed

Facts, and Coleman filed a Response to Proposed Statement of Undisputed Facts and a Statement

of Disputed Issues of Material Fact. (Docs. 21-10, 34-1). The Court’s statement of facts set

forth in this Order is based on those filings.

and Oninku began talking to Coleman. (Id. at ¶ 5). After a few to thirteen seconds of

Coleman and Oninku speaking, Coleman attempted to return to the inmate line. (Id. at

¶ 6). Oninku, however, redirected Coleman to the wall where his first pat-down

occurred. (Id.) Oninku then began another pat-down search with Coleman’s hands

placed on the wall. (Id. at ¶ 8).

The use of force event then began – the nature of which, the parties dispute. (See

Video of Incident, Doc. 2).

Moving-Defendants’ Perspective. As Oninku was conducting a pat-down

search of Coleman, Coleman removed his left hand from the wall and his elbow

backwards and towards Oninku and Bailey. (Doc. 21-10 at ¶ 9). Oninku used a “balance

displacement technique,” and Coleman was moved to the ground. (Id. at ¶ 10). Bailey

attempted to handcuff Coleman; however, Coleman’s left arm was placed under his body.

(Id. at ¶ 11). Bailey used nine short-rapid shoulder strikes to cause Coleman to release

his arm to be cuffed. (Id.) Plaintiff tried to push himself off the ground. (Id. at ¶ 12).

Oninku held Coleman’s head in place to prevent him from spitting on any officers. (Id).

Meanwhile, as Coleman was displaced to the ground, Kelly responded via radio

call signal. (Id. at ¶ 13). Kelly then assisted with restraining Coleman, using his left

knee to secure Coleman’s right leg to prevent him from kicking. (Id.) Drake arrived,

removing his PR-24 (baton) from its holster to prevent it from being displaced. (Id. at

¶ 14). Drake dropped to his knees and tried to re-secure his PR-24 to its holster;

however, he was unsuccessful and placed the PR-24 in his lap while he assisted with

handcuffing Coleman. (Id. at ¶ 15).

Other officers responded, including Bennett. (Id. at ¶ 16–18). Coleman was still

physically resisting restraint and disregarding officer directives. (Id. at ¶ 19). Bennett

then deployed a short burst of OC spray to Coleman’s face to gain compliance. (Id.)

Coleman was then secured in handcuffs. (Id.)

Non-Moving Plaintiff’s Perspective. After Oninku finished his pat-down search

of Coleman, Oninku pulled back on Coleman, causing his left hand to leave the wall.

(Doc. 34-1 at ¶ 9). Coleman and Oninku spoke, and Coleman returned his hand to the

wall. (Id.) Oninku then reached down, grabbed, and pulled backward Coleman’s left leg,

and kicked Coleman’s right leg from under him. (Id. at ¶ 10). Coleman fell to the

ground, landing on his stomach. (Id.)

Bailey then punched Coleman in his head, neck, and shoulders approximately 20

times. (Id. at ¶ 11). Coleman’s hands were in plain view and Bailey could access them.

(Id.) At this time, Oninku grabbed Coleman’s head and slammed his head into the

ground two times. (Id. at ¶ 12). Coleman did not try to push himself off the ground and

his hands were still visible at his sides. (Id.) Coleman did not try to spit on anyone. (Id.)

Kelly witnessed the entire altercation between Bailey, Oninku, and Coleman. (Id.

at ¶ 13). Kelly quickly approached after Coleman was taken to the ground, knelt on

Coleman’s right leg, and then called for assistance over the radio. (Id.) Coleman did not

try to kick anyone. (Id.) Drake then approached, removed his PR-24 from his belt, knelt

down next to Coleman, and jabbed Coleman in his left side two times. (Id. at ¶¶ 14–15).

Coleman was handcuffed. (Id. at ¶ 19). He was not resisting, his hands were in

full sight, and he was complying with officer directives. (Id.) Bennett then arrived at the

scene and sprayed Coleman’s face with OC spray. (Id.)

B. Administrative Remedies

The Court has previously discussed the facts related to Coleman’s use of

administrative remedies. (Doc. 19 at 1–3). Defendants move for summary judgment

again, in part, for Coleman’s failure to exhaust administrative remedies; thus, the Court

details those facts again here.

