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Bostrom v. Rowland

United States District Court, W.D. Michigan, Southern Division

January 2, 2018

JOHN BOSTROM #647630, Plaintiff,
v.
J. ROWLAND, et al., Defendants.

          REPORT AND RECOMMENDATION

          ELLEN S. CARMODY U.S. Magistrate Judge

         This matter is before the Court on Defendants' Motion for Summary Judgment. (ECF No. 43). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that Defendants' motion be granted in part and denied in part.

         BACKGROUND

         The following allegations are contained in Plaintiffs verified complaint. Plaintiff regularly received visits in prison from his mother and children. On an unspecified date in February 2013, Plaintiffs mother was visiting Plaintiff when the pair complained about foul language being directed at them by a female correctional officer. After making this complaint, Corrections Officer Rowland became hostile toward Plaintiff and his family. Plaintiff later told Rowland that if she continued to behave disrespectfully toward him and his family he would complain to her supervisors and file a grievance. Rowland responded by telling Plaintiff that she would terminate and permanently restrict his mother's visits if he complained or filed a grievance. Plaintiff informed Sergeant Benoit of Rowland's threats and Benoit instructed Plaintiff not to complain or file a grievance. Plaintiff also complained to Warden McKee and Lieutenant Wise.

         On February 9, 2013, Rowland terminated a visit from Plaintiffs mother after she "swung at" Rowland during an attempt to conduct a search. Warden McKee subsequently directed that Plaintiffs mother be permanently restricted from visiting any MDOC facility. During the week following this incident, Plaintiff was harassed by unit staff at Rowland's behest. On February 16, 2013, Plaintiff "succumbed" to this harassment and engaged in inappropriate behavior which resulted in him being charged with misconduct violations and taken to administrative segregation.

         While escorting Plaintiff to administrative segregation, Corrections Officer Pepper shoved Plaintiff and bent his left wrist causing it to snap and break. Plaintiff told Pepper that he would file a grievance and sue Pepper for breaking his wrist. In response, Pepper told Plaintiff, "I know. That's what you get." Pepper later suggested that he broke Plaintiffs wrist because Plaintiff had complained about Rowland's behavior. Later that day, Registered Nurse Spurbeck visited Plaintiffs cell to examine his wrist. Spurbeck refused to examine Plaintiffs wrist and instead falsely reported that Plaintiff was "denying need for healthcare."

         On February 22, 2013, Physician's Assistant Holt[1]examined Plaintiff. Holt concluded that Plaintiffs wrist "appeared and felt broken, " but nevertheless refused Plaintiff medical care. Holt instead told Plaintiff, "this is what happens when [you] get into trouble." X-rays of Plaintiffs wrist, taken March 7, 2013, revealed that Plaintiffs wrist was broken. Plaintiff ultimately required surgery to repair his wrist. On March 11, 2013, Plaintiff filed a grievance alleging excessive force against Defendant Pepper.

         On March 26, 2013, Lieutenant Wise charged Plaintiff with misconduct for filing a false grievance against Pepper alleging excessive force. Wise informed Plaintiff that he was "going to learn a lesson." On March 28, 2013, after Plaintiff told Sergeant Benoit that he intended to sue him and Rowland, Benoit responded, "So you haven't learned." A few minutes after this exchange Plaintiff was returned to administrative segregation based on a charge by Benoit that Plaintiff had engaged in threatening behavior, a charge which was subsequently dismissed.

         Plaintiff initiated this action alleging various claims, a great many of which were dismissed on screening. At this juncture, the only claims remaining in this matter are: (1) retaliation claims against Defendants Rowland, McKee, Pepper, Wise, and Benoit, and (2) Eighth Amendment claims against Defendants Pepper and Spurbeck. The remaining Defendants now move for summary judgment.

         LEGAL STANDARD

         Summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party moving for summary judgment can satisfy its burden by demonstrating "that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case." Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005); see also, Amini v. Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The fact that the evidence may be controlled or possessed by the moving party does not change the non-moving party's burden "to show sufficient evidence from which a jury could reasonably find in her favor, again, so long as she has had a full opportunity to conduct discovery." Minadeo, 398 F.3d at 761 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)).

         Once the moving party demonstrates that "there is an absence of evidence to support the nonmoving party's case, " the non-moving party "must identify specific facts that can be established by admissible evidence, which demonstrate a genuine issue for trial." Amini, 440 F.3d at 357 (citing Anderson, 477 U.S. at 247-48; CelotexCorp. v. Catrett, 477 U.S. at 324). Whilethe Court must view the evidence in the light most favorable to the non-moving party, the party opposing the summary judgment motion "must do more than simply show that there is some metaphysical doubt as to the material facts." Amini, 440 F.3d at 357. The existence of a mere "scintilla of evidence" in support of the non-moving party's position is insufficient. Daniels v. Woodside, 396 F.3d 730, 734-35 (6th Cir. 2005) (quoting Anderson, 477 U.S. at 252). The non-moving party "may not rest upon [his] mere allegations, " but must instead present "significant probative evidence" establishing that "there is a genuine issue for trial." Pack v. Damon Corp., 434 F.3d 810, 813-14 (6th Cir. 2006) (citations omitted).

         Moreover, the non-moving party cannot defeat a properly supported motion for summary judgment by "simply arguing that it relies solely or in part upon credibility determinations." Fogerty v. MGMGroup Holdings Corp., Inc., 379 F.3d 348, 353 (6th Cir. 2004). Rather, the non-moving party "must be able to point to some facts which may or will entitle him to judgment, or refute the proof of the moving party in some material portion, and. . .may not merely recite the incantation, 'Credibility, ' and have a trial on the hope that a jury may disbelieve factually uncontested proof." Id. at 353-54. In sum, summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Daniels, 396 F.3d at 735.

         While a moving party without the burden of proof need only show that the opponent cannot sustain his burden at trial, see Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787 (6th Cir. 2000); Minadeo, 398 F.3d at 761, a moving party with the burden of proof faces a "substantially higher hurdle." Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby County Sch. Dist, 270 F.3d 1036, 1056 (6th Cir. 2001). "Where the moving party has the burden - the plaintiff on a claim for relief or the defendant on an affirmative defense - his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party." Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). The Sixth Circuit has repeatedly emphasized that the party with the burden of proof "must show the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it." Arnett, 281 F.3d at 561 (quoting 11 James William Moore, et al., Moore's Federal Practice § 56.l3[l], at 56-138 (3d ed. 2000); Cockrel, 270 F.2d at 1056 (same). Accordingly, summary judgment in favor of the party with the burden of persuasion "is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact." Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

         ANALYSIS

         I. Eighth Amendment Claims

         Plaintiff claims that Defendant Pepper, by breaking his wrist, subjected him to the use of excessive force in violation of the Eighth Amendment. Plaintiff further claims that Defendant Spurbeck violated his Eighth Amendment rights by failing to provide him with appropriate medical treatment for his broken wrist.

         A. Defendant Pepper

         1. Legal Standard

         The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. U.S. Const, amend. VIII. The excessive use of force which results in the unnecessary and wanton infliction of pain violates this provision. See Whitley v. Aiders, 475 U.S. 312, 319 (1986). Claims alleging the excessive use of force have both a subjective and an objective component. See Wilson v. Seiter, 501 U.S. 294, 298-99 (1991).

         The objective component of the analysis examines whether the pain or deprivation allegedly suffered by the prisoner was "sufficiently serious" to implicate the Eighth Amendment. Id. To be "sufficiently serious, " the prison official's act or omission must deny the prisoner of "the minimal civilized measure of life's necessities, " Farmer v. Brennan, 511 U.S. 825, 834 (1994), as defined by contemporary standards of decency. See Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004). While the Eighth Amendment does not prohibit every de minimis use of physical force, where "prison officials maliciously and sadistically use force to cause harm, " contemporary standards of decency "always are violated" regardless whether the force applied was de minimis or resulted in injury. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).

         The subjective component of the analysis examines whether the prison official's conduct reflected "obduracy and wantonness" or was instead the product of "inadvertence or error in good faith." Wilson, 501 U.S. at 299. In this respect, the relevant inquiry is "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Whitley, 475 U.S. 320-21. When evaluating whether a prison official's conduct falls short of this standard, the Court must consider the following factors: (1) the need for the application of force, (2) the relationship between such need and the force used, (3) the threat reasonably perceived by the prison official, and (4) any efforts undertaken to temper the severity of the response. Hudson, 503 U.S. at 7. The absence of injury, while relevant, is not dispositive. Id.

         The Supreme Court recently had an opportunity to again examine the relationship between the amount of force employed by a prison official and the reason or rationale for such. In this regard, the Court observed as follows:

When prison officials maliciously and sadistically use force to cause harm, the Court recognized, contemporary standards of decency always are violated. . .whether 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.
This is not to say that the absence of serious injury is irrelevant to the Eighth Amendment inquiry. [T]he extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation. The extent of injury may also provide some indication of the amount of force applied. As we stated in Hudson, not every malevolent touch by a prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind. An inmate who complains of a push or shove that causes no discernible injury almost certainly fails to state a valid excessive force claim.
Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.

Wilkins v. Gaddy, 559 U.S. 34, 36-38 (2010) (internal citations and quotations omitted).

         2. Defendant is Not Entitled to Summary Judgment

         Defendant Pepper argues that he is entitled to summary judgment based upon the result of the March 26, 2013 misconduct hearing concerning the misconduct charge against Plaintiff for "Interference with the Administration of Rules." (ECF No. 44 at PageID.435). In his motion for summary judgment, however, Defendant Pepper fails to advance any argument in support of the proposition that the results of this misconduct hearing compel relief in his favor. Instead, Defendant simply assumes that such is the case.

         In light of the deficiencies in Defendant's argument, the Court, on May 19, 2017, issued to Defendants an Order to Show Cause, noting that while "Defendants seek to have the Court give preclusive effect to the findings and conclusions of various prison misconduct proceedings, " Defendants "have failed. . . to articulate a proper basis or rationale for such." (ECF No. 54). The Court noted that controlling authority in the Sixth Circuit holds that the factual findings made in a prison disciplinary proceeding are not given preclusive effect in subsequent proceedings as a matter of course. (ECF No. 54 quoting Roberson v. Torres, 110 F.3d 398, 404-05 (6th Cir. 2014)). The Court further observed that "Defendants have failed to address the factors relevant to determining whether preclusive effect should be accorded the factual findings in question, but instead seem to assume, incorrectly, that such is simply mandated." (ECF No. 54). Accordingly, the Court ordered Defendants "to show cause why their request to give preclusive effect to the factual findings in ...


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