Phillip Cordell v. Glen McKinney
OPINION and JUDGMENT filed : The district court s grants of summary judgment and qualified immunity are REVERSED, and the case is REMANDED for further proceedings consistent with the opinion of this court. Decision for publication. Karen Nelson Moore (AUTHORING) and Raymond M. Kethledge, Circuit Judges; Arthur J. Tarnow, U.S. District Judge for the Eastern District of Michigan, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0155p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 3:11-cv-00231—Timothy S. Black, District Judge.
Argued: June 25, 2014
Decided and Filed: July 16, 2014
Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge.*
ARGUED: Margaret McKay, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for
Appellant. Joshua R. Schierloh, SURDYK, DOWD & TURNER CO., L.P.A., Miamisburg,
Ohio, for Appellee. ON BRIEF: David Singleton, OHIO JUSTICE & POLICY CENTER,
Cincinnati, Ohio, for Appellant. Joshua R. Schierloh, SURDYK, DOWD & TURNER CO.,
L.P.A., Miamisburg, Ohio, for Appellee.
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern District of Michigan,
sitting by designation.
Cordell v. McKinney
KAREN NELSON MOORE, Circuit Judge. Phillip Cordell filed suit under 42 U.S.C.
§ 1983 alleging that Deputy Sheriff Glen McKinney ran afoul of the Constitution’s guarantees
under the Eighth Amendment when he slammed Cordell, who was handcuffed and restrained,
headfirst into a concrete wall. The district court rejected Cordell’s suit, granting summary
judgment and qualified immunity to Deputy McKinney. A genuine dispute as to several material
facts exists, however, and if Cordell’s version of events is credited, a reasonable jury could
conclude that Deputy McKinney inflicted serious pain upon Cordell with malicious and sadistic
intent. Moreover, we conclude that any reasonable jail official would know that the Eighth
Amendment prohibits the conduct that Cordell accuses Deputy McKinney of exhibiting in the
particular factual circumstances in which that conduct occurred. As a result, we REVERSE the
district court’s grants of summary judgment and qualified immunity, and we REMAND for
further proceedings consistent with this opinion.
I. FACTS & PROCEDURAL HISTORY
From November 7, 2008 until July 23, 2009, Cordell was an inmate at the Greene County
Jail in Xenia, Ohio. R. 26-1 at 20:7–17 (Cordell Dep.) (Page ID #133). On July 13, he pleaded
guilty to involuntary manslaughter. Id. at 17:2–16 (Page ID #130). Afterwards, Cordell was in a
cell on the second floor of the jail as he awaited transfer to a state penitentiary to serve his sixtymonth sentence. Id. at 19:13–15 (Page ID #132).
In the late afternoon of July 20, McKinney was the deputy sheriff charged with
overseeing the inmates on the second floor. R. 29 at 12:8–14 (McKinney Dep.) (Page ID #249).
As Deputy McKinney performed his initial rounds on the floor, several inmates, including
Cordell, requested haircuts. Id. at 12:15–18 (Page ID #249). According to Cordell, Deputy
McKinney responded to this request by stating, “‘Don’t fuck with me about being put on the
haircut list, or your sorry ass won’t get one.’” R. 26-1 at 26:15–16 (Cordell Dep.) (Page ID
#139). Perhaps unsurprisingly, Deputy McKinney remembers his statement being less vulgar.
Cordell v. McKinney
See R. 29 at 12:17–23 (McKinney Dep.) (Page ID #249). Both parties, however, agree that
Cordell responded with some version of “‘Fuck you, you sawed-off piece of shit.’” R. 26-1 at
26:17–18 (Cordell Dep.) (Page ID #139); see also R. 29 at 15:7 (McKinney Dep.) (Page ID
This outburst did not sit well with Deputy McKinney. He commanded Cordell to step
into the vestibule area so that Deputy McKinney could place Cordell in handcuffs and escort him
to a holding cell on the third floor of the jail. R. 29 at 16:2–4 (McKinney Dep.) (Page ID #253).
Cordell claimed that he “was in complete compliance” with Deputy McKinney’s commands.
R. 26-1 at 31:14 (Cordell Dep.) (Page ID #144). In contrast, Deputy McKinney stated that
Cordell was “verbally aggressive,” “not listening to [Deputy McKinney’s] commands,” and
“getting the rest of the block . . . agitated.” R. 29 at 16:5–8, 17:6–7 (McKinney Dep.) (Page ID
#253, 254). This behavior, according to Deputy McKinney, forced him to display his Taser and
call for backup. Id. at 16:18–24 (Page ID #253). Correctional Officer Brian Marzluf responded
first, and Deputy McKinney handed him the Taser and began to handcuff Cordell. Id. at 17:23–
18:5 (Page ID #254–55); R. 30 at 11:5–10 (Marzluf Dep.) (Page ID #351). By the time Deputy
McKinney finished placing Cordell in handcuffs, Sergeant David Jones and Deputy Sheriff
William Coe arrived on the cellblock. R. 32 at 14:26–19 (Jones Dep.) (Page ID #420); R. 33 at
13:13–17 (Coe Dep.) (Page ID #467).
Deputy McKinney then placed Cordell “[i]n an escort position” and began leading him to
the third-floor holding cell. R. 29 at 19:25 (McKinney Dep.) (Page ID #256). Cordell described
this position as “[w]hen your hands are behind your back and somebody tries to raise them
laterally up toward your shoulders, it’s a submission[-style hold].” R. 26-1 at 33:15–19 (Cordell
Dep.) (Page ID #146). Having put Cordell in this position, Deputy McKinney began to move
Cordell “in a brisk fashion.” Id. at 33:19–20 (Page ID #146); see also R. 32 at 17:8–9 (Jones
Dep.) (Page ID #423) (“Deputy McKinney did move [Cordell] at a brisk pace.”); R. 33 at 17:6–
14 (Coe Dep.) (Page ID #471) (acknowledging that Deputy McKinney was walking Cordell
quickly). Deputy McKinney, Cordell, and the other officers traveled through the second-floor
office and up a flight of stairs without incident. See R. 26-1 at 33:24–34:25 (Cordell Dep.) (Page
ID #147); Security Video, Cordell 1 at 17:12:35.44–17:12:40.52.
Cordell v. McKinney
Near the top of the stairs, Deputy McKinney and Cordell paused. Deputy McKinney
“double-locked” Cordell’s handcuffs, preventing them from tightening further, and waited for
the other officers to reach the landing. R. 26-1 at 35:1, 35:17–24 (Cordell Dep.) (Page ID #148).
While the procession was stopped, Nurse Deborah Jordan joined the group. R. 31 at 11:4–7
(Jordan Dep.) (Page ID #380). Then, Deputy McKinney started to march Cordell down the
third-floor hallway. R. 26-1 at 37:20–25 (Cordell Dep.) (Page ID #150). This hallway “does a
dogleg, goes down 30, 40 feet, turns to the right, [and] immediately turns to the left.” Id. at
37:17–19 (Page ID #150). According to Cordell, “[Deputy] McKinney start[ed] pushing [him]
faster and faster [down this hallway] and raising [Cordell’s] arms behind [Cordell’s] back.” Id.
at 37:21–23 (Page ID #150). Cordell “tried to turn around to see what [McKinney’s] intentions
[were], why he [was] trying to push [Cordell] so fast.” Id. at 41:16–17 (Page ID #154). In
response, Cordell claimed, Deputy McKinney ran him “head first into the wall” with force
sufficient to lacerate Cordell’s forehead, cause severe neck and back pain, and leave him “very,
very groggy.” Id. at 61:17–23 (Page ID #174); id. at 57:22 (Page ID #170).
Deputy McKinney described this sequence of events differently. According to Deputy
McKinney, he walked Cordell “at a steady pace . . . , a pace that [he knew he] need[ed] to move
[Cordell at] to get him where [Deputy McKinney] want[ed] him to go so [the officers] [could]
. . . control the situation.” R. 29 at 70:14–15, 70:20–22 (McKinney Dep.) (Page ID #307).
Deputy McKinney stated that Cordell “start[ed] tensing up” in the hallway and that Deputy
McKinney warned Cordell to stop. Id. at 19:15, 19:19–20 (Page ID #256). When Cordell failed
to face forward, Deputy McKinney “placed him against the wall within the hallway.” Id. at
19:21–22 (Page ID #256). In Deputy McKinney’s opinion, he “used the minimum amount of
force necessary to control . . . Inmate Cordell.” Id. at 27:17–18 (Page ID #274).
The security video captures Deputy McKinney and Cordell entering the empty hallway.
Security Video, Cordell 2 at 17:12:55.67. It also shows Cordell turning his head toward Deputy
McKinney, who has Cordell’s arms secured. Id. at 17:12:57.01–17:12:57.81. On the video,
Deputy McKinney responds to Cordell’s turn by directing him toward the wall, id. 17:12:57.27–
17:12:58.08, but Deputy McKinney and Cordell move outside the camera’s view before Cordell
makes contact with the wall, id. at 17:12:58.34. The video shows Sgt. Jones, Deputy Coe,
Cordell v. McKinney
Correctional Officer Sortman, Officer Marzluf, and Nurse Jordan surrounding Deputy McKinney
and Cordell. Id. at 17:12:58.61–17:13:07.54. Approximately twenty-five seconds after Deputy
McKinney and Cordell exit the view of the camera, the group—minus Nurse Jordan—begin
moving onward. Id. at 17:13:22.77. After Cordell and the officers appear to leave, the video
shows Nurse Jordan pointing at the wall. Id. at 17:13:31.04–17:13:32.38. In her deposition,
Nurse Jordan testified that she was pointing at fresh blood on the wall. R. 31 at 13:10–19
(Jordan Dep.) (Page ID #382). Nurse Jordan also stated that she noticed blood droplets on the
floor from Cordell’s wound. Id. at 16:3–14 (Page ID #385).
After the incident in the third-floor hallway, Deputy McKinney, Cordell, and the other
officers continued on to the holding cells without incident. R. 29 at 77:4–82:11 (McKinney
Dep.) (Page ID #314–19). Once Deputy McKinney and Cordell were in the holding cell,
however, they started “having a heated discussion, [a] debate about why [Cordell] was pulled out
and to why [Deputy McKinney] did—[what] [Deputy McKinney’s] actions were and [Cordell’s]
actions were.” Id. at 83:19–21 (Page ID #320). Sgt. Jones directed Deputy McKinney to cease
arguing with Cordell; Deputy McKinney did not comply, and Sgt. Jones removed Deputy
McKinney from the scene. R. 32 at 28:1–16 (Jones Dep.) (Page ID #434); R. 29-3 at 1 (Jones
Report) (Page ID #334).
With Deputy McKinney out of the cell, Nurse Jordan started assessing and treating
Cordell’s wounds. According to Cordell, “everything hurt—[his] head, [his] neck, [his] back,
[his] shoulders from being raised up, but all in combination.” R. 26-1 at 61:18–20 (Cordell
Dep.) (Page ID #174). Nurse Jordan found “a little cut above his eye,” and she bandaged it. R.
