UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

IZELL BROWN, JR., 

 Plaintiff, 

v. 

T. FRANCIS VENABLE, 

 Defendant. 

Civil Action 2:18-cv-569 

Judge George C. Smith 

Magistrate Judge Chelsey M. Vascura 

REPORT AND RECOMMENDATION 

Plaintiff, Izell Brown, Jr. (“Plaintiff”), an Ohio state prison inmate, brings this action 

under 42 U.S.C. § 1983 against Defendant Travis Venable,1 a Captain at the Madison 

Correctional Institution, for use of excessive force in violation of the Eighth Amendment. Both 

parties have moved for summary judgment. (ECF Nos. 40, 49.) For the reasons that follow, it is 

RECOMMENDED that both Motions for Summary Judgment be DENIED. 

I. BACKGROUND 

The initial facts are undisputed. On April 9, 2018, Plaintiff was under “constant watch” 

in the Madison Correctional Institution’s infirmary as a result of self-injurious behavior. That 

morning, Plaintiff began banging his head against the door of his cell. After he refused orders to 

stop, Corrections Officer Floyd Detty sprayed Plaintiff with oleoresin capsicum (“OC” or pepper 

spray), but the spray missed Plaintiff’s face. Plaintiff was then escorted from his cell to the 

 

1

 Although Plaintiff named “T. Francis Venable” as the defendant, Mr. Venable states that his name is Travis 

Venable and that “Francis” is not part of his name. (Def.’s Mot. for Summ. J. 1, ECF No. 49.) 
2 

infirmary treatment room by Officer Detty, Captain Venable, and Corrections Officer Ahmed 

Camara. Plaintiff was decontaminated from the OC spray but otherwise refused medical 

treatment. Plaintiff was then escorted back to his cell. (See Pl.’s Dep. 12–17, ECF No. 51; Detty 

Dec. 2, ECF No. 49, PAGEID #283; Camara Dec. 2, ECF No. 49, PAGEID #279; Venable Dec. 

3, ECF No. 49, PAGEID #273.) Plaintiff does not challenge the use of force in connection with 

the OC spray or the subsequent escort to and from the treatment room. 

After returning to his cell, Plaintiff admits he began smearing feces on the door of his 

cell, which obstructed the officers’ view. Captain Venable then ordered Officer Detty to access 

the door. (Pl.’s Dep. 17–18, ECF No. 51.) From here, the parties’ accounts diverge. 

A. Plaintiff’s Account of the Force in Question 

According to Plaintiff, only Detty entered his cell and, although Plaintiff initially refused 

to offer his hands for cuffing, he gave no physical resistance and Detty was able to handcuff him 

without any use of force. (Id. at 18–19.) Venable, Detty, and Camara then escorted him back to 

the infirmary treatment room. During the walk back to the treatment room, Plaintiff contends 

that Captain Venable made verbal threats to him, stating that “[Venable was] tired of dealing 

with [Plaintiff]” and that “[Venable] wished that [Plaintiff would] do something to give 

[Venable] a reason to do—to pound [Plaintiff’s] face in.” (Id. at 20–21.) Plaintiff did not say 

anything threatening to Venable in response, but Plaintiff admits he was trying to pull away from 

Venable and asked for a different supervisor to be present. (Id.) 

After arriving back in the treatment room, Captain Venable ordered Plaintiff to sit down 

in a chair. Plaintiff verbally refused: “I told him fuck off, I’m not sitting down in that chair.” 

