McQueen #347604 v. Woods et al

Filing 75

OPINION and ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cmb)

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

Mark McQueen,
Plaintiff,
v.

Case No. 2:13-CV-195
HON. R. ALLAN EDGAR

Jeffrey Woods, et al.,
Defendants.
________________________________/
OPINION & ORDER
Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against
the following five employees of the Michigan Department of Corrections (MDOC): Warden
Jeffrey Woods, Round Unit Officer (RUO) John Harrison, RUO Barry Butler, Assistant Resident
Unit Supervisor (ARUS) Kenneth Dunton, and ARUS John Doe. On February 11, 2014, this
Court granted Defendants’ motions for summary judgment. Docket ## 31, 32. Plaintiff
subsequently appealed this decision to the Sixth Circuit Court of Appeals. The Sixth Circuit
affirmed this Court’s decision to dismiss the claims against Defendants Woods, Butler, Dunton,
and Doe, but it vacated this Court’s order granting summary judgment to Defendant Harrison on
the grounds of exhaustion. Docket # 39. Plaintiff’s remaining claim against Defendant Harrison
is an Eighth Amendment excessive force claim. Defendant has filed a motion for summary
judgment (Docket # 56) claiming that Plaintiff has not exhausted his claim and that his claim
lacks merit. Plaintiff has filed a response (Docket # 66), and Defendant has replied (Docket #
72).
On October 17, 2012, when Defendant Harrison and CO Lelierve arrived to

Plaintiff’s cell, Defendant and CO Lelierve saw that Plaintiff and Cosey were fist fighting.
Docket # 57-21 at 3. Upon seeing this situation, Defendant Harrison ordered the two prisoners to
“stop fighting now.” Docket # 57-21 at 4. In that moment, Plaintiff’s back was pointed toward
the Officers, and he was facing the back of the cell where Cosey was located. Docket # 57-22 at
4. Plaintiff admitted to deliberately ignoring Defendant’s first order to stop fighting so that he
could “get [himself] a few more punches in while the cell door was still closed.” Docket # 57-24
at 5 (emphasis omitted); see also Docket ## 57-20 at 3; 57-21 at 4. Since the fighting continued,
Defendant and CO Lelierve entered the cell. Docket # 57-20 at 4. At this time, Defendant
Harrison again ordered the prisoners to stop fighting now. Id., Docket # 57-21 at 4, Docket # 5722 at 4-5. Cosey complied with the order by placing his hands in the air. Docket ## 57-20 at 3;
57-21 at 4; 57-22 at 4-5. However, Plaintiff turned to face the Officers for a split second, and
then turned back to face Cosey. Docket # 57-21 at 3; 57-22 at 5; Docket # 57-20 at 3-4. In this
moment, Defendant Harrison administered the taser on Plaintiff. Docket ## 57-20 at 4; 57-21 at
4; 57-22 at 4.
Presently before this Court is Defendant Harrison’s motion for summary judgment
pursuant to Federal Rules of Civil Procedure 56. Docket # 56. Plaintiff has filed a response
(Docket # 66), and Defendant has replied. Docket # 72. The matter is now ready for a decision.
I.
Because both sides have asked that the Court consider evidentiary materials
beyond the pleadings, the standards applicable to summary judgment apply. See Fed. R. Civ. P.
56. 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.
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R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). The standard for
determining whether summary judgment is appropriate is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” State Farm Fire & Cas. Co. v. McGowan, 421 F.3d 433, 436
(6th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); see also
Tucker v. Union of Needletrades, Indus,. & Textile Employees, 407 F.3d 784, 787 (6th Cir.
2005). The court must consider all pleadings, depositions, affidavits, and admissions on file, and
draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Twin City Fire Ins. Co. v.
Adkins, 400 F.3d 293, 296 (6th Cir. 2005).
II.
Defendant Harrison’s first claim is that Plaintiff has not exhausted his
administrative remedies as required before bringing an action under § 1983. In support of this
argument, Defendant has provided numerous documents for this first time that he believes
demonstrate how unlikely it is that Plaintiff mailed his grievance on time. Even though
Defendant has raised the issue of exhaustion again, this Court will not re-evaluate this claim
because the Sixth Circuit’s opinion clearly states that there is “a genuine issue of material fact as
to whether [Plaintiff] complied with the November 14, 2012 [grievance] deadline.” Docket # 39
at 4. Instead, this Court will focus entirely on Defendant’s second argument—that Plaintiff’s
claim lacks merit.
To state a claim under 42 U.S.C. § 1983, the plaintiff must plead and prove that
the defendant, while acting under color of state law, deprived him of some right or privilege
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guaranteed by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535
(1981). Plaintiff claims that Defendant (a Corrections Officer with the Michigan Department of
Corrections) violated his Eighth Amendment right to be free from excessive force when
Defendant tased him on October 17, 2012. Defendant Harrison alleges that he properly tased
Plaintiff because Plaintiff was fist fighting his cellmate and ignoring Defendant Harrison’s direct
orders to stop fighting.
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)); see also Helling v.
McKinney, 509 U.S. 25, 35 (1993) (applying deliberate indifference standard to conditions of
confinement claims)). 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
inflictions of pain are those that are “totally without penological justification.” Id.
However, not “every malevolent touch by a prison guard gives rise to a[n Eighth
Amendment] cause of action.” See Hudson v. McMillian, 503 U.S. 1, 9 (1992). 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, 503 U.S. at 7; see also
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Wilkins v. Gaddy, 559 U.S. 34, 36-39 (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); McHenry v. Chadwick, 896
F.2d 184 (6th Cir. 1990).
Notably, “prison officials ‘must make their decisions in haste, under pressure, and
frequently without the luxury of a second chance.’” Cordell v. McKinney, 759 F.3d 573, 581 (6th
Cir. 2014) (citing Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002) and quoting Hudson,
503 U.S. at 6). Thus, “[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, or instead
evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a
knowing willingness that it occur.’” Griffin, 604 F.3d at 954 (quoting Whitley, 475 U.S. at 321).
“The Sixth Circuit has emphasized that the use of tasers must be evaluated under all the
circumstances.” Hublick v. Cnty. of Otsego, No. 12-CV-14146, 2014 WL 4955403, at *10 (E.D.
Mich. Feb. 6, 2014) (citing Caldwell v. Moore, 968 F.2d 595, 600 (6th Cir. 1992)).
Upon review of the evidence on record, it is clear that Defendant’s use of a taser
in this instance was not done maliciously or sadistically; rather, it was done in an attempt to
restore discipline and minimize injury. Hudson, 503 U.S. at 6-7. It is undisputed that on October
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17, 2012, Defendant observed Plaintiff and Cosey fighting in their cell. See Docket # 57-15 at 2
(showing Plaintiff admitted to fighting and pleaded guilty to a misconduct ticket for fighting on
October 17, 2012). After witnessing the fight, Defendant attempted to cease the violence by
ordering that the inmates stop fighting now; however, Plaintiff admittedly decided to ignore
Defendant’s direct order because he wanted to get a few more punches in. Docket # 57-24 at 5.
When Defendant entered the cell and gave the second order to stop fighting, Plaintiff (unlike
Cosey1) hesitated long enough to make Defendant believe Plaintiff was, again, disobeying his
direct order. See Docket # 57-20 at 3 (noting Defendant tased Plaintiff to minimize injury to
Cosey and the Officers, and restore discipline); Docket # 57-21 at 4-5 (noting CO Lelierve
thought deploying the taser was needed to minimize further injury to Cosey and to the Officers).
Consequently, Defendant used the taser in an attempt to restore discipline and minimize injury,
which is a permissible use of force under the Eighth Amendment. See Hudson, 503 U.S. at 6-7
(noting force was appropriately applied in a good-faith effort to maintain or restore discipline);
Hublick, 2014 WL 495403, at *5 (“[P]rison officials may use physical force in the form of tasers
to compel obedience by inmates.”); see also Caldwell, 968 F.2d at 600 (noting the use of a taser
is not per se improper within a prison, especially when not using a taser would likely result in
even greater force). Based on this information, it is clear that Defendant was not administering
force “totally without penological justification.” Rhodes, 452 U.S. at 346. As a result,
Plaintiff’s excessive force claim is denied for lack of merit.

