Coots v. Twilla <i>et al. </i>

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES R. COOTS,

Plaintiff,

Civil Action 1:22-cv-625

v. Judge Matthew W. McFarland

Magistrate Judge Kimberly A. Jolson

OFFICER TWILLA, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER

This matter is before the Court on Plaintiff’s Motion for Temporary Restraining Order

(Doc. 18) and Motion regarding evidence (Doc. 25). For the following reasons, it is

RECOMMENDED that Plaintiff’s Motion for Temporary Restraining Order (Doc. 18) be

DENIED. Plaintiff’s Motion regarding evidence (Docs. 25) is DENIED without prejudice. The

United States Marshal is ORDERED to complete service on Defendants Straight and Twilla.

I. MOTION FOR TEMPORARY RESTRAINING ORDER (DOC. 18)

Plaintiff, a prisoner at the Lebanon Correctional Institution (“LeCI”), has brought a

Complaint against several individuals currently and formerly employed at LeCI, alleging that they

used excessive force against him in violation of the Eighth Amendment of the Constitution. (Docs.

6, 12). Plaintiff has requested that he be transferred to another prison or otherwise separated from

Defendants and other staff at LeCI, due to purported threats from staff and other inmates acting

under the direction of staff. (Doc. 18). In particular, he says that Defendant Corrections Officer

Chad Emmons and other staff have directly threatened him, and that two inmates have threatened

him, under the alleged direction of Defendants Emmons and Lieutenant Brandon Link, whom

Plaintiff says “put a hit to do [him] real harm and be paid off for it.” (Id.). Plaintiff says that, in

the face of these threats, he has chosen to remain in administrative segregation, and he lacks legal

materials there and is impaired in his ability to prepare his case. (Id.).

Previously, the Court indicated that it would construe Plaintiff’s Motion as a Motion for

Temporary Restraining Order. (Doc. 20 at 1–2). Defendants responded to the Motion (Doc. 21),

and Plaintiff filed no reply. The motion is therefore ripe for review.

“The standard for addressing a motion for a temporary restraining order is the same as the

standard applied to a motion for a preliminary injunction.” Ferron v. Search Cactus, L.L.C., No.

2:06-CV-327, 2007 WL 2110497, at *1 (S.D. Ohio July 13, 2007) (citation omitted). Both are

extraordinary measures, and the movant must meet a high burden to show that such a measure is

justified. See ACLU v. McCreary Cty., 354 F.3d 438, 444 (6th Cir. 2003); Kendall Holdings, Ltd.

v. Eden Cryogenics LLC, 630 F. Supp. 2d 853, 860 (S.D. Ohio 2008). Indeed, the proof required

to obtain this relief “is much more stringent than the proof required to survive a summary judgment

motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Accordingly, the movant must

show more than factual issues—he “must affirmatively demonstrate [his] entitlement to injunctive

relief.” Davis v. Caruso, No. 07-11740, 2008 WL 878878, at *3 (E.D. Mich. Mar. 28, 2008).

When considering whether to grant this extraordinary relief, a district court must balance

four factors:

(1) whether the movant has a strong likelihood of success on the merits; (2) whether

the movant would suffer irreparable injury without the injunction; (3) whether

issuance of the injunction would cause substantial harm to others; and (4) whether

the public interest would be served by issuance of the injunction.

City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)

(citation and internal quotation marks omitted).

Under the first factor, to establish a strong likelihood of success on the merits, the movant

must demonstrate “more than a mere possibility” of success. Nken v. Holder, 556 U.S. 418, 435

(2009). This means that the movant must “show, at a minimum, serious questions going to the

merits” of his claims. Dodds v. United States Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016)

(internal quotation marks and citation omitted). The first factor is often determinative:

[C]ourts have often recognized that the first factor is traditionally of greater

importance than the remaining three. See Roth v. Bank of the Commonwealth, 583

F.2d 527, 537 (6th Cir. 1978). In fact, the Sixth Circuit has held that when the

proponent of the injunctive relief has no chance of success on the merits of the

claim, the Court may dismiss the motion without considering the other three factors.

