Burton #495156 v. Heyns et al

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION 17 re 11 : Defendant Gust's Motion to Dismiss 11 is GRANTED and Plaintiff's complaint is DISMISSED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

LAMAR BURTON,
Plaintiff,
v.

Case No. 1:14-CV-972

DANIEL HEYNS, et al.,

HON. GORDON J. QUIST

Defendants.
_________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
On August 6, 2015, Magistrate Judge Ellen Carmody issued a Report and Recommendation
(R & R) recommending that the Court grant Defendant Gust’s motion to dismiss on the basis of
qualified immunity. Because Defendant Gust is the only remaining Defendant, the magistrate judge
recommended that the matter be terminated.
In her R & R, the magistrate judge concluded that Defendant Gust is entitled to qualified
immunity because the so-called “karate chop” that Defendant Gust administered to Plaintiff’s arm
as Plaintiff reached into an unauthorized area without first obtaining permission amounted only to
a de minimis application of force, which cannot establish a violation of Plaintiff’s Eighth
Amendment rights. The magistrate judge noted that Plaintiff only suffered a bruise from Defendant
Gust’s use of force. (R & R at 4.)
Plaintiff has filed an Objection to the R & R, in which he asserts that Defendant Gust used
more than a de minimis application of force because Plaintiff suffered physical and emotional injury.
(Dkt. # 18 at Page ID #165.) Plaintiff asserts that Defendant Gust’s use of force aggravated a prior
injury that Plaintiff suffered when he was shot in the forearm, causing him to experience nerve pain.
(Id. at Page ID # 162.)

After conducting a de novo review of the R & R, Plaintiff’s Objection, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted.
In his Objection, Plaintiff does not argue that the magistrate judge erred in describing Gust’s
use of force—a chop to Plaintiff’s arm in response to Plaintiff reaching into an authorized area.
Plaintiff essentially contends that the force used was more painful due to a preexisting injury. Even
so, Plaintiff’s argument does not change the de minimis nature of the force that Defendant Gust
applied. In other words, the fact that Plaintiff’s prior injury exacerbated the pain he felt from the
force does not render the force applied by Defendant Gust more than de minimis.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued August 6, 2015 (dkt. # 17 ) is ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant Gust’s Motion to Dismiss (dkt. # 11) is
GRANTED, and Plaintiff’s complaint is DISMISSED WITH PREJUDICE
This case is concluded.
A separate judgment will enter.

Dated: September 11, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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