UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RODNEY T. YOUNG, Case No. 1:18-cv-490

Plaintiff, Barrett, J.

Bowman, M.J.

 v.

C. TAYLOR, 

Defendant.

REPORT AND RECOMMENDATION 

I. Factual and Procedural Background

On July 24, 2018, Plaintiff, an incarcerated individual who proceeds pro se, filed a 

complaint against Defendant C. Taylor, a Correctional Officer at the Southern Ohio 

Correctional Facility (“SOCF”). Pursuant to local practice, this case has been referred to 

the undersigned magistrate judge. 

Plaintiff’s complaint alleges that on February 20, 2018, Defendant Taylor violated 

Plaintiff’s Eighth Amendment rights by “deploying chemical agent OC spray into the facial 

area of the Plaintiff, without justification.” (Doc. 4 at 5). By way of background, Plaintiff 

alleges that the prison had been placed on lock-down because another correctional officer 

had been stabbed earlier that day. (Id.) As a result of the lockdown, C/O Taylor and a 

second correctional officer (non-party C/O Corns) were escorting the nurse through the 

cell block during pill call. As the three walked down the cell block, Plaintiff heard the 

correctional officers yell “Get the fuck out of your bars,” which “was directed toward 

another inmate.” Plaintiff’s complaint continues: 

As I approached my bars to see what was all of the com[m]otion, C/O Taylor 

started shaking the can of OC spray which all Correction Officers are 

recommended to do during Medication Pass. At that time, C/O Taylor 
2

deployed a large amount of O.C. spray in the facial area of the Plaintiff. 

There was no justification of such act. I began cursing C.O. Taylor out due 

to the injustice by the way that prisoners are treated in this institution. I was 

force[d] to remain in my cell for at least 10 to 15 minutes before I was 

escorted to Segregation where I did not receive any medical treatment that 

requires all inmates who are sprayed with OC spray to be [decontaminated]. 

I was never given that opportunity. Moreover, I was again forced to suffer 

through the pain of a burning sensation that lasted for 4 days. This has 

caused me to have serious eye problems that I am continuing to seek 

medical attention for that. 

(Doc. 4 at 5-6). Plaintiff’s complaint alleges that on the same date, Defendant wrote a 

conduct report that charged Plaintiff with four rule violations relating to an accusation that 

Plaintiff had rushed to the front of his cell “with an unknown liquid in a bottle attempting 

to throw it.” (Id. at 6). Plaintiff states that he was found not guilty of three of the four rule 

violations and found guilty of just one violation for “disrespect.” Plaintiff appealed, but his 

Rules Infraction Board (“RIB”) conviction was affirmed. (Id.)

On August 23, 2018, Defendant Taylor filed both an answer and a motion to 

dismiss. Plaintiff filed a response in opposition to Defendant’s motion, to which Defendant 

has filed a reply. On September 10, 2018, Plaintiff filed a motion seeking “to convert” 

Defendant’s motion to dismiss into a motion for summary judgment, asserting that 

Defendant has improperly “included documents to their motion outside the pleadings.” 

(Doc. 11). In addition, on October 3, 2018, Plaintiff filed an “amended complaint” without 

leave of this Court, which the Defendant has moved to strike. (Docs. 14, 18). In addition 

to filing a response in opposition to Defendant’s motion to strike, Plaintiff has filed a 

belated motion seeking leave to file an amended complaint. (Docs. 19, 20).

For the reasons that follow, the undersigned recommends that Plaintiff’s motion to 

convert Defendant’s motion to dismiss to a motion for summary judgment be denied and 
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that Defendant’s motion to dismiss be granted. This Report and Recommendation further 

recommends that Plaintiff’s amended complaint be construed as if it had been only 

tendered (rather than filed) and properly accompanied by Plaintiff’s later-filed motion 

seeking leave to amend. As so construed, Plaintiff’s motion seeking leave to amend 

should be denied. Consistent with the construction of Plaintiff’s amended complaint, 

Defendant’s motion to strike the procedurally improper pleading is construed as a 

response in opposition to amendment. Because this R&R recommends that no 

amendment be permitted but that the record of the construed tendered amendment be 

preserved, Defendant’s motion to strike should be denied as moot.

II. Plaintiff’s Motion to Convert Defendant’s Motion to Summary 

Judgment

The undersigned first addresses Plaintiff’s motion to convert Defendant’s motion 

to dismiss into a motion for summary judgment, on the basis that the Defendant has 

improperly sought consideration of “documents [attached] to [his] motion outside the 

pleadings.” (Doc. 11). Although Plaintiff is correct in his belief that consideration of a 

motion to dismiss is limited to the pleadings, he is incorrect in his belief that the Defendant 

attached evidentiary exhibits to his motion to dismiss. No exhibits have been attached to 

that motion. Because the Defendant has not attached extraneous evidence to his motion, 

the undersigned recommends the denial of Plaintiff’s motion.

