Cowan v. Doe 1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

TREMAINE D. COWAN, : Case No. 1:23-cv-315

Plaintiff, : District Judge Matthew W. McFarland

: Magistrate Judge Karen L. Litkovitz

vs. :

:

TRAVIS WELLMAN :

Defendant. :

:

:

:

REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), initiated this

lawsuit on May 24, 2023 pursuant to 42 U.S.C. § 1983 for alleged violations of his civil rights

while incarcerated at SOCF. (Doc. 1). On June 20, 2023, the Court issued an Order and Report

and Recommendation allowing plaintiff’s Eighth Amendment and state-law tort claims against

defendants John Doe 2, John Doe 3, John Doe 4, and John Doe 5 and recommending dismissal of

plaintiff’s other claims (Doc. 8 at PAGEID 55), which the District Judge adopted (Doc. 13). The

Court further ordered plaintiff to file an amended complaint consistent with its Order and Report

and Recommendation once he learned the identities of the John Doe defendants. (See Doc. 8 at

PAGEID 55; see also Doc. 16 at PAGEID 94-95). Consistent with those orders, plaintiff

ultimately filed an amended complaint, naming only Travis Wellman, an SOCF corrections

officer, as a defendant. (See Doc. 27). This matter is before the Court on the parties’ cross

motions for summary judgment. (Docs. 40, 49, 52, 53,1 and 54).

1 Documents 52 and 53 are identical but docketed twice to capture two filings events. While captioned a “Motion

for Summary Judgment and Reply in Opposition to Defendant’s Motion For Summary Judgment,” the Court

construes the filing as a reply in support of plaintiff’s previously filed motion for summary judgment (Doc. 40) and

a response to defendant Wellman’s motion for summary judgment (Doc. 49).

I. Factual Background

On October 27, 2022, SOCF officials decided to transfer plaintiff to the restrictive

housing block (J-2) after plaintiff reached out from his cell and grabbed an SOCF corrections

officer. (See Disposition of Grievance, Doc. 33 at PAGEID 173; Def.’s MSJ Ex. B-1 at 2:30-

3:30; Inmate Use of Force Statement, Doc. 33 at PAGEID 176, (“I tried to grab the CO’s baton

all because I did not get my commissary.”)). When plaintiff failed to move voluntarily, his

forced cell extraction and transfer ensued, leading to the alleged use of force at issue in this case.

(See Disposition of Grievance, Doc. 33 at PAGEID 173).

In support of his motion for summary judgment, defendant Wellman proffers a series of

body worn and handheld camera recordings of the cell extraction and transfer taken by members

of the Special Response Team (SRT). (See Def.’s MSJ Exs. A-1, A-2, B-1, B-2, B-3, C-E). The

first of three handheld camera recordings shows defendant Wellman holding helmet number 4

and identifying himself as a member of the SRT. (Def.’s MSJ Ex. B-1 at 0:47-0:49). The video

recordings show that, prior to plaintiff’s cell extraction, a negotiator tried to convince plaintiff to

leave his cell voluntarily, but plaintiff refused. (Def.’s MSJ Ex. B-1 at 2:30-4:08). Plaintiff was

given a final order to cooperate, which he refused. (Def.’s MSJ Ex. A-1 at 1:58-2:15). The five-

member SRT used a chemical agent on plaintiff, entered his cell, and forcibly removed him.

Once outside the cell, plaintiff was escorted by the SRT to the entrance of J-2S, where plaintiff

then refused the officers’ commands to walk and stand—going limp/dead weight. (Def.’s MSJ

Ex. B-1 at 6:58-7:11). The SRT officers placed plaintiff in a holding cell; obtained a wheelchair;

and sat plaintiff in the wheelchair to continue the escort. (Id. at 7:11-8:55). The SRT

transported plaintiff to the medical unit in a wheelchair, where he was mostly uncooperative

during the examination and did not report any specific injuries.2 (Id. at 0:01-3:30).