The parties agree that the Ohio Administrative Code sets out a three-step process

to exhaust administrative remedies when an inmate seeks relief from any aspect of

institutional life that directly and personally affects the grievant. (Doc. 21-10 at ¶¶ 20-

10). First, the grievant must file an informal complaint with the appropriate supervisor

within 14 days of the events giving rise to the informal complaint. (Id.) If the grievant is

not satisfied with the response, the grievant then must file an appeal of the informal

complaint decision with the institutional inspector. (Id. at ¶ 28). If the grievant is still

unsatisfied, the grievant then must file an appeal to the Chief Inspector’s Office. (Id. at

¶ 31). After the appeal to the Chief Inspector’s Office is complete, administrative

remedies are exhausted and the grievant may file suit.

The parties agree that Coleman needed to file an informal complaint arising out of

the use of force event by June 24, 2016. (Id. at ¶ 25). Coleman filed his informal

complaint in May 2017. (Id. at ¶ 26). Coleman, however, states that he was unable to

timely submit an informal complaint form because he was not provided with such forms,

even after request. (Doc. 13-1).

The response to the informal complaint notes that Coleman “only had 14 days to

submit” his informal complaint after the event. (Doc. 21-2, Ex. B-2). Coleman appealed

this response to the institutional inspector. (Doc. 21-10 at ¶ 28). Coleman’s grievance

was denied. (Doc. 21-2, Ex. B-4). Coleman then filed an appeal with the Office of the

Chief Inspector. (Doc. 21-10 at ¶ 30). The decision of the institutional inspector was

affirmed. (Doc. 21-2, Ex. B-6).

II. STANDARD OF REVIEW

A motion for summary judgment should be granted if the evidence submitted to

the Court demonstrates that there is no genuine issue as to any material fact, and that the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247–48 (1986). The moving party has the burden of showing the absence of

genuine disputes over facts which, under the substantive law governing the issue, might

affect the outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must

be construed in a light most favorable to the party opposing the motion. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A party opposing a motion for summary judgment “may not rest upon the mere

allegations or denials of his pleading, but . . . must set forth specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 248.

III. ANALYSIS

Coleman brings two claims in this lawsuit: (1) excessive force against all

Defendants (Doc. 1 at ¶ 44); and (2) failure to prevent the use of excessive force against

Defendants Kelly, Bailey, Drake, and Bennett (id. at ¶¶ 46–47). Defendants move for

summary judgment, requesting dismissal of Coleman’s entire complaint for three

reasons: (1) Coleman’s failure to exhaust administrative remedies; (2) judgement as a

matter of law based on the undisputed, material facts; and (3) qualified immunity.

A. Exhausting Administrative Remedies

Defendants first argue that Coleman cannot succeed on his claims because he

failed to exhaust administrative remedies. (Doc. 21 at 8–16). The Court has already

considered – and rejected – this argument when deciding Defendants’ first motion for

summary judgment. (Doc. 19). For the same reasons discussed in that Order, the Court

again denies Defendants’ request for summary judgment based on failure to exhaust

administrative remedies.

The Court recognizes that Defendants present two new arguments in their motion

related to exhausting administrative remedies, and the Court will address each in turn.

First, Defendants request that this Court use a burden-shifting analysis other

circuits have used when considering whether a plaintiff has exhausted administrative

remedies. (Doc. 21 at 10–11 (citing cases from the Second, Seventh, Ninth, Tenth, and

Eleventh Circuits)). According to Defendants, such a test would require the defendant to

raise exhaustion, then the burden shifts to the plaintiff to establish that administrative

remedies were unavailable. (Id. at 11).

However, as Defendants acknowledge, the Sixth Circuit does not apply a burden-

shifting framework to exhausting administrative remedies. The Sixth Circuit has held,

and continues to hold, that failure to exhaust administrative remedies is an affirmative

defense that the defendant bears the burden of establishing. Napier v. Laurel County, 636

F.3d 218, 225 (6th Cir. 2011); Dykes-Bey v. Finco, No. 20-1624, 2021 WL 2767584 (6th

Cir. Feb. 2, 2021). Moreover, summary judgment is appropriate for failing to exhaust

administrative remedies only if the defendants “establish the absence of a ‘genuine

dispute as to any material fact’ regarding non-exhaustion.” Risher v. Lappin, 639 F.3d

236, 240 (6th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). Defendants provide this Court

with no persuasive reason to depart from precedent, and this Court declines to do so.

