United States District Court, W.D. Michigan, Northern Division
GORDON J. QUIST JUDGE
REPORT AND RECOMMENDATION
TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE
a civil rights action brought by state prisoner Bobby Allen
Williams pursuant to 42 U.S.C. § 1983. Plaintiff alleges
that Defendants Miron and six unknown officers violated his
Eighth Amendment rights by failing to remove him from his
prison cell before they sprayed a chemical agent into the
cell in order to extract Plaintiff's cellmate, prisoner
Young. Defendant Miron is the only remaining Defendant served
with a summons and complaint. Plaintiff states that the
chemical agent caused the sprinkler in his cell to go off and
destroyed all his property including his legal documents.
Plaintiff asserts that his petition for writ of habeas corpus
was destroyed causing a denial of access to the courts in
violation of his First Amendment right. Plaintiff argues that
no reason existed for the officers to extract his cellmate
and that Defendant Miron used profanity and racial slurs
toward Plaintiff during the incident. Plaintiff states that
the chemical agent caused him pain and injuries to eyes,
nose, throat, lungs, and skin. Plaintiff asserts that he had
to seek medical care as a result of the use of the chemical
agent. Defendant Miron filed a motion for summary judgment
(ECF No. 45). Defendant Miron has submitted two video DVDs
depicting the events as they occurred. Plaintiff did not
video evidence shows that Defendant Miron approached
Plaintiff's cell to inform Plaintiff's cellmate,
Young, to submit to a strip search and be removed from the
cell due to making a threat against an officer. Prisoner
Young was warned that if he failed to comply with the order,
he would be sprayed with a chemical agent. Prisoner Young
immediately pulled something that caused the sprinkler system
to activate. At that moment, Plaintiff was moving toward the
cell bunk where he remained throughout the entire incident.
Contrary to Plaintiff's assertion, Defendant Miron never
spoke with Plaintiff and never directed any comment toward
Plaintiff. After prisoner Young activated the sprinkler
system, Defendant Miron ordered the officer who was
responsible for the chemical agent to spray the agent into
the cell. Within seconds, Defendant Miron stated that the
chemical agent was not working. The sprinkler system remained
active for approximately ten minutes, causing both the cell
and the hallway outside the cell to flood. Young commented
that the sprinkler system renders the chemical agent
non-effective. As Young was being removed from the cell
another officer told Plaintiff to remain on the bunk. This
was the only comment made by an officer directed toward
Plaintiff during the incident.
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).
argues that Defendant Miron violated his Eighth Amendment
rights by spraying the chemical agent into Plaintiff's
cell without reason, without first removing Plaintiff from
the cell, and by failing to provide Plaintiff with adequate
medical treatment. The Eighth Amendment imposes a
constitutional limitation on the power of the states to
punish those convicted of crimes. Punishment may not be
“barbarous” nor may it contravene society's
“evolving standards of decency.” Rhodes v.
Chapman, 452 U.S. 337, 345-46 (1981). The Amendment,
therefore, prohibits conduct by prison officials that
involves the “unnecessary and wanton infliction of
pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th
Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at
346). The deprivation alleged must result in the denial of
the “minimal civilized measure of life's
necessities.” Rhodes, 452 U.S. at 347; see
also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir.
1998). The Eighth Amendment is only concerned with
“deprivations of essential food, medical care, or
sanitation” or “other conditions intolerable for
prison confinement.” Rhodes, 452 U.S. at 348
(citation omitted). Moreover, “[n]ot every unpleasant
experience a prisoner might endure while incarcerated
constitutes cruel and unusual punishment within the meaning
of the Eighth Amendment.” Ivey, 832 F.2d at
order for a prisoner to prevail on an Eighth Amendment claim,
he must show that he faced a sufficiently serious risk to his
health or safety and that the defendant official acted with
“‘deliberate indifference' to [his] health or
safety.” Mingus v. Butler, 591 F.3d 474,
479-80 (6th Cir. 2010) (citing Farmer v. Brennan,
511 U.S. 825, 834 (1994) (applying deliberate indifference
standard to medical claims); see also Helling v.
McKinney, 509 U.S. 25, 35 (1993) (applying deliberate
indifference standard to conditions of confinement claims)).
Miron ordered the chemical agent after Plaintiff's
cellmate activated the sprinkler head in the cell causing the
cell to flood. In the opinion of the undersigned, Defendant
Miron's use of the chemical agent to subdue prisoner
Young was justified and reasonable. Generally, restrictions
and even harsh conditions of confinement are not necessarily
cruel and unusual punishment prohibited by the Eighth
Amendment. Rhodes, 452 U.S. 347. The Supreme Court
has held that “whenever guards use force to keep order,
” the standards enunciated in Whitley v.
Albers, 475 U.S. 312, 327 (1986), should be applied.
Hudson v. McMillian, 503 U.S. 1, 7 (1992). Under
Whitley, the core judicial inquiry is “whether
force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause
harm.” Hudson, 503 U.S. at 6-7. In determining
whether the use of force is wanton and unnecessary, the court
should evaluate the need for application of force, the
relationship between that need and the amount of force used,
the threat “reasonably perceived by the responsible
officials, ” and any efforts made to temper the
severity of the forceful response. Id. (citing
Whitley, 475 U.S. at 321); accord McHenry v.
Chadwick, 896 F.2d 184 (6th Cir. 1990). Physical
restraints are constitutionally permissible where there is
penological justification for their use. Rhodes, 452
U.S. at 346; Jones v. Toombs, No. 95-1395, 1996 WL
67750, at *1 (6th Cir. Feb. 15, 1996); Hayes v.
Toombs, No. 91-890, 1994 WL 28606, at * 1 (6th Cir. Feb.
1, 1994); Rivers v. Pitcher, No. 95-1167, 1995 WL
603313, at *2 (6th Cir. Oct. 12, 1995). See Roberson v.
Torres, 770 F.3d 398 (6th Cir. 2014) (holding that the
use of a chemical agent after a prisoner repeatedly refuses
to obey orders does not violate the Eighth Amendment) (citing
Jennings v. Mitchell, 93 Fed.Appx. 723, 725 (6th
Cir. 2004) (holding that a defendant's use of pepper
spray on a prisoner who refused to leave the shower did not
violate the Eighth Amendment)); Combs v. Wilkinson,
315 F.3d 548, 557 (6th Cir. 2002) (noting “that the use
of mace to control a prison inmate is not malicious or
sadistic”); Miller v. Palmer, No. 99-2352,
2000 WL 1478357, at *2 (6th Cir. Sept. 27, 2000) (officers
did not violate the Eighth Amendment when prisoner
“refused to remove his arm from his food slot[, ]
refused to allow officers to place him in soft restraints[,
and was] given several opportunities to comply with the
officers' orders before chemical agents were
the water rushing into the cell the chemical agent was
ineffective, but prisoner Young did subsequently cooperate
with being restrained and removed from the cell. Plaintiff
asserts that the chemicals caused his eyes to burn and made
him cough. (ECF No. 46-4, PageID.241). Plaintiff admitted
that after the incident he received care from medical staff
that included oxygen and a wash solution for his eyes.
(PageID.247). In the opinion of the undersigned, Plaintiff
has failed to show that Defendant Miron acted with the
necessary deliberate indifference to violate Plaintiff's
Eighth Amendment rights. Plaintiff admitted that he received
medical care after the incident and despite his claims that
he suffered permanent harm due to the use of the chemical
agent, he has failed to set forth any medical records that
could support such a claim. Plaintiff submitted kites for
health care indicating that he suffers with sinus problems in
January of 2014, and in August of 2013. (ECF No. 1-9,
PageID.32-33). Plaintiff has failed to show that he has any
particular sensitively to the chemical agent or that
Defendant Miron was on notice that Plaintiff could be harmed
by using the chemical agent to extract Plaintiff's
cellmate. Most importantly, Plaintiff has failed to show that
Defendant Miron deliberately ignored a threat of harm to
Plaintiff at the time he ordered the chemical agent sprayed
into Plaintiff's cell.
asserts that Defendant Miron's action caused water damage
to his property including his petition for writ of habeas
corpus. Plaintiff asserts that he was only able to file a
skeleton habeas action in federal court and was not able to
attach documents including copies of state court proceedings.
Plaintiff admits that his habeas petition is currently
proceeding on appeal in the Sixth Circuit Court of Appeals.
Plaintiff argues that Miron's action denied him access to
the courts. In Bounds v. Smith, 430 U.S. 817 (1977),
the Supreme Court recognized a prisoner's fundamental
right of access to the courts. While the right of access to
the courts does not allow a State to prevent an inmate from
bringing a grievance to court, it also does not require the
State to enable a prisoner to discover grievances or litigate
effectively. Lewis v. Casey, 518 U.S. 343 (1996).
Thus, Bounds did not create an abstract,
free-standing right to a law library, litigation tools, or
legal assistance. Id. at 351 (1996). Further, the
right may be limited by legitimate penological goals, such as
maintaining security and preventing fire or sanitation
hazards. See Acord v. Brown, No. 91-1865, 1992 WL
58975 (6th Cir. March 26, 1992); Hadix v. Johnson,
No. 86-1701, 1988 WL 24204 (6th Cir. March 17, 1988);
Wagner v. Rees, No. 85-5637, 1985 WL 14025 (6th Cir.
Nov. 8, 1985).
prisoner must show that the defendant caused an actual injury
to the pursuit of a legal claim. Lewis, 518 U.S. at
351; Talley-Bey, 168 F.3d at 886; Kensu v.
Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996);
Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.
1985). An inmate must make a specific claim that he was
adversely affected or that the litigation was prejudiced.
Vandiver v. Niemi, No. 94-1642, 1994 WL 677685, at
*1 (6th Cir. Dec. 2, 1994). Particularly, an inmate cannot
show injury when he still has access to his legal materials
by request, Kensu, 87 F.3d at 175, when he fails to
state how he is unable to replicate the confiscated
documents, Vandiver, 1994 WL 677685, at *1, or when
he could have received the material by complying with the
limits on property, e.g., where he had the opportunity to
select the items that he wanted to keep in his cell, or when
he had an opportunity to purchase a new footlocker that could
hold the property. Carlton v. Fassbender, No.
93-1116, 1993 WL 241459, at *2 (6th Cir. July 1, 1993).
inmate must make a specific claim that he was adversely
affected or that the litigation was prejudiced.
Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir.
2005); Vandiver v. Niemi, No. 94-1642, 1994 WL
677685, at *1 (6th Cir. Dec. 2, 1994). “Examples of
actual prejudice to pending or contemplated litigation
include having a case dismissed, being unable to file a
complaint, and missing a court-imposed deadline.”
Harbin-Bey, 420 F.3d at 578 (citing Jackson v.
Gill, 92 Fed.Appx. 171, 173 (6th Cir. 2004)). “In
order to establish an access to the courts violation under
§ 1983, a prisoner must prove that the violation was
intentional, not merely negligent.” Wojnicz v.
Davis, 80 Fed.Appx. 382, 384 (6th Cir. 2003).
opinion of the undersigned, Plaintiff has failed to show that
Defendant Miron intentionally violated his right to access
the courts. Plaintiff's cellmate activated the sprinkler
head causing damage to Plaintiff's legal property.
Defendant Miron was not the cause of that damage. Moreover,
Defendant Miron did not intentionally deny Plaintiff his
right to access to the courts. Plaintiff filed a habeas
petition in federal court which challenged his state court
conviction. That action is currently pending. In the opinion
of the undersigned, Plaintiff's claim that Defendant
Miron denied him access to the courts should be dismissed.
Defendant Miron moves for qualified immunity from liability.
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 ...