(Id. at 22.) After he refused three orders to sit down, Plaintiff asserts that Captain Venable 

punched him in the face. (Id. at 23.) Plaintiff reports that he lost consciousness for a few 

seconds, but was still standing when he regained consciousness. (Id. at 23–24.) After that, 
3 

Captain Venable “took [Plaintiff] to the ground, but he lift[ed Plaintiff] right back up.” (Id. at 

24.) Plaintiff believes Captain Venable used a front-leg sweep to bring him close to the ground, 

but that Plaintiff never actually hit the ground because Captain Venable was still holding onto 

Plaintiff’s arm. (Id. at 25–26.) After the leg sweep, Captain Venable once again told Plaintiff to 

sit in the chair, and this time Plaintiff complied. (Id. at 26–27.) At this point, Plaintiff admits to 

making “multiple threats” to Captain Venable, saying he was going to spit on him, but not 

otherwise threatening physical harm. (Id. at 27–28.) Gary Trentman, a nurse, was also in the 

treatment room at the time Plaintiff alleges the punch occurred. At his deposition, Plaintiff 

stated, “Trentman seen it. And at that time [Venable] was telling me, He’s [Trentman’s] on our 

side, laughing at me, and Trentman is saying in response, That’s right, buddy. That’s right, 

buddy.” (Id. at 53.) The officers requested a spit sock to prevent Plaintiff from spitting on 

anyone; according to Plaintiff, he sat in the chair in the treatment room for approximately ten 

minutes until the spit sock was obtained and did not spit or attempt to spit during that time. (Id. 

at 54.) Although Plaintiff’s eye was swollen and his lip was bloody, Plaintiff refused medical 

treatment and was taken back to his cell. (Id. at 32, 42.) The injury to Plaintiff’s eye took 

approximately one month to fully heal, and his lip healed in less time than that. (Id. at 44.) 

B. Officers’ Account of the Force in Question 

In contrast to Plaintiff’s account, the officers report physical resistance from Plaintiff 

throughout the second escort to the treatment room. After Officer Detty opened the door to 

Plaintiff’s cell, Detty, Camara, and Venable state one cuff was placed on one of Plaintiff’s 

wrists, at which point Plaintiff stated that he was not going to let the officers cuff him, and began 

jerking roughly away from the officers. (Detty Dec. 3, ECF No. 49, PAGEID #284.) Detty then 

gained control of Plaintiff’s left arm, while Venable gained control of Plaintiff’s right arm, 

allowing the officers to handcuff him. (Id.) During the walk to the treatment room, Plaintiff 
4 

repeatedly cursed at Venable and threatened to spit on him and bite him. (Id.; Venable Dec. 3, 

ECF No. 49, PAGEID #273; Camara Dec. 3, ECF No. 49, PAGEID #280.) The officers had to 

hold their hands between Plaintiff and Venable’s face to block any spitting attempts. (Id.) 

Plaintiff also repeatedly tried to bang his head against the hallway wall. (Id.) 

After arriving in the treatment room, Plaintiff refused Venable’s orders to sit down. 

(Venable Dec. 3–4, ECF No. 49, PAGEID #273.) Instead, Plaintiff kicked over a chair and then 

attempted to kick Venable. (Id.; Camara Dec. 3, ECF No. 49, PAGEID #280.) Plaintiff also 

continued cursing at Venable and threatening to “spit in [Venable’s] bitch ass face.” (Venable 

Dec. 3–4, ECF No. 49, PAGEID #273–74.) Venable then performed a front-leg sweep to take 

Plaintiff to the ground. (Id.; Camara Dec. 3, ECF No. 49, PAGEID #280.) Venable was able to 

regain control of Plaintiff and Plaintiff sat down in the chair. (Id.) Because Plaintiff kept 

threatening to spit, Venable requested a spit sock. (Id.) Plaintiff refused medical treatment and 

was escorted back to his cell. (Id.) At that point, Venable observed “slight swelling to 

[Plaintiff’s] right eye and cheek, and a small amount of blood in his mouth.” (Venable Dec. 4, 

ECF No. 49, PAGEID #274.) 

C. The Present Motions 

After initial screening under 28 U.S.C. § 1915A, the Court dismissed all of Plaintiff’s 

claims except for his claim for excessive force in violation of the Eighth Amendment against 

Captain Venable arising out of the alleged punch to Plaintiff’s face. (ECF No. 4, 14.) Both 

Plaintiff and Venable have moved for summary judgment. 

