United States District Court, W.D. Michigan, Northern Division
PAUL L. MALONEY JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
a civil rights action brought by state prisoner William Cowan
pursuant to 42 U.S.C. § 1983. Plaintiff, a diabetic,
alleges that on July 2, 2014, he experienced a
“blackout spell” (a hypoglycemic episode) due to
low blood sugar while confined at the Chippewa Correctional
Facility. Plaintiff was disoriented and was hallucinating and
stated that he thought he remembered he was not incarcerated
and, although it sounds weird, that “he was being
attacked by aliens.” (ECF No. 82-2, PageID.499).
Plaintiff was restrained in the dayroom in order to prevent
harm to himself and others. Plaintiff does not know who
restrained him. Plaintiff asserts that excessive force was
used, which caused him shoulder and back pain. Plaintiff
states that he recently learned that he has tendinitis in his
shoulder, which he did not have prior to this incident. (ECF
No. 86-2, PageID.513). Plaintiff had arthritis in his
shoulder, but was told that the tendinitis was caused by the
use of handcuffs. Defendants Corrections Officer Trent Miller
and former Warden Jeffrey Woods filed a motion for summary
judgment (ECF No. 85). Plaintiff filed a response (ECF No.
88). The only remaining claims in this case involve the
allegations that Defendants Miller and Woods used excessive
force in restraining Plaintiff during his hypoglycemic
episode. (Opinion, ECF No. 40, PageID.257). Defendants Miller
and Woods state that they were not present during the
hypoglycemic episode and that excessive force was not used.
judgment is appropriate only if the moving party establishes
that there is no genuine issue of material fact for trial and
that he is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-323 (1986). If the movant carries the burden of
showing there is an absence of evidence to support a claim or
defense, then the party opposing the motion must demonstrate
by affidavits, depositions, answers to interrogatories, and
admissions on file, that there is a genuine issue of material
fact for trial. Id. at 324-25. The nonmoving party
cannot rest on its pleadings but must present “specific
facts showing that there is a genuine issue for trial.”
Id. at 324 (quoting Fed.R.Civ.P. 56(e)). The
evidence must be viewed in the light most favorable to the
nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986). Thus, any direct evidence
offered by the plaintiff in response to a summary judgment
motion must be accepted as true. Muhammad v.
Close, 379 F.3d 413, 416 (6th Cir.
2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th
Cir. 1994)). However, a mere scintilla of evidence in support
of the nonmovant's position will be insufficient.
Anderson, 477 U.S. at 251-52. Ultimately, the court
must determine whether there is sufficient “evidence on
which the jury could reasonably find for the
plaintiff.” Id. at 252. See also Leahy v.
Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993)
(single affidavit, in presence of other evidence to the
contrary, failed to present genuine issue of fact); cf.
Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1448
(6th Cir. 1993) (single affidavit concerning state of mind
created factual issue).
under Section 1983 must be based on more than merely the
right to control employees. Polk Co. v. Dodson, 454
U.S. 312, 325-26 (1981); Monell v. New York City
Department of Social Services, 436 U.S. 658 (1978).
Thus, Section 1983 liability cannot be premised upon mere
allegations of respondeat superior. Monell,
436 U.S. at 691; Polk, 454 U.S. at 325. A party
cannot be held liable under Section 1983 absent a showing
that the party personally participated in, or otherwise
authorized, approved or knowingly acquiesced in, the
allegedly unconstitutional conduct. See e.g. Leach v.
Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989),
cert. denied, 495 U.S. 932 (1990); Hays v.
Jefferson, 668 F.2d 869, 874 (6th Cir.), cert.
denied, 459 U.S. 833 (1982). See also Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir.), cert.
denied 469 U.S. 845 (1984).
officials can be held liable for the acts of their
subordinates only if plaintiff establishes that the
supervisor failed to appropriately discharge his supervisory
duties, and that this failure resulted in a denial or
deprivation of plaintiff's federal rights. See e.g.
Leach, 891 F.2d at 1246; Hayes v. Vessey, 777
F.2d 1149, 1154 (6th Cir. 1985). However, the failure of a
supervisor to supervise, control or train the offending
employee is not actionable absent a showing that the official
implicitly encouraged, authorized, approved or knowingly
acquiesced in, or in some other way directly participated in,
the offensive conduct. Leach, 891 F.2d at 1246. Such
a claim requires, at a minimum, that the official had
knowledge of the offending employee's conduct at a time
when the conduct could be prevented, or that such conduct was
otherwise foreseeable or predictable. See e.g. Gibson v.
Foltz, 963 F.2d 851, 854 (6th Cir. 1992). In addition,
plaintiff must show that defendant had some duty or authority
to act. See e.g. Birrell v. Brown, 867 F.2d 956, 959
(6th Cir. 1989) (lower level official not liable for
shortcomings of building); Ghandi v. Police
Dept. of City of Detroit, 747 F.2d 338, 351 (6th
Cir. 1984) (mere presence at the scene is insufficient
grounds to impose Section 1983 liability in the absence of a
duty to act); accord Hall v. Shipley, 932 F.2d 1147
(6th Cir. 1991). In addition, merely bringing a problem to
the attention of a supervisory official is not sufficient to
impose such liability. See Shelly v. Johnson, 684
F.Supp. 941, 946 (W.D. Mich. 1987) (Hillman, C.J.),
aff'd 849 F.2d 228 (6th Cir. 1988). Finally,
supervisory liability claims cannot be based on simple
negligence. Leach, 891 F.2d at 1246; Weaver v.
Toombs, 756 F.Supp. 335, 337 (W.D. Mich. 1989),
aff'd 915 F.2d 1574 (6th Cir. 1990).
has not alleged facts establishing that Defendants Miller and
Woods were personally involved in the alleged
excessive force which occurred during his hypoglycemic
episode. Defendant Woods is being sued merely because he was
the Warden of the facility at the time of the alleged
excessive force. Defendant Miller was not present during the
hypoglycemic episode and arrived to start his shift after
Plaintiff was being examined in the dayroom by the nurse.
When he entered the dayroom, Plaintiff told him to leave and
he did. Defendants were not involved in restraining
Plaintiff. Defendants cannot be liable for such conduct under
§ 1983. Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999), cert. denied, 530 U.S. 1264 (2000).
alternatively move for qualified immunity. Government
officials, performing discretionary functions, generally are
shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known. Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th
Cir. 1999); Turner v. Scott, 119 F.3d 425, 429 (6th
Cir. 1997); Noble v. Schmitt, 87 F.3d 157, 160 (6th
Cir. 1996); Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). An “objective reasonableness” test is
used to determine whether the official could reasonably have
believed his conduct was lawful. Dietrich, 167 F.3d
at 1012; Anderson v. Creighton, 483 U.S. 635, 641
(1987). “Qualified immunity balances two important
interests-the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when
they perform their duties reasonably.” Pearson v.
Callahan, 129 S.Ct. 808, 815 (2009).
making a qualified immunity determination the court must
decide whether the facts as alleged or shown make out a
constitutional violation or whether the right that was
allegedly violated was a clearly established right at the
time of the alleged misconduct. Id. at 816. If the
court can conclude that either no constitutional violation
occurred or that the right was not clearly established,
qualified immunity is warranted. The court may consider
either approach without regard to sequence. Id.
initially argue that Plaintiff's alleged injury was
de mimimis. Not “every malevolent touch by a
prison guard gives rise to a[n Eighth Amendment] cause of
action.” See Hudson v. McMillian, 503 U.S. 1,
9 (1992). However, in Wilkins v. Gaddy, 130 S.Ct.
1175, 1178 (2010), the Supreme Court held that significant
injury is not a threshold requirement for an excessive force
claim. Instead, the “‘core judicial inquiry'
[is not] the extent of the injury, ” but “whether
[the force used] was nontrivial and “was applied . . .
maliciously and sadistically to cause harm.'”
Id. at 1179 (quoting Hudson, 503 U.S. at
7). As a result, an excessive force claim should not be
dismissed on the basis that the Plaintiff's injuries were
de minimis.” Id. at 1179. However, in
the opinion of the undersigned, Defendants Miller and Woods
are entitled to qualified immunity from liability, because
Plaintiff has failed to set forth facts that establish that
each Defendant violated his rights.
summary, in the opinion of the undersigned, Plaintiff has
failed to sustain his burden of proof in response to
Defendant's motion for summary judgment. Accordingly, it
is recommended that Defendants' Motion for Summary
Judgment (ECF No. 85) be granted and that this case be
dismissed in its entirety.
the court adopt the report and recommendation in this case,
the court must next decide whether an appeal of this action
would be in good faith within the meaning of 28 U.S.C. §
1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d
601, 611 (6th Cir. 1997). For the same reasons that the
undersigned recommends granting Defendants' motion for
summary judgment, the undersigned discerns no good-faith
basis for an appeal. Should the court adopt the report and
recommendation and should Plaintiff appeal this decision, the
court will assess the $505 appellate filing fee pursuant to
§ 1915(b)(1), see McGore, 114 F.3d at 610-11,
unless Plaintiff is barred from proceeding in forma
pauperis, e.g., by the “three-strikes” rule
of § 1915(g). If he is barred, he will be required to
pay the $505 appellate filing fee in one lump sum.
TO PARTIES: Objections to this Report and Recommendation must
be served on opposing parties and filed with the Clerk of the
Court within fourteen (14) days of receipt of this Report and
Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely
objections constitutes a waiver of any further right to