White v. Erdos

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JERMEAL WHITE, : Case No. 1:19-cv-1007

Plaintiff, : Judge Susan J. Dlott

Vv. : ORDER ADOPTING REPORT AND

: RECOMMENDATION

RON ERDOS, et al., :

Defendants. :

This matter is before the Court on Objections to the Magistrate Judge’s November 30,

2022 Report and Recommendation (Doc. 94) in which she recommended that Plaintiff Jermeal

White’s Motion for Summary Judgment (Doc. 86) be denied and Defendant Correction Officer

Wes Welch’s Cross-Motion for Summary Judgment (Doc. 90') be granted. For the reasons that

follow, the Magistrate Judge’s Report and Recommendation (Doc. 94) will be ADOPTED.

1. BACKGROUND?

Jermeal White, a prisoner at the Southern Ohio Correctional Facility (“SOCF”) in

Lucasville, Ohio filed this pro se 42 U.S.C. § 1983 action on November 25, 2019 alleging

violations of his civil rights while in custody. (Docs. 1, 27.) White alleges that on August 17,

2019, Corrections Officers Tyler Parish and Wes Welch used excessive force against him when

he was handcuffed and transferred to different cells. (Docs. 1,27.) Specifically, “Wes Welch

and Tyler Parish used extreme for[ce] on Plaintiff for no reason, from the cell of unit K2-1, all

' Documents 89 and 90 appear to be the same filing. The Court will refer to and cite Document 90.

? The facts of this case were previously set forth in the Court’s Order Adopting Reports and Recommendations, in

which Correction Officer Tyler Parish’s Cross-Motion for Summary Judgment was granted. (Doc. 84.) The facts

relating to the alleged use of force by Corrections Officer Wes Welch arise from the same cell transfer incident as

the alleged use of force by Corrections Officer Tyler Parish, for whom summary judgment was granted. The Court

will repeat much of its prior factual recitation herein.

the way to the hallway on the walk to segregation” for “no explainable reason.” (Doc. 27 at

PagelD 149.) White claims that “Wes Welch dislocated Plaintiff[’]s right elbow, and Tyler

Parish assisted Welch in the force by trying to break Plaintiff[’]s left elbow and hand for no

reason.” (/d. at PageID 148.) White alleges that he was denied medical attention for his injuries

when the nurse checked on him and, after White told her of his injuries, she walked off. (Doc. 1

at PageID 11.) Plaintiff seeks injunctive relief and monetary damages. (/d. at PageID 12.)

On March 30, 2022, the Court adopted the Magistrate Judge’s Reports and

Recommendations in which she recommended denying White’s Motion for Summary Judgment

against Parish and granting Parish’s Cross-Motion for Summary Judgment. (Doc. 84). In

ruling, the Court found that no genuine dispute of fact existed whether White’s Eighth

Amendment rights were violated when he was escorted by Parish and Welch during a cell

transfer. (Doc. 84.) The Court found that “White’s version of events—that extreme force was

used against him for the entirety of his escort, causing his right elbow to snap out of place—is

not plausible when considering the contrary video evidence, use of force reports, and medical

examination report.” (/d. at PagelD 565.) The Court also found that White failed to carry his

burden that qualified immunity would not apply to Parish. (/d.) Thus, only the claims against

Welch now remain.

On April 26, 2022, White moved for summary judgment against Welch, who assisted

Parish in the same cell transfer and allegedly injured White’s right elbow during the escort.

(Doc. 86.) On June 22, 2022, Welch responded in opposition and filed a Cross-Motion for

Summary Judgment. (Docs. 89, 90.) White filed a Response in Opposition on July 5, 2022.

(Doc. 91.)

3 The Court also adopted the Magistrate Judge’s recommendation that White’s pro se Motion for Injunctive Relief

be denied. (/.)

A. November 30, 2022 Report and Recommendation

On November 30, 2022, the Magistrate Judge issued a Report and Recommendation

recommending that White’s Motion for Summary Judgment be denied and Welch’s Cross-

Motion for Summary Judgment be granted. (Doc. 94.) She found “no evidence that Defendant

Welch used excessive force against Plaintiff’ and that “(t]o the contrary, the evidence establishes

that Plaintiff was cuffed and escorted to another cell without incident.” (/d. at PageID 677.) The

Magistrate Judge found Welch to be entitled to judgment as a matter of law with respect to

White’s claims under the Eighth Amendment. She considered White’s statements that Welch

bent and twisted his right wrist and arm and bent his arms and hands all the way up his back with

Parish to cause his right elbow to snap out of place. (See Doc. 94 at PageID 675; Doc. 58-1; 58-

2.) However, she found White’s contentions to be unsupported in consideration of the video of

the incident and other evidence. (Doc. 94 at PageID 675.) The Magistrate Judge concluded the

evidence demonstrates White was escorted in “an unremarkable fashion” and “no force [was]

used in this escort.” (/d. at PageID 675-76.) The Magistrate Judge found White failed to

demonstrate a violation of his Constitutional rights, and Welch is entitled to qualified immunity.

at PageID 677.)

White objected to the Magistrate Judge’s Report and Recommendation (Doc. 95), and

Welch filed a Response (Docs. 95, 96). For the reasons that follow, the Court will OVERRULE

White’s Objections and ADOPT the Report and Recommendation (Doc. 94).

II. STANDARD OF REVIEW

A. Rule 72(b)

Magistrate judges are authorized to decide dispositive and non-dispositive matters

pursuant to 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Pursuant to

Rule 72(b)(2), a party may file “specific written objections to the proposed findings and

recommendations” of a magistrate judge. The district judge must conduct a de novo review “of

any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.

72(b)(3); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). “The district court

need not provide de novo review where the objections are frivolous, conclusive or general.”

Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (cleaned up)).

“A party’s objection should be specific, identify the issues of contention, and ‘be clear

enough to enable the district court to discern those issues that are dispositive and contentious.’”

Chapple v. Franklin Cnty. Sheriff's Officers FCCC I & 2, No. 2:21-cv-05086, 2022 WL

16734656, at *2 (S.D. Ohio Nov. 7, 2022) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir.

1995)). ‘“‘When a pleader fails to raise specific issues, the district court will consider this to be ‘a

general objection to the entirety of the magistrate report[, which] has the same effects as would a

failure to object.’” Jd. (quoting Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509

(6th Cir. 1991)).

B. Rule 56

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary

judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden of

showing that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-587 (1986); Provenzano v. LCI Holdings, Inc.,

663 F.3d 806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment

with affidavits or other proof or by exposing the lack of evidence on an issue for which the

nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,

322-24 (1986). In responding to a summary judgment motion, the nonmoving party may not

rest upon the pleadings but must “present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986).

A court’s task is not “to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Jd. at 249. ‘[F]acts must be viewed in the

light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also E.E.O.C. v. Ford Motor

Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc) (quoting Scott). A genuine issue for trial exists

when there is sufficient “evidence on which the jury could reasonably find for the [non-

movant].” Anderson, 477 U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126,

132 (6th Cir. 2014) (“A dispute is ‘genuine’ only if based on evidence upon which a reasonable

jury could return a verdict in favor of the non-moving party.”) (emphasis in original) (citation

omitted). “Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson,

477 U.S. at 248. “The court need consider only the cited materials, but it may consider other

materials in the record.” Fed. R. Civ. P. 56(c)(3). Finally, when cross motions for summary

judgment have been filed, “the court must consider each motion separately on its merits, since

each party, as a movant for summary judgment, bears the burden to establish both the

nonexistence of genuine issues of material fact and that party’s entitlement to judgment as a

matter of law.” In re Morgeson, 371 B.R. 798, 800-801 (B.A.P. 6th Cir. 2007).

Ill. ANALYSIS

White objects to the Magistrate Judge’s Report and Recommendation, but his arguments

are general and lack specificity. He contends that the Magistrate Judge ‘did not address the facts

and evidence, and law” and references Ohio Administrative Code § 5120-9-02 as well as his

statement and exhibits attached to his motion. (Doc. 95 at PageID 683-84.) He argues that it is

only “fair and just” for the Court to conclude that “Defendant[’s] motion for summary judgment

is wholly untruthful, and wrong in light of OAC. 5120-9-02 at the least.” (/d. at PageID 684.)

White does not specify how his statement, exhibits, or Ohio Admin. Code § 5120-9-20

support his position. Ohio Administrative Code § 5120-9-20 is entitled “Use of force report and

investigation” and governs the procedure following a reported use of force for the Ohio

Rehabilitation and Correction Department. White seems to argue that the fact that a use of force

report was prepared necessarily demonstrates a Constitutional violation. He does not cite any

law that supports this broad position.

Further, although he references his statement and evidence, the Magistrate Judge

carefully considered all evidence as did the Undersigned. In her November 30, 2022 Report and

Recommendation, the Magistrate Judge reviewed the same evidence the Court considered when

it evaluated summary judgment against Parish. The Undersigned reviewed this evidence again in

consideration of White’s Objections, which includes the video of the escort of White to two

different cells (Doc. 58-1), Ohio Department of Rehabilitation and Correction, Deputy Warden

of Operations Review of Use of Force file (Doc. 58-3), and Reports and Medical Exam Reports

(Doc. 58-3). As compared to when he sought summary judgment against Parish, the only

evidentiary difference is that White now cites his own brief and his own new statement. (See

Docs. 85, 86.) The contents of his brief and statement are fairly similar to his other statements

and assert that “Defendant Welch and Parish bent [his] arms and hands all the way back up [his]

back for no reason” and that his “right elbow was indeed snapped out of place.” (Doc. 85 at

PageID 582.) White also asserts he told the nurse that he was “not good” following the cell

transfer and explained his injuries. (/d.) In her review of this evidence, and most notably, the

video of the incident, the Magistrate Judge concluded that White failed to establish a violation of

his Eighth Amendment rights by Corrections Officer Welch as the video shows an unremarkable

cell transfer. (Doc. 94 at PageID 676.) The Undersigned agrees.

Although White disagrees with the Magistrate Judge, he fails to cite any portion of the

Report and Recommendation to identify the portion of the ruling he finds problematic or how

Ohio Administrative Code § 5120-9-02 supports his position. The Court is mindful that this is a

pro se action, but parties have “the duty to pinpoint those portions of the magistrate’s report that

the district court must specially consider.” Mira, 806 F.2d at 637 (quoting Nettles, 677 F.2d at

410). Because White’s objections are not specific and do not identify the issues of contention,

they are are not clear enough for the Court to review any particular portion of the record for the

issue of concern that White views as dispositive. Nonetheless, the Court has reviewed the entire

record and agrees with the Magistrate Judge’s conclusions. White’s objections are

OVERRULED. See Chapple, 2022 WL 16734656, at *4 (dismissing prisoner’s second and

tenth objections as general objections where they did not state with specificity why the Court

should review the Magistrate Judge’s recommendation or pinpoint any legal arguments that are

off the mark).

IV. CONCLUSION

For the reasons set forth herein, the Court ADOPTS the Magistrate Judge’s Report and

Recommendation that White’s Motion for Summary Judgment be denied, Defendant Welch’s

Cross-Motion for Summary Judgment be granted, and White’s claims against Defendant Welch

be terminated (Doc. 94).

IT IS SO ORDERED.

Dated: 3h 3 Ia O23 UdGe

Judge Susan J. Dlo

United States District Court