At the same time, the undersigned recognizes that – while not attaching exhibits 

to his motion to dismiss - Defendant has attached copies of relevant administrative 

grievances to his answer to the complaint. (See Doc. 8). Plaintiff references the exact

same grievances in his original complaint and appends copies to an “amended 
4

complaint,” (see Doc. 14), which pleading the undersigned has construed as if tendered 

with a motion seeking leave to amend. There is no dispute that the grievances attached 

to Defendant’s Answer and to Plaintiff’s “amended complaint” are accurate copies of the 

grievances that Plaintiff filed concerning the incident at issue in this case. For the reasons 

explained below, those grievances may be considered without converting Defendant’s 

motion to one for summary judgment. 

III. Defendant’s Motion to Dismiss

A. Standard of Review

Unlike a motion for summary judgment, a motion to dismiss is directed to the 

sufficiency of the pleadings. As suggested by Plaintiff, exhibits attached to a motion to 

dismiss or for judgment on the pleadings generally will be excluded under Rule 12 and 

cannot be considered without converting the motion to one for summary judgment. See 

Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir. 2006). 

Accordingly, “we construe the complaint in the light most favorable to the nonmoving 

party, accept the well-pled factual allegations as true, and determine whether the moving 

party is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Illinois 

Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007). 

Still, while review of a motion to dismiss rests primarily upon the allegations of the 

complaint, “matters of public record, orders, items appearing in the record of the case, 

and exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin 

Coll., 259 F.3d 493, 502 (6th Cir.2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 

1554 (6th Cir.1997)) (emphasis omitted). The exhibits attached to Defendant’s answer 

also may be considered part of the pleadings without converting the motion to one under 
5

Rule 56 if the documents are referred to in plaintiff's complaint and are central to the 

claims. Weiner v. Klais and Company, 108 F.3d 86, 89 (6th Cir.1997); see also Whittiker 

v. Deutsche Bank Nat. Trust Co., 605 F.Supp.2d 914, 924 (N.D.Ohio 2009); accord 

Fientall v. Lange, 2011 WL 4526742 at *3 (W.D. Mich. Aug. 8, 2011) (holding that court 

may take judicial notice of grievance filings because they constituted public records under 

state law and were not subject to reasonable dispute, collecting cases); but contrast 

Robison v. Coey, 2016 WL 4721209 (Sept. 9, 2016) (R&R declining to consider separate 

form relating grievance history in support of motion based on failure to exhaust under 

PLRA). In light of the cited case law, and the fact that the same exhibits are attached by 

Plaintiff to a procedurally improper “amended complaint,” the undersigned finds it 

appropriate to take judicial notice of those exhibits when considering Defendant’s motion 

to dismiss. The same exhibits are properly considered to determine whether Plaintiff 

should be granted leave to amend. (See Doc. 14).

Returning to the standard of review in evaluating Defendant’s motion to dismiss 

Plaintiff’s complaint, the court “need not accept the plaintiff's legal conclusions or 

unwarranted factual inferences as true.” Commercial Money Ctr., 508 F.3d at 336. The 

Sixth Circuit has explained the pleading requirements that are necessary as follows:

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 

L.Ed.2d 929 (2007), the Supreme Court explained that “a plaintiff's 

obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires 

more than labels and conclusions, and a formulaic recitation of the elements 

of a cause of action will not do....Factual allegations must be enough to raise 

a right to relief above the speculative level....” Id. at 1964–65 (internal 

citations omitted). In Erickson v. Pardus, ...127 S.Ct. 2197, 167 L.Ed.2d 

1081 (2007), decided two weeks after Twombly, however, the Supreme 

Court affirmed that “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a 

short and plain statement of the claim showing that the pleader is entitled 

to relief.’ Specific facts are not necessary; the statement need only ‘give the 
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defendant fair notice of what the...claim is and the grounds upon which it 

rests.’ ” Id. at 2200 (quoting Twombly, 127 S.Ct. at 1964). The opinion in 

Erickson reiterated that “when ruling on a defendant's motion to dismiss, a

judge must accept as true all of the factual allegations contained in the 

complaint.” Id. (citing Twombly, 127 S.Ct. at 1965). We read the Twombly

and Erickson decisions in conjunction with one another when reviewing a 

district court's decision to grant a motion to dismiss for failure to state a 

claim or a motion for judgment on the pleadings pursuant to Federal Rule 

of Civil Procedure 12.

Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 549–50 (6th Cir.2008) (quoting 

Sensations, Inc. v. City of Grand Rapids, 526 F.3d at 295–96 (6th Cir.2008) (footnote 

omitted); see also generally, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Defendant Taylor is entitled to dismissal of Plaintiff’s complaint under this standard. 

B. Eleventh Amendment Immunity Bars Any Official Capacity Claims

For the reasons expressed in his motion, Defendant is entitled to judgment as a 

matter of law on any claims that Plaintiff asserts against him in his official capacity. Such 

claims are barred by the Eleventh Amendment. In fact, Plaintiff does not object to the 

dismissal of his official capacity claims.1(Doc. 15 at 5, “Plaintiff agrees that the suit is 

against each defendant in their individual, rather than official capacities”). See also, 

generally, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Hall v. Medical 

College of Ohio at Toledo, 742 F.2d 299 (6th Cir. 1984). 

C. Judgment Should be Granted on Eighth Amendment Claims

1. The Components of an Eighth Amendment Claim

An Eighth Amendment excessive force claim has both a subjective and an 

objective component. Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014). The 

 

1

In his tendered “amended complaint,” Plaintiff has eliminated all “official capacity” claims.
7

subjective component focuses on “whether force was applied in a good faith effort to 

maintain or restore discipline, or maliciously and sadistically to cause harm.” Id.; see also 

Hudson v. McMillian, 503 U.S. 1, 6, 112 S. Ct. 995 (1992). In making this inquiry, the 

Court must consider the need for the use of force; the relationship between that need and 

the type and amount of the force used; the threat reasonably perceived by the official; 

and the extent of the injury inflicted. Hudson, 503 U.S. at 7; Whitley v. Albers, 475 U.S.

312, 320 (1986). The Eighth Amendment does not prohibit a de minimis use of force 

“provided that the use of force is not of a sort repugnant to the conscience of mankind.” 

Hudson, 501 U.S. at 10 (quoting Whitley, 475 U.S. at 327) (internal quotations omitted).

The objective component requires the “pain inflicted to be ‘sufficiently serious’” to 

offend “contemporary standards of decency.” Cordell, 759 F.3d at 580 (quoting Williams

v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011), and Hudson, 503 U.S. at 8). “While the 

extent of a prisoner’s injury may help determine the amount of force used by the prison 

official, it is not dispositive of whether an Eighth Amendment violation has occurred.” Id. 

at 580-81. “‘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. At the same time, courts have repeatedly explained 

that “not... every malevolent touch by a prison guard gives rise to a federal cause of 

action.” Hudson, 503 U.S. at 9. “Not every push or shove, even if it may later seem 

unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional 

rights.” Pelfrey v. Chambers, 43 F.3d 1034, 1039 (6th Cir. 1995) (internal quotation marks 
8

and citation omitted).

2. No Allegations Support Either Subjective or Objective Elements 

of Plaintiff’s Eighth Amendment Claims

Plaintiff’s complaint first alleges that Defendant Taylor sprayed him with OC spray 

“without justification.” However, Plaintiff also alleges that he was charged with four 

separate rule violations and found guilty of Disrespect. Plaintiff alleges that the Conduct 

Report charged him with “rush[ing] to the cell front with an unknown liquid in a bottle 

attempting to throw it [], C/O Corns grabbed nurse Rayburn [shielding] her when I [Taylor] 

deployed OC spray....’” (Doc. 4) Despite Plaintiff alleging that he was found not guilty 

of three charges, he does not claim in his original complaint that those charges were in 

any way falsified.2 Thus, construing the allegations of the original complaint in the light 

most favorable to Plaintiff, Plaintiff alleges that Taylor deployed OC spray to control a 

celled inmate who was charged with more serious offenses, but found guilty only of only 

one Rule violation: Disrespect. 

To state an Eighth Amendment claim, Plaintiff must at a minimum allege that 

Defendant did not have a good faith basis for employing OC spray, and that the harm he 

suffered was objectively “serious.” The allegations also must at least reasonably suggest 

a malicious or sadistic subjective intent. Here, however, Plaintiff’s allegations suggest 

no more than a de minimis use of force (OC spray) deployed to restore order, which force

appears insufficient to establish either the objective or subjective elements of Plaintiff’s 

 

2

In his memorandum in opposition to the motion to dismiss, Plaintiff suggests for the first time that his

complaint alleges that the Defendant “fabricated a story that plaintiff had a liquid substance he planned to 

throw on the nurse.” (Doc. 15 at 2). However, the original complaint contains no such allegations. The 

argument that the conduct report contained fabricated charges is presented for the first time in opposition 

to Defendant’s motion to dismiss, and reiterated in a cursory fashion only in the tendered amended 

complaint.
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claim. Plaintiff complains that a single guard sprayed him with pepper spray in reaction 

to multiple perceived rule violations, including an alleged threat to throw “an unknown 

liquid in a bottle....” on either an officer or the nurse. The use of OC spray in the face of 

such a perceived threat would not violate the Eighth Amendment, even if the officer’s 

perception was mistaken and the inmate was later found not guilty. In other words, the

fact that Plaintiff was convicted only of a single “Disrespect” violation does not transform 

the Defendant’s use of OC spray into an Eighth Amendment violation. Multiple cases 

hold that OC spray may be deployed in order to maintain order and restore discipline, 

including for rule violations, and even when an inmate remains in his cell. 

