Opinion
Case No. 2:04-cv-67.
February 8, 2006
REPORT AND RECOMMENDATION
Plaintiff Melvin Thomas, an inmate currently confined at the Marquette Branch Prison, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against defendant Alger Maximum Correctional Facility (LMF) Resident Unit Manager Lyle Enterline.
Plaintiff's complaint alleges that while he was housed at LMF, defendant Enterline violated plaintiff's rights by retaliating against plaintiff and using excessive force against plaintiff. Plaintiff was housed in the segregation Aspen unit at the prison. Defendant was working as a Resident Unit Manager in that unit. Plaintiff complains that defendant confiscated a complaint that plaintiff wrote against individuals in health services. Plaintiff states that on May 10, 2001, defendant informed plaintiff that he had read the allegations in the complaint, considered them lies and threatened plaintiff if plaintiff filed the complaint.
On May 17, 2001, plaintiff asked to be taken to the typing room. Defendant allegedly refused the request because of the kites and lawsuits that plaintiff asserted against defendant's friends. Defendant also allegedly withheld plaintiff's May 17, 2001, food tray and told plaintiff that "if I were you I wouldn't eat anything I have for you anyway." Plaintiff then refused his meal tray on May 24, 2001, when delivered by defendant for fear of being poisoned. Despite the refusal, defendant threw the food tray into plaintiff's cell causing the food to splatter on the floor. Plaintiff alleges that defendant threatened him with physical harm for filing a complaint against defendant.
On June 8, 2001, defendant and another officer came to plaintiff's cell and ordered plaintiff to the door. Defendant placed plaintiff in cuffs and told plaintiff that it was "time to learn a lesson." Defendant allegedly told plaintiff that "it's my way from now on." Plaintiff alleges that he was physically removed from the cell after his face was slammed against the wall. Plaintiff claims that he suffered with an injury to his jaw. Defendant continued to assault plaintiff by bending plaintiff's thumb back to cause pain. As a result, plaintiff sustained nerve damage to his thumb. On June 8, 2001, while plaintiff was taking a shower, plaintiff alleges that defendant conducted a search of plaintiff's cell. When plaintiff returned to his cell, legal papers had been destroyed and property was missing. Plaintiff was released from administrative segregation on January 12, 2004. On that day defendant allegedly threatened plaintiff with physical harm and a return to segregation if plaintiff filed a complaint against defendant.
Presently before the Court is the Defendant's Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), and/or Motion for Summary Judgment, pursuant to Fed.R.Civ.P. 56. Plaintiff has filed a response and the matter is ready for decision. Because both sides have asked that the Court consider evidentiary materials beyond the pleadings, the standards applicable to summary judgment apply. See Fed.R.Civ.P. 12(b).
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).
At page 4 of defendant's brief, it is argued: "Although this action should be dismissed for the reasons stated above, dismissal is also proper." Defendant failed to set forth "above" any reasons for the Court to address.
Defendant argues that he is entitled to summary judgment because no force was used against plaintiff. Defendant has submitted affidavits from other officers who have stated that they never witnessed any physical contact with plaintiff by defendant. 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.
Plaintiff's claim involving the use of force must be analyzed under the Supreme Court authority limiting the use of force against prisoners. This analysis 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, 475 U.S. at 321-22.
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, 475 U.S. 312, 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).
Defendant claims that he did not slam plaintiff's face into the cell wall and that he did not bend plaintiff's thumb. Plaintiff claims that this did happen. Defendant concedes that plaintiff suffered with temporomandibular joint disorder (TMJ), but argues that no evidence exists to establish that the TMJ was caused by a blow to the head. The TMJ was apparently diagnosed after the date plaintiff claims that his head was slammed into his cell wall by defendant. In the opinion of the undersigned a question of fact exists whether excessive force was used against plaintiff.
Plaintiff has also asserted that defendant threatened and harassed plaintiff in retaliation for plaintiff's legal filings and complaints about defendant and other staff members. Plaintiff argues that because of his protected conduct, his meals were tampered with by defendant, he was refused the use of the typing room, and he was assaulted by defendant. Retaliation based upon a prisoner's exercise of his or her constitutional rights violates the Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 *1037 (6th Cir. 1999) (en banc). In order to set forth a First Amendment retaliation claim, a plaintiff must establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from engaging in that conduct; and (3) the adverse action was motivated, in least in part, by the protected conduct. Thaddeus-X, 175 F.3d at 394. Moreover, Plaintiff must be able to prove that the exercise of the protected right was a substantial or motivating factor in the defendant's alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
Plaintiff asserted that he filed complaints and made complaints including grievances against defendant's friends and co-workers. As a result, defendant took adverse action against plaintiff. Plaintiff has sustained his burden of pleading and setting forth the elements of a retaliation claim. Defendant, in the opinion of the undersigned, has failed to show that there exists no genuine issue of fact on this issue. Defendant argues that he is entitled to qualified immunity. However, because a genuine issue of fact exists regarding plaintiff's constitutional claims, qualified immunity is not an available defense. 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).
"The procedure for evaluating claims of qualified immunity is tripartite: First, we determine whether a constitutional violation occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights." Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999).
When determining whether a right is clearly established, this court must look first to decisions of the United States Supreme Court, then to decisions of the Sixth Circuit and to other courts within this Circuit, and finally to decisions of other circuits. Dietrich, 167 F.3d at 1012. An official action is not necessarily protected by qualified immunity merely because the very action in question has not previously been held to be unlawful. Rather, in light of pre-existing law, the unlawfulness of the official's conduct must be apparent. Dietrich, 167 F.3d at 1012; Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir. 1991).
When making a qualified immunity analysis, the facts must be interpreted in the light most favorable to the plaintiff. Part of the analysis is to determine whether there are any genuinely disputed questions of material fact. Kain v. Nesbitt, 156 F.3d 669, 672 (6th Cir. 1998). Where there is a genuinely disputed question of fact, it is for the trier of fact to resolve, not the judge. "This would be true notwithstanding that the trial judge found the [defendant] officer to be more credible than the plaintiff because it is not for the court to make credibility determinations at this stage of the proceeding." Id.
The operation of the qualified immunity standard depends substantially upon the level of generality at which the relevant legal rule is to be identified.
The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of the preexisting law the unlawfulness must be apparent.Anderson, 483 U.S. at 639-40. See also Durham v. Nu'Man, 97 F.3d 862, 866 (6th Cir. 1996), cert. denied, 520 U.S. 1157 (1997).
The Sixth Circuit has observed:
A right is not considered clearly established unless it has been authoritatively decided by the United States Supreme Court, the Court of Appeals, or the highest court of the state in which the alleged constitutional violation occurred.Durham, 97 F.3d at 866 (citing Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir. 1988)).
Thus, qualified immunity is not triggered only where the very action in question was previously held unlawful. Anderson, 483 U.S. at 639-40. Rather, the test is whether the contours of the right were sufficiently clear that a reasonable official would understand that what he is doing violated plaintiff's federal rights. Id.
Furthermore, a defendant need not actively participate in unlawful conduct in order to be liable under Section 1983. Rather, a defendant may be liable where he has a duty to protect a plaintiff and fails to comply with this duty. Durham, 97 F.3d at 866-868 (holding that a nurse and a security guard at a state hospital may be liable under Section 1983 where they do not take action to prevent a patient from being beaten). See also McHenry v. Chadwick, 896 F.2d 184 (6th Cir. 1990) (a correctional officer who observes an unlawful beating may be liable under Section 1983 even though he did not actively participate in the beating), and Bruner v. Dunaway, 684 F.2d 422 (6th Cir. 1982), cert. denied sub nom, Bates v. Bruner, 459 U.S. 1171 (1983) (police officers who stood by and observed an unlawful beating by fellow officers could be held liable under Section 1983).
When faced with a qualified immunity defense, the court must first determine whether or not the plaintiff has stated a claim upon which relief can be granted. Siegert v. Gilley, 500 U.S. 226, 232 (1991); Turner, 119 F.3d at 429. If the court answers that question in the affirmative, the court goes on to determine whether or not the right allegedly violated was clearly established. Turner, 119 F.3d at 429. These are both purely legal questions. The immunity issue should not be resolved if there are factual disputes on which the issue of immunity turns such that it cannot be determined before trial whether the defendants' conduct violated clearly established rights. Hall v. Shipley, 932 F.2d 1147, 1154 (6th Cir. 1991). Thus, where the underlying claim is one in which a certain motive or intent is an element, and plaintiff has made allegations which, if proven, will establish the existence of the necessary state-of-mind, a factual issue exists, preventing dismissal pursuant to Rules 12(b)(6) or 56. See Sanchez v. Sanchez, 777 F. Supp. 906 (D.N.M. 1991). In the Sixth Circuit, plaintiff need not include such allegations in his complaint, since in preparing his Complaint, he has no duty to anticipate affirmative defenses. Dominique v. Telb, 831 F.2d 673, 676 (1987). However, once the affirmative defense is raised, plaintiff must come forward with such additional facts as would establish the requisite state of mind). Id.
Accordingly, when a plaintiff pleads his claim in generalized "notice" form, and the defense of qualified immunity is asserted through a motion to dismiss, the plaintiff is required to respond to that defense. If his original complaint is deficient in that regard, he must amend his complaint to include the specific, non-conclusory allegations of fact that will enable the district court to determine that those facts, if proved, will overcome the defense of qualified immunity. For example, if the original complaint alleged that a police officer "used excessive force," and qualified immunity is asserted, then plaintiff would be required to amend with allegations of evidence sufficient to demonstrate that the force used against him was, indeed, unreasonable. It is in this sense that a heightened standard attaches to plaintiff's pleading.Veney v. Hogan, 70 F.3d 917, 922 (6th Cir. 1995).
In the opinion of the undersigned, when the issue is raised prior to the completion of discovery, the plaintiff must simply respond with specific allegations of fact adequate to survive scrutiny under Rule 12(b)(6) standards. However, when the issue of motive is raised in the context of a motion for summary judgment following an adequate period of discovery, the amount of proof required is that quantum of evidence necessary to allow a jury to return a verdict in plaintiff's favor. Crutcher v. Commonwealth of Kentucky, 883 F.2d 502, 504 (6th Cir. 1989); Hull v. Cuyahoga Valley Joint Vocational School District Bd. of Education, 926 F.2d 505 (6th Cir.), cert. denied sub nom., Hull v. Shuck, 501 U.S. 1261 (1991). Cf. Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988), cert. denied, 488 U.S. 1007 (1989) (to avert dismissal short of trial, plaintiff must come forward with something more than inferential or circumstantial support for his allegation of unconstitutional motive). A plaintiff will defeat a defense of qualified immunity if he can present sufficient evidence to prove the existence of a genuine issue of material fact regarding the issue of immunity or if the undisputed facts which show that defendant violated plaintiff's clearly established rights. Noble, 87 F.3d at 161.
When ruling on qualified immunity, this court must expressly identify the right at issue and summarize the factual or evidentiary basis for its conclusion. Noble, 87 F.3d at 161; Wegener, 933 F.2d at 392. In determining whether a clearly established right exists, the district court looks first to the binding precedent of the Supreme Court, then to that of the Sixth Circuit, and then finally to decisions of other jurisdictions. Wegener, 933 F.2d at 392; Masters v. Crouch, 872 F.2d 1248, 1251-52 (6th Cir.), cert. denied sub nom, Frey v. Masters, 493 U.S. 977 (1989); Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988), cert. denied, 488 U.S. 1007 (1989); Ohio Civil Service Employees Assn. v. Seiter, 858 F.2d 1171, 1177 (6th Cir. 1988). Public officials are expected to be aware of clearly established law specifically governing their conduct. Long v. Norris, 929 F.2d 1111, 1115 (6th Cir.), cert. denied sub nom, Jones v. Long, 502 U.S. 863 (1991).
The United States Supreme Court found that prison officials can be on notice that their conduct violates established law even in novel factual circumstances. Hope v. Pelzer, 536 U.S. 730 (2002). In Hope, Alabama prison guards were not entitled to qualified immunity from inmate's claim that he was subjected to cruel and unusual punishment when he was handcuffed to a hitching post for a period of seven hours, in a non-emergency situation. Id. The Court noted that prison officials knowingly subjected the inmate to a substantial risk of physical harm, unnecessary pain caused by the handcuffs and the restricted position, unnecessary exposure to the heat of the sun, prolonged thirst and taunting, and to a deprivation of bathroom breaks. Id. The Court held that binding Eleventh Circuit precedent, an Alabama Department of Corrections regulation, and a Department of Justice report all informed prison officials of the constitutional infirmity in its use of a hitching post. Id.
While defendant bears the initial burden of presenting facts that, if true, would entitle him to immunity, the ultimate burden of proof falls on plaintiff to show that defendant violated a right so clearly established that any official in defendant's position would have clearly understood that he was under an affirmative duty to refrain from such conduct. Noble, 87 F.3d at 161; Wegener, 933 F.2d at 392. In the opinion of the undersigned, because plaintiff has set forth facts which could support his First and Eighth Amendment claims, defendant is not entitled to qualified immunity.
Defendant argues that plaintiff's state law pendent claims should be dismissed. Defendant asserts that plaintiff's state law assault claim is barred by the two year Michigan statute of limitations period. MCL § 600.5805. A reading of plaintiff's six count complaint reveals that plaintiff is only asserting constitutional claims against defendant. If plaintiff did assert a state law claim for assault, which allegedly occurred on June 8, 2001, his claim would be barred under the Michigan statute of limitations period for an assault claim. Plaintiff filed his complaint on March 31, 2004. However, plaintiff has brought only federal constitutional claims. As defendant points out, a three year limitation period applies. Plaintiff's federal claims are not time barred.
Accordingly, it is recommended that defendant's Motion for Dismissal and/or Motion for Summary Judgment (Docket #74) be denied.
NOTICE TO PARTIES: Objections to this Report and Recommendation must be served on opposing parties and filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); W.D. Mich. LCivR 72.3(b). Failure to file timely objections constitutes a waiver of any further right to appeal. United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985).