Plaintiff was then transported by wheelchair from the medical unit to the top of the

stairway leading to J-2. SOCF officer Richardson’s body worn camera recording shows that

defendant Wellman (in helmet 4) was on plaintiff’s left side and another officer was on

plaintiff’s rights side. (Def.’s MSJ Ex. C at 16:16-57). An unknown officer gave plaintiff

repeated orders to “stand up” and “stop using [his] body weight.” (Id.). Plaintiff refused. (Id.).

Defendant Wellman and the other SOCF officer then lifted plaintiff from the wheelchair.

Plaintiff went limp, his body going dead weight, with his knees dragging on the ground. (Id.).

Plaintiff was escorted down a set of stairs. At the bottom of the steps, the escort to plaintiff’s J-2

cell continued. During this portion of the escort, plaintiff appeared at times to go limp and at

other times to walk. (See id.). In this and several of the recordings proffered by defendant

Wellman, plaintiff can be heard shortly before reaching his J-2 cell front saying something like,

“broke my hand” or “break my hand.” (Id. at 16:52-54; Def.’s MSJ Ex. A-2 at 16:53-55; Def.’s

MSJ Ex. B-2 at 7:56-58; Def.’s MSJ Ex. D at 16:53-55; Def.’s MSJ Ex. E at 16:15-17).

In his verified amended complaint,3 plaintiff states he was escorted by wheelchair from

the medical unit to J-2. (Doc. 27 at PAGEID 125). When they reached the top of the stairs to J-

2 Plaintiff stated that he had pain in his penis, but he does not raise such an injury in his complaint, and this appears

to have been part of his defiant behavior throughout the transfer. (Id. at 2:25-26).

3 Because the amended complaint is verified (see Doc. 27 at PAGEID 128), the Court considers its contents as

supporting plaintiff’s motion for summary judgment pursuant to 28 U.S.C. § 1764, which states:

Wherever, under any law of the United States or under any rule, regulation, order, or requirement

made pursuant to law, any matter is required or permitted to be supported, evidenced, established,

or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing

of the person making the same (other than a deposition, or an oath of office, or an oath required to

be taken before a specified official other than a notary public), such matter may, with like force and

effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate,

2, defendant Wellman assisted plaintiff out of the wheelchair and then escorted him to his

individual cell. (Id.). Plaintiff alleges that defendant Wellman “assisted [him] on his right side. .

. .” (Id.). Plaintiff alleges that defendant Wellman “was bending [his] pinky [u]ntil[] it broke”

and that plaintiff can be heard on body worn camera footage saying: “you breaking my pinky[.]”

(Id.). Plaintiff alleges that from October 27 to October 31, 2022, he was “on hunger strike trying

to stop & inform SOCF staff [his] pinky was broke[n].” (Id.). On October 31, 2022, plaintiff

was taken to the medical unit where his right pinky finger was X-rayed and determined to be

fractured. (Id. at PAGEID 126). Dr. John Gardner ultimately ordered surgery on that finger,

which occurred on November 8, 2022. (Id.).

Plaintiff also submitted a notarized affidavit in support of his motion for summary

judgment. (Doc. 32). In it, plaintiff appears to restate information from his medical files and

Use of Force documents, which are referenced in but not actually attached to the affidavit. (See

id.at PAGEID 162).4 Plaintiff states that in his October 27, 2022 Inmate Use of Force Statement

he reported that he “got [his] pinky broke.” (Id. at PAGEID 164; Doc. 33 at PAGEID 176).

Plaintiff states that during his Use of Force interview, he reported that “when I was going to the

verification, or statement, in writing of such person which is subscribed by him, as true under penalty

of perjury, and dated, in substantially the following form:

. . . .

(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare

(or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed

on (date).

(Signature)”.

Plaintiff’s verified complaint has the same force and effect as an affidavit for purposes of responding to a motion for

summary judgment under Fed. R. Civ. P. 56(c). Lavado v. Keohane, 992 F.2d 601, 60 (6th Cir. 1993); Williams v.

Browman, 981 F.2d 901, 905 (6th Cir. 1992).

4 Plaintiff did file several documents separately. (See Doc. 33). As relevant here, plaintiff filed part of defendant

Wellman’s Use of Force statement (id. at PAGEID 175), his own Use of Force Statement (id. at PAGEID 176), and

three medical records (id. at PAGEID 177-79). Neither party filed all of the Use of Force documents.

hole the SRT’s bent my pinky[.]” (Doc. 32 at PAGEID 164). Plaintiff states he clarified during

a November 3, 2022 interview that he “didn’t receive any injuries on my way to medical. This

happened afterwards on my way from medical to the hole.” (Id.). Plaintiff reiterates that it was

defendant Wellman who “assaulted” him “using excessive force by bending & br[e]aking [his]

right pinky. . . .” (Id. at PAGEID 165). Plaintiff notes that in SOCF officer John P. McCoy’s

Use of Force Statement, Mr. McCoy recalled that defendant Wellman was on plaintiff’s right

side. (Id. at PAGEID 164-65). Plaintiff then summarizes his medical records related to his

broken finger. (Id. at PAGEID 165-69).

In addition to video footage of the incident, defendant Wellman proffered his declaration

(Doc. 49-1) and plaintiff’s medical records related to the finger injury. (Doc. 49-2).5 Defendant

Wellman’s declaration states, “At no time during [the escort of plaintiff from the medical unit to

the J-2 cell] did [he] manipulate or twist [plaintiff]’s fingers.” (Doc. 49-1 at PAGEID 250, ¶13).

Defendant Wellman also states that he did not “twist or manipulate” plaintiff’s fingers when they

placed him in his J-2 cell. (Id., ¶ 15). Defendant Wellman states that his body worn camera fell

into a toilet during the incident, and the footage could not be retrieved. (Id., ¶ 17).

Plaintiff’s medical records show that on October 30, 2022, he told medical staff that he

injured his right pinky finger “in a fight about four days ago.” (Doc. 49-2 at PAGEID 282).

This same record states in the “Other/Additional comments” section: “Patient injured finger in

altercation on 10-27-22[.]” (Id.). On October 31, 2022, SOCF medical staff summarized

plaintiff’s comments regarding the injury as follows: “a CO grabbed and bent his fifth finger on

his right hand. He does have discoloration on posterior side of his pinky finger going down into

his palm.” (Id. at PAGEID 274).

5 Bertha Goodman, SOCF Healthcare Administrator, authenticated these records in an accompanying affidavit. (See

Doc. 49-2 at PAGEID 315-16).

II. Standard of Review

A motion for summary judgment should be granted if the evidence submitted to the Court

demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A grant of

summary judgment is proper unless the nonmoving party “establish[es] genuinely disputed

material facts by ‘citing to particular parts of materials in the record . . . or . . . showing that the

materials cited do not establish the absence . . . of a genuine dispute.’” United Specialty Ins. Co.

v. Cole’s Place, Inc., 936 F.3d 386, 403 (6th Cir. 2019) (quoting Fed. R. Civ. P. 56(c)(1)). The

Court must evaluate the evidence, and all inferences drawn therefrom, in the light most favorable

to the non-moving party. Satterfield v. Tennessee, 295 F.3d 611, 615 (6th Cir. 2002); Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Little Caesar Enters., Inc. v.

OPPC, LLC, 219 F.3d 547, 551 (6th Cir. 2000).

The trial judge’s function is not to weigh the evidence and determine the truth of the

matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at

249. The trial court need not search the entire record for material issues of fact, Street v. J.C.

Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine “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.” Anderson, 477 U.S. at 251-52.

“Where the record taken as a whole could not lead a rational trier of fact to find for the non-

moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587. “When

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). However, “[f]acts that are not blatantly contradicted by [the evidence] remain entitled to

an interpretation most favorable to the non-moving party.” Coble v. City of White House, Tenn.,

634 F.3d 865, 870 (6th Cir. 2011). “In response to a properly supported summary judgment

motion, the non-moving party ‘is required to present some significant probative evidence which

makes it necessary to resolve the parties’ differing versions of the dispute at trial.” Maston v.

Montgomery Cnty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 849 (S.D. Ohio 2011) (quoting

Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)).

A fact is “material” if its resolution will affect the outcome of the lawsuit. Beans v. City

of Massillon, No. 5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016), aff’d, No.

17-3088, 2017 WL 3726755 (6th Cir. 2017) (citing Anderson, 477 U.S. at 248). The party who

seeks summary judgment “bears the initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of [the record] which it believes demonstrate

the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 322. To make its

determination, the court “need consider only the cited materials, but it may consider other

materials in the record.” Fed. R. Civ. P. 56(c)(3). The party opposing a properly supported

motion for summary judgment “may not rest upon the mere allegations or denials of his

pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.”

First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968).

Because plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United

States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972);

Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) (pro se plaintiffs enjoy the benefit of a

liberal construction of their pleadings and filings)). A party’s status as a pro se litigant, however,

does not alter the party’s duty on a summary judgment motion to support his factual assertions

with admissible evidence. Maston, 832 F. Supp. 2d at 851-52 (citing Viergutz v. Lucent Techs.,

Inc., 375 F. App’x 482, 485 (6th Cir. 2010)).

II. Analysis

A. Spoliation

Before turning to the merits, plaintiff states the following regarding defendant Wellman’s

missing body worn camera footage in his response to defendant Wellman’s motion for summary

judgment: “If camera footage can be used to figure out what really happen[e]d then it

disap[p]ear[s] or [is] not available then that inference can be use[d] as evidenc[e] in favor to the

mov[]ing party.” (Doc. 53 at PAGEID 331). The Court construes this as a motion by plaintiff

for sanctions against defendant Wellman for spoliating evidence.

Plaintiff, as the movant, bears the burden of proof on spoliation. See Yoe v. Crescent

Sock Co., No. 1:15-cv-3, 2017 WL 5479932, at *9 (E.D. Tenn. Nov. 14, 2017) (citing Byrd v.

Alpha Alliance Inc. Corp., 518 F. App’x 380, 384 (6th Cir. 2013)). A party seeking a spoliation

sanction is required to prove:

(1) that the party having control over the evidence had an obligation to preserve it

at the time it was destroyed; (2) that the records were destroyed with a culpable

state of mind; and (3) that the destroyed evidence was relevant to the party’s claim

or defense such that a reasonable trier of fact could find that it would support that

claim or defense.

Adkins v. Wolever, 692 F.3d 499, 503-04 (6th Cir. 2012) (quoting Beaven v. U.S. Dep’t of

Justice, 622 F.3d 540, 553-54 (6th Cir. 2010)). The second element may be “satisfied ‘by a

showing that the evidence was destroyed knowingly, even if without intent to breach a duty to

preserve it, or negligently.’” Adkins, 692 F.3d at 504-05 (quoting Beaven, 622 F.3d at 554).

Even assuming plaintiff meets the first and third elements of this claim, he has proffered

no evidence of the second.6 The only evidence in the record on this point appears to be

defendant Wellman’s declaration, in which he states that the footage fell into the toilet during the

incident. (See Def.’s Decl., Doc. 49-1 at PAGEID 250, ¶ 17). This does not show that defendant

Wellman acted with a culpable state of mind. Without such evidence, plaintiff cannot meet his

burden to prove spoliation. Therefore, the Court denies plaintiff’s request for spoliations

sanctions.

B. Eighth Amendment excessive force7

Defendant Wellman argues that the evidence contradicts plaintiff’s claim that defendant

Wellman injured plaintiff’s right pinky finger during plaintiff’s October 27, 2022 transfer from

the medical unit to the J-2 cell. Defendant Wellman points to the fact that the recording shows

him on plaintiff’s left side—as opposed to plaintiff’s statement that defendant Wellman was on

his right side. (See Def.’s MSJ Ex. C at 16:30-57). Defendant Wellman also points to the note

in plaintiff’s October 30, 2022 medical record reflecting plaintiff’s statement that he injured his

hand “in a fight about 4 days ago”—as opposed to plaintiff’s assertion that the injury occurred

during the transfer. (Doc. 49-2 at PAGEID 282).8 Finally, defendant Wellman states that SOCF

