United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker, Judge
REPORT AND RECOMMENDATION
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
a civil rights action brought pro se by a state
prisoner under 42 U.S.C. § 1983. Plaintiffs complaint
arises out of conditions of his confinement at the Bellamy
Creek Correctional Facility. The defendants are Corrections
Officers Robert Tinerella, Dustin Rose, Bruce Spitzley, and
Marty Piggott. Plaintiff claims that defendants violated his
Eighth Amendment rights. He alleges that, on March 12, 2016,
Officer Tinerella used excessive force and that Officers Rose
and Spitzley failed to intervene. He also alleges that, on
April 19, 2016, Officer Piggott used excessive force and that
Officer Rose failed to intervene.
matter is before the Court on defendants' motion for
summary judgment. (ECF No. 56). Plaintiff opposes the motion.
(ECF No. 67-68). For the reasons set forth herein, I
recommend that the Court grant defendants' motion for
summary judgment and enter a judgment in defendants'
favor on all plaintiffs claims.
Judgment Standard Summary judgment is appropriate when
the record reveals that there are no genuine issues as to any
material fact in dispute and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); McKay v.
Federspiel, 823 F.3d 862, 866 (6th Cir. 2016). The
standard for determining whether summary judgment is
appropriate is "whether 'the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.'" Rocheleau v. Elder Living
Const., LLC, 814 F.3d 398, 400 (6th Cir. 2016) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986)). The Court must consider all pleadings,
depositions, affidavits, and admissions on file, and draw all
justifiable inferences in favor of the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); France v.
Lucas, 836 F.3d 612, 624 (6th Cir. 2016).
the party without the burden of proof seeks summary judgment,
that party bears the initial burden of pointing out to the
district court an absence of evidence to support the
nonmoving party's case, but need not support its motion
with affidavits or other materials "negating" the
opponent's claim. See Morris v. Oldham Cty. Fiscal
Court, 201 F.3d 784, 787 (6th Cir. 2000); see also
Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir.
2005). Once the movant shows that "there is an absence
of evidence to support the nonmoving party's case,"
the nonmoving party has the burden of coming forward with
evidence raising a triable issue of fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). To sustain this
burden, the nonmoving party may not rest on the mere
allegations of his pleadings. See Huff v. TeleCheck
Servs., Inc., 923 F.3d 458, 462 (6th Cir. 2019). The
motion for summary judgment forces the nonmoving party to
present evidence sufficient to create a genuine issue of fact
for trial. Street v. J.C. Bradford & Co., 886
F.2d 1472, 1478 (6th Cir. 1990); see AES-Apex Employer
Servs., Inc. v. Rotondo, 924 F.3d 857, 866 (6th Cir.
2019) ("[C]asting only [a] 'metaphysical doubt'
is insufficient to survive summary judgment." (quoting
Matsushita, 475 U.S. at 586). "A mere scintilla
of evidence is insufficient; 'there must be evidence on
which a jury could reasonably find for the
[non-movant].'" Dominguez v. Correctional Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009) (quoting
Anderson, 477 U.S. at 252)); see Lossia v.
Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir.
argue that they are entitled to summary judgment on the basis
of qualified immunity. "Once [an] official[ ] raise[s]
the qualified immunity defense, the plaintiff bears the
burden to 'demonstrate that the official [is] not
entitled to qualified immunity.'" LeFever v.
Ferguson, 645 Fed.Appx. 438, 442 (6th Cir. 2016)
(quoting Silberstein v. City of Dayton, 440 F.3d
306, 311 (6th Cir. 2006)).
government official sued under section 1983 is entitled to
qualified immunity unless the official violated a statutory
or constitutional right that was clearly established at the
time of the challenged conduct." Carroll v.
Carman, 135 S.Ct. 348, 350 (2014); see Taylor v.
Barkes, 135 S.Ct. 2042, 2044 (2015). The first prong of
qualified immunity analysis is whether the plaintiff has
alleged facts showing that defendant's conduct violated a
constitutional or statutory right. See Saucier v.
Katz, 533 U.S. 194, 201 (2001). The second prong is
whether the right was "clearly established" at the
time of the defendant's alleged misconduct. Id.
Trial courts are permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity
analysis should be addressed first. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
qualified immunity defense can be asserted at various stages
of the litigation, including the summary judgment stage.
See English v. Dyke, 23 F.3d 1086, 1089 (6th Cir.
1994). The qualified immunity inquiry at the summary judgment
stage is distinguished from the Rule 12(b)(6) stage in that
generalized notice pleading no longer suffices, and the
broader summary judgment record provides the framework within
which the actions of each individual defendant must be
evaluated. At the summary judgment stage, "the plaintiff
must, at a minimum, offer sufficient evidence to create a
'genuine issue of fact,' that is, 'evidence on
which a jury could reasonably find for the
plaintiff.'" Thompson v. City of Lebanon,
Tenn., 831 F.3d 366, 370 (6th Cir. 2016) (quoting
Anderson, 477 U.S. at 252).
Brosseau v. Haugen, the Supreme Court examined the
underlying purpose of the requirement that the law be clearly
Qualified immunity shields an officer from suit when she
makes a decision that, even if constitutionally deficient,
misapprehends the law governing the circumstances she
confronted. . . . Because the focus is on whether the officer
had fair notice that her conduct was unlawful, reasonableness
is judged against the backdrop of the law at the time of the
conduct. If the law at the time did not clearly establish
that the officer's conduct would violate the
Constitution, the officer should not be subject to liability
or, indeed, even the burdens of litigation.
543 U.S. 194, 198 (2004); see also Mullenix v. Luna,
136 S.Ct. 305, 308 (2015) ("The dispositive question is
whether the violative nature of the particular conduct is
clearly established.") (citation and quotation omitted);
City & County of San Francisco, Calif, v.
Sheehan, 135 S.Ct. 1765, 1774 (2015) ("An officer
cannot be said to have violated a clearly established right
unless the right's contours were sufficiently definite
that any reasonable official in his shoes would have
understood that he was violating it, meaning that existing
precedent placed the statutory or constitutional question
beyond debate.") (citations and quotations omitted).
"This demanding standard protects all but the plainly
incompetent or those who knowingly violate the law."
District of Columbia v. Wesby, 138 S.Ct. 577, 589
(2018) (citation and quotation omitted). Qualified immunity
is an immunity from suit rather than a mere defense to
liability. Plumhoffv. Richard, 134 S.Ct. 2012, 2019
Supreme Court has repeatedly held that the second prong of
the qualified immunity analysis" 'must be undertaken
in light of the specific context of the case, not as a broad
general proposition.'" Brosseau v. Haugen,
543 U.S. at 198 (quoting Saucier v. Katz, 533 U.S.
at 201); see City of Escondido, Calif, v. Emmons,
139 S.Ct. 500, 503 (2019). Moreover, courts are "not to
define clearly established law at a high level of generality,
since doing so avoids the crucial question whether the
official acted reasonably in the particular circumstances
that he or she faced." Plumhoff 134 S.Ct. at
2023 (citations and quotations omitted); see White v.
Pauly, 137 S.Ct. 548, 552 (2017).
burden of convincing a court that the law was clearly
established 'rests squarely with the
plaintiff.'" Key v. Grayson, 179 F.3d 996,
1000 (6th Cir. 1999) (quoting Cope v. Heltsley, 128
F.3d 452, 459 (6th Cir. 1997)); see Stevens-Rucker v.
City of Columbus, Ohio, 739 Fed.Appx. 834, 839 (6th Cir.
2018) ("Plaintiff bears the burden of showing that
defendants are not entitled to qualified immunity.").
The burden applies to each claim. See Johnson v.
Moseley, 790 F.3d 649, 653 (6th Cir. 2015).
complaint is not properly verified, as he has interjected the
limitations that the allegations are made "to the best
of [his] knowledge, belief, and understanding."
(See ECF No. 1, PageID.23). "[S]tatements made
on belief or on information and belief, cannot be utilized on
a summary-judgment motion." Ondo v. City of
Cleveland,795 F.3d 597, 605 (6th Cir. 2015) (citation
and quotation omitted). Accordingly, plaintiffs complaint
will not be considered as ...