Farr #292839 v. Unknown Parties

Filing 7

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
TOMMY LEE FARR,
Plaintiff,
v.

Case No. 1:18-cv-575
Honorable Janet T. Neff

UNKNOWN PARTIES,
Defendants.

____________________________/
OPINION
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (PLRA), 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, the Court will dismiss Plaintiff’s complaint for failure to state a claim.
Discussion
I.

Factual allegations

Plaintiff Tommy Lee Farr is presently incarcerated with the Michigan Department
of Corrections (MDOC) at the Baraga Correctional Facility (AMF) in Baraga County, Michigan.
The events about which he complains occurred while he was incarcerated at the Earnest C. Brooks

Correctional Facility (LRF) in Muskegon County, Michigan.

Plaintiff sues five unknown

corrections officers at LRF.
Plaintiff alleges that on June 23, 2016, he received a note from another prisoner
threatening to kill him. He went to the front desk at LRF, told two of the defendants about the
note, and asked to be placed in protective custody. One of the defendants grabbed him by the
neck, pushed his hand under Plaintiff’s nose, and pushed Plaintiff’s neck backwards, making it
hard for Plaintiff to breathe. The four other defendants “attacked” Plaintiff from behind, trying to
force him down the hallway back toward his cell. When doing this, they pulled his left arm
backwards.
Plaintiff alleges that he sustained an injury to his neck and a torn rotator cuff. He
alleges that he is in constant pain in his neck and shoulder. He contends that Defendants violated
his rights under the Eighth Amendment. As relief, he seeks a declaratory judgment and damages.
II.

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) (“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

2

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); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). 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).
III.

Eighth Amendment

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.

3

The Supreme Court has held that “whenever guards use force to keep order,” the
standards enunciated in Whitley v. Albers, 475 U.S. 312 (1986), should be applied. Hudson v.
McMillian, 503 U.S. 1, 7 (1992); see also Wilkins v. Gaddy, 559 U.S. 34, 37-39 (2010). 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;
Wilkins, 559 U.S. at 37. 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. Hudson, 503 U.S. at 6-7 (citing Whitley, 475
U.S. at 321); accord Griffin v. Hardrick, 604 F.3d 949, 953-54 (6th Cir. 2010). Physical restraints
are constitutionally permissible where there is penological justification for their use. Rhodes, 452
U.S. at 346. Moreover, the Court must give “‘wide-ranging deference’” to prison officials
confronted with a disturbance, because they “‘must make their decisions in haste, under pressure,
and frequently without the luxury of a second chance[.]’” Hudson, 503 U.S. at 6 (quoting Whitley,
475 U.S. at 320-21).
Plaintiff’s claim fails because it is clear that there was a sufficient penological
justification for Defendants’ actions, and there is no indication that they acted maliciously or
sadistically to cause harm. Attached to Plaintiff’s complaint is a Misconduct Hearing Report
regarding the incident in question. Apparently, Plaintiff was found guilty of “physical resistance
or physical interference with an employee,” a Class I misconduct, for resisting officers’ attempts
to put him in restraints. (Class I Misconduct Hr’g Rep., ECF No.1, PageID.6.) In other words,
contrary to Plaintiff’s assertion that officers attacked him, they attempted to put him in restraints
because he was agitated, but he physically resisted their attempts to do so.

4

According to the hearing officer:
I viewed video which showed the prisoner being agitated and acting animated in
front of the desk for several minutes. Additional staff entered the unit and went to
cuff the prisoner up. The prisoner had his hands clenched together in front of him.
An officer took hold of his left arm and got it loose from his front and the prisoner
pulled his left arm back and again clenched his hands in front of him[]self. Staff
on both sides tried to get the prisoner’s arms free and the prisoner resisted this effort
by keeping his hands clenched in front of him and he was bent over and struggling
against the officers. An officer applies a[n] infraorbital restraint technique (finger
pressed up and under prisoner’s nose) during the evolution.
***
According to the Misconduct Report while restraining Farr he pulled away from
Reporting Officer’s grip when he was applying hand restraints and he proceeded to
push away and resist being cuffed up. I have viewed video which shows this to be
the case as specified above. The prisoner provided a written statement explaining
being assaulted by his cellmate earlier that morning and says he was at the desk and
he was rushed and handcuffed and officers tried to suffocate him by putting some
type of tactic on his nose. He asserts officers assaulted him. The video shows this
is untrue. Officers remained behind desk as the prisoner carried on for several
minutes before officers move out and confronted the prisoner and then tried to place
him in restraints as other officers respond. He wasn’t rushed, in fact officers behind
desk were quite restrained in their handling of the situation. As the video shows,
the prisoner physically resisted the Reporting Officer and another officer trying to
place him in cuffs. I find the prisoner guilty of the charged offense.
(Id.)
Findings in a Class I misconduct hearing have a preclusive effect in subsequent
proceedings where (1) the “issues were actually litigated and decided”; (2) the “party to be
precluded had sufficient incentives to litigate those issues”; and (3) the party had “a full and fair
opportunity to do so—not just in theory, but in practice.” Roberson v. Torres, 770 F.3d 398, 40405 (6th Cir. 2014). Preclusion “likewise turns on the court’s sense of justice and equity, which
may require a case-by-base analysis of surrounding circumstances.” Id.
The question in this case is whether Defendants applied force “in a good-faith effort
to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins, 559 U.S.
at 7. The findings in Plaintiff’s Class I misconduct hearing show that Defendants’ use of force
5

was justified. They were attempting to put Plaintiff in restraints but he resisted. Instead of
allowing himself to be placed into handcuffs with his arms behind him, he clenched his hands
together and resisted Defendants’ efforts to pull his left arm backward. He also bent forward and
struggled, and an officer had to push him under the nose to force him upright. In other words,
Plaintiff resisted in exactly the manner that necessitated the use of force alleged in the complaint.
The hearing officer’s findings regarding Plaintiff’s disruptive behavior and
resistance provide the necessary context and justification for the use of force. These factual
findings were clearly “essential to the judgment” in the misconduct proceeding. See Peterson v.
Johnson, 714 F.3d 905, 914 (6th Cir. 2013).
The hearing officer did not make specific findings regarding the amount of force
used by the officers; it is possible for a prison official to apply too much force when attempting to
restrain an unruly prisoner. However, nothing in the complaint suggests that the amount of force
applied in Plaintiff’s case rose to the level of an Eighth Amendment violation. Plaintiff apparently
relies on the fact that he suffered pain and was injured, but the fact of injury alone is not sufficient.
See id. at 908, 911 (officers’ use of force justified even though the prisoner suffered injury and
nerve pain in his wrist following a “scuffle” with officers who were attempting to restrain him).
A prisoner physically resisting a prison official’s attempt to place him in restraints puts himself
and prison officials at risk of injury. And in this case, the injuries alleged by Plaintiff are directly
related to his physical resistance, and are of the type one might expect from such resistance. If
Plaintiff had not clenched his hands together and pulled his left arm forward, it would not have
been necessary for officers to pull it back, putting his shoulder at risk of injury. And if he had not
struggled and leaned forward, it would not have been necessary for officers to apply pressure to

6

his neck and face to force him upright, potentially straining his neck. Thus, the hearing officer’s
findings are directly relevant to Plaintiff’s claim in this case.
Moreover, it is telling that Plaintiff’s defense to the misconduct charge is the same
as his claim here: he contends that the officers assaulted him.1 In Plaintiff’s view, he was not
resisting the officers’ lawful attempts to restrain him; rather, he was unjustifiably attacked. The
hearing officer considered this issue and his factual findings unquestionably refute Plaintiff’s
account. Thus, the first element in Roberson is satisfied.
As to the second element, Plaintiff had sufficient incentive to litigate the facts at
issue. He faced a possible penalty for conviction on the misconduct charge, and he apparently did
contest the charge by asserting that he was assaulted. See id. at 915 (finding that prisoner had
sufficient incentive because of the possible consequences of misconduct conviction and because
he actually contested the charge).
Regarding the third element, Plaintiff had a full and fair opportunity to litigate the
issues at stake. See id. at 916-17 (finding that prisoner had full and fair opportunity to litigate a
factual issue in a Class I misconduct proceeding in the MDOC). He apparently waived his
opportunity to attend the misconduct hearing, but a failure to use procedures available to him does
not show that the procedures themselves were inadequate. See id. at 916. Moreover, the hearing
officer based his factual findings on his review of a video of the incident, which limits the
possibility of bias or unfairness in his misconduct proceedings. Compare Roberson, 770 F.3d at
405 (requiring a remand to evaluate the fairness of the proceedings where the hearing officer
refused to review video of the incident) with Peterson, 714 F.3d at 916-17 (finding that the

1

According to the hearing report, Plaintiff did not attend the hearing because he refused to do so. Plaintiff alleges
that he did not provide a written statement to the hearing officer; however, the hearing officer clearly considered
Plaintiff’s defense that he was assaulted.

7

proceedings were fair where the hearing officer reviewed video of the incident). To the extent that
Plaintiff disagrees with the hearing officer’s description of the video, he could have challenged it
by appealing the hearing officer’s decision to state court, and the “state court would have
automatically made the video a part of the record.” Peterson, 714 F.3d at 916 (citing MICH. COMP.
LAWS § 791.253(2)).
Finally, the Court’s sense of “justice and equity” favor giving the hearing officer’s
findings preclusive effect. Plaintiff alleges that the hearing officer falsified various statements in
the hearing report, but none of the allegedly false statements concern the officers’ findings
regarding Plaintiff’s conduct in front of the prison guards. That conduct is captured in a video
record described by the hearing officer. Allowing Plaintiff’s claim to proceed in this action would
likely involve a review of that same video, and there is no reason to believe that this Court would
arrive at a different conclusion after doing so. Thus, the findings in the misconduct hearing report
have preclusive effect in this action.
Accordingly, when taking the hearing officer’s findings into account, Plaintiff fails
to state an Eighth Amendment claim because the officers were justified in applying force to
Plaintiff, and “nothing in his allegations about the force used against him shows that it was
diabolically intended to harm him.” Id. at 911.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the
Court determines that Defendants will be dismissed for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c).
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

8

(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:

June 19, 2018

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

9