McRae v. Lendsey

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TROY D. MCRAE, JR.,

Plaintiff,

Civil Action 2:21-cv-4752

v. Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

LT. LENDSEY, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter is before the Court on Defendants’ Motion to Dismiss (Doc. 21). For the

reasons that follow, the Undersigned RECOMMENDS the Motion be GRANTED in part

and DENIED in part.

I. BACKGROUND

In brief, pro se Plaintiff alleges that Defendants violated his constitutional rights while he

was incarcerated at Ross Correctional Institute. (See generally Doc. 20). Because this matter is

before the Court on a Motion to Dismiss, the following facts are drawn solely from Plaintiff’s

allegations. (See Amended Complaint, Doc. 20).

On July 15, 2021, Plaintiff attended a Rules Infraction Board hearing to resolve a conduct

report against him. (Doc. 20, ¶ 1). Plaintiff wanted the opportunity to show that he did not break

a rule and thought the individual who could explain what happened, Captain Yates, would attend.

Specifically, Plaintiff believed Captain Yates would provide the video footage supporting

Plaintiff’s version of events. (Id.). When Captain Yates did not appear, Plaintiff fell to his knees

and pleaded that Captain Yates be called to the hearing. (Id.). Defendant Lendsey picked Plaintiff

up off the floor and escorted him into “the open dayroom[.]” (Id., ¶ 2). Once in the other room,

Plaintiff again fell to the floor and demanded Captain Yates or the Warden be called. (Id., ¶ 3).

In response, Defendants Lendsey and Tedesco grabbed Plaintiff and lifted him up from the floor.

(Id., ¶¶ 4–5). During this process, Plaintiff says Defendant Lendsey “took hold of [his] fingers

and began to bend them backward in an attempt to inflict pain on [Plaintiff].” (Id., ¶ 5). Plaintiff

says he “felt the bone in [his] left finger . . . dislocate,” and says his finger was broken. (Id.).

During the entire sequence of events, Plaintiff’s hands were “cuffed behind [his] back[.]”

(Id., ¶ 3). Plaintiff was then returned to his cell where he says Defendants Tedesco and Lendsey

forcibly removed his handcuffs by pulling his hands through the cuff-port which hurt his wrist and

right thumb. (Id., ¶¶ 6–8). While in his cell, Plaintiff’s left hand and right thumb began to swell,

and he could not make a fist. (Id., ¶ 8). Plaintiff sought medical attention. (Id., ¶ 10). After his

medical visit, Defendant Lendsey placed him in an isolated cell, to “further punish[ ]” him.

Plaintiff says he was then pepper-sprayed1 and forced to go without water and belongings

overnight. (Id., ¶ 11). To this day, Plaintiff says he experiences ongoing pain in his left hand, “his

hand has healed in the broken position[,]” and he “can no longer make a tight fist[.]” (Id., ¶¶ 13,

15).

Plaintiff filed this lawsuit, and Defendants have moved to dismiss Plaintiff’s claims. (Doc.

21). The Motion (Doc. 21) has been fully briefed (Docs. 22, 24) and is ripe for review.2

II. STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure requires that a complaint “state a

claim to relief that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556

U.S. 662, 663–64, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In reviewing

1 Specifically, Plaintiff says he was “mased.” (Doc. 20, ¶ 11).

2 Plaintiff filed a sur-reply without leave of court. (Doc. 25). Leave of court is required to file a

sur-reply. See S.D. Ohio Civ. R. 7.2(a)(2). Accordingly, Plaintiff’s sur-reply (Doc. 25) is not

properly before the Court and is not considered in resolving this Motion (Doc. 21). Further,

Plaintiff does not advance any material arguments in the sur-reply that would affect the resolution

of this Motion.

the complaint, a court must construe it in favor of the plaintiff and accept all well-pleaded factual

allegations as true. Twombly, 550 U.S. at 556–57. “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 678 (citing Twombly, 550 U.S.

at 556).