II. STANDARD OF REVIEW 

Under Federal Rule of Civil Procedure 56, “[t]he 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 moving party has the initial 
5 

burden of proving that no genuine issue of material fact exists, and the court must draw all 

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air 

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. 

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s 

assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”). 

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 non-movant is to be believed, and all justifiable inferences are to be drawn 

in his favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than 

simply show that there is some metaphysical doubt as to the material facts, . . . there must be 

evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to 

create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cnty., 432 F. App’x 

435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 

56(c) (requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts 

of materials in the record”). “When a motion for summary judgment is properly made and 

supported and the nonmoving party fails to respond with a showing sufficient to establish an 

essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486 

(citing Celotex, 477 U.S. at 322–23). 

III. ANALYSIS 

A. Eighth Amendment Standards 

The Eighth Amendment prohibits the unnecessary and wanton infliction of pain against 

prisoners. Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (citing Whitley v. Albers, 475 

U.S. 312, 319 (1986)). To make out a claim under the Eighth Amendment, the prisoner must 
6 

satisfy both an objective and a subjective component. Id. (citing Moore v. Holbrook, 2 F.3d 697, 

700 (6th Cir.1993)). 

The objective component requires the pain inflicted to be “sufficiently serious.” Wilson 

v. Seiter, 501 U.S. 294, 298 (1991). Yet the seriousness of the injuries is not by itself 

dispositive. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam). “When prison officials 

maliciously and sadistically use force to cause harm, contemporary standards of decency always 

are violated . . . [w]hether or not significant injury is evident.” 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.” Id. 

The subjective component focuses on the state of mind of the prison officials. Williams, 

631 F.3d at 383. The “core judicial inquiry” is “whether force was applied in a good-faith effort 

to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins, 449 

U.S. at 37 (quoting Hudson, 503 U.S. at 7). 

B. Plaintiff’s Motion for Summary Judgment 

Plaintiff’s Motion is short and devoid of argument other than that Venable’s closed-fist 

strike to Plaintiff’s face while he was restrained “is inappropriate supervision and is outside the 

scope of his duties.” (Pl.’s Suppl. Mem. 1–2, ECF No. 48.) But more importantly, the record is 

replete with issues of material fact. Making all reasonable inferences in favor of Venable, as the 

Court must when considering Plaintiff’s Motion, a jury could easily find based on the testimony 

of three officers present that Venable did not even punch Plaintiff. And Plaintiff has not 

complained of any excessive force other than the alleged punch. Therefore, because a genuine 

issue of fact exists as to whether the force in question actually occurred, Plaintiff is not entitled 

to summary judgment. 
7 

C. Venable’s Motion for Summary Judgment 

Venable makes several arguments as to why he is entitled to summary judgment: 

(1) Plaintiff failed to exhaust administrative remedies through the prison grievance system; 

(2) Venable’s account of the incident in question is more credible than Plaintiff’s, and his actions 

did not violate the Eighth Amendment; (3) Plaintiff’s injuries were de minimis; and (4) Venable 

is entitled to qualified immunity. The Court will consider each argument in turn. 

1. Plaintiff fully exhausted his administrative remedies. 

Before commencing an action under 42 U.S.C. § 1983, prisoners are required to exhaust 

administrative remedies by the the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”). 

As the Sixth Circuit Court of Appeals has explained: 

The Prison Litigation Reform Act requires state prisoners to follow and exhaust all 

applicable state grievance procedures before filing suit in federal court. See 42 

U.S.C. 1997e(a); Woodford v. Ngo, 548 U.S. 82, 90 [ ] (2006). This requirement is 

not jurisdictional; rather, exhaustion is an affirmative defense that must be pleaded 

and proved by the defendants. Jones [v. Bock], 549 U.S. [199,] 212 [(2007)]. When 

the defendants in prisoner civil rights litigation move for summary judgment on 

administrative exhaustion grounds, they must prove that no reasonable jury could 

find that the plaintiff exhausted his administrative remedies. Surles v. Andison, 678 

F.3d 452, 455-56 (6th Cir. 2012). 