31 at 14:3–4 (Jordan Dep.) (Page ID #383. Deputy Coe, who took Deputy McKinney’s place in
the holding cell, stated that blood “was trickling down . . . [the] side of [Cordell’s] face from his
brow.” R. 33 at 21:25–22:1 (Coe Dep.) (Page ID #475–76). Nurse Jordan and the officers then
left Cordell to calm down.
When Sgt. Jones returned to the holding cell thirty to forty-five minutes later, Cordell
asked “to file a complaint of excessive force” against Deputy McKinney. R. 32 at 34:20 (Jones
Dep.) (Page ID #440). Sgt. Jones took a report. See R. 29-5 at 1 (Complaint Summary) (Page
ID #336). In the accompanying witness statement, Cordell alleged that Deputy McKinney “lost
Cordell v. McKinney
his temper” and “ran [Cordell’s] head into the wall . . . under the video camera in the [thirdfloor] hall.” R. 29-9 at 1 (Witness Statement) (Page ID #340). Later, as a result of this
complaint, Deputy McKinney received “a written [warning] for excessive use of force.” R. 29 at
31:10–11 (McKinney Dep.) (Page ID #268).
When Nurse Jordan returned to check on Cordell, he continued to complain that he was
in severe pain and needed stitches for the laceration in his head. R. 26-1 at 66:20–25 (Cordell
Dep.) (Page ID #179); R. 31 at 17:17–25 (Jordan Dep.) (Page ID #386). Later in the evening of
July 20, Cordell went to Greene County Memorial Hospital. The doctors noted that Cordell
complained of “neck pain when moving side to side.” R. 36-1 at 6 (Hospital Records) (Page ID
#518). The hospital records indicated that Cordell’s “[n]eck was supple with no reproducible
cervical spine tenderness,” id. at 11 (Page ID #523), but the doctors diagnosed him with
“whiplash,” id. at 5 (Page ID #517), and “[n]eck pain following whiplash-type injury,” id. at 11
(Page ID #523). Cordell returned to the jail with five stitches, and on July 23, he was transferred
to Chillicothe Correctional Institute. R. 26-1 at 16:9–11 (Cordell Dep.) (Page ID #129).
On July 1, 2011, Cordell filed this suit under 42 U.S.C. § 1983, alleging that Deputy
McKinney violated his right to be free from cruel and unusual punishments under the Eighth and
Fourteenth Amendments. R. 1 at 4 (Compl.) (Page ID #4). On October 2, 2012, Deputy
McKinney filed a motion for summary judgment, claiming that Deputy McKinney used only
reasonable force and that he is entitled to qualified immunity. R. 19 at 13, 16–18 (Mot. for
Summ. J. at 12, 15–17) (Page ID #77, 80–82). Cordell countered with a declaration from Dr.
Richard Bozian, stating that Deputy McKinney’s conduct “aggravated a preexisting but
asymptomatic degenerative pathology in Mr. Cordell’s neck.” R. 36-1 at 2 (Dr. Bozian Decl.)
(Page ID #514). Deputy McKinney moved to strike this declaration. R. 37 at 1 (Mot. to Strike)
(Page ID #527).
On September 24, 2013, the district court granted Deputy McKinney’s motion for
summary judgment. It found that Cordell’s allegations of excessive force were “uncorroborated”
and that Deputy McKinney was justified in using the amount of force that he did. R. 42 at 17, 19
(D. Ct. Op.) (Page ID #609, 611). The district court, in the alternative, also granted Deputy
McKinney’s motion on grounds of qualified immunity, finding that “no reasonable jury could
Cordell v. McKinney
rely on [Cordell’s] account and that the force utilized was reasonable as a matter of law.” Id. at
20 (Page ID #612). This appeal follows.
II. STANDARD OF REVIEW
We review de novo a district court’s order granting summary judgment. Combs v.
Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002). Summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists
when there is sufficient evidence for a trier of fact to find for the non-moving party.” Ciminillo
v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Importantly, at this stage in the litigation, we
must “view the facts and draw reasonable inferences ‘in the light most favorable to the party
opposing the [summary-judgment] motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). “When opposing parties tell two
different stories, [however,] one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, [we need] not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Id. at 380. However, “[f]acts that are not blatantly
contradicted by [a video] recording remain entitled to an interpretation most favorable to the
non-moving party.” Coble v. City of White House, 634 F.3d 865, 870 (6th Cir. 2011).
Cordell contends that the district court erred in finding (1) that Deputy McKinney did not
violate Cordell’s Eighth Amendment rights and (2) that, even if the deputy did, he was entitled to
qualified immunity because those rights were not clearly established. In a sense, the district
court sided with Deputy McKinney on both prongs of the qualified-immunity analysis, which
asks “whether a constitutional right would have been violated on the facts alleged” and “whether
the right at issue was clearly established at the relevant time.” Plumhoff v. Rickard, --- U.S. ---,
134 S. Ct. 2012, 2020 (2014) (internal quotation marks omitted). While we may evaluate either
prong first, Pearson v. Callahan, 555 U.S. 223, 227 (2009), we take the prongs up in order and
conclude that the district court erred in making both findings. Thus, we hold that Deputy
McKinney is not entitled to qualified immunity, we REVERSE the district court’s grant of
summary judgment, and we REMAND for further proceedings consistent with this opinion.
Cordell v. McKinney
A. Constitutional Violation
The Eighth Amendment prohibits the imposition of “cruel and unusual punishments”
upon prisoners. U.S. Const. amend. VIII. But not every shove or restraint gives rise to a
constitutional violation. Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir. 1986). On occasion,
“[t]he maintenance of prison security and discipline may require that inmates be subjected to
physical contact actionable as assault under common law.” Combs, 315 F.3d at 556 (citing
Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995)). Prison officials nonetheless violate
the Eighth Amendment when their “offending conduct reflects an unnecessary and wanton
infliction of pain.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (internal quotation
marks omitted); Bailey v. Golladay, 421 F. App’x 579, 582 (6th Cir. 2011).
There is an objective component and a subjective component to an Eighth Amendment
claim. Santiago v. Ringle, 734 F.3d 585, 590 (6th Cir. 2013) (citing Comstock v. McCrary,
273 F.3d 693, 702 (6th Cir. 2001)). First, “[t]he subjective component focuses on the state of
mind of the prison officials.” Williams, 631 F.3d at 383. We ask “whether force was applied in
a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillan, 503 U.S. 1, 7 (1992). Second, “[t]he objective component requires
the pain inflicted to be ‘sufficiently serious.’” Williams, 631 F.3d at 383 (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.’” Hudson, 503 U.S. at 8 (quoting
Estelle v. Gamble, 429 U.S. 97, 103 (1976)). 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. 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.”
503 U.S. at 9. “Otherwise, the Eighth Amendment would permit any physical punishment, no
matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Id.
The district court determined that Cordell failed to demonstrate a genuine dispute of
material facts with regard to both components. In reaching this conclusion, however, the district
court improperly weighed the evidence in the record. Viewing the evidence “in the light most
Cordell v. McKinney
favorable to [Cordell],” as we must, we conclude that a reasonable jury could find that Cordell
has demonstrated that Deputy McKinney violated his Eighth Amendment right to be free from
excessive force. Scott, 550 U.S. at 380.
1. Subjective Component
We begin with the subjective component. In determining whether a prison official had a
culpable state of mind, we have found it helpful to consider “such factors as the need for the
application of force, the relationship between the need and the amount of force that was used,
[and] the extent of 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.” Whitley v. Albers,
475 U.S. 312, 321 (1986) (internal quotation marks omitted; alteration in original). Considering
these factors and the record in Cordell’s favor, we conclude that a reasonable jury could find that
Deputy McKinney acted with malicious and sadistic intent to cause harm.
To start, there is a question of whether Deputy McKinney had a plausible justification for
applying any force to Cordell. In evaluating this factor, we recognize that “prison officials ‘must
make their decisions in haste under pressure, and frequently without the luxury of a second
chance.’” Combs, 315 F.3d at 557 (quoting Hudson, 503 U.S. at 6). Therefore, “[t]he issue is
. . . not whether the use of force was absolutely necessary in hindsight, but whether the use of
force could plausibly have been thought necessary . . . .” Griffin v. Hardrick, 604 F.3d 949, 954
(6th Cir. 2010) (internal quotation marks omitted).
In this case, Deputy McKinney claimed that Cordell “tensed up [and] turned into [him]”
as he escorted Cordell down the third-floor hallway, R. 29 at 67:8–13 (McKinney Dep.) (Page ID
#304), an action that various jail officials testified could justify placing an inmate against the
wall or taking him down to the floor in an effort to reassert control over the inmate, see R. 32 at
23:14–20 (Jones Dep.) (Page ID #429); R. 33 at 28:1–3 (Coe Dep.) (Page ID #482). Cordell did
not dispute that the use of some force could be appropriate when an inmate turns toward a guard,
and our prior decisions indicate that prison officials may use appropriate force to regain control
of an aggressive inmate. See, e.g., Griffin, 604 F.3d at 954–55. While the videotape of the
encounter does not clearly show that Cordell voluntarily turned his body toward Deputy
Cordell v. McKinney
McKinney,1 Cordell acknowledged that he “turn[ed] and attempt[ed] to face [Deputy
McKinney].” R. 26-1 at 44:5–7 (Cordell Dep.) (Page ID #157). Accordingly, we must conclude
that there is no genuine dispute as to whether Deputy McKinney had a reasonable basis for using
some force against Cordell.2
The fact that Deputy McKinney had a plausible basis for using some force, however,
does not end our inquiry. We must consider the relationship between the need to use force and
the amount of force used. In other words, we ask whether Deputy McKinney had a reasonable
basis for using the amount of force that he did when Cordell turned toward him.
This inquiry is complicated by a genuine dispute as to how much force Deputy
McKinney actually employed. All agree that Cordell turned to some extent and that Deputy
McKinney pushed Cordell against the wall in response. But the record does not conclusively
show how Cordell contacted the wall.
Deputy McKinney testified that he used only “the
minimum amount of force necessary to control . . . Inmate Cordell.”
R. 29 at 37:17–18
(McKinney Dep.) (Page ID #274). The other officers agreed with his assessment. See R. 32 at
35:15–16 (Jones Dep.) (Page ID #441); R. 33 at 27:22–24 (Coe Dep.) (Page ID #481). Contrary
to these statements, however, Cordell claimed that Deputy McKinney raised Cordell’s cuffed
arms up, pushed his torso down, and intentionally rammed him “head first into the wall.” R. 26-
The videotape confirms that Cordell did turn his head toward Deputy McKinney. Security Video, Cordell
2 at 17:12:56.21; see also R. 29 at 66:1–4 (McKinney Dep.) (Page ID #303). But the videotape is ambiguous on
whether Cordell voluntarily turned his body into Deputy McKinney. Deputy McKinney testified that, at
17:12:57.01 on the videotape, Cordell turned into him. R. 29 at 66:7–16 (McKinney Dep.) (Page ID #303). Based
on our review of the videotape, however, it is not clear that Cordell turned his body voluntarily toward Deputy
McKinney. For instance, at 17:12:57.01, when Deputy McKinney claims that Cordell turned into him, Cordell’s
weight appears to be predominantly on his right foot (the foot closest to Deputy McKinney), and his left foot is
raised to step forward. Security Video, Cordell 2. A reasonable jury could find that it would be unnatural for
Cordell’s legs to be in such a position if he were making an aggressive turn toward the deputy. Moreover, at all
relevant points in the hallway, Cordell’s feet remain pointed and moving forward, another fact that a reasonable jury
might find to cast doubt upon the necessity of using force.
Deputy McKinney also claimed that Cordell “tens[ed] up his arms and pull[ed] away from [the deputy].”
R. 29-4 at 1 (McKinney Report) (Page ID #335). Cordell denied these allegations, see R. 26-1 at 31:16–17 (Cordell
Dep.) (Page ID #144) (stating that he “complied completely”), and the videotape does not show any resistance on
Cordell’s part, see Security Video, Cordell 2 at 17:12:55.67–17:12:58.61. Additionally, Deputy McKinney stated
that he warned Cordell to stop his behavior, R. 29 at 67:10–11 (McKinney Dep.) (Page ID #304), but Cordell also
denied that this warning took place, R. 26-1 at 44:8–16 (Cordell Dep.) (Page ID #157), and the videotape does not
show Deputy McKinney speaking in the hallway, see Security Video, Cordell 2 at 17:12:55.67–17:12:58.08.
Therefore, at this stage in the litigation, we adopt Cordell’s version of events and consider Cordell’s turn toward
Deputy McKinney to be the only justification for using any force. See Coble, 634 F.3d at 870.
Cordell v. McKinney
1 at 42:14–15 (Cordell Dep.) (Page ID #155). As a result, we have two irreconcilable stories
regarding what happened.
Taking Cordell’s version of events as true, as we must do at this stage of the litigation,
we conclude that a reasonable jury could find that Deputy McKinney lacked a good-faith reason
to use Cordell as a human battering ram. We reach this conclusion for several reasons. First,
there is the severity of Cordell’s injuries. The record indicates that Cordell suffered a laceration,
R. 26-1 at 66:20–25 (Cordell Dep.) (Page ID #179); that the laceration bled on the wall, on the
hallway floor, and on Cordell’s face, R. 31 at 14:2–5 (Jordan Dep.) (Page ID #383); id. at 16:3–
11 (Page ID #385); R. 33 at 21:25–22:1 (Coe Dep.) (Page ID #475–76); and that, ultimately,
Cordell needed five stitches to close the wound,3 R. 36-1 at 5 (Hospital Records) (Page ID
#517). The record also indicates that Cordell immediately complained of head and neck pain, R.
26-1 at 60:7–18 (Cordell Dep.) (Page ID #173), and the hospital records lend some credence4 to
these complaints, given their notations that Cordell suffered “whiplash” and a “neck strain,” R.
36-1 at 5, 9 (Hospital Records) (Page ID #517, 521). In addition, Dr. Bozian subsequently
interpreted these records to show that Deputy McKinney’s use of force created “a shift in the
axis to the left of the odontoid process,” a shift that “aggravated a preexisting but asymptomatic
degenerative pathology” and led to “chronic pain syndrome.” Id. at 2 (Dr. Bozian Decl. at ¶¶ 6–
7 (Page ID #514). These data points, if read in Cordell’s favor, suggest that Deputy McKinney
used a considerable amount of force against Cordell. The use of such force, while certainly not
dispositive, makes it more likely that Deputy McKinney acted with malice.
Second, it is difficult to reconcile the threat that Cordell’s turn toward Deputy McKinney
presented to the deputy, other prison officials, other inmates, or outside individuals with the
amount of force that Cordell claims that Deputy McKinney used. Cordell’s arms were cuffed
The district court credited Nurse Jordan’s statement that Cordell exacerbated his wound by pulling it open
once he returned to his second-floor cell. See R. 42 at 14 (D. Ct. Op.) (Page ID #606); see also R. 31 at 18:2–24)
(Jordan Dep.) (Page ID #387). Cordell denied this accusation. See 26-1 at 70:14–23 (Cordell Dep.) (Page ID #183).
The district court recognized this denial, see R. 42 at 14 (D. Ct. Op.) (Page ID #606), yet inexplicably credited
Nurse Jordan’s testimony, id. At this stage in the litigation, making credibility determinations and weighing the
evidence is entirely inappropriate. Schreiber v. Moe, 596 F.3d 323, 333 (6th Cir. 2010).
The records also state that Cordell’s neck was “supple.” R. 36-1 at 11 (Hospital Records) (Page ID #523).
To the extent that this statement contradicts the above-cited comments in the hospital records, we must adopt
Cordell’s version of his injuries at this stage in the litigation.
Cordell v. McKinney
behind his back, and Deputy McKinney had Cordell in a submission hold. See, e.g., Security
Video, Cordell 2 at 17:12:56.74; R. 29 at 57:17–58:14 (McKinney Dep.) (Page ID #294–95).
Deputy McKinney was moving Cordell through a hallway inside the Greene County Jail, and the
only other people in the hallway were two correctional officers. See Security Video, Cordell 2 at
17:12:57.81. It is hard to understand—even being deferential to Deputy McKinney’s splitsecond judgment—how a prisoner in such an incapacitated position would present a sufficient
threat to justify the extreme use of force that Cordell accused Deputy McKinney of using. See
United States v. Graham, 275 F.3d 490, 511 n.11 (6th Cir. 2001) (noting that a defendant “had
already been placed in handcuffs” when the agents started their search and “could no longer
legitimately be considered a threat to them”).
Moreover, Sgt. Jones—the prison official
following directly behind Deputy McKinney and Cordell—stated in his incident report that he
“did not observe any movement or action by Inmate Cordell that would indicate any immenient
[sic] danger . . . .” R. 29-3 at 1 (Jones Report) (Page ID #334). Given these facts in the record, a
jury would not be unreasonable in concluding that the only explanation for Deputy McKinney
slamming Cordell headfirst into the wall was a malicious intent to injure.
Third, there is no evidence in the record that Deputy McKinney made any effort to
moderate the force he used against Cordell except his bare assertion that he “used the minimum
amount of force necessary to control . . . Cordell.” R. 29 at 37:17–18 (McKinney Dep.) (Page ID
#274). Rather, Deputy McKinney’s fellow officers described him as “forcibly escort[ing]”
Cordell, R. 29-3 at 1 (Jones Report) (Page ID #334), and “escort[ing] him . . . in an aggressive
manner,” R. 29-7 at 1 (Coe Report) (Page ID #338). Deputy McKinney had to be “asked twice
. . . to calm down” once he had placed Cordell into the holding cell. Id. Moreover, when the
deputy failed to do so and his “agitated state” continued, Sgt. Jones “relieved [D]eputy
McKinney.” Id. Additionally, Deputy McKinney accepted “a written [warning] for excessive
use of force” from the Sheriff’s Department as a result of this incident.5 R. 29 at 31:10–11
Deputy McKinney correctly argues that this reprimand is insufficient to satisfy the objective component of
an Eighth Amendment violation, see Appellee Br. at 21 (citing Smith v. Freland, 954 F.2d 343, 347–48 (6th Cir.
1992)), but an internal sanction may be relevant to determining whether Deputy McKinney had a culpable state of
mind. See Alvarado v. Oakland Cnty., 809 F. Supp. 2d 680, 690 n.5 (E.D. Mich. 2011) (noting that “Smith did not
rule that such [sanctions] could not be considered by a fact finder, only that they cannot be understood to define the
constitutional boundaries by which an officer’s conduct is to be judged”). A reasonable jury could conclude that the
fact that Deputy McKinney accepted a reprimand, rather than insisting that his use of force was appropriate, cuts
against his contentions here.
Cordell v. McKinney
(McKinney Dep.) (Page ID #268). Given these three factors, we conclude that a reasonable jury
could find that Deputy McKinney’s use of force was not a good-faith effort to restore control of
Cordell, but rather a malicious and sadistic attempt to inflict injury.
Deputy McKinney offers several counterarguments in his briefing, but none are
persuasive. First, Deputy McKinney directs us to the videotape, which he claims “documents
[Deputy] McKinney escorting [Cordell] through the third floor intake in an upright position,”
and argues that it “clearly contradict[s]” Cordell’s allegations.
Appellee Br. at 23.
Unfortunately for all involved, the videotape does not provide conclusive answers.
17:12:57.01 of the videotape, the moment at which Deputy McKinney claims Cordell turned into
him, Cordell’s torso is relatively upright. Security Video, Cordell 2. At 17:12:57.27, however,
Deputy McKinney starts to raise Cordell’s arms behind his back, and by 17:12:58.08, it appears
that Cordell’s torso has started to fall forward. Id. In the next frame, at the approximate point
when Cordell contacts the wall, he has fallen outside of the security camera’s view. Id. at
17:12:58.34. If, as Cordell claimed, his torso continued to fall forward to the point where
Deputy McKinney rammed Cordell headfirst into the wall, a jury would not be unreasonable in
concluding that Deputy McKinney’s response to Cordell’s turn was so disproportionate as to
indicate a sadistic intent to injure Cordell. But again, the critical action in this case takes place
off camera, meaning that the videotape does not contradict Cordell’s accusations, and, thus, a
genuine dispute as to a material fact still exists.
Deputy McKinney’s second counterargument fares no better. He contends that this case
is similar to Iacovone v. Wilkinson, No. 2:03-cv-652, 2007 WL 490160 (S.D. Ohio 2007), and
asks us to dispose of this case similarly. Appellee Br. at 18. In Iacaovone, prison officials
entered a prisoner’s cell and ordered him against the wall in preparation for removing him from
the cell. 2007 WL 490160, at *8. The prisoner, who was not in handcuffs, turned toward the
prison officials, who responded by pushing his head against the cell wall. Id. The magistrate
judge found that the prison officials acted “in [an] effort to preserve internal order and
institutional security by forcing plaintiff to obey a direct order.” Id. This case is distinguishable
on its facts in three ways:
One, Iacovone was unsecured in his cell, while Cordell was
handcuffed and in a submission hold. Two, Iacovone disobeyed a direct order from the prison
Cordell v. McKinney
officials, while Cordell claims that Deputy McKinney never warned him to turn around. And
three, the magistrate judge found that the prison officials used “de minimis” force in Iacovone,
id., while the force that Cordell claimed that Deputy McKinney used was anything but minimal.
As a result, we do not find Iacovone persuasive and decline to decide this case similarly.
Deputy McKinney’s final counterargument is likewise unconvincing, but it deserves
special mention. He directs us to a four-paragraph, unpublished, per curiam decision from the
Ninth Circuit—Alexander v. Perez, 124 F. App’x 525 (9th Cir. 2005)—in which that court held
that there was an Eighth Amendment violation, and he tries to distinguish this case from it.
Appellee Br. at 18. This is not argument by analogy, but an appeal to the least common
denominator. In Alexander, two prison guards “isolated [an inmate] . . . and, while he was
handcuffed and not resisting, slammed him against walls twice, punched him, twisted his leg
with the intent of breaking it[,] and held his eyelids open while threatening him with pepper
spray.” 124 F. App’x at 526. The notion that government conduct must rise to this level to be
cognizable under § 1983 is contrary to the nature of the Eighth Amendment and our collective
sense of decency. Accordingly, we reject it.
In summary, we conclude that a reasonable jury could decide that Deputy McKinney
lacked a good-faith basis for using the amount of force that Cordell alleged that he used. The
record contains evidence that Cordell’s injuries were severe, indicating that a substantial amount
of force was used. A reasonable jury could also conclude from the evidence in the record that
Cordell did not present a plausible threat to Deputy McKinney or anyone else to justify
slamming him headfirst into the wall. And finally, the record contains no evidence that Deputy
McKinney made any effort to blunt the impact of Cordell’s head against the wall. For these
reasons, a reasonable jury could find that Deputy McKinney acted with malicious and sadistic
intent to injure Cordell.
2. Objective Component
Next, we evaluate the objective component of Cordell’s Eighth Amendment claim,
asking whether a reasonable jury could conclude that “the pain inflicted” by Deputy McKinney
was “sufficiently serious” to offend “contemporary standards of decency.” Williams, 631 F.3d at
383 (internal quotation marks omitted). Again, in this case, Cordell accuses Deputy McKinney
Cordell v. McKinney
of slamming him facefirst into a concrete wall while his arms were handcuffed behind his back
and the deputy held him in a submission hold. Viewing the record in Cordell’s favor, we
conclude, for several reasons, that a reasonable jury could decide that Deputy McKinney’s use of
force was repugnant to ‘“the evolving standards of decency that mark the progress of a maturing
society.’” Hudson, 503 U.S. at 10 (quoting Estelle v. Gamble, 429 U.S. at 102–03).
First, we reiterate that, if Cordell’s allegations are true, a jury would not be unreasonable
in concluding that Deputy McKinney’s use of force was an entirely unnecessary and
disproportionate response to Cordell turning toward the deputy and violated contemporary
The record, read in Cordell’s favor, shows that Deputy McKinney had Cordell
handcuffed, in a submission hold, in a hallway inside the jail, with only correctional officers
We have held in the past that “striking a neutralized suspect who is secured by
handcuffs is objectively unreasonable.” Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010); see
also Burgess v. Fischer, 735 F.3d 462, 474–75 (6th Cir. 2013).6 While Cordell admitted turning
toward Deputy McKinney, presenting a slightly different factual situation, we doubt that
slamming a handcuffed and controlled prisoner headfirst into a concrete wall comports with
human decency. See Burgess, 735 F.2d at 474–75 (citing Phelps v. Coy, 286 F.3d 295, 301
(6th Cir. 2002); McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir. 1988)).
Second, as noted above, Cordell suffered—according to him and his medical expert—
rather significant injuries from his contact with the wall. One, he received a laceration on his
forehead, a laceration deep and open enough to leave blood on the wall, on the floor, and down
Cordell’s face. See R. 26-1 at 66:20–25 (Cordell Dep.) (Page ID #179); R. 31 at 14:2–5 (Jordan
Dep.) (Page ID #383); id. at 16:3–11 (Page ID #385); R. 33 at 21:25–22:1 (Coe Dep.) (Page ID
#475–76). While Nurse Jordan described the laceration as “so small it was hard to tell if it was a
laceration or just an abrasion,” R. 29-6 at 1 (Jordan Report) (Page ID #337), and Deputy Coe
described it as a “minor cut,” R. 33 at 21:14 (Coe Dep.) (Page ID #475), the hospital records
indicate that it took five sutures to close the wound, see R. 36-1 at 5 (Hospital Records) (Page ID
#517). Given its real-world experience, a reasonable jury could conclude that Cordell’s injury
We note in passing that Burgess also involved an excessive-force claim against Deputy McKinney. In that
case, the deputy stood accused of executing a takedown of a handcuffed inmate that resulted in multiple facial
fractures. See Burgess, 735 F.3d at 474.
Cordell v. McKinney
was more significant than a “minor cut” and that the pain was more severe than that felt from an
Two, Deputy McKinney’s use of force caused Cordell a neck injury. Immediately after
the incident, Cordell complained that he was in “major pain,” R. 26-1 at 66:23 (Cordell Dep.)
(Page ID #179), and that he was “experiencing pain all over,” id. at 60:9 (Page ID #173). The
hospital’s physicians diagnosed him with “whiplash,” a “neck strain,” and “neck pain following
[a] whiplash-type injury.” R. 36-1 at 5, 9, 11 (Hospital Records) (Page ID #517, 521, 523). Dr.
Bozian read Cordell’s x-ray, which was taken the day of the injury, to show “a shift in the axis to
the left of the odontoid process.” Id. at 2 (Dr. Bozian Decl. at ¶ 7) (Page ID #514). He declared,
in his professional opinion, that Cordell suffered “inflammation, chronic pain[,] and disability”
as a result of Deputy McKinney’s use of force. Id. at ¶ 8 (Page ID #514).
Three, the impact with the wall left Cordell “very, very groggy,” potentially indicating
further head trauma. R. 26-1 at 57:22 (Cordell Dep.) (Page ID #170). Together, this information
casts serious doubt upon Deputy McKinney’s contention that Cordell suffered only de minimis
injuries. As a result, a jury would not be unreasonable in finding that these injuries indicate that
Cordell suffered serious pain, satisfying the objective component of his Eighth Amendment
The district court rejected both of these contentions, finding that the videotape
definitively contradicted Cordell’s version of events, that Cordell failed to present evidence
beyond his deposition showing that Deputy McKinney used excessive force, and that Cordell
“suffered only one minor injury . . . .” R. 42 at 18–19 (D. Ct. Op.) (Page ID #610–11). Each of
these conclusions, however, requires a misreading of the record or an improper weighing of the
As discussed above, the videotape does not conclusively answer any questions. What it
does show is Deputy McKinney escorting Cordell briskly, Cordell turning his head toward the
deputy as he continues walking forward, Deputy McKinney raising Cordell’s handcuffed arms
behind his back, and Cordell’s torso turning horizontal as Deputy McKinney drives him toward
the wall. Security Video, Cordell 2 at 17:12:55.41–17:12:58.34. This sequence of events
confirms neither that Deputy McKinney used a reasonable amount of force nor that he brutally
Cordell v. McKinney
smashed Cordell’s head against the wall. Therefore, we must assume, at this stage in the
litigation, that Cordell’s deposition is accurate, that Deputy McKinney drove Cordell headfirst
into a concrete wall. Fed. R. Civ. P. 56(a); Coble, 634 F.3d at 870. Doing otherwise was error.
The district court also erred by implicitly requiring Cordell to present evidence in
addition to his testimony. The district court stated: “Other than his bare assertion [in his
pleadings and deposition], [Cordell] has not provided any evidence [that Deputy McKinney used
excessive force].” R. 42 at 18 (D. Ct. Op.) (Page ID #610). With this statement, the district
court appears to dismiss the allegations that Cordell made under oath in his deposition. But, as
we said recently, “[i]t is not our role at the summary judgment stage to assess whether testimony
is believable; such credibility contests are for the trier of fact to resolve.” EEOC v. Ford Motor
Co., 752 F.3d 634, 642 n.3 (6th Cir. 2014). Therefore, we accept Cordell’s statements in his
deposition as true and conclude that the district court erred by not doing so.
Finally and similarly, the district court erred in dismissing Cordell’s characterization of
his injuries. While Cordell’s and the prison officials’ testimony regarding his injuries differ, we
must assume the non-movant’s version of events. Id. Cordell professes to have debilitating
injuries as a result of Deputy McKinney’s actions. The hospital records do not contradict his
assertions. See generally R. 36-1 at 4–14 (Hospital Records) (Page ID #516–26). Therefore, we
must credit Cordell’s assertions, which entail far more injury and pain than “one minor injury.”
R. 42 at 19 (D. Ct. Op.) (Page ID #611).
To sum up, at this stage in the litigation, we must accept Cordell’s version of events
without weighing the evidence or assessing the credibility of prospective witnesses. The district
court failed to do so and, thus, committed error. If we do accept Cordell’s testimony and
allegations as true—that Deputy McKinney rammed Cordell headfirst into the wall while he was
handcuffed and controlled—a reasonable jury could conclude that Cordell suffered severe pain
that objectively violated our contemporary norms of human dignity.
Thus, Cordell has
demonstrated that summary judgment on the objective component of his Eighth Amendment
claim was inappropriate.
Cordell v. McKinney
B. Clearly Established Right
While we conclude that a reasonable jury could find that Deputy McKinney violated
Cordell’s Eighth Amendment rights, those Eighth Amendment rights must have been clearly
established as of July 20, 2009, or Deputy McKinney is entitled to qualified immunity. Shreve v.
Franklin Cnty., 743 F.3d 126, 134 (6th Cir. 2014). For a right to be clearly established, “the
right’s contours [need to be] sufficiently definite that any reasonable official in the defendant’s
shoes would have understood that he was violating it.” Plumhoff, 134 S. Ct. at 2023 (citing
Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083–84 (2011)). With that said, “[t]he Court [has] noted
that ‘[t]his 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 preexisting law the unlawfulness must be apparent.’” Sample v. Bailey, 409 F.3d 689, 698 (6th Cir.
2005) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (third alteration in original).
The Court, however, “‘ha[s] [also] repeatedly told courts . . . 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
(quoting al-Kidd, 131 S. Ct. at 2074). Despite this high hurdle, we hold that Cordell has carried
his burden of showing that his Eighth Amendment rights were clearly established as of the date
of his encounter with Deputy McKinney and, thus, that the deputy is not entitled to qualified
immunity at this time.
In his briefing, Cordell claims that Hudson clearly established that “[w]hen prison
officials maliciously and sadistically use force to cause harm, contemporary standards of
decency always are violated.” 503 U.S. at 9. While there may be much sense in stating that it is
inappropriate to grant qualified immunity whenever a jury could find that a jail official acted
with malicious and sadistic intent, it seems that Plumhoff requires us to frame Cordell’s Eighth
Amendment right at a lower level of generality. In the past, we have held that “if there is a
genuine issue of fact as to whether an officer’s use of force was objectively reasonable, then
there naturally is a genuine issue of fact with respect to whether a reasonable jail official would
have known such conduct was wrongful.” Kostrzewa v. City of Troy, 247 F.3d 633, 642 (6th Cir.
2001). Under this standard, as discussed above, we conclude that any reasonable official would
Cordell v. McKinney
know that ramming a handcuffed and controlled prisoner headfirst into a concrete wall is an
unreasonable method of regaining control of a prisoner in a hallway occupied only by other jail
officials. See Schreiber, 596 F.3d at 333. Therefore, Cordell’s rights were clearly established as
of July 20, 2009, and granting qualified immunity at this time is inappropriate.
We recognize that “the limits of [the Eighth Amendment] are not easily or exactly
defined,” but we believe “broad and idealistic concepts of dignity, civilized standards, humanity,
and decency are useful and usable.” Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968). In
this case, if Cordell’s contentions are accurate, it would appear that Deputy McKinney behaved
brutally, even cruelly, toward Cordell. At this point, however, the facts are not crystallized
enough to award judgment as a matter of law to either party. Therefore, we REVERSE the
district court’s grants of summary judgment and qualified immunity and REMAND for
proceedings consistent with this opinion.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?