# Glenn v. Basham

> District Court, S.D. Ohio · December 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10381356

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** December 1, 2022
- **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

MICHAEL H. GLENN, Case No. 1:22-cv-202
Plaintiff, McFarland, J.
Litkovitz, M.J.
vs.

C/O BASHAM, et al., REPORT AND
Defendants. RECOMMENDATION

Plaintiff brings this prisoner civil rights action under 42 U.S.C. § 1983 alleging that
defendant Southern Ohio Correctional Facility (“SOCF”) Correctional Officer Tim Basham
(“Basham” or “defendant”) used excessive force against him in violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment. (Doc. 5). This matter is before
the Court on defendant’s motion to dismiss (Doc. 15) plaintiff’s response in opposition (Doc.
17), and defendant’s reply memorandum (Doc. 18).
I. Background
Plaintiff alleges the following facts in his complaint: On March 9, 2022, the date the
alleged incident occurred, plaintiff was an inmate at SOCF. (Doc. 5). On this date, he ended a
term of mental health observation initiated after plaintiff attempted to hang himself. (Id. at
PAGEID 12). Plaintiff claims that he requested clothing from both Basham and another SOCF
Correctional Officer. According to plaintiff, Basham told him, “No, I’ll give you clothes when I
dress you out tomorrow.” (Id.). Plaintiff further alleges that Basham called him several
derogatory names and said plaintiff was lucky Basham was not working at the time of the suicide
attempt, stating “he would have made sure [plaintiff] was dead.” (Id.).
Plaintiff indicates that Basham’s comments angered him, so plaintiff “kept flushing [his]
toilet until it overflowed.” (Id.). According to plaintiff, Basham responded by opening the cell’s
handcuff port, spraying an entire can of OC spray1 in plaintiff’s face, and turning off his water.
Plaintiff further alleges that Basham subsequently opened the handcuff port a second time and
sprayed plaintiff in the genitals with his partner’s OC spray. Plaintiff alleges that the incident
resulted in “the worst pain I have ever felt in my entire life.” (Id.).

II. Standard of review
Defendant moves the Court to dismiss plaintiff’s complaint for failure to state a claim
upon which relief can be granted. (Doc. 15). In deciding a motion to dismiss under Rule
12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in
favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing
Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only “a short and plain statement of
the claim showing that the pleader is entitled to relief” is required. Id. (quoting Fed. R. Civ. P.
8(a)(2)). “[T]he statement need only give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007))
(internal quotation marks omitted) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007)). Although a plaintiff need not plead specific facts, the “[f]actual allegations must be
enough to raise a right to relief above the speculative level” and to “state a claim to relief that is
plausible on its face.” Id. (quoting Twombly, 550 U.S. at 555, 570). A plaintiff must “plead[]
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6).
Ashcroft, 556 U.S. 662, 678. “Put another way, bare assertions of legal conclusions are not

1 The Court understands plaintiff’s allegations concerning the use of “OC spray” to mean Oleoresin Capsium pepper
spray—a chemical agent used by SOCF correctional officers.
sufficient.” Sollenberger, 173 F. Supp. 3d at 618. And, “[t]o survive a 12(b)(6) motion to
dismiss, a plaintiff must provide more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action is not enough.” Id. at 617.
The Court must accept all well-pleaded factual allegations as true, but need not “accept as

true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although a complaint need not contain “detailed
factual allegations,” it must provide “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Nor does a
complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id.
at 557.
It is well settled that a document filed pro se is “to be liberally construed” and that a pro
se complaint, “however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers[.]” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). However, the Sixth Circuit has recognized that the Supreme Court’s liberal

construction case law has not had the effect of “abrogat[ing] basic pleading essentials” in pro se
suits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
III. Analysis
Plaintiff alleges that defendant used excessive force against him in violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment by spraying him with OC spray
on two separate occasions. (Doc. 5). In the motion to dismiss, defendant argues that plaintiff
fails to state a plausible excessive force claim against defendant because plaintiff’s “allegations
suggest no more than a de minimis use of force used to restore order.” (Doc. 15). Defendant
argues that plaintiff was sprayed with OC in reaction to plaintiff flushing his toilet until it
overflowed. (Id. at PAGEID 82). Defendant contends that defendant “used the OC spray in a
good faith attempt to counteract a perceived threat and to restore order based on Plaintiff’s
conduct.” (Id.). Defendant seeks qualified immunity based on plaintiff’s allegations on the basis
that defendant did not violate plaintiff’s Eighth Amendment rights because plaintiff “failed to

sufficiently plead the subjective component of the Eighth Amendment analysis.” (Id. at
PAGEID 85). Defendant also argues that plaintiff’s official capacity claims against defendant
are barred by the Eleventh Amendment. (Id. at PAGEID 83-84).
A convicted prisoner’s right to be free from the use of excessive force by prison officials
is governed by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327 (1986). An Eighth
Amendment claim has both objective and subjective components. Cordell v. McKinney, 759
F.3d 573, 580 (6th Cir. 2014) (citing Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013)). The
subjective component focuses on “whether force was applied in a good faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Id. (quoting Hudson v.
McMillian, 503 U.S. 1, 7 (1992)). In making this inquiry, the Court should consider the need for

the use of force, the relationship between that need and the type and amount of the force used,
the threat reasonably perceived by the official, the extent of the injury inflicted, and “any efforts
made to temper the severity of a forceful response.” See Hudson, 503 U.S. at 7; Whitley, 475
U.S. at 321.
The objective component requires the “pain inflicted to be ‘sufficiently serious’” and to
offend “‘contemporary standards of decency.’” Cordell, 759 F.3d at 580 (quoting Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011); Hudson, 503 U.S. at 8). “While the extent of a
prisoner’s injury may help determine the amount of force used by the prison official, it is not
dispositive of whether an Eighth Amendment violation has occurred.” Id. at 580-81 (citing
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)). “When prison officials maliciously and sadistically
use force to cause harm, contemporary standards of decency always are violated . . . [w]hether or
not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical
punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of

injury.” Id. at 581 (quoting Hudson, 503 U.S. at 9).
In this case, construing the facts alleged by plaintiff in the light most favorable to him as
the Court must do on a motion to dismiss, plaintiff’s complaint states a claim for relief under the
Eighth Amendment for an excessive use of force. Plaintiff admits that he flushed his toilet until
it overflowed which prompted defendant to spray plaintiff in the face with OC spray and turn
plaintiff’s water off. However, the gravamen of plaintiff’s excessive use of force claim stems
from what happened to plaintiff after his water was turned off.2 Plaintiff’s complaint alleges that
after his water was turned off and after plaintiff was sprayed with OC spray in his face,
defendant subsequently opened “the tray/cuff port a second time, and unload[ed] his partner’s
can of O.C. directly at my penis/private area.” (Doc. 5 at PAGEID 33). Plaintiff alleges that the

incident resulted in “the worst pain I have ever felt in my entire life.” (Id.).
Even if plaintiff committed a violation as a result of flooding his toilet, plaintiff states a
plausible claim for relief for excessive use of force concerning defendant’s actions after the
apparent need for force had subsided. After plaintiff’s water was turned off and he was sprayed
with OC spray, there are no allegations that plaintiff was recalcitrant. Nor are there any
allegations that plaintiff was unruly, struggling, or posed a threat to the defendant. Therefore,

2 Plaintiff explains that the reason for filing this lawsuit is “not because I got sprayed with O.C. the first time for
overflowing my toilet, it’s becaus[e] this officer, had to take his partners can of O.C. because he ran out on my face,
that wasn’t enough for him, he had to make sure I suffered.” (Doc. 17 at PAGEID 90). Plaintiff states, “[t]he first
time C/O Basham sprayed me, may be justified because plaintiff was committing a rule violation, but how do they
justify the second time spraying him for seeking medical attention?” (Id. at PAGEID 91).
the allegations that defendant’s use of force, which occurred after plaintiff’s water was turned off
and after he was sprayed with OC spray, gives rise to an inference that more force was used than
necessary and that the force used by defendant was applied maliciously and sadistically to cause
harm. In the absence of any allegations that plaintiff continued to be disruptive or posed any

threat to defendant, defendant’s conduct in grabbing his partner’s can of OC spray and spraying
it directly at plaintiff’s genital area after plaintiff’s water was turned off, gives rise to an
inference that defendant’s use of force was not applied in good faith effort to maintain or restore
discipline, but rather to cause harm. Plaintiff has also pled sufficient facts to satisfy the objective
component of an Eighth Amendment excessive force claim. Plaintiff has alleged that as a result
of the OC spray application, he suffered “the worst pain I have ever felt in my entire life.” (Doc.
5 at PAGEID 33). The Supreme Court has consistently rejected the notion that a serious injury is
a threshold requirement for stating an excessive force claim. Wilkins, 559 U.S. at 34 (citing
Hudson, 503 U.S. at 7).
These allegations are sufficient to satisfy both the objective and subjective components of

plaintiff’s Eighth Amendment excessive force claim against Basham. See Hudson, 503 U.S. at 7;
Williams, 631 F.3d at 384 (the plaintiff stated a valid excessive force claim when he “allege[d]
that, when instructed to ‘pack up,’ he inquired, ‘What for, sir?,’ at which point an ‘assault team’
entered the cell and used a chemical agent on him.”). Accordingly, plaintiff states a plausible
claim for relief for excessive use of force against defendant.
Defendant is not entitled to qualified immunity on plaintiff’s Eighth Amendment
excessive use of force claim. Government officials performing discretionary functions are
generally shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). “In determining
whether qualified immunity applies, the court employs a two-part test, asking (1) whether,
considering the allegations in a light most favorable to the party injured, a constitutional right has
been violated, and (2) whether that right was clearly established.” Everson v. Leis, 556 F.3d 484,

494 (6th Cir. 2009) (citations and quotation and alteration marks omitted). As discussed above,
plaintiff’s complaint states a plausible claim for relief under the Eighth Amendment. In addition,
it is clearly established that “the unprovoked use of pepper spray on a prisoner who is not
causing any disturbance” is a constitutional violation. Batson v. Hoover, 355 F. Supp. 3d 604,
615 (E.D. Mich. 2018), aff’d, 788 F. App’x 1017 (6th Cir. 2019) (citing Roberson v. Torres, 770
F.3d 398, 407 (6th Cir. 2014)). Accordingly, defendant’s request for qualified immunity on
plaintiff’s excessive use of force claim should be denied.
Defendant argues that plaintiff’s “official capacity claims” against defendant are barred
by the Eleventh Amendment. (Doc. 15 at PAGEID 83) (citing cases). Defendant contends that
plaintiff’s claims against defendant “in his official capacity must be dismissed because he is

absolutely immune from suit.” (Id. at PAGEID 84). There are no allegations in the complaint
that plaintiff wishes to hold defendant liable in his official capacity. (See Doc. 5). However, to
be sure, the complaint should be dismissed as to defendant in his official capacity to the extent
that plaintiff seeks monetary damages. Absent an express waiver, a state is immune from
damage suits under the Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
506 U.S. 139 (1993); Edelman v. Jordan, 415 U.S. 651 (1974). The State of Ohio has not
constitutionally nor statutorily waived its Eleventh Amendment immunity in the federal courts.
See Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline
Marie Nursing Homes, 694 F.2d 449 (6th Cir. 1982). The Eleventh Amendment bar extends to
actions where the state is not a named party, but where the action is essentially one for the
recovery of money from the state. Edelman, 415 U.S. at 663; Ford Motor Company v. Dept. of
Treasury, 323 U.S. 459, 464 (1945). A suit against defendant in his official capacity would, in
reality, be a way of pleading the action against the entity of which defendant is an agent, 1.e., the
State of Ohio. Monell, 436 U.S. at 690. Thus, an action against defendant in his official capacity
is included in this bar. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989);
Scheuer v. Rhodes, 416 U.S. 232 (1974). See also Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir.
2010) (citing Cady v. Arenac Co., 574 F.3d 334, 344 (6th Cir. 2009)) (“[A Jn official-capacity
suit against a state official is deemed to be a suit against the state and is thus barred by the
Eleventh Amendment, absent a waiver.” (citation and ellipsis omitted)). Therefore, defendant is
immune from suit in his official capacity to the extent that plaintiff seeks monetary damages.
IT IS THEREFORE RECOMMENDED THAT:
1. Defendant’s motion to dismiss (Doc. 15) be GRANTED IN PART and DENIED IN PART.
The Court recommends that defendant’s motion to dismiss plaintiff's claim against defendant in
his official capacity should be GRANTED. Defendant’s motion to dismiss (Doc. 15) should be
DENIED in all other respects.

Date: 11/30/2022 Henn K Kethonh
Karen L. Litkovitz
Chief United States Magistrate Judge

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MICHAEL H. GLENN, Case No. 1:22-cv-202
Plaintiff, McFarland, J.
Litkovitz, M.J.
vs.

C/O BASHAM, 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 within FOURTEEN (14) DAYS after being
served with a copy thereof. This period may be extended further by the Court on timely motion
by either side for an extension of time. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections. If
the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription of the
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to another
party’s objections WITHIN 14 DAYS after being served with a copy thereof. 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/10381356. Public record. Not legal advice.