6 Plaintiff offers only conclusory allegations in his unverified response to defendant’s motion for summary judgment

(Doc. 53), where he raises this issue. Otherwise, plaintiff states in his affidavit: “Body worn camera[s] are believed

to be waterp[r]oof.” (Doc. 32 at PAGEID 164). To constitute competent summary judgment evidence, however, an

affidavit “must be made on personal knowledge” and “set out facts that would be admissible in evidence.” Fed. R.

Civ. P. 56(c)(4). This statement does not meet these requirements.

7 While portions of plaintiff’s filings seem to suggest a deliberate indifference claim under the Eighth Amendment

related to the care he received in the days following this incident, plaintiff did not name any SOCF medical care

providers as defendants in his amended complaint. Plaintiff also does not allege or point to evidence showing that

defendant Wellman “subjectively perceived facts from which to infer substantial risk” of harm to plaintiff, which is

required to sustain such a claim. Rhinehart v. Scutt, 894 F.3d 721, 738 (6th Cir. 2018) (quoting Comstock v.

McCrary, 273 F.3d 693, 703 (6th Cir. 2001)). Thus, to the extent the Court were to construe such a claim in

plaintiff’s amended complaint, it should be dismissed.

8 As for the statement in plaintiff’s medical records about the injury coming from a fight, plaintiff argues that this

was a lie by medical staff to cover up the excessive force. (Doc. 53 at PAGEID 330). This argument is not sworn or

verified and cannot be considered on a motion for summary judgment.

officer Watt’s body worn camera footage shows no twisting or manipulation of plaintiff’s

hand—consistent with defendant Wellman’s declaration. (See Def.’s MSJ Ex. D, starting at

16:27; Docs. 49-1 at PAGEID 250, ¶ 13). Putting aside these asserted inconsistencies and

assuming defendant Wellman used force against plaintiff, defendant Wellman argues that the

force was not malicious but rather necessary to control a clearly non-compliant inmate.

In his response, plaintiff argues that the video recordings, which are taken from slightly

different angles, do not show whether defendant Wellman twisted or manipulated his hands but

uniformly capture plaintiff saying something about his hand being broken. (See Def.’s MSJ Ex.

A-2 at 16:52-55; Def.’s MSJ Ex. B-2 at 7:56-59; Def.’s MSJ Ex. C at 16:51-54; Def.’s MSJ Ex.

D at 16:52-55; Def.’s MSJ Ex. E at 16:14-17). Plaintiff also points to his Use of Force

Statement, where he stated that he “got [his] pinky broke.” (Doc. 32 at PAGEID 164).

In defendant Wellman’s reply in support of his motion for summary judgment, he argues

that plaintiff has presented no evidence to support his claims. To the extent plaintiff relies on the

video evidence, defendant Wellman argues that plaintiff’s version of events is undercut by

plaintiff’s false assertion that defendant Wellman was on his right side during the escort.

A convicted prisoner’s right to be free from the use of excessive force by a prison official

is governed by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327 (1986). Eighth

Amendment excessive force claims include both a subjective and an objective component.

Johnson v. Sootsman, 79 F.4th 608, 615 (6th Cir. 2023). The subjective component focuses on

the prison official’s state of mind, while the objective component analyzes whether the pain

inflicted on the prisoner was “sufficiently serious.” Cordell v. McKinney, 759 F.3d 573, 580 (6th

Cir. 2014) (quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)).

The core question for the subjective component is whether the force used by a

correctional officer “was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Wilkins, 559 U.S. at 37 (2010) (quoting Hudson v.

McMillian, 503 U.S. 1, 7 (1992)). See also Sootsman, 79 F.4th at 616. Force believed

necessary, even if that belief is unreasonable, will not violate the Eighth Amendment. Sootsman,

79 F.4th at 616 (citing Whitley, 475 U.S. at 324). To determine intent, courts are to consider:

“What was the extent of the prisoner’s injury? What was the nature of the threat that justified the

use of force? Was the amount of force proportional to the threat? And did the officer take any

actions designed to reduce the required amount of force?” Id. at 618 (citing Hudson, 503 U.S. at

7, and Whitley, 475 U.S. at 321). These questions underscore that force used “in a good-faith

effort to maintain or restore discipline” does not violate a prisoner’s Eighth Amendment rights.

Roberson v. Torres, 770 F.3d 398, 406 (6th Cir. 2014) (quoting Jennings v. Mitchell, 93 F.

App’x 723, 725 (6th Cir. 2004)).

Objectively, the prisoner “need not prove ‘extreme’ or ‘serious’ harms” because “the

malicious and sadistic infliction of pain violates . . . contemporary standards [of decency]

whether or not the pain leads to any significant injury.” Sootsman, 79 F.4th at 616 (quoting

Hudson, 503 U.S. at 9). While the extent of a prisoner’s injury may help determine the amount

of force used by the prison official, it is not dispositive of whether an Eighth Amendment

violation has occurred.” Cordell, 759 F.3d at 580-81 (citing Wilkins, 559 U.S. at 37). “When

prison officials maliciously and sadistically use force to cause harm . . . contemporary standards

of decency always are violated . . . whether or not significant injury is evident. Otherwise, the

Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman,

inflicting less than some arbitrary quantity of injury.” Wilkins, 559 U.S. at 37 (quoting Hudson,

503 U.S. at 9). The absence of a serious injury is nonetheless relevant as a factor that suggests

whether the use of force may “plausibly have been thought necessary” in a given situation. Id.

(quoting Hudson, 503 U.S. at 7). “Although the Eighth Amendment can reach minor injuries

caused by significant force . . . [it] does not apply to ‘de minimis uses of physical force’ so long

as this force does not repulse ‘the conscience of mankind.’” Sootsman, 79 F.4th at 616 (quoting

Hudson, 503 U.S. at 9-10).

Defendant Wellman first argues that plaintiff has not presented evidence sufficient to

create a genuine issue of material fact that defendant Wellman used force on plaintiff at all on

October 27, 2022. The Court disagrees. While defendant Wellman is correct that the video

recordings show him on plaintiff’s left as opposed to right side during the transfer from the

medical unit to plaintiff’s J-2 cell, the Court does not find plaintiff’s mistaken recollection on

this detail sufficient to wholly undercut plaintiff’s verified account that it was defendant

Wellman who injured his pinky finger. (See Doc. 27 at PAGEID 125; Doc. 32 at PAGEID 165).

At the summary judgment stage, it is not the function of the Court to weigh the veracity of

plaintiff’s statements against other evidence in the record. Anderson, 477 U.S. at 249.

In addition, the fact that defendant Wellman was on plaintiff’s left side does not preclude

a finding that defendant Wellman accessed and injured plaintiff’s right hand. Defendant

Wellman’s video Exhibit C provides the clearest view of his position relative to plaintiff’s hands

during the part of the transfer where the alleged excessive force occurred. When the video is

slowed to 0.5 speed, it shows defendant Wellman with his hand on plaintiff’s left hand, while the

SOCF officer on plaintiff’s right side has his hand on plaintiff’s right hand. (Def.’s MSJ Ex. C at

16:29-31). Toward the end of this clip, the SOCF officer’s hand appears to disengage from

plaintiff’s right hand before going out of frame. In defendant Wellman’s video Exhibit E, his

right arm appears to be close to both of plaintiff’s cuffed hands, while the SOCF officer on

plaintiff’s right side does not seem to be in a similar position. (Def.’s MSJ Ex. E at 16:08; see

also Def.’s MSJ Ex. D at 16:42 (with defendant Wellman’s arm shown below the SOCF officer’s

arm on plaintiff’s right side)). Based on these recordings, a reasonable juror could conclude that

defendant Wellman had access to both of plaintiff’s hands during the relevant part of the transfer.

Finally, the October 30, 2022 medical record notation stating plaintiff’s right pinky injury

was the result of a “fight about 4 days ago” does not preclude a finding that plaintiff’s injury

occurred on October 27, 2022, the date of his transfer from the medical unit to his J-2 cell. (See

Doc. 49-2 at PAGEID 282). First, the notation does not confirm the injury did not occur on

October 27, 2022, as it only states: “about 4 days ago.” (Id. (emphasis added)). Moreover, the

very same record refers to the injury occurring in an “altercation on 10-27-22[.]” (Id.). In

addition, the terms “fight” and “altercation” as used in the medical record are not clear. There is

no evidence demonstrating that plaintiff engaged in a fight or altercation with another inmate

around that time. After viewing video recordings of the entire transfer between plaintiff’s

original cell to his J-2 cell, a reasonable juror could conclude that the notations of a “fight” or

“altercation”9 referred to this transfer.

Given the foregoing, there is a genuine issue of material fact as to whether defendant

Wellman “was the officer who caused the injury to [plaintiff’s] right pinky finger” on October

27, 2022. (Doc. 49 at PAGEID 244).

9 Merriam-Webster defines the noun “fight” as “a hostile encounter.” See Fight, MERRIAM-WEBSTER,

https://www.merriam-webster.com/dictionary/fight (last visited November 5, 2024) [https://perma.cc/6MDB-

2NGZ]. Merriam-Webster defines “altercation” as “a noisy, heated, angry dispute.” See Altercation, MERRIAM-

WEBSTER, https://www.merriam-webster.com/dictionary/altercation (last visited November 5, 2024)

[https://perma.cc/5XA6-JD5N].

Assuming that defendant Wellman used force on plaintiff, he does not appear to

challenge the objective element of the Eighth Amendment claim—having proffered evidence

demonstrating that plaintiff’s right pinky was broken and required surgery. (See, e.g., Doc. 49-2

at PAGEID 251). Therefore, there are no issues of fact as to whether plaintiff establishes the

objective element of his Eighth Amendment claim.

Turning to the subjective element of plaintiff’s Eighth Amendment claim, the Court

examines the Sootsman factors. 79 F.4th at 618. As for the extent of plaintiff’s injury, it is

undisputed that he suffered a broken bone that required surgery. This evidence could lead a

reasonable juror to conclude that the amount of force used was intentional, not accidental. (See,

e.g., Doc. 49-2 at PAGEID 251). As for the threat plaintiff posed, video evidence shows that

plaintiff was restrained from the time he was in the medical unit through the time of the alleged

injury. While plaintiff appears to use his body weight to resist escort at certain points throughout

the incident (see, e.g., Def.’s MSJ Ex. D at 16:27-39), the recording also shows plaintiff

appearing to walk normally and obeying commands for the approximately fifteen seconds before

he reaches his J-2 cell front—including the time when he can be heard saying something like,

“broke my hand” (see id. at 16:40-55). This evidence supports the conclusion plaintiff did not

pose a significant threat. Regarding whether the force used was proportional to the threat, the

video evidence could reasonably be construed to show that plaintiff posed a minimal threat,

while the injury was clearly serious. (See id.). Finally, as to whether defendant Wellman took

any actions designed to reduce the required amount of force, defendant Wellman has presented

evidence that SOCF officials used a negotiator and O/C spray to try to gain plaintiff’s

compliance at the beginning of the transfer process. (See, e.g., Def.’s Decl., Doc. 49-1 at

PAGEID 249, ¶¶ 6-7). On the other hand, those measures are less relevant to the period

covering the specific use of force at issue, which occurred after SOCF officers gained some

degree of plaintiff’s compliance based on video evidence. (See generally Def.’s MSJ Exs. A-2,

B-2, C-E). Overall, considering the Sootsman factors, the Court finds that plaintiff has raised a

genuine issue of material fact on the subjective element of his excessive force claim.

Defendant Wellman resists this conclusion by pointing to plaintiff’s generally

obstreperous behavior. Indeed, the video recordings of the entire incident—starting with

plaintiff’s cell extraction to his examination in the medical unit to his transport to his J-2 cell—

demonstrate that plaintiff repeatedly disobeyed orders to cuff up, stand up, and move; did not

cooperate with his medical examination; and was verbally combative. Nevertheless, plaintiff

alleges that defendant Wellman broke his finger during a discrete period in this chain of events—

a period during which a reasonable juror could reasonably conclude based on the video

recordings that plaintiff was physically restrained, quiet, and complying with orders (i.e., a

period during which discipline had been restored). (See, e.g., Def.’s MSJ Ex. A-2 at 16:41-57 (a

SOFC officer can be heard saying “walk,” and plaintiff replies, “I am walking”); Def.’s MSJ Ex.

D at 16:40-57 (showing plaintiff restrained, walking, saying very little)). This evidence creates a

genuine issue of material fact as to whether the particular force at issue “was applied in a good-

faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. at 7). To hold otherwise would set a

precedent that officers enjoy blanket insulation from liability where an inmate is generally poorly

behaved. Defendant Wellman cites no authority for such a proposition.

For all of the foregoing reasons, the Court finds that genuine issues of material fact

preclude summary judgment in favor of either party on plaintiff’s Eighth Amendment excessive

force claim.

C. Qualified immunity

Defendant Wellman lastly argues that he is entitled to qualified immunity. Qualified

immunity protects government officials performing discretionary functions “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 insulates government officials not only from

individual liability for money damages, but it also shields them from the burdens and expenses of

litigation and trial. Saucier v. Katz, 533 U.S. 194, 200-201 (2001), overruled in part, Pearson v.

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

There are two steps to the qualified immunity analysis: (1) whether the officer’s conduct

violated a constitutional right, and (2) if the first step is satisfied, whether the right was clearly

established at the time of the injury. Saucier, 533 U.S. at 201. In its discretion, the Court may

choose to address either question first given the particular circumstances of the case before it.

Pearson, 555 U.S. at 236. Once a defendant raises the qualified immunity defense, plaintiff has

the burden to demonstrate that the official is not entitled to qualified immunity. Binay v.

Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010). For the court to find that a constitutional right is

clearly established, “its contours ‘must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Defendant Wellman argues that he is entitled to qualified immunity because a

constitutional violation did not occur, and even if it had, it was not clearly established that

defendant Wellman could not use the type of force alleged here to “restrain Plaintiff, who was

actively resisting officers’ orders. . . .” (Doc. 49 at PAGEID 246).

As to the first step of the analysis, the Court has already determined that there is a

genuine issue of material fact as to whether defendant used excessive force on plaintiff under the

Eighth Amendment. As to the second step of the analysis, it is clearly established that an inmate

may not be assaulted for no reason. See Coley v. Lucas Cnty., Ohio, 799 F.3d 530, 540 (6th Cir.

2015) (“Under the Fourteenth, Fourth, or Eighth Amendments, assaults on subdued, restrained

and nonresisting detainees, arrestees, or convicted prisoners are impermissible.”) (citing Pelfry v.

Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995); Phelps v. Coy, 286 F.3d 295, 301-02 (6th Cir.

2002)). Based on the evidence presented, a reasonable juror could conclude that plaintiff was

subdued, retrained, and non-resisting at the time defendant Wellman applied the excessive force

at issue—violating clearly established law. Defendant Wellman is not entitled to qualified

immunity.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff's motion for summary judgment (Doc. 40) be DENIED.

2. Defendant Wellman’s motion for summary judgment (Doc. 49) be DENIED.

December 19, 2024 Haun K Kithovt-

KAREN L. LITKOVITZ

Chief United States Magistrate Judge

17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

TREMAINE D. COWAN, : Case No. 1:23-cv-315

Plaintiff, : District Judge Matthew W. McFarland

: Magistrate Judge Karen L. Litkovitz

vs. :

:

TRAVIS WELLMAN :

Defendant. :

:

:

:

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs. A party may respond to another party’s objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

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