United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Court has reviewed Magistrate Judge Green’s Report and
Recommendation in this matter (ECF No. 86) as well as
Defendant’s Objection (ECF No. 90). Under the Federal
Rules of Civil Procedure where, as here, a party has objected
to portions of a Report and Recommendation, “[t]he
district judge . . . has a duty to reject the magistrate
judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller, & Marcus, Federal Practice and Procedure
§ 3070.2, at 381 (2d ed. 1997). Specifically, the Rules
[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Plaintiff’s objections. After its review, the Court
finds that Magistrate Judge Green’s Report and
Recommendation is factually sound and legally correct.
first objects that the Report and Recommendation fails to
apply the correct standard for reviewing motions under Rule
56. The Court finds no basis for this claim. On the contrary,
the Report and Recommendation correctly sets out the
applicable law-a portion of which is that a reviewing court
must view the evidence in the light most favorable to the
non-moving party. The Magistrate Judge then properly applied
that standard of review. Among other things this meant that
the Magistrate Judge accepted, for purposes of evaluating the
motion, Plaintiff’s contention that no verbal
instruction to stop fighting was given before Defendant
Turner deployed his taser-a contention that Defendant Turner
remainder of Plaintiff’s first objection leads into the
second, which is that the Magistrate Judge erred in finding
that there was no genuine issue of material fact as to the
subjective intent of Defendant Turner. Here too, the Court
finds Plaintiff’s objections to be unpersuasive. 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.”
claim involving the use of a taser must be analyzed under the
Supreme Court cases authorizing appropriately limited use of
force against prisoners. This analysis, furthermore, must be
made in the context of the constant admonitions by the
Supreme Court regarding the deference that courts must accord
to prison or jail officials as they attempt to maintain order
and discipline within dangerous institutional settings.
See, e.g., Whitley v, Albers, 475 U.S. 312');">475 U.S. 312,
321-22 (1986). Generally, restrictions and 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, 475 U.S. 31,
should be applied. Hudson v. McMillian, 503 U.S. 1,
7 (1992); see also Wilkins v. Gaddy, 130 S.Ct. 1175,
1178-79 (2010). 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; Wilkins, 130 S.Ct. at 1178.
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.
Hudson, 503 U.S. at 6-7 (citing Whitley,
475 U.S. at 321); accord Griffin v. Hardrick, 604
F.3d 949, 953-54 (6th Cir. 2010); McHenry v.
Chadwick, 896 F.2d 184 (6th Cir. 1990). The Sixth
Circuit has remarked that “[t]he issue is therefore not
whether the use of force was absolutely necessary in
hindsight, but ‘whether the use of force would
plausibly have been thought necessary, or instead evinced
such a wantonness with respect to the unjustified infliction
of harm as is tantamount to a knowing willingness that it
occurred.’” Griffin, 604 F.3d at 954
(quoting Whitley, 475 U.S. at 321).
Magistrate Judge understood all of this, of course, and cited
to this authority in his Report and Recommendation. And after
de novo review, the Court agrees with the Magistrate Judge
that Plaintiff has failed to present a genuine issue of
material fact on the issue of excessive force. Under the
circumstances presented, the Court concludes that no rational
trier of fact could find for Plaintiff.
Turner had a strong penological justification for breaking up
what everyone admits was an ongoing fight between two
prisoners, including Plaintiff Graham. And it is plain that
Defendant Turner deployed his taser to break up that fight.
The injuries that resulted to Plaintiff, in the main, stem
not from the taser, but from the other prisoner. The
undisputed record, therefore, demonstrates a classic case
where a corrections officer needed to respond to a crisis
situation in the heat of the moment. And nothing in the video
or the rest of the record demonstrates a genuine issue of
material fact regarding whether Defendant Turner acted
maliciously or sadistically for the purpose of unjustifiable
infliction of pain and suffering when he deployed the taser.
To find otherwise on this record would mean virtually every
injury suffered by a prisoner at the hands of a corrections
officer who is attempting to break up a fight would
constitute a violation of the Eight Amendment’s
prohibition on cruel and unusual punishment.
IT IS ORDERED that the Report and Recommendation of
the Magistrate Judge (ECF No. 86) is APPROVED AND
ADOPTED as the Opinion of the Court.
IS FURTHER ORDERED that Defendant’s Motion for
Summary Judgment (ECF No. 73) is GRANTED.
Court discerns no good-faith basis for appeal of this matter.
See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th