IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ALAN BREVALDO, 

Plaintiff,

v. Civil Action 2:18-cv-446

Judge James L. Graham

Magistrate Judge Jolson

MUSKINGUM COUNTY SHERIFF’S

OFFICE, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

This matter is before the Court on the parties’ Cross-Motions for Summary Judgment 

(Docs. 39, 43) and Defendants’ Motion to Strike (Doc. 59). For the reasons that follow, the 

undersigned RECOMMENDS that Defendants’ Motion for Summary Judgment (Doc. 39) be 

GRANTED in part and DENIED in part and that Plaintiff’s Motion for Summary Judgment

(Doc. 43) be DENIED. Specifically, the Undersigned RECOMMENDS that Plaintiff be 

permitted to proceed with his excessive force claims against:

• Defendants Martin and Smith for their alleged actions on January 13, 2018;

• Defendant Winters for his alleged actions on January 15, 2018; and

• Defendants Fuller, Lang, and Hartman for their alleged actions on January 16, 

2018.

The Undersigned RECOMMENDS that summary judgment be entered in favor of Defendants on 

all remaining claims. Further, Defendants’ Motion to Strike (Doc. 59) is DENIED as moot. 
2

I. BACKGROUND

Plaintiff is an inmate at the Southern Ohio Correctional Facility. (Doc. 64). Relevant here,

in late 2017 through early 2018, he was incarcerated at the Muskingum County Jail (the “Jail”). 

Defendants are Muskingum County and nine employees of the Muskingum County Sheriff’s 

Department: Captain Dave Suciu, Sergeant Lang, Sergeant Winters, Corrections Officer Martin, 

Corrections Officer Smith, Corrections Officer Hanning, Corrections Officer Hartman, 

Corrections Officer Fuller,1 and Corrections Officer Patterson. (See Docs. 8, 18).

While incarcerated in the Jail, correctional staff engaged in at least five separate physical 

altercations with Plaintiff. (See Docs. 39-3–39-12 (affidavits of correctional staff describing those 

altercations); Doc. 43-1–43-2, 43-4–43-10, 43-12, 43-14 (narrative and case reports describing the 

same)). Further, Plaintiff alleges that correctional staff denied him medical care and access to 

legal materials and subjected him to unconstitutional conditions of confinement.

As a result, Plaintiff filed this lawsuit under 42 U.S.C. § 1983, bringing claims of excessive 

force, deliberate indifference to serious medical needs, denial of access to the courts, and unlawful 

conditions of confinement. (Docs. 8, 8-1). The Court subsequently granted Defendants’ Motion 

to Dismiss but allowed Plaintiff the opportunity to file an amended complaint. (Doc. 20). Plaintiff 

did so (see Doc. 18), which incorporated the original Complaint (Doc. 8) and added additional 

allegations, claims, and defendants. After discovery, the parties filed competing Motions for 

 1 It appears that two officers with the last name Fuller worked at the Jail during the relevant time period. Erin Fuller 

and Dale Fuller are both Sheriff’s Deputies employed by the Muskingum County Sheriff’s Office. (Doc. 39-5, ¶¶ 1–

2; Doc. 39-12, ¶¶ 1–2). Defendants maintain that “Deputy Dale Fuller is not a party to these proceedings and no claim 

has been made against him.” (Doc. 39 at 12 n.9; see also id. at 1 (moving for summary judgment on behalf of Erin 

Fuller); id. at 13 (referring to Plaintiff’s failure to serve Erin Fuller)). But, in the Undersigned’s view, the record is 

clear that Plaintiff is suing Deputy Dale Fuller, not Deputy Erin Fuller, for excessive force. (See Doc. 8-1 at 5 (alleging 

excessive force when “Deputy Fuller” used a taser on Plaintiff on January 16, 2018); Doc. 39-12, ¶¶ 15–16 (averring 

that Deputy Dale Fuller used a taser on Plaintiff on January 16, 2018); Doc. 41, 37:21–22 (“I know Fuller was there. 

He’s the one that shot me with the Taser.”)). The Undersigned considers Deputy Dale Fuller as a defendant here.
3

Summary Judgment (Docs. 39, 43) and Defendants’ Motion to Strike (Doc. 59), all of which are 

fully briefed and ripe for resolution.

II. STANDARD OF REVIEW

Summary judgment is appropriate 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). The party seeking 

summary judgment bears the initial “responsibility of informing the district court of the basis for 

its motion, and identifying those portions” of the record that demonstrate “the absence of a genuine 

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts 

to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The evidence of the nonmovant is to 

be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citing Adickes 

v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)). A genuine issue of material fact exists if a 

reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; see 

also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (defining 

“genuine” as more than “some metaphysical doubt as to the material facts”). Consequently, 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, 477 

U.S. at 251–52.

III. DISCUSSION

A. Muskingum County

Plaintiff purports to sue Defendant Muskingum County for violating his Eight Amendment 

rights. (Doc. 18 at 2). But “[a] municipality may not be held liable under § 1983 on a respondeat 

superior theory—in other words, solely because it employs a tortfeasor.” Jackson v. City of 
4

Cleveland, 925 F.3d 793, 828 (6th Cir. 2019) (citation and quotations omitted). “Instead, a plaintiff 

must show that through its deliberate conduct, the municipality was the moving force behind the 

injury alleged.” Id. (citation and quotations omitted). “A plaintiff does this by showing that the 

municipality had a ‘policy or custom’ that caused the violation of his rights.” Id. (quoting Monell 

v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).

There are four methods of showing the municipality had such a policy or custom: 

the plaintiff may prove (1) the existence of an illegal official policy or legislative 

enactment; (2) that an official with final decision making authority ratified illegal 

actions; (3) the existence of a policy of inadequate training or supervision; or (4) 

the existence of a custom of tolerance or acquiescence of federal rights violations.

Jackson, 925 F.3d at 828 (citation and internal quotations omitted).

