The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL D. BROWN, Case No. 1:22-cv-239
Plaintiff, Marbley, C.J.
Litkovitz, M.J.
v.
ORDER AND REPORT
LINNEA MAHLMAN, et al., AND RECOMMENDATION
Defendants.
Plaintiff Michael D. Brown initiated this civil rights action under 42 U.S.C. § 1983
challenging various aspects of his incarceration at the Southern Ohio Correctional Facility
(SOCF). This matter is before the Court on plaintiff’s motion for summary judgment (Doc. 23).
Defendants filed a response in opposition (Doc. 25). In lieu of a reply memorandum, plaintiff
filed a letter to the Court (Doc. 29).
I. Background
Brown, proceeding without the assistance of counsel, has filed a complaint, a
supplemental complaint, and a combined complaint in this case (Docs. 4, 8, and 11). He has
named more than twenty defendants, including named and unnamed corrections officers, SOCF
administrators, the Director of the Ohio Department of Rehabilitation and Correction, and the
Governor of Ohio. Brown alleges generally that he has been “harassed and antagonized,”
subjected to unnecessary uses of force, and denied access to legal services while at SOCF. (Doc.
11 at PAGEID 312). He attached without significant explanation a number of grievance forms,
kites, handwritten notes to and from prison personnel, and informal complaint resolution forms
to his combined complaint, many of which are illegible. (Doc. 11 at PAGEID 314-421). For
varying reasons, the claims against all defendants have been dismissed, except for Brown’s
excessive force claim against corrections officer Jewell and his retaliation claim against
corrections officer Deemer. (Doc. 22).
Brown now moves for summary judgment (Doc. 23). In support of his motion for
summary judgment, he submitted only two blank kite procedure forms and a declaration under
penalty of perjury that his motion is true and accurate to the best of his knowledge. (Doc. 23 at
PAGEID 462-464). In the letter Brown submitted on January 17, 2023, he makes several factual
allegations that appear to involve defendants in his separate but related case, No. 2:21-cv-05146.
(Doc. 29) (asserting allegations against defendants Cool, Raypool, Osbourne, and Farmer). In
responding to Brown’s motion for summary judgment, defendants state only that Brown has not
demonstrated that he is entitled to summary judgment. (Doc. 25 at PAGEID 469).
II. Summary Judgment Standard
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 (1986). A grant of
summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” Satterfield v.
Tennessee, 295 F.3d 611, 615 (6th Cir. 2002). The Court must evaluate the evidence, and all
inferences drawn therefrom, in the light most favorable to the non-moving party. Id.; Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v.
OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).
The trial judge’s function is not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at
249. The trial court need not search the entire record for material issues of fact, Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.
“Where the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587.
“When opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S.
372, 380 (2007). However, “[f]acts that are not blatantly contradicted by [the evidence] remain
entitled to an interpretation most favorable to the non-moving party.” Coble v. City of White
House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011). “In response to a properly supported summary
judgment motion, the non-moving party ‘is required to present some significant probative
evidence which makes it necessary to resolve the parties’ differing versions of the dispute at
trial.” Maston v. Montgomery Cty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 849 (S.D. Ohio
2011) (quoting Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)).
A fact is “material” if its resolution will affect the outcome of the lawsuit. Beans v. City
of Massillon, No. 5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016), aff’d, No.
17-3088, 2017 WL 3726755 (6th Cir. 2017) (citing Anderson, 477 U.S. at 248). The party who
seeks summary judgment “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 322. To make its
determination, the court “need consider only the cited materials, but it may consider other
materials in the record.” Fed. R. Civ. P. 56(c)(3). The party opposing a properly supported
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.”
First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288 (1968).
Because plaintiff is a pro se litigant, his filings are liberally construed. Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011); Spotts v. United States, 429 F.3d 248, 250 (6th Cir.
2005). However, a party’s status as a pro se litigant does not alter the party’s duty on a summary
judgment motion to support his factual assertions with admissible evidence. Maston, 832 F.
Supp. 2d at 851-52 (citing Viergutz v. Lucent Techs., Inc., 375 F. App’x 482, 485 (6th Cir.
2010)).
III. Plaintiff’s Motion for Summary Judgment Should Be Denied at this Time
Two of Brown’s claims survived initial screening pursuant to 28 U.S.C. § 1915A: (1) the
Eighth Amendment excessive force claim against Jewell; and (2) the First Amendment
retaliation claim against Deemer. (Doc. 22 at PAGEID 460). To be entitled to summary
judgment, Brown must offer admissible evidence sufficient to demonstrate that there is no
genuine issue as to any material fact and that he is entitled to judgment as a matter of law on
each element of his claims. Fed. R. Civ. P. 56(c).
A. Plaintiff has Failed to Offer Evidence to Establish his Eighth Amendment Claim
A convicted prisoner’s right to be free from the use of excessive force by a prison official
is governed by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327 (1986). The “core
judicial inquiry” whenever a prison official stands accused of using excessive force is “whether
force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v.
McMillian, 503 U.S. 1, 7 (1992)).
Eighth Amendment excessive force claims include both a subjective and an objective
component. Cordell v. McKinney, 759 F.3d 573, 580-81 (6th Cir. 2014); see also White v.
Erdos, No. 21-3169, 2022 WL 554065 (6th Cir. Jan. 28, 2022). The subjective component
focuses on the prison official’s state of mind, while the objective component analyzes whether
the pain inflicted on the prisoner was “sufficiently serious.” Cordell, 759 F.3d at 580. In
making this inquiry, the Court must 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 responsible official; and the extent of the injury inflicted. See Hudson, 503 U.S. at 7;
Whitley, 475 U.S. at 320-321. Corrections officers do not violate a prisoner’s Eighth
Amendment rights when they use force “in a good-faith effort to maintain or restore discipline.”
Roberson v. Torres, 770 F.3d 398, 406 (6th Cir. 2014) (quoting Jennings v. Mitchell, 93 F.
App’x 723, 725 (6th Cir. 2004)) (defendant corrections officers applied force―spraying the
prisoner with pepper spray―in a “good faith effort to maintain or restore discipline, not to
maliciously cause pain,” where the prisoner repeatedly disobeyed the officers’ direct orders to
“sit cross-legged on his bunk and face the wall”).
“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.”
Cordell, 759 F.3d at 580-81 (citing Wilkins, 559 U.S. at 37). “When prison officials maliciously
and sadistically use force to cause harm . . ., contemporary standards of decency always are
violated . . . whether 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.” Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 9). The
absence of a serious injury is nonetheless relevant as a factor that suggests whether the use of
force may “plausibly have been thought necessary” in a given situation. Id. (quoting Hudson,
503 U.S. at 7). “[D]e minimis uses of physical force do not satisfy the objective component, as
long as the use of force is not of a sort repugnant to the conscience of mankind.” Bullocks v.
Hale, No. 20-3428, 2021 WL 1578198, at *2 (6th Cir. Mar. 1, 2021) (quoting Hudson v.
McMillian, 503 U.S. 1, 10 (1992) (internal quotation marks omitted).
In this case, Brown has failed to offer or identify any admissible evidence to demonstrate
either the subjective or objective component of his Eighth Amendment claim. Indeed, he has
failed to offer even his own sworn declaration explaining the events leading to Jewell’s use of
force, the manner and degree of force used, or the specifics of his injury. Accordingly, Brown’s
motion for summary judgment should be denied as to his Eighth Amendment claim against
Jewell.
B. Plaintiff has Failed to Offer Evidence to Establish his First Amendment Claim
To establish a First Amendment retaliation claim, a plaintiff must demonstrate:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing
to engage in that conduct; and (3) there is a causal connection between elements
one and two―that is, the adverse action was motivated at least in part by the
plaintiff’s protected conduct.
Maben v. Thelen, 887 F.3d 252, 264 (6th Cir. 2018) (quoting Thaddeus-X v. Blatter, 175 F.3d
378, 394 (6th Cir. 1999)). As to the first element, incarcerated people have a First Amendment
right to file non-frivolous grievances and lawsuits against prison officials, but an “inmate cannot
immunize himself from adverse administrative action by prison officials merely by filing a
grievance or a lawsuit and then claiming that everything that happens to him is retaliatory.” Id.
(quoting Spies v. Voinovich, 48 F. App’x 520, 525 (6th Cir. 2002)).
In his combined complaint, Brown alleged, “Since I’ve been in SOCF I’ve been harassed
and antagonized by SOCF staff b/c of me attempting to sue RCI [Ross Correctional Institute] . . .
I’ve been refused legal services on numerous occasions [and] been a victim of unnecessary u.o.f
in which a c/o who gave me nerve damage didn’t file a report and the admin. is not giving me his
name so I can do what’s proper.” (Doc. 11 at PAGEID 312). At the summary judgment stage,
however, Brown must actually submit evidence that he engaged in protected conduct (such as
initiating lawsuits against RCI prison officials).
The second element requires proof of an adverse action taken against Johnson that would
deter a person of ordinary firmness from continuing to engage in the protected conduct. While
“some adverse actions are so de minimis that they do not rise to the level of a constitutionally
cognizable injury,” “‘unless the claimed retaliatory action is truly “inconsequential,” the
plaintiff’s claim should go to the jury.’” Maben, 887 F.3d at 266 (quoting Bell v. Johnson, 308
F.3d 594, 603 (6th Cir. 2002)). Retaliatory cell searches and seizure or destruction of an
inmate’s legal papers or property have been held to satisfy the adverse action requirement. Id. at
267; Bell, 308 F.3d at 604. However, Brown has offered no admissible evidence establishing
that such adverse actions were taken against him.
The third element requires plaintiff to demonstrate that the adverse action was motivated
at least in part by plaintiff’s protected conduct. Maben, 887 F.3d at 264. If the alleged
retaliatory action occurred in close temporal proximity to the protected conduct, the timing alone
may be “significant enough to constitute indirect evidence of a causal connection so as to create
an inference of retaliatory motive.” Id. at 268 (quoting Muhammad v. Close, 379 F.3d 413, 417-
18 (6th Cir. 2004)). Once a plaintiff establishes that his protected conduct was a motivating
factor for the adverse action, the burden of production shifts to defendant. /d. at 267. “If the
defendant can show that he would have taken the same action in the absence of the protected
activity, [defendant] is entitled to prevail on summary judgment.” /d. (quoting Thaddeus-X, 175
F.3d at 399).
In this case, Brown has failed to offer evidence that he engaged in protected conduct let
alone that the protected conduct was a motivating factor in any adverse action. Therefore, the
burden of production does not shift to defendant in this case, and plaintiff's motion for summary
judgment should be denied as to his First Amendment claim against Deemer.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiff's motion for summary judgment (Doc. 23) be DENIED at this time.
IT IS THEREFORE ORDERED THAT:
The Clerk of Courts is INSTRUCTED to remove plaintiff's letter (Doc. 29) from this
case and refile it in plaintiffs related case, No. 2:21-cv-05146.
Date: 2/27/2023 Herm Rethov
Karen L. Litkovitz
United States Magistrate Judge
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL BROWN, Case No. 1:22-cv-239
Plaintiff,
Marbley, C.J.
vs. Litkovitz, M.J.
LINEA MAHLMAN, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. 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).