Luke v. Lambert

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

CHERYL LUKE,

Plaintiff,

Case No. 1:17-cv-63

v. JUDGE DOUGLAS R. COLE

DAVID JOHNSON,

Defendant.

OPINION AND ORDER

During the spring of 2013, Cheryl Luke, the plaintiff in this action, was

incarcerated in the Warren County Jail. The gravamen of her claim is that the sole

remaining defendant in this action, David Johnson, who was a corrections officer at

that facility, sexually assaulted her on one occasion during her incarceration. Johnson

has now moved for summary judgment. (Doc. 102). As more fully set forth below,

while there are some discrepancies in Luke’s account of the alleged events, her

testimony nonetheless suffices to create a genuine dispute of material fact as to her

claim, and that account is not blatantly contradicted by the video evidence that

Johnson provides. Accordingly, the Court DENIES the Motion (Doc. 102) as to the

individual-capacity claims arising out of alleged sexual assault by Johnson. Because

Luke has indicated that she will drop any remaining claims not arising out Johnson’s

alleged sexual assault, as well as any remaining official-capacity claims against

Johnson, the Court GRANTS the Motion (Doc. 102) as to those claims.

FACTUAL BACKGROUND

A. Luke Spends Eleven Days At The Warren County Jail.

In 2013, while living in Colorado, Luke was arrested on two Ohio warrants,

one in Butler County and the other in Warren County. (Def. Ex. 1, Defendant’s

Proposed Undisputed Facts (“Def. Prop. Facts”), Doc. 102-1, #2593; compare Pl. Resp.

to Def. Prop. Undisputed Facts (Pl. Resp)., Doc. 115, #3525). Luke was incarcerated

in the Butler County Jail for approximately one week during April 2013. (Def. Prop.

Facts, Doc. 102-1, #2593).1 Luke was then incarcerated in the Warren County Jail

(“the Jail”) for about one and a half weeks beginning May 3, 2013. (Id. at #2594).

Luke’s time in the Jail ended on May 14, 2013, when she was transferred to Summit

Behavioral Health (“Summit”) to receive mental health care. (Id.).

At the start of her period of incarceration in the Jail, Luke was housed among

the Jail’s general population. (Id. at #2597). However, on May 7, Jail staff requested

Luke’s transfer to the Jail’s booking department so that she could be on increased

watch. (Id.). As a matter of policy, the Jail places inmates on increased watch when

they need more constant supervision or if they are at risk of experiencing a medical

emergency. (Id. at #2598). Luke’s assignment to the booking department on increased

watch continued until the end of her period of incarceration at the Jail on May 14.

(Id. at #2597). Luke’s claim in this action relates to this eight-day period she spent in

the booking department of the Jail.

1 The Court has in each instance compared Defendant’s Proposed Undisputed Facts with

Plaintiff’s Response to Defendant’s Proposed Undisputed Facts to determine which facts are

undisputed. For convenience, the Court cites only the former document here and following.

The booking department of the Jail contains three holding cells. (Id. at #2594).

Cell 2 is a larger cell that can hold up to six individuals; cells 1 and 3, by contrast,

are identical single cells. (Id. at #2594–95). Holding cells 2 and 3 are located across

from the booking counter. (Id. at #2595). Holding cell 1, though, is located at the end

of a hallway leading behind the booking counter. (Id.).

Three video cameras monitor the booking department. (Id. at #2596). However,

Johnson relies on the footage from only a single camera, Camera A, in support of the

instant motion. (Compare Def. Mot. for Summ. J., Doc. 102, #2559, with Pl. Resp.,

Doc. 115, #3530). At argument, Johnson explained that is because the other two

cameras have limited storage, and frequently “overwrite” existing video with new

video. Here, by the time Luke pressed her claims, footage from the other cameras

during the relevant time period was no longer available. Footage from Camera A does

not capture the interior of holding cell 1. (Compare Def. Prop. Facts, Doc. 102-1, #2596

(“From Camera A one can also see anyone who walks in the direction of cell 1.”), with

Pl. Resp., Doc. 115, #3530 (“booking Cell 1 is not on video …”)). Holding cells 2 and 3

are visible from Camera A. (Def. Prop. Facts, Doc. 102-1, #2596).

When she was transferred to increased watch on May 7, Luke was initially

housed in holding cell 3. (Id. at #2598). Luke subsequently spent periods of time

housed in both holding cell 1 and holding cell 3 during her period of incarceration in

the booking department of the Jail. (See, e.g., id. at #2604, 2606, 2612).

B. Johnson Interacts With Luke In Her Cell.

Johnson worked as a relief supervisor in the Jail in May 2013. (Id. at #2597).

During the eight-day period relevant here, Johnson worked from time to time in the

booking department. This included, on occasion, interacting with Luke.

In her Amended Complaint (Doc. 5), Luke originally alleged that Johnson and

at least two other corrections officers sexually assaulted her “on more than one

occasion” during her time in the booking department. (Am. Compl., Doc. 5, #43). But

Luke was noncommittal on when during that time period the alleged assaults

occurred.