There is no uniform federal exhaustion standard. A prisoner exhausts his remedies 

when he complies with the grievance procedures put forward by his correctional 

institution. Jones, 549 U.S. at 217-19[ ]. “This court requires an inmate to make 

‘affirmative efforts to comply with the administrative procedures,’ and analyzes 

whether ‘those efforts to exhaust were sufficient under the circumstances.’” Risher 

[v. Lappin], 639 F.3d [236,] 240 [(6th Cir. 2011)] (quoting Napier v Laurel Cty., 

636 F.3d 218, 224 (6th Cir. 2011)). 

Mattox v. Edelman, 851 F.3d 583, 590 (6th Cir. 2017). 

The purpose of the exhaustion requirement “‘is to allow prison officials ‘a fair 

opportunity’ to address grievances on the merits, to correct prison errors that can and should be 

corrected and to create an administrative record for those disputes that eventually end up in 

court.’” Id. at 591 (quoting Reed-Bey v. Pramstaller, 603 F.3d 322, 324-25 (6th Cir. 2010)). 
8 

The United States Court of Appeals for the Sixth Circuit has therefore held that “[a]n exception 

to this [exhaustion requirement] is that prison officials waive any procedural irregularities in a 

grievance when they nonetheless address the grievance on the merits.” Mattox, 851 F.3d at 591 

(citation omitted). 

In Ohio, the inmate grievance procedures are set forth in Ohio Administrative Code 

§ 5120–9–31. This regulation creates a three-step process governing requests by inmates for 

relief “regarding any aspect of institutional life that directly and personally affects the [inmate].” 

O.A.C. § 5120-9-31(A), (J). The first step requires an inmate to “file an informal complaint to 

the direct supervisor of the staff member, or department most directly responsible for the 

particular subject matter of the complaint.” O.A.C. § 5120-9-31(J)(1). If the inmate is 

dissatisfied with the result, he may file a formal grievance with the inspector of institutional 

services at his institution. O.A.C. § 5120-9-31(J)(2). If an inmate remains dissatisfied, he may 

file an appeal to the office of the chief inspector. O.A.C. § 5120-9-31(J)(3). An inmate has not 

exhausted his remedies under § 5120-9-31 until he has received a decision on his appeal to the 

office of the chief inspector. Younker v. Ohio State Univ. Med. Ctr., No. 2:11-cv-00749, 2013 

WL 3222902, at *4 (S.D. Ohio June 25, 2013). 

Here, Venable argues that Plaintiff failed to comply with Ohio’s three-step process 

because his initial informal complaint was filed outside the 14-day deadline established by 

O.A.C. § 5120-9-31(J)(1). Plaintiff remained on constant watch until April 10, 2018, during 

which time he was unable to file a complaint; therefore, his deadline to file a complaint related to 

the use of force on April 9, 2018, was April 24, 2018. However, Plaintiff did not file his initial 

complaint until April 29, 2018. (Summary of Grievance Process, ECF No. 49, PAGEID #276–

77.) Although Defendant is correct that Plaintiff was five days late in filing his initial complaint, 
9 

the record also reflects that the prison nevertheless accepted Plaintiff’s complaint and issued a 

decision, which Plaintiff appealed to the inspector and chief inspector. (Id.) He received a final 

decision denying his grievance from the office of the chief inspector on August 18, 2018. (Id.) 

Because prison officials rendered a final decision that addressed the merits of Plaintiff’s 

grievance, the undersigned recommends that the Court deem the exhaustion defense waived and 

find that Plaintiff fully exhausted his administrative remedies before commencing this suit. See 

Mattox, 851 F.3d at 590-91; see also Reed-Bey, 603 F.3d at 325 (“We instead conclude that [the 

plaintiff] properly exhausted his claim because he invoked one complete round of the 

Department’s grievance procedures and received merits-based responses at each step.”).