Moreover, as discussed in this Court’s prior Order, there are material issues of fact

concerning whether Coleman was able to timely exhaust remedies, given: (1) Coleman

was placed in solitary confinement after the incident; and (2) the disputed facts

concerning whether Coleman asked for an informal complaint form while in solitary and

was not provided a form. (Doc. 19). And, as already discussed, Coleman “is not

required to exhaust remedies that are not available to him.” (Id. (citing Hill v. Snyder,

817 F.3d 1037, 1041 (7th Cir. 2016)) (emphasis in original)).

Second, Defendants present the affidavit Lora Austin, an employee at Lebanon

Correctional Institution. (Doc. 21-1). The affidavit purports to show that Coleman had

other avenues to timely pursue his administrative remedies while in solitary confinement;

thus, Coleman failed to exhaust his administrative remedies. (Id. at ¶ 10).

Coleman first suggests that the Austin affidavit should be stricken because she was

disclosed over seven months after the deadline for disclosure of lay witnesses, which

deadline was March 16, 2018, and she was disclosed at 4:30 p.m. on the day discovery

closed on October 30, 2018. (Doc. 34 at 20). Defendants suggest that Coleman did not

object in October 2018 when Austin was disclosed, and the affidavit is appropriately

presented to the Court. (Doc. 35 at 3).

Rule 26(a)(1)(A)(i) of the Federal Rules of Civil Procedure imposes a mandatory

obligation on each party to initially disclose the identity of “each individual likely to have

discoverable information…that the disclosing party may use to support its claims or

defenses.” Additionally, initial disclosures must be made at the beginning of litigation,

“without awaiting a discovery request” from the opposing party and must occur within 14

days of the discovery planning conference that the parties must conduct under Rule 26(f).

See Fed. R. Civ. P. 26(a)(1)(A) & (C).

Moreover, this Court’s Cincinnati Civil Procedures Standing Order provides:

All witnesses to be called during a party’s case-in-chief must

be disclosed within sufficient time to permit discovery.

Unless otherwise ordered, plaintiff will disclose to defendant

the names of all expert witnesses at least 60 days prior to the

discovery deadline; defendant will disclose to plaintiff the

names of all expert witnesses at least 45 days prior to the

discovery deadline; and both parties will disclose the names

of all other case-in-chief witnesses at least 30 days prior to

the discovery deadline. No additional witnesses may be listed

in the Final Pretrial Order except by permission of the Court.

Witnesses whose testimony is limited to rebuttal of an

opponent’s case need not be listed.

“Federal Rule of Civil Procedure 37(c)(1) requires absolute compliance with Rule

26(a), that is, it ‘mandates that a trial court punish a party for discovery violations in

connection with Rule 26 unless the violation was harmless or is substantially justified.’”

Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d 776, 782 (6th Cir. 2003)

(quoting Vance v. United States, No. 98–5488, 1999 WL 455435, at *3 (6th Cir. June 25,

1999)). The Sixth Circuit has “put the burden on the potentially sanctioned party to

prove harmlessness.” Id. See also Fed. R. Civ. P. 37(c) advisory committee notes to

1993 amendment (Rule 37(c) “provides a self-executing sanction for failure to make a

disclosure required by Rule 26(a), without need for a motion”). Moreover, Rule 37(b)(2)

provides the Court with meaningful discretion to sanction a party when the party fails to

obey a discovery order.

Defendants do not dispute that Austin was not timely disclosed in their initial

disclosures, pursuant to the Calendar Order, or in accordance with this Court’s Standing

Orders. Given the self-executing nature of Rule 37 and Defendants’ lack of argument

demonstrating their failure to disclose was harmless, the Court STRIKES the Austin

affidavit in support of Defendants’ motion for summary judgment.2 When reaching this

conclusion, the Court reserves any judgment on whether it would be appropriate for

Defendants to present Austin as a witness at trial.

Accordingly, for the reasons already stated by this Court in its Order denying

Defendants’ first motion for summary judgment, and as expanded upon here, Defendants’

2 Even if it were proper to consider the contents of the Austin affidavit, there is still a genuine

dispute of material fact concerning whether Coleman was able to exhaust his administrative

remedies as discussed in this Court’s prior Order. (Doc. 19).

second motion for summary judgment for failure to exhaust administrative remedies is

DENIED.