Assuming for the sake of argument that Defendant Muskingum County is subject to suit 

under 42 U.S.C. § 1983, Plaintiff has failed to satisfy this standard. At various points in his briefs, 

Plaintiff asserts that Defendant Muskingum County lacked policies to ensure the proper training 

of correctional officers and that it had a custom of tolerance or acquiescence of federal rights 

violations. (See, e.g., Doc. 43 at 5 (“This case is a failure of the system to adequately train 

officers ...”); id. at 25 (“Muskingum County is liable due to custom of tolerance or quiescence of 

federal rights violations and lack of training. The plaintiff has demonstrated the violations of 

policies specifically use of restrain [sic] and seclusion and proper transferring of inmates ... There 

is no documentation of any of the officers having any type of mental health training with the 

exceptions of signs of suicide.”). Except for these conclusory assertions, Plaintiff cites no evidence 

demonstrating that Defendant Muskingum County’s customs or policies were the moving force 

behind his alleged injuries, and the Undersigned has not been able to identify any through an 

independent review of the record. Absent such evidence, Defendant Muskingum County is entitled 

to summary judgment.
5

B. Defendant Suciu

Plaintiff’s claims against Defendant Suciu fail for similar reasons. “To prevail on a cause 

of action under § 1983, a plaintiff must prove (1) the deprivation of a right secured by the 

Constitution or laws of the United States (2) caused by a person acting under the color of state 

law.” Winkler v. Madison Cty., 893 F.3d 877, 890 (6th Cir. 2018) (citation and internal quotation

marks omitted). State actors may be sued in their official or individual capacity. Kentucky v. 

Graham, 473 U.S. 159, 165–66 (1985). The purpose of an individual capacity suit is “to impose 

personal liability upon a [state actor] for actions he takes under color of state law.” Id. at 165. A 

plaintiff bringing an individual capacity suit “must plead that each [state actor] defendant, through 

the [person]’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 

662, 676 (2009); see also Heyerman v. Cty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012) 

(citations omitted) (“Persons sued in their individual capacities under § 1983 can be held liable 

based only on their own unconstitutional behavior.”). As a result, even if a plaintiff can prove a 

violation of his constitutional rights, his § 1983 claim must fail against a supervisory official unless 

the supervisor “implicitly authorized, approved or knowingly acquiesced in the unconstitutional 

conduct of the offending subordinate.” Top Flight Entm’t, Ltd. v. Schuette, 729 F.3d 623, 634–35 

(6th Cir. 2013) (citation and internal quotation marks omitted). Thus, “[a]llegations of respondeat 

superior do not sustain a § 1983 claim against state employees in their individual capacities.” 

Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010).

Here, Plaintiff contends that Defendant Suciu violated his rights by directing correctional 

staff to “deny him telephone calls, mail, and legal materials.” (Doc. 43 at 23). Defendant Suciu’s 

actions purportedly interfered with Plaintiff’s ability to represent himself in state court 

proceedings. (Id.). “Prison officials may not erect any barriers that impede an inmate’s access to 
6

the courts.” Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996). “In order to state a claim for 

interference with access to the courts, however, a plaintiff must show actual injury.” Harbin-Bey 

v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005) (citing Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th 

Cir. 1999) (en banc)). “Examples of actual prejudice to pending or contemplated litigation include 

having a case dismissed, being unable to file a complaint, and missing a court-imposed deadline.”

Harbin-Bey, 420 F.3d at 578 (citing Jackson v. Gill, 92 F. App’x 171, 173 (6th Cir. 2004)). 

Although Plaintiff does cite evidence showing that Defendant Suciu was personally 

involved in denying him telephone calls, mail, and legal materials, his denial of access to courts 

claim fails for a more fundamental reason: He presents no evidence, and makes no argument, that 

he suffered an actual injury as a result of Defendant Suciu’s actions. Defendant Suciu is entitled 

to summary judgment on Plaintiff’s denial of access to courts claim as a result. See Harbin-Bey, 

420 F.3d at 578 (citing Thaddeus–X, 175 F.3d at 394). 

Defendant Suciu is also entitled to summary judgment on any claims of excessive force. 

Plaintiff states that Defendant Suciu was “completely aware” of the other individual Defendants’

use of excessive force against him based on multiple internal investigations and inmate complaints. 

But simple, after-the-fact knowledge of the alleged assaults is insufficient to show that Defendant 

Suciu “implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct 

of the offending subordinate,” Top Flight Entm’t, 729 F.3d at 634–35. As a result, Plaintiff’s 

excessive force claim is an attempt to hold Defendant Suciu liable under a theory of respondeat 

superior, which the law does not permit. See Colvin, 605 F.3d at 292.

C. Deliberate Indifference 

Liberally construed, Plaintiff’s Amended Complaint appears to bring a claim against 

Defendants for deliberate indifference to serious medical needs. (See Doc. 8-1 at 1–4 (alleging he 
7

was refused medical treatment after certain physical altercations with correctional staff); id. at 9 

(asserting that he “was always refused medical treatment” and appearing to bring a claim for 

“refusal of providing adequate medical treatment”); Doc. 18 at 1 (requesting to amend his 

complaint to include a claim of “inadequate medical treatment”)). His briefs with regards to the 

pending Motions for Summary Judgment contain similar assertions. (See, e.g., Doc. 43 at 4–5 

(claiming “inadequate medical treatment” and citing failure to provide necessary medication); id.

at 26 (“The Plaintiff was refused medical treatment on most of the incidents when he was assaulted 

by the above listed corrections officers. The incident in which he was provided medical attention 

was by two Licensed Practical Nurse (LPN) who are not qualified to make medical assessments, 

diagnosis, or develop a treatment plan.”)).

“[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary 

and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 

97, 104 (1976) (internal citation and quotation marks omitted). An inmate can bring suit under 

42 U.S.C. § 1983 for an Eighth Amendment violation “whether the indifference is manifested by 

prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying 

or delaying access to medical care or intentionally interfering with the treatment once prescribed.” 

Id. at 104–05.

“To establish a prison official’s deliberate indifference to a serious medical need, an inmate 

must show two components, one objective and the other subjective.” Rhinehart v. Scutt, 894 F.3d 

721, 737 (6th Cir. 2018) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “The objective 

component requires a plaintiff to prove that the alleged deprivation of medical care was serious 

enough to violate the Eighth Amendment.” Rhinehart, 894 F.3d at 737 (citing Farmer, 511 U.S. 

at 834). A medical need is sufficiently serious if it “has been diagnosed by a physician as 
8

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

for a doctor’s attention.” Jones v. Muskegon County, 625 F.3d 935, 941 (6th Cir. 2010) (quoting 

Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)). 