In fairness to Luke, that may have been due to issues outside her control. Luke

suffers from severe epilepsy, and she has also received treatment for anxiety and

depression. (Luke Dep., Doc. 91-8, #634, 778). During her period of incarceration at

the Jail, Luke had displayed erratic and troubled behaviors for which she received

medical attention both inside and outside the facility. That may have resulted in part

from a lapse in Luke’s anti-seizure medication, combined with the possibility

(according to Luke) that when Luke did resume such medication, it was Tegretol

rather than Dilantin or Lyrica, the drugs she was accustomed to taking. (Pl. Resp. in

Opp. (“Pl. Opp.”), Doc. 112, #3439–3440). But the Court also notes that Johnson

disputes whether Luke took Tegretol at the jail, citing Luke’s deposition testimony

that she does not remember doing so. (Def. Repl. in Supp. of Mot. for Summ. J. (“Def.

Repl.”), Doc. 120, #3586 (citing Luke Dep., Doc. 91-8, #979, 989)). In any event, Luke

was first placed on increased watch, and thus transferred to the booking department,

due to her “bizarre behavior” at 1:36 a.m. on May 7. (Def. Prop. Facts, Doc. 102-1,

#2597–98).

As noted above, Luke originally alleged multiple assaults by multiple

assailants. By the time summary judgment arrived, though, Luke had dropped her

claims against all other defendants in this action (see Doc. 81), and she was alleging

assault only against Johnson. Because Luke had still failed to pinpoint the time when

the alleged assault occurred, in support of the instant Motion for Summary

Judgment, Johnson painstakingly documents every instance in which the two are in

each other’s presence during the entire eight-day period. The only time it appears

that the two were together for any extended period of time, yet off camera, was an

approximately two-and-a-half-minute period on May 8, 2013. Perhaps not

surprisingly, Luke now claims that is when the assault occurred.

On that day, the video shows that Johnson and a female corrections officer

moved Luke from holding cell 3 to holding cell 1. (Def. Prop. Facts, Doc. 102-1, #2601–

02). At 1:22 p.m., Johnson went down the hallway to holding cell 1, followed by a

female corrections officer about thirty seconds later. (See Defendant’s Exhibit 38

(“Def. Ex. 38”), Clip 7 13:22:40–13:24:28). Johnson and the officer took Luke out of

the booking department. (See id.). At 1:31 p.m., Johnson took Luke back to holding

cell 1. (Id.). Johnson returned from holding cell 1 at 1:34 p.m. (See Def. Ex. 38, Doc.

100, Clip 8 13:31:43–13:34:10). For the two-and-a-half minutes after Johnson and

Luke entered cell 1 until Johnson returned to view, neither Johnson nor Luke was

visible from Camera A. (See id.). As noted, this was their only known off-camera

interaction during Luke’s stay in the booking department. (Pl. Resp., Doc. 115,

#3542).

C. Luke Receives Medical Care And Sperm Is Found In Her Urine.

On May 9, the day after the day on which Luke now claims the alleged assault

occurred, Luke became unresponsive while in the shower area, displaying fixed and

dilated pupils. (Def. Prop. Facts, Doc. 102-1, #2604). Luke was transported to

Bethesda Arrow Springs Hospital (“Bethesda Hospital”) at about 4:30 a.m. (Id. at

#2605). Part of the diagnostic work-up the hospital performed included a urinalysis.

(Id.). That urinalysis did not detect the presence of any sperm.2 Based on the testing

conducted on Luke, the treating physicians diagnosed Luke with “conversion

reaction.” (Id.). Luke returned to the Jail that day.

As alluded to above, the incident that led to Luke’s transport to Bethesda

Hospital was merely one instance of a series of odd behaviors. For example, on several

occasions during her time in the booking department, Luke stood naked at the door

of holding cell 1. (Id.). At some point during her time there, although the parties

dispute exactly when, corrections officers taped trash bags over the window.

(Compare id., at #2609, with Pl. Resp., Doc. 115, #3550). While they disagree on the

exact date, they agree that the trash bags were placed over the windows of holding

cell 1 in order to prevent others from seeing Luke in the nude. (Def. Prop. Facts, Doc.

102-1, #2609).

2 A urinalysis is not meant to test for the presence of sperm. At the same time, as discussed

below, if sperm is present in a patient’s vagina, a urinalysis catheter can sometimes transport

sperm into the bladder, in which case its presence may be detected in a urinalysis.

These and other instances of Luke’s behavior led the medical staff of the Jail

to arrange for Luke to be transported to Atrium Emergency Room on May 10 (the day

after her trip to Bethesda Hospital). (Id. at #2610). Atrium ran various medical tests

on Luke including a head CT scan, blood work, and another urinalysis. (Id. at #2612).

For the urinalysis, Nurse Shannon Burkhart collected Luke’s urine sample using a

catheter. (Id. at #2613). This time, the test revealed the presence of sperm in Luke’s

urine. (Compare Pl. Resp., Doc. 115, #3567, with Def. Prop. Facts, Doc. 102-1, #2616).

Nurse Burkhart did not observe any injuries to Luke’s genital area and did not

request a SANE (sexual assault) examination for Luke. (Def. Prop. Facts, Doc. 102-1,

#2613).

Luke returned from Atrium to the Jail that same day. (Id.). Four days later, on

May 14, 2013, Luke was transferred to Summit for additional behavioral health

treatment. (Def. Prop. Facts, Doc. 102-1, #2615).