B. Count I - Excessive Force

Defendants next discuss the merits of Coleman’s Eighth Amendment excessive

force claim. The Eighth Amendment prohibits the government from imposing “cruel and

unusual punishment” upon prisoners. U.S. Const. amend. VIII. But not every shove by a

prison guard gives rise to a constitutional violation. See Hudson v. McMillian, 503 U.S.

1, 9–10 (1992); Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014). Sometimes

“[t]he maintenance of prison security and discipline may require that inmates be

subjected to physical contact actionable as assault under common law.” Combs v.

Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002) (citation omitted). Prison officials

nonetheless violate the Eighth Amendment when their “‘offending conduct reflects an

unnecessary and wanton infliction of pain.’” Williams v. Curtin, 631 F.3d 380, 383 (6th

Cir. 2011) (quoting Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995)).

There are two components to an Eighth Amendment claim: the objective and

subjective components. “First, the subjective component focuses on the state of mind of

the prison officials.” Cordell, 759 F.3d at 580 (citing Williams, 631 F.3d at 383). When

answering the subjective component, we ask “whether the force was applied in a good-

faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm.” Hudson, 503 U.S. at 7. Second, “the objective component requires the pain

inflicted to be sufficiently serious.” Cordell, 759 F.3d at 580 (citing Williams, 631 F.3d

at 383). “This component requires a ‘contextual’ investigation, one that is ‘responsive to

contemporary standards of decency.’” Id. (quoting Hudson, 503 U.S. at 8).

1. Subjective Component

The subjective component considers the officials culpable state of mind and “[w]e

ask ‘whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.’” Cordell, 759 F.3d at 580 (quoting Hudson,

503 U.S. at 7).

In determining whether a prison official had a culpable state

of mind, we have found it helpful to consider “such factors as

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,” as well as “the extent of the threat

to the safety of staff and inmates, 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.”

Cordell, 759 F.3d at 581 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)) (alteration

in original). Considering these factors and the record in Coleman’s favor, a reasonable

jury could find that Defendants acted with malicious and sadistic intent to cause harm.

In support of the subjective component, Defendants contend that “the video is

dispositive in this instance.” (Doc. 21 at 19). The Court disagrees. As detailed, supra,

the parties contest the nature of the incident and whether the use of force was appropriate.

Defendant Bailey. The parties agree that the Bailey first pulled Coleman from the

inmate line to address a dress-code violation. Once Coleman was taken to the ground,

the parties agree that Bailey started hitting Coleman’s left side. Citing the Investigation

Summary Report Use of Force (the “Report”) generated after the incident, Coleman

states that Bailey punched him approximately 20 times in his head, neck, and shoulder

area. (Doc. 24-1 at PageID# 470). Coleman also claims that his hands were visible and

able to be restrained. (Coleman Dep., Doc. 21-8 at PageID# 168, 105:16–106:15).

Conversely, Bailey contends that he used a closed-fist, striking technique nine times, and

that he used this maneuver to get Coleman’s left arm from underneath his body and to

restrain him. (Bailey Dep., Doc. 24 at PageID# 420, 101:4–25–102:25). The videotape

of the encounter shows that Bailey used a punch and/or closed-fist strike on Coleman.

(Doc. 2). It does not clearly show whether Coleman’s left arm was below his body or

visible. (Id.)

Considering the foregoing in light most favorable to Coleman, a reasonably jury

could find that the need and amount of force used by Bailey – 20 punches to the shoulder,

neck, and head area while Coleman was not aggressive and his hands were free to be

cuffed – was not to maintain or restore discipline but used maliciously and sadistically to

cause harm.

Defendant Oninku. The parties agree that Oninku approached after Bailey pulled

Coleman out of line for wearing shorts instead of pants, and then Oninku conducted his

own search. Oninku states that Coleman was making aggressive moves and turning

around, prompting Oninku to use a “balance displacement maneuver” to guide Coleman

to the ground. (Doc. 21-4; Oninku Dep., Doc. 23 at PageID# 240, 51:18-52:20).

Coleman, however, testified that he was not acting aggressively and was physically

compliant with the officer’s orders. (Coleman Dep. Doc. 21-8 at PageID# 165–67, 96:9–

104:19). Bailey also testified that Oninku placed Coleman on the ground to remove and

look at Coleman’s shoe. (Bailey Dep., Doc. 24 at PageID# 377–79, 58:8–60:5). Then,

according to Coleman, once he was on the ground, Oninku grabbed his head and

slammed it into the ground two times. (Doc. 34 at 15 (citing Doc. 2; Doc. 24-1 at

PageID# 469–70)). At this point, there were three officers on top of Coleman. (Doc. 2).

Oninku states that he did not “slam” Coleman’s head, he held down Coleman’s head to

prevent him from spitting on the officers. (Doc. 24-1).

The video shows that Oninku took Coleman to the ground. (Doc. 2). The video

shows Coleman’s head hit the ground on two occasions because of some level of force

used by Oninku. (Id.) The Report also describes that “Oninku forcibly pushing

[Coleman’s] head down into the ground.” (Doc. 24-1 at PageID# 469–70).

Considering the foregoing in light most favorable to Coleman, a reasonably jury

could find that the need and amount of force used by Oninku – taking Coleman’s body to

the ground and slamming his head into the ground two times – was not to maintain or

restore discipline but used maliciously and sadistically to cause harm.

Defendant Kelly. The parties agree that Kelly was the third officer to respond,

after Oninku and Bailey. The parties agree that Kelly witnessed the entire event while

knelling on Coleman’s right leg and that Kelly sent a call over the radio for assistance.

Kelly declares that he knelt on Coleman’s leg to prevent Coleman from kicking anyone.

(Doc. 21-5). Coleman states there is no evidence that he tried to kick anyone,

maintaining his statement that he was not acting aggressively and trying to comply with

orders. Coleman argues that Kelly was complicit in the use of force event by failing to

do more than “stand idly by” while the other officers used excessive force.

Considering the foregoing in light most favorable to Coleman and the use of force

event, a reasonably jury could find that Kelly’s use of force against Coleman, combined

with his failure to temper the situation as the other Defendants continued and started

using force, evidences a malicious and sadistic intent to cause harm.

Defendant Drake. Drake witnessed Oninku conduct the pat-down search of

Coleman. (Drake Dep., Doc. 25 at PageID# 522, 22:14–22:25). Once Coleman was on

the ground, Drake sprinted towards the scene. (Id. at 24:22–25:1). There were already

three officers on top of Coleman. (Doc. 2). There is then conflicting testimony and

evidence concerning when Drake removed his PR-24 from its holster and whether he

used it by jabbing Coleman’s side two times. (See Doc. 2; Doc. 21-6; Coleman Dep.,

Doc 21-8 at PageID# 168, 106:16–106:22; Doc. 24-1 at PageID# 470; Drake Dep., Doc.

25 at PageID# 545, 45:8–11). The Report states that “Officer Drake responded and used

his PR-24 to gain control of Inmate Coleman’s left arm.” (Doc. 24-1 at PageID# 470).

Drake disagreed with the report and testified he did not use his PR-24. (Drake Dep., Doc.

25 at PageID# 551, 51:23–52:5). The video does not clearly show whether the PR-24

was used. (Doc. 2).

Considering the foregoing in light most favorable to Coleman and the use of force

event, a reasonably jury could find that Drake’s use of the PR-24 against Coleman when

he was not aggressive and his hands were free to be cuffed, and Drake’s failure to temper

the situation and force already being used by Bailey, Oninku, and Kelly, demonstrates a

malicious and sadistic intent to cause harm.

Defendant Bennett. The parties agree that Bennett arrived on the scene and

pepper-sprayed Coleman’s fact. Bennett contends he deployed a short burst of the spray

to gain compliance from Coleman. (Doc. 21-7). However, according to Bailey, Coleman

was already handcuffed by the time Bennett arrived. (Bailey Dep., Doc. 24, PageID#

421, 102:20–104:5). Coleman also maintained, as discussed with the other Defendants,

that he was not resisting, not acting aggressively, and trying to comply with directives.

Moreover, the video shows that, when Bennett arrived on the scene there were already

about eight officers on top of Coleman. (Doc. 2). The inmates in the line all remained

standing against the wall. (Id.)

Considering the foregoing in light most favorable to Coleman and the use of force

event, a reasonably jury could find that Bennett’s use of the OC spray when Coleman was

already cuffed and restrained by multiple officers, and Bennet’s failure to temper the

situation and force already being used by Bailey, Oninku, Kelly, and Drake, demonstrates

a malicious and sadistic intent to cause harm.

The Court recognizes that “prison officials ‘must make their decisions in haste

under pressure, and frequently without the luxury of a second chance.’” Combs, 315 F.3d

at 557 (quoting Hudson, 503 U.S. at 6). “The issue is therefore not whether the use of

force was absolutely necessary in hindsight, but whether the use of force could plausibly

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

(quotation omitted).

But, as discussed, the facts surrounding the use of force incident are disputed, and,

despite Defendants’ contention that the audio-less video is dispositive, it is not.

Coleman’s statement of the events is supported by record citations, including the Report

and are not necessarily contradicted by the video. “Facts that are not blatantly

contradicted by [a video] recording remain entitled to an interpretation most favorable to

the non-moving party.” Coble v. City of White House, 634 F.3d 865, 870 (6th Cir. 2011).

Moreover, it is not this Court’s place, when reviewing a summary judgment motion, to

weigh the evidence and make credibility judgments. Schreiber v. Moe, 596 F.3d 323,

333 (6th Cir. 2010). “‘[W]hen the non-moving party presents direct evidence refuting the

moving party’s motion for summary judgment, the court must accept that evidence as

true.” Id. (quoting Adams v. Metiva, 31 F.3d 375, 382 (6th Cir.1994)).

In sum, the video, the Report, and the testimony presented could support both

Defendants’ and Coleman’s version of events. At this stage, the Court construes it in

light most favorable to Coleman. A reasonable jury could conclude that Bailey, Oninku,

Drake, Kelly, and/or Bennett lacked a good-faith basis for using the amount of force that

Coleman alleges they used. A reasonable jury could conclude that when Drake, Bennett,

and/or Kelly arrived at the scene, they failed to temper the severity of the situation and

the amount of force used, and that they contributed to the use of excessive force. A

reasonable jury could review and weigh the evidence and reach a result in Coleman’s

favor. Summary judgment on the subjective component is inappropriate.

2. Objective Component

This component requires the pain inflicted to be sufficiently serious and requires a

contextual investigation as to whether the pain inflicted offends contemporary and

evolving standards of decency. See Cordell, 759 F.3d at 580. Defendants argue that they

are entitled summary judgment on the objective component because Coleman only

sustained de minimis injuries and the Eighth Amendment excludes coverage for de

minimis injuries. (Doc. 21 at 17 (citing Hudson, 503 U.S. at 9–10)). Defendants contend

de minimis injuries cannot demonstrate “sufficiently serious” injuries for purposes of the

objective prong of an Eighth Amendment claim. (Id.)

Defendants are mistaken. In an excessive force claim, the Supreme Court

recognizes that the focus is on the extent and appropriateness of force used, not the extent

of the plaintiff’s injuries. See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“[a]n inmate

who is gratuitously beaten by guards does not lose his ability to pursue an excessive force

claim merely because he has the good fortune to escape without serious injury”); Hudson,

503 U.S. at 7 (“The extent of Hudson’s injuries thus provides no basis for dismissal of his

§ 1983 claim.”). And, although the extent of injuries may provide helpful information

related to the extent of force used, “[t]he seriousness of the injuries are not dispositive.”

Williams, 631 F.3d at 383.

Defendants also contend that Coleman fails to provide any evidence of his injuries

or contradiction to a one-page medical report issued after the event, thus, the objective

component fails. (Doc. 35 at 8 (citing Doc. 21-9)). However, Coleman testified during

his deposition that he suffered bleeding from his face, knots on his head, blood clots in

his eyes, swollen wrists, scrapped forearms, bruises, two black eyes, back spasms, and

PTSD after the event. (Coleman Dep. Doc. 21-8, PageID# 171, 119:12-126:8; PageID#

179, 152:9–1547). The video also depicts the approximately 40-seconds during which

Coleman is taken to the ground, overtaken by 8-10 officers, and beaten. (Doc. 2).

Coleman is then seen struggling to walk and limping away once handcuffed after the

event. (Id.) A reasonably jury may view such evidence and find that the pain inflicted

and conduct of the officers offends contemporary standards of decency.

