Nelson v. Harvey et al

Filing 55

REPORT AND RECOMMENDATION: The Court respectfully RECOMMENDS that the Defendants Motion for Summary Judgment (Docket Entry No. 37) be GRANTED and that this action be DISMISSED WITH PREJUDICE. The Court further RECOMMENDS that any appeal NOT be cert ified under 28 U.S.C. § 1915(a)(3) as taken in good faith. Signed by Magistrate Judge Juliet E. Griffin on 12/4/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

ANTHONY NELSON
v.
W.B. MELTON, et al.

TO:

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)
)
)
)

NO. 2:12-0120

Honorable Kevin H. Sharp, District Judge

REPORT AND RECOMMENDATION
By Order entered January 10, 2013 (Docket Entry No. 3), this action was referred to the
Magistrate Judge to enter a scheduling order for management of the case, to dispose or recommend
disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further
proceedings, if necessary, under Rule 72(b) of the Federal Rules of Civil Procedure and the Local
Rules of Court.
Presently pending before the Court is the Motion for Summary Judgment (Docket Entry
No. 37) of Defendants W. B. Melton, Shannon Harvey, Ethan Bean, and Donnie Allred, to which
the plaintiff has responded in opposition. See Docket Entry Nos. 53-54. Set out below is the Court’s
recommendation for disposition of the motion.

I. BACKGROUND
The plaintiff is currently an inmate of the Tennessee Department of Correction (“TDOC”)
confined at the Morgan County Correctional Complex (“MCCX”). He filed this action pro se and

in forma pauperis on December 26, 2012, under 42 U.S.C. § 1983 seeking a declaratory judgment,
injunctive relief, nominal damages, and punitive damages for violations of his civil rights alleged
to have occurred during his previous confinement at the Overton County Justice Center (“Justice
Center”) in Livingston, Tennessee. Named as defendants to the action are Overton County Sheriff
W. B. Melton, Justice Center Administrator Shannon Harvey, Officer Ethan Bean, and Officer
Donnie Allred.
The plaintiff was taken into custody at the Justice Center on or about September 14, 2012,
and remained confined there until he was transferred to the Putnam County Sheriff’s Department on
or about March 13, 2013.1 In his Complaint, he sets out four separate claims based on events that
occurred at the Justice Center. First, he alleges that, on two occasions, Defendant Bean sprayed
mace through or around a broken window in the plaintiff’s cell without warning or provocation
causing the plaintiff and his cell mates to “get mace in our lungs and eyes.” See Complaint (Docket
Entry No.1), at 6. He alleges that Defendant Allred “participated” in the first of the mace spraying
incidents. Id. Second, the plaintiff, who asserts that he is an insulin dependent diabetic, alleges that
his right to adequate medical care was violated because he was not given the required diet for his
condition, because correctional officers, not nurses or medical staff, passed out medication to
inmates at the Justice Center, and because there was not an emergency intercom in his cell. Id.
Third, the plaintiff alleges that, for a period of four or five days, he was kept in a cell in which the
toilet was not functioning and was filled with urine and feces. Id. at 7. Fourth, the plaintiff alleges
that he was taken from his cell on November 5, 2012, to have his blood sugar checked at a time that
his pants had been sent out to be washed. He contends that he was forced to leave his cell in his
1

See Defendants’ Statement of Undisputed Facts (Docket Entry No. 39), at ¶ 47.
2

underwear and that, although he was permitted to wrap a blanket around himself, the blanket slipped
off at one point and he was embarrassed. Id.