D. Luke Alleges That Johnson Sexually Assaulted Her.

A few days after Luke’s arrival at Summit, Summit personnel called Johnson

to inform him that Luke’s criminal legal counsel had requested a rape kit due to a

finding of sperm in Luke’s urinalysis. (Def. Prop. Facts, Doc. 102-1, #2615; Pl. Resp.,

Doc. 115, #3560). Johnson notified Barry Riley, the Warren County Jail

Administrator. (Def. Prop. Facts, Doc. 102-1, #2616). Riley instructed Johnson to

notify the Warren County Sheriff’s Office and ask them to open an investigation, and

Johnson did so. (Id.). The investigation was assigned to Detective Paul Barger, who

interviewed Luke some months later, on August 6, 2013, along with Detective Brandy

Carter. (Id. at #2617). Luke told Barger she was sexually assaulted at the Warren

County Jail. (Id.). Barger also reviewed jail video of Luke, Luke’s medical records,

and her increased watch log records. (Id. at #2618). Barger also interviewed Johnson.

(Id.). Barger ultimately closed Luke’s case, and no criminal charges were brought

against any officer for assaulting Luke. (Id. at #2619).

The parties dispute how Luke first learned of the presence of sperm in her

urine sample collected at Atrium. While her criminal defense counsel learned of the

result shortly after Luke arrived at Summit, it is not clear that Luke also learned at

that time. Johnson maintains that Luke learned of the test result when she was

transferred to the University of Cincinnati Hospital (“U of C Hospital”) for a SANE

exam on May 20. (Def. Prop. Facts, Doc. 102-1, #2616). But Luke says there is no

evidence of any discussion with U of C Hospital providers regarding the sperm

finding, and that she does not remember engaging in any such conversation. (Pl.

Resp., Doc. 115, #3561; Luke Dep., Doc. 91-8, #768). Nevertheless, the parties agree

that at the U of C Hospital examination on May 20, Luke denied any sexual assault,

was not observed to have any physical injuries, and did not receive a SANE

examination or submit to a rape kit. (Def. Prop. Facts, Doc. 102-1, #2617).

E. Luke Sues Johnson And Others Based On Her Treatment While At The

Warren County Jail.

Luke first sued Johnson (and numerous other defendants) roughly two years

later on May 1, 2015. In her original Complaint, Luke asserted various counts, only

some of which pertained to Johnson. Claims against Johnson included deliberate

indifference to Luke’s serious medical needs, deliberate indifference to Luke’s safety,

violation of Luke’s substantive right to be free from sexual assault, tortious battery,

and failure to intervene. (See No. 1:15-cv-00288, Compl., Doc. 1, ¶¶ 50–76, #6–8). On

January 28, 2016, all parties to that suit agreed to a stipulated dismissal without

prejudice. (Stip., Doc. 30, #147–48).

On January 27, 2017, Luke filed the instant suit. She named the same

defendants, this time suing them in both their individual and their official capacities,

asserting many of the same claims. (Compl., Doc. 1). Against Johnson, Luke’s claims

included denial of medical care, failure to protect and denial of safety, denial of right

to be free from sexual assault and excessive force, battery, and failure to intervene.

(Id. at ¶¶ 81–96, #18–20). On February 1, 2017, Luke filed an amended complaint

asserting similar claims against the same defendants. (Am. Compl., Doc. 5, ¶¶ 73–92

#47–49). But, as noted above, on February 6, 2020, Luke moved to drop all defendants

other than Johnson, and on February 28, 2020, the Court granted that motion. (Mot.

to Drop, Doc. 81; Order granting Mot. to Drop, Doc. 82).

At her deposition on November 4, 2019, Luke provided the following account

of the alleged assault: although she could not remember the date on which it occurred,

Luke remembers that she woke up in her holding cell and felt pressure on the back

of her right collarbone and in the back of her shoulder blade. (Luke Dep., Doc. 91-8,

#622). Luke had mucous coming out of her nose. (Id.). Luke lifted her head up and

saw two sets of feet by the door of her cell and then saw Johnson. (Id.). Luke passed

out for a moment. (Id.). Luke felt vaginal penetration and saw Johnson standing over

her. (Id.). Luke stated that the two corrections officers whose feet she saw “were

blocking the door.” (Id. at #624). Luke heard voices of two or three men, but

recognized only Johnson. (Id.). The incident lasted twenty to thirty more seconds after

Luke woke up. (Id. at #626). Luke testified that she did not know whether anyone

ejaculated into her vagina, a fact that may be relevant as the urinalysis at Atrium

detected sperm. (Id. at #625).

Also during discovery in this action, on August 3, 2020, Luke submitted a

report from Dr. Ayman Mahdy regarding the procedures that Atrium used to take

and examine Luke’s urine sample. (Mahdy Decl., Doc. 104-3). Dr. Mahdy is a urologist

and associate professor of urology currently serving as the medical director of urology

services at West Chester Hospital. (Id.). Based on Burkhart’s account from her

deposition, Dr. Mahdy’s report concludes that Burkhart used the proper technique to

avoid external contamination of Luke’s urine sample and that the sample was

therefore reliable. (Id. at #2820). Dr. Mahdy also concludes that the lab technician,

Michael Peppas, properly analyzed the sample to contain sperm, again based on

Peppas’s deposition. (Id.). Dr. Mahdy’s report further opines that sperm in female

urine is “not a normal finding,” and that one possible source of sperm in female urine

is the presence of sperm in the vagina or labia, such as could occur after sexual

intercourse. (Id. at #2819). Dr. Mahdy’s report also suggests that the absence of sperm

in Luke’s urine sample taken May 9 at Bethesda Hospital does not rule out recent

sexual intercourse or presence of sperm in her vagina at that time. (Id. at #2820). Dr.