On the other hand, a complaint that consists of “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555; see also

Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a plaintiff must give

specific, well-pleaded facts, not just conclusory allegations). In other words, while “detailed

factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain statement”

rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 677–78 (quoting Twombly, 550 U.S. at 555) (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

Further, although pro se complaints are construed liberally, Haines v. Kerner, 404 U.S.

519, 520 (1972), “basic pleading essentials” are still required, Wells v. Brown, 891 F.2d 591, 594

(6th Cir. 1989). Said differently, “[t]he requirement for liberal construction . . . does not translate

to ignoring a clear failure in the pleading to allege facts which set forth a cognizable claim.” Kidd

v. Neff, No. 1:12-cv-40, 2012 WL 4442526, at *2 (E.D. Tenn. Sept. 25, 2012 (dismissing pro se

plaintiff’s “incredibly vague” complaint), see also Smith v. Breen, No. 09-2770, 2010 WL

2557447, at *6 (W.D. Tenn. June 21, 2010) (collecting cases). The complaint must still “contain

either direct or inferential allegations respecting all the material elements to sustain a recovery

under some viable legal theory.” Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

III. DISCUSSION

Plaintiff has alleged two violations of his constitutional rights against Defendants Lendsey

and Tedesco: his Fourteenth Amendment right to due process for failure to follow ODRC policy

(Id., ¶¶ 5, 16); and his Eighth Amendment right to be free from cruel and unusual punishment for

use of excessive force. (Id., ¶¶ 5–7, 11). His excessive force claim spans three incidents:

(1) Defendant Lendsey bending his fingers backwards, (2) Defendants Lendsey and Tedesco

pulling his hands through the cuff-port; and (3) Defendant Lendsey pepper-spraying him. (Id.).

Defendants move to dismiss, arguing that (a) sovereign immunity bars Plaintiff’s claims against

Defendants in their official capacities; (b) failure to follow internal policy is not a Fourteenth

Amendment violation; (c) there is no Eighth Amendment violation because force was applied in a

good faith attempt to maintain discipline and the injury was not sufficiently serious; and

(d) Defendants are entitled to qualified immunity. (See Doc. 21).

The Undersigned addresses each of Defendants’ arguments in turn. Ultimately, the

Undersigned RECOMMENDS that Plaintiff be allowed to proceed only on his Eighth

Amendment claims against Defendant Lendsey, in his personal capacity, as those claims relate to

Plaintiff’s finger being bent backward and Plaintiff being pepper-sprayed. In that respect, it is

RECOMMENDED that the Motion to Dismiss (Doc. 21) be DENIED. For all other claims, the

Undersigned RECOMMENDS the Motion to Dismiss (Doc. 21) be GRANTED.

A. Sovereign Immunity

As noted, Plaintiff does not make clear in his Amended Complaint whether he is suing

Defendants in their individual or official capacities. (See Doc. 20). In his initial Complaint,

Plaintiff indicated he was suing Defendants in their individual capacities only. (Doc. 5 at 2). But

because the Amended Complaint is not entirely clear (see Doc. 20)—and Defendants argue official

capacity claims should be barred (Doc. 21 at 11–12)—the Undersigned briefly addresses claims

against Defendants in their official capacity.

“State sovereign immunity generally bars damages actions against states from proceeding

in federal court. This immunity also generally applies to state agents and instrumentalities,

including state officials sued in their official capacities.” Kanuszewski v. Mich. Dep’t of Health &

Human Servs., 927 F.3d 396, 413 (6th Cir. 2019) (internal citations and quotations omitted). To

the extent Plaintiff sues Defendants in their official capacities for monetary damages, state

sovereign immunity bars those claims. Accordingly, the Undersigned RECOMMENDS

dismissal of any official capacity claims.

B. Fourteenth Amendment

Plaintiff alleges that Defendants violated his Fourteenth Amendment right to due process

by failing to follow ODRC policy, which allegedly requires correctional officers to call someone

to record incidents which may result in the use of force and to file a Use of Force Report. (Doc. 20,

¶¶ 4, 16). Defendants argue that the “failure of prison officials to follow internal policies is not a

constitutional violation[.]” (Doc. 21 at 6). The Undersigned agrees.