“The subjective component requires a showing that the ‘official kn[ew] of and 

disregard[ed] an excessive risk to inmate health or safety.’” Richmond v. Huq, 885 F.3d 928, 939 

(6th Cir. 2018) (quoting Farmer, 511 U.S. at 837). “This means that the defendants must have a 

‘sufficiently culpable state of mind.’” Darrah v. Krisher, 865 F.3d 361, 368 (6th Cir. 2017) 

(quoting Farmer, 511 U.S. at 837). This requires the Court to determine whether the official was 

“subjectively reckless, such that she was actually aware of facts from which the inference could 

be drawn that a substantial risk of serious harm existed, and also drew the inference.” Bays v. 

Montmorency Cty., 874 F.3d 264, 268 (6th Cir. 2017) (citation, quotation marks, and alterations 

omitted). “A plaintiff may rely on circumstantial evidence to prove subjective recklessness.” 

Rhinehart, 894 F.3d at 738.

Here, Plaintiff generally asserts that he was denied access to medical care but cites no 

evidence of a single defendant denying him access to medical care or otherwise demonstrating 

deliberate indifference to a serious medical need. And despite her best efforts reviewing the 

exhibits submitted by Plaintiff, the Undersigned has not been able to identify any such evidence 

either. Because Plaintiff has not demonstrated that any individual defendant denied him access to 

medical care, his deliberate indifference claim fails as a matter of law. See Heyerman, 680 F.3d 

at 647 (citations omitted) (“Persons sued in their individual capacities under § 1983 can be held 

liable based only on their own unconstitutional behavior.”).
9

D. Conditions of Confinement

In his Amended Complaint, Plaintiff appears to allege an unlawful conditions-ofconfinement claim. (Doc. 8-1 at 9 (“[I] had no contact with the outside world. I was in a singleman cell for 23 hours a day. was not allowed to have books writing utensils or paper. was only 

allowed to write letters when I was let out for my 1 hour a day for a shower ... I was not allowed 

to call my family or get visits.”).2

 The conditions Plaintiff complains of are examples of the 

“routine discomfort” prisoners experience while incarcerated. Hudson v. McMillian, 503 U.S. 1, 

9 (1992). Because “extreme deprivations,” rather than routine discomfort, “are required to make 

out a conditions-of-confinement claim,” Plaintiff’s claim cannot survive summary judgment here. 

Id. (citation and quotations omitted).

Moreover, to establish a claim for damages under the Eighth Amendment, a plaintiff must 

demonstrate some type of physical injury. See Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010) 

(“[E]ven though the physical injury required by § 1997e(e) for a § 1983 claim need not be 

significant, it must be more than de minimis for an Eighth Amendment claim to go forward.”). 

And Plaintiff has not presented, and the Undersigned has not identified, evidence of a physical 

injury caused by his conditions of confinement at the Jail. 

E. Excessive Force

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

from the unnecessary and wanton infliction of pain.” Rafferty v. Trumbull Cty., Ohio, 915 F.3d 

1087, 1093 (6th Cir. 2019) (quoting Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th 

 2 In his Motion for Summary Judgment, Plaintiff attempts to add a conditions-of-confinement claim based on alleged 

unsanitary conditions and being denied access to water. (See Doc. 43 at 3, 8, 11). But Plaintiff cannot use the summary 

judgment process to bring claims that were never raised in his Amended Complaint. Heru v. Ohio, No. 2:17-CV-658, 

2019 WL 4413041, at *2 (S.D. Ohio Sept. 16, 2019) (citing Tucker v. Union on Needletrades, Indus. & Textile Emps., 

407 F.3d 784, 788 (6th Cir. 2005); Hubbard v. Select Portfolio Servicing, Inc., No. 16-CV-11455, 2017 WL 3725475, 

at *3 (E.D. Mich. Aug. 30, 2017), aff’d, 736 F. App’x 590 (6th Cir. 2018), reh’g denied (June 28, 2018)). The 

Undersigned, therefore, addresses only those claims that were pled in the Amended Complaint.
10

Cir. 2013)). “To make out a claim under the Eighth Amendment, the prisoner must satisfy both 

an objective and a subjective component.” Rafferty, 915 F.3d at 1094 (quoting Williams v. Curtin, 

631 F.3d 380, 383 (6th Cir. 2011)). “The objective component requires the pain inflicted to be 

sufficiently serious.” Rafferty, 915 F.3d at 1094 (citation and quotations omitted). This inquiry is 

“contextual and responsive to ‘contemporary standards of decency.’” Hudson, 503 U.S. at 8 

(quoting Estelle, 429 U.S. at 104). 

“The subjective component requires that the prison official act with a ‘sufficiently culpable 

state of mind.’” Rafferty, 915 F.3d at 1094 (quoting Farmer, 511 U.S. at 834). In analyzing this 

component, courts ask “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. In determining 

“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 

and sadistically to cause harm,” courts consider a number of factors, including: (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. (citation and 

quotations omitted). 

The extent of a plaintiff’s injury is relevant to analyzing an excessive force claim under the 

Eighth Amendment: It “is one factor that may suggest whether the use of force could plausibly 

have been thought necessary in a particular situation,” and it “may also provide some indication 

of the amount of force applied.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).

[N]ot every malevolent touch by a prison guard gives rise to a federal cause of 

action. The Eighth Amendment’s prohibition of cruel and unusual punishments 

necessarily excludes from constitutional recognition de minimis uses of physical 

force, provided that the use of force is not of a sort repugnant to the conscience of 

mankind. An inmate who complains of a push or shove that causes no discernible 

injury almost certainly fails to state a valid excessive force claim. 
11

Id. 37–38 (internal citations and quotations omitted). But “[i]njury and force, however, are only 

imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously 

beaten by guards does not lose his ability to pursue an excessive force claim merely because he 

has the good fortune to escape without serious injury.” Id. at 38. Indeed, contemporary standards 

of decency are always violated when prison officials maliciously and sadistically use force to cause 

harm. Hudson, 503 U.S. at 9.

