Lockett v. Suardini

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0181p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

JAMES A. LOCKETT,

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No. 06-2392

v.

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JOSEPH SUARDINI, HARRY IRVINE, NANCY -

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Defendants-Appellees. N

BLACKFORD, and MARYROSE GALLOWAY,

Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 05-00187—R. Allan Edgar, District Judge.

Argued: March 14, 2008

Decided and Filed: May 14, 2008

Before: MOORE, GILMAN, and SUTTON, Circuit Judges.

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COUNSEL

ARGUED: Kari L. Low, DICKINSON WRIGHT, Bloomfield Hills, Michigan, for Appellant.

Linda Olivieri, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

ON BRIEF: Kari L. Low, DICKINSON WRIGHT, Bloomfield Hills, Michigan, for Appellant.

Linda Olivieri, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellees.

James A. Lockett, Marquette, Michigan, pro se.

GILMAN, J., delivered the opinion of the court, in which SUTTON, J., joined. MOORE,

J. (pp. 11-12), delivered a separate opinion concurring in part and dissenting in part.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. James A. Lockett, a prisoner at the Alger

Maximum Correctional Facility in Michigan, is serving a sentence of 7 to 15 years for assault.

During a misconduct hearing at the prison, Lockett became angry and used crude language to insult

the hearing officer. He claims that two prison guards responded by forcibly removing him from the

hearing room and assaulting him, thereby causing him to suffer minor cuts and lacerations. He

further alleges that two prison nurses refused to treat his injuries.

Lockett subsequently filed a pro se complaint pursuant to 42 U.S.C. § 1983 against the two

prison guards and the two nurses employed by the Michigan Department of Corrections (MDOC),

1

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alleging that his First Amendment right of free speech was violated when the prison guards attacked

him and the nurses denied him medical treatment in retaliation for insulting the hearing officer. He

also claims that his Eighth Amendment right to be free from cruel and unusual punishment was

violated by the prison guards, who allegedly used excessive force against him, and by the nurses,

who purportedly denied him medical treatment for his injuries. The prison guards, on the other

hand, contend that Lockett became belligerent and threatening upon leaving the hearing and that

they used reasonable force to control him. Furthermore, Lockett’s medical records showed that one

of the nurse-defendants was never contacted to see him following the incident. The other nurse, who

saw him twice within 24 hours of the incident, attested that she did not observe any injuries, nor did

he tell her of any.

For the reasons set forth below, we AFFIRM the judgment of the district court, which

granted summary judgment in favor of all the defendants.

I. BACKGROUND

A. Factual background

On July 21, 2004, Lockett attended a prison administrative hearing to face charges of

misconduct that had been filed against him by a prison officer. The nature of that misconduct is not

described in the record and is not relevant to this appeal. During the hearing, Lockett became angry

with Hearing Officer L. Maki. Lockett stated in his affidavit that his anger was “not due to the

misconduct report against [him],” which he considered to be false, but because he believed that Maki

had “conspired with various staff officers in regards to the misconduct report,” was “in cahoots”

with the prison officer who had filed the misconduct charges, and ran a “kangaroo court.” “I felt

a need to tell this hearings officer exact[ly] how I felt, and I called this hearings officer ‘a foul and

corrupted bitch,’ expressing (verbally) the way I felt towards this H.O.” In his complaint, he

explained, “I just wanted Hearing Officer L. Maki . . . to know how I felt[].” Maki immediately

terminated the hearing and instructed the guards to take Lockett back to his cell. The parties do not

dispute the foregoing facts, but tell differing stories about what happened next.

Lockett claims that Joseph Suardini, one of the two prison guards (known as resident unit

officers, or RUOs) who had accompanied him to the hearing, responded to Lockett’s comment by

forcing Lockett out of his chair, shoving him out of the hearing room, and attempting to throw him

head first down a flight of stairs. Suardini did not succeed in throwing him down the stairs, Lockett

contends, only because the second RUO, Harry Irvine, was holding onto the restraint straps attached

to Lockett’s handcuffs. According to Lockett, Suardini then assaulted him by trying to push

Lockett’s head into a wall, attempting to choke him, and grabbing Lockett by the throat, all of which

caused Lockett to suffer what he described as “minor lacerations and cuts.” Lockett admits that he

then bit Suardini’s hand, but claims that he did so only in self-defense. RUO Irvine allegedly joined

in the assault by bending back Lockett’s first two fingers, which Lockett believed was an attempt

to break them. Lockett claims that the assault continued as Irvine and Suardini took him back to his

cell, where he says that he was placed in soft restraints.

Robert Palmer, a fellow inmate, submitted an affidavit stating that he witnessed the

altercation outside of the hearing room while cleaning a nearby common area. He attests that he

observed Suardini and Irvine escorting Lockett from the disciplinary hearing, and that he saw

Suardini grab Lockett’s jaw and face, “pull” Lockett down the stairs, and “slam” Lockett into the

wall. Palmer also states that Irvine was pulling Lockett’s handcuff strap “using Extreme Force,” and

that “[a]t NO TIME prior to this altercation had resident Lockett . . . made any aggressive motions

toward staff.”

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Irvine and Suardini tell a substantially different version of the altercation. They contend that,

as they removed Lockett from the hearing room following his comment to Maki, Lockett lunged

toward Maki. This caused Suardini to grab Lockett’s restraints. Suardini and Irvine further claim

that, upon leaving the hearing room, Lockett became disruptive and yelled at Suardini: “If I could

get these cuffs off I’d kill you.” Lockett’s complaint and affidavit do not address whether he made

such a threat, although he denies that he had lunged toward Maki. The officers also assert that, as

they escorted Lockett down a flight of stairs toward his cell, Lockett kicked Suardini, tried to break

free, and got a hold of and twisted Suardini’s fingers. Suardini’s affidavit states that he tried to

restrain Lockett by putting his arm around Lockett and wrestling Lockett to the floor until additional

help arrived.

The incident reports filed by Irvine and Suardini further recount that they, with help from

other officers, restrained Lockett against a wall and that Lockett fell to the floor in the process. At

that point, Lockett bit Suardini’s hand and continued to struggle against the officers. Irvine,

Suardini, and the other officers finally returned Lockett to his cell, where they say that Lockett

refused to let them remove his restraints. Suardini denies that he assaulted and tried to choke

Lockett. He also claims that he and Irvine were taken to a hospital to receive treatment for

unspecified injuries that they sustained in the altercation. The incident reports and affidavits filed

by Irvine and Suardini are consistent with each other and with the statements filed by other prison

officers who witnessed the altercation and assisted in restraining Lockett.

Lockett asserted in his complaint that the assault caused “open wounds” on both of his hands,

his forehead, and knee, and that these injuries caused him “extreme pain.” But in his affidavit

responding to MDOC’s motion for summary judgment, Lockett described these injuries as “minor

lacerations and cuts on his forehead, left knee and both wrists, with dryed-up [sic] blood.” Palmer’s

affidavit makes no mention of Lockett’s injuries.

The parties also tell different stories regarding whether Lockett was denied medical treatment

for the injuries he sustained in the above-described incident. Lockett asserts in his complaint that,

following the alleged assault, he informed Nurse Nancy Blackford of his injuries. He claims that

Blackford refused to treat him. The next day, he purportedly showed his injuries to a second nurse,

Maryrose Galloway, who he alleges also refused to treat him. Palmer’s affidavit does not make

reference to any treatment that Lockett may or may not have received for his purported injuries.

Blackford, however, submitted an affidavit stating that, following the July 21, 2004 incident,

she did not receive a call for medical assistance for Lockett and that she had no contact with him.

Her later review of Lockett’s medical chart showed that his restraints were checked four times—two

of which were by Galloway—in the 24 hours following the incident, and that no complaints of

injuries or pain were recorded. He was also scheduled to be seen by a nurse on July 26, 2004, but

for some unknown reason he did not keep the appointment. Lockett’s medical records also revealed

that he complained of numbness and tingling in his right and left thumbs on August 6, 2004, but that

a subsequent x-ray was negative for both dislocation and fracture.

Blackford’s account is consistent with the affidavit of Galloway, who first checked Lockett’s

restraints just before midnight on July 21, 2004. Lockett was standing at his cell door and

immediately began raising his voice as she approached him, complaining about his medications and

his inability to get his T-shirt off, which he had pulled over his head and down to his forearms. He

was apparently unable to remove the T-shirt completely because of his restraints. She observed that

it “would be seemingly impossible for Lockett to have gotten his T-shirt off as far as he had with

the ‘injuries’ he was claiming.” Galloway then gave Lockett his medications. But she “observed

no signs of injury, much less . . . the injuries Lockett is claiming, and he made no mention of

anything regarding [a] staff assault or injuries.” Galloway checked Lockett’s restraints again early

the next morning. According to Galloway’s affidavit, he was “laying on his bunk facing the wall

No. 06-2392 Lockett v. Suardini, et al. Page 4

in no distress. Lockett looked at me when I asked him if he was okay, stated ‘no’ in a sarcastic tone,

then turned his back to me and would not answer any further. He was in no distress at that time.”

Lockett was subsequently charged with assault as a result of the July 21, 2004 incident. An

administrative hearing on the charge was held in early August of 2004. According to the hearing

officer’s report, Lockett refused to attend and the hearing was held without him. The hearing officer

viewed a surveillance video that captured the altercation outside of the hearing room and described

what he saw: “At the top of the stairs, one officer is seen contorting his body as he goes down steps.

There appears to be a scuffle at the bottom of the stairs and the prisoner is taken back across the hall

to his cell.” The hearing officer concluded, based on the incident report, Irvine’s and Suardini’s

statements, and the video, that Lockett was guilty of assault. He found that

[t]he prisoner became disruptive as he was being escorted; the officer would not be

moving and trying to control the prisoner’s movements unless [Lockett] had moved

first. Then, at the bottom of the stairs there appears to have been a struggle between

the two officers and this prisoner. The movements of staff are consistent with being

kicked or bitten. I find that the prisoner made non consensual contact with the

officer. The comments to [the officer]—that [Lockett] would kill the officer—are

consistent with the fact that [Lockett] deliberately and intentionally kicked and bit

[the officer].

Lockett’s punishment was 30 days of lost privileges. In addition, Lockett acknowledges that he lost

good-time credits for the month following his disciplinary conviction for the assault, as mandated

by Michigan law. See Mich. Comp. Laws § 800.33(6).

B. Procedural background

On July 22, 2004, one day after the incident, Lockett filed a grievance against Nurses

Blackford and Galloway for refusing to treat his injuries and deliberately causing him additional

pain and suffering. He also filed a separate grievance against RUOs Irvine and Suardini for assault,

battery, and cruel and unusual punishment. The resolution of those grievances is unclear from the

record, but MDOC does not argue that Lockett has failed to exhaust his administrative remedies.

Lockett then filed a pro se complaint pursuant to 42 U.S.C. § 1983 against Blackford, Galloway,

Irvine, and Suardini in the district court in early August of 2005. In it, he alleged that the defendants

had violated (1) his First Amendment rights by attacking him and denying him medical treatment

in retaliation for his comment to Hearing Officer Maki, (2) his Eighth Amendment right to be free

of excessive force when restraining him, and (3) his Eighth Amendment right to be free from cruel

and unusual punishment by denying him medical treatment. MDOC, on behalf of the individual

defendants, subsequently filed a motion for summary judgment, to which Lockett responded

(without supporting documentation) by repeating the allegations contained in his complaint and

disputing MDOC’s version of events.

The magistrate judge assigned to the case issued a Report and Recommendation (R&R)

granting MDOC’s motion, finding that (1) Lockett’s § 1983 action was barred pursuant to Heck v.

Humphrey, 512 U.S. 477 (1994), because his allegations necessarily implied the invalidity of his

disciplinary conviction for the July 21, 2004 assault, (2) RUOs Irvine and Suardini did not violate

Lockett’s Eighth Amendment rights because they used a reasonable, rather than an excessive,

amount of force to control Lockett, (3) Nurses Blackford and Galloway did not violate his Eighth

Amendment rights in failing to treat his injuries because Lockett failed to show the existence of a

serious medical need, (4) Lockett’s First Amendment claim failed because his comment to the

hearing officer was not protected speech, and (5) the individual defendants were entitled to qualified

immunity because Lockett failed to show that they violated any of his constitutional rights. Lockett

responded to the R&R by filing his own affidavit and that of Robert Palmer.

No. 06-2392 Lockett v. Suardini, et al. Page 5

Twenty days later, the district court adopted the R&R over Lockett’s objections. Lockett has

timely appealed with the assistance of counsel.

II. ANALYSIS

A. Standard of review

We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,

Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of

material fact exists and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the district court must

construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

B. Applicability of Heck’s favorable-termination bar to Lockett’s § 1983 claims

Section 1983 provides a cause of action for “the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws” by any person acting “under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory.” 42 U.S.C. § 1983. The Supreme

Court, however, has limited the availability of § 1983 actions for prisoners in a series of cases, the

most pertinent of which is Heck v. Humphrey, 512 U.S. 477 (1994). Our court recently explained

the bar that Heck places on § 1983 suits brought by prisoners:

Federal courts have long recognized the potential for prisoners to evade the habeas

exhaustion requirements by challenging the duration of their confinement under

42 U.S.C. § 1983, rather than by filing habeas petitions. Consequently, the Supreme

Court recognized a “habeas exception” to § 1983 in Preiser v. Rodriguez,

411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), when it held that suits

challenging the fact or duration of confinement fall within the traditional scope of

habeas corpus and accordingly are not cognizable under § 1983. The Court

expanded the habeas exception to § 1983 in Heck v. Humphrey, 512 U.S. 477, 114

S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117

S. Ct. 1584, 137 L. Ed. 2d 906 (1997). In Heck, the Court determined that, unless

a prisoner’s conviction or sentence were previously set aside by a separate legal or

administrative action, § 1983 would not countenance claims for damages if a finding

for the plaintiff would necessarily invalidate a conviction or sentence. And in

Balisok, the Court concluded that a prisoner cannot use § 1983 to challenge prison

procedures employed to deprive him of good-time credits when the . . . procedural

defect alleged would, if established, “necessarily imply the invalidity of the

punishment imposed.” 520 U.S. at 648, 117 S. Sct. at 1584.

Thomas v. Eby, 481 F.3d 434, 438 (6th Cir. 2007) (emphasis in original).

MDOC initially argued that Heck bars both Lockett’s First Amendment free-speech claim

and his Eighth Amendment excessive-force claim, but later conceded at oral argument that his

Eighth Amendment excessive-force claim is not barred by Heck because Lockett’s disruptive and

threatening behavior upon leaving the hearing room would not justify the allegedly excessive force

that Lockett was subjected to, even if Lockett was in fact guilty of assault. See Huey v. Stine,

230 F.3d 226, 230 (6th Cir. 2000) (“In general, the federal courts hold that Eighth Amendment

claims do not run afoul of Heck because the question of the degree of force used by a police or

corrections officer is analytically distinct from the question whether the plaintiff violated the law.”

(citing Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir.1997) (noting that “it is possible for a

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finding that [the defendant] was resisting arrest to coexist with a finding that the police used

excessive force to subdue him”))), abrogated on other grounds by Muhammad v. Close, 540 U.S.

749 (2000). The same reasoning applies to Lockett’s claim that the nurses were deliberately

indifferent to his injuries. That claim could hypothetically succeed, regardless of whether the nurses

knew of the altercation or Lockett’s comment to the hearing officer, and notwithstanding Lockett’s

actual guilt in assaulting the RUOs.

Thus the only remaining question under Heck is whether Lockett’s First Amendment claim

necessarily implies the invalidity of his misconduct conviction for assault. Lockett challenges

MDOC’s contention that his claims are barred by Heck and, alternatively, argues that, if Heck

applies to any of his claims, this court should nevertheless allow those claims to go forward under

an exception to Heck that was articulated by the Second Circuit in Peralta v. Vasquez, 467 F.3d 98,

105-06 (2d Cir. 2006) (holding that, if a prisoner “both agrees to and can successfully abandon once

and for all” a claim challenging the duration of his sentence as a precondition to maintaining his

§ 1983 claim—so that “his success in the § 1983 action would have no effect on the sanctions that

relate to the length of time he served in prison”—then the concern underlying Heck would not apply

and the claim would not be barred (emphasis in original)).

A successful § 1983 action on Lockett’s First Amendment claim would mean that his

comment to the hearing officer was protected speech and that the defendants had retaliated against

him for engaging in such speech. But such a finding would not necessarily imply the invalidity of

Lockett’s misconduct conviction for assault because Lockett could have unlawfully assaulted the

officers in the course of the altercation by using force beyond that necessary to defend himself, even

if the incident was precipitated by the officers’ own retaliatory conduct. “Where there is room for

the facts alleged by the plaintiff and the facts essential to the judgment of the state agency to

peacefully co-exist, the § 1983 must be allowed to go forward.” Woods v. Lozer, No. 3:05-1080,

2006 U.S. Dist. LEXIS 83785, at *30-31 (M.D. Tenn. Nov. 9, 2006) (citing Heck, 512 U.S. at 487).

Accordingly, we conclude that Lockett’s First Amendment retaliation claim is analytically distinct

from whether he was guilty of assault and therefore does not implicate Heck. And because of our

determination that none of Lockett’s claims are barred by Heck, we need not address his argument

that this court should recognize the Peralta exception to Heck’s favorable-termination bar.

C. The merits of Lockett’s First Amendment claims

A prisoner alleging retaliation for the exercise of a constitutional right must show that

(1) the plaintiff engaged in protected conduct; (2) an adverse action was taken

against the plaintiff that would deter a person of ordinary firmness from continuing

to engage in that conduct; and (3) there is a causal connection between elements one

and two—that is, the adverse action was motivated at least in part by the plaintiff's

protected conduct.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). Lockett admits that he called

Hearing Officer Maki a “foul and corrupted bitch.” The threshold question is therefore whether that

comment was “protected conduct” under the first prong of the Thaddeus-X test.

MDOC contends that Lockett’s comment was not protected because it constituted “insolent”

behavior in violation of MDOC’s disciplinary regulations. Lockett did not respond to this argument,

asserting instead that his speech was protected under the public-concern test. MDOC correctly notes

that whether the public-concern test determines the protection to be afforded a prisoner’s speech is

an open question in the Sixth Circuit. In Thaddeus-X, this court sitting en banc specifically refused

to make a “determination about the appropriateness of explicitly applying the public-concern

limitation to speech by prisoners.” Id. at 392. Nor do we need to decide that issue here, because the

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court held in Thaddeus-X that “if a prisoner violates a legitimate prison regulation, he is not engaged

in ‘protected conduct,’ and cannot proceed beyond step one” of the three-step retaliation analysis.

Id. at 394; see also Turner v. Safley, 482 U.S. 78, 89 (1987) (holding that a prison regulation that

“impinges on inmates’ constitutional rights” is nevertheless valid if that regulation “is reasonably

related to legitimate penological interests”).

MDOC Policy Directive No. 03.03.105 provides that “insolent” behavior is a “major

misconduct” violation. Mich. Dep’t of Corr. Pol’y Directive No. 03.03.105B, Attachment B: Major

Misconducts, at 3, http://www.michigan.gov/corrections (follow the “Publications and Information”

link, then follow the “Policy Directives” link) (Jan. 1, 2007); see also Scott v. Churchill, 377 F.3d

565, 567-68 (6th Cir. 2004) (analyzing the § 1983 claim of a Michigan state prisoner against whom

a prison officer filed an allegedly false major misconduct charge for “insolent” behavior); Denham v.

Shroad, 56 F. App’x 692, 693 (6th Cir. 2003) (addressing the § 1983 claim of a Michigan state

prisoner who was convicted of major misconduct for, among other things, “insolent” behavior).

Such behavior is defined as “[w]ords, actions, or other behavior which is intended to harass,

degrade, or cause alarm in an employee.” Mich. Dep’t of Corr. Pol’y Directive No. 03.03.105B,

Attachment B: Major Misconducts, at 3. Lockett’s comment that the hearing officer was “a foul and

corrupted bitch” was insulting, derogatory, and questioned her authority as well as the integrity of

the proceeding. It thus falls well within the definition of “insolence” under the MDOC Policy

Directive. Accordingly, Lockett’s First Amendment claim fails as a matter of law because his

comment to the hearing officer was not protected conduct under Thaddeus-X.

D. The merits of Lockett’s Eighth Amendment claims

1. Excessive force

Lockett next argues that RUOs Irvine and Suardini used excessive force, in violation of the

Eighth Amendment, when they restrained him following his July 21, 2004 hearing. MDOC does

not dispute that the RUOs used force against Lockett, but instead challenges Lockett’s claim that

the force used was excessive. The Eighth Amendment prohibits punishments that “involve the

unnecessary and wanton infliction of pain,” including inflictions of pain that “are totally without

penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (citations and internal

quotation marks omitted). This court has held that “in the prison context, good faith use of physical

force may be necessary to maintain prison security and discipline.” Williams v. Browman, 981 F.2d

901, 905 (6th Cir. 1992). The Supreme Court has explained that

[w]here a prison security measure is undertaken to resolve a disturbance . . . that

indisputably poses significant risks to the safety of inmates and prison staff, we think

the question whether the measure taken inflicted unnecessary and wanton pain and

suffering ultimately turns on 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.

Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (internal quotation marks omitted).

Furthermore, “the extent of injury suffered by an inmate is one factor that may suggest

‘whether the use of force could plausibly have been thought necessary in a particular situation, or

instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount

to a knowing willingness that it occur.’” Hudson v. McMillan, 503 U.S. 1, 7, 10 (1992) (holding that

the extent of the defendant’s injuries, including bruises, swelling, loosened teeth, and a cracked

dental plate, were sufficiently serious for his § 1983 claim to survive a motion to dismiss (quoting

Whitley, 475 U.S. at 321)). “The Eighth Amendment’s prohibition of cruel and unusual punishments

necessarily excludes from constitutional recognition de minimis uses of physical force, provided that

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the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10 (citations and

internal quotation marks omitted).

An “absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but

does not end it.” Id at 7. This analysis “must be carefully circumscribed to take into account the

nature of the prison setting in which the conduct occurs and to prevent a prison official’s conduct

from being subjected to unreasonable post hoc judicial second-guessing.” Parrish v. Johnson, 800

F.2d 600, 605 (6th Cir. 1986); see also Williams, 981 F.2d at 906 (“[A]ll the facts and circumstances

surrounding the application of force must be scrutinized and weighed.”).

Lockett does not dispute that he insulted the hearing officer, became “very angered and

upset” during the hearing, bit RUO Suardini’s hand while being escorted back to his cell, and

resisted the RUOs in response to their allegedly excessive use of force. Nor does he challenge

MDOC’s contention that he verbally threatened the RUOs outside of the hearing room. Although

his fellow prisoner attested that he did not see Lockett acting in an aggressive manner toward the

RUOs, Lockett’s undisputed conduct alone provided the RUOs with a good faith basis for using

force to control Lockett, restore discipline and order, and transport him back to his cell.

See Williams, 981 F.2d at 905-06.

Lockett’s own assertions indicate that a minimal amount of force was applied by the RUOs.

He stated that Suardini attempted, unsuccessfully, to throw him down the stairs and choke him, and

that both RUOs tried to push his face into the wall. In attempting to choke him, Lockett explained

that Suardini “missed my neck and throat, caught my mouth instead,” at which point Lockett “bit

him extremely good.” The RUOs, according to Lockett, were successful only in “snatch[ing]” him

out of his chair in the hearing room, “shov[ing]” him out of the hearing room, “grabb[ing]” Lockett

around the left jaw and throat, and bending back two of his fingers.

The degree of force, he asserted, was great enough to “almost” break his eyeglasses. But the

amount of force required to “almost” break a person’s eyeglasses is minimal. Shoving, grabbing,

and bending back two of Lockett’s fingers also required only minimal force and was reasonably

related to the need for forcibly bringing Lockett under control and returning him to his cell. This

conclusion is reinforced by the fact that Lockett, by his own account, suffered at best only “minor

lacerations and cuts,” and that undisputed evidence showed no dislocation or fracture in his hand.

See Johnson v. Unknown Coolman, 102 F. App’x 460, 461 (6th Cir. 2004) (denying a prisoner’s

excessive-force claim where the prison officers pushed him into his cell, pulled hard on his

restraints, hurt his wrists, and tried to bend his thumb back, all in a “legitimate attempt to return him

to his cell”); Williams v. Johnson, 55 F. App’x 736, 736-37 (6th Cir. 2003) (denying a prisoner’s

excessive-force claim where the prisoner was being argumentative and the prison officer grabbed

his arm and attempted to shove him into a closed door, which was determined to be a de minimis use

of force that was reasonably related to a security need).

Our dissenting colleague asserts that Johnson and Williams are distinguishable and that a

genuine issue of material fact exists regarding the degree of force used by the RUOs. We remain

persuaded, however, that these cases are on point and that the RUOs’ minimal application of force,

together with Lockett’s admittedly minor injuries, did not rise to a level that is sufficient to sustain

his Eighth Amendment claim.

2. Denial of medical treatment

Lockett’s final claim is that Nurses Blackford and Galloway denied him medical treatment

for his injuries, and that this denial constituted cruel and unusual punishment in violation of the

Eighth Amendment. The Supreme Court has held that a denial of medical treatment violates the

Eighth Amendment where two requirements are met. First, the medical need alleged must,

objectively, be “sufficiently serious” that the plaintiff faces a substantial risk of harm. Farmer v.

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Brennan, 511 U.S. 825, 834 (1994). The second requirement is that the prison official must have

a “sufficiently culpable state of mind” in denying medical treatment, which is one of deliberate

indifference. Id. (internal quotation marks omitted).

A medical need is sufficiently serious if it is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.” Blackmore v. Kalamazoo County, 390 F.3d 890, 897 (6th Cir.

2004) (emphasis in original) (explaining that the Sixth Circuit applies an “obviousness” standard

to determine whether a medical need is “sufficiently serious” to satisfy the test set forth in Farmer

as well as an “effect of delay in treatment” standard where the medical need is minor or

nonobvious). Where the claimed injury is minor or nonobvious, “the seriousness of a prisoner’s

medical needs may also be decided by the effect of a delay in treatment.” Id. (emphases and

internal quotation marks omitted). “Verifying medical evidence” is required in those cases to

“assess whether the delay caused a serious medical injury.” Id. at 898. Under the deliberate

indifference prong, “the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer,

511 U.S. at 837.

a. Objectively serious medical need

According to Lockett’s own affidavit, he suffered “minor lacerations and cuts” and soreness

in two of the fingers on his right hand. Nurse Galloway attested that when she twice checked on him

within 24 hours after the altercation, he did not display any injuries. In addition, a subsequent

examination of his hand revealed no fracture or dislocation in his fingers. Lockett’s affidavit,

submitted after Galloway’s, does not dispute the foregoing factual assertions, and he did not submit

any verifying medical evidence relating to the effect of not receiving treatment.

Lockett’s allegations of minor cuts and lacerations do not support his claim that his injuries

were, objectively speaking, sufficiently serious to necessitate medical treatment. See Blackmore,

390 F.3d at 898 (citing cases involving nonobvious and minor injuries that did not support Eighth

Amendment claims, including minor cuts and bruises resulting from a glass splinter that required

neither stitches nor painkillers and a knee injury for which it was “merely preferable” that the

prisoner receive treatment). The claimed seriousness of his injuries and any adverse effect from not

receiving immediate medical attention is further undermined by the undisputed fact that Lockett

failed to keep an appointment at the medical clinic five days after the incident. Thus, even accepting

Lockett’s own allegations of injury as true, he has failed to create a genuine issue of material fact

regarding the severity of his injuries.

b. Subjectively culpable state of mind

Lockett has also failed to satisfy the second requirement for his denial-of-medical-treatment

claim—deliberate indifference on the part of either Blackford or Galloway. Lockett alleged in his

verified complaint that Blackford refused to treat his injuries. Blackford, however, responded by

attesting that she was not aware of his injuries because she never received a call about them and that

she had no contact with him at all around the time of the July 21, 2004 incident. Lockett’s affidavit,

submitted after Blackford’s, does not respond to Blackford’s assertions and in fact does not address

his denial-of-medical-treatment claim at all.

For her part, Galloway stated that she saw Lockett twice within 24 hours of the incident, but

observed no signs of injury. During her second visit to his cell, at 4 a.m. on the morning after the

incident, she asked him if he was okay. He allegedly turned his back to her and replied “no” in a

“sarcastic tone.” The undisputed fact that she checked on Lockett twice, gave him his medications,

and asked him if he was okay defeats Lockett’s claim that she disregarded his condition or was

deliberately indifferent. Viewing the evidence in the light most favorable to Lockett, Galloway’s

No. 06-2392 Lockett v. Suardini, et al. Page 10

actions could at most be characterized as negligent for failing to ask follow-up questions after he

sarcastically said that he was not okay, but not as evincing deliberate indifference.

In light of the evidence in the record, no reasonable jury would find that Lockett’s injuries

were serious or that either nurse was deliberately indifferent to his medical needs. We therefore

conclude that his Eighth Amendment claim of a denial of medical treatment is without merit.

E. Qualified immunity

MDOC further argues in defense of Lockett’s claims that Blackford, Galloway, Irvine, and

Suardini are entitled to qualified immunity. Based on our determination that none of Lockett’s

constitutional rights were violated, we have no need to discuss the availability of qualified immunity

for the defendants in this case. See Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (explaining that,

“[i]n resolving questions of qualified immunity, courts are required to resolve a threshold question:

Taken in the light most favorable to the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right? This must be the initial inquiry.” (internal quotation

marks omitted)).

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.

No. 06-2392 Lockett v. Suardini, et al. Page 11

__________________________________________________

CONCURRING IN PART, DISSENTING IN PART

__________________________________________________

KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part. I write

in dissent because, in contrast to the majority, I believe that a genuine issue of material fact exists

regarding whether Joe Suardini (“Suardini”) and Harry Irvine (“Irvine”) used excessive force against

James A. Lockett (“Lockett”) in violation of the Eighth Amendment. I concur in the sections of the

opinion upholding the district court’s grant of summary judgment to the defendants on Lockett’s

First Amendment claim and on Lockett’s claim that he was denied medical treatment in violation

of the Eighth Amendment. I believe, however, that we should reverse the district court’s grant of

summary judgment on Lockett’s excessive-force claim and remand for further proceedings.

The majority opinion fails to view the facts alleged in Lockett’s complaint and in Lockett’s

and Palmer’s affidavits in the light most favorable to Lockett. The majority first concludes that

Lockett’s aggressive behavior justified the use of some amount of force by Irvine and Suardini.

Lockett’s affidavit, however, states that while he had verbally insulted the hearing officer, he had

not physically threatened her: “At no time did I ‘ever attempt’ to move towards this hearings

officer, being approximately six (6) to eight (8) feet away from me and my hands were cuffed behind

my back.” Joint Appendix (“J.A.”) at 183 (Lockett Aff. at 3). Likewise, Palmer’s affidavit states

that, before the physical altercation between Lockett and the officers, Lockett had not “made any

aggressive motions towards staff” and posed no threat to the officers because he was handcuffed.

J.A. at 179 (Palmer Aff. at ¶¶ 12, 14). Whether Lockett posed a physical threat to the hearing

officer, Irvine, or Suardini is critical to the inquiry “whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v.

McMillian, 503 U.S. 1, 7 (1992). Consequently, the significant difference between the factual

accounts presented by the defendants and by Lockett creates a genuine issue of material fact

regarding “‘whether the use of force could plausibly have been thought necessary.’” Id. (quoting

Whitley v. Albers, 475 U.S. 312, 321 (1986)).

Second, the majority opinion concludes that Suardini used only minimal and not excessive

force against Lockett. The majority’s characterization of the force as minimal distorts Lockett’s

factual narrative by exaggerating the importance of the word “attempt.” Lockett’s affidavit alleged

that Suardini “proceeded to shove (throw) [Lockett] out of the hearings office room and towards the

stairs”; “attempted to ‘literally’ throw [Lockett] down the flight of stairs”; “‘attempt[ed]’ to run

(drag) [Lockett’s] head into and alongside the wall, causing cuts and lacerations in the center of [his]

forehead”; “attempted” to “choke” Lockett; and “tr[ied] to ‘break’ [Lockett’s] fingers.” J.A. at 183-

85 (Lockett Aff. at 3-5). The majority concludes that the fact that Suardini did not succeed in these

attempts to throw Lockett down the stairs, drag his head into a wall, choke him, and break his fingers

means that Suardini could not have used excessive force against Lockett. By contrast, I think these

attempts themselves involved the use of force that, if the facts are viewed in the light most favorable

to Lockett, meets the Supreme Court’s standard for excessive force: “punishments, which although

not physically barbarous, ‘involve the unnecessary and wanton infliction of pain,’ . . . [including]

inflictions of pain . . . that are ‘totally without penological justification.’” Rhodes v. Chapman, 452

U.S. 337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 183 (1976)). Lockett’s verified

complaint states that he “was brutally assaulted” by Irvine and Suardini, and, at the summary-

judgment stage, the allegations in Lockett’s affidavit should be seen as substantiating that claim.

J.A. at 25 (Verified Compl. at 2). Finally, the two decisions to which the majority opinion

No. 06-2392 Lockett v. Suardini, et al. Page 12

analogizes in support of its conclusion that Suardini did not use excessive force are unpublished and

therefore nonbinding opinions that, in addition, are readily distinguishable.1

In conclusion, I believe that Lockett has created a genuine issue of material fact regarding

whether the degree of force that Irvine and Suardini used against him exceeded that which was

reasonably necessary and thus constituted a malicious effort to cause harm rather than a good-faith

effort to restore discipline. I would therefore reverse the district court’s grant of summary judgment

to the defendants on Lockett’s excessive-force claim and remand for further factfinding.

1

The majority cites two unpublished Sixth Circuit decisions in support of its conclusion. See Johnson v.

Coolman, 102 F. App’x 460, 460-61 (6th Cir.) (unpublished) (holding that the defendant security guards did not use

excessive force when they “pushed [the plaintiff prisoner] into his cell, pulled hard on the security strap attached to his

handcuffs, and . . . attempted to bend his thumb back”), cert. denied, 543 U.S. 1006 (2004); Williams v. Johnson, 55 F.

App’x 736, 736-37 (6th Cir. 2003) (holding that the amount of force used in shoving the plaintiff prisoner into a closed

door was “reasonably related” to the need for force when a food-service manager felt threatened). When we take the

facts in the light most favorable to Lockett, the amount of force used against him—involving attempts to throw him down

the stairs, push his head into a wall, choke him, and break his fingers—far exceeded the force at issue in these cases.