Even if Defendants failed to follow ODRC policy, that failure is “not in and of itself a

constitutional violation.” McDougald v. Davis, No. 2:16-CV-545, 2018 WL 1899229, at *7

(S.D. Ohio Apr. 20, 2018); see also Robison v. Coey, No. 2:15-CV-944, 2015 WL 5437175, at *10

(S.D. Ohio Sept. 14, 2015) (citing Laney v. Farley, 501 F.3d 577, 581 n. 2 (6th Cir. 2007)) (“An

alleged failure to comply with an administrative rule or policy does not rise to the level of a

constitutional violation.”); Haight v. Thompson, No. 5:11CV–P118–R, 2011 WL 4473143 at *3

(W.D. Ky. Sept. 26, 2011) (“A prison official’s failure to follow internal rules and regulations does

not alone state a constitutional violation...”). Section 1983 does not provide a remedy for alleged

violations of state laws or regulations. See Williams v. Burgess, No. 5:21-cv-99, 2021 WL

5816830, at *4 (W.D. Ky. Dec. 7, 2021) (citing Laney, 501 F.3d at 580 n.2) (“The purpose of

§ 1983 is to remedy violations of federal law, not state law.”); Lewellen v. Metro. Gov’t of

Nashville, 34 F.3d 345, 347 (6th Cir. 1994) (“Unless a deprivation of some federal constitutional

or statutory right has occurred, § 1983 provides no redress even if the plaintiff’s common law

rights have been violated and even if the remedies available under state law are inadequate.”). And

“[c]ourts routinely have recognized that a prisoner does not enjoy any federally protected liberty

or property interest in state procedure.” White v. Perron, No. 2:20-cv-247, 2021 WL 3855589, at

*9 (W.D. Mich. Aug. 30, 2021) (citing Olim v. Wakinekona, 461 U.S. 238, 250 (1983) and other

cases). Thus, the “failure to comply with [a state] administrative rule or policy does not itself rise

to the level of a constitutional violation.” Williams v. Burke, No. 2:08-cv-123, 2009 WL 1788374,

at *1 (W.D. Mich. June 18, 2009) (collecting cases).

So, Plaintiff’s allegations that Defendants failed to follow ODRC policies do not

independently state a claim for a violation of federal law that can be pursued in a § 1983 action.

See Burgess, 2021 WL 5816830, at *4 (“to the extent that Williams identifies state policies as

conferring a right for a § 1983 claim, the Court dismisses that claim”). And it is

RECOMMENDED that Defendants’ Motion to Dismiss as to Plaintiff’s Fourteenth Amendment

claims be GRANTED, and Plaintiff’s Fourteenth Amendment claims against Defendants be

DISMISSED.

C. Eighth Amendment

The Undersigned comes to a different conclusion as to Plaintiff’s Eighth Amendment

claims. Plaintiff alleges three incidents in which he says excessive force was used in violation of

the Eighth Amendment by Defendants Lendsey and Tedesco: (1) When Defendant Lendsey bent

his fingers backwards (Doc. 20, ¶ 5); (2) when Defendants Lendsey and Tedesco pulled his hands

through the cuff-port (id., ¶ 6–7); and (3) when Defendant Lendsey pepper-sprayed him (id., ¶ 11).

Because Plaintiff’s Eighth Amendment claim is brought under § 1983, he must “establish

(1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused

by a person acting under the color of state law.” Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir.

2013). In their Motion to Dismiss, Defendants do not contest that they were acting under color of

state law. (See generally Doc. 21 at 12–14). Instead, they maintain that Plaintiff was not deprived

of a constitutional right. (Id. at 7–11). Notably, Defendants move to dismiss only two of Plaintiff’s

three excessive force claims—his fingers being bent backwards, and his hands being pulled

through the cuff-port. (Id.). Defendants do not address the alleged use of pepper-spray. (See id.).