II. THE DEFENDANTS’ MOTION
The Defendants argue that they are entitled to judgment as a matter of law on all claims
because the plaintiff cannot set forth evidence sufficient to show that he suffered the deprivation of
any right protected by the United States Constitution. The Defendants also raise the affirmative
defense of failure to exhaust available administrative remedies and assert qualified immunity to any
damage claims. In support of their motion, the Defendants rely on the declarations of Defendant
Ethan Bean (Docket Entry No. 41), Defendant Donnie Allred (Docket Entry No. 42), and Defendant
Shannon Harvey (Docket Entry No. 44), as well as copies of various documents related to the
plaintiff and to his stay at the Justice Center. See Docket Entry Nos. 40-1 to 40-14, 44-1 to 44-10,
and 45-1 to 45-7.
With respect to the plaintiff’s first claim, the Defendants admit that officers sprayed short
bursts of a chemical spray2 into cells at the Justice Center on two occasions in September 2012, but
contend that this occurred because inmates were observed passing contraband tobacco through
broken windows in the cells and sticking their hands through broken windows and the officers were
attempting to stop this conduct. The Defendants deny that any inmates, including the plaintiff, were

2

It appears that a chemical spray generally referred to as “mace” was used on the first
occasion and that a pepper spray was used on the second occasion. See Declaration of Bean (Docket
Entry No. 41). The distinction between the exact types of spray is not significant in this case, and,
for the purposes of this Report and Recommendation, the Court shall refer to both types of spray as
a “chemical spray.”
3

targeted to be sprayed and assert that there is no evidence that the plaintiff exhibited any symptoms
of being affected by the spray after the incidents.
With respect to the plaintiff’s second claim, the Defendants argue that there is no evidence
showing that the plaintiff was denied a medically appropriate diet, that he suffered any kind of injury
because medication was passed out by non-medical officers, or that the lack of intercoms in cells at
the Justice Center harmed the plaintiff in any manner. With respect to the plaintiff’s third claim, the
Defendants contend that the undisputed evidence shows that, although a cell in which the plaintiff
was housed had a non-functioning toilet, the plaintiff was moved from the cell after a short period
of time and officers had instructed the plaintiff to kick on his door to alert them when he needed to
use the restroom but he chose to use the non-functioning toilet instead. Finally, the Defendants argue
that the plaintiff’s allegations regarding his being taken out of his cell wrapped in a blanket do not
implicate any of the named defendants and, furthermore, do not rise to the level of seriousness
necessary for a constitutional claim.
In response, the plaintiff submits two briefs (Docket Entry Nos. 53 and 54) in which he
argues that this matter should be set for trial. He asserts that the use of a chemical spray on inmates
was not justified even if the inmates were passing contraband through a broken window and smoking
tobacco because the inmates were not presenting a threat of danger to anyone. He further asserts that
he suffered pain in his eyes because of the spray but that he did not complain about it because he
assumed the pain would go away. The plaintiff contends that the Defendants’ argument that he did
not suffer an injury from the lack of a proper diet and the lack of an intercom in his cell is irrelevant
because these conditions could have resulted in an injury to him. He argues that state law requires
that medication be passed out to inmates by medical personnel. The plaintiff contends that the
4

Defendants’ argument regarding the cell with the non-functioning toilet “is absurd.” Finally, he
asserts that he did not have the opportunity in many cases to appeal his grievances and that he was
given thirty days “in the hole” on occasion for appealing a grievance and was told that he would get
“another thirty days” if he filed another appeal. See Docket Entry No. 53, at 3.3

III. STANDARD OF REVIEW
A motion for summary judgment is reviewed under the standard that summary judgment is
appropriate if “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Rule 56(a) of the Federal Rules of Civil
Procedure. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). A “genuine issue of material fact” is a fact which, if proven at trial, could lead a reasonable
jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering whether summary judgment is
appropriate, the Court must “look beyond the pleadings and assess the proof to determine whether
there is a genuine need for trial.” Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert.
denied, 531 U.S. 875, 121 S.Ct. 179, 148 L.Ed.2d 123 (2000). In reviewing a motion for summary
judgment, the Court must view the evidence and all inferences drawn from underlying facts “in the
light most favorable to the party opposing the motion.” See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gribcheck v. Runyon,
245 F.3d 547, 550 (6th Cir.), cert. denied, 534 U.S. 896, 122 S.Ct. 217, 151 L.Ed.2d 155 (2001).
3

In his response to the motion for summary judgment, the plaintiff fails to respond to the
Defendants’ arguments regarding his claim based on being forced to leave his cell covered with a
blanket. Accordingly, the Court views this claim as having been abandoned.
5

The moving party has the burden of showing the absence of genuine factual disputes from
which a reasonable jury could return a verdict for the non-moving party. Anderson, at 249-50.
However, “[t]he moving party need not support its motion with evidence disproving the non-moving
party’s claim, but need only show that ‘there is an absence of evidence to support the non-moving
party’s case.’” Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001) (quoting
Celotex Corp., 477 U.S. at 325).
“Once the moving party has presented evidence sufficient to support a motion for summary
judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant
probative evidence must be presented to support the complaint.” Goins v. Clorox Co., 926 F.2d 559,
561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on
the pleadings but must present evidence supporting the claims asserted by the party. Banks v. Wolfe
Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003). Moreover, conclusory allegations,
speculation, and unsubstantiated assertions are not evidence, and are not sufficient to defeat a
well-supported motion for summary judgment. See Lujan v. National Wildlife Fed’n, 497 U.S. 871,
888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). In other words, to defeat summary judgment, the
party opposing the motion must present affirmative evidence to support his position; a mere
“scintilla of evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003)
(quoting Anderson, 477 U.S. at 252).

IV. CONCLUSIONS
Initially, the plaintiff no longer has a claim for prospective injunctive relief given that he has
been transferred from the Justice Center. See City of Los Angeles v. Lyons, 461 U.S. 95, 102-09,
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103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Blakely v. United States, 276 F.3d 853, 873-74 (6th Cir.
2002); Williams v. Ellington, 936 F.2d 881, 889 (6th Cir. 1991). The plaintiff’s past exposure to
alleged illegal conduct "does not in itself show a present case or controversy regarding injunctive
relief." O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Similarly, the
plaintiff’s request for declaratory relief lacks merit because there is no longer any actual and
continuing controversy between the parties which would cause an immediate and real threat of injury
to him. City of Los Angeles, 461 U.S. at 102; Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir.
1985). There is simply no actual controversy between the parties which calls for a declaration of the
rights and other legal relations of the parties. See 28 U.S.C. § 2201; Grand Trunk W. R.R. Co. v.
Consol. Rail Co., 746 F.2d 323, 326 (6th Cir. 1984).
With respect to claims for monetary relief, the Court notes that the plaintiff has not rebutted
the Defendants’ supporting evidence or supported his own response with any actual evidence. The
two briefs he filed in response to the motion for summary judgment are merely argument and are not
supported by an affidavit or declaration that has been sworn to by the affiant or the declarant. The
plaintiff’s complaint is likewise unverified. Further, the plaintiff failed to specifically respond to the
Defendants’ Statement of Undisputed Facts (Docket Entry No. 39) as required by Rule 56.01(c) of
the Local Rules of Court.4 When a motion for summary judgment is made and properly supported
under Rule 56 of the Federal Rules of Civil Procedure, such as the motion filed by the Defendants,
the non-moving party may not merely rest on unsupported allegations, but must respond with
affirmative evidence supporting his claims and establishing the existence of a genuine issue of
4

By Order entered September 20, 2013 (Docket Entry No. 46), the plaintiff was specifically
advised that, if he wished to dispute the Defendants’ Statement of Undisputed Material Facts, he
must respond to them in accord with Local Rule 56.01(c).
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material fact. See Celotex Corp., 477 U.S. at 323-24; Chao v. Hall Holding Co., Inc., 285 F.3d 415,
424 (6th Cir. 2002); Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir. 1989).
Although the plaintiff is proceeding pro se, his pro se status does not relieve him of the obligation
under Rule 56 of the Federal Rules of Civil Procedure to set forth admissible evidence showing that
genuine issues of material fact exist which require that the action proceed to trial. This is the
threshold requirement for all non-moving parties when summary judgment is sought by an opposing
party. Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The plaintiff fails to
satisfy this basic requirement.
Based on the record that is before the Court, no reasonable jury could find in favor of the
plaintiff. Even when the evidence is viewed in the light most favorable to the plaintiff, there is
simply no evidence that he was treated in a manner that violated his constitutional rights. Given the
lack of evidence supporting his claims, any factual questions that exist fail to rise to the level of
genuine issues of material fact that require that this action proceed to trial.
The Cruel and Unusual Punishment Clause of the Eighth Amendment prohibits the wanton
and unnecessary infliction of pain upon convicted prisoners and requires that prisoners be provided
with a level of medical care and housing that is consistent with contemporary standards of decency.
See Rhodes v. Chapman, 452 U.S. 337, 347-48, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).5 In Estelle
5

It is not clear from the record whether the plaintiff was held at the Justice Center as a
convicted prisoner or as a pretrial detainee. However, the distinction is not critical for the purposes
of the plaintiff’s claims. Although pretrial detainees are protected from mistreatment by the Due
Process Clause of the Fourteenth Amendment while convicted felons fall within the purview of the
Eighth Amendment, City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct.
2979, 77 L.Ed.2d 605 (1983), the Eighth Amendment’s prohibition against cruel and unusual
punishment applies to pretrial detainees through the Due Process Clause of the Fourteenth
Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 & n.16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979);
Heflin v. Stewart Cnty., Tenn., 958 F.2d 709, 714 (6th Cir. 1992); Roberts v. City of Troy, 773 F.2d
8

v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that
“deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain . . . proscribed by the Eighth Amendment.” The Supreme Court reiterated in
Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), that deliberate
indifference by prison officials which subjects a prisoner to inhumane conditions of confinement
violates the Eighth Amendment. However, an Eighth Amendment claim requires more than
allegations of negligence or even medical malpractice. See Estelle, 429 U.S. at 106; Woods v.
Lecureux, 110 F.3d 1215, 1222 (6th Cir. 1997); Walker v. Norris, 917 F.2d 1449, 1454 (6th Cir.
1990); Roberts v. City of Troy, 773 F.2d 720, 724 (6th Cir. 1985). With respect to allegations of
unconstitutional prison conditions, conditions which are merely harsh do not violate the Eighth
Amendment. Rhodes, 452 U.S. at 347. There must be evidence of “extreme deprivations,” Hudson
v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), and only grave deprivations
of the civilized measure of life's necessities violates the Cruel and Unusual Punishment Clause.
Rhodes, supra; Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir. 2004).
The undisputed evidence before the Court does not support a finding that the plaintiff was
subjected to medical care or living conditions that fell below constitutional standards. The plaintiff
has not set forth any evidence that he was deprived of a medically appropriate diet or that he was
treated with deliberate indifference with respect to his diabetic condition. What the plaintiff appears
to complain about is that staff provided food items other than orange juice to diabetic inmates who
were experiencing low blood sugar levels. See Docket Entry No. 54, at 4. However, the Eighth

720, 723 (6th Cir. 1985). Accordingly, claims brought by a pretrial detainee are analyzed under
Eighth Amendment standards. See Leary v. Livingston Cnty., 528 F.3d 438, 441-42 (6th Cir. 2008).
9

Amendment does not mandate that any particular food item be provided to a prison inmate, and
deliberate indifference is not shown simply because “alternative procedures might have better
addressed [a prisoner's] particular needs.” Graham v. County of Washtenaw, 358 F.3d 377, 384 (6th
Cir. 2004). There is also no constitutional requirement that jail cells contain intercoms or that
medication be passed out to inmates by any specific staff member. Neither of these living conditions
implicates a basic necessity of civilized life and, in the absence of evidence that either living
condition caused an actual harm to the plaintiff, the plaintiff’s mere displeasure with these living
conditions does not rise to the level of constitutional concern. The plaintiff’s contention that the
Defendants did not follow a unspecified state law that requires medical personnel to distribute
medication does not raise a constitutional issue. The mere failure of a prison official to follow an
internal prison policy or state law is not sufficient to support a constitutional claim under Section
1983. See Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993); Barber v. City of Salem, Ohio, 953 F.2d
232, 240 (6th Cir. 1992).
With respect to the plaintiff’s claim that he was housed in a cell that did not have a
functioning toilet for four to five days, even if the Court assumes for the purposes of the summary
judgment motion that this allegation is true, the evidence before the Court is simply not sufficient
to support a constitutional claim. First, there is no evidence before the Court linking this claim to
any of the named defendants. A defendant cannot be held individually liable under Section 1983 for
constitutional violations absent a showing that the defendant was personally involved in some
manner in the allegedly unconstitutional conduct. Miller v. Calhoun Cnty., 408 F.3d 803, 817, n.3
(6th Cir. 2005); Hardin v. Straub, 954 F.2d 1193, 1196 (6th Cir. 1992). Second, even though the
Court is troubled by a factual scenario in which an inmate may have been knowingly and
10

purposefully left in a cell with a malfunctioning toilet containing urine and feces,6 the plaintiff
acknowledges that he was moved from this cell after a few days. Conditions of confinement that are
temporary in nature rarely rise to the level implicating constitutional concern. See Dellis v.
Corrections Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001). While the odor from the toilet may
have been unpleasant, “[n]ot every unpleasant experience a prisoner might endure while incarcerated
constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey v.
Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Further, there is no evidence before the Court showing
that the malfunctioning toilet resulted in an actual and substantial risk of serious damage to his
health. See Farmer, 511 U.S. at 834; Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125
L.Ed.2d 22 (1993). Finally, the plaintiff’s own deposition testimony was that he was instructed to
kick his cell door if he needed to exit the cell to use the restroom. See Docket Entry No. 40-14, at
19-21. Although the plaintiff testified that he was afraid of having a chemical spray used on him,
id., there is no evidence that he was actually sprayed with a chemical spray or otherwise was coerced
in any manner into not alerting officers that he needed to use the restroom by kicking the door.
The plaintiff’s final claim is that Defendants Bean and/or Allred wrongfully used or
participated in the use of a chemical spray at the Justice Center on two occasions. The Eighth
Amendment prohibits the wanton and unnecessary infliction of pain upon a prison inmate, Whitley
v. Albers, 475 U.S. 312, 319-20, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), and the unjustified
infliction of bodily harm upon a prisoner gives rise to a claim under 42 U.S.C. § 1983. Caldwell v.
Moore, 968 F.2d 595, 599 (6th Cir. 1992); Franklin v. Aycock, 795 F.2d 1253, 1258 (6th Cir. 1986).

6

The plaintiff testified in his deposition that when the toilet stopped working his cellmate
was removed from the cell but he was left in the cell. See Docket Entry No. 40-14, at 19.
11

However, the mere fact that a prisoner was subjected to physical contact which may have been
forceful does not itself show a constitutional violation. Parrish v. Johnson, 800 F.2d 600, 604-05
(6th Cir. 1986). As noted in Whitley, several factors are relevant in determining whether a particular
use of force was objectively reasonable or, instead, was wanton and malicious. 475 U.S. at 320-21.
These factors include the extent of injury suffered, the need for the application of force, the
relationship between the need and the amount of force used, the threat reasonably perceived by the
prison official, and any efforts made to temper the severity of the forceful response. Id.
The use of a chemical spray is not per se unreasonable under the Constitution. See Adams
v. Metiva, 31 F.3d 375, 384 (6th Cir. 1994). The analysis for the use of such force is essentially the
same as that for the use of more traditional forms of physical control, turning upon the totality of the
circumstances, including the prisoner’s conduct and the defendant’s reasonable perception of the
scenario. Id. at 386.
In the instant action, the basic facts of the two incidents about which the plaintiff complains
are essentially undisputed. In the first incident, inmates in a multi-inmate cell, in which the plaintiff
was housed, were observed passing contraband through a broken window in the cell and were also
observed sticking their hands out through the window. See Declaration of Bean (Docket Entry
No. 41) and Declaration of Allred (Docket Entry No. 42). Upon investigation, jail officers observed
that a pulley system had been rigged with fishing line so that contraband could be passed into the
Justice Center and that smoke was coming out the cell window. Id. In response to these facts,
Defendant Allred sprayed a single, one-second burst of a chemical spray into the cell from outside
the broken window. See Affidavit of Allred. The officers then entered the cell to investigate,
confiscated tobacco, rolling papers, and a lighter, removed three inmates from the cell for security
12

reasons, and removed the one inmate who complained of being hit by the chemical spray. See
Affidavit of Bean and Affidavit of Allred. Neither officer noticed any lingering traces of the
chemical spray in the cell. Id.
In the second incident, Defendant Bean received another report of contraband being passed
into the Justice Center through a broken cell window. See Affidavit of Bean. Bean asserts that he
then went to the outside of the broken window and sprayed a single, one second burst of a chemical
spray at the hole in the window so that a residue of the spray was left on the edges of the hole in
order to deter inmates from pulling contraband through the hole or passing their hands through the
hole. Id.7 Bean declares that no inmate was hit with the chemical spray and no inmate claimed to
have any problems as a result of the chemical spray. Id.
The introduction of contraband into the Justice Center through broken cell windows created
a legitimate security concern. The manner of response by the officers in this case was reasonably
directed at this concern and was minimal in both its scope and severity. Furthermore, there is no
evidence that the uses of force were directed at any particular inmate or were done in an excessive
or malicious manner. The plaintiff argues that he was not acting in a violent or threatening manner
and the Defendants were unjustified in using force against him. The plaintiff is simply wrong. The
daily operation of a prison facility requires constant and vigilant attention to issues of security, good

7

The plaintiff’s deposition testimony of this incident differs from the description of the
incident given by Defendant Bean in that the plaintiff testified that Bean sprayed the chemical spray
around the edges of the hole from inside the cell, not from outside the cell as declared by Bean. See
Docket Entry No. 40-14, at 13. However, the exact location from where Bean applied the chemical
spray is not significant and this factual question does not rise to the level of a genuine issue of
material fact. Indeed, the plaintiff’s version is even less supportive of his claim since Defendant
Bean would have been the individual closest to the chemical spray when it was applied and would
have suffered the most direct exposure to the spray.
13

order, and the discipline of an institution, and the discretion of how to deal with these and other
related issues is best left to the expertise of prison officials. See Thornburgh v. Abbott, 490 U.S.
401, 404-08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989); O’Lone v. Estate of Shabazz, 482 U.S. 342,
349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987); Bell v. Wolfish, 441 U.S. 520, 546-47, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
There is nothing in the Constitution that requires correctional officers to use the least
intrusive steps possible in their efforts to restore discipline and order, nor does a prison inmate have
to be a significant threat to either prison staff or other inmates before some measure of physical force
can be used against him in order to accomplish a legitimate penological objective. See Lockett v.
Suardini, 526 F.3d 866, 875 (6th Cir. 2008); Williams v. Browman, 981 F.2d 901, 905 (6th Cir.
1992). The fact that the plaintiff subjectively believed the he was not a security threat and that the
Defendants’ actions were excessive is of no constitutional relevance. Even when everything the
plaintiff alleges is taken as true, he fails to show a constitutional claim because the Defendants’
actions were justified and reasonable based on the record before the Court.
The Court’s finding that there is no evidence that a constitutional violation occurred is
sufficient to warrant summary judgment in favor of the Defendants. As such, the Court declines to
address the Defendants’ lack of exhaustion defense and the qualified immunity defense. See Saucier
v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Jones v. Byrnes, 585 F.3d 971,
975 (6th Cir. 2009). The Court’s finding of a lack of evidence is also sufficient to support dismissal
of any municipal liability claim to the extent that the Defendants are sued in their official capacities.
See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986).

14

RECOMMENDATION
Based on the forgoing, the Court respectfully RECOMMENDS that the Defendants’ Motion
for Summary Judgment (Docket Entry No. 37) be GRANTED and that this action be DISMISSED
WITH PREJUDICE.
The Court further RECOMMENDS that any appeal NOT be certified under 28 U.S.C.
§ 1915(a)(3) as taken in good faith.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this notice and must state with particularity the specific
portions of this Report and Recommendation to which objection is made. Failure to file written
objections within the specified time can be deemed a waiver of the right to appeal the District Court's
Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Respectfully submitted,

JULIET GRIFFIN
United States Magistrate Judge

15