Ultimately, whether a defendant’s use of force is excessive is a fact intensive inquiry. See

Hudson, 503 U.S. at 7 (discussing factors for courts to consider). Lower courts’ decisions 

demonstrate as much. See, e.g., Alspaugh v. McConnell, 643 F.3d 162, 168–69 (6th Cir. 2011)

(finding genuine issue of material fact as to whether prison officials applied force maliciously and 

sadistically to cause harm where parties disputed whether prisoner was resisting when two 

correctional officers beat him); Griffin v. Hardrick, 604 F.3d 949, 954–56 (6th Cir. 2010)

(concluding, under the Due Process clause, that correctional officer’s leg sweep that resulted in a 

pre-trial detainee fracturing her tibia was not excessive where pretrial detainee “was acting in a 

noncompliant manner” and “was clearly struggling against” correctional staff); Goudlock v. Dana 

Blankenship, No. 1:13-CV-1215, 2016 WL 3668008, at *6 (N.D. Ohio July 11, 2016), aff’d sub 

nom. Goudlock v. Blankenship, No. 16-3879, 2017 WL 7116970 (6th Cir. Sept. 12, 2017) (citation 

and quotations omitted) (collecting cases) (“Even assuming that defendants used some force 

against plaintiff after he was handcuffed, plaintiff has produced no evidence of a discernible injury. 

In the absence of any evidence of a discernible injury, plaintiff cannot show that defendants’ use 

of force was more than de minimis, and no reasonable jury could conclude based upon the 

undisputed facts that the pain and suffering inflicted by defendants was sufficiently serious to 

offend contemporary standards of decency.”). The Undersigned has therefore carefully reviewed 
12

the factual record, including the parties’ affidavits and deposition testimony, Plaintiff’s medical 

records, video and photographic evidence, and the contemporaneous reports of correctional staff.

Here, Plaintiff alleges that Defendants violated his right to be free from excessive force on 

five separate occasions.3 Because excessive force is a fact intensive inquiry, the Undersigned 

addresses each of them separately.

4

1. December 31, 2017

On December 31, 2017, Plaintiff alleges that Defendants Patterson and Martin assaulted 

him while he was changing in his cell after showering. (Doc. 8-1 at 1). Plaintiff was on lockdown 

at that time and was permitted one hour of recreation, during which he went to shower. (Doc. 39-

3, ¶¶ 4–6). A video of Plaintiff’s cell block shows that Plaintiff returned to the cell block and 

opened what appears to be a janitorial closet. (See Doc. 47, File Name DVR 

4_06_20171231_181547, 20:59 (hereinafter, “December 31 Video”)). Plaintiff then proceeded to 

pour water onto the cell block floor, creating a standing pool of water in the common area. (Id., 

21:00–21:34). For the next 30 to 40 seconds, he collected shredded paper from his cell and threw 

it in that standing pool of water. (Id., 21:35–22:15).

As correctional staff approached the cell block, Plaintiff attempted to hold the door to the 

common area closed. (Id., 22:16–22:37). After correctional staff entered the common area, 

 3 Plaintiff’s Amended Complaint alleges excessive force based on these five specific alleged incidents of excessive 

force. (See generally Docs. 8, 8-1, 18). But in his Motion for Summary Judgment (Doc. 43) and related briefing 

(Doc. 61), Plaintiff attempts to raise additional claims of excessive force based on other physical altercations with 

Defendants that were not included in the Amended Complaint. The law does not permit him to do so. See Heru, 

2019 WL 4413041, at *2. The Undersigned, therefore, addresses only those claims that were pled in the Amended 

Complaint.

4 As Defendants note, “[i]n his original complaint, Mr. Brevaldo alleges that two incidents occurred on January 14, 

2018 and another on January 15, 2018,” but “the two incidents described in Plaintiff’s original complaint as occurring 

on January 14 actually occurred on January 15, 2018, and the incident he alleges occurred on January 15 actually 

occurred on January 16, 2018.” (Doc. 39 at 8 n.4). This resulted in some confusion at Plaintiff’s deposition. (See 

generally Doc. 41). The parties’ respective Motions for Summary Judgment and related briefs, nonetheless, use the 

dates identified by Defendants, and the Undersigned has done the same. 
13

Plaintiff returned to his cell. (Id., 22:38–23:08). Correctional staff worked to clean up the common 

area, with Plaintiff occasionally throwing paper out of his cell through the open tray into the pool 

of standing water. (Id., 23:09–40:29). 

Defendants Patterson and Martin then approached Plaintiff’s cell and, after a brief 

conversation, attempted to open it. (Id., 40:30–40:57). Based on the video footage, Plaintiff 

appears to attempt to hold the door shut, resulting in a struggle between the three men. (Id., 40:58–

41:23). Defendants Patterson and Martin overpowered Plaintiff, opened the door, and entered the 

cell. (Id., 41:24–41:26). 

Plaintiff alleges that what happened next inside the cell amounted to excessive force. In 

support of his claim, he relies on the narrative reports of correctional staff, including Defendants 

Patterson and Martin. (See Doc. 43 at 9–11 (citing Doc. 43-6)). But these narrative reports 

contradict, rather than corroborate, Plaintiff’s claim of excessive force. (See generally Doc. 43-

6). Consistent with their affidavits, (Docs. 39-3, 39-4), Defendants Patterson and Martin reported 

that they used force to restrain Plaintiff, who had disobeyed direct verbal commands, physically 

resisted being restrained, attempted to bite Deputy Martin, and threatened to kill them, (Doc. 43-6 

at 3–4, 6–7). 

Although Plaintiff does note cite it in his brief, the only evidence in the record that could 

support his claim of excessive force against Defendants Patterson and Martin is his deposition 

testimony. He testified that he did not resist Defendants Patterson and Martin trying to restrain 

him, (Doc. 41, 16:5–21; id., 18:20–22), but they nonetheless struck him in the head with closed 

fists, (id., 10:1–2). As a result of that blow, Plaintiff reported “having a head injury and being 

nauseous and puking and throwing up.” (Id., 20:17–21:30).
14

On the record before the Court, Plaintiff cannot satisfy the objective component of an 

Eighth Amendment excessive force claim. Here, other than his vague, self-serving deposition 

testimony, the record does not support a finding that the force used was “repugnant to the conscious 

of mankind,” Wilkins, 559 U.S. at 38 (citation and quotations omitted). There is no evidence that 

Plaintiff suffered a discernible injury as a result of Defendants Patterson’s and Martin’s use of 

force. After the alleged assault occurred, the December 31 Video shows Plaintiff in handcuffs 

walking out of his cell unaided with correctional staff controlling his arms. (December 31 Video, 

56:34–56:46). Further, he appears uninjured in the video, (id.), which photos taken after the 

alleged assault corroborate, showing Plaintiff red in the face and ears and with a small potential 

contusion on his upper left forehead, (Doc. 47, File Name DSCF4138–DSCF4141 (collectively, 

the “December 31 Pictures”)). Despite being a frequent user of the Jail’s medical services, his 

medical records show that he did not seek treatment after the December 31 incident. (See Doc. 

39-13 at 18 (reflecting medical treatment on December 19, 2017 and January 5, 2018)). And when 

Plaintiff did request medical treatment five days after the December 31 incident, he complained 

about a small, red bump on his neck, not a head injury, nausea, or vomiting from the alleged 

assault. (See id.). 

“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). Because the record blatantly contradicts Plaintiff’s assertion that he was subject to 

more than de minimis force, Defendants Patterson and Martin are entitled to summary judgment 

here. See Hernandez v. Simmons, No. 3:15-CV-00954, 2018 WL 4566823, at *12–13 (M.D. Tenn. 

Sept. 21, 2018), appeal dismissed, No. 18-6293, 2019 WL 2446988 (6th Cir. Feb. 7, 2019)
15

(“Hernandez does not offer any medical records documenting his injuries or any treatment; nor is 

there any evidence of his injuries other than his own descriptions. The only other evidence that 

speaks to the pain Hernandez suffered, therefore, is the video, which unmistakably contradicts 

Hernandez’s claims of injury ... Because he has failed to offer any evidence to substantiate his 

claimed injuries, there are no triable issues of fact regarding the objective component of 

Hernandez’s Eighth Amendment claim.”); Goudlock, 2016 WL 3668008, at *6 (citation and 

quotations omitted) (collecting cases) (“Even assuming that defendants used some force against 

plaintiff after he was handcuffed, plaintiff has produced no evidence of a discernible injury. In the 

absence of any evidence of a discernible injury, plaintiff cannot show that defendants’ use of force 

was more than de minimis, and no reasonable jury could conclude based upon the undisputed facts 

that the pain and suffering inflicted by defendants was sufficiently serious to offend contemporary 

standards of decency.”); Rogers v. Shostak, No. 1:14CV213, 2015 WL 3604057, at *9 (S.D. Ohio 

June 5, 2015) (“Thus, accepting as true plaintiff’s sworn deposition testimony that defendant used 

force against him on September 11, 2013, by punching him hard in the chest and pushing him back 

into his bed, plaintiff has nonetheless failed to produce sufficient evidence to establish his Eighth 

Amendment claim. The evidence shows that defendant’s actions constituted a de minimis use of 

force which caused plaintiff to suffer no discernible injury requiring medical treatment of any kind. 

Accordingly, there is no genuine issue of material fact and defendant is entitled to summary 

judgment on plaintiff’s Eighth Amendment claim as a matter of law.”); Batey v. Cty. of Allegan, 

No. 1:00-CV-450, 2002 WL 34729343, at *8 (W.D. Mich. Mar. 14, 2002) (concluding that “[a]

de minimis injury ... suggests that any use of force by defendants was de minimis” and granting 

defendants’ motion for summary judgment where plaintiff “provided nothing but his own word 

that he was beaten” and “offered no medical evidence to support his allegation”); accord Wilkins, 
16

559 U.S. at 38 (citation and quotations omitted) (“An inmate who complains of a push or shove 

that causes no discernible injury almost certainly fails to state a valid excessive force claim.”).

2. January 13, 2018

Plaintiff’s excessive force claim regarding the events of January 13, 2018, is different. On 

that day, Plaintiff was still on lockdown because of his actions on December 31, 2017. (Doc. 41, 

26:23–27:4). During his hour of recreation, Plaintiff got into an altercation with Defendants 

Martin, Smith, and Hanning about Plaintiff’s ability to communicate with his family and his desire 

to speak with Defendant Suciu. (Id., 26:2–14). Defendant Smith instructed Plaintiff to return to 

his cell, (Doc. 39-3, ¶¶ 42–45), but he refused, saying he “wasn’t going anywhere until they left 

the dorm behind the gate where [he] could safely walk into [his] cell,” (Doc. 41, 27:21–24). 

At some point, Plaintiff climbed under the table in the cell block’s common area in an 

attempt to avoid being returned to his cell. The parties dispute what happened next. Defendants 

maintain that Plaintiff physically resisted their attempts to return him to his cell and, once in his 

cell, continued to resist their efforts to subdue him, requiring them to use, among other instances 

of force, three closed fist strikes to Plaintiff’s head. (See Doc. 39-3, ¶¶ 40–65; Doc. 39-5, ¶¶ 3–

17; Doc. 39-6, ¶¶ 3–32). Plaintiff, however, contends that they “rushed” him into his cell where 

Defendants Martin and Smith assaulted him while Defendant Hanning watched. (Doc. 41, 26:16–

22). According to Plaintiff, Defendants kicked him in his temple and ribs and punched him in the 

eye so hard that it “split the skin.” (Id., 35:6–11). 

Although the amount of force used is disputed, at the very least, Plaintiff was struck in the 

head multiple times. Medical records confirm that he sought treatment after the incident, and 

medical staff noted three knots on his right forehead with swelling and bruising. (Doc. 39-13 at 

15).
17

There is a genuine issue of material fact as to whether Defendants applied force “in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” 

Wilkins, 559 U.S. at 37 (citation and quotations omitted). In Plaintiff’s version of events, he was 

not resisting Defendants Martin and Smith when they “assaulted” him in his cell. (Doc. 41, 26:16–

22). A rational trier of fact could conclude that kicking and punching an inmate who was not 

resisting or otherwise interfering with prison discipline was done maliciously and sadistically to 

cause harm. See Alspaugh, 643 F.3d at 168–69 (finding genuine issue of material fact as to whether 

prison officials applied force maliciously and sadistically to cause harm where parties disputed 

whether prisoner was resisting when two correctional officers beat him). And, despite Defendants’ 

argument to the contrary, (see Doc. 39 at 18–19), even if Plaintiff’s injuries were not serious, that

does not change this conclusion because the Supreme Court has told us so. See Wilkins, 559 U.S. 

at 38; Hudson, 503 U.S. at 9.