See Michigan State AFL–CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).

Failure to do so is reversible error. See id.; Sandison v. Michigan High School

Athletic Ass’n, 64 F.3d 1026, 1037 (6th Cir. 1995).

Stanley v. Ohio Dep’t of Rehab. & Corr., No. C2–02–178, 2002 WL 31409435, at *3 (S.D. Ohio

August 12, 2002) (denying motion for injunctive relief after evaluation only of chance of success

on the merits factor); see also City of Pontiac Retired Emps. Ass’n, 751 F.3d at 430 (“When a party

seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of

success on the merits often will be the determinative factor.”).

Under the second factor, the movant “must show that irreparable harm absent injunctive

relief is ‘both certain and immediate, rather than speculative or theoretical.’” Kensu v. Borgerding,

No. 16-13505, 2018 WL 6540262, at *4 (E.D. Mich. Oct. 31, 2018), report and recommendation

adopted, No. CV 16-13505, 2018 WL 6527782 (E.D. Mich. Dec. 12, 2018) (quoting Michigan

Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991)); see

also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (noting that “[i]ssuing a

preliminary injunction based only on a possibility of irreparable harm is inconsistent with our

characterization of injunctive relief as an extraordinary remedy”); Friendship Materials, Inc. v.

Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982) (noting that “[a] district court abuses its

discretion when it grants a preliminary injunction without making specific findings of irreparable

injury”).

Under the third and fourth factors—harm to others and the public interest—the context of

the case matters. In a prisoner civil rights case like this one, “[p]rison administrators [ ] should be

accorded wide-ranging deference in the adoption and execution of policies and practices that in

their judgment are needed to preserve internal order and discipline and to maintain institutional

security.” Bell v. Wolfish, 441 U.S. 520, 521 (1979). Consequently, “courts, especially federal

courts, should be reluctant to become involved in the internal administration” of correctional

institutions. Hanna v. Toner, 630 F.2d 442, 444 (6th Cir. 1980).

Finally, in addition to the above factors, Plaintiff’s case is also subject to § 802 of the Prison

Litigation Reform Act (the “PLRA”), which requires preliminary injunctive relief to “be narrowly

drawn, extend no further than necessary to correct the harm the court finds requires preliminary

relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2).

A. Likelihood of Success on the Merits

“The Eighth Amendment prohibition on cruel and unusual punishment protects prisoners

from the unnecessary and wanton infliction of pain.” Rafferty v. Trumbull Cty., Ohio, 915 F.3d

1087, 1093 (6th Cir. 2019) (quoting Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th

Cir. 2013)). “[T]he Supreme Court set forth the standard for analyzing excessive force claims

under the Eighth Amendment: ‘whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.’” Combs v. Wilkinson, 315 F.3d

548, 556 (6th Cir. 2002) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “To make out a

claim under the Eighth Amendment, the prisoner must satisfy both an objective and a subjective

component.” Rafferty, 915 F.3d at 1094 (quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.

2011)).

“The subjective component focuses on the state of mind of the prison officials.” Williams,

631 F.3d at 383. Courts evaluate “whether force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id.

(quoting Hudson, 503 U.S. at 6). 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. Hudson, 503 U.S. at 7 (quoting Whitley v. Albers,

475 U.S. 312, 321 (1986)).

“The objective component requires the pain inflicted to be sufficiently serious.” Rafferty,

915 F.3d at 1094 (citing Williams, 631 F.3d 383). This inquiry is “contextual and responsive to

‘contemporary standards of decency.’” Hudson, 503 U.S. at 8 (quoting Estelle, 429 U.S. at 104).

“The seriousness of the injuries [is] not dispositive; as the Supreme Court has held, ‘[w]hen prison

officials maliciously and sadistically use force to cause harm, contemporary standards of decency

always are violated ... whether or not significant injury is evident.’” Williams, 631 F.3d at 383

(quoting Hudson, 503 U.S. at 9). But “[t]hat is not to say that every malevolent touch . . . gives

rise to a federal cause of action.” Hudson, 503 U.S. at 9. The Eighth Amendment does not protect

against “de minimis uses of physical force[.]” Rafferty, 915 F.3d at 1094 (quoting Hudson, 503

U.S. at 9–10).

Plaintiff alleges that Defendants assaulted him after he was misdiagnosed by medical staff

as being intoxicated. (Doc. 6 at 3). Plaintiff says he was not intoxicated, but instead was suffering

a seizure. (Doc. 6-1 at 2). He says that during the assault he was struck in the eye and his right

arm was pulled out of its shoulder socket, causing permanent damage to his right eye and shoulder.

(Doc. 6 at 3). Additionally, he says he suffers from post-traumatic stress disorder because of the

assault. (Doc. 6 at 3). The Undersigned assumes for the purpose of this recommendation that the

pain inflicted on Plaintiff is sufficiently serious to satisfy the objective component of his excessive

force claim. However, Plaintiff’s likelihood of success on the subjective component of his claim

is not high.

Notably, the subjective component focuses on the state of mind of the prison officials. And

here, Plaintiff acknowledges that the Defendants’ use of force resulted from their belief that he

was intoxicated. (Doc. 6 at 3). While he also maintains that the belief was mistaken (id.), if it was

earnestly held by the Defendants, it supports a good-faith effort to maintain or restore discipline.

Indeed, a conduct report prepared by Defendant Twilla details that Defendant Straight called for

her assistance because Plaintiff appeared to be “very intoxicated and was stumbling through the

dayroom.” (Doc. 6-1 at 11). A medical exam report also allegedly detailed that Plaintiff was

acting “bizarre and disoriented” and slurring his speech. (Id. at 14). Straight was purportedly

giving verbal directives to Plaintiff so she could place him in handcuffs, but he refused to give up

one of his arms. (Id.). Twilla grabbed Plaintiff’s right hand and tried to place it behind his back,

but Plaintiff resisted and was forced to the ground by Twilla, Straight, and other officers. (Id.).

Still not complying with directives, Defendant Emmons “delivered a short burst” of pepper spray

to Plaintiff’s face and the officers were then able to place his right hand in the handcuffs. (Id.).

Plaintiff was then walked off the block and no further force was used. (Id.). Ultimately, Plaintiff

was found guilty by the Rules Infraction Board of violating Rule 20, “Physical resistance to a

direct order.” (Id. at 12); Ohio Adm. Code 5120-9-06(C)(20).

In sum, the sequence of events—at least as gathered by the prison documents Plaintiff

submitted as exhibits to his Complaint—was as follows: (1) Plaintiff appeared disoriented and

intoxicated, and was therefore disruptive and potentially dangerous to himself or others on the

block; (2) Defendants attempted to restrain him; (3) he would not comply with directives; (4)

Defendants used force to make him comply with directives; and (5) after he was successfully

restrained, no further force was used. This tends to show Defendants using force “in a good-faith

effort to maintain or restore discipline,” rather than “maliciously and sadistically to cause harm.’”

Combs, 315 F.3d at 556. And, in such a case where prison officials are making decisions under

pressure to settle a disturbance, case law dictates that those officials must be afforded “wide-

ranging deference in the adoption and execution of policies and practices that in their judgment

are needed to preserve internal order and discipline and to maintain institutional safety.” Id. at 557

(quoting Hudson, 503 U.S. at 7).

At least at this stage of the litigation—without the aid of discovery to undermine this

narrative from prison officials—Plaintiff has not shown a substantial likelihood of success on the

merits of his excessive force claim and, consequently, has not met his burden to justify a temporary

restraining order.

B. Remaining Factors

Briefly, the remaining three factors cannot overcome the often-determinative force of

Plaintiff’s failure to demonstrate likelihood of success on the merits. Under the second factor,

whether Plaintiff will suffer irreparable injury absent injunctive relief, Plaintiff “must show that

irreparable harm is ‘both certain and immediate, rather than speculative or theoretical.’” Kensu,

2018 WL 6540262, at *10 (quoting Griepentrog, 945 F.2d at 154). Plaintiff alleges that he has

been directly threatened by staff and by other inmates at the direction of staff. (Doc. 18 at 1–2).

