United States District Court, W.D. Michigan, Southern Division
KENNETH COLVIN, JR. #192744, Plaintiff,
DANIEL HEYNS, et al., Defendants.
S. CARMODY U.S. Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Summary Judgment, (ECF No. 151), and Defendants'
Motion for Summary Judgment, (ECF No. 152). Plaintiff
initiated the present action against numerous prison
officials alleging numerous violations of his state and
federal rights. At this juncture, the only claims remaining
are Eighth Amendment excessive force and state law assault
and battery claims against Defendants West and Morefield
arising from an incident in which Plaintiff was subdued by
use of a taser. Defendants and Plaintiff now move for summary
judgment. For the reasons articulated herein, both motions
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). 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." "mini v. Oberlin
College, 440 F.3d 350, 357 (6th Cir. 2006).
the 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). 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).
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. MGM Group 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, a moving
party with the burden of proof faces a "substantially
higher hurdle." Arnett v. Myers, 281 F.3d 552,
561 (6th Cir. 2002). Where the moving party has the burden,
"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). 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.
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).
respect to his remaining claims, Plaintiff alleges the
following. On July 18, 2014, Plaintiff approached the unit
officer's desk where Defendants West, Morefield, and
Winger were located. Plaintiff requested to speak with Ms.
Crawford concerning Plaintiff's belief that bleach water
cleaning solution was not being properly distributed.
Defendant Morefield indicated that he would request that Ms.
Crawford speak with Plaintiff. Plaintiff then began speaking
with Defendant Winger about the matter and requested that the
bleach water be distributed the following day.
West interjected and instructed Plaintiff to stop complaining
and “do [his] own time.” Plaintiff responded by
informing West that he was not talking to him. Defendant West
then pointed his finger at Plaintiff and told him that he was
tired of his “shit.” Plaintiff objected to
West's language and tone. As Plaintiff and Defendant West
were speaking, Defendant Morefield removed his taser and
aimed it at Plaintiff. Defendant West told Morefield to shoot
Plaintiff with the taser. Defendant Morefield then activated
his taser, shooting Plaintiff in the chest. After Plaintiff
fell to the ground, Morefield fired the taser a second time.
Plaintiff was then placed in handcuffs and taken to
Preclusive Effect of Prison Misconduct Hearing
thereafter, Defendant West charged Plaintiff with engaging in
threatening behavior. Specifically, West alleged that during
the aforementioned encounter, Plaintiff became very angry and
stated to West, “Fuck you! You ain't shit, you
ain't nobody to me. I'll fuck you up!”
According to West, Plaintiff disregarded instructions to calm
down only after which did Defendant Morefield subdue
Plaintiff with his taser. Following a misconduct hearing,
Plaintiff was found guilty of engaging in threatening
argue that “the hearing officer's factual
determinations made in finding [Plaintiff] guilty of the
threatening behavior misconduct are entitled to preclusive
effect in this litigation.” Plaintiff counters that the
hearing officer's factual findings are not entitled to
preclusive effect in this matter because Plaintiff was not
afforded a full and fair opportunity to litigate the matter.
Plaintiff further argues that Defendants are precluded from
asserting this particular argument at this juncture of the
proceedings. The Court finds Plaintiff's arguments
the latter argument first, Defendants, in a previous motion
for summary judgment, asserted that Plaintiff was precluded
from re-litigating in this forum the facts as determined by
the hearing officer who conducted Plaintiff's threatening
behavior misconduct hearing. (ECF No. 87 at PageID.540-41).
The Court rejected Defendants' argument on the ground
that Defendants had failed to establish the factors necessary
to obtain preclusive effect of the hearing officer's
factual findings. (ECF No. 87 at PageID.541).
to Jennings v. Crompton, 2018 WL 271913 (W.D. Mich.,
Jan. 3, 2018), Plaintiff argues that Defendants' present
argument in favor of affording preclusive effect to the
Hearing Officer's factual findings should be
characterized as a motion for reconsideration of the
Court's previous decision on this issue and, as such,
should be rejected. In Jennings, a magistrate judge
recommended the dismissal of two defendants. Jennings v.
Crompton, 1:16-cv-921, ECF No. 76 (W.D. Mich.). The
plaintiff did not object to this recommendation and,
accordingly, the two defendants in question were dismissed.
Jennings, 1:16-cv-921, ECF No. 85. More than four
months later, the plaintiff filed a motion for summary
judgment in which he objected to the previous dismissal of
the aforementioned defendants. Jennings,
1:16-cv-921, ECF No. 96. The court treated this
“objection” as a motion to reconsider the
previous dismissal of the defendants in question.
Jennings, 1:16-cv-921, ECF No. 98.
present circumstance is distinguishable. Here, Defendants are
not requesting that the Court revisit a matter that was
previously resolved to finality, resulting in the dismissal
of any claims or parties. Instead, Defendants have merely
reasserted in their present motion an argument which they
unsuccessfully asserted in a previous motion for summary
judgment. It is not uncommon for parties to assert certain
arguments more than once during the course of litigation. So
long as such attempts do not contravene controlling legal
authority or previous decisions or orders in the case, the
Court discerns nothing improper or unfair about Defendants
reassertion of this particular argument. The Court also notes
that subsequent to the initial assertion by Defendants of
this preclusion argument, counsel was appointed for
Plaintiff, discovery re-opened, and another round of
dispositive motions permitted. In sum, Plaintiff has
identified no authority or previous decision or order in this
case which precludes Defendants from re-asserting this
particular argument in a properly filed motion for summary
judgment. Accordingly, this argument is rejected.
whether the hearing officer's factual findings are
entitled to preclusive effect, this is a question which the
Sixth Circuit has recently addressed. In Peterson v.
Johnson, 714 F.3d 905 (6th Cir. 2013), the Sixth Circuit
held that under certain circumstances a court must afford
preclusive effect to the factual findings made in a prison
disciplinary proceedings. Id. ay 911-18. However,
such preclusive treatment is not merely accorded as a matter
of course. In Roberson v.
770 F.3d 398 (6th Cir. 2014), the Sixth Circuit underscored
To the extent that Torres argues that, in light of
Peterson, any factual findings by a hearing officer
in a major-misconduct hearing in a Michigan prison are to be
accorded preclusive effect, we reject such a reading of
Peterson as overbroad. Peterson is not a
blanket blessing on every factual finding in a
major-misconduct hearing. Although the language of our
opinion in Peterson is at times categorical, our
decision to accord preclusive effect to particular findings
from Peterson's prison hearing necessarily turned, at
least in part, on the particular circumstances of
Torres court indicated, to obtain preclusive effect
of the factual findings made by a state agency, the following
factors must be satisfied: (1) the state agency was acting in
a judicial capacity; (2) the hearing officer resolved a
disputed issue of fact that was properly before him; and (3)
the party to be precluded from re-litigating the fact(s) in
question was afforded an adequate opportunity to litigate the
factual dispute. Id. at 403-04. If these three
factors are satisfied, the Court must afford to the hearing
officer's factual findings the same preclusive effect
such would be given in state court. Id. at 404. An
examination of these factors all weigh in favor of according
preclusive effect to the hearing officer's factual
first prong is satisfied if the hearing officer
“considers evidence from both parties, allows both
parties to argue their versions of the facts at a formal
hearing, and issues a written final decision that is subject
to direct review in state court.” Id. at 403.
As these requirements were satisfied here, the Court finds
that the hearing officer was acting in a judicial capacity.
the second factor, the factual disputes which were properly
before the hearing officer are limited to those which,
according to Defendant West, justified charging Plaintiff
with threatening behavior. In his Misconduct Report charging
Plaintiff with threatening behavior, Defendant West described
Plaintiff's improper conduct as follows:
At 1040 while talking with Prisoner Colvin #192744 (3-234A)
he became very angry and with his fists closed from
approximately 2 feet away screamed at me, “Fuck you!
You ain't shit, you ain't nobody to me. I'll fuck
you up!” After prisoner stated this he was told to calm
down. He continued to yell and with ...