Freeman v. Ohio Department of Rehabilitation and Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MARIO FREEMAN,

Plaintiff,

v. Civil Action 1:24-cv-00298

Judge Douglas R. Cole

Magistrate Judge Kimberly A. Jolson

OHIO DEPARTMENT OF

REHABILITATION AND

CORRECTIONS, et al.

Defendants.

REPORT AND RECOMMENDATION

Before the Court are Defendant’s Motion for Summary Judgment (Doc. 22) and Plaintiff’s

Motion for Summary Judgment (Doc. 26). For the following reasons, the Undersigned

RECOMMENDS GRANTING Defendant’s Motion and DENYING Plaintiff’s Motion.

I. BACKGROUND

Plaintiff Mario Freeman, who is incarcerated at the Southern Ohio Correctional Facility

(“SOCF”), filed this pro se action in May 2024. (Doc. 2). Relevant here, Plaintiff’s Complaint

alleges that a correctional officer at SOCF, Defendant Devon Yazell, hurt him. (Id. at 3).

The entirety of Plaintiff’s allegations against Defendant Yazell is as follows:

On 5/31/23 at 6:02 PM[,] C.O. Yazell pushed me and put the cuffs on me after an

incident. And during the walk to the [hole,] he bent my thumb back trying to break

it causing me pain. [I]f you look at the camera[,] you can see him bending my

thumb back trying to make it look like I was resisting.

(Id.; see also Doc. 25 at 2). Plaintiff maintains that during this incident, he was not resisting or

acting belligerently, and he did not hit Yazell in the face. (Doc. 25 at 2; Doc. 26 at 2).

Defendant Yazell’s account of events is different. According to him, on May 31, he

directed Plaintiff to place his hands on the wall for a “routine pat down.” (Doc. 23-1 at 2

(Declaration of Defendant Yazell)). Plaintiff then struck him in the face and the neck. (Id.). Yazell

held Plaintiff against the wall, and another officer, Lieutenant Wellman, helped place Plaintiff in

cuffs. (Id.; see also id. at 4 (Declaration of Lt. Wellman)). The two officers escorted Plaintiff to

a “strip cage” before returning to their duties. (Id. at 2, 4).

Following the incident, both Yazell and Wellman submitted use of force reports. (Id. at 9–

11). SOCF gave Plaintiff the chance to make a statement as well, but he declined. (Id. at 17

(Plaintiff’s use of force statement saying “not right now”); but see Doc. 23-1 at 73 (Plaintiff’s

written statement at the related incident hearing that he thought Yazell was done with the pat down,

and he was “getting ready to walk away”)). Nonetheless, just under three hours after the incident,

Nurse Colton Cox examined Plaintiff. (Id. at 18). According to Nurse Cox’s report, Plaintiff

stated “I don’t have any injuries. I’m fine.” (Id. (cleaned up); see also id. at 26 (Declaration of

Nurse Colton Cox stating Plaintiff “reported no injuries”)). Nurse Cox also noted that Plaintiff

had no other observable injuries, and Plaintiff refused the opportunity to receive additional medical

examinations. (Id. at 18, 26). Deeming no other treatments necessary, Nurse Cox released Plaintiff

to restrictive housing. (Id.).

Despite Nurse Cox’s report to the contrary, Plaintiff insists that he told both medical and

correctional officers about his hurt thumb while he was in the strip cage. (Doc. 25 at 4–5). And

the next day, his thumb was swollen and painful. (Id. at 5). Plaintiff asserts he asked to see medical

again, but his request was denied. (Doc. 26 at 3).

Defendant Yazell filed a motion for summary judgment on Plaintiff’s single 42 U.S.C.