Mahdy’s report does not include any independent review of Atrium’s policies and

procedures for collecting and analyzing urine samples. (See generally id.; see also Def.

Obj., Doc. 117, #3572). Rather, Dr. Mahdy relies on his experience and review of the

medical literature to compare the deposition testimony of Burkhart and Peppas with

his understanding of the proper procedure for taking and analyzing a urine sample.

(Mahdy Decl., Doc. 104-3, #2818).

F. Johnson Moves For Summary Judgment.

On October 19, 2020, Johnson filed the instant Motion for Summary Judgment.

(Doc. 102). He argues that the video footage from Camera A blatantly contradicts

Luke’s account of sexual assault. (Def. Mot. for Summ. J., Doc. 102, #2576). For this

reason, Johnson argues that, despite Luke’s testimony, there is no genuine dispute of

material fact as to whether Johnson sexually assaulted Luke. (Id. at #2575). Johnson

also argues that the urinalysis result is “inconclusive” and therefore inadmissible

evidence that should not be considered on summary judgment. (Id. at #2579–80).

On November 24, 2020, Luke filed her opposition to Johnson’s Motion. (Doc.

112). In her response, Luke indicated that she would drop her claims against Johnson

that are based on conditions of confinement, failure to intervene, failure to protect,

and denial of medical care. (Id. at #3446 n. 3). Luke’s remaining claims of denial of

the right to be free from sexual assault, excessive force, and battery all stem entirely

from Johnson’s alleged sexual assault of Luke. (See id.). On December 8, 2020,

Johnson both replied in support of the instant Motion and objected to the

consideration of Dr. Mahdy’s Report under Federal Rule of Civil Procedure 56(c)(2).

(Def. Repl., Doc. 120; Def. Obj., Doc. 117). The Court heard oral argument on

September 9, 2021.

LEGAL STANDARD

To prevail on a motion for summary judgment, the moving party must

demonstrate that “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Morehouse v. Steak N Shake, 938 F.3d

814, 818 (6th Cir. 2019) (quotation omitted); Fed. R. Civ. P. 56(a). “The mere existence

of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be

no genuine issue of material fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690,

697 (6th Cir. 2020) (bracket omitted) (quoting Anderson v. Liberty Lobby, 477 U.S.

242, 247–48 (1986)). A “scintilla” of evidence is not enough; “the evidence must be

such that a jury could reasonably find for the plaintiff.” Mich. Prot. & Advocacy Serv.,

Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994). However, “[t]he party seeking

summary judgment always bears the initial responsibility of informing the district

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

demonstrate the absence of a genuine issue of material fact.” Rudolph v. Allstate Ins.

Co., No. 2:18-cv-1743, 2020 WL 4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) (internal quotation marks omitted).

Summary judgment is not the place for “[c]redibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts,”

which should instead be left for the jury at trial. Anderson, 477 U.S. at 255.

Accordingly, inferences to be drawn from the record must be viewed in the light most

favorable to the non-moving party. U.S. v. Diebold, 369 U.S. 654, 655 (1962).

Pursuant to Federal Rule of Civil Procedure 56(c)(2), a party may object that a

fact is not supported by evidence that could be presented in a form admissible at trial.

Fed. R. Civ. Pr. 56(c)(2). However, evidence need not already be presented in such

form to be considered on summary judgment, so long as it could be presented at trial

in a form that would be admissible. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

ANALYSIS

A. The Court May (And Does) Consider Luke’s Urinalysis Results From

Atrium And Dr. Mahdy’s Report In Deciding The Instant Motion.

As an initial matter, the Court must decide whether to consider the May 10

urinalysis results from Atrium showing sperm in Luke’s urine in connection with the

motion for summary judgment. The Court must also decide whether to consider Dr.

Mahdy’s expert report in support of the reliability of the techniques used to collect

and test the sample. Johnson argues that the former is “inadmissible” and that the

latter should be “disregarded.” (See Def. Mot. for Summ. J., Doc. 102, #2580; Def. Obj.,

Doc. 117, #3572). Regarding the urinalysis result, Johnson argues that it is

“inconclusive” because the test does not show the source of the sperm or how long it

was present in Luke’s urine, nor does the urinalysis confirm that Luke was sexually

assaulted. (Def. Mot. for Summ. J., Doc. 102, #2580). Regarding Dr. Mahdy’s report,

Johnson argues that the report lacks a sufficient basis in fact under Federal Rule of

Evidence 702 because Dr. Mahdy is not a lab technician and neither personally

observed the collection and testing of Luke’s urine sample nor reviewed Atrium’s

policies and procedures. (Def. Obj., Doc. 117, #3572).

The Court concludes that both the urinalysis result and Dr. Mahdy’s expert

report are appropriate for consideration at the summary judgment stage. Beginning

with the urinalysis result, Johnson’s attacks on its supposed shortcomings miss the

mark. The urinalysis did not seek or purport to determine either the source of sperm,

the length of time sperm had been present in Luke’s body, or the probability that

anyone sexually assaulted Luke. Rather, Luke relies on it simply as evidence that

sperm was present in Luke’s body shortly after the alleged sexual assault. Luke then

argues that a reasonable jury could infer from the presence of sperm, coupled with

the difficulty of identifying an alternative source for the sperm, that sexual assault

by Johnson was the source of the sperm. (See Pl. Opp., Doc. 112, #3541–3543). The

Court expresses no opinion on the merits of that inference, or even on whether the

test in fact accurately reported that result. The point is merely that Johnson has

failed to show that the urinalysis result is wholly unreliable, and, as such, that result

is at least probative evidence of the presence of sperm in Luke’s body shortly after the

alleged sexual assault. Defendant does not seriously dispute that. And it would be

difficult to deny that the presence of sperm tends to make it at least more likely

(which does not mean likely) that Johnson had sexually assaulted Luke as she

alleges. Johnson therefore has not shown that the urinalysis result is anything other

than relevant, admissible evidence appropriate for consideration at this stage.

