Granderson v. Graulau

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

JOSHUA GRANDERSON )

)

v. ) Case No. 3:23-cv-01031

)

MICHAEL GRAULAU )

TO: Honorable Waverly D. Crenshaw, Jr., United States District Judge

R E P O R T A N D R E C O M E N D A T I O N

By Memorandum Opinion and Order entered April 30, 2024 (Docket Entry No. 11), this

pro se civil rights action was referred to the Magistrate Judge for pretrial proceedings under 28

U.S.C. §§ 636(b)(1)(A) and (B), 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 of Defendant

Michael Graulau (Docket Entry No. 23). Plaintiff has not responded to the motion. For the

reasons set out below, the undersigned respectfully recommends that the motion be GRANTED

and this action be DISMISSED.

I. BACKGROUND

Joshua Granderson (“Plaintiff”) filed this pro se lawsuit on October 2, 2023, seeking

damages under 42 U.S.C. § 1983 for alleged violations of his federal constitutional rights. See

Complaint (Docket Entry No. 1). Plaintiff’s lawsuit is based upon events that occurred when he

was a pretrial detainee in the custody of the Davidson County, Tennessee Sheriff’s Office

(“DCSO”) and was confined at the Downtown Detention Center (“DDC”) in Nashville,

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Tennessee. Plaintiff has since been released from custody and resides in Nashville. See Notice

of Change of Address (Docket Entry No. 12).

In his complaint and a supplement (Docket Entry No. 4), Plaintiff alleges that, on March

31, 2023, he was handcuffed in his cell and sitting on his bed in his boxer short when he was

instructed by officers to get up and come to the door to have the handcuffs removed. He asserts

that he explained to officers that he did not want to get up because he felt dizzy. Plaintiff

contends that Lt. Michael Graulau (“Graulau” or “Defendant”) then sprayed a chemical spray

called “cell buster” at his face through the pie-flap opening in the cell door for 2-3 seconds.

Plaintiff alleges that no warning was given to him prior to the use of the chemical spray and that

the spray caused his eyes to feel frozen shut and caused extreme burning of his eyes and face.

Plaintiff subsequently submitted to having his handcuffs removed, was taken to see the medical

staff, and was returned to his cell. He alleges that he posed no threat of harm at the time of the

incident and that the use of the chemical spray against him was unnecessary and excessive and

that it also was not in compliance with DSCO policy about use of the spray, which does not

permit it to be sprayed in an inmate’s face.

Upon initial review of the complaint under 28 U.S.C. §§ 1915(A)(b) and 1915(e)(2), the

Court permitted the lawsuit to proceed on a Fourteenth Amendment excessive force claim

against Graulau in his individual capacity but dismissed Plaintiff’s official capacity claims

against Graulau and the Davidson County Sheriff and dismissed Plaintiff’s municipal liability

claim against the Metropolitan Government of Nashville and Davidson County. (Docket Entry

No. 11 at 6-7.) After Defendant Graulau filed an answer (Docket Entry No. 18), a scheduling

order was entered that provided for a period of discovery and pretrial activity in the action.

(Docket Entry No. 19.) There are no motions pending in the case other than Defendant’s motion

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for summary judgment. A trial has not yet been scheduled in the case pending resolution of the

instant motion for summary judgment.

II. MOTION FOR SUMMARY JUDGMENT

In accordance with the scheduling order deadlines, Defendant Graulau filed the pending

motion for summary judgment on February 27, 2025. Defendant supports his motion with: (1)

a statement of undisputed material facts (Docket Entry No. 25); (2) his own declaration (Docket

Entry No. 27) and the declaration of DCSO Classification Manager Beth Gentry (Docket Entry

No. 26); (3) a copy of institutional video footage of the incident (Docket Entry No. 32); (4)

Plaintiff’s deposition transcript (Docket Entry No. 23-9); and, (5) copies of several DCSO

institutional records, reports, and policies (Docket Entry Nos. 23-1 through 23-8).

Defendant acknowledges that an incident involving Plaintiff and officers at the DDC

occurred on March 31, 2023, during which Defendant deployed a short burst of a chemical spray

into Plaintiff’s cell. However, contrary to Plaintiff’s contention that the use of the chemical

spray was unwarranted, Defendant asserts that the undisputed facts show that Plaintiff, who was

in the Restrictive Housing Unit under a disciplinary status at the time, had been non-compliant,

combative, and threatening to officers during and after a search of his cell that preceded the

incident and that he was left in his cell in handcuffs because of his threatening behavior toward

the officers. Defendant maintains that the undisputed facts show that, over the course of the next

several hours, Plaintiff was monitored and asked by officers on multiple occasions to approach

the pie-flap opening of his cell door to have the handcuffs removed but refused the officer’s

directives. Defendant contends that it eventually became necessary to remove Plaintiff’s

handcuffs and that the chemical spray was used after Plaintiff refused a final directive to permit

his handcuffs to be removed. Defendant further contends that the use of the chemical spray was

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necessary under the circumstances, was the safest method of gaining Plaintiff’s compliance, and

was used in a limited and controlled manner that gained Plaintiff’s compliance but caused him to

suffer minimal harm. In addition to attacking the merits of Plaintiff’s claim, Defendant raises the

affirmative defense of qualified immunity.