§ 1983 claim for excessive force. (Doc. 22; see also Doc. 6 at 4; Doc. 9 at 7 n.5 (construing

Plaintiff’s allegations as bringing an Eighth Amendment excessive force claim against Defendant

Yazell)). As discussed in more detail below, Defendant submitted video footage of the incident

with his briefing. (Docs. 29, 33). Plaintiff also filed a motion for summary judgment, though it

came more than two months after his deadline to do so. (Doc. 26). The Motions are ripe for

review. (Docs. 22, 25, 26, 27).

II. STANDARD

A court grants summary judgment when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary

judgment is appropriately entered “against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When a

defendant shows there is insufficient evidence to support any element of the plaintiff’s claim and

moves for summary judgment, the burden shifts to the plaintiff to demonstrate a genuine issue for

trial on which a reasonable jury could return a verdict in its favor. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). Ultimately, the Court asks “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Liberty Lobby, 477 U.S. at 251–52.

III. DISCUSSION

The Court considers the parties’ Motions for Summary Judgment concurrently. As an

initial matter, however, the Court’s scheduling order set the parties’ deadline to file dispositive

motions to April 17, 2025. (Doc. 11). On June 26, the Court received Plaintiff’s Motion, which

fails to acknowledge that he filed it over two months late. (Doc. 26 at 4 (certificate of service

dated June 22, 2025)). Regardless, the Undersigned finds that the interests of justice favor

considering Plaintiff’s untimely Motion. Notably, Defendant does not argue otherwise.

Turning to the Motions themselves, Plaintiff’s Eighth Amendment claim against Defendant

Yazell stems from his assertion that Yazell pushed him against the wall and bent his thumb during

the subsequent escort. (Doc. 25 at 2; see also Doc. 26 at 2); Pelfrey v. Chambers, 43 F.3d 1034,

1037–38 (6th Cir. 1995) (“[A]ll post-conviction excessive force claims are to be raised exclusively

under the Eighth Amendment[.]”). And video evidence corroborates some of what Plaintiff says

happened. (See Docs. 29, 33). The footage begins by showing Plaintiff place his hands against

the wall in preparation for Yazell to search him. (Doc. 29, Video X60A32970 at 0:23). As Yazell

bends down to search Plaintiff’s legs, Plaintiff brings his left arm backwards. (Id. at 0:28).

Plaintiff’s upper extremity makes contact with Yazell’s upper body, though the camera angle does

not clearly show the extent of the contact. (Id.). Plaintiff immediately lifts his left hand back up

against the wall. (Id. at 0:29). Yazell pushes Plaintiff’s back towards the wall, then instructs

Plaintiff to put his hands behind his back. (Id. at 0:30–0:33). Another officer arrives and holds

Plaintiff against the wall while Yazell pulls out handcuffs. (Id. at 0:33–36).

In response to the second officer asking what happened, Defendant Yazell states Plaintiff

“fucking smacked me, dumbass bitch.” (Id. at 0:38–0:42). After cuffing Plaintiff, Defendant tells

him to “come on,” and Yazell, along with at least two other officers, escorts Plaintiff down the

hallway. (Id. at 0:44–0:52). An officer tells Plaintiff to move his hands, and the officers fumble

with Plaintiff’s hands and fingers for a few moments. (Id. 0:53–1:03). During the escort, Yazell

holds Plaintiff’s left arm. (Id. at 1:04). One of his hands holds Plaintiff’s forearm, while the other

grips Plaintiff’s thumb. (Id.). Yazell holds Plaintiff’s thumb in such a way that he bends Plaintiff’s

thumb straight back, almost parallel to Plaintiff’s forearm, for almost thirty seconds of the escort.

(Id. at 0:52–1:20). Defendant names this technique a “bent thumb escort” or a “thumb lock escort.”

(Doc. 27-1 at 1).

The officers then hold Plaintiff against a wall, and Yazell again states that Plaintiff

“smacked me right in the cheek.” (Id. at 1:30–1:34). When Plaintiff denies it, Yazell repeatedly

asserts, “Yes, you did.” (Id. at 1:34–1:36). The two continue to argue before the officers escort

Plaintiff to the strip cage. (Id. at 1:57–2:58). Once in the strip cage, Plaintiff explains to a different

officer that Yazell “acte[d] like he was going to search me, and [when] I turned around to walk,

he was ‘down there’ somewhere. And I didn’t even hit him. Honest.” (Doc. 29, Video

X60A3074R at 0:46–0:55).

Based on this video footage, and the other evidence in the record, the pertinent question is

whether there remains a genuine issue of material fact for the jury as to Plaintiff’s Eighth

Amendment claim. This requires the Undersigned to consider the two components of such a claim.

“The Eighth Amendment prohibition on cruel and unusual punishment protects prisoners

from the unnecessary and wanton infliction of pain.” Villegas v. Metro. Gov’t of Nashville, 709

F.3d 563, 568 (6th Cir. 2013). Yet “not every shove or restraint gives rise to a constitutional

violation.” Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014). Sometimes, “[t]he

maintenance of prison security and discipline . . . require[s] that inmates be subjected to physical

contact actionable as assault under common law.” Combs v. Wilkinson, 315 F.3d 548, 556 (6th

Cir. 2002). Thus, to prove an Eighth Amendment excessive force claim, a prisoner must satisfy

both an objective and a subjective component. Cordell, 759 F.3d at 580.

A. Objective Component

Beginning with the objective component of an Eighth Amendment claim, the Sixth Circuit

“requires the pain inflicted to be sufficiently serious.” Id. (quoting Williams v. Curtin, 631 F.3d

380, 383 (6th Cir. 2011)) (citation modified). The inquiry is “contextual and responsive to

‘contemporary standards of decency.’” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citation

omitted). “The seriousness of the injuries [is] not dispositive; as the Supreme Court has held,

‘[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary

standards of decency always are violated . . . whether or not significant injury is evident.’”

Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Hudson, 503 U.S. at 9). “Otherwise,

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

inhuman, inflicting less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9. But “[t]hat

is not to say that every malevolent touch . . . gives rise to a federal cause of action.” Id. The Eighth

Amendment does not protect against “de minimis uses of physical force, provided that the use of

force is not of a sort ‘repugnant to the conscience of mankind.’” Rafferty v. Trumbull Cnty., 915

F.3d 1087, 1094 (6th Cir. 2019) (quoting Hudson, 503 U.S. at 9–10).

Again, the Undersigned observes that the available video footage corroborates Plaintiff’s

account to the extent that it shows Yazell exert some force on Plaintiff’s back and manipulate his

thumb to be parallel to his forearm during the escort. See Hanson v. Madison Cnty. Det. Ctr., 736

F. App’x 521, 527 (6th Cir. 2018) (quoting Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir.

2012)) (“Where, as here, there is ‘a videotape capturing the events in question,’ the court must

‘view those facts in the light depicted by the videotape.’” (cleaned up)). But medical records show

Plaintiff had no observable injuries following the incident. (Doc. 23 at 18). And Plaintiff declined

to make an official statement about either his condition or the incident following the use of force.

(Id. at 17). What’s more, when examined after the incident, Plaintiff told Nurse Cox “I don’t have

any injuries. I’m fine.” (Id. (cleaned up); see also id. at 26). Though Plaintiff now claims that he

complained about his thumb to Nurse Cox and subsequently asked to be examined and was denied,

he has not provided any support for these assertions. (See, e.g., Doc. 25 at 5). And the Court does

not have the footage of Plaintiff’s visit with Nurse Cox before it. (See Doc. 33 (noting Defendant

filed all body worn camera footage and all security video stemming from the incident at issue)).

Put simply, the record supports the conclusion that Plaintiff suffered no discernible injury that can

be attributed to Defendant Yazell’s actions.

Still, Plaintiff claims that the way Yazell bent his thumb for about thirty seconds caused

him “excruciating pain” and, as a result, his thumb was swollen and painful in the following days.

(Doc. 26 at 3; see also Doc. 25 at 5). Unfortunately for Plaintiff, these types of injuries, and the

force used to cause them, are not enough to meet the objective component standard. See Rafferty,

915 F.3d at 1094; see also Bullocks v. Hale, 478 F. Supp. 3d 639, 648 (S.D. Ohio 2020) (“[Minor

swelling and bruising], and more importantly the force required to create it, certainly does not as

a general matter offend traditional standards of decency.”), aff’d, No. 20-3428, 2021 WL 1578198

(6th Cir. Mar. 1, 2021); Johnson v. Unknown Coolman, R.U.O., 102 F. App’x 460, 461 (6th Cir.

2004) (upholding a district court’s conclusion a prisoner alleged only de minimis force when he

alleged an officer pushed him into his cell, pulled on his handcuffs, and bent his thumb back in an

attempt to remove the cuffs); Lockett v. Suardini, 526 F.3d 866, 876 (6th Cir. 2008) (“Shoving,

grabbing, and bending back two of Lockett’s fingers also required only minimal force and was

reasonably related to the need for forcibly bringing Lockett under control and returning him to his

cell.”); Wicker v. Lawless, 278 F. Supp. 3d 989, 1009 (S.D. Ohio 2017) (finding a shove that caused

a prisoner to bump her head but left no discernable injury was insufficient to establish the objective

component); cf. Cowan v. Wellman, No. 1:23-CV-315, 2024 WL 5187004, at *7 (S.D. Ohio Dec.

20, 2024) (finding no issues of fact as to whether a plaintiff established the objective component

where the plaintiff’s finger was broken and required surgery following an escort and the defendant

did not challenge that claim), report and recommendation adopted, No. 1:23-CV-315, 2025 WL

879951 (S.D. Ohio Mar. 21, 2025). Consequently, the Undersigned concludes Plaintiff has failed

to raise a genuine issue of material fact as to the objective component of his Eighth Amendment

claim.

B. Subjective Component

Though Plaintiff’s claims fail on the objective component, the Undersigned briefly

addresses the subjective component as well. The subjective component focuses on the prison

official’s state of mind and analyzes “whether force was applied in a good-faith effort to maintain

or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7 (listing

the factors courts should consider). “Force believed necessary, even if that belief is unreasonable,

will not violate the Eighth Amendment.” Cowman, 2024 WL 5187004, at *6 (citation omitted).

In considering subjective intent, courts ask questions like: “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?” Johnson v. Sootsman, 79 F.4th 608, 618 (6th Cir. 2023) (citing Hudson, 503

U.S. at 7).

Notably, courts must refrain from “unreasonable post hoc judicial second-guessing” of

prison officials’ conduct. Lockett v. Suardini, 526 F.3d 866, 875 (6th Cir. 2008). Because they

“must make their decisions in haste, under pressure, and frequently without the luxury of a second

chance,’ [the Court] must grant them ‘wide-ranging deference in the adoption and execution of

policies and practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security.’” Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002)

(citing Hudson, 503 U.S. at 6)); see also Sootsman, 79 F.4th at 618 (“[W]hile judges may review

an encounter by slowing down, pausing, and replaying a video, officers have no such luxury.”).

As such, when examining the need for force, the issue “is not whether the use of force was

absolutely necessary in hindsight, but whether the use of force could plausibly have been thought

necessary.” Cordell, 759 F.3d at 581 (quoting Griffin v. Hardrick, 604 F.3d 949, 954 (6th Cir.

2010)).

In considering the Sootsman factors, “although the Eighth Amendment does not require a

prisoner to suffer a ‘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.” 79 F.4th at 618–19 (quoting

Hudson, 503 U.S. at 7–8). As previously discussed, Plaintiff had no documented injuries directly

after his escort. Nor is there evidence that he suffered a long-term injury in the following months

because of Yazell’s shove or hold on his thumb. (See Doc. 23-1 at 30–60 (Plaintiff’s medical

records through 12/11/2023, none of which mention Plaintiff’s thumb)).

Next, in considering the nature of the threat that justified the force and the amount of force

used, Yazell asserts that Plaintiff “turned” during the pat down and “struck [him] in the face and

neck.” (Doc. 23-1 at 2). Though Plaintiff disputes that he struck or hit Yazell in the face (Doc.

25 at 2), the video footage indisputably shows Plaintiff’s arm or hand made contact with Yazell’s

upper body while Yazell crouched down to inspect Plaintiff’s legs. (Doc. 29, Video X60A32970

at 0:25–0:30; see also id. at Video X60A38380 at 0:30–0:35). While there may be factual

questions as to the amount of force Plaintiff used or where exactly Plaintiff made contact, it is not

necessary for the Undersigned to reach them. Importantly, “prison officials may use appropriate

force to regain control of an aggressive prisoner” Cordell, 759 F.3d at 581, and Defendant’s

testimony states that Plaintiff was physically resisting a pat down. See also Combs, 315 F.3d at

556 (noting that prison officials may use force to maintain “prison security”). The video footage

corroborates Defendant’s account to the extent it shows Plaintiff moved his hand off the wall when

Yazell was still in the process of patting him down. Given this, Yazell’s subsequent decision to

push Plaintiff into the wall to place in in handcuffs (Doc. 23-1 at 2), “could plausibly have been

thought necessary” Cordell, 759 F.3d at 581, and must be afforded “wide-ranging deference”

Combs, 315 F.3d at 557.

Whether the nature of the threat posed and the amount of force amount of force used during

the escort justified Yazell bending Plaintiff’s thumb is a closer question. Plaintiff asserts that

during the escort, he was not resisting or being “belligerent.” (Doc. 26 at 2; see also Doc. 25 at 2,

6). The video footage shows that Plaintiff was restrained in handcuffs with his hands behind his

back. (See, e.g., Doc. 29, Video X60A32970 at 0:49–1:21). The footage also shows that he

appears to be walking normally and following commands. (Id.). Defendant does not assert that

Plaintiff was resisting during the escort itself, but rather connects the escort, and the threat Plaintiff

posed, to Plaintiff’s earlier behavior at the wall. (Doc. 23-1 at 2 (“Due to [Plaintiff’s] assaultive

behavior . . . I escorted [him] . . . from the C Corridor to J2 and secured him in the strip cage.”)).

And Defendant claims that the use of the bent thumb escort technique was proper. (Id.; see also

Doc. 27-1 (declaration of ODRC training officer Leslie Ellis stating the bent thumb escort is “a

common escort technique designed to control the movement of a subject, induce compliance and

discourage resistance through joint pressure without causing injury”)).

Ultimately, while there may be a question as to whether Plaintiff’s earlier contact with

Yazell justified use of the bent thumb technique for the first thirty second of Plaintiff’s escort, the

Undersigned’s conclusion on the objective prong obviates the need to reach that question. In other

words, because no genuine dispute as to any material fact remains on the objective prong, the case

may not proceed, regardless of any remaining uncertainty as to the subjective prong.

*****

In sum, Defendant has met his burden of demonstrating that there is no genuine issue of

material fact as to Plaintiff’s Eighth Amendment excessive force claim. For this reason, the

Undersigned need not address Defendant’s remaining qualified immunity arguments and

RECOMMENDS Defendant’s Motion be GRANTED and Plaintiff’s Motion be DENIED.

IV. CONCLUSION

For the foregoing reasons, the Undersigned RECOMMENDS GRANTING Defendant’s

Motion for Summary Judgment (Doc. 22) and DENYING Plaintiff’s Motion for Summary

Judgment (Doc. 26).

Date: September 5, 2025 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

Procedure on Objections

Under Federal Rule of Civil Procedure 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 by the Court on a

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).