# Austin v. Ashcraft

> District Court, S.D. Ohio · September 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10383219

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10383219

## How later opinions describe it (automated extraction)

- finding facts insufficient to show opportunity and means to prevent harm where plaintiffs themselves “d[id] not contend that the takedown lasted any more than ten seconds”
- affirming denial of qualified immunity to officers who failed to intervene in extended use of taser on plaintiff in front of them, because the case involved “a prolonged application of force and the officers who allegedly failed to protect were directly involved.”
- applying the premise from West and finding that private psychologist working under contract with a jail was acting under color of state law, despite lack of “direct employment relationship”
- finding genuine issue of material fact as to whether prison officials applied force maliciously and sadistically to cause harm where plaintiff disputed any force was necessary because he was on the floor and not resisting

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JASON ANDREW AUSTIN,

Plaintiff,
Civil Action 1:22-cv-159
v. Judge Timothy S. Black
Magistrate Judge Kimberly A. Jolson
JAMES ASHCRAFT et al.,

Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court on several motions: a Motion for Summary Judgment
brought by Defendants James Ashcraft, Quinnlan Berry, and Demetrius Yates (Doc. 30)1; another
Motion for Summary Judgment brought by Defendant John Boykin (Doc. 31); and Plaintiff’s
Motion to Appoint Counsel (Doc. 41).
I. BACKGROUND
Plaintiff brings this action under 42 U.S.C. § 1983 against Defendants James Ashcraft,
Demetrius Yates, John Boykin, and Quinnlan Berry. (Doc. 3 at 2–3). Plaintiff alleges that each
Defendant violated his rights under the Eighth Amendment while he was incarcerated at the
Lebanon Correctional Institution (“LeCI”). After an initial screening of his Complaint, Plaintiff
was permitted to proceed on his Eighth Amendment claims against the Defendants in their
individual capacities only. (Docs. 4, 17).
Plaintiff says his troubles began on December 10, 2021, when an attack by another inmate
left him with a head wound. (Doc. 1-4 at 5). Plaintiff was then placed in restrictive housing

1 A duplicate motion was filed at Doc. 28. It was not text-searchable, however, and after the Clerk of Court issued a
notice of non-compliance (Doc. 29), it was refiled (Doc. 30). The Undersigned refers to the latter filed Motion
throughout this Report and Recommendation.
pending investigation of the attack. (Id.) On December 14, 2021, sitting in his cell with six staples
in his head, Plaintiff claims he had a seizure and was brought to the prison infirmary. (Id.).
Defendant Yates, a corrections officer, escorted Plaintiff from his cell to the infirmary—where
Defendant Ashcraft, also a corrections officer, was stationed. (Doc. 30-3, ¶¶ 3–5; Doc. 30-2,

¶¶ 3–4). Ashcraft let Yates and Plaintiff through the infirmary gate and led them into an exam
room (id., ¶ 5), where Plaintiff was seen by a nurse (Doc. 30-1).
Plaintiff, shackled and placed in a restraint chair, was medically examined, but showed no
visible signs or symptoms of seizure activity. (Id.). As Plaintiff was being removed from the
restraint chair and stood, he was lightheaded and dizzy. (Doc. 1-4 at 5). Ashcraft then allegedly
accused Plaintiff of faking his symptoms, slammed him to the ground, and slapped him in the head
several times, which reopened Plaintiff’s head wound and briefly rendered him unconscious. (Id.
at 3; Doc. 3 at 5). Yates purportedly witnessed this assault but did not intervene. (Id.). Plaintiff
also says that Defendant Boykin—a dentist working in the infirmary (Doc. 33, ¶ 7)—witnessed
the assault from a nearby dental office but did not intervene (Doc. 1-4 at 3–4).

Following the assault, Plaintiff picked himself up off the floor and was escorted by Yates
out of the exam room and back to his cell. (Doc. 1-4 at 3). When he arrived there, corrections
officers—including Defendant Berry, a corrections officer Captain (Doc. 30-4, ¶ 3)—ordered
Plaintiff’s cellmate, Michael Keister, to present his hands through the cuff port so he could be
restrained (Doc. 1-4 at 10). Keister did not immediately comply, and Berry told him he needed to
do so or she would use pepper spray. (Id.). She then sprayed Keister, and he was restrained and
removed from the cell to be transported elsewhere. (Id.).
Plaintiff told Berry he was reluctant to enter the recently sprayed cell, given his open head
wound. (Id.). He says Berry responded, “That’s what the fuck you get, get in there before I spray
you.” (Id.). Plaintiff complied, but he says the residual spray in the cell burned his eyes and the
wound on his head, restricted his breathing, and caused him to urinate himself. (Id.). When
another officer brought Keister back to the cell twenty minutes later, Plaintiff purportedly asked
to see medical for treatment but was ignored. (Id.).

Now, all Defendants move for summary judgment. (Docs. 30, 31). The Motions are fully
briefed and ripe for consideration. (Docs. 38, 39).
II. STANDARD
Summary judgment is granted when “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). Summary
judgment is appropriately entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When a
defendant shows there is insufficient evidence to support any element of the plaintiff’s claim and
moves for summary judgment, the burden shifts to the plaintiff to demonstrate a genuine issue for

trial on which a reasonable jury could return a verdict in its favor. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986). Evidence is viewed in the light most favorable to the nonmoving party, meaning that
“any direct evidence offered by the [nonmovant] in response to a summary judgment motion must
be accepted as true.” Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004), citing Liberty Lobby,
477 U.S. at 251–52, and Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994). Ultimately, the Court
asks “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.” Liberty Lobby, 477 U.S.
at 251–52.
III. DISCUSSION
Plaintiff alleges that Ashcraft and Berry both subjected him to cruel and unusual
punishment, in violation of the Eighth Amendment. (Doc. 3 at 3–5). He further says that Yates
and Boykin, because they witnessed Ashcraft’s assault, had a duty to intervene and prevent the

harm. (Id.). The Undersigned considers the claims against each Defendant in turn, beginning with
Ashcraft’s excessive force, proceeding to Yates and Boykin’s failure to intervene, and closing with
Berry’s deliberate indifference to Plaintiff’s health and safety. The Undersigned then briefly
addresses Plaintiff’s Motion to Appoint Counsel.
A. James Ashcraft
The thrust of Ashcraft’s argument seems to be that he is entitled to summary judgment
because there was no underlying use of force. (Doc. 30 at 4).
Both Ashcraft and Yates admit they were in the medical exam room where the alleged
assault occurred. But their version of what happened in that room and afterwards differs drastically
from Plaintiff’s. Both deny that Ashcraft used any force against Plaintiff following his medical

evaluation. Ashcraft declares, “Plaintiff [ ] claims, ‘I was assaulted in shackles and handcuffs by
Ashcraft by smacking me in the head several times and slamming me on my head.’ That never
happened. I did not assault [Plaintiff] at any point in time.” (Doc. 30-2, ¶ 5) (emphasis in original).
Yates agrees that Ashcraft did not use any force against Plaintiff. (Doc. 30-3, ¶ 5). And Boykin—
working that day in the infirmary’s dental office—maintains that he saw Ashcraft and another
officer escorting an inmate from the exam room only; he claims to have not witnessed anything
that happened within the exam room, nor any use of force. (Doc. 33, ¶¶ 8, 9). Said plainly,
Ashcraft and Yates agree that no assault occurred in the exam room, while Boykin denies seeing
anything that happened in the exam room altogether.
Essentially, then, Plaintiff’s claim against Ashcraft comes down to a credibility
determination. Does one believe Plaintiff’s version of events, in which Ashcraft assaulted him
unbidden and continued to do so after he was on the ground? Or does one believe the prison
officials, who say no assault occurred altogether? “‘Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge,’ when ruling on a motion for summary judgment.” Helphenstine v. Lewis Cty., Ky., 60
F.4th 305, 314 (6th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
Notably, Defendants submitted only their own affidavits, a nursing medical exam report about
Plaintiff’s medical visit, and a use-of-force review related to Defendant Berry’s use of pepper spray
as evidence in support of their Motion for Summary Judgment. (Docs. 30-1–30-5). None of the
evidence forecloses Plaintiff’s narrative or bolsters Ashcraft and Yates’s such that Plaintiff’s
becomes incredible. So, the ultimate credibility determination about whether an assault occurred
should be reserved for the jury.
Still more, were a jury to believe Plaintiff’s version of events, it could find that he

demonstrated both the subjective and objective components of his excessive force claim. “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).
Regarding the subjective component, the nursing medical exam report does indicate that
during the exam Plaintiff “became irate, combative (in restraints) and was escorted from medical
per security and ambulated of his own will.” (Doc. 30-1). As discussed above, Plaintiff’s
description of the alleged assault occurs after he was removed from the restraint chair: he says he
became lightheaded, and then Ashcraft slammed him to the ground and slapped him in the head
several times. (Doc. 1-4 at 3, 5). So, even if Plaintiff was combative while in the restraint chair,
it does not necessarily follow that there was a need for force after he was removed from the restraint

chair. Moreover, the Court cannot consider the relationship between that need and the type and
amount of the force used, whether 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 when Ashcraft’s
account is that no such force was used. See Hudson, 503 U.S. at 7 (quoting Whitley v. Albers, 475
U.S. 312, 321 (1986)). So, viewing the evidence in the light most favorable to Plaintiff, a
reasonable jury could determine that Ashcraft demonstrated a malicious or sadistic intent to cause
harm by forcing a shackled prisoner to the ground and slapping him in the head (where he had a
visible preexisting wound) several times. See Alspaugh v. McConnell, 643 F.3d 162, 168–69 (6th
Cir. 2011) (finding genuine issue of material fact as to whether prison officials applied force
maliciously and sadistically to cause harm where plaintiff disputed any force was necessary

because he was on the floor and not resisting).
Regarding the objective component, a reasonable jury could find that the use of force was
more than de minimis. Viewing the record in Plaintiff’s favor, he was struck several times in the
head while he was shackled, on the ground, not resisting. This would certainly violate
contemporary standards of decency. See Cordell v. McKinney, 759 F.3d 573, 585–86 (6th Cir.
2014) (quoting Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010) (“We have held in the past
that ‘striking a neutralized suspect who is secured by handcuffs is objectively unreasonable.’ . . .
[W]e doubt that slamming a handcuffed and controlled prisoner headfirst into a concrete wall
comports with human decency.”). Plaintiff says the force was serious enough to render him briefly
unconscious and reopen his head wound. (Doc. 1-4 at 3; Doc. 3 at 5). A reasonable jury could
determine that the infliction of pain on Plaintiff was sufficiently serious to violate the Eighth
Amendment.
All told, this claim hinges on a credibility determination that is reserved for a jury. Ashcraft

has not adduced evidence that makes Plaintiff’s version of events incredible, and—were a jury to
accept that version of events—it could find that both the subjective and objective components of
Plaintiff’s claim were satisfied.
Beyond challenging the merits of Plaintiff’s constitutional claim, Ashcraft has asserted
qualified immunity as a defense. But Ashcraft is not immune from liability. “Qualified immunity
shields an officer from suit when she makes a decision that, even if constitutionally deficient,
reasonably misapprehends the law governing the circumstances she confronted.” Taylor v. Riojas,
592 U.S. –––, 141 S.Ct. 52, 53 (2020). “The qualified immunity standard ‘gives ample room for
mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate
the law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (quoting Malley v. Briggs,

475 U.S. 335, 343 (1986)). “The contours of the [violated] right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Since Ashcraft has raised the qualified immunity defense,
Plaintiff bears the burden of showing that defendants are not entitled to qualified immunity.
Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015) (quoting Reilly v. Vadlamudi, 680 F.3d
617, 623 (6th Cir. 2012)).
As described above, there is sufficient caselaw surrounding assaults on nonresistant or
restrained plaintiffs to put Ashcraft on notice that the force alleged violated the Eighth
Amendment. See, e.g., Alspaugh, 643 F.3d at 168–69; Schreiber, 596 F.3d at 332. Until a jury
resolves the factual disputes surrounding the assault, Ashcraft is not entitled to qualified immunity.
Accordingly, the Undersigned RECOMMENDS that Defendants’ Motion (Doc. 30) be
DENIED as it relates to Defendant Ashcraft.

B. Demetrius Yates
Plaintiff says that Yates was present in the medical exam room when Ashcraft assaulted
him but did nothing to stop it and never reported it. (Doc. 3 at 4). Yates raises no independent
arguments on his behalf in the Motion for Summary Judgment. (See Doc. 30). Rather, like
Ashcraft, he relies only on their joint account that no assault happened. For the same reasons as
above, that presents a credibility determination which is beyond the Court in deciding motions for
summary judgment.
In reply to the Motion, Yates raises a separate argument that Plaintiff has not alleged his
personal involvement in the constitutional violation and is impermissibly trying to proceed under
a theory of respondeat superior. (Doc. 39 at 13–14). First, it is impermissible to reserve issues

for reply, so the argument must fail for procedural reasons. In re FirstEnergy Corp. Securities
Litig., 316 F. Supp. 2d 581, 599 (N.D. Ohio 2004) (citing United States v. Campbell, 279 F.3d
392, 301 (6th Cir. 2002) (“It is well-established that a party cannot raise new issues in a reply brief;
he can only respond to arguments raised for the first time in opposition.”). And, the argument fails
on its merits too.
Plaintiff has not included Yates in this suit merely because he had some supervisory
function over Ashcraft. Rather, Plaintiff has alleged that Yates witnessed the assault and could
have intervened, but failed to do so. Liability can arise from inaction. Indeed, “there are
circumstances under which police officers can be held liable for failure to protect a person from
the use of excessive force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) (citations omitted).
An officer is liable for failure to prevent excessive force “when (1) the officer observed or had
reason to know that excessive force would be or was being used, and (2) the officer had both the
opportunity and the means to prevent the harm from occurring.” Id. (citation omitted). This law

applies in equal measure to corrections officers. See Batson v. Hoover, 788 F. App’x 1017, 1021–
22 (6th Cir. 2019); McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990) (“[A] correctional
officer who observes an unlawful beating may, nevertheless, be held liable under § 1983 without
actively participating in the unlawful beating.”). This makes sense, given that the government has
“stripped [prisoners] of virtually every means of self-protection and foreclosed their access to
outside aid[.]” Farmer v. Brennan, 511 U.S. 825, 833 (1994). For this reason, prison officials
owe a duty to prisoners to protect them from violence. Id.
Crediting Plaintiff’s version of events, Yates was present in the exam room when Ashcraft
used excessive force. And, given that he says the assault occurred in a sequence of events—
Ashcraft first slamming Plaintiff to the ground, and then striking him in the head several times—

it is not unreasonable to conclude that the assault lasted long enough for Yates to have had the
opportunity and means to prevent the harm from occurring. Cf. Burgess v. Fischer, 735 F.3d 462,
475–76 (6th Cir. 2013) (finding facts insufficient to show opportunity and means to prevent harm
where plaintiffs themselves “d[id] not contend that the takedown lasted any more than ten
seconds”); Kowolonek v. Moore, 463 F. App’x 531, 539 (6th Cir. 2012) (no opportunity and means
where instance of excessive force included only single use of taser); Ontha v. Rutherford Cty.,
Tenn., 222 F. App’x 498, 506 (6th Cir. 2007) (no opportunity and means where instance of
excessive force lasted six to seven seconds). Again, because Yates disputes the use of force
altogether, he has not adduced any evidence to suggest that the assault unfolded so quickly that he
had no means or opportunity to prevent the harm. So, if a reasonable jury were to credit Plaintiff’s
testimony, it could find that both elements of the failure to intervene claim are met.
Yates also raises a qualified immunity defense. But, as described above, caselaw
surrounding both the underlying assault and the duty to intervene are sufficient to put Yates on

notice that his alleged conduct violated the Eighth Amendment. Until a jury resolves the factual
disputes surrounding the assault, Ashcraft is not entitled to qualified immunity. Accordingly, the
Undersigned RECOMMENDS that Defendants’ Motion (Doc. 30) be DENIED as it relates to
Plaintiff’s failure to intervene claim against Defendant Yates.
To the extent Plaintiff may be bringing a separate claim against Yates for failure to report
the use of excessive force, Plaintiff cites no law establishing a constitutional duty to report. Nor
has the Undersigned found any such authority in this Circuit. So, regarding any failure to report
claim against Defendant Yates, the Undersigned RECOMMENDS that Defendants’ Motion (Doc.
30) be GRANTED.
C. John Boykin

Plaintiff says that Boykin also witnessed Ashcraft’s assault and failed to intervene or report
it. (Doc. 3 at 5). In particular, Plaintiff says Boykin was in the infirmary’s dental office, across
from the exam room, and was looking out a window. (Id.; Doc. 1-4 at 6). Boykin says Plaintiff’s
claim must fail for several reasons: (1) he never witnessed any assault; (2) he is a private individual
working for a healthcare company that contracts with the Ohio Department of Rehabilitation and
Corrections, and should not therefore be considered a state actor; and, assuming there was an
assault, (3) he had no duty or authority to intervene on the actions of a corrections officer; and (4)
no duty to report it. (Doc. 31 at 4–5).
Boykin’s declaration that he never witnessed an assault (see Doc. 33, ¶ 8), which is only
supported by the declarations of other Defendants, is insufficient for summary judgment for the
same reason as outlined above—it requires a credibility determination between the Defendants and
Plaintiff. Additionally, regarding Boykin’s argument that he is not a state actor, “an individual

need not be a formal ‘public employee’ to qualify as a state actor because governments have long
carried out their duties using private agents.” Phillips v. Tangilag, 14 F.4th 524, 532 (6th Cir.
2021) (citation omitted). For this reason, individuals who perform services at prisons can in some
cases inherit the state’s duty under the Eighth Amendment to safeguard prisoners’ wellbeing. Id.
(citing DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200). For example,
the Supreme Court of the United States found that an orthopedic specialist who operated two
weekly clinics at a prison acted under color of state law and assumed a duty to provide adequate
medical care to prisoners, even though he was a private physician. West v. Atkins, 487 U.S. 42
(1988); see also Carl v. Muskegon Cty., 763 F.3d 592, 595–57 (6th Cir. 2014) (applying the
premise from West and finding that private psychologist working under contract with a jail was

acting under color of state law, despite lack of “direct employment relationship”). That said,
because Boykin served as “the institutional dentist” at LeCI (Doc. 33, ¶ 6), he is a state actor under
§ 1983.
While a medical professional like Boykin most clearly assumes the duty for adequate
medical care that the state owes to prisoners, he may assume other duties of care under the Eighth
Amendment as well. See, e.g., Burgess, 735 F.3d at 475–76 (assessing a nurse’s liability for failure
to intervene because she was present during a “takedown” of pretrial detainee by corrections
officers); Durham v. Nu’Man, 97 F.3d 862, 868 (reversing district court grant of summary
judgment in favor of nurse for failure to intervene, because her actions precipitated use of force by
officers and “precedent holding police officers and correctional officers liable for failure to
intervene was sufficient to place the nurse who caused the conflict on notice that she had a duty to
protect plaintiff while under her charge[.]”). So, just because Boykin is a private physician does
not mean he is insulated from potential liability in Plaintiff’s excessive force claim.

Still, the facts here do not support that Boykin had reason to know excessive force was
being used, nor had the means and opportunity to prevent the harm Plaintiff alleges. Unlike Yates,
Boykin was not in the immediate vicinity of the alleged assault. Rather, Plaintiff says he was
across the hall, in a separate room, looking through a window. (See Doc. 1-4 at 6). Plaintiff’s
representations on this point have been somewhat mixed. During the grievance process, he first
suggested that Boykin only saw him in the aftermath of the assault, as he was leaving the exam
room. (Doc. 1-4 at 5) (Plaintiff claiming that after “Ashcraft assaulted [him] and [he] picked
[him]self off the ground” and he “was w[al]king out the door[,]” he saw “Boykin looking out the
door of the dentist room”). This coheres with Boykin’s own declaration, in which he says that he
witnessed two corrections officers, one of whom he recognized as Ashcraft, escorting an inmate

from the exam room, but saw nothing else. (Doc. 33, ¶ 9). Later, Plaintiff said instead that Boykin
was “looking out the dental door window the whole time when the assault happen[ed].” (Doc. 1-
4 at 6).
Even accepting Plaintiff’s later statement as true, a reasonable jury could not find that
Boykin is liable for a failure to protect Plaintiff. First, Boykin must have had reason to know the
force he allegedly observed was excessive force. Turner, 119 F.3d at 429. In other words, he must
have had reason to know that the force was not being applied in a good faith effort to maintain or
restore discipline but was instead being applied “maliciously and sadistically for the very purpose
of causing harm.” Williams, 631 F.3d at 383. Yet, because he was observing from behind two
closed doors and across a hallway, it would be unreasonable to conclude that he understood the
purpose of the force and could discern that the officers were not making a good faith effort to
restrain Plaintiff. In other words, it would be impossible for him to understand the context of the
force.

Similarly, it is unreasonable to conclude that from Boykin’s vantage, he had the means and
opportunity to intervene and prevent the assault. At base, Boykin was not directly involved in the
circumstances surrounding Plaintiff’s assault, and so he is entitled to summary judgment on
Plaintiff’s claim for failure to intervene. See Gessner v. Saylors, No. 3:16-cv-234, 2018 WL
2725435, at *5 (S.D. Ohio June 6, 2018) (finding that officer who was occupied escorting another
arrestee was entitled to summary judgment for failure to intervene on his partner’s use of excessive
force on plaintiff); Thomas v. City of Columbus, No. 2:15-cv-2469, 2017 WL 4217155, at *9 (S.D.
Ohio Sep. 20, 2017) (finding that officer stationed outside apartment building where alleged
excessive force arrest occurred was entitled to summary judgment for failure to intervene); but see
Goodwin v. City of Painesville, 781 F.3d 314, 329 (6th Cir. 2015) (affirming denial of qualified

immunity to officers who failed to intervene in extended use of taser on plaintiff in front of them,
because the case involved “a prolonged application of force and the officers who allegedly failed
to protect were directly involved.”).
And, to the extent Plaintiff brings a claim for failure to report the use of excessive force,
that fails for the same reason as identified above regarding Defendant Yates. Accordingly, the
Undersigned RECOMMENDS that Defendant Boykin’s Motion for Summary Judgment (Doc.
31) be GRANTED.
D. Quinnlan Berry
Plaintiff’s final claim is brought against Berry, the corrections officer who pepper sprayed
Plaintiff’s cellmate and subsequently ordered Plaintiff to return to his cell. Significantly, Plaintiff
says Berry did not directly assault him. (See Doc. 38 at 8). Instead, he says that she subjected him

to cruel and unusual punishment by requiring him to enter a cell which purportedly had residual
pepper spray. (Doc. 3 at 4–6). Berry characterizes Plaintiff’s claim as an excessive force claim,
and says the claim fails to meet the requisite subjective and objective components. (Doc. 30 at 7–
12). But this claim is more easily understood as a claim for deliberate indifference. Indeed, in
response to the Motion for Summary Judgment, Plaintiff says Berry was “deliberately indifferent
towards [his] health and safety.” (Doc. 38 at 8). Yet, because these claims both arise under the
Eighth Amendment, they share certain contours regarding objective risk of harm and Berry’s
subjective intent, so her arguments largely translate. All told, the Undersigned concludes that a
reasonable jury could not find that Berry’s actions, even viewed in a light most favorable to
Plaintiff, give rise to liability under the Eighth Amendment.

Berry has adduced evidence supporting the following sequence of events. Plaintiff was
returned to his cell in restrictive housing following the alleged assault by Ashcraft. A policy in
restrictive housing requires that, when returning an inmate to his cell, his cellmate must be secured
in restraints before the door is breached. (Doc. 30-5 at 8). Accordingly, Berry asked Plaintiff’s
cellmate, Michael Keister, to place his hands in the cell’s cuff port, so she could place restraints
on him. (Id. at 11). He refused, and was given several more directives, with the intervention of a
crisis negotiator. (Id.). Still not compliant, Keister was given a final directive to put his hands in
the cuff port and warned that Berry would use pepper spray if he did not. (Id.). He again refused
and Berry sprayed him. (Id.). He then became compliant and was secured in restraints and taken
to the infirmary. (Id.). Plaintiff was then placed back into the cell. (Doc. 30-4, ¶ 7).
Plaintiff does not refute any of these events. (See Doc. 1-4 at 10). He adds, however, that
he told Berry he did not want to return to the cell because pepper spray had been used in the cell

and he had an open head wound. Plaintiff claims that Berry responded: “That’s what the fuck you
get. Get in there before I spray you.” (Id. at 12).
The Eighth Amendment requires that prison officials “take reasonable measures to
guarantee the safety of its inmates.” Curry v. Scott, 249 F.3d 493, 506 (6th Cir. 2001) (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1994)). A claim for failure to take such reasonable
measures requires a showing that a prison official acted with “deliberate indifference” to a
substantial risk of harm. Id. (quoting Farmer, 511 U.S. at 834). This has both an objective and
subjective component. Id. The objective component for a claim based on the failure to prevent
harm requires that the inmate “show that he is incarcerated under conditions posing a substantial
risk of serious harm.” Id. (quoting Farmer, 511 U.S. at 834). And, the subjective component

requires that the prison official had “a sufficiently culpable state of mind.” Id. (quoting Farmer,
511 U.S. at 834). This means that “the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. (quoting
Farmer, 511 U.S. at 837).
Regarding the objective component, Plaintiff has not created a genuine dispute that the
conditions of his cell posed a substantial risk of serious harm. The parties do not dispute that Berry
pepper sprayed Keister while he was in the cell. Yet, importantly, the contemporaneous accounts
from prison officials collected in the use-of-force report uniformly note that the burst of pepper
spray was small and directed toward Keister’s face. (Doc. 30-5). Plaintiff does not meaningfully
rebut these accounts. So, to the extent that the Keister incident left pepper spray residue in the
cell, there is no evidence to suggest the residue was significant, nor that the risk it posed to Plaintiff
was substantially serious.

Plaintiff says he suffered burning in his eyes and head wound from the pepper spray. But
other courts have found that the burning effects of pepper spray, without more, are not sufficiently
serious for deliberate indifference claims—even when plaintiffs have suffered direct application
of pepper spray. See, e.g, McDougald v. Bear, No. 1:17-cv-124, 2019 WL 652501, at *7 (S.D.
Ohio Feb. 15, 2019), report and recommendation adopted by 2019 WL 4126394 (S.D. Ohio Aug.
30, 2019) (collecting cases in which plaintiffs’ complaints of difficulty breathing and burning in
eyes, nose, lungs, and skin were not sufficient to demonstrate serious medical need under Eighth
Amendment). Plaintiff has not suggested that—aside from his head wound—he has any condition
that makes him uniquely susceptible to harms from pepper spray. And, while Plaintiff says that
his experience in the cell was painful, he does not suggest that he suffered any lingering harm.

Plaintiff says he asked a corrections officer working in restrictive housing to see medical (Doc. 1-
4 at 11), but crucially has never named that officer, nor represented that he made any further
attempts to seek medical care. Because Plaintiff has not adduced sufficient evidence for a
reasonable jury to find that he was exposed to a substantial risk of serious harm, his claim for
deliberate indifference cannot succeed, and Defendant Berry is entitled to summary judgment.
Again, the Undersigned notes briefly that this claim is not legible as an excessive force
claim. Berry, by Plaintiff’s own admission, did not directly use any force against him. (Doc. 38
at 8). At most, she warned or threatened that she would use pepper spray if he did not return to
his cell.
Berry also raises a qualified immunity defense. Qualified immunity is proper when either
the officer’s behavior was not constitutionally violative or the officer acted reasonably in a way
which they did not believe violated any constitutional rights. Taylor, 141 S. Ct. at 53. As described
above, the Undersigned finds that no constitutional violation has occurred. As a result, Berry

enjoys qualified immunity.
For all these reasons, the Undersigned RECOMMENDS that Defendants’ Motion for
Summary Judgment (Doc. 30) be GRANTED with respect to Defendant Berry.
E. Motion to Appoint Counsel
Finally, the Undersigned notes that Plaintiff has a pending Motion for Appointment of
Counsel (Doc. 41). The Undersigned will hold that Motion in abeyance until the District Judge
has ruled upon her Report and Recommendation and determined which claims should proceed to
be tried on their merits.
IV. CONCLUSION
For the foregoing reasons, the Undersigned RECOMMENDS that Defendants’ Motion

for Summary Judgment (Doc. 30) be DENIED as it relates to Plaintiff’s excessive force claim
against Defendant Ashcraft and failure to intervene claim against Defendant Yates, but
GRANTED with respect to any failure to report claim against Defendant Yates, as well as the
claim against Defendant Berry. The Undersigned further RECOMMENDS that Defendant
Boykin’s Motion for Summary Judgment (Doc. 31) be GRANTED.
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 findings 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: September 25, 2023 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383219. Public record. Not legal advice.