Jordan #376733 v. Capello et al

Filing 38

OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

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

MICHAEL D. JORDAN #376733,
Plaintiff,

Case No. 2:10-cv-12

v.

Honorable R. Allan Edgar

GARY CAPELLO, et al.,
Defendants.
____________________________________/

OPINION
Plaintiff Michael D. Jordan #376733, a state prisoner, filed this civil rights action
pursuant to 42 U.S.C. § 1983. Plaintiff names Defendants Warden Gary Capello, Deputy Warden
Linda Tribley, Resident Unit Officer Christopher Charles, Assistant Resident Unit Supervisor Scott
E. Dewar, and Resident Unit Officer D. Gill. In his complaint, Plaintiff asserts that he was assaulted
by Defendants Charles and Gill in violation of his Eighth Amendment rights and that, when he
notified Defendants Capello, Tribley and Dewar, they failed to take corrective action.
Specifically, Plaintiff alleges that on October 26, 2009, he was escorted from the
showers to his cell by Defendants Charles and Gill. Plaintiff states that when he was placed in his
cell, Defendant Charles pulled Plaintiff’s right arm hard against the cell door slot, cutting Plaintiff’s
right wrist. On November 13, 2009, Plaintiff was subdued and restrained by Defendant Gill and
Resident Unit Officer Pelto. While Plaintiff was in restraints, Defendant Charles jumped on Plaintiff,
pressing all his weight on the handcuffs in order to inflict injury on Plaintiff. Plaintiff claims that this

destroyed tendons and ligaments and has caused permanent damage to Plaintiff’s left hand. Plaintiff
asserts that the amount of force used by Defendant Charles was excessive, as Plaintiff was already
subdued. Plaintiff seeks compensatory and punitive damages, as well as injunctive relief.
On December 13, 2010, the court dismissed Plaintiff’s claims against Defendants
Capello, Tribley and Dewar and ordered service on Defendants Charles and Gill (docket #5 and #6).
Presently before the Court is the Defendants’ Motion for Summary Judgment, pursuant to Fed. R.
Civ. P. 56. Plaintiff has filed a response and the matter is ready for decision. Summary judgment is
appropriate only if the moving party establishes that there is no genuine issue of material fact for trial
and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322-323 (1986). If the movant carries the burden of showing there is an absence of
evidence to support a claim or defense, then the party opposing the motion must demonstrate by
affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue
of material fact for trial. Id. at 324-25. The nonmoving party cannot rest on its pleadings but must
present “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ.
P. 56(e)). The evidence must be viewed in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Thus, any direct evidence offered by
the plaintiff in response to a summary judgment motion must be accepted as true. Muhammad v.
Close, 379 F.3d 413, 416 (6th Cir. 2004) (citing Adams v. Metiva, 31 F.3d 375, 382 (6th Cir. 1994)).
However, a mere scintilla of evidence in support of the nonmovant’s position will be insufficient.
Anderson, 477 U.S. at 251-52. Ultimately, the court must determine whether there is sufficient
“evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. See also Leahy v.
Trans Jones, Inc., 996 F.2d 136, 139 (6th Cir. 1993) (single affidavit, in presence of other evidence

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to the contrary, failed to present genuine issue of fact); cf. Moore, Owen, Thomas & Co. v. Coffey,
992 F.2d 1439, 1448 (6th Cir. 1993) (single affidavit concerning state of mind created factual issue).
As noted above, Plaintiff is claiming that Defendants Charles and Gill violated his
rights under the Eighth Amendment. The Eighth Amendment imposes a constitutional limitation on
the power of the states to punish those convicted of crimes. Punishment may not be “barbarous” nor
may it contravene society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337,
345-46 (1981). The Amendment, therefore, prohibits conduct by prison officials that involves the
“unnecessary and wanton infliction of pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987) (per
curiam) (quoting Rhodes, 452 U.S. at 346). The deprivation alleged must result in the denial of the
“minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347; see also Wilson v. Yaklich,
148 F.3d 596, 600-01 (6th Cir. 1998). The Eighth Amendment is only concerned with “deprivations
of essential food, medical care, or sanitation” or “other conditions intolerable for prison
confinement.” Rhodes, 452 U.S. at 348 (citation omitted). Moreover, “[n]ot every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment
within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at 954.
In order for a prisoner to prevail on an Eighth Amendment claim, he must show that
he faced a sufficiently serious risk to his health or safety and that the defendant official acted with
“‘deliberate indifference’ to [his] health or safety.” Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (applying deliberate indifference standard
to medical claims); see also Helling v. McKinney, 509 U.S. 25, 35 (1993) (applying deliberate
indifference standard to conditions of confinement claims)).
Initially, Defendants assert that Plaintiff has not alleged facts sufficient to impose
liability on Defendant Gill. Defendants are correct that Plaintiff has not alleged that Defendant Gill
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used excessive force on him. However, Plaintiff does allege that Defendant Gill was present while
Defendant Charles assaulted Plaintiff, and that he did nothing to prevent this assault. Inmates have
a constitutionally protected right to personal safety grounded in the Eighth Amendment. Farmer v.
Brennan, 511 U.S. 825, 833 (1994). Thus, prison staff are obliged “to take reasonable measures to
guarantee the safety of the inmates” in their care. Hudson v. Palmer, 468 U.S. 517, 526-27 (1984).
Therefore, Defendant Gill is not entitled to summary judgment on this basis.
Defendants also contend that the force complained of by Plaintiff was applied in a
good faith effort to maintain discipline and was warranted by the situation. Defendants attest that on
October 26, 2009, they were escorting Plaintiff back from the shower. Once Plaintiff was inside his
cell, Defendant Charles attempted to remove Plaintiff’s restraints while Defendant Gill held onto the
lead strap. As Defendant Charles was trying to remove the restraints, Plaintiff was attempting to grab
Defendant Charles by the arms through the cell door slot, which required Defendant Gill to hold onto
the strap until Defendant Charles could clear his arms from the slot. Once Defendant Charles arms
were clear, Defendant Gill let go of the strap. (Defendants’ Exhibit A, ¶¶ 5-6; Defendants’ Exhibit
B, ¶¶ 5-6.)
In support of this assertion, Defendants offer copies of major misconduct tickets and
hearing reports for misconducts received on October 26, 2009, and November 13, 2009. (Defendants’
Exhibits C-F.) On October 26, 2009, Plaintiff received three separate misconduct tickets. The first
was for the destruction and / or misuse of property and asserted that Plaintiff refused to return a pair
of arm restraints, and that when the restraints were returned, Plaintiff had broken the strap and bent
the restraints. Plaintiff was found guilty of this misconduct following a hearing. (Defendants’
Exhibit C.)

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The second misconduct ticket was issued for disobeying a direct order and assault and
battery on staff. Plaintiff was found guilty and in the reasons for finding, the hearing officer stated:
Prisoner says the Misconduct Report is a lie, but the reporter details
convincingly that he told prisoner to place his right arm out of the slot
and allow the reporter to remove the restraints. Prisoner heard and
understood the reporter as evidenced by his reply, “I’m not giving
them back.” Prisoner voluntarily failed to comply with the order of the
reporter by not allowing the reporter to remove the restraints. The
staff witness statement is consistent with the Misconduct Report.
Prisoner says that staff members were assaulting him, but even a
prisoner witness says that the reporter kept pulling on the slots to make
it look like something was going on. It is likely that something was
going on, as both the reporter and staff describe that prisoner grabbed
the reporter’s left hand and attempted to pull the reporter’s arm into
the slot. The reporter and staff witness were closer to prisoner and
better able to observe prisoner than prisoner witnesses. Prisoner’s
action was an intentional, non-consensual touching of another person
done either in anger or with the purpose of abusing or injuring another.
(Defendants’ Exhibit D.)
Finally, Plaintiff received a disobeying a direct order misconduct for his refusal to go
to the back of his cell and place his hands on the wall. During the hearing, Plaintiff asserted that
MDOC policy did not require him to go to the back of his cell. However, the Hearing Officer found
that the order was reasonable, that Plaintiff could have complied with the order, and that he refused
to do so. Plaintiff was found guilty. (Defendants’ Exhibit E.)
With regard to the November 13, 2009, incident, Defendants attest that they, along
with Resident Unit Officer Pelto, were taking Plaintiff to be placed in a different housing unit cell.
Defendants Charles and Gill placed Plaintiff’s property in his cell while Pelto held onto the strap
attached to the restraints. Once the property had been placed in the cell, Plaintiff pulled away from
Resident Unit Officer Pelto and attempted to kick Defendant Charles in the midsection. Plaintiff
continued to resist staff until they were able to gain control over him by placing him on the floor.
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Additional staff were required to secure Plaintiff’s cell. (Defendants’ Exhibit A, ¶ 8; Defendants’
Exhibit B, ¶ 7.)
Plaintiff received a misconduct ticket for assaulting Defendant Charles and was found
guilty following a hearing. The ticket stated that Plaintiff kicked Defendant Charles in his right hand,
and that staff then took Plaintiff to the ground and applied leg irons. Plaintiff was subsequently taken
back to his cell. The Hearing Officer noted that Plaintiff did not deny that he kicked Defendant
Charles in the hand, and stated that Plaintiff had acted intentionally with the purpose of hurting
Defendant Charles. (Defendants’ Exhibit F.)
In response to Defendants’ motion, Plaintiff asserts that hearing officers “focus on a
90% guilty finding of their defendants” and are not impartial. Plaintiff further states that, if allowed
discovery, he can support his claims of excessive force. The court notes that discovery was stayed
on March 10, 2011 (docket #18). “If the non-movant makes a proper and timely showing of a need
for discovery, the district court’s entry of summary judgment without permitting him to conduct any
discovery at all will constitute an abuse of discretion.” Id. (citing White's Landing Fisheries, Inc. v.
Buchholzer, 29 F.3d 229, 231–32 (6th Cir.1994)); see also CenTra, Inc. v. Estrin, 538 F.3d 402, 420
(6th Cir.2008) (“Typically, when the parties have no opportunity for discovery, denying the Rule 56(f)
motion and ruling on a summary judgment motion is likely to be *167 an abuse of discretion.”). This
rule transcends the five-factor approach typically applied in determining whether a district court
abused its discretion by allowing insufficient discovery. Alspaugh v. McConnell, 643 F.3d 162, 166
-167 (6th Cir. 2011).
The court notes that the finding that Plaintiff violated prison rules does not necessarily
invalidate his excessive force claims. Therefore, despite the fact that Plaintiff’s request for discovery
is vague and conclusory, the court is persuaded that granting Defendants’ motion for summary
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judgment without allowing some discovery would be premature. Therefore, the court will deny
Defendants’ Motion for Summary Judgment (docket #20).
An Order consistent with this Opinion will be entered.

Dated:

2/28/2012

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge

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