Plaintiff was notified of the motion, informed of the need to respond, and given an

extended deadline of April 4, 2025, to file a response. Order entered March 14, 2025 (Docket

Entry No. 33). Plaintiff was specifically warned that his failure to file a timely response could

result in the dismissal of the action. Despite being given more time to file a response than the

twenty-one day response time that is provided for by the Local Rules, Plaintiff has not filed a

response of any kind to the motion.

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 (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 (1986).

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. Once the moving party has presented evidence sufficient to support a motion for

summary judgment, the non-moving party must present significant probative evidence to support

the complaint. Goins v. Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). In considering whether

summary judgment is appropriate, the Court must “look beyond the pleadings and assess the

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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 (2000). The Court must view the evidence and all

inferences drawn from underlying facts in the light most favorable to the party opposing the

motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587 (1986);

Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir. 2001).

IV. ANALYSIS

A. Constitutional Standards

A claim brought under 42 U.S.C. § 1983 requires Plaintiff to show: (1) the deprivation of

a right secured by the Constitution or laws of the United States and (2) that the deprivation was

caused by a person acting under color of state law. Wurzelbacher v. Jones-Kelley, 675 F.3d 580,

583 (6th Cir. 2012) (citations omitted). In the instant case, Plaintiff’s claim arose while he was

held in custody as a pretrial detainee. The Fourteenth Amendment protects a pretrial detainee

from the use of excessive force that amounts to punishment. Kingsley v. Hendrickson, 576 U.S.

389, 396-97 (2015).

To succeed on a Fourteenth Amendment excessive force claim, a pretrial detainee must

show that an officer used force against him and that the conduct was “objectively unreasonable.”

Id. at 389. The inquiry is highly fact-dependent and must take into account the “perspective of a

reasonable officer on the scene, including what the officer knew at the time, not with the 20/20

vision of hindsight.” Id. Whether there was excessive force depends on whether the conduct was

objectively reasonable under the specific circumstances of the case. Considerations include (1)

“the relationship between the need for the use of force and the amount of force used”; (2) “the

extent of the plaintiff's injury”; (3) “any effort made by the officer to temper or to limit the

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amount of force”; (4) “the severity of the security problem at issue”; (5) “the threat reasonably

perceived by the officer”; and, (6) “whether the plaintiff was actively resisting.” Id. at 397.

B. Qualified Immunity

Qualified immunity protects government officials from civil damages “unless (1) they

violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was

‘clearly established at the time.’” Reich v. City of Elizabethtown, Ky., 945 F.3d 968, 977 (6th Cir.

2019) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). The doctrine of

qualified immunity “gives ample room for mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.” Id. at 978 (internal quotations omitted)

(citing Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)). Once raised by the

defendant, the plaintiff bears the burden to show qualified immunity does not apply. Id.; see

also Gambrel v. Knox Cty, Kentucky, 25 F.4th 391, 399 (6th Cir. 2022). The Court may address

the prongs of the qualified immunity analysis in any order. Pearson v. Callahan, 555 U.S. 223,

236 (2009).

C. Plaintiff’s Claim

Although the allegations in Plaintiff’s pleadings were sufficient to permit the lawsuit to

survive initial frivolity review with respect to the claim against Defendant Graulau, Plaintiff has

not responded to the arguments for summary judgment made by Defendant. Plaintiff’s failure to

take action to defend against Defendant’s request for summary judgment can be viewed as an

indication that he does not oppose the dismissal of his lawsuit and/or that he has abandoned his

claims. Doe v. Bredesen, 507 F.3d 998, 1007-08 (6th Cir. 2007) (affirming the district court's

conclusion that the plaintiff abandoned certain claims by failing to raise them in his brief

opposing the government's motion to dismiss); see also Scott v. State of Tennessee, 878 F.2d

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382, 1989 WL 72470 at *2 (6th Cir. 1989) (unpublished table decision) (“if a plaintiff fails to

respond or to otherwise oppose a defendant's motion, then the district court may deem the

plaintiff to have waived opposition to the motion.”).

Additionally, after review of the motion and the record, the Court finds that Defendant’s

unrebutted arguments are legally sound and require that the motion be granted. When a motion

for summary judgment is filed and properly supported under Rule 56, such as Defendant’s

motion is here, the non-moving party may not merely rest on the allegations contained in the

complaint, but must respond with affirmative evidence supporting his claims and establishing the

existence of genuine issues of material fact that requires that the action proceed to trial. Celotex

Corp., 477 U.S. at 323-24; see also Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th

Cir. 2003); Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002).