“The Eighth Amendment prohibition on cruel and unusual punishment protects prisoners

from the unnecessary and wanton infliction of pain.” Rafferty v. Trumbull Cty., Ohio, 915 F.3d

1087, 1093 (6th Cir. 2019) (quoting Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th

Cir. 2013)). “[T]he Supreme Court set forth the standard for analyzing excessive force claims

under the Eighth Amendment: ‘whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.’” Combs v. Wilkinson, 315 F.3d

548, 556 (6th Cir. 2002) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). “To make out a

claim under the Eighth Amendment, the prisoner must satisfy both an objective and a subjective

component.” Rafferty, 915 F.3d at 1094 (quoting Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.

2011)).

“The subjective component focuses on the state of mind of the prison officials.” Williams,

631 F.3d at 383. Courts evaluate “whether force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id.

(quoting Hudson, 503 U.S. at 6). In making this inquiry, the Court should consider the need for

the use of force, the relationship between that need and the type and amount of the force used, the

threat reasonably perceived by the official, the extent of the injury inflicted, and any efforts made

to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (quoting Whitley v. Albers,

475 U.S. 312, 321 (1986)).

“The objective component requires the pain inflicted to be sufficiently serious.” Rafferty,

915 F.3d at 1094 (citing Williams, 631 F.3d 383). This inquiry is “contextual and responsive to

‘contemporary standards of decency.’” Hudson, 503 U.S. at 8 (quoting Estelle, 429 U.S. at 104).

“The seriousness of the injuries [is] not dispositive; as the Supreme Court has held, ‘[w]hen prison

officials maliciously and sadistically use force to cause harm, contemporary standards of decency

always are violated ... whether or not significant injury is evident.’” Williams, 631 F.3d at 383

(quoting Hudson, 503 U.S. at 9). But “[t]hat is not to say that every malevolent touch . . . gives

rise to a federal cause of action.” Hudson, 503 U.S. at 9. The Eighth Amendment does not protect

against “de minimis uses of physical force[.]” Rafferty, 915 F.3d at 1094 (quoting Hudson, 503

U.S. at 9–10).

Plaintiff alleges three separate incidents of excessive force. The Court evaluates each

incident separately to determine whether Plaintiff’s pleadings survive Defendants’ Motion to

Dismiss.

1. Fingers bent backwards

In Plaintiff’s first claim, he alleges Defendant Lendsey lifted him up off the floor and then

“took hold of [his] fingers [on his left hand] and began to bend them backward in an attempt to

inflict pain upon me.” (Doc. 20, ¶ 5). This was done while Plaintiff’s hands were cuffed behind

his back and he was not resisting. (Id., ¶¶ 3, 5). Plaintiff says he immediately felt the bone

dislocate and that his finger was broken. (Id., ¶ 5). Soon after, he was in pain, his hand was

swollen, and he could not make a fist. (Id., ¶ 8). Plaintiff says the injury still ails him—he has

ongoing pain, his hand healed in the broken position, and he cannot make a tight fist. (Id., ¶ 13,

15, 16). The Undersigned concludes that Plaintiff has satisfied his pleading obligations for this

incident.

First, Plaintiff has sufficiently pled the subjective component. He alleges Defendant

Lendsey bent his fingers “in an attempt to inflict pain,” despite Plaintiff’s lack of resistance and

his hands being cuffed behind his back. (Id., ¶¶ 3, 5). Defendant Lendsey’s actions, if true, suggest

that the force used was unnecessary and was not applied in a good faith effort to maintain or restore

discipline, but rather to cause harm. At this stage, this is enough to establish Defendant Lendsey’s

culpable state of mind and satisfy the subjective component of this excessive force claim.

Defendants argue that Plaintiff’s pleadings are insufficient because he “does not allege that

force was used maliciously and sadistically for the purpose of causing harm . . . .” (Doc. 21 at 9).

