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Mays v. Hemmila

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

February 12, 2019

MARCUS D. MAYS, Plaintiff,
v.
KEVIN HAMMILA, et al., Defendants.

          HON. GORDON J. QUIST JUDGE

          REPORT AND RECOMMENDATION

          TIMOTHY P. GREELEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Marcus D. Mays filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Noah Beesley, Jason Bessner, Sergei Casper, Kevin Hemmila, Nancy Hulkoff, Thomas LaPlante, Shawn Minerick, Charles Nagele, Jesse Niemi, Jessee Sohlden, Michael Waltanen, Rick Wertanen, and Chung Oh. In his complaint, Plaintiff asserts (1) Eighth Amendment excessive force claims against Defendants Beesley, Bessner, Hemmila, Minerick, Nagele, Niemi, Sohlden, Waltanen, and Wertanen; (2); a First Amendment retaliation claim against Defendant LaPlante; and (3) Eighth Amendment deliberate indifference claims against Defendants Oh, Hulkoff, and Casper.[1] Defendants Beesley, Bessner, Casper, Hemmila, Hulkoff, LaPlante, Minerick, Nagele Niemi, Sohlden, Waltanen, and Wertanen, (“the MDOC Defendants”) filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56(a). (ECF No. 166). Defendant Oh filed a separate motion for summary judgment. (ECF No. 165). Plaintiff has responded. This matter is ready for decision.

         The claims in this case arise from a series of events that occurred while Plaintiff was confined at the Baraga Correctional Facility (AMF). Plaintiff alleges that on November 28, 2012, Defendant Hemmila poisoned his food. The food poisoning caused Plaintiff to vomit blood and suffer stomach cramping, but Plaintiff never received any medical treatment. On the same day, Defendant Hemmila slammed Plaintiff's hand in the food slot and stated, “I really don't like that grievance you filed regarding my refusal to give you soap and toothpaste. . . . that's payback because of your pending law suit on coworkers Gill and Redinger.” Plaintiff subsequently filed a grievance against Defendant Hemmila. At Step I, the respondent reviewed the video tape of the alleged incident and determined that Defendant Hemmila never slammed Plaintiff's hand in the food tray slot. On January 8, 2013, the grievance coordinator, Defendant LaPlante, issued Plaintiff a Class II misconduct, alleging that Plaintiff filed a false grievance against Defendant Hemmila. Plaintiff did not attend the hearing on this misconduct and was subsequently found guilty. Plaintiff now alleges that Defendant LaPlante issued the misconduct in retaliation for Plaintiff filing grievances and in order to cover-up the November 28, 2012 excessive force incident.

         Plaintiff next alleges that on December 27, 2012, officer Jacobson refused to take Plaintiff's food tray. Because Plaintiff still had his food tray, Defendant Hemmila came to Plaintiff's cell to pick up the food tray and slammed Plaintiff's arm in the food slot for a second time. Defendant Hemmila told Plaintiff “that's what you get for writing that grievance on me.” Plaintiff then filed grievance against Defendant Hemmila for slamming his arm in the food slot.

         Plaintiff alleges that on August 15, 2013, Baraga staff moved him from 2 block to 7 block. Defendant Hemmila also moved to Plaintiff's new block. Plaintiff tried to send out legal mail on August 22, 2013, but Defendant Hemmila told Plaintiff that “if Plaintiff continued to send out legal mail he would beat Plaintiff's ass and send Plaintiff back to the hole . . . . I don't like prisoners who file lawsuits on my coworkers.” On August 23, 2013, Defendants Hemmila and Waltanen were standing outside of Plaintiff's cell. As Plaintiff walked outside of his cell, he went up to Defendant Hemmila and asked why he continued to harass Plaintiff about legal mail. Plaintiff states that Defendant Hemmila placed his hand on his taser gun and told Plaintiff that “if you continue to run your mouth I'm going to beat your fucking ass and send you back to the hole.” Plaintiff alleges that Defendant Hemmila spit in Plaintiff's face. Plaintiff alleges that Defendant Hemmila then took a swing at Plaintiff, so Plaintiff struck Defendant Hemmila. Plaintiff was then tasered by Defendant Minerick. Plaintiff states that the use of the taser was unnecessary because he had already stopped fighting. Plaintiff claims that Lieutenant Yankovich falsified a critical incident report by stating that Plaintiff came out his cell and started throwing punches at Defendant Hemmila. Plaintiff further alleges that he was then escorted to an “isolated hallway” where he was beaten up by Defendants Beesley, Bessner, Hemmila, Niemi, Nagele, Sohlden, Waltanen, and Wertanen.

         Shortly thereafter, Plaintiff was taken to health care where he was examined by Defendants Oh, Hulkoff, and Casper. Plaintiff claims that he suffered eye, lip, rib, kidney, and back injuries. The medical records indicate that Defendants removed the taser probe from Plaintiff's back, checked Plaintiff's vital signs, and examined the cuts on Plaintiff's lip and eyelid. Plaintiff states that the medical records were falsified and that he received no medical treatment. Following this incident, Defendant LaPlante issued Plaintiff a Class I misconduct. In addition, Plaintiff was charged in stated court and subsequently pled guilty to assaulting Defendant Hemmila.

         Summary 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).

         The Eighth Amendment embodies a constitutional limitation on the power of the states to punish those convicted of a crime. Punishment may not be “barbarous” nor may it contravene society's “evolving standards of decency.” See Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981); Trop v. Dulles, 356 U.S. 86, 101 (1958). The Eighth Amendment also prohibits conditions of confinement which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain.” Rhodes, 452 U.S. at 346. Among unnecessary and wanton infliction of pain are those that are “totally without penological justification.” Id.

         “To make out a claim under the Eighth Amendment, the prisoner must satisfy both an objective and a subjective component.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (citing Moore v. Holbrook, 2 F.3d 697, 700 (6th Cir. 1993)). “The subjective component focuses on the state of mind of the prison officials.” Id. In the excessive force context, “the relevant inquiry is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992). When determining whether the subjective component is met, courts 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. Id. (citing Hudson, 503 U.S. at 7).

         “The objective component requires the pain inflicted to be ‘sufficiently serious.'” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “This component requires a ‘contextual' investigation, one that is ‘responsive to contemporary standards of decency.'” Cordell v. McKinney, 759 F.3d 573, 580-81 (6th Cir. 2014) (quoting Hudson, 503 U.S. at 8). “While the extent of a prisoner's injury may help determine the amount of force used by the prison official, it is not dispositive of whether an Eighth Amendment violation has occurred.” Id. at 580-81 (citing Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)). “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . [w]hether or not significant injury is evident.” Id. at 581 (quoting Hudson, 503 U.S. at 9).

         Plaintiff first asserts excessive force claims based on Defendant Hemmila poisoning Plaintiff's food and slamming his hand in a food slot on November 28, 2012 and December 27, 2012. Defendant Hemmila denies these allegations. (ECF No. 167-6, PageID.1700). Defendants state that Plaintiff “has no evidence, other than his own self-serving statements to support those claims.” (ECF No. 167, PageID.1657). Although Defendants appear to be correct, Plaintiff made these allegations in his verified complaint. And this Court has held that Plaintiff's verified complaint is sufficient to create a question of fact. (See ECF No. 134, PageID.1093). Thus, the undersigned finds that a question of fact remains as to whether Defendant Hemmila poisoned Plaintiff's food and slammed his hand in a food slot on November 28, 2012 and December 27, 2012. Accordingly, in the opinion of the undersigned, Defendant Hemmila is not entitled to summary judgment on this claim.

         Plaintiff next asserts excessive force claims stemming from the August 23, 2013 incident. Defendants have submitted two videos to the Court that show a portion of the incident. The first video was from a camera overlooking the hallway. The second video was from a taser body camera. The undersigned has reviewed both videos and finds that they contradict Plaintiff's version of events. The video shows that Plaintiff walked out of his cell and went directly up to Defendant Hemmila. Defendant Hemmila took a step back and Plaintiff continued to walk closer. Plaintiff, completely unprovoked, threw a punch at Defendant Hemmila. Defendant Hemmila ducked, but Plaintiff grabbed him and threw a series of closed-fists punches, hitting him in the face and rib area. Several corrections officers subsequently ran to help Defendant Hemmila. In an attempt to stop Plaintiff from fighting, Defendant Minerick deployed his taser. Plaintiff then went to the ground and was restrained by other corrections officers. Plaintiff was then escorted down the hallway and out of the view of the camera.

         Plaintiff's only claim against Defendant Minerick stems from the use of the taser during the incident. Plaintiff argues that the use of the taser was not necessary because he had already stopped fighting. However, Plaintiff's version of events is directly contradicted by the video of the incident. At the time Defendant Minerick deployed his taser, Plaintiff is still fighting and not complying with the other corrections officers' verbal commands to stop. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). After considering the need to apply force to stop the ongoing assault and the relationship of the need and amount of force used, the undersigned finds that no reasonable jury could find that Defendant Minerick acted with the culpable state of mind to meet the subjective component of an excessive force claim. See Williams, ...


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