Opinion
Case Number 01-10206-BC
August 1, 2003
The plaintiff, a prisoner in the custody of the Michigan Department of Corrections (MDOC), filed a pro se complaint pursuant to 42 U.S.C. § 1983, alleging a violation of his Eighth Amendment rights. On July 24, 2002, after conducting its screening obligation for prisoner filings pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A, this Court dismissed sua sponte all of the defendants named in the complaint except defendants Rencio, Rivard, and Gonzales upon finding that the complaint against some of the defendants was "frivolous, malicious, or failed to state a claim upon which relief may be granted," and sought "monetary relief from . . . defendant[s] who [were] immune from such relief." 28 U.S.C. § 1915A(a) and (b). See e.g., Goodell v. Anthony, 157 F. Supp.2d 796, 798 (E.D. Mich. 2001); Dekoven v. Bell, 148 F. Supp.2d 748, 755 (E.D. Mich. 2001).
On July 29, 2002, the Court entered an order referring all pretrial proceedings to Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B). Thereafter, defendants Renico, Rivard, and Gonzales filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. On October 15, 2002, Magistrate Judge Binder, pursuant to Administrative Order Number 02-AO-073, reassigned the case to Magistrate Judge R. Steven Whalen. Now before the Court is Magistrate Judge Whalen's Report and Recommendation that the defendants' motion be granted in part as to defendants Renico and Rivard because the plaintiff failed to comply with the exhaustion requirements of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), for those defendants, and that the motion be denied in part as to defendant Gonzales because the magistrate judge suggested that there are material facts in dispute and that defendant Gonzales is not entitled to qualified immunity from suit. The plaintiff did not file objections to the recommendation. The plaintiff's failure to file objections to the Report and Recommendation waives any further right to appeal. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to the magistrate judge's report releases the Court from its duty to independently review the motion. Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court agrees with the findings and conclusions of the magistrate judge that the plaintiff failed to comply with the exhaustion requirements of the PLRA for defendants Rivard and Renico. The Court, therefore, will grant in part the defendants' motion and dismiss defendants Renico and Rivard from the case. The defendants, however, did file timely objections to the recommendation. Accordingly, the Court has conducted a de novo review of the matter in light of the magistrate's report and the objections filed as required by 28 U.S.C. § 636(b)(1)(B). The Court finds that a genuine issue of material fact exists regarding whether defendant Gonzales used improper force against the plaintiff. As the extent of force used by defendant Gonzales is disputed at this stage of the proceedings, the Court is unable to determine whether Gonazales' actions violated clearly established law. Consequently, Gonzales cannot be found to be immune from suit under the doctrine of qualified immunity. Therefore, the Court will adopt the report of the magistrate judge, deny in part the defendants' motion to dismiss, or, in the alternative, motion for summary judgment, and refer the case to the magistrate judge to conduct further proceedings.
I.
The plaintiff, J.R. Pettway, is currently incarcerated under the authority of the MDOC at the Standish Maximum Correctional Facility in Standish, Michigan. The events of which the plaintiff complains allegedly took place at the St. Louis Correctional Facility in St. Louis, Michigan. The plaintiff alleges that on January 16, 2000, defendant Gonzales, a prison guard, intentionally assaulted him by twice closing a cell door on him, thereby inflicting physical pain and emotional and mental distress. The plaintiff also alleges that Gonzales threatened to issue misconduct citations against him for no apparent reason, other than as a continuation of harassment.
In their motion to dismiss, the defendants argued that the plaintiff's injury from having a cell door closed on him was, at most, de minimis, and therefore not compensable. The defendants also argued that defendant Gonzales is protected by qualified immunity. Defendant Gonzales submitted an affidavit, dated September 20, 2002, in support of his motion in which he states: "I am not aware that I shut the door on Pettway #290284 and certainly would not have done so intentionally." Def.s' Ex. A, Gonzales Aff. at ¶ 4.
In his Report and Recommendation, the magistrate judge suggested that there is a genuine issue of material fact as to whether defendant Gonzales acted in good-faith when twice closing the door on the plaintiff, or acted maliciously to cause harm to the plaintiff. The magistrate judge found that the record in this case supports the plaintiff's allegation that the door was deliberately closed on him to inflict harm, and also supports defendant Gonzales' allegation that the closing of the door was, at most, an accident. Therefore, the magistrate judge recommended that factual disputes preclude summary judgment for Gonzales.
In addition, the magistrate judge suggested that Gonzales was not entitled to qualified immunity from suit. The magistrate judge found that whether the plaintiff "had a constitutional right, that was clearly established at the time of the incident, to be free of wanton or malicious conduct by prison guards, where such conduct was not in furtherance of any legitimate penological interest, and was not done in a good-faith effort to maintain or restore discipline" was a material fact in dispute that rendered the defendant incapable of receiving qualified immunity. R R at 13. The magistrate judge also found that deliberately slamming a door on an inmate is objectively unreasonable. Therefore, the magistrate judge recommended that the Court not enter judgment as a matter of law for defendant Gonzales at this stage of the proceedings.
In their objections to the report, the defendants argue that the plaintiff cannot prevail on his Eighth Amendment claim as a matter of law because there was a penological justification for Gonzales' actions and any use of force by Gonzales was de minimis. Thus, the defendants contend that whether Gonzales intentionally or accidentally closed the door on the plaintiff is not material to this case. In support of their argument, the defendants point the Court to the Seventh Circuit's opinion in Outlaw v. Newkirk, 259 F.3d 833 (7th Cir. 2001), which held that a prisoner plaintiff could not prevail on an Eighth Amendment claim that a prison guard intentionally closed a door on his hand because the plaintiff suffered de minimis injuries and the guard had a penological justification for shutting the door on the plaintiff. The defendants also argue that pursuant to the holding in Outlaw, Gonzales did not violate a clearly establish right, and, as a result, the defendants maintain that Gonzales is entitled to qualified immunity and that the magistrate judge erred in not granting their motion.
II.
Motions to dismiss are governed by Rule 12(b) of the Federal Rules of Civil Procedure; Rule 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even in everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). When deciding a motion under that Rule, "[t]he court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief." Cline v. Rogers, 87 F.3d 176, 179 (6th Cir. 1996). "A judge may not grant a Rule 12(b)(6) motion based on a disbelief of a complaint's factual allegations." Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995). "However, while liberal, this standard of review does require more than the bare assertion of legal conclusions." Ibid. "In practice, `a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" In re DeLorean, 991 F.2d at 1240 (emphasis in original) (quoting Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988)). See also Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987) (liberal Rule 12(b)(6) review is not afforded legal conclusions and unwarranted factual inferences); Ana Leon T. v. Federal Reserve Bank, 823 F.2d 928, 930 (6th Cir.) (per curiam) (mere conclusions are not afforded liberal Rule 12(b)(6) review), cert. denied, 484 U.S. 945 (1987).
A motion for summary judgment under Federal Rule Civil Procedure 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). When the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party," there is no genuine issue of material fact. Simmons-Harris v. Zelman, 234 F.3d 945, 951 (6th Cir. 2000).
The moving party has the burden of showing an absence of evidence to support the non-moving party's case. See Covington v. Know County School Sys., 205 F.3d 912, 914 (6th Cir. 2000). Once the moving party has met its burden of production, the non-moving party must come forward with significant probative evidence showing that a genuine issue exists for trial. See id. The mere existence of a scintilla of evidence to support the plaintiff's position will be insufficient; rather, evidence must exists on which the jury can reasonably find in favor of the plaintiff. See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 788 (6th Cir. 2000).
In this case, the plaintiff's federal cause of action is based on 42 U.S.C. § 1983, under which the plaintiff must establish that a person acting under color of state law deprived the plaintiff of a right secured by the Constitution or laws of the United States. Berger v. City of Mayfield Heights, 265 F.3d 399, 405 (6th Cir. 2001). The Eighth Amendment bars the use of excessive force against incarcerated persons. Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995). To determine whether the force used could be considered excessive, the Court examines whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously or sadistically for the purpose of causing harm. Id.; see Hudson v. McMillian, 503 U.S. 1, 7 (1992). Although the nature of the prison setting requires contact between corrections officials and prisoners that might be considered actionable at common law, such contact violates the Eighth Amendment only if it constitutes the "unnecessary and wanton infliction of pain." Pelfrey, 43 F.3d at 1037. While a de minimis use of force will not support an actionable claim, see Moore v. Holbrook, 2 F.3d 697, 700-01 (6th Cir. 1993), a plaintiff may recover even if he suffers only minor injury. See Hudson, 503 U.S. at 10. Factors to be considered in evaluating the propriety of the force used include "the need for application of force, the relationship between the need and the force that was used, the extent of the injury inflicted," as well as "the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them, and any efforts made to temper the severity of a forceful response." Whitney v. Albers, 475 U.S. 312, 321 (1986).
The defendants have not met their initial burden of demonstrating an absence of evidence to support the plaintiff's excessive force claim. See Covington, 205 F.3d at 914. In his verified complaint, the plaintiff avers that defendant Gonzales intentionally closed a cell door on him on two separate occasions while the plaintiff was attempting to return to his cell and that the incident caused the plaintiff to suffer injuries. As the magistrate judge observed, the documentation attached to the defendants' motion provides support for this allegation. For example, two prisoners witnessed the event and gave statements to defendant Rivard, who was the MDOC official investigating the incident. One of the prisoners told Rivard that as the plaintiff was coming back from lunch, he "was slammed in the door twice." Def.s' Ex. A-1. The other prisoner told Rivard that "twice when attempting to enter his cell, [the plaintiff] was closed in his door by RUO Gonzales." Ibid. In response, the defendants provided the affidavit of Gonzales in which he avers that he did not recall the incident and that he would not have intentionally closed the door on the plaintiff. However, this statement conflicts with Gonzales' earlier statement to Rivard that he did not shut the door on the plaintiff until he was in the room. See id. These conflicting items of evidence create a genuine issue of material fact regarding whether Gonzales used improper force against the plaintiff.
Citing the Seventh Circuit's decision in Outlaw v. Newkirk, the defendants argue that, as a matter of law, the plaintiff has not suffered a significant injury for Eighth Amendment purposes because Gonzales' actions only involved a de minimis use of force and were penologically justified. In Outlaw, Cameron Mable, a prison guard, was attempting to distribute a pair of gym shorts to the prisoner plaintiff through the cuffport door, which is a small hatch within the cell door, when the plaintiff, holding some garbage, placed his hands in the cuffport. Mable, thinking that the plaintiff was attempting to throw the garbage out of the cell, closed the cuffport door on the plaintiff's hand. The plaintiff filed suit under 42 U.S.C. § 1983 claiming that Mable violated his Eighth Amendment right to be free from cruel and unusual punishment by slamming his hand in the cuffport door causing sever pain, swelling and bruising. Mable moved for summary judgment claiming that he closed the cuffport door because it was "necessary for the security and integrity of the prison" that the cuffport door be closed because prisoners had in the past attempted to attack or grab guards through the cuffport opening, and that he did not intend to harm the plaintiff. Outlaw, 259 F.3d at 835-36. The plaintiff responded by arguing that he was not attempting to throw trash at Mable and that Mable was retaliating for a grievance the plaintiff had filed earlier against Mable. The district court granted Mable's motion for summary judgment; the Seventh Circuit affirmed, stating:
[The plaintiff] cannot escape summary judgment even if his own account of the incident is accepted as true (that is, even if he was merely attempting to "place" rather than to "throw" the garbage through the cuffport when Mable closed the door on his hand). As we have noted, Eighth Amendment claims based on de minimis uses of physical force by prison guards are not cognizable unless they involve "force that is repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10, 112 S.Ct. 995. All of the evidence adduced in this case suggests that Mable had a legitimate security reason to close the cuffport door, whether [the plaintiff] was actually attempting to throw the garbage or merely holding it through the cuffport while uttering hostile words, and that in closing the door Mable applied only enough force to cause superficial injuries to [the plaintiff's] hand. Even viewing the facts in a light most favorable to [the plaintiff], a rational jury could draw one of only two possible conclusions: that the incident was an accident, or that Mable deliberately and perhaps unnecessarily applied a relatively minor amount of force to achieve a legitimate security objective. Neither scenario would involve a use of force that was "repugnant to the conscience of mankind." . . .
[The plaintff's] evidence does not suggest that his injury was more than minor, nor does it identify any other fact sufficient to raise a genuine issue on the question of whether Mable shut the cuffport door "maliciously and sadistically for the very purpose of causing harm." Id. at 839-40.
Unlike the court in Outlaw, this Court is unable to determine from the record at this stage of the proceedings whether Gonzales had a legitimate security reason to close the cell door on the plaintiff. Although Gonzales testified that prison staff attempt "to close the doors as prisoners enter the cell to eliminate congestion from the floor," Def.s' Ex. A, Gonzales Aff. at ¶ 4, this statement alone is insufficient to establish that Gonzales had a penological justification for closing the cell door on the plaintiff, or that the force applied was in a good-faith effort to maintain or restore discipline. Moreover, the Court is unable to determine from the record whether Gonzales applied only enough force to cause superficial injuries to the plaintiff. The MDOC's investigation into the incident revealed that the plaintiff sought medical care three weeks after he alleged that Gonzales shut a cell door on him and that he complained of a sore back. However, neither party has provided the Court with the plaintiff's medical records that would give some indication of the extent of the plaintiff's injuries. Minor injuries such as a sore back, pain, swelling, or an abrasion may be sufficient injury to support an Eighth Amendment claim where, as here, there are genuine issues concerning the cause of the plaintiff's injury and the justification for, and the reasonableness of, any force applied by Gonzales. See Moore, 2 F.3d at 700 ("To determine whether a claim of assault rises to a level of constitutional magnitude, a court must consider the reasons or motivation for the conduct, the type of force used, and the extent of the inflicted injury."). Although a de minimis use of force will not support an actionable claim under the Eight Amendment, the mere allegations by the defendants that the plaintiff did not suffer significant injury or the conclusory statements that Gonzales' use of force was de minimis does not eliminate the genuine factual contest on this issue.
In determining whether Gonzales, as a government official, is entitled to qualified immunity, the Court applies a three-part test. See Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir. 2002); Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc). First, the plaintiff must show a violation of a constitutionally protected right. Higgason, 288 F.3d at 876. "The second inquiry is whether that right was clearly established at the time such that a reasonable official would have understood that his behavior violated that right." Ibid. Finally, the Court must 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 rights." Williams, 186 F.3d at 691.
For a constitutional right to be clearly established, "the law must be clear in regard to the official's particular actions in the particular situation." Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.), cert. denied, 502 U.S. 863 (1991); see also Walton v. City of Southfield, 995 F.2d 1331, 1335 (6th Cir. 1993). This requires that [t]he 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 the light of pre-existing law the unlawfulness must be apparent. Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted). "Thus, the particular conduct of the official must fall clearly within the area protected by the constitutional right, such that a reasonable official would have known that his or her conduct violated the constitutional right." Walton, 995 F.2d at 1336; see Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994) ("key inquiry in analyzing a claim of qualified immunity is whether the defendant's alleged conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known."). "This `objective reasonableness' standard focuses on whether defendants reasonably could have thought that their actions were consistent with the rights that plaintiff claims have been violated." Walton, 995 F.2d at 1336 (citing Garvie v. Jackson, 845 F.2d 647, 649 (6th Cir.1988).
In inquiring whether a constitutional right is clearly established, the court must "look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits." Daugherty v. Campbell, 935 F.2d 780, 784 (6th Cir.1991), cert. denied, 502 U.S. 1060 (1992). [I]n the ordinary instance, to find a clearly established constitutional right, a district court must find binding precedent by the Supreme Court, its court of appeals or itself. In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law. For the decisions of other courts to provide such "clearly established law," these decisions must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting. Ohio Civil Serv. Employees Ass'n v. Seiter, 858 F.2d 1171, 1177 (6th Cir.1988). "Thus, it is only in extraordinary cases that we can look beyond Supreme Court and Sixth Circuit precedent to find `clearly established law.'" Walton, 995 F.2d at 1336.
It is true that the question of whether the "defendants are entitled to qualified immunity is a question to be resolved at the earliest possible stage of litigation." Goad v. Mitchell, 297 F.3d 497, 501 (6th Cir. 2002). Thus, the court looks first to the plaintiff's complaint when evaluating a qualified immunity challenge to a cause of action for excessive force that allegedly violates the constitution. However, there is no heightened pleading requirement for such claims. Id. at 502 (citing Crawford-El v. Britton, 523 U.S. 574, 595 (1998)). Rather, in evaluating claims of qualified immunity, this Court is required at the outset to assume that the allegations contained in the complaint are true. See Saucier v. Katz, 533 U.S. 194, 201 (2001). Thereafter, the traditional procedural rules of discovery and summary judgment are employed to screen out those claims that do not warrant a trial, including cases in which the affirmative defense of qualified immunity is asserted. See Goad, 297 F.3d at 504 (citing Swierkiewicz v. Sorema, 534 U.S. 506 (2002) ("[the] notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.")). In this case, the plaintiff has alleged in his verified complaint that Gonzales used excessive force against him in violation of his constitutionally protected rights. As mentioned above, the defendants have not met their burden of demonstrating an absence of evidence to support the plaintiff's allegations of excessive force. It is beyond debate that the right of prisoners to be free from and malicious, gratuitous use of force has long been established. See Pelfrey, 43 F.3d at 1037. No prison guard could seriously contend that he should not have been on notice that repeatedly slamming a door on a prisoner's hand would violate clearly established federal law. Therefore, based on the allegations contained in the verified complaint, the Court finds that Gonzales is not entitled to qualified immunity.
III.
The plaintiff has failed to provide sufficient proof that he exhausted his administrative remedies for defendants Renico and Rivard. However, material facts are still in dispute with regard to the plaintiff's claim against defendant Gonzales. In addition, Gonzales is not entitled to qualified immunity. Therefore, the defendants' motion to dismiss or in the alternative for summary judgment will be granted in part and denied in part. Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED.
It is further ORDERED that the defendants' motion to dismiss and/or for summary judgment [dkt # 14] is GRANTED IN PART and DENIED IN PART. Defendant Paul Renico and defendant Steven Rivard shall be dismissed from the above-entitled matter. The reference order remains in effect, and the Magistrate Judge shall conduct further proceedings consistent with this opinion and the order for full case management [dkt # 9] previously filed.