They say exerted force was used to maintain and restore discipline. (Id.). While Plaintiff

acknowledges that he fell to the floor, which necessitated officers pick him up, Plaintiff’s claim is

that Defendant Lendsey used force beyond what was needed to restore discipline. Particularly,

Plaintiff says Defendant Lendsey intentionally hurt him when Plaintiff was not resisting and was

handcuffed. Essentially, Defendants dispute the facts. That is premature at this stage, and

Defendants’ argument fails.

Turning to the objective component, Plaintiff again has done enough. He says that as a

result of Defendant Lendsey bending his fingers back, he suffered a broken bone, his hand healed

improperly, he cannot make a tight fist, and he suffers ongoing pain. (Doc. 20, ¶¶ 5, 6, 8, 13, 15,

16). Construed in a light favorable to Plaintiff, this allegation is sufficiently serious to satisfy the

objective component of the excessive force claim.

Defendants respond that Plaintiff’s injury is de minimis. (Doc. 21 at 10). They say Plaintiff

acknowledges that an x-ray indicated there was no fracture and that his medical complaints are

unsupported. Again, Defendants contest facts. Despite acknowledging that an x-ray indicated his

finger was not broken (Doc. 20, ¶ 14), Plaintiff maintains his finger was broken throughout the

Amended Complaint. (Id., ¶¶ 5, 6, 13, 16). For purposes of a motion to dismiss, the Court takes

Plaintiff’s allegation of a broken finger as true. And a broken finger is not a de minimis injury.

See Bullocks v. Hale, No. 1:18-CV-288, 2019 WL 2233095, at *6 (S.D. Ohio May 23, 2019),

report and recommendation adopted as modified, 478 F. Supp. 3d 639 (S.D. Ohio 2020), aff’d,

No. 20-3428, 2021 WL 1578198 (6th Cir. Mar. 1, 2021) (stating that the plaintiff’s Eighth

Amendment claim was permitted to proceed beyond screening because he alleged a “permanent

injury” to his hand); Cleare v. Jenkins, No. 2:15-CV-2295, 2016 WL 3458193, at *4 (S.D. Ohio

June 24, 2016), report and recommendation adopted, No. 15-CV-2295, 2016 WL 4480660 (S.D.

Ohio Aug. 25, 2016) (noting that if the plaintiff amended his complaint to include allegations of

other corrections officers bending his wrist and hands while handcuffed to the breaking point, he

would state a claim upon which relief could be granted).

Defendants cite McDougald v. Erdos for the proposition that “allegations that plaintiff’s

arms, wrists and fingers were ‘bent excessively’ while forcibly escorted against his will was [sic]

insufficient as a matter of law to state an Eighth Amendment Claim.” (Doc. 21 at 10 (quoting

2018 WL 2388400 (S.D. Ohio May 25, 2018) report and recommendation adopted, No. 1:17-CV-

00464, 2018 WL 4573287 (S.D. Ohio Sept. 25, 2018))). But there are several notable differences

between the allegations in McDougald and those here. In McDougald, the plaintiff alleged that he

felt just “momentary pain” as a result of his arms, wrists, and fingers being bent during his escort

to receive a blood withdrawal. 2018 WL 2388400, at *3. Further, the only lasting injuries he

alleged were swelling and lacerations resulting from excessively tight handcuffs, not from the

bending of his wrists and fingers. Id. Conversely, Plaintiff alleges that the bending of his fingers

resulted in an instant dislocation and break of his finger, and that the effects of the injury are

ongoing. These differences warrant different results.

Finally, while the Undersigned understands this claim as only being against Defendant

Lendsey, to the extent Plaintiff seeks to state a claim against Defendant Tedesco for the bending

of his fingers backwards, that claim fails. Plaintiff does not allege that Defendant Tedesco bent

his fingers backwards nor that he possessed a culpable state of mind. Thus, Plaintiff fails to satisfy

both the subjective and objective prongs regarding Defendant Tedesco.

In sum, Plaintiff has stated an Eighth Amendment claim for excessive force against

Defendant Lendsey for bending Plaintiff’s fingers backwards. Plaintiff, at this stage, has

satisfactorily alleged that Defendant Lendsey had a culpable state of mind and inflicted sufficiently

serious harm.