In support of his characterization of the urinalysis result as “inconclusive,”

Johnson relies on the Sixth Circuit’s decision in Friedrich v. Echols. No. 91-3929, 1992

WL 233902, *6 (6th Cir. 1992). There, the Sixth Circuit held that a trial court did not

abuse its discretion when it excluded the results of a polygraph test based on the

examiner’s conclusion that the test results were “‘inconclusive, the same as no test

being given at all.’” Id. at *6. But Johnson cannot, and does not, argue that the

urinalysis in this case was “inconclusive” in the sense of being “the same as no test

being given at all.” Rather, the urinalysis in this case revealed the presence of sperm

in Luke’s urine, a fact that would not have been apparent in the absence of the

urinalysis. By the same token, as Luke notes, the test result in Myles v. Lafler was

“inconclusive” in the sense of failing to provide reliable evidence as to whether or not

gunshot residue was present on the defendant’s person. (See Pl. Opp., Doc. 112, #3452

(citing Myles v. Lafler, No. 2:06-cv-14101, 2012 WL 1021720, at *7 (E.D. Mich. Mar.

27, 2012))). Again, Johnson here does not argue that the urinalysis result in this case

is “inconclusive” in that sense, nor, as noted, does he point the Court to any facts that

would cast doubt on its reliability. Because the urinalysis result is at least probative

evidence of the presence of sperm in Luke’s body two days after the alleged sexual

assault, it is relevant evidence that tends to make a material fact more likely (which,

again, is not the same as likely). Johnson has not shown that it is otherwise

inadmissible. The Court will therefore consider the urinalysis result as part of the

record on summary judgment.

Turning to Dr. Mahdy’s report, the Court also finds Johnson’s objection

unpersuasive. Johnson cites no legal authority, and the Court is aware of none, for

the proposition that an expert who opines on the reliability of the procedures used to

collect or test a given medical sample must review the policies of the institution where

the test took place, much less that the expert must personally observe the collection

or analysis as Johnson seems to suggest. (Def. Obj., Doc. 117, #3572). Here, Dr.

Mahdy instead relied on the deposition testimony of Burkhart and Peppas regarding

the procedures they used to collect and test Luke’s urine sample. Johnson identifies

nothing inherently inappropriate about such reliance for purposes of expert

testimony. Moreover, although Johnson notes that Dr. Mahdy “never ran or

supervised a lab,” Johnson fails to explain why this fact renders Dr. Mahdy

incompetent to opine as to whether a given lab procedure passes muster. (Id.). Dr.

Mahdy has practiced as a urologist and professor of urology for decades. (Mahdy

Decl., Doc. 104-3, #2822). The Court sees no reason at present to disregard Dr.

Mahdy’s report and will consider it as part of the record on summary judgment.3

B. Luke’s Testimony, If Not Disregarded, Creates A Genuine Dispute Of

Material Fact As To Whether Johnson Sexually Assaulted Luke.

The central question presented by Johnson’s Motion is whether there is a

genuine dispute of material fact regarding Luke’s claims. The Court has little

difficulty identifying the most important factual dispute between the parties—Luke

contends that Johnson sexually assaulted her on May 8 between 1:31 and 1:34 p.m.,

and Johnson denies that he ever sexually assaulted Luke. To call this dispute

material would be an understatement. If a jury were to credit Luke’s sworn testimony

that Johnson sexually assaulted her, she would likely win her case. If, by contrast,

3 Johnson remains free to voir dire Dr. Mahdy at trial, and if the doctor lacks a sufficient

expertise regarding laboratory procedures, the Court will exclude that evidence at trial.

Based on the paper record at summary judgment, though, the opinion passes muster.

the jury were to credit Johnson’s testimony, Luke’s case would be doomed. In short,

the outcome here largely turns on assessing the comparative credibility of the two

witnesses, a task assigned solely to the province of the jury.

Even if the competing accounts themselves were not enough, Luke also points

to the urinalysis finding of sperm, coupled with the alleged difficulty of identifying

another source of the sperm, as support for her case. (Pl. Resp., Doc. 115, #3449–53).

And, Luke’s Response to Johnson’s Proposed Undisputed Facts also includes

reference to other facts—Johnson’s act of discarding Luke’s mattress, the possibility

that trash bags were covering the windows of Luke’s cell when Johnson and Luke

were there together, the fact that Johnson testified that he could not remember where

he was with Luke when he took her out of booking, and Luke’s alleged vulnerable

condition partly induced by the Tegretol medication—as further support for her case.

(Pl. Opp., Doc. 112, #3450; Pl. Resp., Doc. 115 #3550, 3542, 3559). For his part,

Johnson has competing explanations on each of these fronts.

The Court need not address, though, whether this other evidence, in and of

itself, would suffice to create a genuine dispute. Luke’s testimony that Johnson

sexually assaulted her is the central piece of evidence that would ordinarily suffice

on its own to survive summary judgment. Accordingly, so long as the Court does not

entirely discount Luke’s testimony, there is a genuine dispute of material fact that

precludes summary judgment. Indeed, Johnson does not really dispute that point.