On the other hand, a rational trier of fact believing Defendants’ version of events, could 

conclude that Plaintiff was resisting Defendants Martin’s and Smith’s orders and that the force 

used to restrain Plaintiff was applied to restore prison discipline and, therefore, not excessive under 

the circumstances. See Griffin, 604 F.3d at 954–56 (concluding, under the Due Process clause, that 

correctional officer’s leg sweep that resulted in a pre-trial detainee fracturing her tibia was not 

excessive where pretrial detainee “was acting in a noncompliant manner” and “was clearly 

struggling against” correctional staff); see also Hudson, 503 U.S. at 7 (citation and quotations 

omitted) (instructing courts to consider a number of factors, including: “the need for application 

of force,” “the relationship between that need and the amount of force used,” and “the threat 

reasonably perceived by the responsible officials”). A jury, and not the Undersigned, must resolve 

this factual dispute. 
18

Finally, Plaintiff’s Eighth Amendment claim against Defendant Hanning fails as a matter 

of law. Plaintiff admits that Defendant Hanning did not use physical force against him. (See Doc. 

31, 26:22 (“Hanning stood there and watched.”)). And Plaintiff cites no evidence and makes no 

argument to support a failure to intervene claim against Defendant Hanning. Defendant Hanning 

cannot be liable for the actions of other individuals. See Heyerman, 680 F.3d at 647 (citations 

omitted) (“Persons sued in their individual capacities under § 1983 can be held liable based only 

on their own unconstitutional behavior.”). He is, therefore, entitled to summary judgment.

3. January 15, 2018 (Booking Cell Incident)

Several days later, Plaintiff had another physical altercation with correctional staff. On 

that day around 2:00 PM, Plaintiff was in a booking cell with fellow inmate Donovan Harris. (Doc. 

39-8 at 2). Plaintiff was “[b]eing loud and obnoxious, talking through the slot.” (Doc. 41, 40:21–

24). Defendant Smith attempted to open the door to the booking cell and “to place a mat into” the 

cell for Mr. Harris. (Doc. 39-8 at 2). Plaintiff then approached Defendant Smith in an aggressive 

manner. (Id.). A struggle then ensued between Defendant Smith and other correctional staff and 

Plaintiff. Plaintiff would “not let[] them come in the cell” and would not “get[] out of the way” to 

prevent the cell door from opening. (Doc. 41, 40:2–10). He acknowledged that correctional staff 

“could have possibly got hurt trying to come in the cell” because of his actions and that “[he] could 

have got hurt for them trying.” (Id., 40:11–15). In short, Plaintiff admits that he resisted 

Defendants’ efforts to maintain institutional discipline and that Defendants were compelled to use 

force as a result.

Given Plaintiff’s admitted resistance, the Undersigned concludes that Defendants’ use of 

force was not excessive under the circumstances. Here, the record shows that Defendants needed 

to use force to subdue Plaintiff because he had just approached Defendant Smith in an aggressive 
19

fashion and, as Plaintiff admits, he resisted Defendants’ attempts to open his cell door. Further, 

Plaintiff suffered little, if any, injury as a result of Defendants’ alleged actions. He did not seek 

medical treatment the day of the altercation, and when he was seen the following morning, he 

complained of pain in his left wrist and stated he thought he had a blood clot. (Doc. 39-13 at 14). 

Indeed, the record confirms that he had “good” range of motion and no swelling, redness, or 

bruising. (Id.). Under these circumstances, the Undersigned finds that no rational trier of fact 

could conclude that Plaintiff was subjected to excessive force. Defendants Hartman, Smith, and 

Lang are, therefore, entitled to summary judgment as to this claim of excessive force.

5

4. January 15, 2018 (Phone Call Incident)

Later that day, Plaintiff was placed on suicide watch and brought down to the booking area. 

(Doc. 41, 43:3–11). Because Plaintiff was on lockdown, he was not permitted to use the phone 

without permission. (Id., 43:20–23). That evening, he requested to use the phone, and correctional 

staff denied his request. (Id., 44:8–14). Despite that denial, the video shows Plaintiff proceeding 

to sit down on a bench and use the phone in the booking area. (See Doc. 47, File Name DVR 

1_04_20180115_180011, 1:53–58 (hereinafter, “January 15 Video”)). 

Shortly thereafter, correctional staff noticed Plaintiff using the phone and appeared to 

instruct him to get off the phone. (Id., 1:59–2:03). Sergeant Winters emerged from his office and 

approached Plaintiff. (Id., 2:04–07). He then attempted to take the phone from Plaintiff, who 

refused to hang up. (Id., 2:08–13). 

 5 In his Complaint, Plaintiff identified Defendants Hartman and Lang as being liable for excessive force related to this 

incident. (Doc. 8-1 at 3). Additionally, in his Motion for Summary Judgment, he identified Defendant Smith as being 

involved in this incident. (Doc. 43 at 16). Plaintiff failed to identify any additional Defendants against whom he 

intended to bring this claim, but they are entitled to summary judgment for the same reason. 
20

After Plaintiff resisted Sergeant Winters’ attempts to hang up, Sergeant Winters pulled him 

off the bench onto the floor. (Id., 2:14–16). At that point, four additional correctional staff 

members responded and assisted Sergeant Winters in restraining Plaintiff on the floor. (Id., 2:17–

3:32). While they restrained Plaintiff, one staff member removed a restraint chair from a cell. (Id., 

3:33–57). They then worked to restrain Plaintiff in that chair. (Id., 3:57–6:21). 

What is not clear from the available video footage6 is the type and amount of force 

Defendants used in subduing Plaintiff and whether Plaintiff was resisting or otherwise interfering 

with prison discipline at the time that force was applied.

7

 Plaintiff asserts that Defendant Winters 

tackled him to the ground “and punched [him] in the face multiple times until [he] blacked out.” 

(Doc. 41, 42:14–24). Specifically, he alleges Defendant Winters punched him “[a] good three to 

six times” and that “someone kicked him” as well. (Id., 45:19–23). Further, he alleges that, after 

he blacked out, he “was placed in a restraint chair and pushed into a cell where [he] was shocked 

with a stun gun multiple times.” (Id., 42:14–24). 

In contrast, Defendants assert that Plaintiff refused their commands to hang up the phone 

and continued to resist their commands when he was pulled to the ground by Defendant Winters. 

(Doc. 39-9, ¶¶ 9–15). Because Plaintiff continued to resist, Defendant Winters “gave him a tactical 

knee strike in the midsection of his right side” and was then “able to gain control ... and place 

[Plaintiff] in handcuffs.” (Id., ¶¶ 16–17). Plaintiff, nonetheless, continued to resist being placed 

in the restraint chair and repeatedly threatened Defendant Winters. (Id., ¶¶ 18–19). After being 

placed in the restraint chair, Defendants moved Plaintiff to a cell, where he subsequently “got[] 

 6 Defendants also submitted a video of the incident taken from a different angle, but it is similarly inconclusive. (See

Doc. 47, File Name DVR 1_06_20180115_180006).

7 The January 15 Video does appear to show Plaintiff agitated, yelling, and/or resisting as correctional staff try to 

place him in the restraint chair. (See, e.g., January 15 Video, 4:50–56). But those instances do not appear to involve 

the use of force that is the basis of Plaintiff’s excessive force claim. 
21

out of the restraint chair.” (Id., ¶¶ 20–21). Defendant Winters and other correctional staff entered 

the cell and instructed Plaintiff to return to the restraint chair. (Id., ¶ 24). Plaintiff refused and 

resisted their efforts to return him to the restraint chair, (id., ¶¶ 25–27); as a result, Officer 

Catherine Morris, a non-defendant, used her taser to conduct “a drive stun” to Plaintiff’s left arm, 

(Doc. 39-10, ¶¶ 18–19).

The record is inconclusive as to what, if any, injury Plaintiff suffered as a result of this 

incident. He sought medical treatment the following morning, complaining of pain to his left wrist. 

(Doc. 39-13 at 14). From the available video, it is not possible to determine what, if any, injury 

Plaintiff suffered, and there do not appear to be any photographs of Plaintiff after the incident.

Based on the competing factual narratives, there is a genuine issue of material fact as to 

whether Defendant Winters’ use of force was excessive under the circumstances. See Alspaugh, 

643 F.3d at 168–69 (finding genuine issue of material fact as to whether prison officials applied 

force maliciously and sadistically to cause harm where parties disputed whether prisoner was 

resisting when two correctional officers beat him). And, again, even if Plaintiff was not seriously 

injured, that alone does not foreclose his excessive force claim. See Wilkins, 559 U.S. at 38; 

Hudson, 503 U.S. at 9.

However, to the extent Plaintiff seeks to hold Defendant Winters liable for Officer Morris’ 

use of a taser, he cannot do so. Defendants have presented undisputed evidence that Officer 

Morris, not Defendant Winters, used a taser against Plaintiff on the evening of January 15, 2018, 

(Doc. 39-9, ¶ 28; Doc. 39-10, ¶¶ 18–19), and Plaintiff admits as much, (see Doc. 43 at 17–18 

(quoting Officer Morris’ narrative report regarding her use of a taser on Plaintiff)). Officer Morris 

is not a defendant in this action, and Defendant Winters cannot be held liable for her actions, see

Heyerman, 680 F.3d at 647 (citations omitted) (“Persons sued in their individual capacities under 
22

§ 1983 can be held liable based only on their own unconstitutional behavior.”). Defendant Winters 

is, therefore, entitled to summary judgment as to any claim of excessive force related to Officer 

Morris’ use of a taser on January 15, 2018.

5. January 16, 2018

Plaintiff’s last excessive force claim is based on the events of the following day. At that 

time, Plaintiff was housed in a cell in the booking area where he banged on the door and repeatedly 

called for medical attention. (Doc. 47, File Name DVR 1_07_20180116_133148, 0:01–3:48 

(hereinafter, “January 16 Video”)). After several minutes of this, correctional staff gathered 

around Plaintiff’s cell with a restraint chair. (Id., 3:49–4:31). A number of Defendants directed 

him to move away from the cell door so that they could enter the cell. (Id., 4:32–4:57). A struggle 

between Plaintiff and those Defendants ensued as they attempted to open the cell door. (Id., 4:58–

5:16). The January 16 Video does not show what happened next inside the cell. The video’s audio

records what sounds like a physical altercation inside the cell, including the use of a taser. (Id., 

5:17–58); id., 5:38–40 (audio of what sounds like the use of a taser and Plaintiff’s reaction to the 

same)).

The parties dispute what occurred inside the cell. Plaintiff testified that Defendants Fuller, 

Lang, and Hartman burst into the cell and assaulted him. (Doc. 41, 37:13–24; id., 38:17–20). After 

punching and kicking him, someone told Plaintiff “to cuff up,” and he proceeded to “put [his] hand 

behind [his] back.” (Id., 38:21–23). Despite complying with Defendants’ command, Defendant 

Lang said “shoot him” at which time Defendant Fuller “shot [him] in the back with the Taser” and 

laughed at him. (Id., 38:23–39:2). Defendant Fuller then deployed the Taser again and told 

Plaintiff to “enjoy that.” (Id., 39:2–4).
23

Defendants’ account, not surprisingly, is radically different. According to them, Plaintiff 

resisted their commands to let go of the door and physically confronted them when they entered 

the cell. (Doc. 39-12, ¶¶ 6–9). After Deputy Fuller tackled Plaintiff to the floor, Plaintiff resisted 

their attempts to restrain him, kicking out at Defendants and attempting to hold on to Defendant 

Hartman’s ankle. (Doc. 39-7, ¶¶ 16–19). Defendant Hartman kicked Plaintiff once in the chest to 

get him to release his ankle, and Defendant Fuller deployed his taser as Plaintiff pulled at Deputy 

Hartman and continued to kick out at Defendants. (Id., ¶¶ 20–21; Doc. 39-12, ¶¶ 15–16). Plaintiff 

did not comply with Defendants’ commands until Defendant Fuller used his taser. (Doc. 39-12, 

¶¶ 17).

