Perry v. Erdos

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ANTHONY PERRY, :

:

Plaintiff, : Case No. 1:22-cv-178

:

vs. : Judge Jeffery P. Hopkins

:

RONALD ERDOS, et al.,

:

:

Defendants.

:

ORDER ADOPTING IN PART AND REJECTING IN PART

REPORT AND RECOMMENDATION

This matter is before the Court on the Report and Recommendation issued by

Magistrate Judge Chelsey M. Vascura on January 30, 2024. Doc. 138. The Magistrate Judge

recommends that Defendants’ motion for summary judgment (Doc. 136) be granted in part

and denied in part. Plaintiff Anthony Perry and Defendants Robert Dofflemyer and Michael

Pierce have objected to the R&R. See Docs. 139, 140. For the reasons below, Plaintiff’s

objections are OVERRULED, Defendants’ objections are SUSTAINED, and the Magistrate

Judge’s R&R is ADOPTED IN PART and REJECTED IN PART.

I. BACKGROUND

A. Factual Background

Plaintiff Anthony Perry was incarcerated at the Southern Ohio Correctional Facility

on June 25, 2020. On that date, another inmate, Caleb Willis, was involved in a physical

altercation with one of the correctional officers. Perry Dep., 136-1, 21:3–22. Mr. Perry was

locked down in his cell when that altercation occurred, so while he could not see what was

happening, he could hear the altercation. Id. at 22:2–6. Some officers that responded to that

altercation, including Defendants Robert Dofflemyer, Michael Pierce, Curtis Scott, and

Garth Fri, came to Plaintiff’s cell around 8:00 p.m. after Mr. Willis had been sent out. Id. at

23:19–24:14. Plaintiff believes they came to his cell because he is Muslim like Mr. Willis. Id.

at 34:13–20.

Upon arrival, Plaintiff and Defendants exchanged words, including one of them

calling Plaintiff “a nigger.” Id. at 25:22–26:4. Defendant Scott then said, “you motherfuckers

want to come here and put your hands on our COs, we’ll beat your ass, boy.” Id. at 27:10–

28:4. Plaintiff insisted that he was not a threat and came out of his cell with his hands up. Id.

Defendant Scott then began to search Plaintiff’s cell and break his personal items. Id. at 28:10–

29:14. Defendant Fri was present but “didn’t do nothing” when Plaintiff commented on

Defendant Scott’s conduct. Id. Plaintiff then “had an irate moment and [he] just started

cussing and going crazy because [Defendant Scott] was breaking his stuff.” Id.

Defendants Dofflemyer and Pierce then cuffed Plaintiff and began escorting him away.

Id. at 30:1–22. Plaintiff was walking in front of them, and at the time, he was on medication

for depression, anxiety, and paranoid schizophrenia. Id. at 31:17–32:3. Plaintiff reports that,

due to his medication, he had an episode and started twitching. Id. When his body locked up,

Defendants Dofflemyer and Pierce allegedly threw him into a window headfirst, causing

Plaintiff to fall back and hit his head. Id. He was “completely knocked out,” and Defendants

Dofflemyer and Pierce allegedly proceeded to beat him while he was on the ground with PR

sticks. Id. at 32:5–14, 36:21–37:6. A female bystander screamed at them to stop. Id.

Plaintiff testified that he did not receive medical attention for a week after the incident1

and that any medical records that indicate he was seen on June 25, 2020, would be

“incorrect.” Id. at 40:1–9. However, medical records produced for that day indicate that

Plaintiff was seen by a nurse on June 25, 2020. Plaintiff reported that he was “okay,” and

denied pain or injury. Doc. 136-4, PageID 914. The nurse observed that Plaintiff was alert

and oriented, respirations were even and unlabored, his gait was steady, and there were no

signs of injuries or distress noted. Id. Plaintiff refused medical treatment and was released to

restrictive housing. Id. The nurse signed the record at 8:43 p.m.

The accounts of Defendants Dofflemyer and Pierce differ. Defendants Dofflemyer and

Pierce assert that they responded to a disturbance in Plaintiff’s housing block on June 25,

2020, because Plaintiff was “threatening staff, stating that he kills people on the streets.”

Dofflemyer Aff., Doc. 136-2; Pierce Aff., Doc. 136-3. They were escorting Plaintiff out of his

block when he tensed up and lunged toward Defendant Pierce. Id. Plaintiff’s head then struck

Defendant Pierce’s head, and Plaintiff “continued thrashing his body around uncontrollably

and ignoring direct orders to calm down.” Id. Defendants Dofflemyer and Pierce “used force”

to place Plaintiff against the wall or window so they could gain control. Id. Plaintiff

“continued to twist and turn his body in an attempt to get out of [their] grasps,” and ignored

their orders to calm down. Id. Defendants Dofflemyer and Pierce then used additional force

to place Plaintiff on the ground. Id. After that, others helped gain control of Plaintiff. Id.

Plaintiff was assisted to his feet, escorted to the J2 housing block without further incident, and

was then evaluated by medical staff. Id; see also Doc. 136-4, PageID 881, 888.

1 Plaintiff also conveyed during his deposition that he requested an x-ray and that an x-ray was completed after

the incident—though it is unclear to the Court when this allegedly occurred. Perry Dep., 136-1, 41: 4–10.

Plaintiff did not provide any supporting documentation or testify as to the results of the x-ray.

B. Procedural Background

After the Magistrate Judge’s initial review of Plaintiff’s second amended complaint

pursuant to 28 U.S.C. § 1915, the Court permitted Plaintiff to proceed on his individual-

capacity Eighth Amendment claims under 42 U.S.C. § 1983 predicated on the use excessive

force against Defendants Dofflemyer, Pierce, Scott, and Fri. On December 14, 2023,

Defendants moved for summary judgment on that claim. Doc. 136. Plaintiff did not file a

response.

The Magistrate Judge recommends in the R&R that Defendants’ motion for summary

judgment be granted in part and denied in part. Doc. 138. The Magistrate Judge concluded

that the undisputed facts show that Defendants Scott and Fri were not involved in the use of

force at issue. Doc. 138, PageID 938–39. But the Magistrate Judge determined that

Defendants Dofflemyer and Pierce, who were personally involved, have not shown that their

use of force was reasonable, nor that they are entitled to qualified immunity. Id. at PageID

939–44. Both parties have filed objections. Plaintiff objects to the Magistrate Judge’s finding

that Defendants Scott and Fri are entitled to summary judgment. Defendants Dofflemyer and

Pierce object to the determination that they are not entitled to summary judgment.

II. STANDARDS OF REVIEW

A. Reports and Recommendation

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also

Fed. R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” Id., § 636(b)(1).

B. Summary Judgment

Summary judgment is appropriate “if the movant shows that 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 bears the burden of identifying the portions of the record

that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986)). The non-moving party, however, cannot defeat summary judgment

merely by pointing to any factual dispute. As the Sixth Circuit has explained, “the mere

existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 697 (6th Cir. 2020)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)).

The reviewing court must ultimately determine whether there is some “sufficient

disagreement” that demands submitting the matter to a jury. Moore v. Phillip Morris Cos., Inc.,

8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251–52). In making that

determination, the court must afford all reasonable inferences, and view the evidence in the

light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995).

III. LAW AND ANALYSIS

The only claim remaining in this § 1983 action is the one Plaintiff brought for excessive

force. An excessive force claim may arise under the Fourth, Eighth, or Fourteenth

Amendments. Hopper v. Plummer, 887 F.3d 744, 751 (6th Cir. 2018). As here, when an

excessive force claim is brought by a convicted person, the claim falls within the purview of

the Eighth Amendment’s bar on unnecessary and wanton infliction of pain against prisoners.

See Whitley v. Albers, 475 U.S. 312, 318–19 (1986). In that context, the “prisoner must satisfy

both an objective and subjective component.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.

2011).

The state of mind of prison officials is central to the subjective component. In this

instance, the relevant inquiry is “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 v. McMillian, 503 U.S. 1, 6 (1992)). Factors such as “the need for the

application of the force, the relationship between the need and the amount of force that was

used, [and] the extent of injury inflicted are relevant to the ultimate determination,” as are

other factors such as “the extent of the threat to the safety of staff and inmates, as reasonably

perceived by the responsible officials on the basis of the facts known to them, and any efforts

made to temper the severity of a forceful response.” Whitley, 475 U.S. at 321 (citations

omitted).

The objective component, on the other hand, requires a court to consider whether the

pain inflicted qualifies as “sufficiently serious.” Wilson v. Seiter, 501 U.S. 294, 298 (1991).

“This is a ‘contextual inquiry’ that is ‘responsive to contemporary standards of decency.’”

Williams, 631 F.3d at 383 (quoting Hudson, 503 U.S. at 8–9). Importantly, “[w]hen prison

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

decency are always violated…whether or not significant injury is evident.” Hudson, 503 U.S.

at 9.

A. Defendants Dofflemyer and Pierce are entitled to summary judgment.

Defendants Dofflemyer and Pierce contend that the Magistrate Judge erroneously

evaluated the subjective and objective components. The Court need not reach consideration

of the subjective component because, as discussed below, Defendants Dofflemyer and Pierce

have raised a legitimate and prevailing concern related to the objective component—such that

when considering the evidence related thereto, there is no genuine dispute of material fact.

In their motion for summary judgment, Defendants rely on medical evidence that

shows Plaintiff was evaluated by a medical professional on June 25, 2020—within an hour or

so of the use of force incident. That evidence reflects that there were “no signs of injuries or

distress noted,” and that Plaintiff denied pain or injury, “refused” medical treatment, and

reported he was “okay.” Doc. 136-4, PageID 914. Because he did not file any response, there

is no discernable evidence beyond Plaintiff’s testimony and allegations that would rebut the

medical evidence offered by Defendants. The complaint alleged that Defendants Dofflemyer

and Pierce’s actions caused him “severely [sic] hurt, suffering, and severe pain in [his] left

hand, arm, and wrist.” Doc. 31, PageID 297. Contrary to the medical evidence Plaintiff

testified that he was not seen by medical staff at the prison on June 25. Perry Dep., Doc. 136-

1, 40:1–9. And according to Plaintiff, if there are any records that show otherwise, they are

“incorrect.” Id. Even though Plaintiff alleges that he was not seen by medical professionals

until a week after the June 25 incident and that he had an x-ray taken of his injuries at some

later point, he has not produced into evidence any of those records.

Plaintiff seems to suggest that this inconsistency in the evidence—between his version

of what occurred on June 25 and Defendants’ version of the story as far as the medical

treatment he did or did not receive—creates a genuine issue of material fact. But “[w]hen

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). Plaintiff’s own statements are contradicted by the evidence, and his argument that the

medical evidence is “incorrect” is merely speculation. Arendale v. City of Memphis, 519 F.3d

587, 605 (6th Cir. 2008) (“In order to survive summary judgment, Plaintiff cannot rely on

conjecture or conclusory allegations.”). Aside from the medical evidence itself, other evidence

in the record reflects that Plaintiff was evaluated by prison medical staff on June 25, 2020,

shortly after the use of force incident. Doc. 136-4, PageID 881, 888. This again contradicts

Plaintiff’s own self-serving and uncorroborated account that he was not seen by medical staff

on that date. While self-serving statements can in some circumstances create a genuine dispute

of material fact to be resolved at trial, the opposite is true when self-serving testimony is

demonstrably false or blatantly contradicted by other evidence. Davis v. Gallagher, 951 F.3d

743, 750 (6th Cir. 2020).

In short, the evidence clearly shows that Plaintiff had no apparent injuries when

evaluated by medical personnel at the prison and that he refused medical treatment on June

25. Brooks v. Dillow, No. 1:15-cv-812, 2016 WL 6493419, at *11 (S.D. Ohio Nov. 2, 2016),

report and recommendation, adopted, 2016 WL 7034241 (S.D. Ohio Dec. 2, 2016) (“the lack

of any discernible injury” undermined plaintiff’s allegations that defendant “forcefully

‘slammed’ or ‘rammed’ him into two walls”); see also Johnson v. Sootsman, 79 F.4th 608, 618–

19 (6th Cir. 2023) (“[A]lthough the Eighth Amendment does not require a prisoner to suffer

‘serious injury,’ the ‘absence’ of such an injury goes a long way to disprove any claim that an

officer used force with the required intent to harm.”) (citation omitted).

Similar facts were before the Sixth Circuit in Richmond v. Settles, 450 F. App’x 448, 454

(6th Cir. 2011). There, the plaintiff brought an Eighth Amendment excessive force claim

against correctional officers after he was tripped and battered by them. The district court in

that case granted summary judgment in favor of the officers because the plaintiff had not

established a sufficiently serious injury. The Sixth Circuit agreed because the record showed

that the plaintiff had suffered no more than de minimis injury and he did not require any

medical treatment after his initial evaluation. Id. The Sixth Circuit emphasized that “a

prisoner must allege that he suffered more than a de minimis injury in order to state a viable

excessive force claim.” Id. (citing Hudson, 503 U.S. at 9–10).

Beyond the general allegations of his injuries detailed in the second amended

complaint and his other filings, Plaintiff has not offered specific facts that rebut the medical

evidence. See Doc. 31, PageID 297; Doren v. Battle Creek Health Sys., 187 F.3d 595, 598 (6th

Cir. 1999) (“Federal Rule of Civil Procedure 56(e) states that a party must offer ‘specific facts

showing that there is a genuine issue for trial.’”). And, during his deposition, Plaintiff did not

try to describe the injuries he received during the use of force incident. Thus, the Court is left

to rely on Plaintiff’s vague allegations that he was “severely hurt,” “suffering,” and had

“severe pain in [his] left hand, arm, and wrist” in deciding whether the pain inflicted was

sufficiently serious. Doc. 31, PageID 297. Merely reciting allegations such as these, without

more, in no way substantiates Plaintiff’s claim that Defendants engaged in an

unconstitutional application of force when Defendants sought to gain control of him. See

Fortson v. Henness, No. 1:22-cv-410, 2024 WL 3512747, at *11 (S.D. Ohio Feb. 23, 2024) (“In

short, the evidence that [defendant] presents is all consistent with him applying a de minimis

amount of force to [plaintiff]. Therefore, absent additional evidence creating a genuine factual

dispute, [plaintiff’s] excessive-force claim related to that incident fails on the objective

prong.”).

Although an inmate “does not lose his ability to pursue an excessive force claim merely

because he has the good fortune to escape without serious injury,” Wilkins v. Gaddy, 559 U.S.

34, 38 (2010), not “every malevolent touch by a prison guard gives rise to a federal cause of

action.” Hudson, 503 U.S. at 9. Because he has not shown that he suffered more than de

minimis injury—let alone any injury at all—Plaintiff has failed to allege that the conduct of

Defendants Dofflemyer and Pierce during the use of force incident was objectively harmful

enough to establish a violation of his Eighth Amendment rights. See Penn v. Eash, No. 1:22-

cv-262, 2023 WL 6961839, at *10–11 (S.D. Ohio Oct. 20, 2023), report and recommendation,

adopted, 2023 WL 7699832 (S.D. Ohio Nov. 15, 2023). Defendants Dofflemyer and Pierce

are therefore entitled to summary judgment.

B. Defendants Scott and Fri are entitled to summary judgment.

As the Magistrate Judge correctly noted, Plaintiff must show “personal involvement”

by Defendants Scott and Fri to establish liability under 18 U.S.C. § 1983. See Grinter v. Knight,

532 F.3d 567, 575 (6th Cir. 2008). Based upon Plaintiff’s own deposition testimony, it is clear

that these defendants—Scott and Fri—were not personally involved in the use of force at

issue. Perry Dep., Doc. 136-1, 31:2–16. To the extent that he raises a theory of respondeat

superior, Plaintiff must show that these defendants were “somehow personally involved in the

unconstitutional activity of a subordinate,” “or at least acquiesced in the alleged

unconstitutional activity.” Wingo v. Tenn. Dept. of Corr., 499 F. App’x 453, 455 (6th Cir. 2012)

(citing Dunn v. State of Tenn., 697 F.2d 121, 128 (6th Cir. 1982), Bellamy v. Bradley, 928 F.2d

416, 421 (6th Cir. 1984). Plaintiff has not done so and his objections are therefore overruled.

Defendants Scott and Fri are entitled to summary judgment.

IV. CONCLUSION

In sum, Plaintiff's objections (Doc. 140) are OVERRULED, Defendant Dofflemyer

and Pierce’s objections (Doc. 139) are SUSTAINED, and the Magistrate Judge’s R&R (Doc.

138)is ADOPTED IN PART and REJECTED IN PART. Accordingly, Defendants’ motion

for summary judgment (Doc. 136) is therefore GRANTED and Plaintiff's second amended

complaint (Doc. 31) is DISMISSED with prejudice. The Court therefore DIRECTS the Clerk

to enter judgment and to TERMINATE this case on its docket.

IT IS SO ORDERED.

Dated: August 21, 2024 arg, □ Labora

on. ¥difey” P. Hopkins

United States District Judge

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