United States District Court, E.D. Kentucky, Southern Division, London
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Petitioner Defendants'
Second Motion for Summary Judgment. [R. 61.] Consistent with
local practice, this matter was referred to Magistrate Judge
Hanly A. Ingram, who filed a Report and Recommendation on
February 1, 2017, recommending that Defendants' Motion
for Summary Judgment “be DENIED as to Defendants'
exhaustion and qualified immunity defenses and
Plaintiff's Eight Amendment claim and GRANTED in favor of
Defendants as to Plaintiff's retaliation claim.”
[R. 78 at 23].
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
R&R or else waive his rights to appeal. In order to
receive de novo review by this Court, any objection
to the recommended disposition must be specific. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific
objection “explain[s] and cite[s] specific portions of
the report which [counsel] deem[s] problematic.”
Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir. 2007)
(quoting Smith v. Chater, 121 F.3d 709, 1997 WL
415309, at *2 (6th Cir. 1997) (unpublished opinion)). A
general objection that fails to identify specific factual or
legal issues from the Recommendation, however, is not
permitted, since it duplicates the magistrate's efforts
and wastes judicial economy. Howard v. Secretary of
Health and Human Services, 932 F.2d 505, 509 (6th Cir.
this Court granted an extension of time [R. 80], Defendants
filed timely objections to the Recommendation. [R. 81.]
Defendants make three specific objections. They assert that
the Magistrate Judge erred in recommending the denial of
Defendants' motion for summary judgment as to
Plaintiff's failure to exhaust his administrative
remedies and Plaintiff's Eighth Amendment claim; and the
Magistrate Judge erred in recommending denial of
Defendants' qualified immunity defense. Defendants'
objections are sufficiently definite to trigger this
Court's obligation to conduct a de novo review.
See 28 U.S.C. § 636(b)(1)(c). The Court has
satisfied that duty, reviewing the entire record, including
the motions, briefing, the parties' arguments, relevant
case law and statutory authority, as well as applicable
procedural rules. For the following reasons, Defendants'
objections will be OVERRULED.
Ingram's Recommended Disposition accurately sets forth a
more detailed account of the factual and procedural
background of the case and the applicable standard of review
for granting summary judgment. Except for what the Court
summarizes in its discussion below, the Court incorporates
his discussion of the record and the standard of review into
August 5, 2011, Davis was housed in the Special Housing Unit
(“SHU”) at USP McCreary. [See R. 27 at
2.] At roughly 8:30 a.m., Davis “broke the head of the
fire suppression overhead sprinkler in his cell.” [R.
61-1 at 4.] Davis's cell flooded and he began to push the
water from his cell into the hall of the SHU. [R. 61-1 at 4.]
The water from his cell allegedly contained “urine and
fecal matter.” [R. 61-1 at 4.] For cleaning purposes,
Davis had to be removed from his cell. [R. 61-1 at 4.] This
is where Defendants and Plaintiff have different stories of
what occurred next.
the Plaintiff, Davis alleges that as he was being removed
from his cell by Defendants, Officer Daryl
Coffman stood at the gate and said “vulgar
things in an effort to provoke” him. [R. 27 at 2.]
Davis admits he spit in the direction of Officer Coffman. [R.
27 at 2.] After he spit in the direction of Officer Coffman,
Davis alleges the three Defendants
slammed [him] on the floor, on [his] chest, subduing [him, ]
and after [he] was subdued, each Defendant proceeded to
physically assault [him], and one of the Defendants covered
the right side of [his] face with a pink towel, so that [he]
couldn't see who was doing what, and they proceeded to
twist [his] leg, and kick [him] in the head, until [he] lost
consciousness, and they continued to use physical violence to
wake me back up. During the assault, [he] heard J. Best say,
“F*** n****, son of a b****, ” and each Defendant
continued to maliciously and sadistically assault
[R. 27 at 2-3.] Davis reports that while Defendants were
assaulting him, he was handcuffed behind his back with his
chest on the floor and that he did not resist once on the
floor. [R. 27 at 3.] Davis alleges that excessive force was
used against him in retaliation for filing for administrative
relief. [R. 27 at 3.]
to Defendants, as Plaintiff was being removed from his cell,
he kicked water containing urine and fecal matter onto the
Defendants. [R. 61-1 at 4.] Plaintiff made threats against
the staff while the staff was giving him orders to calm down.
[Id.] Plainitff made a threat at Officer Coffman and
attempted to break away from the Defendants who were
restraining him. [R. 61-1 at 4.] Plaintiff lunged toward
Officer Coffman and spit in his face. [R. 61-1 at 4.] After
this occurred, Defendants made the decision to take the
Plaintiff to the ground in order to “regain control of
the situation.” [R. 61-1 at 5.] While Defendants were
attempting to subdue Plaintiff, they allege that he struggled
and was verbally abusive. [R. 61-1 at 5.] Further, Plaintiff
attempted to bite Defendant Best. [R. 61-1 at 5.] Defendant
Davis requested leg restraints and called for other staff
members to help. [R. 61-1 at 5.]
Davis also requested that the incident be filmed on a
handheld camera. Unfortunately, the camera footage from the
handheld camera did not begin until Defendant was almost on
his feet. [See R. 61-5 at 6.] Defendants have also
submitted camera footage from a security camera at the end of
the hall, though without sound. [See id.] The
security camera footage is bad quality and it is impossible
to tell exactly what is happening. The security camera
appears to be placed at the other end of a long hall from
where the incident occurred and various prison staff prevent
the viewer from seeing the details of the incident. Both
videos were submitted in camera and under seal to
the court. Neither piece of video footage is clear enough to
affirm the allegations of the Plaintiff or the Defendant.
parties agree that after the incident on the floor, Plaintiff
was placed in leg restraints and led to an observation cell.
[R. 61-1 at 5.] ¶ 11:20 a.m., Davis was medically
assessed and reported paint to the right side of his face,
his left side, and right ankle. [R. 61-4 at 5.] The medical
assessor found no injuries to the Plaintiff. [R. 61-1 at 5.]
Judge Ingram detailed Davis's attempts to obtain
administrative relief, a summary of which follows. The basis
for much of Judge Ingram's detailed history was taken
from an affidavit from Joshua Billings, an attorney at FMC
Lexington. [See R. 61-5.] Plaintiff filed a request
for Administrative Remedy with the warden at USP McCreary on
August 17, 2011. [R. 27 at 3; R. 61-5 at 3.] Next, on August
29, 2011, Plaintiff appealed his claim to the Mid-Atlantic
Regional Director, but he failed to attach necessary
documents and his appeal was rejected. [R. 27 at 4.] He
refiled his appeal on October 4, 2011, with the necessary
documents, and his appeal was accepted for consideration. [R.
27 at 4.] The Regional Director found that the investigation
did not reveal any evidence that “Defendants failed to
follow proper policy and procedure during the
incident.” [R. 27 at 4.] Plaintiff appealed this
decision on December 27, 2011, but he failed to attach
necessary documents and had marked his appeal as sensitive,
which it was not. [R. 27 at 4; R. 61-5 at 4.] Consequently,
his appeal was rejected on January 23, 2012. [R. 27 at 4.]
Plaintiff was given 15 days to correct his errors, but he
failed to do so. [R. 27 at 4.] Though not made explicitly
clear, Plaintiff indicated that he attempted to comply with
the requirements within 15 days, but he “went in
transit, ” and couldn't access the copies of his
records he needed. [R. 27 at 5.] In contrast, Mr.
Billings's affidavit states that Plaintiff arrived at USP
Lewisburg, where he was being transported on November 11,
2011, and his property was received by him on
December 28, 2011, one month before Plaintiff was given
notice he had 15 days to correct the errors on his appeal.
[R. 61-5 at 5.] Further, Defendants allege that Plaintiff did
receive his legal documents according to an Inmate Personal
Property record dated on December 28, 2011. [R. 61-5 at 57.]
This record states Plaintiff received “2 [inch]
letters, ” with no further description, along with
other personal effects. [R. 61-5 at 57.] However, in
Plaintiff's Appellant Brief, he alleges that he never
received the “Administrative Remedy Response, ”
he presumes because his mail had been tampered with. Reply
Brief by Plaintiff-Appellant at 4, Davis v. Davis, No.
14-5247 (6th Cir. Nov. 24, 2014). Davis alleges that, when he
tried to respond within the 15 required days, he requested a
“copy of the administrative remedy response” from
the administrative remedy coordinator, but it was not
provided to him. Id. at 5.
January 24, 2012, the Bureau of Prisons referred
Plaintiff's claim of excessive force to Special
Investigative Agent Corriveau at USP McCreary. [See
R. 61-4 at 2.] SIA Corriveau interviewed the Plaintiff and
each Defendant, as well as other staff at USP McCreary,
watched the video surveillance footage, and reviewed
Plaintiff's medical assessment. [R. 61-4 at 3.] He found