Rather, he contends that the Court should entirely discount Luke’s account. That is

the issue to which the Court turns now.

C. Video Evidence Does Not Blatantly Contradict Luke’s Claim That

Johnson Sexually Assaulted Her.

While acknowledging that competing eyewitness accounts typically create a

genuine dispute of material fact, Johnson argues that there is an exception to that

rule. In particular, he argues that a court can reject a witness’s version of events

where video evidence “blatantly contradicts” the witness’s statement. And here, he

argues, the video footage from Camera A “blatantly contradicts” Luke’s claim that

Johnson sexually assaulted her. (Def. Mot. for Summ. J., Doc. 102, #2576–79). The

Court disagrees.

Johnson’s argument starts on firm legal footing. The Supreme Court has held

that, where a party’s account is “blatantly contradicted” by video footage, “so that no

reasonable jury could believe it,” a court should not adopt that version of events for

summary judgment purposes. Scott v. Harris, 550 U.S. 372, 380 (2007). But “blatantly

contradicted” is a fairly high standard. Caselaw suggests, for example, that an

important consideration in making that determination is whether the witness’s

account relates to events depicted in the video footage itself. For example, in Scott v.

Harris, the material factual issue concerned whether the plaintiff, a criminal suspect

in a high-speed chase, “was driving in such fashion as to endanger human life,” such

that an officer’s decision to ram his bumper into the suspect’s vehicle was objectively

reasonable. 550 U.S. at 380. The video footage there blatantly contradicted the

plaintiff’s self-serving characterization of his driving because it showed (on-camera)

how the plaintiff was driving at the time in question. Similarly, the leg-sweep

maneuver that formed the basis for the Eighth Amendment excessive force claim in

Griffin v. Hardrick occurred on-camera, as did the events that formed the basis for

the officer’s good-faith defense, and it was footage of these events that contradicted

the plaintiff’s allegation of excessive force. 604 F.3d 949, 954 (6th Cir. 2010). So far

as the Court can tell, Johnson has cited no case in which video footage “blatantly

contradicted” a plaintiff’s narrative as to events not captured in that footage. See

Shreve v. Franklin County, Ohio, 743 F.3d 126, 135 (6th Cir. 2014) (video footage

showed officers tried to handcuff suspect several times before using taser);

Pennington v. Terry, 644 F. App’x 533, 534 (6th Cir. 2016) (video from officer’s

dashboard camera “clearly depict[ed] all of the material facts”).

This is not to say that video footage could never blatantly contradict a party’s

account as to events not depicted in that footage. For example, in a given case, it

might be that the events the video footage does capture render a party’s account of

what happened off-camera a physical impossibility. To use an example related to the

facts here, if an inmate claimed that an officer caused off-camera physical injuries

obviously inconsistent with the inmate’s bodily condition evidenced in video footage

immediately after the alleged injuries occurred, a court might be justified in

disregarding the inmate’s testimony to such injuries for summary judgment

purposes. Imagine, for example, that an inmate claims that an officer sliced the

inmate’s right forearm with a knife off camera, but on-camera footage captured

shortly after the alleged event clearly depicts the inmate’s right forearm, and there

is no wound present. But even then, caselaw suggests that the standard is high—

disregarding the inmate’s account is justified only when it is clear that the video

footage would have captured the alleged injuries had they occurred. See Germain v.

Gilpin, No. TDC-18-0846, 2019 WL 1433019, at *8 (D. Md. Mar. 29, 2019) (absence of

pepper spray in video footage of inmate’s body immediately after alleged incident

insufficient for summary judgment where evidence did not establish pepper spray

would necessarily have been visible on video). In other words, video evidence

“blatantly contradicts” a party’s account of what occurred off camera, only if what is

depicted on the video footage is necessarily inconsistent with that account.

A second, related principle also comes into play on the facts here. According to

the Sixth Circuit, “that a recording blatantly contradicts a party’s exact version of the

events, or certain parts of his version, is not alone fatal at summary judgment. A

recording must blatantly contradict a party’s entire version of events in material

respects to each claim.” Hanson v. Madison Cnty. Det. Ctr., 736 F. App’x 521, 527 (6th

Cir. 2018). Accordingly, “[e]ven if part of a party’s testimony is blatantly contradicted

by an audio or video recording, that does not permit the district court to discredit his

entire version of the events.” Id. (quoting Coble v. City of White House, 634 F.3d 865,

870 (6th Cir. 2011)). In Hanson itself, for example, the Sixth Circuit concluded that

video footage did not “blatantly contradict” the plaintiff’s entire narrative that

officers’ use of pepper spray during a one-minute interaction in his jail cell was

gratuitous because the cause of his cell door opening was not fully visible to the

camera, even though the footage captured much of what happened and contradicted

parts of his story. Id. at 536. Similarly, in Green v. Throckmorton, the Sixth Circuit

determined that video footage did not blatantly contradict a plaintiff’s account of

arrest without probable cause during a traffic stop in part because the video did not

“clearly depict” the plaintiff’s performance on sobriety tests the officer administered.

