On March 1, 2023, the federal court for the Southern District of Ohio granted dismissal of a suit brought by a former Cincinnati jail detainee after she accepted a $40,000 settlement from the Hamilton County Board of County Commissioners for an assault by jail guards four year earlier.

The day after Courtney Walters was booked into the Hamilton County Justice Center on April 19, 2019, she refused an order to return to her cell. Three guards then “took her to the ground.” While she was facedown, restrained and being handcuffed, another guard, April D. Jones, ran across the pod and kicked Walters in the face.

After the incident, which was captured on surveillance video, Walters was left with minor injuries, including a lump on her forehead, as well as pain, dizziness and nausea. Jamelia Durham, one of the three guards who restrained Walters, reported Jones for using excessive force, saying she “subjected Walters to an intentional ‘soccer kick.’”

Jones claimed the kick was accidental, and an administrator agreed with her after a hearing. Although Walters said she filed two grievances regarding the incident, the jail’s grievance coordinator claimed there was no record of those complaints.

Walters then filed suit in state court in December 2020, alleging violations of her Fourth and Fourteenth Amendment rights. After the suit was removed to federal court, Jones moved to dismiss it, arguing Walters failed to exhaust her administrative remedies, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. The guard also retained an expert, Wayne Wallace, who claimed the kick was “incidental” and called the force used against Walters “insufficient” rather than excessive. Jones then moved for summary judgment, while Walters filed a motion in limine to exclude Wallace’s expert testimony.

On March 30, 2022, the district court found there was a genuine issue of material fact as to whether Walters had exhausted the grievance process. Walters provided sworn testimony that she filed two grievances; further, the Court noted that “the record also contains sworn testimony from numerous other inmates that the Jail has a practice of failing to respond to their grievances and that a corrections officer even told them that Jail personnel throw grievances away.” Since these were disputed facts, they precluded summary judgment.

Next, the Court addressed the merits of Walter’s claims, holding that a reasonable jury could find Jones had intentionally kicked Walters, and saying this would constitute excessive force. Citing Kingsley v. Hendrickson, 576 U.S. 389 (2015), the Court said the factors to consider included the need to use force; the amount of force used; the injuries caused; any effort to limit the amount of force used; the extent of the security problem; the threat reasonably perceived by the guard; and the resistance of the prisoner.

Based on surveillance video and the complaint filed by Durham, the Court said that a jury could find that Jones intentionally kicked Walters in the head while she was restrained. Therefore, summary judgment was not appropriate. Nor was Jones entitled to qualified immunity, as gratuitous violence is always unreasonable and assaulting a restrained, unresisting prisoner violated clearly established rights at the time.

Lastly, the Court held that opinions of Jones’ proposed expert “do not constitute competent expert evidence relevant to the determination of any material issue in this case.” Wallace had not expressed an opinion as to whether Jones’ kick was intentional or accidental, nor whether it was excessive force under the circumstances. Finding his “unadorned conclusions” insufficient, the Court therefore excluded his testimony.

The case settled less than a year later, with a payment that included costs and fees for Walters’ Cincinnati attorney, Robert B. Newman. See: Walters v. Jones, USDC (S.D. Ohio), Case No. 1 :21-cv-00073.

This was at least the second incident at the Hamilton County Justice Center in which surveillance video captured a guard kicking a detainee in the head. In July 2020, Sgt. Jesse Franklin, then 38, was charged with assault for booting Nick Ballachino, then 46, during the booking process. Then-Sheriff Jim McNeil terminated Franklin for using excessive force and charged him with misdemeanor assault. Ballachino filed suit in state Court of Common Pleas for Hamilton County, also alleging the guard used excessive force.

But after a bench trial in January 2022, Judge Bernie Bouchard dismissed Franklin’s misdemeanor charge, saying the guard was provoked when Ballachino bit into his boot. In October that same year, an arbitrator ordered Franklin reinstated with back pay. Judge Robert Goering then tossed Ballachino’s lawsuit in January 2023, saying the detainee’s “extremely belligerent and aggressive” behavior was “substantially certain to cause” Franklin to kick him in the head.  

Additional sources: Cincinnati Enquirer, WXIX

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