In his memorandum in opposition to the motion to dismiss, Plaintiff argues for the 

first time that Taylor’s use of OC spray was “in retaliation” for an earlier incident that day 

in a different part of the prison, involving a violent assault on another correctional officer 

by two unidentified inmates. (Doc. 15 at 2). Plaintiff does not suggest any particular 

connection between Defendant Taylor and the injured officer, nor does Plaintiff suggest 

any connection between himself and the unidentified inmate assailants. Rather, Plaintiff 

argues that “[b]ecause tempers were high due to this [earlier] assault, guards were 

retaliating and harassing SOCF prisoners who had nothing to do with that assault.” (Id.; 

see also Doc. 15 at 4, “Tempers of the guards had flared and they were retaliating against 

random prisoners”). Plaintiff explains that he filed suit to “break this pattern and practice 

of allowing guards to torment AND torture prisoners for the action for a couple prisoners 

who attacked a guard.” (Doc. 15 at 3, emphasis original). 

Thus, in his opposition to dismissal Plaintiff implies the existence of a wide-spread 

conspiracy among all correctional officers at SOCF, including but not limited to Defendant 
10

Taylor. However, no such allegations appear in Plaintiff’s original complaint. In any 

event, it is well-settled in the Sixth Circuit that conspiracy claims must be pleaded with 

“with some degree of specificity, and vague and conclusory allegations unsupported by 

material facts are not sufficient to state a claim.” Hamilton v. City of Romulus, 409 Fed

Appx. 826, 835 (6th Cir. 2010); see also Moldowan v. City of Warren, 578 F.3d 351, 395 

(6th Cir. 2009) (citing Gutierrez v. Lynch, 826 F.2d 1534 (6th Cir. 1987)) (affirming 

dismissal of conspiracy claims under 42 U.S.C. § 1983 because the plaintiff failed to 

plead the claims with the “requisite specificity”). Here, construing the complaint liberally, 

Plaintiff’s allegations are insufficient to suggest that Defendant Taylor (or others) planned 

to deprive him of a constitutionally-protected right. Even if he had included similar 

“retaliation” allegations in his original complaint, such conclusory allegations lack the 

specificity required to state a cognizable claim under 42 U.S.C. § 1983. To the extent 

that Plaintiff attempts to newly allege some form of a “retaliation” claim other than 

conspiracy, that claim also would be subject to dismissal. “[C]onclusory allegations of 

retaliatory motive ‘unsupported by material facts will not be sufficient to state a claim 

under § 1983.’ ” Harbin v. Rutter, 420 F.3d 571, 580 (6th Cir. 2005) (quoting Gutierrez v. 

Lynch, 826 F.2d 1534, 1538-39 (6th Cir. 1987)); see also Twombly, 550 U.S. at 555-57.

In his opposition to dismissal, Plaintiff asks this Court to infer a malevolent or 

malicious subjective intent because Defendant Taylor “fabricated a reason why [he] 

sprayed mace on plaintiff, for no legitimate penological reason.” (Doc. 15 at 4).3 Despite 

failing to include any such allegations in his original complaint, Plaintiff now contends that 

 

3Although only a single Defendant, C/O Taylor, is identified in his original complaint, Plaintiff’s memorandum 

in opposition repeatedly refers to multiple “defendants.”
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the RIB finding of “not guilty” on three of the four charged offenses in Taylor’s Conduct 

Report means that the charges “were proven to be false charges.” (Doc. 15 at 4). But 

the complaint’s allegation that Plaintiff was found “not guilty” on some charges is not 

equivalent to an allegation that the charging officer “fabricated” all charges. An officer 

may have an objectively reasonable basis for filing a Conduct Report listing multiple

charges, and no malicious or sadistic intent, even if the inmate is later exonerated.

The facts alleged by Plaintiff here confirm the propriety of dismissal and undermine 

Plaintiff’s argument that his allegations should be construed as stating Defendant Taylor’s

malicious and sadistic intent to cause Plaintiff harm. Rather than supporting that 

inference, Plaintiff’s own allegations suggest a factual basis for Taylor’s charges and 

refute any inference of malevolence. Plaintiff’s original complaint alleges that he heard 

the two correctional officers yell “Get the fuck out of your bars” as they were nearing 

Plaintiff’s cell, but that Plaintiff believed they were speaking to “another inmate” and 

moved to the front of his cell to see what was going on. He further alleges that Taylor 

held a canister of OC spray while he accompanied the nurse as a precautionary measure, 

as “recommended” by prison policy. (Doc. 4 at 5). Attached to Plaintiff’s construed-astendered “amended complaint” is a document identified as Plaintiff’s “Testimony ...at 

Rules Infraction Board.” There, Plaintiff testified that he was not holding a canister of

liquid as charged, but that the evidence instead showed that “[m]y arm is out the door 

because I was about to throw a letter down to my neighbor.” (Doc. 14 at 8). In other 

words, Plaintiff testified in the prison disciplinary proceeding that he had his arm outside 

of his cell and was about to throw an object (a letter) to a neighboring cell as the officers 
12

approached.4 The facts as alleged confirm, therefore, that Defendant deployed his OC 

spray in a good faith attempt to counteract a perceived threat (even if that perception was 

mistaken), and/or in order to restore order based upon Plaintiff’s rule violation(s).

Plaintiff protests dismissal based upon his assertion that the use of OC spray 

against an inmate “because he was verbally disrespectful... has been held 

unconstitutional in numerous courts.” (Id.) However, no controlling case within the Sixth 

Circuit supports Plaintiff’s position on the facts as alleged, including the cases cited by 

Plaintiff. See, e.g., Davis v. Agosto, 89 Fed. Appx. 523, 526 (6th Cir. 2004) (collecting 

cases and holding use of mace against inmate who failed to place hands next to the tray 

slot as directed while in his cell was a “good-faith effort to maintain or restore discipline). 

As recognized in Davis, courts have repeatedly upheld the use of pepper spray or mace 

on confined prisoners when used to avert a threat or to force a recalcitrant inmate to 

comply with an order. Thus, “a short burst of pepper spray is not disproportionate to the 

need to control an inmate who has failed to obey an order.” Easley v. Little, Case No. 

1:14-cv-891, 2016 WL 4006676 at *7 (S.D. Ohio June 28, 2016).

In short, current Eighth Amendment standards permit the use of pepper spray in 

order to force an inmate to comply with an order, to counteract a perceived threat, or to 

restore discipline. Even though cases are more frequently decided on summary 

judgment, Defendant Taylor is entitled to dismissal at the outset of this case because no 

controlling cases prohibit the use of OC spray under the circumstances that Plaintiff 

 

4The allegations in Plaintiff’s original complaint further suggest that after hearing the officers direct another 

nearby inmate to retreat from the front of his cell, Plaintiff ignored the warning to his neighbor and moved 

to the front of his cell.
13

alleges. See, e.g., Brown v. Perez, 2017 WL 3378994 (6th Cir. April 17, 2017) (affirming

sua sponte dismissal of pro se prisoner complaint on initial screening under PLRA, 28 

U.S.C. §§ 1915A(b) and 1915(e)(2)(B)(ii); officers’ alleged use of tear gas and physical 

restraints did not constitute violation of Eighth Amendment where allegations indicated 

that force was to maintain or restore discipline rather than maliciously and sadistically to 

cause harm); see generally, e.g., McDougald v. Dillow, Case No. 1:16-cv-1099 (S.D. Ohio 

Aug. 2, 2018) (summary judgment granted to defendants for short use of pepper spray); 

McDougald v. Erdos, Case No. 1:17-cv-95, 2018 WL 3772181 (S.D. Ohio Aug. 9, 2018) 

(same); Thompson v. Esham, Case No. 1:15-cv-553, 2018 WL 398439 (S.D. Ohio Jan. 

12, 2018) (summary judgment granted despite use of multiple short bursts of pepper 

spray); Payne v. Gifford, Case No. 1:16-cv-514, 2017 WL 4329631 (S.D. Ohio Sept. 5, 

2017) (holding that one-second use of pepper spray demonstrated neither subjective nor 

objective components of Eighth Amendment claim); Phillips v. Sammons, Case No. 1:16-

cv-1034 at *11 (S.D. Ohio Jan. 11, 2018) (granting summary judgment where officer 

deployed chemical spray for less than two seconds).

As the undersigned explained in a similar pepper spray case:

To be clear, when pepper spray or some other chemical agent is used 

against a prisoner, that use of force might support the objective component 

of an Eighth Amendment claim when combined with other force (i.e., a 

“violent extraction”), or if the spray was used for an excessive length of time, 

employed in some obviously malicious manner, or under circumstances that 

demonstrate a more objectively significant incident. See e.g., Freeman v. 

Collins, 2009 WL 414325 (S.D.OH Feb. 17, 2009) (denying qualified 

immunity to officer who sprayed inmate with mace based on disputed 

issues; inmate had medical documentation prohibiting use of chemical 

agents, and allegedly was denied medical treatment after the incident). 

However..., where it is clear that some manner of threat by Plaintiff 

occasioned the briefest reactive use of pepper spray by a single prison 

guard, with no other force used by that guard or by anyone else, the 
14

undersigned concludes that the force used was akin to a “push or shove” 

that causes “no discernible injury” and that falls short of what is required to 

state a valid Eighth Amendment claim.

Thompson v. Joseph, Case No. 1:12-cv-992, 2014 WL 1685918 (S.D. Ohio, April 29, 

2014), R&R adopted at 2014 WL 2172894 (discussing OC spray cases and granting 

summary judgment in light of evidence that use of force was de minimis because it was 

in response to the inmate’s verbal threat and/or attempt to spit); accord Easley v. Little, 

2016 WL 4006676 at *7 (citing Jennings v. Mitchell, 93 Fed. Appx. 723, 724 (6th Cir. 

2004) and similar pepper spray cases and holding that “a short burst of pepper spray is 

not disproportionate to the need to control an inmate who has failed to obey a direct 

order”). 

Plaintiff does cite one case in which the undersigned recommended the partial

denial of a motion for summary judgment based upon an allegedly excessive use of OC 

spray. See Smith v. Bigham, Case No. 1:17-cv-128, 2018 WL 2100518, at *6 (S.D. Ohio 

May 7, 2018). However, that case is distinguishable. In Smith, the plaintiff had alleged 

that a correctional officer first had deployed OC spray against another inmate. The 

plaintiff, housed nearby, had complained of burning eyes and difficulty breathing and 

requested that a fan be turned on or window opened to minimize the secondary exposure. 

The plaintiff then retreated to the back of his cell. In response, the defendant deliberately 

entered an area behind the plaintiff’s cell and allegedly sprayed OC spray directly into the 

vent of plaintiff’s cell, into plaintiff’s eye. The plaintiff alleged that the defendant then failed 

to document his sadistic use of OC spray. Unlike in this case, in Smith the plaintiff was 

not charged with any rule violations. The Court partially denied summary judgment

because the defendant failed to carry his burden of production to show the lack of use of 
15

OC spray against the plaintiff, and there was no evidence that refuted the reasonable 

inference of a sadistic intent. “[E]ven if the injury that resulted was de minimis, the use of 

OC spray was for no reason other than in retaliation for Plaintiff’s complaints, and 

therefore was purely malicious and sadistic.” Smith, 2018 WL 2100518, at *6. By contrast

in this case, no reasonable inference of either the objective or subjective components of 

an Eighth Amendment claim arises from Plaintiff’s allegations.

Although Plaintiff alleges that he was not removed from his cell for 10-15 minutes, 

and that he was not offered a decontamination shower after being transferred to 

segregation, none of those allegations relate to Officer Taylor, who is alleged only to have 

deployed the OC spray. Likewise, Plaintiff’s allegation that he suffered eye discomfort for 

four days before being offered medical attention fails to state any claim against Defendant 

Taylor, because Plaintiff does not allege that Taylor refused Plaintiff medical care or was 

in any way involved beyond the initial deployment of OC spray.

3. Defendant is Entitled to Qualified Immunity

Defendant’s motion to dismiss also persuasively argues that he is entitled to 

qualified immunity. The purpose of qualified immunity is to provide governmental officials 

with the ability “reasonably to anticipate when their conduct may give rise to liability for 

damages.” See Anderson v. Creighton, 483 U.S. 635, 646 (1987) (internal quotation 

omitted). Thus, a governmental official performing discretionary functions will be entitled 

to qualified immunity unless his actions violate “clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982). A governmental official is entitled to immunity if the 

facts alleged do not make out a violation of a constitutional right, or if the alleged 
16

constitutional right was not clearly established at the time of the defendant’s alleged 

misconduct. Pearson v. Callahan, 129 S.Ct. 808 (2009).

Plaintiff does not suggest that the Defendant was acting outside his authority as a 

correctional officer. For the reasons discussed, Plaintiff’s allegations fall short of 

supporting an Eighth Amendment claim under clearly established law. Accord Smith v. 

Bigham, 2018 WL 2100518, at *8 (holding that correctional officer was entitled to qualified 

immunity based upon lack of any injury from secondary exposure to pepper spray). 

Moreover, because Defendant Taylor is not alleged to have personally refused Plaintiff a 

shower, or to have had anything to do with any delay in medical treatment, he is entitled 

to qualified immunity on any claim relating to the allegations that Plaintiff was denied a 

decontamination shower or delayed medical treatment. Id. (granting qualified immunity 

because plaintiff did not allege that he sought medical treatment from the named 

defendant, and because the lingering effects of OC spray did not suggest a sufficiently 

“serious” condition for which any lay person would have recognized the need for medical 

attention); see also generally, Ratcliff v. Moore, 614 F. Supp.2d 880 (S.D. Ohio 2009). 

IV. Defendant’s Motion to Strike Amended Complaint

On October 3, 2018, Plaintiff filed what was docketed as an “Amended Complaint.” 

(Doc. 14). Defendant has moved to strike this pleading under Rule 12(f), Fed. R. Civ. P., 

because Plaintiff inappropriately filed it without leave of Court, in violation of Federal Rule 

15(a)(2). On procedural grounds, Defendant is correct. After 21 days after service of 

Defendant’s answer, Plaintiff lost any right he had to simply file an amended complaint 

without leave of opposing counsel or this Court. Defendant filed his answer and motion 

to dismiss on August 23, 2018. Plaintiff’s attempt to amend is untimely because it was 
17

not filed until more than 21 days after Defendant served his responsive pleading. Thus, 

strictly on procedural grounds, Defendant’s motion could be granted.

Nevertheless, the undersigned has construed and reviewed Plaintiff’s “amended 

complaint” as if properly tendered with a motion to amend, rather than simply filed. 

Plaintiff proceeds pro se, and Rule 15(a) directs courts to “freely” grant amendment of 

pleadings “when justice so requires.” The interests of justice favor at least a preliminary 

review of Plaintiff’s amended complaint on the record presented. Indeed, Plaintiff 

acknowledges his procedural error in a response in opposition to Defendant’s motion to 

strike and has filed a belated motion seeking leave to amend. (Docs. 19, 20).

Recognizing the liberality with which pro se filings are typically viewed, Defendant 

Taylor alternatively asks this Court to strike the amended complaint “because it is 

redundant and immaterial” because the “substance ...is substantially the same” as the 

original complaint. Put another way, Defendant Taylor suggests that the arguments 

presented in the motion to dismiss are equally valid against Plaintiff’s “redundant” 

“amended” pleading. And, while the “amended” complaint purports to add a new claim 

against a second Defendant (Correctional Officer Corns), Defendant argues that Plaintiff’s

proposed new claims against Officer Corns lack factual substance and allege only in the 

most conclusory manner that Defendant Taylor and Officer Corns engaged in some form 

of conspiracy. Thus, Defendant strongly implies that any amendment would be futile even 

if the amended complaint had been properly tendered rather than filed, and accompanied 

by a motion seeking leave to amend. Upon close review of Plaintiff’s “amended” pleading, 

the undersigned agrees.

Consistent with Plaintiff’s argument opposing dismissal, the construed-as-
18

tendered amended complaint generally alleges that “tempers had flared” at SOCF due to 

the assault against another guard earlier that same day in a different area of the prison. 

Plaintiff alleges that “[f]or no legitimate reason defendant Corns and Taylor had conspired 

together to spray plaintiff with chemical mace, then fabricate a story in an attempt to justify 

their actions, subjecting plaintiff to cruel and unusual punishment as he was given no 

medical treatment or allowed to wash the mace off his face and body.” (Doc. 14 at 1). 

Plaintiff asserts that the use of “mace” was, “upon information and belief, done in

retaliation for the guard having been assaulted previously.” (Doc. 14 at 2). 

Plaintiff further alleges that “[w]ithout provocation..., defendant Corns grabbed the 

nurse and placed her behind him as defendant Taylor stepped forward and sprayed 

[Plaintiff] in the face with ...chemical mace.” (Id. at 2). The amended complaint accuses 

Corns and Taylor of “conspir[ing] to fabricate a false scenario..., stating that they saw the 

plaintiff rushing to the cell front with an unknown liquid in a bottle to use to throw on the 

nurse. They also lied and said that the plaintiff was being disrespectful to the nurse by 

making lewd remarks about or to her.” (Id. at 3). Plaintiff states he was charged “with 

numerous infractions defendant Taylor had fabricated in order to justify his use of 

excessive and unnecessary force.” (Id.) He alleges that the RIB’s “not guilty” verdict 

reflects video or other evidence that confirmed that Plaintiff had been standing at the front 

of his cell with his hands on the bars talking to his neighbor, and not holding a bottle of 

any unknown substance. Plaintiff alleges that because the video lacked sound, “as a 

way to pacify the guard, the [RIB] found plaintiff guilty of disrespect....” (Id.) Plaintiff 

appealed “but was denied relief.” (Id. at 4). In a conclusory fashion, he alleges that both 

Corns and Taylor “either actively participated in the unnecessary and excessive use of 
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chemical mace on him, then denied him medical treatment, and/or aqui[e]sed in the 

unconstitutional activity by failing to prevent it and involving theirselves [sic] in the cover 

up....” In addition to monetary relief, Plaintiff seeks the issuance of preliminary and 

permanent injunctive relief “prohibiting defendants and their agents from using 

unnecessary chemical mace on prisoners confined to their cells when they are not 

attempting or harming themselves, others or property.” (Doc. 14 at 4). 

Plaintiff has attached as exhibits to his amended complaint a number of documents 

relating to the RIB proceedings. One such exhibit is Defendant Taylor’s Conduct report, 

in which Taylor states:

I C/O Taylor along with C/O Corns was escorting Nurse Rayburn in L6 for 

evening med. pass. Be advised L-6 has been problematic all day with 

threats and [illegible], also two Inmates were escorted out earlier in the shift. 

This prompted us to have both myself and C/O Corns to escort the nurse. 

I/M Young...kept making remarks at the nurse “Baby bring that sweet ass 

over here” and was ordered multiple times to stop as we approached his 

cell I/M Young rushed to the cell front with an unknown liquid in a bottle

attempting to throw it. C/O Corns grabbed nurse rayburn [shielding] her 

where I deployed OC spray and giving multiple directives for I/M Young to 

drop the bottle with the unknown liquid in it.

(Doc. 14 at 6). Another exhibit is Plaintiff’s own statement to the Rules Infraction Board, 

in which he denies holding a bottle with liquid in it:

I didn’t do any of this. My arm is out the door because I was about to throw 

a letter down to my neighbor. I had my hands up in the bars in clear view. 

They locked two of my neighbors up earlier. I was laughing. We were 

laughing at the inmate too.

(Id. at 8). 

It is worth noting that in the administrative grievance proceedings reflected in the 

exhibits attached to the amended complaint, Plaintiff barely references to Officer Corns, 

and accuses only Defendant Taylor of assaulting him with OC spray. (See Doc. 14 at 15, 
20

informal complaint resolution (“ICR”)). Plaintiff also has attached the disposition of the 

Notification of Grievance (“NOG”), in which Linnea Mahlman states that she has reviewed 

the RIB findings, DVR video footage, Plaintiff’s statement, as well as a medical report 

“completed by medical on 02 20 2018” which found no injury. According to Mahlman’s 

denial of the NOG, the medical report reflects that Plaintiff was “removed from initial OC 

exposure area...and offered decontamination shower per security. Inmate advised to 

report any changes to staff and follow up with medical as needed.” (Doc. 14 at 14). In 

his final appeal of Mahlman’s denial of his NOG to the Chief Inspector, Plaintiff asserts 

for the first time that he was not seen by medical staff but instead was “thrown in a cell 

with the OC spray drying up on my skin!” However, nowhere in his amended complaint 

or in the attached exhibits does Plaintiff allege that: (1) he requested medical attention 

from Officers Taylor or Corns at any time; or (2) that he suffered any actual injury.

For all of the reasons discussed above, the construed-as-tendered “amended 

complaint” still would fail to state any claim against Taylor or Corns. Therefore, even 

considering Plaintiff’s belated motion seeking leave to amend, the undersigned would 

recommend denial of further amendment based upon the arguments advocated by 

Defendant Taylor in his motion to dismiss the original complaint. Plaintiff’s attempt to add 

new claims against Correctional Officer Corns fails for the same reasons. Additionally, 

the tendered new allegations against Officer Corns are even fewer and more conclusory 

than those alleged against Officer Taylor. `

V. Conclusion and Recommendations

For the reasons discussed, IT IS RECOMMENDED THAT:

1. Plaintiff’s motion to amend/correct or “convert” Defendant’s motion to dismiss 
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to a motion for summary judgment (Doc. 11) should be DENIED;

2. Defendant’s motion to dismiss Plaintiff’s original complaint (Doc. 7) should be 

GRANTED;

3. In the interests of justice, Plaintiff’s procedurally improper amended complaint 

(Doc. 14) and belated motion seeking leave to amend (Doc. 20) should be 

DENIED;

4. Consistent with preceding paragraph, Defendant’s motion to strike has been 

construed as a response in opposition to the construed-as-tendered 

amendment. Because this R&R recommends that no amendment be permitted 

but that the record of the tendered amendment be preserved, Defendant’s 

motion to strike should be DENIED AS MOOT.

s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge
22

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RODNEY T. YOUNG, Case No. 1:18-cv-490

Plaintiff, Barrett, J.

Bowman, M.J.

 v.

C. TAYLOR, 

Defendant.

NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written 

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) of 

the R&R objected to, and shall be accompanied by a memorandum of law in support of 

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14) 

DAYS after being served with a copy of those objections. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).