UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TYRONE R. JOHNSON, Case No. 1:18-cv-43

Plaintiff,

Black, J.

vs. Bowman, M.J.

MICHAEL HUMPHREY, et al., ORDER AND 

Defendants. SUPPLEMENTAL REPORT

AND RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), in Lucasville, 

Ohio, filed a pro se civil rights complaint under 42 U.S.C. § 1983 against various corrections 

officials. On March 30, 2018, the undersigned issued an Order and Report and Recommendation

(Doc. 18), recommending that plaintiff’s new claim set forth in his supplemental, “amended 

complaint” (Doc. 13) be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). On 

April 9, 2018, plaintiff filed “Objections to Report and Recommendation” (Doc. 20), setting 

forth new arguments not contained in his complaint, as amended. This matter has been 

recommitted to the undersigned for consideration of the new arguments contained in plaintiff’s 

Objections. (See Doc. 21). Also before the Court, is plaintiff’s second motion for a temporary 

restraining order and preliminary injunction. (Doc. 19). 

A. Background

On March 5, 2018, the undersigned issued a Report and Recommendation (Doc. 7), 

which was adopted in a Decision and Entry issued on March 29, 2018 (Doc. 17), to dismiss 

plaintiff’s complaint, with the exception of plaintiff’s Eighth Amendment individual-capacity 

conditions-of-confinement claim asserted against defendant Lt. Eaches and Eighth Amendment 

individual-capacity excessive-force claim asserted against defendants D. McCroskey, Harold 

Bell, and Lt. Rodgers. (See Doc. 7, at PageID 101). Plaintiff then filed a motion seeking to have 

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the United States Marshal Service serve defendants Eaches, McCroskey, Bell, and Rodgers, 

which the undersigned granted on March 26, 2018. (Doc. 14).

In the meantime, on March 23, 2018, plaintiff filed a motion to amend his complaint 

(Doc. 13), which this Court interpreted as a motion to add a claim to his original complaint (see 

Doc. 6), and granted. 

In accordance with the Prison Litigation Reform Act of 1995 (PLRA) § 804, 28 U.S.C. 

§ 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b), the undersigned then sua sponte reviewed the 

complaint, as amended, to determine whether the complaint or any portion of it, should be 

dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be 

granted or seeks monetary relief from a defendant who is immune from such relief. 

Plaintiff’s sole, additional claim, read in its entirety as follows:

This officer [Rodney Osbourne] is responsible for assault and writing a false 

conduct report October 27, 2017 for resisting rules infraction 20, 21. A Use of 

Force and conduct report was not made known until November 29, 2017 after 

spending more then [sic] 30 days in segregation. This officer was responsible for 

assault when after Plaintiff, Tyrone Johnson was attacked, this officer knowingly 

caused harm and falsely presented a conduct report in regards to the incident that 

resulted assault, false segregation [sic].

(Doc. 13, at PageID 218).

The undersigned recommended dismissing the new claim. The undersigned found that 

plaintiff’s allegation that defendant Osbourne “is responsible for assault” was utterly 

conclusory. (Doc. 18, at PageID 238). Additionally, the undersigned found that plaintiff had 

not stated a constitutional claim to the extent he alleged that defendant Osbourne wrote a false 

conduct report. (Id., at PageID 238-39). 

B. Plaintiff’s New Arguments

In his Objections (Doc. 20), plaintiff does not contend that the undersigned erred in the 

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above analysis. Instead, plaintiff adds the following new allegations, which the undersigned will 

allow under Fed. R. Civ. P. 15(a)1 as a further amendment to his complaint.

[O]n 10/27/17, plaintiff was attacked in the institution library, when correction 

officer had applied excessive force, after plaintiff submitted to handcuff restraint. 

After the handcuffs were applied, Officer Rodney Osbourne inflicted painful and 

injurious restraint by twisting and bending . . . [p]laintiff wrists that caused pain 

and suffering.

Officer Rodney Osbourne is responsible for writing of the conduct, and 

production of the conduct report in the matter. On 11/29/18 the conduct report 

was produced more than 30 days of being in segregation that clearly violated 

DRC policy. 

(Doc. 20, at PageID 245).

Liberally construed, the new allegations contained in plaintiff’s Objections (Doc. 20) 

state an individual-capacity excessive-force claim against defendant Rodney Osbourne under 

the Eighth Amendment. At this stage in the proceedings, without the benefit of briefing by the 

parties to this action, the undersigned concludes that this claim is deserving of further 

development and may proceed at this juncture. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). 

As previously noted, the undersigned has also permitted plaintiff to proceed with an Eighth 

Amendment individual-capacity conditions-of-confinement claim asserted against defendant 

Lt. Eaches and an Eighth Amendment individual-capacity excessive-force claim asserted 

against defendants D. McCroskey, Harold Bell, and Lt. Rodgers. (See Doc. 7, at PageID 101). 

The undersigned hereby VACATES the March 30, 2018 Order and Report and 

Recommendation to the extent the undersigned found that plaintiff’s allegations failed to state 

an individual-capacity Eighth Amendment excessive-force claim against defendant Osbourne. 

However, for the reasons stated in the March 30, 2018 Order and Report and Recommendation

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Leave to amend a complaint shall be freely granted when justice requires. See Fed. R. Civ. P. 15(a). See also 

Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987) (stating that Rule 15(a) embodies “a liberal policy of 

permitting amendments to ensure the determinations of claims on their merits”).

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(Doc. 18), plaintiff’s remaining claims against defendant Osbourne should be dismissed for 

failure to state a claim upon which relief may be granted. 

C. Plaintiff’s Second Motion for a Temporary Restraining Order and 

Preliminary Injunction

Plaintiff filed his first “Motion for a Temporary Restraining Order and Preliminary 

Injunction” on March 28, 2018. (Doc. 16). In that motion, plaintiff sought an injunction to 

compel a transfer to a different prison. (Id., at PageID 232). The undersigned has recommended 

that plaintiff’s first motion for a temporary restraining order and preliminary injunction be 

denied. (Doc. 18, at PageID 239-41). The new arguments contained in plaintiff’s Objections 

(Doc. 20) do not alter the undersigned’s recommendation. Further, because plaintiff’s second 

motion for a temporary restraining order and preliminary injunction (Doc. 19) offers no 

additional argument (see Doc. 19, at PageID 245), the undersigned recommends that the motion 

be denied for the same reasons provided in the March 30, 2018 Order and Report and 

Recommendation (Doc. 18, at PageID 239-41). 

Accordingly, in sum, based on the new arguments contained in plaintiff’s Objections 

(Doc. 20), the undersigned hereby VACATES the March 30, 2018 Order and Report and 

Recommendation to the extent the undersigned found that plaintiff’s allegations failed to state 

an individual-capacity Eighth Amendment excessive-force claim against defendant Osbourne. 

However, for the reasons stated in the March 30, 2018 Order and Report and Recommendation, 

it is RECOMMENDED that plaintiff’s remaining claims against defendant Osbourne should 

be dismissed for failure to state a claim upon which relief may be granted pursuant to 28 

U.S.C. §§ 1915(e)(2)(B). It is further RECOMMENDED that for the reasons stated in the 

March 30, 2018 Order and Report and Recommendation (Doc. 18) that plaintiff’s motions for a 

temporary restraining order and preliminary injunction (Docs. 16 & 19) be DENIED.

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IT IS THEREFORE ORDERED THAT:

1. The March 30, 2018 Order and Report and Recommendation (Doc. 18) is 

VACATED to the extent the undersigned found that plaintiff’s allegations failed to state an 

individual-capacity Eighth Amendment excessive-force claim against defendant Osbourne. 

2. The United States Marshal Service shall serve a copy of the complaint, as 

amended (Docs. 6, 13 & 20), summons, and this Order and Supplemental Report and 

Recommendation upon defendant Osbourne.

IT IS THEREFORE RECOMMENDED THAT:

1. The Report and Recommendation of March 30, 2018 (Doc. 18) be adopted except 

as set forth herein.

2. Plaintiff’s remaining claims against defendant Osbourne set forth in the “amended 

complaint” (Docs. 13 & 20) be DISMISSED with prejudice pursuant to 28 U.S.C. 

§§ 1915(e)(2)(B) and 1915A(b)(1). 

3. Plaintiff’s first and second motions for a temporary restraining order and 

preliminary injunction (Docs. 16 & 19) be DENIED.

4. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing 

reasons an appeal of any Order adopting this Report and Recommendation would not be taken in 

good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. 

Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

s/ Stephanie K. Bowman

Stephanie K. Bowman 

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TYRONE R. JOHNSON, Case No. 1:18-cv-43

Plaintiff,

Black, J.

vs. Bowman, M.J.

MICHAEL HUMPHREY, et al.,

Defendants.

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).

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