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Colvin v. Heyns

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

February 26, 2018

KENNETH COLVIN, JR. #192744, Plaintiff,
DANIEL HEYNS, et al., Defendants.


          ELLEN S. CARMODY U.S. Magistrate Judge

         This 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 are denied.


         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). 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).

         While 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).

         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. 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.

         While a 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).


         I. Background

         With 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.

         Defendant 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 segregation.

         II. Preclusive Effect of Prison Misconduct Hearing

         Shortly 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 behavior.

         Defendants 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 unavailing.

         Taking 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).

         Citing 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.

         The 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.

         As for 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.

         Torres, 770 F.3d 398 (6th Cir. 2014), the Sixth Circuit underscored this point:

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 Peterson's case.

         Id. at 404.

         As the 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 findings.

         The 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.

         Regarding 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 ...

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