Griffin v. Kyle

• Decision Date: 17 January 2012
• Docket Number: Case No. 2:10-cv-664
• Parties: Thomas Griffin, Jr., Plaintiff, v. Correctional Officer Kyle, Defendants.
• Court: U.S. District Court — Southern District of Ohio

Thomas Griffin, Jr., Plaintiff,

v.Correctional Officer Kyle, Defendants.

Case No. 2:10-cv-664

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: January 17, 2012

JUDGE GREGORY L. FROST

Magistrate Judge Kemp

REPORT AND RECOMMENDATION

This prisoner civil rights case was filed by Thomas Griffin, Jr., an inmate at the Belmont Correctional Institution located in St. Clairsville, Ohio. As prior orders of this Court indicate, Mr. Griffin's complaint arises out of an incident which occurred at the Belmont Correctional Institution on April 18, 2010, during which one of the defendants, Corrections Officer Kyle, emptied a canister of tear gas or pepper spray into an inmate dormitory.

On July 28, 2011, Mr. Griffin filed a motion for summary judgment. On August 16, 2011, Defendants Michelle Miller, the Warden at Belmont, and Ernie Moore, the Director of the Ohio Department of Rehabilitation and Correction, moved for summary judgment, and on the same day, defendant B.J. Hammond, a corrections officer, filed a separate motion for summary judgment. All three of these defendants also relied on their motions as responses to Mr. Griffin's summary judgment motion.

On August 17, 2011, Officer Kyle filed a response to Mr. Griffin's motion for summary judgment, and six days after that, she filed her own motion for summary judgment. Mr. Griffin then filed a motion to stay or dismiss all of the defendants' summary judgment motions, arguing that he needed discovery to oppose the motions, and that the Court had recently extended the discoverycutoff date to November 10, 2011, so that he would not have the necessary discovery prior to that date. The Court granted his motion and set the new response dates for all of the defendants' summary judgment motions as November 17, 2011.

Since the date of that latter order, which was filed on October 17, 2011, Mr. Griffin has filed a notice of service of subpoenas to testify at deposition, a motion to dismiss Director Moore (which is unopposed), a second notice of service of subpoenas, and a copy of a deposition subpoena for Officer Kyle. He also filed a pretrial statement. He did not, however, file a response to any of the summary judgment motions. Because it is now almost two months after the date those responses were due, the Court considers them ready for a decision based on the current record, which includes Mr. Griffin's summary judgment motion (essentially, the Court has before it cross-motions for summary judgment), the affidavits filed by defendants, and Mr. Griffin's verified complaint. The last of these documents does have evidentiary value; as this Court stated in Collaborative Systems Group, Inc. v. Grove, 2011 WL 4502019, *2 (S.D. Ohio Sept. 28, 2011),

A verified complaint carries the same weight as would an affidavit for the purposes of summary judgment. El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (citing Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (explaining that where a party files a verified complaint, the allegations contained therein "have the same force and effect as an affidavit for purposes of responding to a motion for summary judgment" (internal quotation marks omitted)).

Before reaching the merits of the cross-motions, however, the Court first considers Mr. Griffin's motion to dismiss his claims against Director Moore. If this motion has merit, there is no need to discuss whether Director Moore is entitled to summary

judgment.

I. Defendant Ernie Moore

Defendant Moore moved for summary judgment on the ground that he was not personally involved in the incident about which Mr. Griffin has complained. In response, Mr. Griffin moved to dismiss Mr. Moore as a defendant, but asked that the dismissal be without prejudice. Although a defendant in Mr. Moore's position might assert that a dismissal without prejudice at this stage of the case, after he had moved for summary judgment, would cause him to suffer "plain legal prejudice" beyond the mere prospect of facing a second lawsuit, see Grover by Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994), that argument has not been made, and the motion to dismiss has not been opposed. Therefore, the Court will recommend that the motion to dismiss the claims against Defendant Moore be granted.

II. The Basic Facts

In its Report and Recommendation filed on July 15, 2011, Doc. #66, at 1-2, the Court described the facts of this case in the following way:

Mr. Griffin's complaint is based on the following facts, as he alleges them. On April 18, 2010, Belmont Correctional had been placed on lockdown status due to some inmate fights. After the evening meal was served, Mr. Griffin went to the restroom. While he was there, Corrections Office Kyle, one of the defendants, entered and ordered everyone to leave. Mr. Griffin advised her that he had been given permission by another corrections officer to use the restroom, but Officer Kyle again ordered everyone to leave. As Mr. Griffin attempted to comply with her order, she sprayed him with tear gas, and she continued to do so even as Mr. Griffin and the other inmates returned to the dormitory area. Then, with the help of another of the defendants, Corrections Officer Hammond, Officer Kyle emptied a tear gas fogger into the dormitory. Mr. Griffin claims that since that time, he has had problems with his vision and also has experienced weight loss, skin irritation, and breathingdifficulties.

Beyond this basic set of facts, the defendants have all submitted evidentiary materials with their summary judgment motions. As noted below, the way the Court construes all of these facts depends upon whether it is considering Mr. Griffin's summary judgment motion, in which case the facts are construed in defendants' favor, or the defendants' motions, in which case the opposite approach is used. The Court will recite additional facts in connection with its discussion of whether either Mr. Griffin or any of the defendants is entitled to summary judgment.

III. The Summary Judgment Standard

Summary judgment is not a substitute for a trial when facts material to the Court's ultimate resolution of the case are in dispute. It may be rendered only when appropriate evidentiary materials, as described in Fed. R. Civ. P. 56(c), demonstrate the absence of a material factual dispute and the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464 (1962). The moving party bears the burden of demonstrating that no material facts are in dispute, and the evidence submitted must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Additionally, the Court must draw all reasonable inferences from that evidence in favor of the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654 (1962). The nonmoving party does have the burden, however, after completion of sufficient discovery, to submit evidence in support of any material element of a claim or defense on which that party would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. See Celotex Corp. v.Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Of course, since "a party seeking summary judgment ... bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, the responding party is only required to respond to those issues clearly identified by the moving party as being subject to the motion.

The fact that the parties have cross-moved for summary judgment does not establish that there are no triable factual issues. "[T]he standards upon which the court evaluates the motions for summary judgment do not change simply because the parties present cross-motions." Taft Broadcasting Co. v. United States, 929 F.3d 240, 248 (6th cir. 1991). Rather, as that decision notes, quoting John v. State of La. (Bd. of Trustees for State Colleges and Universities), 757 F.2d 698, 705 (5th Cir.1985), "'[t]he filing of cross-motions for summary judgment does not necessarily mean that the parties consent to resolution of the case on the existing record or that the district court is free to treat the case as if it was submitted for final resolution on a stipulated record.'" Rather, the Court must evaluate each motion separately under Rule 56's standards. Id.

IV. Defendant Michelle Miller

There is no dispute that, at the time of this incident, Michelle Miller was the Warden of the Belmont Correctional Institution, and that she was not personally present when Officer Kyle used pepper spray and tear gas in the restroom and dormitory where Mr. Griffin was housed. As also noted in the Court's prior Report and Recommendation, Mr. Griffin has alleged in his complaint that the Warden was responsible for what occurred either due to her failure to discipline corrections officers whoengaged in the violation of inmates' rights or the failure properly to recruit, train, supervise or discipline such officers. In his motion for summary judgment, Mr. Griffin does not provide any more factual support for this claim, but argues that "Defendant Miller ... could not possibly have made certain that the employees under [her] care and control were aware of the constitutional rights of the inmates they were charged with guarding or the present situation would have never been possible."

The Court must assume, as true, for purposes of Warden Miller's motion, that the incident happened just as Mr. Griffin has described it. It does not have to assume, however, that Mr. Griffin's allegation about inadequate training is true. Even though his complaint is verified, it does not establish that he has any first-hand knowledge about the way in which Warden Miller trained,...