While the nature of the threats is not detailed, Plaintiff does suggest they are connected to a plan

to do him “real harm . . . .” (Id. at 2). Here, Plaintiff seems to have at least carried a minimum

burden to “identify a particularized threat to himself[.]” Brown v. Mahlman, 2022 WL 17817615,

at *4 (S.D. Ohio Dec. 19, 2022) (citing Baird v. Hodge, 605 F. App’x 568, 570 (7th Cir. 2015)

(Rovner, J., dissenting)).

Regarding the third and fourth factors, while a temporary restraining order in this case is

unlikely to substantially harm others, the Undersigned “must be mindful of the cautions that apply

to issuing an injunction that affects the operation of the prison system, which also shows that the

public interest would not be served by issuing the injunction.” Carter v. Mich. Dep’t of Corr.,

2013 WL 5291567, at *6 (E.D. Mich. Sep. 19, 2013). In other words, “[t]he public interest in

leaving the administration of federal prisons to federal prison administrators is another factor

weighing against” a temporary restraining order in this case. Winn v. Waugaman, 2015 WL

1606151, at *5 (Apr. 8, 2015).

At base, because Plaintiff has failed to demonstrate a strong likelihood of success on the

merits—the most significant factor in this analysis—and because courts must be reluctant to

become involved in the administrative decisions of prisons, the Undersigned RECOMMENDS

that Plaintiff’s Motion for Temporary Restraining Order (Doc. 18) be DENIED. And, instead,

this case will continue with the discovery process.

II. MOTION REGARDING EVIDENCE (DOC. 25)

Plaintiff requests that the Court order the Ohio Department of Rehabilitation and

Corrections (“ODRC”) to produce any photo and video evidence of the alleged excessive force

incident at the center of this case. (Doc. 25). Defendants have responded to this Motion, saying

that—to the extent the Motion is seeking to compel discovery—it should be denied, because

Plaintiff has served no discovery requests on Defendants’ counsel. (Doc. 27). The Court agrees.

Motions to compel discovery responses may only be made if a party has failed to answer discovery

requests submitted under the applicable Federal Rules of Civil Procedure. Fed. R. Civ. P.

37(a)(3)(B). Plaintiff must first seek discovery from Defendants themselves—by way of requests

for discovery served upon their counsel. Accordingly, the Motion (Doc. 25) is DENIED without

prejudice.

The Court has compiled A Guide for Pro Se Civil Litigants, which provides an overview

of how to proceed through discovery. The Clerk is DIRECTED to provide a copy of the Guide

to Plaintiff along with a copy of this Report and Recommendation and Order. The Guide may also

be accessed at http://www.ohsd.uscourts.gov/pro-se-handbook.

III. SERVICE

Previously, the Court ordered service by the United States Marshal on all Defendants in

this action. (Doc. 8). Summonses issued to Defendants Straight and Twilla were returned

unexecuted, and those summonses indicated both individuals are no longer employed at LeCI.

(Doc. 17). Because Plaintiff had already taken reasonable steps to identify those Defendants, the

Court ordered counsel for the State of Ohio to submit under seal their last known addresses. (Doc.

20). Counsel has done so (Doc. 24), and service may now be completed. Accordingly, it is

ORDERED that the United States Marshal serve a copy of the complaint (Doc. 6), summons, the

Order granting Plaintiff leave to proceed in forma pauperis (Doc. 5), the January 19, 2023 Entry

and Order Adopting Report and Recommendation (Doc. 12), and this Report and Recommendation

and Order upon Defendants Twilla and Straight, using their updated addresses available at Doc.

24. All costs of service shall be advanced by the United States.

IV. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Motion for Temporary

Restraining Order (Doc. 18) be DENIED. Plaintiff’s Motion regarding evidence (Docs. 25) is

DENIED without prejudice. The United States Marshal is ORDERED to complete service on

Defendants Straight and Twilla.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed finding or recommendations to which objection is made, together with supporting

authority for the objection(s). A District Judge of this Court shall make a de novo determination

of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. §

636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: May 15, 2023 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE