The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TRAVIS GOLDEN,
Plaintiff, :
Case No. 2:22-cv-2125
v.
Chief Judge Sarah D. Morrison
Magistrate Judge Stephanie K.
Bowman
OHIO DEPARTMENT OF
REHAB. AND CORR., et al., :
Defendants.
ORDER
This matter is before the Court on the Report and Recommendation (R&R,
ECF No. 60) issued by the Magistrate Judge on August 16, 2024. Upon review of the
parties’ cross motions for summary judgment (ECF Nos. 47, 48), the Magistrate
Judge recommended that (1) Plaintiff Travis Golden’s motion for summary
judgment be denied; (2) Defendant Sergeant Tony Marshall’s motion for summary
judgment be granted; and (3) the remaining pending motions (ECF Nos. 57–59) be
denied as moot and the case be closed. (R&R, PAGEID # 392–93.) Mr. Golden timely
filed an objection (Obj., ECF No. 62).
For the reasons set forth below, the Court ADOPTS and AFFIRMS the
Report and Recommendation (ECF No. 60). Mr. Golden’s Motion for Summary
Judgment (ECF No. 47) is DENIED, and Sergeant Marshall’s Motion for Summary
Judgment (ECF No. 48) is GRANTED. The remaining pending motions (ECF Nos.
57–59) are DENIED as moot. The Clerk is DIRECTED to TERMINATE this case
from the docket of the United States District Court for the Southern District of
Ohio.
I. BACKGROUND
Mr. Golden is an Ohio inmate proceeding without assistance of counsel. (ECF
No. 1.) He commenced this action against the Ohio Department of Rehabilitation
and Correction (“ODRC”) and Sergeant Marshall, alleging claims under 42 U.S.C.
§ 1983. (Compl., ECF No. 3, PAGEID # 48.) Mr. Golden asserts that Sergeant
Marshall violated his right to privacy in May 2020 at the Pickaway Correctional
Institution when Sergeant Marshall ordered a strip search of Mr. Golden’s dorm in
retaliation for another inmate calling him a name. (Id., PAGEID # 50.) Mr. Golden
alleges that he was mortified by being forced to strip down to his underwear in front
of other inmates and suffered an anxiety attack and ongoing depression. (Id.) He
seeks compensatory and punitive damages. (Id., PAGEID # 51.)
Mr. Golden and Sergeant Marshall each moved for summary judgment.1
(ECF Nos. 47, 48.) The Magistrate Judge issued a Report and Recommendation
recommending that this Court grant Sergeant Marshall’s summary judgment
motion and deny Mr. Golden’s summary judgment motion. (R&R, PAGEID # 393.)
Mr. Golden objects. (Obj., generally.)
II. STANDARD OF REVIEW
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
1 The Court dismissed Mr. Golden’s claim against ODRC with prejudice on
June 27, 2022. (ECF No. 7.)
specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1); 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.” 28 U.S.C. § 636(b)(1).
III. ANALYSIS
Mr. Golden argues on summary judgment that Sergeant Marshall violated
his Fourth and Eighth Amendment rights because the strip search was not
supported by a penological justification and did not comport with the overall
purpose of the Prison Rape Elimination Act of 2003 (“PREA”). (ECF No. 47,
PAGEID # 279.) Sergeant Marshall responds that the event in question was a tattoo
check meant to accomplish valid penological objectives and that Mr. Golden has
failed to establish that his constitutional rights were violated. (ECF No. 48,
PAGEID # 288–89.) Sergeant Marshall also asserts that he is entitled to qualified
immunity. (Id.)
After reviewing the parties’ summary judgment briefing, the Magistrate
Judge recommended that this Court grant summary judgment in favor of Sergeant
Marshall and deny summary judgment as to Mr. Golden. (R&R, PAGEID # 393.)
First, the Magistrate Judge concluded that Mr. Golden’s Fourth Amendment
claim failed as a matter of law because the tattoo search at issue—which involved
inmates stripping down to their underwear and which lasted less than thirty
seconds—was not unconstitutionally intrusive. (R&R, PAGEID # 388.) Additionally,
Sergeant Marshall provided a reasonable explanation for his conduct, namely that
tattoo checks help corrections officers identify prison gang members and promote
inmate health and safety. (Id., PAGEID # 387–89.) Mr. Golden presented no
evidence to dispute Sergeant Marshall’s asserted penological justification, and his
references to allegedly exculpatory video footage that he did not provide with his
motion are insufficient. (Id., PAGEID # 389.)
Second, the Magistrate Judge determined that Mr. Golden failed to establish
an Eighth Amendment claim:
Plaintiff’s unsupported conclusory allegations fail to establish that
Defendant’s actions were punitive in nature and not a routine security
and safety task. To the contrary, as detailed above, the evidence
clearly establishes that the search served a legitimate purpose and was
not punitive, namely, in order to identify prison gangs and for the
health and safety of inmates.
(R&R, PAGEID # 391.)
Finally, even if Mr. Golden had met his burden of establishing a Fourth or
Eighth Amendment violation, Sergeant Marshall is entitled to qualified immunity
because his actions would not constitute a violation of a “clearly established” right.
(R&R, PAGEID # 392.)
Mr. Golden objects to the Magistrate Judge’s Report and Recommendation on
thirteen grounds. (Obj., generally.) The Court addresses each objection in full below,
analyzing them together to the extent the arguments overlap.
A. Failure to Provide Evidence (Objection Nos. 1, 10)
Mr. Golden first objects to the Magistrate Judge’s finding that he “failed to
cite to any evidence, affidavit, or otherwise in his motion for summary judgment as
required by Fed. R. Civ. P. 56.” (Obj., PAGEID # 397 (citing R&R, PAGEID # 383
n.2).) He argues that he did cite to two forms of evidence in his motion, including
video footage of the incident and the filings related to his inmate grievance.2 (Obj.,
PAGEID # 398.) However, Mr. Golden did not attach the video or the grievance
filings to his motion. As the Magistrate Judge correctly noted, he “cannot rest on the
mere allegations of the pleadings.” (R&R, PAGEID # 389); see also, e.g., Maston v.
Montgomery Cty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 851–52 (S.D. Ohio
2011) (Newman, M.J.) (holding that a pro se party cannot rely on allegations or
denials in unsworn filings when opposing a motion for summary judgment); S.D.
Ohio Civ. R. 7.2(e) (“Unless already of record … evidence shall be attached to the
memorandum or included in an appendix thereto.”). This is particularly true in the
face of Sergeant Marshall’s affidavit stating that he inquired about security camara
footage for the date in question and none was available.3 (ECF No. 49-1, ¶ 4.) The
2 According to Mr. Golden, the Magistrate Judge failed to afford due
deference or the presumption of correctness to the grievance filings and conclusions.
(Obj., PAGEID # 400–02.) Putting aside whether these materials deserve such
deference, Mr. Golden did not attach them to his summary judgment briefing or
otherwise place the filings in the record before the Magistrate Judge for
consideration. See Pullen v. Tabor, No. 1:20-CV-00050, 2024 WL 3821927, at *2
(S.D. Ohio Aug. 13, 2024) (Gentry, M.J.) (“[A] plaintiff’s pro se status does not
exempt him from his burden to respond with admissible evidence.”). In this sense,
Mr. Golden’s argument is more appropriately characterized as a criticism of the
Magistrate Judge for not deferring to his description of the filings. This argument is
not well taken.
3 Mr. Golden responds that he should not be penalized for failing to produce
the video footage because Sergeant Marshall withheld it as an act of impropriety,
such that the Court should reject the Report and Recommendation because of this
and other “indicia and/or badges of fraud” perpetrated by Sergeant Marshall. (Obj.,
PAGEID # 416–17, 424.) He provides no evidence of these improprieties other than
unsupported allegations, and his objections founded on such allegations (Objection
Nos. 10, 13) are OVERRULED.
Court declines to take Mr. Golden’s representations about this evidence as true, and
his objections are OVERRULED.
B. Policy Enactment (Objection Nos. 2, 3, 9, 12)
Next, Mr. Golden objects to the Magistrate Judge’s consideration of an
institutional policy regarding tattoo checks as a basis for Sergeant Marshall’s
authority and discretion to conduct such checks on the ground that the policy was
not enacted at the time of the strip search at issue. (Obj., PAGEID # 403, 405; see
also ECF No. 48-3, ¶ 4.) Because the R&R only cursorily references the policy by
way of background, and because other evidence supports the Magistrate Judge’s
findings notwithstanding the policy, Mr. Golden’s objections are OVERRULED.
C. Use of “Unsworn” Declarations (Objection Nos. 7, 8, 9, 10, 12)
Mr. Golden objects to the supporting declarations attached to Sergeant
Marshall’s summary judgment motion, arguing that such “unsworn” declarations
are inadmissible or insufficient to justify summary judgment in his favor. (Obj.,
PAGEID # 409–12.)
An unsworn declaration may substitute for a conventional affidavit if the
statement contained in the declaration is made under penalty of perjury, certified
as true and correct, dated, and signed. 28 U.S.C. § 1746; see also Pollock v. Pollock,
154 F.3d 601, 612 (6th Cir. 1998); S.D. Ohio Civ. R. 7.2(e) (“Evidence shall be
presented, in support of or in opposition to any motion, using affidavits,
declarations pursuant to 28 U.S.C. § 1746, deposition excerpts, admissions, verified
interrogatory answers, and other documentary or electronic exhibits.”) (emphasis
added). Each of the declarations attached to Sergeant Marshall’s summary
judgment motion state that the declarant “make[s] this unsworn declaration under
penalty of perjury and declare[s] that the statements below are true and correct.”
(ECF Nos. 48-1–48-4.) The declarations are also signed and dated. (Id.) Accordingly,
it was proper for the Magistrate Judge to consider these declarations.4 Mr. Golden’s
objections are OVERRULED.
D. Factual Disputes (Objection Nos. 2, 4, 5, 6, 9, 12)
Several of Mr. Golden’s objections relate to his contrary view of the facts
presented in the Report and Recommendation. (Obj., PAGEID # 406–09.) He argues
that had the Magistrate Judge considered the facts as he asserts them to be,
summary judgment would have been granted in his favor. (Id., PAGEID # 404.) But,
as previously discussed, Mr. Golden cannot rely on mere allegations when asserting
or opposing a motion for summary judgment. Rule 56 requires parties to support
their factual assertions with admissible evidence, and a party’s “status as a pro se
litigant does not alter [this] duty on a summary judgment motion.” Viergutz v.
Lucent Techs., Inc., 375 Fed. App’x 482, 485 (6th Cir. 2010). Sergeant Marshall
presented admissible evidence to support his factual background (see ECF Nos.
48-1–48-4), upon which the Magistrate Judge properly relied, and Mr. Golden’s
objections in this regard are OVERRULED.
4 Mr. Golden’s reliance on Tenneco Auto. Operating Co. v. Kingdom Auto
Parts, 410 F. App’x 841, 848 (6th Cir. 2010), is unavailing. (Obj., PAGEID # 410–
12.) In that case, the Sixth Circuit found that the district court did not abuse its
discretion in refusing to consider on summary judgment “unsworn declarations that
were not clearly made on personal knowledge nor made under the penalty of
perjury.” Tenneco, 410 F. App’x at 848. The declarations provided with Sergeant
Marshall’s summary judgment motion, however, were made under the penalty of
perjury.
E. Reasonable Inferences (Objection Nos. 6, 9, 12)
Mr. Golden contends that the Magistrate Judge failed to draw all reasonable
inferences in his favor as a non-moving party when determining whether summary
judgment was warranted. (Obj., PAGEID # 408)
At the summary judgment stage, courts consider the evidence in the light
most favorable to the non-moving party and draw all reasonable inferences in that
party’s favor. See McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). Where, as
here, the parties filed cross-motions for summary judgment, “the court must
evaluate each party’s motion on its own merits, taking care in each instance to draw
all reasonable inferences against the party whose motion is under consideration.”
Id. (citation omitted). There is no indication that the Magistrate Judge improperly
applied these principles. Further, courts “need not accept as true legal conclusions
or unwarranted factual inferences.” Morgan v. Church’s Fried Chicken, 829 F.2d 10,
12 (6th Cir. 1987). Mr. Golden asks not for the benefit of reasonable inferences in
his favor but rather for the Court to take his side of the story as true without the
ability to review the supporting evidence he references. The Court will not do so.
Moreover, the Court finds no error in the Magistrate Judge’s conclusions or
reasoning. Even when viewed in the light most favorable to Mr. Golden, the
evidence demonstrates that the tattoo check at issue was minimally invasive and
not in violation of his rights, and if this were not the case, Sergeant Marshall would
be entitled to qualified immunity. On the other hand, Mr. Golden did not properly
support his summary judgment briefing with supporting materials, nor has he
alleged or provided any evidence that he was forced to strip to his underwear or
that he was in fact searched. His objections are OVERRULED.
F. PREA Claim (Objection No. 11)
In construing Mr. Golden’s allegations that Sergeant Marshall’s conduct did
not comport with the PREA, the Magistrate Judge observed that parties may not
bring a claim for PREA violation under 42 U.S.C. § 1983 and that “to the extent
[Mr. Golden] is asserting a claim against Defendant Marshall under the PREA,
such a claim should be dismissed.” (R&R, PAGEID # 391 n.3.) Mr. Golden’s
objection with respect to this finding is that he does not assert a claim under the
PREA. (Obj., PAGEID # 417.) Because there appears to be agreement as to this
issue, Mr. Golden’s objection is OVERRULED.
G. Opportunity to Reply (Objection No. 13)
In his final objection, Mr. Golden asks the Court to reject the Magistrate
Judge’s recommendation that three pending motions be denied as moot. (Obj.,
PAGEID # 423.) He implies that two of these motions (ECF Nos. 57, 59) constitute
his reply in support of his summary judgment motion. (Id.)
Even taking Mr. Golden’s characterization of these motions as accurate, they
were filed well after the deadline for him to submit his reply. See S.D. Ohio Civ. R.
7.2(a)(2) (“Any reply memorandum shall be filed within fourteen days after the date
of service of the memorandum in opposition.”). Because Mr. Golden did not seek
leave to file an untimely reply, and because he had numerous other opportunities to
challenge Sergeant Marshall’s arguments (see ECF Nos. 51, 55), his objection is
OVERRULED.
IV. CONCLUSION
Mr. Golden’s Objection (ECF No. 62) is OVERRULED. The Court ADOPTS
and AFFIRMS the Magistrate Judge’s Report and Recommendation (ECF No. 60).
Mr. Golden’s Motion for Summary Judgment (ECF No. 47) is DENIED, and
Sergeant Marshall’s Motion for Summary Judgment (ECF No. 48) is GRANTED.
The remaining pending motions (ECF Nos. 57–59) are DENIED as moot. The
Clerk is DIRECTED to TERMINATE this case from the docket of the United
States District Court for the Southern District of Ohio.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
CHIEF UNITED STATES DISTRICT JUDGE