Accordingly, summary judgment on the objective component is not warranted.

C. Count II - Failure to Protect

Coleman’s second cause of action is a failure to prevent the excessive use of force

against Kelly, Bailey, Drake, and Bennett. (Doc. 1 at 8). Defendants do not discuss this

claim in their opening motion, seemingly suggesting that this claim fails because there is

no excessive force. (See Doc. 21). However, Defendants ask for a full dismissal of

Coleman’s complaint, and the parties discuss protection and intervention in their

responsive memoranda; thus, the Court will consider this claim.

“A correctional officer who observes an unlawful beating may, nevertheless, be

held liable under § 1983 without actively participating in the unlawful beating.”

McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990) (citing Bruner v. Dunaway, 684

F.2d 422, 426 (6th Cir. 1982)). However, here, Coleman’s failure to protect claim fails

because, as discussed, each Defendant participated in the beating at some level.

Moreover, each officer’s failure to temper the use of force goes directly to whether the

officers possessed the culpable state of mind for Coleman’s excessive force claim.

Accordingly, Defendants’ motion for summary judgment on the failure to protect

claim is GRANTED.

D. Qualified Immunity

Defendants last argue that they are entitled to qualified immunity because

Coleman cannot demonstrate the objective or subjective components of the Eighth

Amendment analysis. (Doc. 21 at 21).

“At summary judgment, a government official is entitled to qualified immunity

unless the plaintiff can establish both that (1) there is a genuine dispute of material fact as

to whether the official deprived her of a constitutional right, and (2) the right was clearly

established at the time of the official’s actions such that a reasonable official would have

known that her actions were unconstitutional.” Hicks v. Scott, 958 F.3d 421, 430 (6th

Cir. 2020) (citing Pearson v. Callahan, 555 U.S. 223, 231–32 (2009)). “A reviewing

court has ‘discretion to decide the order in which to engage these two prongs.’” Id.

(citing Tolan v. Cotton, 572 U.S. 650, 656 (2014)).

The first prong is met because, as discussed, there is a genuine dispute of material

fact as to whether each defendant deprived Coleman of his constitutional right, using

excessive force in violation of the Eighth Amendment.

Second, for a right to be clearly established, “the right’s contours [need to be]

sufficiently definite that any reasonable official in the defendant’s shoes would have

understood that he was violating it.” Cordell, 759 F.3d at 587 (“any reasonable official

would know that ramming a handcuffed and controlled prisoner headfirst into a concrete

wall is an unreasonable method of regaining control of a prisoner in a hallway occupied

only by other jail officials”). “The relevant question here is whether it would be clear to

a reasonable officer that [their] conduct was unlawful in the situation he confronted.”

Schreiber, 596 F.3d at 333 (“right to be free from excessive force clearly established”

when officer repeatedly punched inmate in face while in handcuffs).

Reviewing the facts in light most favorable to Coleman, reasonable officers would

know that the actions taken by Defendants were unreasonable in these circumstances. It

would be unreasonable to use 20 punches to the head, neck, and shoulder area to restrain

an inmate when the inmate’s hands were visible to cuff (Bailey). It would be

unreasonable to slam an inmate’s face into the ground twice to regain control of an

inmate (Oninku). It would be unreasonable to kneel on an inmate’s leg, witness the force

used by other officers, and aid in the force used (Kelly). It would be unreasonable to ram

an inmate’s side with a PR-24 twice to regain control when the inmate is not resisting,

and the inmate’s hands are available to cuff (Drake). It would be unreasonable to pepper

spray an inmate’s face after he is already restrained in handcuffs (Bennett). And, it

would be unreasonable for the amount of force used to continue when the inmate is not

acting aggressively, when the inmate is surrounded by 8-10 other officers, and in

response to a dress code-violation.

Defendants’ request for qualified immunity is DENIED.

IV. CONCLUSION

Based upon the foregoing, Defendants’ motion for summary judgment (Doc. 21) is

GRANTED IN PART and DENIED IN PART. Plaintiff’s second cause of action for

failure to protect is DISMISSED. Plaintiff’s first cause of action for excessive force

remains pending.

IT IS SO ORDERED.

Date: 8/17/2021 s/Timothy S. Black

Timothy S. Black

United States District Judge