Brown #884273 v. Perez et al

Filing 5

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

ADE BROWN,
Plaintiff,

Case No. 1:16-cv-968

v.

Honorable Paul L. Maloney

VERONICA PEREZ et al.,
Defendants.
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OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such
relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro
se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s
allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504
U.S. 25, 33 (1992). Applying these standards, Plaintiff’s action will be dismissed for failure to state
a claim.

Factual Allegations
Plaintiff currently is incarcerated in the Ionia Correctional Facility, but the events
giving rise to his complaint occurred at the Bellamy Creek Correctional Facility (IBC). In his pro
se complaint, Plaintiff sues the following IBC employees: Sergant Veronica Perez, Correctional
Officer Roland Walls, Warden Tony Trierweiler, Deputy Warden (unknown) McChauley and
Unknown Parties, named as “Chemical Agents Team.”
Plaintiff alleges that on the morning of October 4, 2015, Defendant Walls came to
his cell and told him to cuff up for transfer to another cell for suicide watch because mental health
had received a kite with Plaintiff’s name on it stating that he wanted to harm himself. Plaintiff
refused, telling Walls that he did not write the kite and was not suicidal. According to Plaintiff,
“numerous fake kites were wrote [sic] on me before and everytime [sic] I went on suicide it proved
it wasn’t my handwriting and I’ll be returned to my cell.” (Compl., ECF No. 1, PageID.3.) Plaintiff
“plead[ed] his case” to Walls, but Walls responded that Plaintiff could come out of his cell the easy
way or the hard way and walked away. Defendant Perez then asked Plaintiff to come out of his cell.
“[O]nce again [Plaintiff] told her no,” and continued to argue that he did not write the kite. (Id.)
Shortly thereafter, Defendant Perez, accompanied by the Chemical Agents Team:
[G]assed me twice with tear gas. As I started to choke in my cell, they rushed in and
slam[med] me to the ground, restrained me in the cell where I almost lost concious
[sic]. I was put in the shower, then put in restraints on suicide for a few hours where
I was burning and could not move.
(Id.) Plaintiff was moved to a new cell several hours later.
Plaintiff filed a Step I Grievance asserting excessive use of force. Defendant Perez
provided the following Step I response:

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Prisoner Brown was asked several times to come out of his cell to be moved to a
Direct Observation Cell. Healthcare received a kite that stated prisoner Brown was
going to hurt himself. Several officers as well as a shift commander asked him to
move cells; every time he refused. Authorization was given by a deputy for the use
of a Cell Extraction Team and Chemical Agents. The squad was assembled and
again he was asked to come out, he refused. Prisoner Brown was given many
opportunities to come out of his cell. [T]he squad leader on camera offers from for
prisoner Brown to come out, he still refused. Chemical Agents were dispensed and
he was given an opportunity at that time too. Chemical Agents were dispensed a
second time and the squad still had to go into the cell to remove him. Prisoner
Brown was then placed in standing soft restraints where he stayed in them for exactly
2 hours and 20 minutes. Prisoner Brown was given many chances to come out of his
cell on his own but refused to cooperate. At no time did staff use excessive force.
This grievance is unsubstantiated and was not resolved at this step.
(Step I Grievance Response, ECF No. 1-1, PageID.10.) Plaintiff’s Step II and III grievance appeals
were denied.
Plaintiff contends that the of chemical agents and cell extraction by Defendants Perez,
Walls and the Chemical Agents Team constituted excessive force in violation of the Eighth
Amendment. He alleges that the “Warden and Deputy Warden authorized this illegal act.” (Compl.,
ECF No. 1, PageID.3.) Plaintiff further alleges, “I was left traumatized for weeks, skin burning and
never received medical help.” (Id.) Plaintiff seeks compensatory and punitive damages.
Discussion
I.

Failure to state a claim

A complaint may be dismissed for failure to state a claim if it fails “‘to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the federal Constitution or laws and must show that the deprivation was committed by
a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr.
Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Because § 1983 is a method for vindicating federal
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
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, 345-4-

46 (1981); Trop v. Dulles, 356 U.S. 86, 101 (1958). When assessing a claim of excessive force, 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 v. McMillian, 503 U.S. 1, 6-7
(1992). “To determine such motivations on the part of correctional officers, courts should consider
the reasons or motivation for the conduct, the type and extent of force applied, and the extent of
inflicted injury.” Caldwell v. Moore, 968 F.2d 595, 600 (6th Cir. 1992).
The Sixth Circuit repeatedly has found that the use of chemical agents does not
constitute cruel and unusual punishment if reasonably necessary to subdue recalcitrant prisoners.
See, e.g., Jennings v. Peiffer, 110 F. App’x 643, 646 (6th Cir. 2004) (affirming grant of summary
judgment to defendant officer because he did not act maliciously or sadistically in spraying a
chemical agent to secure prisoner-plaintiff's compliance with an order); Davis v. Agosto, 89 F. App’x
523 (6th Cir. 2004) (Prison officials did not violate inmate’s Eighth Amendment rights by spraying
mace into his cell after inmate refused officer’s order to place his hands next to tray slot so that he
could be handcuffed); Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002) (affirming summary
judgment in favor of prison official and noting “that the use of mace to control a prison inmate is not
malicious or sadistic”); Miller v. Palmer, No. 99-2352, 2000 WL 1478357, at *2 (6th Cir. Sept. 27,
2000) (officers did not violate the Eighth Amendment when prisoner “refused to remove his arm
from his food slot[,] refused to allow officers to place him in soft restraints[, and was] given several
opportunities to comply with the officers’ orders before chemical agents were used”); Thomas v.
Greene, No. 99-3179, 1999 WL 1253102, at *1 (6th Cir. Dec. 17, 1999) (officer did not violate the
Eighth Amendment when prisoner was “threatening and uncooperative . . . and [the officer] did not
use more force than was necessary to cause [the prisoner] to comply with his requests”).
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In this case, Plaintiff admittedly refused repeated orders to come out of cell. Plaintiff
was being moved to an observation cell for his own protection after health services received a
medical kite signed with Plaintiff’s name, in which he threatened to harm himself. Plaintiff’s
assertions that he did not write the note and Defendants were not listening to him did not excuse his
non-compliance with the direct orders of prison officials. “‘Inmates cannot be permitted to decide
which orders they will obey, and when they will obey them. Someone must exercise authority and
control.’” Caldwell, 968 F.2d at 601 (quoting Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir. 1984)).
“When an order is given to an inmate there are only so many choices available to the
correctional officer. If it is an order that requires action by the institution, and the
inmate cannot be persuaded to obey the order, some means must be used to compel
compliance, such as a chemical agent or physical force. While experts who testified
on behalf of the plaintiffs suggested that rather than seek to enforce orders, it was
possible to leave the inmate alone if he chooses not to obey a particular order, and
wait him out, experience and common sense establish that a prison cannot be
operated in such a way.”
Id. at 602 (quoting Soto, 744 F.2d at 1267). Because Plaintiff refused to come out of his cell, even
after being sprayed with chemical agents, the team was required to enter his cell and place him in
restraints. While Plaintiff alleges that he was “slammed” to the ground, he does not allege that he
suffered any physical injuries, other than a burning sensation from the chemical agents. Plaintiff
alleges that he received a shower to wash off the chemical agents before being taken to the
observation cell. Based upon the facts alleged in the complaint, Plaintiff cannot show that
Defendants acted with a wanton, malicious, or sadistic intent when they removed Plaintiff from his
cell.
Plaintiff further claims that he never received medical assistance following the use
of chemical agents and cell extraction. The Eighth Amendment is violated when a prison official

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is deliberately indifferent to the serious medical needs of a prisoner. Id. at 104-05; Comstock v.
McCrary, 273 F.3d 693, 702 (6th Cir. 2001). A claim for the deprivation of adequate medical care
has an objective and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To
satisfy the objective component, the plaintiff must allege that the medical need at issue is sufficiently
serious. Id. The subjective component requires an inmate to show that prison officials have “a
sufficiently culpable state of mind in denying medical care.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000) (citing Farmer, 511 U.S. at 834). Deliberate indifference “entails something more
than mere negligence,” Farmer, 511 U.S. at 835, but can be “satisfied by something less than acts
or omissions for the very purpose of causing harm or with knowledge that harm will result.” Id.
Under Farmer, “the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
Plaintiff does not allege what type of medical treatment was warranted. Even if he
could satisfy the objective component, he cannot satisfy the subjective requirement. Plaintiff does
not allege that he ever requested medical treatment from any of the named Defendants during or
immediately after the cell extraction. Any subsequent request for medical treatment would have
been directed to members of the health services department, none of whom are named as Defendants
in this action. Consequently, Plaintiff cannot show that the named Defendants were deliberately
indifferent to a serious medical need.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s action will be dismissed for failure to state a claim pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c).
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The Court must next decide whether an appeal of this action would be in good faith
within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611
(6th Cir. 1997). For the same reasons that the Court dismisses the action, the Court discerns no
good-faith basis for an appeal. Should Plaintiff appeal this decision, the Court will assess the
$505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless
Plaintiff is barred from proceeding in forma pauperis, e.g., by the “three-strikes” rule of § 1915(g).
If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.
This is a dismissal as described by 28 U.S.C. § 1915(g).
A Judgment consistent with this Opinion will be entered.

Dated: September 21, 2016

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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