1
Inmate Cosey was not tased because after the second order to stop fighting was given, he immediately put his
hands in the air, indicating that he was complying with the order. Docket # 57-20 at 2; Docket # 57-21 at 4; Docket #
57-22 at 4. CO Lelierve stated that had Cosey not complied with the order, he was prepared to tase him as well in an
attempt to restore discipline and minimize any (greater) injury to the inmates and the Officers. Docket # 57-21 at 4-5.

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III.
Overall, despite the Court’s obligation to construe handwritten pro se documents
liberally, Plaintiff has failed to sustain his burden of proof in response to Defendant’s motion for
summary judgment. Fed. R. Civ. P. 56; see Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (stating that pro se complaints are held to less stringent
standards than pleadings drafted by attorneys, and will only be dismissed if the claim
undoubtedly contains no facts to support its request for relief). Accordingly, Defendant’s Motion
for Summary Judgment is GRANTED (Docket # 56) and Plaintiff’s claim is DISMISSED
WITH PREJUDICE.
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). For the same reasons that the court grants
Defendant’s motion for summary judgment, the Court discerns no good-faith basis for an appeal.
Should Plaintiff appeal this decision, the Court will assess the $505 appellate filing fee pursuant
to § 1915(b)(1), unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the “threestrikes” rule of § 1915(g). If Plaintiff is barred, he will be required to pay the $505 appellate
filing fee in one lump sum.
A Judgment consistent with this Opinion and Order will be entered.
SO ORDERED.
___/s/ R. Allan Edgar______________
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

Dated:__9/23/2015___________

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