Plaintiff’s pro se status does not relieve him of this obligation, which is a 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 Court cannot supply

or assume facts supporting Plaintiff’s case and is not required to make legal arguments on his

behalf. Thompson v. A.J. Rose Mfg. Co., 208 F.3d 215, 2000 WL 302998 (6th Cir. 2000). See

also Bell v. Tennessee, 2012 WL 996560, *9 (E.D. Tenn. March 22, 2012) and Guarino v.

Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992) (“it seems to us utterly

inappropriate for the court to abandon its position of neutrality in favor of a role equivalent to

champion for the non-moving party: seeking out facts, developing legal theories, and finding

ways to defeat the motion."). Plaintiff has also not responded to Defendant’s statement of

undisputed material facts as required by Local Rule 56.01(f), which permits to the Court to rely

upon the facts set forth in the statement as the undisputed facts.

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When the defense of qualified immunity is asserted by a defendant, the plaintiff bears the

burden of overcoming the defense and affirmatively showing that the defendant is not entitled to

qualified immunity. Mosier v. Evans, 90 F.4th 541, 546 (6th Cir. 2024); McDonald, 814 F.3d at

812; Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013). Plaintiff’s failure to respond

to Defendant’s assertion of qualified immunity is itself a sufficient basis upon which to grant the

motion for summary judgment based on qualified immunity. Mosier v. Evans, 90 F.4th 541, 548

(6th Cir. 2024) (the defendant is entitled to qualified immunity because the plaintiff’s cursory

briefing makes no attempt to meet his burden of showing that the defendant violated his clearly

established rights); Winter v. City of Westlake, Ohio, 2018 WL 838283, at *9 (N.D. Ohio Feb.

13, 2018) (“Having moved for qualified immunity, Defendants have raised the defense and

Plaintiffs’ failure to respond militates in favor of judgment for Defendants since Plaintiffs have

not met their burden.”).

Furthermore, given the undisputed facts that are before the Court, there is insufficient

evidence to support a reasonable conclusion that a constitutional violation occurred. When a

plaintiff fails to point to evidence that is sufficient to support a finding that a constitutional

violation occurred, he has necessarily failed to carry his burden of defeating a qualified

immunity defense. Doe v. Miami Univ., 882 F.3d 579, 604 (6th Cir. 2018) (“If either prong is not

met, then the government officer is entitled to qualified immunity.”); Chappell v. City of

Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (“If plaintiff fails to show either that a

constitutional right was violated or that the right was clearly established, she will have failed to

carry her burden.”).

The mere fact that a measure of force was used against Plaintiff does not itself support a

claim that a constitutional violation occurred. Defendant presents undisputed evidence that

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Plaintiff was combative and verbally threatening toward officers on the day in question, which

required that Plaintiff be placed in his cell in handcuffs, and that he subsequently refused

multiple verbal orders from officers to permit his handcuffs to be removed. See Declaration of

Graulau (Docket Entry No. 27); Statement of Undisputed Material Facts (Docket Entry No. 25)

at ¶¶ 2-14. Defendant also sets forth undisputed evidence that the chemical spray was used in a

controlled and limited manner in an attempt to gain Plaintiff’s compliance with verbal orders and

was used as an alternative to a physical interaction between officers and Plaintiff to remove the

handcuffs. Id. Finally, there is no evidence that Defendant Graulau acted in a manner that

was objectively excessive or unreasonable given the circumstances or that the use of the

chemical spray was intended as punishment or was gratuitous. Instead, the only evidence

before the Court is that Defendant Graulau’s actions caused only minor harm to Plaintiff and

were objectively reasonable and necessary under the circumstances and were consistent with the

need to preserve internal order and discipline and maintain institutional security at the DDC.

See Kingsley, 576 U.S. at 397; Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979).

The Court has reviewed this evidence and finds that no reasonable jury could find in

Plaintiff’s favor at trial based on this evidence. Plaintiff is not entitled to a trial on his claim

merely on the basis of the unsupported allegations of his complaint. Goins, supra. Plaintiff must

buttress his allegations with actual evidence that supports his claim and that would allow a

reasonable jury to find in his favor. Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th

Cir. 2003). He has not done so. Based on the evidence that is before the Court, no reasonable

jury could find that Defendant Graulau acted in a manner that was inconsistent with Plaintiff’s

constitutional rights as a pretrial detainee. See Kingsley, supra.

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RECOMMENDATION

For the reasons set out above, it is respectfully RECOMMENDED that the motion for

summary judgment (Docket Entry No. 23) of Defendant Michael Graulau be GRANTED and

that this action be DISMISSED WITH PREUDICE.

ANY OBJECTIONS to this Report and Recommendation must be filed within fourteen

(14) days of service of this Report and Recommendation and must state with particularity the

specific portions of this Report and Recommendation to which objection is made. See Rule

72(b)(2) of the Federal Rules of Civil Procedure and Local Rule 72.02(a). 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

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Any response to the objections

must be filed within fourteen (14) days after service of objections. See Federal Rule 72(b)(2) and

Local Rule 72.02(b).

Respectfully submitted,

United States Magistrate Judge

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