681 F.3d 853, 859, 865 (6th Cir. 2012).

The combination of those two principles dooms Johnson’s efforts to establish a

blatant contradiction here. Johnson concedes that he and Luke were alone and off

camera for approximately two-and-a-half minutes. In other words, the key events

occurred off camera, creating a hurdle for his blatant-contradiction argument right

from the start. And there is no obvious or inherent contradiction between the sexual

assault that Luke claims occurred off camera, and what is depicted on camera. To be

sure, a jury would need to find that a lot of things happened quickly during that short

period of time, and that Johnson composed himself quickly after the alleged event,

but what is depicted on camera does not render the central aspects of Luke’s account

impossible.

Johnson tries to overcome that problem by pointing to several inconsistencies

between Luke’s story and what is depicted. For example, while Luke claimed she saw

two sets of boots in the doorway, the video shows that no one is standing in the

doorway during the key two-and-a-half-minute stretch here. (Def. Mot. for Summ. J.,

Doc. 102, #2579; Def. Repl., Doc. 120, #3580). Likewise, her account about waking up

during the assault appears inconsistent with Luke’s wakeful, ambulatory state

moments before entering her cell with Johnson as depicted on the video. (Def. Mot.

for Summ. J., Doc 102, #2579). Moreover, Johnson argues, the video footage blatantly

contradicts Luke’s claim that she was sexually assaulted because it fails to capture

any images or sounds suggestive of sexual assault. (Id.).

The problem for Johnson is that the portion of the events depicted on the screen

are not central to Luke’s account. The alleged wrongdoing itself occurred inside the

cell, which all agree is not depicted on the video footage. Whether other officers were,

or were not, in the doorway at the time is not a material part of Luke’s claim. And,

the apparent discrepancy between Luke’s claim that she woke up during the assault,

as compared to her apparent wakefulness and ability to walk on the video footage,

may be explained, Luke says, by the fact that she was taking Tegretol. She points to

evidence that one side effect of that drug may be to induce seizures that cause a

“continuous confusional awake state.” (Pl. Opp., Doc. 112, #3450 (citing McKee Dep.,

Doc. 108, #3116)).

Accordingly, the Court finds that the video evidence does not “blatantly

contradict” Luke’s claim that Johnson sexually assaulted her. As Johnson appears to

admit, there is no footage that shows what happened between Johnson and Luke

when they were alone together in holding cell 1. (See Def. Repl., Doc. 118, #3579)

(“Sergeant Johnson is off camera for approximately two minutes and thirty

seconds…”). At most, the video blatantly contradicts portions of her testimony (like

the two sets of boots). But “that does not permit the district court to discredit [her]

entire version of the events.” Hanson, 736 F. App’x. at 527 (quoting Coble, 634 F.3d

at 870). In short, Johnson’s arguments ultimately amount to various factual

inferences favorable to Johnson that a jury might draw from what the video footage

does show. As before, the Court need not opine about the persuasiveness of those

inferences. It is enough to note that Johnson’s arguments ultimately go to Luke’s

credibility and to the believability of her account, rather than to the existence of a

genuine dispute of material fact. As such, they are not a basis for disregarding the

entirety of Luke’s testimony and granting summary judgment to Johnson.

As for “sounds of an assault,” the Sixth Circuit has similarly considered that

“[t]he lack of sound on an audio recording cannot be reliably used to discount [the

plaintiff’s] testimony.” Coble, 634 F.3d. at 869. The Sixth Circuit reasoned that

“[m]any factors could affect what sounds are recorded, including the volume of the

sound, the nature of the activity at issue, the location of the microphone, whether the

microphone was on or off, and whether the microphone was covered.” Id. Johnson

does not address these factors in his Motion for Summary Judgment, nor does

Johnson develop the argument from absence of sound beyond merely mentioning it

in support of the more general argument that the footage blatantly contradicts Luke’s

account. At oral argument, Johnson did refer to some other instances where the audio

captured exchanges among inmates and officers in the booking area. Nevertheless,

for the Court to rely on the claimed absence of audio suggestive of sexual assault

would require the Court to assume that any sexual assault of Luke by Johnson

necessarily would have made sounds that the audio portion of the video evidence

would have captured. That factual assumption would not be appropriate at the

summary judgment stage, at least in the absence of a more developed record and

briefing regarding the issue.

For these reasons, the Court finds that neither the video nor the audio footage

in the record blatantly contradicts Luke’s claim that Johnson sexually assaulted her

in a holding cell.

Because Luke’s testimony in combination with other evidence in the record

would be sufficient to create a genuine dispute of material fact in the absence of

blatant contradiction by video evidence, and because the Court has determined that

there is no such blatant contradiction in this case, the Court concludes that there is

a genuine dispute of material fact as to whether Johnson sexually assaulted Luke

that precludes summary judgment.

D. Johnson Has Not Established A Defense Of “Qualified Immunity” Or

Statutory Immunity.

Separately, Johnson repeatedly and prominently invokes the concept of

“qualified immunity” in support of his Motion for Summary Judgment. (See Def. Mot.

for Summ. J., Doc. 102, #2574). That is puzzling. As should be clear by now, the live

dispute in this case concerns whether Johnson sexually assaulted Luke. If a factfinder

were to determine that Johnson in fact did so, it is difficult to imagine how qualified

immunity, a defense based on lack of clearly established law, could save him. As

Plaintiff notes, the principle that sexual assault by an officer violates constitutional

rights is about as clearly established as it gets. See, e.g., Rafferty v. Trumball Cnty.,

Ohio, 915 F.3d 1087, 1095 (6th Cir. 2019). On the other hand, if a factfinder were to

determine that Johnson did not commit the alleged sexual assault, then Johnson

would not need (or receive) qualified immunity, rather he would win on the merits.

At oral argument, Johnson’s counsel clarified that Johnson is not claiming that

he is entitled to qualified immunity if he in fact assaulted Luke. Rather, his only

“qualified immunity argument” was that the undisputed facts show that he did not

do so. For the reasons just discussed, this argument does not sound in qualified

immunity. Thus, the Court finds that Johnson is not entitled to summary judgment

based on the affirmative defense of qualified immunity.

The same logic applies to Johnson’s argument against Luke’s state-law battery

claim based on Ohio statutory immunity. In his Motion, Johnson argues that he

would be entitled to statutory immunity because he “did not act maliciously,

wantonly, recklessly, or in bad faith.” (Def. Mot. for Summ. J., Doc. 102, #2590 (citing

Ohio R.C. § 2744.03(A)(6)(a)–(c))). But again, that all depends on whether the

factfinder concludes by a preponderance of the evidence that Johnson sexually

assaulted Luke. If no, then Johnson needs no further defense. If yes, then the Court

struggles to see how such sexual assault would not be (for example) “malicious,”

“wanton,” or “in bad faith,” under the Ohio statute, at least absent more significant

development of this argument than Johnson provides in his briefing. The Court

therefore rejects the argument that Johnson is entitled to summary judgment on his

state-law battery claim based on Ohio’s immunity statute.

E. Johnson Has Not Established His Statute-of-Limitations Defense With

Respect to Plaintiff’s Excessive Force Claim.

Finally, Johnson argues that some of Luke’s claims are barred by the statute

of limitations because they were not alleged in her complaint in the earlier action

filed in 2015. (Def. Mot. for Summ. J., Doc. 102, #2586–87). Luke has indicated,

however, that she will drop all but one of the claims to which this argument applies,

including any remaining official capacity claims. (Pl. Opp., Doc. 112, #3454–55).

Accordingly, Luke’s excessive force claim against Johnson in his individual capacity

is the only live claim to which this argument pertains. (Pl. Opp., Doc. 112, #3455).

Johnson argues that the excessive force claim is barred by the two-year statute

of limitations in Ohio Revised Code § 2305.10. (Def. Mot. for Summ. J., Doc. 102,

#2586). He concedes that, under Ohio’s saving statute, the excessive force claim would

relate back to the filing of the original complaint (and thus be timely) if the two suits

are “substantially the same.” (Id. at #2587). But he claims that standard is not met

here because the 2015 complaint sued Johnson (along with all the other defendants)

solely in their individual capacities, while the operative Complaint in this case sues

all defendants in both their individual and their official capacities. Johnson correctly

notes that an official-capacity suit amounts to a claim against the defendant’s

employer—here, Warren County. (See id. at #2586 (citing Alkire v. Irving, 330 F.3d

802, 810 (6th Cir. 2003))). And, adding a new defendant, Johnson further argues,

means that, as a matter of law, the two actions are not “substantially the same.” (Id.

at #2587).

As a general matter, two suits are “substantially similar” for purposes of Ohio’s

relation-back statute if the claims set forth in the second suit arise out of the same

operative facts as the claims in the first suit, and the nature of the claims in the first

suit suffice to put the defendant on notice. See Stone v. N. Star Steel Co., 786 N.E.2d

508, 512 (Ohio Ct. App. 2003) (“A new complaint is substantially the same as the

original complaint for purposes of the saving statute when the new complaint differs

only to the extent that it adds new recovery theories based upon the same factual

occurrences …”). Johnson is correct that adding a new party generally means that

the suits are not substantially similar for relation-back purposes, but that principle

applies to the party that is added, not the parties who were already present in the

previous suit. See Eaves v. Strayhorn, No. 1:09-cv-00394, 2010 WL 2521449, at *8

(S.D. Ohio June 15, 2010) (defendants sued only in official capacity in first suit could

not be sued in individual capacity in subsequent suit, but statute of limitations did

not bar the second suit’s official capacity claims). The idea is that a claim against

Party A would not necessarily put Party B on notice of the suit. Thus, Warren County

could rely on that principle to resist being added to this new suit. But Luke has agreed

to drop her official-capacity claims, meaning she is not objecting to Warren County’s

dismissal. (Pl. Opp., Doc. 112, #3454–55). Accordingly, the new-party principle has

little operative effect here.

In terms of the claims against Johnson, the excessive force claim arises out of

exactly the same set of facts on which the earlier sexual assault claim is based.

Moreover, the damages, if any, presumably would be identical. Thus, the new claim

is substantially similar to the previous claims, and it relates back.

In any event, ruling one way or the other has little practical import here. As

noted, the excessive force claim and the sexual assault claim are essentially identical,

both in terms of proof and of damages. If Luke succeeds on one, she would succeed on

the other, and if she fails on one, she necessarily fails on the other. Accordingly, the

Court rejects Johnson’s argument that the statute of limitations bars Luke’s excessive

force claim.

CONCLUSION

For the foregoing reasons, the Court DENIES Johnson’s Motion for Summary

Judgment (Doc. 102) with respect to Luke’s individual-capacity claims against

Johnson arising out of alleged sexual assault. The Court GRANTS Johnson’s motion

with respect to all of Luke’s claims not arising out of Johnson’s alleged sexual assault,

as well as any remaining official capacity claims against Johnson.

SO ORDERED.

September 29, 2021

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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