The case law cited by Venable does persuade the undersigned to reach a different 

conclusion. In Woodford v. Ngo, the United States Supreme Court held that exhaustion under the 

PLRA requires inmates to comply with administrative deadlines. 548 U.S. 81, 90 (2006). 

However, in that case, the inmate’s late-filed complaint was rejected by the prison as untimely at 

the first step of the administrative process. Id. at 87. Woodford does not suggest that a late-filed 

complaint accepted by the prison and escalated through all levels of the administrative process 

represents a failure to exhaust. And the other two cases Venable cites held that the prisons in 

question did not carry their burden to establish a failure to exhaust administrative remedies. 

Risher v. Lappin, 639 F.3d 236, 240 (6th Cir. 2011); Surles v. Andison, 678 F.3d 452, 455 (6th 

Cir. 2012). Accordingly, Plaintiff’s suit is not barred by the PLRA’s exhaustion requirement. 

2. The Court may not assess credibility on summary judgment. 

Venable asks the Court to find no Eighth Amendment violation based on his version of 

the facts, in which Venable never punched Plaintiff and at most used a front-leg sweep to bring 

Plaintiff to the ground. Venable argues that the Court should accept his version of the facts 
10 

because it is corroborated by testimonial and documentary evidence, and Plaintiff’s account 

lacks credibility. (Def.’s Mot. for Summ. J. 7–17, ECF No. 49.) 

However, “[i]n reviewing a summary judgment motion, credibility judgments and 

weighing of the evidence are prohibited. Rather, the evidence should be viewed in the light most 

favorable to the non-moving party.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 

2005). In fact, “[i]t is an error for the district court to resolve credibility issues against the 

nonmovant: ‘In effect, any direct evidence offered by the plaintiff in response to a summary 

judgment motion must be accepted as true. The district court errs by granting summary 

judgment for the defendant where issues of credibility are determinative of the case.’” CenTra, 

Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008) (quoting Ctr. for Bio–Ethical Reform, Inc. v. 

City of Springboro, 477 F.3d 807, 820 (6th Cir. 2007)). 

Because the record contains conflicting evidence as to what actually occurred on April 9, 

2018, the Court may not simply accept Venable’s account and grant judgment in his favor. The 

factual disputes must be left for resolution by a jury. Accordingly, Venable is not entitled to 

summary judgment merely because he might not be liable under his own version of the facts. 

3. The severity of Plaintiff’s injuries is not dispositive. 

Venable argues that because Plaintiff’s injuries were not severe, any force used by prison 

officials in inflicting them cannot have been excessive for Eighth Amendment purposes. 

Although Plaintiff admits he suffered no long-term injuries from the alleged punch and was 

treated only with ibuprofen (Pl.’s Dep. 43, ECF No. 51), the severity of Plaintiff’s injuries is not 

dispositive for Eighth Amendment purposes. Cordell v. McKinney, 759 F.3d 573, 580–81 (6th 

Cir. 2014). “Injury and force [ ] 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 
11 

serious injury.” Wilkins, 559 U.S. at 38. Accordingly, the United States Supreme Court has held 

it is error to dismiss a claim for excessive force under the Eighth Amendment based on the de 

minimis nature of the plaintiff’s injuries. Id. at 40. Therefore, the relatively non-serious nature 

of Plaintiff’s injuries does not justify summary judgment in favor of Venable. 

4. Venable is not entitled to qualified immunity. 

Under the doctrine of qualified immunity, “‘government officials performing 

discretionary functions generally are shielded from liability for civil damages insofar as their 

conduct does not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.’” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th 

Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Reichle v. 

Howards, 566 U.S. 658, 664 (2012). “[Q]ualified immunity applies irrespective of whether the 

official’s error was a mistake of law or a mistake of fact, or a mistake based on mixed questions 

of law and fact.” Hall v. Sweet, 666 F. App’x 469, 477–78 (6th Cir. 2016) (citing Pearson v. 

Callahan 555 U.S. 223, 231 (2009)). In determining whether an official is entitled to qualified 

immunity, “we ask two questions: ‘First, viewing the facts in the light most favorable to the 

plaintiff, has the plaintiff shown that a constitutional violation has occurred? Second, was the 

right clearly established at the time of the violation?’” Mitchell v. Schlabach, 864 F.3d 416, 420 

(6th Cir. 2017) (quoting Miller v. Sanilac County, 606 F.3d 240, 247 (6th Cir. 2010)). 

Venable argues that he is entitled to qualified immunity because Plaintiff cannot 

demonstrate that Venable violated Plaintiff’s Eighth Amendment rights. According to Venable, 

even if the Court were to accept Plaintiff’s version of the facts and assume he punched Plaintiff 

in the face, “such an action would have been ‘applied in a good faith effort to maintain or restore 

discipline’ and not done ‘maliciously and sadistically for the very purpose of causing harm’” as 
12 

required for an Eighth Amendment violation. (Def.’s Mot. for Summ. J. 22, ECF No. 49 

(quoting Smith v. Winkle, No. 2:13-cv-784, 2014 WL 1796063 *2 (S.D. Ohio, May 6, 2014)). 

The undersigned disagrees. Plaintiff testified at his deposition that although he verbally 

resisted Venable’s orders to sit down in the treatment room, his hands were cuffed behind his 

back and he offered no physical resistance prior to Venable’s punch to Plaintiff’s face. (Pl.’s 

Dep. 22–23.) Minimal or lack of physical resistance counsels against the use of force. See, e.g., 

McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988) (need for the application of force was 

“nonexistent” when arrestee was handcuffed and not trying to escape or hurt anyone); Griffin v. 

Hardrick, 604 F.3d 949, 956 (6th Cir. 2010) (describing the need for use of a leg sweep to 

contain an inmate who was struggling against two officers as “a close case”). Plaintiff further 

testified that the punch was strong enough that he lost consciousness for several seconds, and the 

injury to his eye took approximately a month to fully heal. (Id. at 23–24, 44.) Further, Plaintiff 

testified that Venable taunted him before and after the punch, expressing a hope that Plaintiff 

would give Venable a reason to “pound [Plaintiff’s] face in” and asserting that a nurse who 

witnessed the punch was “on [Venable’s] side.” (Id. at 20–21, 53.) These remarks suggest that 

the force was not applied in good faith. See Hublick v. Cty. of Otsego, No. 12-CV-14146, 2014 

WL 495403, at *6 (E.D. Mich. Feb. 6, 2014) (officer’s threat to inmate to “light him up” if he 

continued to passively resist could give rise to an inference of maliciousness). 

Accepting Plaintiff’s version of the facts, a jury could conclude that the force in question 

was sufficiently serious, and that Venable’s state of mind was sufficiently malicious, to satisfy 

the both the objective and subjective components of the Eighth Amendment analysis. Moreover, 

it has long been clearly established that prisoners have the right to be free of excessive force. 

Kostrzewa v. City of Troy, 247 F.3d 633, 641 (6th Cir. 2001) (“This circuit has held that the right 
13 

to be free from excessive force . . . is a clearly established right for purposes of the qualified 

immunity analysis.”). As a result, Venable is not entitled to qualified immunity. 

In sum, Venable has failed to demonstrate an absence of genuine issues of material fact 

or his entitlement to judgment as a matter of law. His summary judgment motion must therefore 

be denied. 

IV. DISPOSITION 

For the foregoing reasons, it is RECOMMENDED that both Plaintiff’s Motion for 

Summary Judgment (ECF No. 40) and Venable’s Motion for Summary Judgment (ECF No. 49) 

be DENIED. 

V. 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). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review 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 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 
14 

/s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE