Lovell v. Clermont County Sheriff's Office et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARK LOVELL,
Case No. 1:23-cv-114
Plaintiff,
Bowman, M.J.
v.
CLERMONT COUNTY SHERIFF’S OFFICE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER 1
Plaintiff Mark Lovell filed suit against multiple Defendants under 42 U.S.C. § 1983
based on events that occurred at the Clermont County Jail, following his arrest on
misdemeanor charges outside a local bar on the evening of February 27, 2021. Plaintiff
generally alleges that multiple Clermont County correctional officers subjected him to
excessive force, and that a nurse and the officers exhibited deliberate indifference to his
serious medical needs after employing that force. Two motions for summary judgment
are pending. Before the Court can address those dispositive motions, this Order
addresses three non-dispositive motions related to the briefing of the summary judgment
motions.
I. 	Background: the Court’s Standing Order and Procedural Motions
Pursuant to the General Standing Order on Civil Procedures, the undersigned
magistrate judge requires a party seeking summary judgment to include “as the first
attachment to every opening brief…a document entitled “Proposed Undisputed Facts,”
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Pursuant to 28 U.S.C. § 636(c), the parties have consented to proceed before the undersigned magistrate
judge. (See Doc. 20.)
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which sets forth … a concise statement of each material fact as to which the moving party
contends there is no genuine issue to be tried.” See Pretrial Procedures, Section I. E.3.a.
Each Proposed Undisputed Fact requires a specific citation to evidence that would be
admissible at trial, with the supporting evidence to be filed of record. Id.
In addition to the moving party’s obligation to include Proposed Undisputed Facts,
the non-moving party is obligated to include in any responsive memorandum a “Response
to Proposed Undisputed Facts” that confirms whether each of the facts proposed as
undisputed by the moving party is actually undisputed (admitted) or denied. Id., Section
1.E.3.b. To the extent the proposed fact is denied, “the denial must be supported with a
citation to contrary evidence that would be admissible at trial” with such evidence to be
filed of record. The response in opposition to summary judgment “must also include, in a
separate section entitled “Disputed Issues of Material Fact” a list of each issue of material
fact the opponent contends must be tried.” Id.
On July 26, 2025, a group of Defendants that includes the Clermont County Board
of Commissioners, Sheriff Stratton in his official capacity, former Sheriff Leahy in his
individual capacity, and six corrections officers at the Clermont County Jail (collectively
referred to as the “County Defendants”) filed a motion for summary judgment. (Doc. 58.)
The County Defendants’ motion included a “Statement of Proposed Undisputed Facts.”
On the same date, Defendants Southern Health Partners and Nurse Irwin (collectively the
“SHP Defendants”) filed a separate motion for summary judgment. (Doc. 57.)
Unlike the County Defendants, the SHP Defendants initially failed to include the
requisite Proposed Undisputed Facts. Therefore, the Court entered an order, sua sponte,
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directing the SHP Defendants to file a separate exhibit of Proposed Findings of Fact. The
SHP complied with that order on August 4, 2025.
Plaintiff Lovell timely filed separate Responses in Opposition to both motions for
summary judgment on August 22, 2025. (Docs. 64, 65.) Although Plaintiff’s responses
are filled with multiple citations to videos and other records that are referenced as if they
were evidentiary exhibits filed of record, Plaintiff inadvertently failed to attach or file any
of those evidentiary exhibits. And - but for a small number of videos filed by Defendants
- the exhibits were not otherwise filed of record. 2 In addition to that error, Plaintiff filed
Responses to the Defendants’ Proposed Undisputed Facts (Docs. 66, 67) plus Plaintiff’s
own “Proposed Additional Undisputed Facts.” (Doc. 68), rather than including a “Disputed
Issues of Material Fact” section as dictated by the Standing Order.
Plaintiff appears to have been unaware to the procedural errors until September
5, 2025. On that day, the County Defendants filed a reply memorandum in support of their
pending motion for summary judgment that referenced the errors, (Docs. 69), plus a
motion 	to 	strike 	more 	than 	two 	dozen 	of 	Plaintiff’s 	responses 	to 	their 	Proposed
Undisputed Facts. (Doc. 71.) Among other things, the motion to strike asks this Court to
ignore responses based on citations to evidence that Plaintiff inadvertently failed to file of
record, and to “treat the facts as set forth by the Defendants’ Statement of Proposed
Undisputed 	Facts 	as 	undisputed, 	(see 	id. 	at 	PageID 	1903). 	Joined 	by 	the 	SHP
Defendants, the County Defendants also moved to strike the document separately filed
2
Plaintiff’s response to the County Defendants’ motion for summary judgment explains that because he
relies in part on exhibits already filed of record by Defendants, “he has only attached unique exhibits to this
response.” (Doc. 64, PageID 1720 (emphasis original).)
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by Plaintiff as “Proposed Additional Undisputed Facts,” in part because it is unauthorized
by this Court’s Standing Order. (Doc. 70.)
Plaintiff Lovell filed a single response in opposition to the two motions to strike,
(Doc. 75), to which the County Defendants filed a reply memorandum.3 (Doc. 77.) Having
been alerted to his procedural errors, Plaintiff separately moved to amend his original
Response in Opposition to the pending summary judgment motion so as to include the
inadvertently omitted exhibits, and to provide additional record citations. In addition,
Plaintiff’s 	tendered 	Amended 	Response 	in 	Opposition 	wraps 	Plaintiff’s 	“Proposed
Additional Undisputed Facts” into a “Disputed Issues of Material Fact” section, consistent
with the undersigned’s Standing Order.
II. 	Analysis of Procedural Motions
Plaintiff’s attempt to cure his prior procedural errors is strongly opposed by the
Defendants. In addition to various procedural objections, Defendants claim that Plaintiff’s
proposed 	amendment 	includes 	substantive 	revisions 	that 	would 	be 	prejudicial 	to
Defendants. In the exercise of the Court’s discretion, the Court will grant Plaintiff’s motion
to amend/correct his Response, and will deny both motions to strike. To avoid potential
prejudice to the County Defendants, the Court will permit that group of Defendants to file
an Amended Reply Memorandum if desired.
All parties are expected to closely review and adhere to the undersigned’s
Standing Orders. But to err is human. Sometimes this Court will catch a procedural error
and sua sponte direct a party to correct it, as it did with the SHP Defendants’ failure to
3
Because the SHP Defendants only joined the County Defendants’ motion to strike Plaintiff’s Proposed
Additional Undisputed Facts, the reply memorandum states that the SHP Defendants join only “the portions
of this [reply] brief that address[] that motion.” (Doc. 77, PageID 2464.)
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initially include a “Proposed Undisputed Facts” section. Other times, either the party who
made the procedural error will recognize it on their own or opposing counsel will point it
out.
On the record presented, the motions to strike and opposition to Plaintiff’s attempt
to correct his errors elevates form over substance to a degree that frustrates the interests
of justice. Defendant seeks to win summary judgment based on what is – particularly with
respect to Plaintiff’s failure to file critical exhibits – essentially a clerical error. But Plaintiff
is not blameless. Defendants rightly object to the extent that Plaintiff’s “new and improved”
Response contains an expansion on the merits of his prior response – beyond the mere
“correction” of an omitted exhibit. One example illustrates the point.
The County Defendants’ original Proposed Undisputed Fact #54 reads: “Officers
were required to use OC Pepper Spray and tactical strikes to gain control.” (Doc. 58-1,
PageID 1278.) 	It is worth pointing out that the County Defendants’ “Fact #54” does not
allege 	objective 	fact 	so 	much 	as 	state 	Defendants’ 	preferred 	legal 	conclusion.
Regardless, Defendants cite primarily to the “Response to Resistance” or “RTR” report
conducted by Jail officials who deemed the force to be appropriate. 4
In an apparent attempt to challenge any conclusion that officers were objectively
or legally “required” to use force, Plaintiff’s first Response in Opposition to Proposed Fact
#54 focuses on the facts underlying the deployment of OC spray.
54. Deny. Two seconds after Mr. Lovell’s torso reached the floor, Officer
Tincher announced “OC,” which alerted the other officers that he was
preparing to deploy OC spray. Less than a second later, and without giving
Mr. Lovell any warning, Officer Tincher deployed pepper gel directly to Mr.
Lovell’s face from only one or two inches away. Officer Bailey shielded
himself from the OC gel by removing one of his hands from Mr. Lovell’s right
4
Although Defendants also cite to one of four video exhibits they filed, they do not identify what portion of
the exhibit supports this alleged “fact” – which arguably is not a “fact” at all but a legal conclusion.
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arm and using it to cover Mr. Lovell’s face. (DeBord Video 1 at 5:37-5:40;
Clermont Video 2-169 at 4:51-4:54.)
(Doc. 67, PageID 1805.) But despite providing pinpoint citations to two video clips that
depict the exact moments involving the deployment of OC spray, Plaintiff failed to file the
cited videos. So Defendants urge this Court to accept as “fact” that the force used in the
incident was “required.”
Plaintiff’s motion to amend his Response goes further than merely providing the
corrected citations to the two previously cited video exhibits. The highlighted red text
reflects the alteration.
54. Deny. Two seconds after Mr. Lovell’s torso reached the floor, Officer
Tincher announced “OC,” which alerted the other officers that he was
preparing to deploy OC spray. Less than a second later, and without giving
Mr. Lovell any warning, Officer Tincher deployed pepper gel directly to Mr.
Lovell’s face from only one or two inches away. Officer Bailey shielded
himself from the OC gel by removing one of his hands from Mr. Lovell’s right
arm and using it to cover Mr. Lovell’s face. (DeBord Video 1 (Ex. 39) at 5:37-
5:40; Clermont Video 2-169 (Ex. 26) at 4:51-4:54; Ex. 3 (Still-image of
Clermont Video 2-169 (Ex. 26) at 4:51, depicting Mr. Lovell pinned to the
floor in a prone position by five of the guards, with two of them securing his
arms, before Officer Tincher deployed the OC gel); Ex. 4 (Still-image of
Clermont Video 2-169 (Ex. 26) at 4:53, showing Mr. Lovell’s arms still
secure and not underneath his body when Officer Tincher deployed OC gel
directly to his face from point-blank range); Ex. 5 (Still-image of DeBord
Video1 (Ex. 39) at 5:39, depicting the same); Ex. 6 (Still-image of Clermont
Video 2-169 (Ex. 26) at 4:55, depicting Mr. Lovell still pinned to the floor,
with his arms secured and not underneath his body, while Officer Tincher
rubbed the OC gel into his face); Ex. 7 (still-image of DeBord Video1 (Ex.
39) at 5:41, showing Officer Mullenix securing Mr. Lovell’s left arm behind
his back during the OC deployment); Ex. 9 (Still-image of DeBord Video 1
(Ex. 39) at 5:43, showing Officer Mullenix still securing Mr. Lovell’s left arm
behind his back as Officer Tincher punched his upper back); Ex. 10 (Still-
image of Clermont Video 2-169 (Ex. 26) at 4:58, showing Officer Bailey and
Officer Pemberton punching Mr. Lovell while Officer Bailey had Mr. Lovell’s
right arm pinned to the floor with his right leg); Ex. 11 (still-image from
DeBord Video 1 (Ex. 40) at 5:49, depicting the same)).
(Doc. 74-2, PageID 1993.)
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Defendants’ opposition to amendment argues that – under the guise of merely
correcting “procedural” errors – Plaintiff essentially expands substantive arguments in
opposition to the County Defendants’ motion. In his reply memorandum, Plaintiff counters
that – notwithstanding the expansion, “each of the proposed exhibits… was specifically
referenced in his initial response.” For sections in which new citations and parenthetical
“explanations” have been added (including but not limited to Proposed Fact #54), Plaintiff
argues that the additions “are simply still shots captured from those very same video
recordings” and that “each of the still shots was included in [Plaintiff’s] initial response in
opposition to the County Defendants’ summary judgment motion. (Doc. 79, PageID
2492.)
But even if Plaintiff is correct about the prior inclusion of the still photos, the
expanded language and manner in which the original response has been altered is
potentially prejudicial. For that reason, the Court will permit both the County Defendants
to file an Amended Reply Memorandum. To be clear, the Court rejects all other objections
to Plaintiff’s Amended Response. The Court will consider all sections of the Amended
Response together with the newly filed supporting exhibits, without further consideration
of Plaintiff’s original response (Doc. 64), his prior Response to the County Defendants’
Proposed Undisputed Facts (Doc. 67), or the previously filed “Additional Proposed Facts.”
(Doc. 68). Except as discussed herein, the Court overrules other objections expressed in
both motions to strike.5
5
In contrast to the County Defendants’ objection to Plaintiff’s separate filing, the SHP Defendants did not
move to strike Plaintiff’s Response in Opposition to their Proposed Undisputed Facts, (Doc. 66), which will
be considered when the Court reviews the merits of the SHP Defendants’ motion for summary judgment.
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III. 	Conclusion and Order
For the reasons stated, IT IS ORDERED:
1. 	Both motions to strike (Docs. 70, 71) are DENIED based on this Court’s
exercise of discretion and overruling of Defendants’ objections;
2. 	Plaintiff’s motion to amend/correct his Opposition and Responses to Proposed
Facts (Doc. 74) is GRANTED, with the tendered Amended Brief in Opposition
(Doc. 74-1) to be filed of record by the Clerk of Court, along with tendered
exhibits (Doc. 74-2 through 74-14);
3. 	The Manual Filing of Video Exhibits in support of the Amended Brief in
Opposition (Doc. 74-1) will be fully considered on summary judgment as
properly filed of record;
4. 	No further motions to strike, or other motions concerning briefing of the pending
motions for summary judgment, shall be filed.
5. 	Without further motion, the County Defendants may, but are not required to, file
an Amended Reply Memorandum in support of summary judgment within
seven (7) days of the date of this Order.
__s/Stephanie K. Bowman________
Stephanie K. Bowman
United States Chief Magistrate Judge
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