After the incident, Plaintiff received medical treatment from three E.M.T.s who removed 

the taser barbs and evaluated Plaintiff. (Id., ¶ 19). Photos taken after the incident show Plaintiff 

with two open wounds on his back as a result of him being tased, a laceration across the back of 

his head, and a bloodied ear. (Doc. 47, File Name DSCF4230–DSCF4232). 

Construing the evidence in the light most favorable to Plaintiff, there is a genuine issue of 

material fact as to whether Defendants Fuller’s, Lang’s and Hartman’s use of force was excessive 

under the circumstances. See Alspaugh, 643 F.3d at 168–69 (finding genuine issue of material fact 

as to whether prison officials applied force maliciously and sadistically to cause harm where 

parties disputed whether prisoner was resisting when two correctional officers beat him); Colvin 

v. Heyns, No. 1:15-CV-70, 2018 WL 1069449, at *7 (W.D. Mich. Feb. 26, 2018), appeal 

dismissed, No. 18-1290, 2019 WL 1224689 (6th Cir. Jan. 4, 2019) (holding that there was a 

genuine issue of material fact as to whether the defendants applied force maliciously and 

sadistically to cause harm where parties disputed whether prisoner was resisting when the 

defendants tased him). And the Undersigned again rejects Defendants’ argument that because 
24

Plaintiff’s injuries were not “serious,” he has no claim See Wilkins, 559 U.S. at 38; Hudson, 503 

U.S. at 9.

Finally, Defendants’ Motion to Strike (Doc. 59) is DENIED as moot. The Undersigned 

was able to resolve the parties’ Motions for Summary Judgment without referring to the 

Interrogatory Responses (Doc. 43-13) submitted by Plaintiff that are the subject of Defendants’ 

Motion. 

F. Qualified Immunity

Defendants maintain that they are entitled to qualified immunity because, “[a]fter viewing 

all the evidence presented herein, there is no evidence that a constitutional violation occurred.” 

(Doc. 39 at 21). But as the Undersigned has explained above, there is a genuine issue of material 

fact as to whether at least some of the individual Defendants’ actions constituted excessive force 

in violation of the Eighth Amendment. Until a jury resolves those factual disputes, those 

Defendants are not entitled to qualified immunity.

G. Miscellaneous Claims

In his Amended Complaint and Motion for Summary Judgment, Plaintiff states his 

intention to sue under various provisions of the Ohio Revised Code. (See Doc. 18, ¶¶ 4(a)-(c) 

(citing O.R.C. §§ 2921.03, 2921.44, 5120-9-01); Doc. 43 (citing O.R.C. § 2921.03)). But these 

provisions appear to be either state criminal statutes (O.R.C. §§ 2921.03, 2921.44) or statutes 

without a private right of action (O.R.C. § 5120-9-01). Moreover, Plaintiff makes no argument 

and cites no evidence in support of any potential claims under these statutes. Defendants are 

entitled to summary judgment on these claims as a result.
25

H. Service

In their Motion for Summary Judgment, Defendants argue that Defendants Martin, Smith, 

Hanning, Hartman, Fuller, Patterson, Lang, and Winters should be dismissed from this lawsuit 

based on Plaintiff’s alleged failure to serve them with the original or amended complaints. (Doc. 

39 at 13). The Federal Rules provide that, “[i]f a defendant is not served within 90 days after the 

complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss 

the action without prejudice against that defendant or order that service be made within a specified 

time.” Fed. R. Civ. P. 4(m). If, however, “the plaintiff shows good cause for the failure, the court 

must extend the time for service for an appropriate period.” Id. 

On November 6, 2018, the Undersigned issued a Report and Recommendation 

recommending granting Defendants’ Motion to Dismiss, but also recommending granting Plaintiff 

30 days in which to file an amended complaint. (See Doc. 17). Shortly after the issuance of the 

Report and Recommendation, and before the District Court Judge assigned to the case adopted it, 

Plaintiff filed an Amended Complaint purporting to add Defendants Martin, Smith, Hanning, 

Hartman, Fuller, Patterson, Lang, and Winters as defendants in this action. (See Doc. 18). As 

reflected in a November 16, 2018, staff note on the docket, Plaintiff submitted service documents 

to the Clerk’s Office to be served on those proposed new defendants. Due to a clerical error, and 

through no fault of Plaintiff, when the District Court Judge assigned to the case adopted the Report 

and Recommendation (see Doc. 20), the Clerk’s Office did not serve the Amended Complaint on 

those new defendants.

Because Plaintiff was not responsible for the failure to serve Defendants in this action, and 

because Defendants are represented by the same counsel, the Undersigned recommends that, if the 

District Court Judge permits any claims to go forward against Defendants, that the Clerk’s Office 
26

be instructed to effect service of process on the relevant Defendants. See Fed. R. Civ. P. 4(m) 

(providing that, if good cause is shown for failure to effect service of process, “the court must 

extend the time for service for an appropriate period”).

IV. CONCLUSION

For the foregoing reasons, the undersigned RECOMMENDS that Defendants’ Motion for 

Summary Judgment (Doc. 39) be GRANTED in part and DENIED in part and that Plaintiff’s 

Motion for Summary Judgment (Doc. 43) be DENIED. Specifically, the Undersigned 

RECOMMENDS that Plaintiff be permitted to proceed with his excessive force claims against:

• Defendants Martin and Smith for their alleged actions on January 13, 2018;

• Defendant Winters for his alleged actions on January 15, 2018; and

• Defendants Fuller, Lang, and Hartman for their alleged actions on January 16, 2018

The Undersigned RECOMMENDS that summary judgment be entered in favor of Defendants on 

all remaining claims. Further, Defendants’ Motion to Strike (Doc. 59) is DENIED as moot. 

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those specific 

proposed findings or recommendations to which objection is made, together with supporting 

authority for the objection(s). A judge of this Court shall make a de novo determination of those 

portions of the report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may recommit 

this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). Failure to object to 

the Report and Recommendation will result in a waiver of the right to have the district judge review 
27

the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 

U.S. 140, 152–53 (1985).

 IT IS SO ORDERED.

Date: January 17, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE