UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHAEL SLOCUM, Case No. 1:18-cv-423

Plaintiff, Cole, J.

Litkovitz, M.J.

vs.

SGT. S. BEAR, et al., REPORT AND

Defendants. RECOMMENDATION

Plaintiff Michael Slocum, a prisoner at the Southern Ohio Correctional Facility (SOCF), 

filed this pro se civil rights complaint under 42 U.S.C. § 1983 alleging that defendants Bear, 

Lewis, Crabtree, and Cooper, SOFC corrections officers, used excessive force against him in 

violation of his Eighth Amendment rights. Plaintiff also alleges that defendants engaged in 

retaliation in violation of his First Amendment rights and inappropriate supervision under the 

Ohio Administrative Code. This matter is before the Court on defendants’ motion for summary 

judgment (Doc. 87), plaintiff’s response in opposition (Doc. 98), and defendants’ reply (Doc. 

100), as well as plaintiff’s cross-motion for summary judgment (Doc. 99), to which defendants 

did not respond. The Court recommends that defendants’ motion be denied in part and granted 

in part and that plaintiff’s motion be denied.

I. Factual Background

Plaintiff submitted declarations signed under penalty of perjury with his response to 

defendants’ motion for summary judgment and his motion for summary judgment. (See Doc. 98 

at PAGEID 525-530; Doc. 99 at PAGEID 571-74). According to plaintiff’s version of events, he 

was assaulted by defendants at SOCF on October 27, 2017. At approximately 9:30 a.m., he went 

to defendant Bear’s office for a disciplinary hearing on a rules infraction “ticket.” (Pl.’s Decl., 

Doc. 98 at PAGEID 525). When he entered the office, five correctional staff were present, 

including defendants Bear, Crabtree, Cooper, Lewis, and an unidentified individual. (Id. at 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 1 of 16 PAGEID #: 586
2

PAGEID 526). The unidentified individual subsequently stepped out of the office and the four

named defendants remained. (Id.). 

Defendant Bear read plaintiff’s ticket and asked plaintiff for his side of the story. (Id.). 

Defendant Bear became angry, called plaintiff a liar, and used a racial slur. (Id.). Plaintiff also 

asserts that defendant Bear stated, “I see [you] like to assault c/o[]s and we didn’t welcome you 

with an ass whoopin (sic) yet.” (Id.). Plaintiff then signed his ticket, despite being handcuffed 

from the back. (Id.). After plaintiff signed the ticket, defendant Bear punched him in his 

forehead and right eye. (Id.). Plaintiff alleges that defendants Crabtree, Cooper, and Lewis then 

began striking and punching the right side of his body between his shoulder and his waist. (Id. at 

PAGEID 526-27). Bear eventually told the other defendants to stop and told plaintiff to leave 

his office. (Id. at PAGEID 527). 

Upon leaving the office, plaintiff asked officer Bashum for medical attention but was 

denied. (Id. at PAGEID 527). Plaintiff also asked the same of defendants Cooper and Crabtree, 

but they laughed at him and locked him in his cell. (Id.). Plaintiff eventually caught the 

attention of Captain Bell and Ms. Davis1 and recounted the use of force. (Id. at PAGEID 527-

28). A few hours later, Nurse James examined plaintiff. (Id. at PAGEID 528). The 

corresponding first medical report noted the alleged use of force against plaintiff but contained 

the following objective findings: “No discoloration, bruising, swelling, or deformity of [the 

plaintiff’s] right side or elbow noted. Patient ambulatory with steady gait. Pleasant.” Nurse 

James gave plaintiff Motrin upon his request. (First medical report, Doc. 87-2 at PAGEID 478).2

1 Neither plaintiff nor defendants identify the title or position of Ms. Davis. 2 Plaintiff incorporated several of defendants’ exhibits as his own. Plaintiff’s Exhibits 1-4 are four medical reports 

(previously submitted as Docs. 87-2-87-5) and plaintiff’s Exhibits 6 and 7 are Institutional Inspector Mahlman’s 

affidavit and report (previously submitted as Docs. 87-1 and 87-2). (See Doc. 98-1 at PAGEID 534). As his Exhibit 

5, plaintiff proffers records documenting his 15-day stay in segregation, during which time he allegedly experienced 

the excessive use of force. (See Doc. 98-1 at PAGEID 543-44). 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 2 of 16 PAGEID #: 587
3

Plaintiff avers that he told Nurse James about the use of force but that she did not document his 

injuries in the first medical report. (Doc. 98 at PAGEID 528). 

The next day, plaintiff woke up in pain with his entire right eye swollen shut and his

forehead and body badly bruised. (Id.). For the next two days, plaintiff asked to receive medical 

care for his injuries but was denied. (Id.). On October 30, 2017, plaintiff was examined by

Nurse Tipton, who recorded his injuries and referred him to Certified Nurse Practitioner (CNP)

Conley.

3 (Id. at PAGEID 529). The second medical report corresponding to this examination by 

CNP Conley stated: “Edematous area below right eye, Right eye swollen halfway shut. . . . 

Right elbow with small amount edema above joint. No open area, discoloration or drainage. No 

deformity seen. No pain upon palpation. . . . Right lateral rib cage painful to touch. Area below 

arm pit to just above waist slightly discolored, some bruising noted. No deformity, slight edema. 

. . . ROM [range of motion] poor.” (Second medical report, Doc. 87-3 at PAGEID 481). 

The following day, CNP Conley examined plaintiff again (October 31, 2017). (Doc. 99 

at PAGEID 574). The corresponding third medical report indicated: “Right Eye: no 

subconjunctival hemorrhage, slight periorbital edema noted with contusion surrounding upper 

and lower eyelid . . . . Right side: tenderness on chest wall, contusions present[,]” but otherwise 

noted no deformities. (Third medical report, Doc. 87-4 at PAGEID 484). Plaintiff was given 

Tylenol. (Id.). A fourth medical report, from an examination dated November 2, 2017, included

plaintiff’s report that his injuries were “gone now” and documented only a small bruise on the 

right side of his stomach. (Fourth medical report, Doc. 87-5 at PAGEID 487). 

On November 13, 2017, plaintiff filed a grievance alleging an unreported use of force on

October 27, 2017, and Institutional Inspector Mahlman of SOCF investigated his claims. 

3 The parties both refer to “Dr. Conley,” but the underlying medical reports indicate that Mr. Conley is a CNP. (See, 

e.g., Doc. 87-4 at PAGEID 483-44). 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 3 of 16 PAGEID #: 588
4

(Mahlman Aff., Doc. 87-1 at PAGEID 472). In her affidavit, Inspector Mahlman avers that 

security footage of defendant Bear’s office showed plaintiff entered “with ease and uninjured,” 

remained standing in defendant Bear’s office for approximately five minutes, then exited the 

office “with ease and uninjured, as if nothing happened.” (Id. at PAGEID 473). Inspector 

Mahlman’s report indicated that the security footage failed to reveal that an unreported use of 

force occurred. (Id.). Inspector Mahlman also stated that the first medical report from October 

27, 2017 did not corroborate an unreported use of force. (Id.). Inspector Mahlman concluded 

that “[p]laintiff’s claim of an alleged unreported use of force lacked merit and did not warrant 

further investigation.” (Id.). 

II. Summary Judgment Standard

A motion for summary judgment should be granted if the evidence submitted to the Court 

demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled 

to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A grant of 

summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show that there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of law.” Satterfield v. 

Tenn., 295 F.3d 611, 615 (6th Cir. 2002) (quoting Fed. R. Civ. P. 56). The Court must evaluate 

the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving 

party. Satterfield, 295 F.3d at 615 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 

U.S. 574, 587 (1986)).

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 4 of 16 PAGEID #: 589
5

The trial judge’s function is not to weigh the evidence and determine the truth of the 

matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 

249. The trial court need not search the entire record for material issues of fact, Street v. J.C. 

Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), but must determine “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. 

“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587. “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). However, “[f]acts that are not blatantly contradicted by [the evidence] remain entitled to 

an interpretation most favorable to the non-moving party.” Coble v. City of White House, Tenn., 

634 F.3d 865, 870 (6th Cir. 2011). “In response to a properly supported summary judgment 

motion, the non-moving party ‘is required to present some significant probative evidence which 

makes it necessary to resolve the parties’ differing versions of the dispute at trial.” Maston v. 

Montgomery Cnty. Jail Med. Staff Pers., 832 F. Supp. 2d 846, 849 (S.D. Ohio 2011) (quoting 

Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987)).

A fact is “material” if its resolution will affect the outcome of the lawsuit. Beans v. City 

of Massillon, No. 5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016) (citing 

Anderson, 477 U.S. at 248), aff’d, 706 F. App’x 295 (6th Cir. 2017). The party who seeks 

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

its motion, and identifying those portions of [the record] which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 322. To make its 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 5 of 16 PAGEID #: 590
6

determination, the court “need consider only the cited materials, but it may consider other 

materials in the record.” Fed. R. Civ. P. 56(c)(3). The party opposing a properly supported 

motion for summary judgment “may not rest upon the mere allegations or denials of [the] 

pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” 

First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968).

 Because plaintiff is a pro se litigant, his filings are liberally construed. Spotts v. United 

States, 429 F.3d 248, 250 (6th Cir. 2005) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); 

Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) (pro se plaintiffs enjoy the benefit of a 

liberal construction of their pleadings and filings)). However, a party’s status as a pro se litigant 

does not alter the party’s duty on a summary judgment motion to support his factual assertions 

with admissible evidence. Maston, 832 F. Supp. 2d at 851-52 (citing Viergutz v. Lucent Techs., 

Inc., 375 F. App’x 482, 485 (6th Cir. 2010)). 

III. Defendants’ Motion for Summary Judgment 

A. Excessive Force

1. Legal Standard

Plaintiff’s Eighth Amendment claim is brought under 42 U.S.C. § 1983. To prevail on a 

§ 1983 claim, plaintiff must demonstrate “(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.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting Sigley v. City 

of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)). 

A convicted prisoner’s right to be free from the use of excessive force by prison officials 

is governed by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 327 (1986). An Eighth 

Amendment claim has both an objective and subjective component. Cordell v. McKinney, 759 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 6 of 16 PAGEID #: 591
7

F.3d 573, 580 (6th Cir. 2014) (citing Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013)). The 

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. (quoting Hudson v. 

McMillian, 503 U.S. 1, 7 (1992)). See also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). In making 

this inquiry, the Court should 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, 

the extent of the injury inflicted, and any efforts made to temper the severity of a forceful 

response. See Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 319-21. The inmate is not required to 

suffer a serious injury, but the extent of his injuries may be considered in determining whether 

the force used was wanton and unnecessary. Wilkins, 559 U.S. at 38-40; Hudson, 503 U.S. at 7. 

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); 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 (citing 

Wilkins, 559 U.S. at 37). “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. 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 

581 (quoting Hudson, 503 U.S. at 9).

2. Analysis

Defendants rely on Inspector Mahlman’s investigation of plaintiff’s allegation of an 

unreported use of force on October 27, 2017 (see Doc. 87-1) to support their position that there 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 7 of 16 PAGEID #: 592
8

are no genuine issues of material fact regarding plaintiff’s excessive force claim. Inspector 

Mahlman reviewed the security footage from the time and location involved in plaintiff’s 

allegations and found that plaintiff entered defendant Bear’s office with ease and uninjured, 

remained standing in the office for approximately five minutes, and exited the office “with ease 

and uninjured, as if nothing happened.” (Id. at PAGEID 473). Inspector Mahlman ultimately 

concluded that “[t]he security footage did not reveal an unreported use of force occurred.” (Id.). 

Plaintiff’s responsive brief alleges that the security footage provided to him upon his 

discovery request was edited to skip over the use of force and then slowed down to account for 

the use of force that was “clearly removed from the footage.” (Pl.’s Resp., Doc. 98 at PAGEID

523). Plaintiff’s sworn declaration, however, does not address the integrity of the video footage 

relied upon by Inspector Mahlman. The speculative and unsworn assertions offered by plaintiff 

in his response brief to cast doubt on the accuracy of the security footage upon which Inspector

Mahlman relied is not evidence that can be considered on summary judgment. 

In reply, defendants urge the Court to view the facts “in the light depicted by the 

videotape.” (Doc. 100 at PAGEID 582) (quoting Scott, 550 U.S. at 381). The security footage 

itself, however, is not before the Court,

4 and Inspector Mahlman’s description of the security 

footage violates the best evidence rule and is hearsay. See Fed. R. Evid. 801, 802, and 1002. See 

Hinson v. Bias, 927 F.3d 1103, 1108 n.1 (11th Cir. 2019) (affidavit based solely on affiant’s 

interpretation of surveillance footage not considered on summary judgment because it violated 

the best evidence rule and was inadmissible hearsay). Inspector Mahlman’s affidavit is not 

4 Defendants do not state that the security footage is unavailable or otherwise discuss why it has not been proffered 

as evidence. 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 8 of 16 PAGEID #: 593
9

based on her personal knowledge of the alleged use of force incident but rather her recollection 

of the content of the security footage. The best evidence rule provides that “[a]n original writing, 

recording, or photograph is required in order to prove its content unless these rules or a federal 

statute provides otherwise.” Fed. R. Evid. 1002. The purpose of the best evidence rule is to 

prevent fraud and encourage accuracy. See Buruca v. D.C., 902 F. Supp. 2d 75, 83 (D. D.C. 

2012) (quoting United States v. Holton, 116 F.3d 1536, 1545 (D.C. Cir. 1997)) (“[T]he rule is a 

mechanism to prevent fraud or mistransmission of information, i.e., to ensure accuracy.”). 

Defendants offer Inspector Mahlman’s affidavit to prove the content of the security footage, i.e., 

that no use of force occurred. However, defendants have not offered this video footage into 

evidence. Inspector Mahlman’s affidavit as it relates to the security footage invokes the 

concerns underlying the best evidence rule and cannot be considered on summary judgment. 

The Court declines to consider Inspector Mahlman’s affidavit for purposes of summary judgment 

as it relates to the content of the security footage of the alleged use of force. Therefore, 

defendants have not presented evidence showing that plaintiff’s version of events is a “visible 

fiction” such that “no reasonable jury could believe it. . . .” Scott, 550 U.S. at 380. See also 

Coble, 634 F.3d at 870 (“Facts that are not blatantly contradicted by [the evidence] remain 

entitled to an interpretation most favorable to the non-moving party.”).

Defendants also argue that the medical reports of record demonstrate that there is no 

genuine issue of material fact regarding whether plaintiff experienced an excessive use of force

on October 27, 2017. Approximately two hours after the alleged use of force, plaintiff was sent 

for a medical examination by Nurse James, and the corresponding first medical report 

communicated the following objective findings: “No discoloration, bruising, swelling, or 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 9 of 16 PAGEID #: 594
10

deformity of right side or elbow noted. Patient ambulatory with steady gait.” (Doc. 87-2 at 

PAGEID 478). The only treatment noted was Motrin, given upon plaintiff’s request. (Id.). 

Plaintiff has averred, however, that Nurse James “did not document [his] injuries” on the date of 

the alleged use of force. (Doc. 98 at PAGEID 528).

In addition, plaintiff argues that the medical reports from the medical examinations

occurring over the next several days present a genuine issue of material fact as to whether an

excessive use of force occurred on October 27, 2017. On October 30, 2017, plaintiff was seen 

by Nurse Tipton and CNP Conley. (Doc. 87-3 at PAGEID 481). The second medical report 

corresponding to this examination quoted plaintiff as “[h]aving a lot of pain in [his] elbow and 

[his] face and [his] ribs from an assault” and noted that it “happened on Friday 10-27.” (Id.)

(emphasis added). The objective findings included: “Edematous area below right eye, Right eye 

swollen halfway shut. . . . Right elbow with small amount edema above joint. No open area, 

discoloration or drainage. No deformity seen. No pain upon palpation. . . . Right lateral rib 

cage painful to touch. Area below arm pit to just above waist slightly discolored, some bruising 

noted.” (Id.). The relevant objective findings in the third medical report, which correspond to 

plaintiff’s October 31, 2017 medical examination, included: “Right Eye: no subconjunctival 

hemorrhage, slight periorbital edema noted with contusion surrounding upper and lower eyelid . . 

. . Right side: tenderness on chest wall, contusions present.” (Doc. 87-4 at PAGEID 484). The

third medical report also noted that his injuries relate to an “alleged unreported [use of force] . . . 

5 days ago.” (Id. at PAGEID 483) (emphasis added). 

It is true, as defendants argue, that there are several-day time lapses between the second 

and third medical examinations and the date of the alleged use of force—arguably attenuating the 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 10 of 16 PAGEID #: 595
11

connection between the injuries documented in these medical reports and the alleged use of 

force. Plaintiff avers, however, that he was housed in a segregation cell from October 22 to 

November 5, 2017 for a prior rules infraction and only left the cell for the October 27 hearing

and to go to the medical unit. (Doc. 99 at PAGEID 574; see also Pl.’s Ex. 5, Doc. 98-1 at 

PAGEID 544 (showing that this was the disposition from his prior rules infraction)). This 

evidence supports plaintiff’s argument that he was not in a position to have had any other 

interpersonal interactions resulting in his injuries during the time period covered by the medical 

reports. In addition, the second and third medical reports support a finding of injuries consistent

with plaintiff’s claim of an excessive use or force on October 27, 2017.5

 Together, the Court 

finds that this evidence creates a genuine issue of material fact as to whether defendants used 

excessive force against plaintiff on October 27, 2017. 

As it relates to the subjective component of his Eighth Amendment claim, as discussed 

above, plaintiff has proffered evidence creating a genuine issue of material fact as to whether 

defendants’ use of force was motivated by something other than an effort to restore order or 

maintain discipline. Plaintiff avers that the alleged use of force was preceded by a racial slur and 

statement suggesting that the use of force by the defendants present in defendant Bear’s office

was in retaliation for plaintiff’s previous assaults on corrections officers. (See Doc. 98 at 

PAGEID 526) (“I see [you] like to assault c/o[]s and we didn’t welcome you with an ass 

whoopin (sic) yet.”). This evidence, if true, could lead a reasonable trier of fact to conclude that 

5 Given that the Court must construe all facts in the light most favorable to plaintiff, see Satterfield, 295 F.3d at 615, 

the undersigned is not persuaded by defendants’ argument that the reference in the third medical report (dated 

October 31, 2017) to a use of force that occurred “five days ago” does not, as a matter of law, refer to the alleged use 

of force at issue. (See Doc. 87 at PAGEID 466). 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 11 of 16 PAGEID #: 596
12

defendants were motivated by racial bias or vengeance. As it relates to the objective component, 

plaintiff must allege pain “sufficiently serious” to offend “contemporary standards of decency.” 

Cordell, 759 F.3d at 580 (quoting Williams, 631 F.3d at 383; Hudson, 503 U.S. at 8). Plaintiff’s 

declarations and the second and third medical reports present a genuine issue of material fact on 

the objective component of plaintiff’s Eighth Amendment claim. Given the conflicting evidence 

in this case, defendants’ motion for summary judgment on plaintiff’s Eighth Amendment claim 

should be denied. 

B. Retaliation and Inappropriate Supervision

Defendants also seek summary judgment on plaintiff’s “retaliation” and “inappropriate 

supervision” claims. (Am. Comp., Doc. 62 at PAGEID 367). Defendants’ motion for summary 

judgment on plaintiff’s claims for retaliation and inappropriate supervision should be granted.

The elements of a First Amendment retaliation claim are:

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the 

plaintiff that would deter a person of ordinary firmness from continuing to engage in that 

conduct; and (3) there is a causal connection between elements one and two—that is, the 

adverse action was motivated at least in part by the plaintiff's protected conduct.

Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (quoting Thaddeus-X v. Blatter, 175 

F.3d 378, 394 (6th Cir. 1999)). In response to defendants’ motion for summary judgment, 

plaintiff has failed to come forward with any evidence showing he engaged in protected conduct 

for purposes of element one or that defendants’ alleged actions were in response to plaintiff 

engaging in protected conduct for purposes of element two. Without any such evidence (let 

alone allegations), plaintiff also cannot show the required causal connection between the two for 

purposes of the third element of his retaliation claim. Relatedly, given this failure, defendants 

are entitled to qualified immunity on this claim because plaintiff has failed to demonstrate the 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 12 of 16 PAGEID #: 597
13

deprivation of a constitutional right. See Al-Lamadani v. Lang, 624 F. App’x 405, 409 (6th Cir. 

2015) (“First, we must decide whether the facts viewed in the light most favorable to the plaintiff 

show that the officer has violated the plaintiff’s constitutional right.”) (citing Pearson v. 

Callahan, 555 U.S. 223, 232 (2009)).

6

 Defendants’ motion for summary judgment should be 

granted on plaintiff’s First Amendment retaliation claim.

Ohio Administrative Code § 5120-9-04 governs appropriate supervision, discrimination,

and racial issues within the Ohio Department of Rehabilitation and Correction. It provides:

As used herein, the term “inappropriate supervision” means any continuous method 

of annoying or needlessly harassing an inmate or group of inmates, including, but 

not limited to, abusive language, racial slurs, and the writing of inmate conduct 

reports strictly as a means of harassment. A single incident may, due to its severity 

or egregiousness, be considered inappropriate supervision for purposes of this rule.

Ohio Admin. Code § 5120-9-04(B). To the extent that plaintiff alleges inappropriate 

supervision, plaintiff has not produced evidence of ongoing or continuous harassing behavior. 

Instead, plaintiff’s sworn declaration references a single instance in which defendant Bear used a 

racial slur. (Doc. 98 at PAGEID 526). Although the use of a single racial slur is reprehensible, 

plaintiff has nevertheless failed to present evidence that this single incident had the “severity or 

egregiousness” to constitute inappropriate supervision. Ohio Admin. Code. § 5120-9-04(B). Cf.

King v. Wilkinson, No. 2:04-CV-116, 2005 WL 3535154 (S.D. Ohio Dec. 23, 2005) (Where only 

a single allegedly harassing event took place, “the issue is whether Plaintiffs have presented a 

question of fact as to whether [defendant] issued a conduct report to Plaintiffs for non-existent 

reasons.”). Plaintiff’s declaration and argument on his inappropriate supervision claim are 

simply too threadbare to establish a genuine issue of material fact. A reasonable jury could not 

return a verdict for plaintiff on the sole basis of this comment, without more. See Tokmenko v. 

6 Defendants’ motion does not raise qualified immunity with respect to plaintiff’s Eighth Amendment claim. (See 

Doc. 87 at PAGEID 469-70). 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 13 of 16 PAGEID #: 598
14

MetroHealth Sys., No. 1:18-cv-2579, 2020 WL 5629093, at *2 (N.D. Ohio Sept. 21, 2020)

(citing Anderson, 477 U.S. at 250) (“A dispute about a fact is ‘genuine’ if the evidence is such 

that a reasonable jury could return a verdict for the nonmoving party.”). Defendants’ motion for 

summary judgment should be granted on plaintiff’s inappropriate supervision claim. 

IV. Plaintiff’s Motion for Summary Judgment

Plaintiff also moves for summary judgment on his Eighth Amendment claim (Doc. 99).

For the reasons set forth above, plaintiff’s motion should be denied.

A motion for summary judgment should be granted if the evidence submitted to the Court 

demonstrates that there is no genuine issue as to any material fact, and that the movant is entitled 

to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex, 477 U.S. at 322; Anderson, 

477 at 247. When the movant is the party with the burden of proof on a claim, the movant must 

show there is no genuine issue on all essential elements of his claim. In re Miller, No. 10-60119, 

2010 WL 3463296, at *2 (Bankr. N.D. Ohio Sept. 2, 2010) (citing Prestige Capital Corp. v. 

Michigan Gage and Mfg., LLC, 722 F. Supp.2d 837, 842 (E.D. Mich. 2010) (when the movant 

bears the ultimate burden of persuasion, the “movant’s affidavits and other evidence not only 

must show the absence of a material fact issue, they also must satisfy that burden”); Brixey v. 

Confer (In re Confer), 277 B.R. 374, 378 (Bankr. S.D. Ohio 2002)).

As discussed in Part III, plaintiff has identified genuine issues of material fact that 

preclude summary judgment on his Eighth Amendment claim. Plaintiff has not satisfied his 

ultimate burden of persuasion. Plaintiff’s motion for summary judgment on his Eighth 

Amendment claim should therefore be denied. 

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 14 of 16 PAGEID #: 599
15 

IT IS THEREFORE RECOMMENDED THAT:

1. Defendants’ motion for summary judgment (Doc. 87) be DENIED as to plaintiff’s Eighth 

Amendment claim and GRANTED as to plaintiff’s First Amendment retaliation and 

inappropriate supervision claims; and 

2. Plaintiff’s motion for summary judgment (Doc. 99) be DENIED. 

Date: ____________________ __________________________ 

 Karen L. Litkovitz

United States Magistrate Judge

3/26/2021

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 15 of 16 PAGEID #: 600
16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHAEL SLOCUM, Case No. 1:18-cv-423

Plaintiff, Cole, J.

Litkovitz, M.J.

vs.

SGT. S. BEAR, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the 

recommended disposition, a party may serve and file specific written objections to the proposed 

findings and recommendations. This period may be extended further by the Court on timely 

motion for an extension. Such objections shall specify the portions of the Report objected to and 

shall be accompanied by a memorandum of law in support of the objections. If the Report and 

Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party’s objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

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

Case: 1:18-cv-00423-DRC-KLL Doc #: 101 Filed: 03/26/21 Page: 16 of 16 PAGEID #: 601