IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Alan Brevaldo,

Plaintiff,

v. Case No. 2:18-cv-446

Muskingum County Sheriff’s

Office, et al.,

Defendants.

OPINION AND ORDER

In his original complaint filed under 42 U.S.C. §1983, Alan

Brevaldo, an inmate at the Southern Ohio Correctional Facility,

asserted claims against the Muskingum County Sheriff’s Office and

Captain Dave Suciu. The court granted defendants’ motion to

dismiss but permitted plaintiff to file an amended complaint. In

his amended complaint filed on November 13, 2018, plaintiff

asserted claims against Muskingum County, Ohio, and nine employees

of the Muskingum County Sheriff’s Department, specifically: Captain

Dave Suciu, Sergeant Lang, Sergeant Winters, and Corrections

Officers Martin, Smith, Hanning, Hartman, Fuller, and Patterson. 

The Muskingum County Sheriff’s Office was not named as a defendant

in the amended complaint. Plaintiff alleges that while he was

incarcerated in the Muskingum County Jail from late 2017 through

early 2018, he was involved in at least five physical altercations

with the defendants. He asserts claims alleging the use of

excessive force, deliberate indifference to his serious medical

needs, denial of access to courts, and unlawful conditions of

confinement.

On January 17, 2020, the magistrate judge filed a report and

recommendation on the parties’ cross-motions for summary judgment. 

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The magistrate judge recommended that plaintiff’s motion for

summary judgment be denied. The magistrate judge further

recommended denying defendants’ motion for summary judgment on

plaintiff’s claims alleging the use of excessive force by Martin

and Smith on January 13, 2018, the use of excessive force by

Winters on January 15, 2018, and the use of excessive force by

Fuller, Lang and Hartman on January 16, 2018. The magistrate judge

recommended granting summary judgment in favor of the defendants on

all of the other claims brought by plaintiff. This matter is now

before the court on the parties’ objections to the report and

recommendation.

I. Standards 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 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).

“The court shall grant summary judgment if the movant shows

that 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). The central issue is “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 v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A

party asserting that a fact cannot be or is genuinely disputed must

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support the assertion by citing to particular parts of materials in

the record, by showing that the materials cited do not establish

the absence or presence of a genuine dispute, or by demonstrating

that an adverse party cannot produce admissible evidence to support

the fact. Fed. R. Civ. P. 56(c)(1)(A) and (B). In considering a

motion for summary judgment, this court must draw all reasonable

inferences and view all evidence in favor of the nonmoving party. 

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Am. Express Travel Related Servs. Co. v. Kentucky,

641 F.3d 685, 688 (6th Cir. 2011).

II. Plaintiff’s Objections

Plaintiff states that he would like to proceed with the claims

against Martin, Winters, Fuller, Lang, and Hartman. Plaintiff’s

comments in that regard are not objections to the report and

recommendation, as the magistrate judge concluded that the use of

excessive force claims against those defendants should survive.

Plaintiff also argues that he should be permitted to proceed

on his claim against Captain Suciu on the theory of vicarious

liability. The magistrate judge correctly noted that a §1983 claim

against a supervisory official fails unless the supervisor

implicitly authorized, approved or knowingly acquiesced in the

unconstitutional conduct of the offending subordinate. Doc. 65, p.

5 (citing Top Flight Entm’t, Ltd., v. Schuette, 729 F.3d 623, 634-

35 (6th Cir. 2013)). The magistrate judge concluded that the fact

that Captain Suciu knew about the alleged assaults on plaintiff

after the fact is not sufficient to show that he authorized this

conduct. The court agrees with the magistrate judge’s conclusion

that plaintiff cannot proceed with an excessive use of force claim

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against Captain Suciu on the theory of respondeat superior.

The magistrate judge also recommended granting summary

judgment in favor of Captain Suciu on plaintiff’s claim of denial

of access to courts. The magistrate judge noted that although

there was some evidence that Captain Suciu was personally involved

in denying plaintiff telephone calls, mail and legal materials,

plaintiff offered no evidence that he suffered an actual injury as

a result of Captain Suciu’s actions. Actual injury is a necessary

element of a claim for interference with access to the courts. See

Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005). The court

agrees that Captain Suciu is entitled to summary judgment on

plaintiff’s denial of access to courts claim. This objection is

denied.

III. Defendants’ Objections

A. Dismissal of Defendant Zackery Smith

In their first objection, defendants note the May 28, 2019,

suggestion of the death of Zackery Smith, and argue that the

magistrate judge should have dismissed that defendant pursuant to

Fed. R. Civ. P. 25(a)(1). 

Rule 25(a)(1) provides:

If a party dies and the claim is not extinguished, the

court may order substitution of the proper party. A

motion for substitution may be made by any party or by

the decedent’s successor or representative. If the

motion is not made within 90 days after service of a

statement noting the death, the action by or against the

decedent must be dismissed.

Fed. R. Civ. P. 25(a)(1). Defendants acknowledge that no mention

of the notice of death was made in their motion for summary

judgment because the 90-day period referred to in Rule 25(a)(1) had

not yet run. Because no motion to dismiss had been filed when the

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magistrate judge issued her report and recommendation, she did not

address this issue, nor should she have been expected to do so. 

Technically, this argument should have been raised in a motion to

dismiss rather than asserted as an objection to the report and

recommendation. However, the court will construe this objection as

a motion to dismiss and will address it as such.

The notice of death was filed on May 28, 2019, and no motion

for substitution has been filed. Thus, dismissal of the claim

against Smith is required under Rule 25(a)(1). The court also

notes that in his response to the report and recommendation,

plaintiff stated that he “is willing to dismiss the claim against

Officer Smith as he is deceased and does not want to cause any more

distress on his family.” Doc. 67, pp. 1-2. Therefore, defendants’

motion to dismiss the claim against Smith is granted.

B. Claim Against Defendant Winters

Defendants object to the recommendation of the magistrate

judge that their motion for summary judgment on plaintiff’s claim

of the use of excessive force asserted against Sergeant Winters be

denied. A claim of excessive force in violation of the Eighth

Amendment includes both an objective and a subjective component. 

Rafferty v. Trumbull Cty., Ohio, 915 F.3d 1087, 1094 (6th Cir.

2019). The objective component requires the pain inflicted to be

sufficiently serious. Id. This inquiry is “contextual and

responsive to ‘contemporary standards of decency.’” Hudson v.

McMillian, 503 U.S. 1, 8 (1992)(quoting Estelle v. Gamble, 429 U.S.

97, 104 (1976)). The subjective component requires that the prison

official act with a sufficiently culpable state of mind. Rafferty,

915 F.3d at 1094. In analyzing this component, courts ask “whether

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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. Relevant factors include: (1) the extent of

injury suffered; (2) the need for application of force; (3) the

relationship between that need and the amount of force used; (4)

the threat reasonably perceived by the responsible officials; and

(5) any efforts made to temper the severity of a forceful response. 

Id.

The January 15, 2018, incident involving Sergeant Winters

began with plaintiff’s unauthorized use of the phone in the booking

area. Correctional staff observed plaintiff sitting on a bench

using the phone, and instructed him to get off the phone. Winters

approached plaintiff and attempted to take the phone away from him. 

Winters pulled plaintiff off the bench onto the floor, and other

staff assisted Winters in restraining plaintiff. The officers then

put plaintiff in a restraint chair.

Plaintiff testified in his deposition that Winters tackled him

to the ground and punched him in the face multiple times in the

face until he blacked out. Doc. 41, p. 42. Plaintiff further

stated that Winters punched him three to six times, and that

someone kicked him. Doc. 41, pp. 45-46. Plaintiff testified that

after he blacked out, he was placed in a restraint chair. In

contrast, Winters stated in his affidavit that he told plaintiff

twice to hang up the phone. Doc. 39-9, ¶¶ 9-10. Winters stated

that when he tried to take the phone out of plaintiff’s hand,

plaintiff pulled away, and he pulled plaintiff onto the floor. 

Winters stated that while plaintiff was resisting, Winters “gave

him a tactical knee strike in the midsection of his right side.” 

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Doc. 39-9, ¶ 16. Winters then placed plaintiff in handcuffs, and

placed him in a restraint chair. Doc. 39-9, ¶¶ 17-18.

Defendants rely on two video tapes which have been presented

in evidence. They claim that these videos corroborate the version

of the incident offered by Winters, and that the court should not

consider plaintiff’s version of the facts as barring summary

judgment, citing Scott v. Harris, 550 U.S. 372, 380 (2007) and

Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012).

The magistrate judge addressed the video evidence in the

report and recommendation and concluded that the type and amount of

force defendants used in subduing plaintiff was not clear from the

videos. This court agrees. The evidence is sufficient to raise a

genuine dispute of fact as to the use of excessive force by

defendant Winters, and this objection is denied.

IV. Conclusion

In accordance with the foregoing, the court adopts the report

and recommendation (Doc. 65). Plaintiff’s motion for summary

judgment (Doc. 43) is denied. Defendant’s motion to dismiss

Zackery Smith as a party is granted. Defendants’ motion for

summary judgment (Doc. 39) is denied in regard to the use of

excessive force claims against Martin (relating to his alleged

actions on January 13, 2018), Winters (regarding his alleged

actions on January 15, 2018), and Fuller, Lang and Hartman

(relating to their alleged actions on January 16, 2018). 

Defendants’ motion for summary judgment is granted as to all other

claims against the defendants. The clerk is directed to terminate

the Muskingum County Sheriff’s Department, Muskingum County, Ohio,

Captain Dave Suciu, and Corrections Officers Smith, Hanning and

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Patterson as parties. 

Date: November 6, 2020 s/James L. Graham 

 James L. Graham

 United States District Judge

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