2. Hands pulled through cuff-port

In Plaintiff’s second claim, he alleges Defendants Lendsey and Tedesco used excessive

force when they pulled his hands through a cuff-port. (Doc. 20, ¶ 6–7). Despite initially refusing

to give them his handcuffs, eventually Plaintiff “surrendered the handcuffs[.]” (Id.). Plaintiff says

Defendants hurt his wrists, and he says the incident resulted in swelling in his right thumb. (Id., ¶

6, 8). Defendants move to dismiss the claim because Plaintiff’s allegations do not satisfy the

subjective or objective components of an Eighth Amendment excessive force claim. (Doc. 21 at

7–11). The Undersigned agrees.

Plaintiff does not satisfy the subjective component. He makes no allegations regarding

Defendant Lendsey’s or Defendant Tedesco’s states of mind during this encounter. (See Doc. 20,

¶¶ 6–8). And upon evaluation, it appears the force Plaintiff alleges “was applied in a good faith

effort to maintain or restore discipline” not to “maliciously and sadistically” cause Plaintiff harm.

Williams, 631 F.3d at 383 (quoting Hudson, 503 U.S. at 6). Plaintiff’s version of events indicates

he refused to cooperate and allow Defendants to remove his handcuffs, which they presumptively

must do when returning him to his cell. Because Plaintiff refused to do so willingly, Defendants

used force to pull Plaintiff’s hands through the cuff-port to remove his handcuffs. Plaintiff does

not allege, and from his allegations the Undersigned does not find, that the force used was

disproportionate. Accordingly, the Undersigned concludes this use of force was in good faith and

not to maliciously harm Plaintiff. See Hudson, 503 U.S. at 7 (quoting Whitley v. Albers, 475 U.S.

312, 321 (1986) (listing factors to use to determine subjective component)).

Plaintiff also fails to establish the objective component. He says that while Defendants

were pulling his hands through the cuff-port, it hurt his wrists. (Doc. 20, ¶ 6). He later says the

thumb on his right hand was swollen. (Id., ¶ 8). Because the previous incident involved his left

hand, the Court construes this alleged harm to be a result of the cuff-port incident. So Plaintiff’s

alleged injury is that he suffered momentary pain and temporary swelling. Neither of these harms

are sufficiently serious as to go beyond “‘contemporary standards of decency.’” Hudson, 503 U.S.

at 8 (quoting Estelle, 429 U.S. at 104); see also Jones Bey v. Johnson, 248 Fed. App’x. 675, 677

(6th Cir. 2007) (finding that the plaintiff’s wrist injuries of pain and swelling were so slight that

even if true they are de minimis); Bullocks, 478 F. Supp. 3d 648 (S.D. Ohio 2020), aff’d, No. 20-

3428, 2021 WL 1578198 (6th Cir. Mar. 1, 2021) (finding swelling and bruising to be relatively

minor injuries that do not satisfy the objective prong for excessive force).

In sum, Plaintiff’s allegations regarding the cuff-port incident, even when construed in his

favor, fail to state a claim for excessive force under the Eighth Amendment. Accordingly, the

Undersigned RECOMMENDS dismissal of the claim.

3. Pepper-spray in isolated cell

In Plaintiff’s final excessive force claim, he alleges Defendant Lendsey put him in an

isolated cell, where he was pepper-sprayed and then forced to sleep with pepper spray on him and

with no water or belongings. (Doc. 20, ¶ 11). The Court construes Plaintiff’s allegation to be that

Defendant Lendsey pepper-sprayed him, although that is not entirely clear from his Amended

Complaint. See Haines, 404 U.S at 520 (stating that pro se complaints are held to “less stringent

standards”). Importantly, Defendants do not move to dismiss this claim; accordingly, it survives.

But even if Defendants’ Motion (Doc. 21) could be interpreted as applying to this claim, Plaintiff

has pled enough to satisfy the subjective and objective components of an excessive force claim.

Plaintiff satisfies the subjective component. He alleges Defendant Lendsey pepper-

sprayed him and left him in an isolated cell “to further punish[]” him. (Doc. 20, ¶ 11). Defendant

Lendsey’s actions, if true, suggest that the force used was unnecessary and was not applied in a

good faith effort to maintain or restore discipline, but rather to cause harm. See McDougald v.

Bear, No. 1:17-CV-124, 2017 WL 5178764, at *2 (S.D. Ohio Nov. 7, 2017), report and

recommendation adopted sub nom. McDougald v. Baer, No. 1:17CV124, 2017 WL 5990121 (S.D.

Ohio Dec. 4, 2017) (finding that plaintiff’s allegation that defendant pepper-sprayed his face at

close range when he was doing nothing wrong satisfied the subjective component of an excessive

force claim under the Eighth Amendment). At this stage, Plaintiff’s allegation is sufficient to

establish Defendant Lendsey’s culpable state of mind and thus satisfies the subjective component

of this excessive force claim.

Likewise, Plaintiff has sufficiently pled the objective component. He states he was forced

to sleep with pepper spray on him and he had no access to water or his belongings. This lack of

access to water or his belongings, presumptively made it difficult, if not impossible, for Plaintiff

to wash himself, or mitigate the effects of pepper spray. “The seriousness of the injuries are not

dispositive; as the Supreme Court has held, ‘[w]hen prison officials maliciously and sadistically

use force to cause harm, contemporary standards of decency always are violated ... whether or not

significant injury is evident.’” Williams, 631 F.3d at 383 (quoting Hudson, 503 U.S. at 9). Among

these unnecessary and wanton inflictions of pain, are those totally without penological

justification. Rafferty, 915 F.3d at 1094 (quoting Rhodes v. Chapman, 452 U.S. 337, 346, 101

S.Ct. 2392, 69 L.Ed.2d 59 (1981)).

When construed in a light favorable to Plaintiff, the allegation is that Defendant Lendsey

pepper-sprayed him while he was in an isolated cell. If Plaintiff was confined within a cell, it is

difficult to imagine what good-faith need to maintain order would be served by pepper-spraying

him. On its face, the allegation has no penological justification. Rather, it appears it was

unnecessary infliction of pain. This violates “contemporary standards of decency,” and thus the

allegation is sufficiently serious as to satisfy the objective component of an excessive force claim.

In sum, Plaintiff has stated an Eighth Amendment claim for excessive force against

Defendant Lendsey for pepper-spraying him and leaving him in an isolated cell overnight covered

in pepper-spray with no water or belongings. Plaintiff, at this stage, has satisfactorily alleged that

Defendant Lendsey had a culpable state of mind and inflicted sufficiently serious harm.

*****

All told, Plaintiff has successfully stated two excessive force claims, but failed to state

another. Plaintiff’s allegations against Defendants Lendsey and Tedesco for pulling his hands

through the cuff-port fails to state a claim. Accordingly, it is RECOMMENDED that Defendants’

Motion to Dismiss (Doc. 21) regarding the cuff-port incident be GRANTED. This is the only

allegation against Defendant Tedesco, and thus it is recommended that he be terminated from the

case. But Plaintiff has stated two Eighth Amendment claims for excessive force against Defendant

Lendsey for bending his fingers backwards and pepper-spraying him. Because Defendant Lendsey

asserts qualified immunity, the analysis is not over.

D. Qualified Immunity

The doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances

two important interests—the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Id.

Courts use a two-prong test to resolve claims of qualified immunity. Martin v. City of

Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013) (citing Austin v. Redford Twp. Police Dep’t,

690 F.3d 490, 496 (6th Cir. 2012)). First, a Court must determine if “the facts alleged make out a

violation of a constitutional right.” Id. Second, a Court must determine whether “the right at issue

was ‘clearly established’ when the event occurred such that a reasonable officer would have known

that his conduct” constituted a constitutional violation. Id.

Defendants raise the defense of qualified immunity for Plaintiff’s claims that Defendant

Lendsey bent his fingers backwards and that Defendants Lendsey and Tedesco pulled his hands

through the cuff-port. They argue, that even if Plaintiff establishes a constitutional violation,

Defendants did not violate a clearly established right. Thus, they are entitled to qualified

immunity. (Doc. 21 at 14). Notably, they do not argue qualified immunity for the pepper-spray

incident.

The Undersigned has already concluded that Plaintiff failed to state a constitutional claim

for the cuff-port incident. Regarding the injury to Plaintiff’s finger, Defendant Lendsey argues

that even if there was a constitutional right, it was not clearly established. He says “any reasonable

official in [his] position would understand that applying de minimis force to restore discipline to

an insubordinate inmate is not a constitutional violation.” (Doc. 21 at 14). But, taking Plaintiff’s

allegations as true, Defendant Lendsey intentionally bent his fingers back to the point of breaking

a bone despite Plaintiff not resisting and while his hands were cuffed behind his back. (Doc. 20,

¶¶ 3, 5). As already explained, Plaintiff has pled more than a de minimis injury. Because

Defendant Lendsey’s qualified immunity defense relies on Plaintiff’s injury being de minimis, it

lacks merit.

Further, the Undersigned finds that when taking Plaintiff’s allegations as true, he has

alleged a violation of a clearly established right. It is sufficiently established that it would be

unconstitutional to intentionally cause pain by bending to the point of breaking Plaintiff’s fingers

when he is not resisting and is in handcuffs. See Manley v. Hughes, No. 18-CV-1431, 2019 WL

7343250, at *5 (N.D. Ohio Dec. 31, 2019) (“[A]ny reasonable officer would know that

intentionally grabbing an inmate’s finger—such that it causes a significant injury—while his hands

were handcuffed behind his back, is a violation of the inmate’s constitutional rights.”).

Finally, the Undersigned notes that Defendant Lendsey does not raise the defense of

qualified immunity for Plaintiff’s claim regarding pepper spray. (See Doc. 21 at 12–14). Because

the Undersigned determined Plaintiff’s allegations successfully state a claim and Defendant

Lendsey does not raise qualified immunity with respect to the claim, it survives the Motion to

Dismiss (Doc. 21). But, even if qualified immunity was raised for the claim, it is clearly

established that spraying a prisoner with pepper spray solely for the purpose of punishment violates

a prisoner’s right to be free from excessive force. See Batson v. Hoover, 355 F. Supp. 3d 604, 615

(E.D. Mich. 2018), aff’d, 788 F. App’x 1017 (6th Cir. 2019) (finding that the unprovoked use of

pepper spray on a prisoner not causing any disturbance and with no disciplinary justification

violates a clearly established right); Bear, 2017 WL 5178764, at *3 (denying a request for qualified

immunity because pepper-spraying a compliant prisoner violates clearly established law).

In sum, Defendant Lendsey’s qualified immunity argument fails at this stage. It is

recommended that Plaintiff’s Eighth Amendment claims against him regarding the finger injury

incident and the pepper spray incident be allowed to proceed.

IV. CONCLUSION

For the above reasons, it is RECOMMENDED that Defendants’ Motion to Dismiss

(Doc. 21) be GRANTED IN PART and DENIED IN PART. It is RECOMMENDED that any

claims Plaintiff asserts against Defendants Lendsey and Tedesco in their official capacity be

DISMISSED. It is RECOMMENDED that Plaintiff’s Fourteenth Amendment claims against

Defendants Lendsey and Tedesco be DISMISSED. It is RECOMMENDED that Plaintiff’s

Eighth Amendment claim against Defendants Lensdsey and Tedesco regarding the cuff-port

incident be DISMISSED. It is RECOMMENDED that Plaintiff’s Eighth Amendment claims

against Defendant Lendsey regarding the finger injury incident and the pepper spray incident be

allowed to proceed.

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A District Judge of this Court shall make a de novo determination

of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence, or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: September 23, 2022 s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE