United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
S. CARMODY U.S. Magistrate Judge
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.
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
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
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
February 22, 2013, Physician's Assistant
Holtexamined 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.
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.
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
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)).
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).
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.
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).
Eighth Amendment Claims
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
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).
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).
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.
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
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).
Defendant is Not Entitled to Summary Judgment
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.
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 ...