Barnette v. Kennedy

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

LORENZA BARNETTE, CASE NO. 3:23 CV 1303

Plaintiff,

v. JUDGE JAMES R. KNEPP II

LT. KENNEDY,

MEMORANDUM OPINION AND

Defendant. ORDER

INTRODUCTION

Currently pending before the Court in this prisoner 42 U.S.C. § 1983 action alleging

deliberate indifference are pro se Plaintiff Lorenza Barnette and Defendant Lt. Kennedy’s cross-

motions for summary judgment. (Docs. 18, 19). The matter is fully briefed and decisional.

Jurisdiction is proper under 28 U.S.C. § 1331. For the reasons discussed below, the Court grants

Defendant’s motion for summary judgment and denies Plaintiff’s motion for summary judgment.

BACKGROUND

In his Verified Complaint,1 Plaintiff states that on March 24, 2023, sometime after 9:00

p.m., Officer Pettey used oleoresin capsicum (“O/C”) spray in the dorm where he resides at

Marion Correctional Institution (Doc. 1, at 6); this stemmed from an incident not involving

Plaintiff (Doc. 18-1, at ¶ 5). Plaintiff was in the restroom at the time, where he “suddenly started

gagging, coughing, and eventually started coughing up blood because his throat was raw from

1. Plaintiff’s Complaint is verified. See Doc. 1, at 13. “[A] verified complaint . . . satisfies the

burden of the nonmovant to respond” to a motion for summary judgment, unlike “mere

allegations or denials” in unverified pleadings. Thaddeus-X v. Blatter, 175 F.3d 378, 385 (6th

Cir. 1999) (en banc); see also El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (a “verified

complaint . . . carries the same weight as would an affidavit for the purposes of summary

judgment”).

the OC Chemical spray.” (Doc. 1, at 6) Plaintiff informed Second Shift Officer Connolly of his

symptoms; Connolly told him medical was on its way for an inmate having a seizure. Id. After

the nurse attended to that inmate, Plaintiff told the nurse about his symptoms; she told him to

have an Officer call medical. Id. at 7.

Shortly thereafter, Plaintiff stopped Defendant “and told him that he was ‘coughing up

blood,’ his ‘face felt like it is on fire,’ . . . that he was ‘lightheaded’ [and that] ‘[he] need[ed] to

go to medical.’” Id. He tried to show Defendant the blood he was coughing up, but Defendant

would not go with him. Id. He then asked Defendant, “what about my face[,] it feel[s] like its

burning?” Id. at 8. Defendant told Plaintiff “everyone is not going to go to medical” and left the

dorm. Id. The following day, Plaintiff states his face started to peel and develop rashes. Id.

In an Affidavit, Defendant states Plaintiff approached him and stated he needed medical

assistance. (Doc. 18-1, at ¶ 8). He further avers he “did not observe [Plaintiff] in any distress, nor

did [he] observe any blood, nor did [Plaintiff] have issues breathing or walking.” Id. Defendant

states that because Plaintiff “was not in immediate distress, [Defendant] advised [Plaintiff] he

could see[k] medical assistance during the daily sick call, which was to take place the following

day.” Id. at ¶ 9. Thereafter, Defendant left Plaintiff’s dorm; he is “unaware of any further

medical assistance sought by [Plaintiff].” Id. at ¶ 10.

The following day – March 25, 2023 – Plaintiff asked a different officer for a medical

slip. (Doc. 1, at 8). The officer called medical; after getting off the phone, the officer told

Plaintiff just to fill out the medical slip. Id. One day later (March 26), Plaintiff saw a nurse

during sick call. Id. The nurse issued Plaintiff medication, explained “why he was coughing up

blood,” and sent him to the Commissary to purchase cough drops to relieve his throat soreness.

Id. Medical records from this visit show Plaintiff had “0 rashes noted/reported” and that he

denied chest pain and shortness of breath. (Doc. 18-2, at 5). He reported coughing with “blood

tinged spit[.]” Id.

On March 28, Plaintiff saw Dr. Singhal. Id. She prescribed Plaintiff hydrocortisone cream

for his rash/blisters and irritation; she also ordered an x-ray. (Doc. 1, at 9). Dr. Singhal told

Plaintiff it looked like he had an allergic reaction to the O/C spray. Id.; see also Doc. 18-2, at 8–

10 (Dr. Singhal medical record). Medical records state Plaintiff reported itching and

redness/rash, a blood-tinged sputum “which ha[d] since resolved[,]” and a break out on his skin

“which has since resolved”. (Doc 18-2, at 8). Plaintiff reported using over-the-counter cough

drops improved his symptoms. Id.

On March 29, Plaintiff underwent a chest x-ray ordered by Dr. Singhal. (Doc. 1, at 9);

(Doc. 18-2, at 10). Dr. Singhal did not tell Plaintiff the result. (Doc. 1, at 9). The medical records

indicate the x-ray was “negative” and showed “nothing unusual.” (Doc. 18-2, at 11).

Plaintiff brought this case asserting Defendant “denied and delayed Plaintiff’s access to

treatment from OC exposure after Plaintiff made Defendant aware that he needed medical

attention for his serious medical needs[.]” (Doc. 1, at 10).

STANDARD OF REVIEW

Summary judgment is appropriate where 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(c). When

considering a motion for summary judgment, the Court must draw all inferences from the record

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

Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or determine

the truth of any matter in dispute; rather, the Court determines only whether the case contains

sufficient evidence from which a jury could reasonably find for the nonmoving party. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). The moving party bears the burden of

proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

This burden “may be discharged by ‘showing’ – that is, pointing out to the district court –

that there is an absence of evidence to support the nonmoving party’s case.” Id. The nonmoving

party must go beyond the pleadings and “present affirmative evidence in order to defeat a

properly supported motion for summary judgment.” Anderson, 477 U.S. at 257. Further, the

nonmoving party has an affirmative duty to direct the Court’s attention to those specific portions

of the record upon which it seeks to rely to create a genuine issue of material fact. See Fed R.

Civ. P. 56(c)(3) (noting the court “need consider only the cited materials”).

DISCUSSION

Defendant argues he is entitled to summary judgment because, first, Plaintiff cannot

create an issue of material fact regarding either the objective or subjective prong of an Eighth

Amendment deliberate indifference claim; and, second, because he is entitled to qualified

immunity. See Doc. 18. Plaintiff, by contrast, contends the Court should grant summary

judgment in his favor because he can prove both prongs of a deliberate indifference claim and

Defendant is not entitled to qualified immunity. See Doc. 19. For the reasons set forth below, the

Court finds Defendant is entitled to summary judgment on Plaintiff’s claim.

Preliminary Considerations

The Court pauses at the outset to address several side disputes between the parties.

First, Defendant contends Plaintiff’s Motion for Summary Judgment was not filed by the

deadline and should therefore not be considered by the Court. The deadline for dispositive

motions was July 12, 2024. Plaintiff filed his motion (which is combined with his opposition to

Defendant’s motion) on July 26, 2024.2 As Defendant points out, Plaintiff did not request and

receive leave for additional time to file his motion. Although Plaintiff asserts he did not receive

Defendant’s motion for summary judgment until two weeks after it was filed, this does not

provide an excuse for the untimely filing of his own motion for summary judgment.

Nevertheless, as Plaintiff’s motion is combined with his opposition arguments, the Court has

considered Plaintiff’s entire filing and, as set forth below, finds he is not entitled to summary

judgment in his favor.

Second, Plaintiff contends the materials supporting Defendant’s motion for summary

judgment should be disregarded. Specifically, he contends the Affidavits attached to Defendant’s

motion are dated after the discovery deadline and are therefore invalid. As Defendant points out,

this is incorrect. The discovery period is the period during which the parties may request

discovery from one another. Plaintiff also contends Defendant failed to comply with Federal

Civil Rule 26. Because Plaintiff cites the rule generally, the Court is not clear which section of

the rule Plaintiff contends was violated. To the extent Plaintiff asserts Defendant failed to

comply with the initial disclosure requirement, this case is exempt from such requirement. See

Fed. R. Civ. P. 26(a)(1)(B)(iv); see also Doc. 14, at 2. To the extent Plaintiff contends Defendant

failed to comply with the pretrial disclosures section of the rule, this rule applies only to trial

evidence. See Fed. R. Civ. P. 26(a)(3). Plaintiff does not assert he requested anything specific

from Defendant that not produced during the discovery period. The Court finds Plaintiff has not

identified a violation of Rule 26 and the evidence Defendant relies upon is properly presented.

2. The Court received Plaintiff’s filing on August 5, 2024, but Plaintiff represents he sent it on

July 26, 2024, so by operation of the prison mailbox rule the latter is the filing date. In re Prison

Litig. Reform Act, 105 F.3d 1131, 1132 (6th Cir. 1997) (a pro se prisoner’s pleading “is deemed

filed when the inmate gives the document to prison officials to be mailed.”) (citing Houston v.

Lack, 487 U.S. 266, 270 (1988)).

Third, in response to Defendant’s qualified immunity argument, Plaintiff argues

Defendant’s admission that he has a disciplinary record should “be consider[ed] by this Court

[in] weighing the credibility of Defendant’s Affidavit.” (Doc. 19, at 10) (citing Doc. 20-2, at 6–

7). But the Court “may not make credibility determinations nor weigh the evidence” in its

analysis of a summary judgment motion. Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th

Cir. 2014). Instead, in viewing Defendant’s motion for summary judgment, the Court is to view

the facts in the light most favorable to Plaintiff. That is, to the extent there is a factual conflict,

the Court takes the view most favorable to Plaintiff. Plaintiff also alleges Defendant’s description

of the incident in his affidavit conflicts with what he told an investigator. (Doc. 19, at 6).

Specifically, he contends the internal prison records do not contain the statement in Defendant’s

Affidavit that he “advised Plaintiff ‘he could see medical assistance during the daily sick call,

which was to take place the following day.’” Id. (citing Doc. 18-1, at ¶ 9). But the prison

grievance records Plaintiff submits do not contradict Kennedy’s affidavit. See Doc. 20-1, at 4.

Deliberate Indifference

A prison official may not be held liable under the Eighth Amendment for failing to

provide adequate assistance for an inmate’s serious medical need unless the inmate can show the

prison official acted with “deliberate indifference.” Rhinehart v. Scutt, 894 F.3d 721, 737 (6th

Cir. 2018) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)). To prove deliberate indifference,

a prisoner must point to evidence that “the official knows of and disregards an excessive risk to

inmate health or safety[.]” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Such deliberate

indifference to an inmate’s medical needs constitutes cruel and unusual punishment under the

Eighth Amendment. Rhinehart, 894 F.3d at 736–37.

A deliberate indifference claim has two parts: (1) “an objective component—a

‘sufficiently serious medical need[;]’” and (2) “a subjective component—a ‘sufficiently culpable

state of mind.’” Griffith v. Franklin Cnty., 975 F.3d 554, 567 (6th Cir. 2020) (quoting Blackmore

v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004)). To succeed on an Eighth Amendment

claim, a plaintiff must present sufficient evidence to show a genuine dispute of material fact on

both prongs of the inquiry. See Griffith, 975 F.3d at 567–68.

Objective Component

An objectively serious medical need is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Blackmore, 390 F.3d at 897 (cleaned up). When Plaintiff

alleges harm due to a delay in treatment, or the injury is “seemingly minor or non-obvious[,] . . .

medical proof is necessary to assess whether the delay caused a serious medical injury.” Id. at

898; see also Napier v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001) (“[A]n inmate who

complains that delay in medical treatment rose to a constitutional violation must place verifying

medical evidence in the record to establish the detrimental effect of the delay in medical

treatment to succeed.”) (citation omitted) (abrogated on other grounds).

Taking the facts here in the light most favorable to Plaintiff, his face felt like it was

burning, he was coughing up blood, and he felt lightheaded when he approached Defendant.

Many courts have found these, or other similar, temporary effects of pepper spray do not rise to

the level of a sufficiently serious medical need to satisfy the objective component of a deliberate

indifference claim. See, e.g., Jenkins v. Dahlby, 2022 WL 18636603, at *10 (N.D. Ohio), report

and recommendation adopted, 2023 WL 141954 (collecting cases) (“The effects of pepper spray,

standing alone, typically fails to indicate an objective, ‘sufficiently serious’ medical need giving

rise to constitutionally-mandated medical treatment where the inmate has access to soap and

water to decontaminate.”); Peterson v. Desrochers, 2021 WL 2593555, at *6 (W.D. Mich.),

report and recommendation adopted, 2021 WL 2592558 (W.D. Mich.) (“A claim of burning

skin resulting from the use of a chemical agent, without more, is insufficient to satisfy the

objective component of an Eighth Amendment claim.”); Rodriguez v. Cohall, 2022 WL

1228411, at *4 (S.D.N.Y.) (collecting cases holding symptoms such as breathing difficulty, chest

pain, dizziness, anxiety, skin burning/irritation, temporary vision loss, and discomfort do not rise

to the level of a “sufficiently serious” medical need); White v. Williams, 2016 WL 1237712, at

*11 (N.D.N.Y) (finding injuries to an inmate’s eye and ribs, coughing and spitting up blood, and

lingering chest pain “not to constitute serious medical needs as a matter of law”). This Court

agrees and finds Plaintiff has not established his condition was “so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Blackmore, 390 F.3d at 897

(citation omitted).

Moreover, to the extent Plaintiff brings a claim based on the delay in providing medical

care, he has not submitted medical proof to show the “delay caused a serious medical injury.” Id.

at 898. Indeed, the only medical evidence of record shows Plaintiff’s condition had resolved

within a matter of days, and an x-ray was negative. See Doc. 18-2.

Thus, the Court finds Plaintiff has not created an issue of fact regarding the objective

prong of a deliberate indifference claim. However, even if he had, as discussed below, his claim

would still fail on the subjective prong.

Subjective Component

With respect to the subjective prong, a prison official cannot be held liable “under the

Eighth Amendment for denying an inmate humane conditions of confinement unless the official

knows of and disregards an excessive risk to inmate health or safety[.]” Farmer, 511 U.S. at 837.

To satisfy this component, a plaintiff must show a defendant acted or failed to act with a mental

state “equivalent to criminal recklessness.” Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir.

2013). Criminal recklessness “must involve more than ordinary lack of due care for the

prisoner’s interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). “It is obduracy and

wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by

the Cruel and Unusual Punishments Clause[.]” Id. The official’s “state of mind must evince

‘deliberateness tantamount to intent to punish.’” Miller v. Calhoun Cnty., 408 F.3d 803, 813 (6th

Cir. 2005) (quoting Horn v. Madison Cnty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994)).

Under Farmer, a plaintiff must demonstrate the defendant was “both . . . aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and . . .

also dr[ew] the inference.” 511 U.S. at 837. This inquiry can be “satisfied by something less than

acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”

id. at 835. But “[k]nowledge of the asserted serious needs or of circumstances clearly indicating

the existence of such needs, is essential to a finding of deliberate indifference.” Reilly v.

Vadlamudi, 680 F.3d 617, 624 (6th Cir. 2012) (quoting Blackmore, 390 F.3d at 896).

Viewing the facts in the light most favorable to Plaintiff here, Plaintiff told Defendant

“he was ‘coughing up blood,’ his ‘face felt like it [was] on fire,’ . . . that he was ‘lightheaded,’

[and that] ‘[he] need[ed] to go to medical.’” (Doc. 1, at 7). Defendant acknowledges Plaintiff

requested medical assistance, but states he did not observe Plaintiff to be in distress, did not

observe any blood, nor did he observe Plaintiff was having any issues breathing or walking.

(Doc. 18-1, at ¶ 8). Due to this lack of observation of “immediate distress[,]” Defendant avers he

told Plaintiff he could seek medical assistance during sick call the following day. Id. at ¶ 9.

Again, Plaintiff must demonstrate Defendant was “both . . . aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and . . . also dr[ew] the

inference.” 511 U.S. at 837. “It is obduracy and wantonness, not inadvertence or error in good

faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause[.]”

Whitley, 475 U.S. at 319. Defendant’s “state of mind must evince ‘deliberateness tantamount to

intent to punish.’” Miller, 408 F.3d at 813 (quoting Horn, 22 F.3d at 660). Even taking as true

Plaintiff’s assertion that he had an allergic reaction or was particularly susceptible to exposure to

O/C spray, he offers no evidence Defendant knew of this susceptibility or that he subjectively

perceived Plaintiff was experiencing a more severe than typical reaction to O/C spray. That is,

the Court finds Plaintiff has not demonstrated a question of material fact regarding whether

Defendant subjectively “drew the inference” that a substantial risk of harm existed. As such,

Defendant is entitled to summary judgment.

Qualified Immunity

The qualified doctrine protects government officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

“Qualified immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009).

Qualified immunity is an affirmative defense; once a defendant raises it, the burden shifts

to the plaintiff to demonstrate: (1) the defendant’s acts violated a constitutional right, and (2) the

right at issue was clearly established at the time of the defendant’s alleged misconduct. T.S. v.

Doe, 742 F.3d 632, 635 (6th Cir. 2014). A “clearly established right[,]” for the purpose of

determining whether a public official is entitled to qualified immunity, “is one that is

‘sufficiently clear that every reasonable official would have understood that what he is doing

violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 132

S. Ct. 2088, 2093 (2012)).

As set forth above, the Court finds Plaintiff has not established a genuine issue of

material fact regarding whether Plaintiff’s constitutional rights were violated. As such,

Defendant has established his entitlement to qualified immunity.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendant’s Motion for Summary Judgment (Doc. 18) be, and the same

hereby is, GRANTED, and it is

FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 19), be and

the same hereby is, DENIED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: December 2, 2024