Fletcher Small v. Officer Brock

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0194p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FLETCHER DARNELL SMALL, ┐

Plaintiff-Appellant, │

│

> No. 19-1841

v. │

│

│

OFFICER BROCK, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:19-cv-00348—Gordon J. Quist, District Judge.

Decided and Filed: June 26, 2020

Before: GILMAN, GIBBONS, and THAPAR, Circuit Judges.

_________________

LITIGANT

ON BRIEF: Fletcher Small, Muskegan Correctional Facility, Muskegan, Michigan, pro se.

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

THAPAR, J. (pp. 8–13), delivered a separate dissenting opinion.

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. Fletcher Darnell Small, a Michigan prisoner

proceeding pro se, appeals the dismissal of his 42 U.S.C. § 1983 complaint.1 In his complaint,

1This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral

argument is not needed. See Fed. R. App. P. 34(a).

No. 19-1841 Small v. Brock Page 2

Small alleges that, without provocation, Officer Brock brandished a knife, threatened to kill

Small, and motioned in a manner suggesting how Brock would use the knife to kill Small. This

occurred on several occasions, causing Small to seek “treatment and counseling” for “paranoia,

mental distress, [and] psychological stress.” DE 1, Compl., PageID 3.

On initial screening, the district court determined that Small had failed to state a claim

and dismissed the complaint under 28 U.S.C. §§ 1915(e)(2), 1915A(b), and 42 U.S.C.

§ 1997e(c). Small then asked the district court to alter or amend its judgment based on Parrish v.

Johnson, 800 F.2d 600 (6th Cir. 1986). The district court denied that motion.

We review de novo an order dismissing a complaint under § 1915(e)(2) for failure to state

a claim. Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010). To avoid dismissal, a complaint must

“contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470–71 (holding that the “dismissal standard

articulated in Iqbal and Twombly governs dismissals for failure to state a claim under [§

1915(e)(2)(B)(ii)]”). To state a claim under § 1983, a complaint must allege that persons acting

under color of state law caused the deprivation of a federal statutory or constitutional right.

Barber v. Overton, 496 F.3d 449, 453 (6th Cir. 2007).

Small argues that he has plausibly alleged an Eighth Amendment violation. The Eighth

Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend.

VIII. Although we have long held that verbal abuse and nonphysical harassment of prisoners do

not alone give rise to a constitutional claim, Ivey v. Wilson, 832 F.2d 950, 954–55 (6th Cir.

1987), we have never directly addressed whether the combination of multiple, unprovoked verbal

threats to immediately end a prisoner’s life and the aggressive brandishing of a deadly weapon

violates the Eighth Amendment. But see Hudson v. Palmer, 468 U.S. 517, 530 (1984)

(observing that some types of “calculated harassment unrelated to prison needs” violate the

Eighth Amendment); Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995) (finding an

Eighth Amendment violation based on conduct “designed to frighten and degrade [the prisoner]

by reinforcing the fact that his continued well-being was entirely dependent on the good humor

of his armed guards”).

No. 19-1841 Small v. Brock Page 3

Based on the facts alleged in Small’s complaint, Brock had no legitimate penological

reason for repeatedly placing Small in fear of his life, and it is reasonable to infer that Brock

knew that his conduct would cause Small psychological harm. See Whitley v. Albers, 475 U.S.

312, 320–21 (1986); see also Farmer v. Brennan, 511 U.S. 825, 842 (1994). The issue then is

whether unprovoked and repeated threats to a prisoner’s life, combined with a demonstrated

means to immediately carry out such threats, constitute conduct so objectively serious as to be

“antithetical to human dignity.” Hope v. Pelzer, 536 U.S. 730, 745 (2002).

We find that such threats meet this standard. At the very least, a prisoner has “the right to

be free from the terror of instant and unexpected death at the whim” of his jailors. Burton v.

Livingston, 791 F.2d 97, 100 (8th Cir. 1986); see also Pelfrey, 43 F.3d at 1037. To that end,

Brock’s alleged pattern of conduct far exceeds the idle threats and verbal harassment we have

previously found inadequate to trigger Eighth Amendment protection. See, e.g., Johnson v.

Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004). A threatened loss of life, when made credible by

the aggressive brandishing of a deadly weapon, is beyond the type of “unpleasant experience”

that prisoners must endure. Id.; see Hudson v. McMillian, 503 U.S. 1, 16 (1992) (Blackmun, J.,

concurring) (noting the Supreme Court’s rejection of a significant physical injury requirement

and using the example of death threats with a gun to illustrate an infliction of psychological

suffering prohibited by the Eighth Amendment).

We thus hold that a prisoner states an Eighth Amendment claim by alleging that, without

provocation, a prison official threatened the prisoner’s life on multiple occasions and took

concrete steps, such as aggressively brandishing a deadly weapon, to make those threats credible.

See Irving v. Dormire, 519 F.3d 441, 448–50 (8th Cir. 2008) (finding that “objectively credible”

death threats that cause a prisoner to fear for his life violate the Eighth Amendment); Chandler v.

D.C. Dep’t of Corr., 145 F.3d 1355, 1360–61 (D.C. Cir. 1998) (same); Northington v. Jackson,

973 F.2d 1518, 1523–24 (10th Cir. 1992) (same); Grant v. Foye, 981 F.2d 1258, at *2 (9th Cir.

1992) (table) (same); Hudspeth v. Figgins, 584 F.2d 1345, 1348 (4th Cir. 1978) (per curiam)

(same).

No. 19-1841 Small v. Brock Page 4

And, based on the facts alleged here, neither the force threatened by Brock (i.e., death by

knife) nor the resulting injury to Small (i.e., fearing for his life to the point of paranoia and

psychological distress necessitating mental health treatment) was de minimis. See Hudson, 503

U.S. at 8–11 (rejecting a “significant injury” requirement for Eighth Amendment claims); id. at

16 (Blackmun, J., concurring) (“It is not hard to imagine inflictions of psychological harm—

without corresponding physical harm—that might prove to be cruel and unusual punishment.”);

Pelfrey, 43 F.3d at 1037 (disapproving of conduct by prison officials that caused no physical

injury to the prisoner but was “designed to frighten and degrade [the prisoner] by reinforcing the

fact that his continued well-being was entirely dependent on the good humor of his armed

guards”); Northington, 973 F.2d at 1524 (finding that a prison official’s threat to kill a prisoner

with a loaded gun was not “per se de minimis” and caused a cognizable psychological injury);

Irving, 519 F.3d at 448 (holding that prison officials had engaged in “‘brutal’ and ‘wanton act[s]

of cruelty’ even though no physical harm was suffered” (quoting Burton, 791 F.2d at 99–100)).

The dissent would hold differently, but it can point to no conflict with Sixth Circuit or

Supreme Court precedent, and its reliance on our decision in Parrish v. Johnson, 800 F.2d 600

(6th Cir. 1986), is misplaced. See Dissenting Op. at 10. Although the plaintiff in Parrish was

subject to other forms of abuse not encountered by Small, the case is just one example of conduct

that we have found egregious enough to violate the Eighth Amendment; it does not purport to

establish a floor of conduct necessary to state an Eighth Amendment claim. And, despite

engaging in distinct forms of abuse, the defendant in Parrish never expressly threatened the

plaintiff’s life.

Of course, our holding does not mean that Small’s right was clearly established for the

purpose of qualified immunity. But we need not resolve the issue of qualified immunity in this

appeal. Although the dissent points to several out-of-circuit cases holding that a court may sua

sponte dismiss a prisoner or indigent plaintiff’s claim at any time if it believes that the claim is

barred by qualified immunity, such a rule has yet to be adopted in this circuit.2 See Dissenting

2These decisions rely on 28 U.S.C. § 1915A(b)(2) and 42 U.S.C. § 1997e(c)(1), which provide that a court

must dismiss any prisoner claim that “seeks monetary relief from a defendant who is immune from such relief,” as

well as 28 U.S.C. § 1915(e)(2)(B)(iii), which applies the same standard to plaintiffs proceeding in forma pauperis.

No. 19-1841 Small v. Brock Page 5

Op. at 9 (citing Redmond v. Fulwood, 859 F.3d 11, 13 (D.C. Cir. 2017); Martin v. Duffy,

858 F.3d 239, 250–51 & n.3 (4th Cir. 2017); Story v. Foote, 782 F.3d 968, 969–70 (8th Cir.

2015); Chavez v. Robinson, 817 F.3d 1162, 1167–69 (9th Cir. 2016); Manzini v. Fla. Bar, 511 F.

App’x 978, 983 (11th Cir. 2013) (per curiam); Newland v. Reehorst, 328 F. App’x 788, 791 (3d

Cir. 2009) (per curiam); Lee v. Waters, No. 98-6160, 1999 WL 49149, at *2 (10th Cir. Feb. 4,

1999)).

In any event, we think that the approach taken by the Ninth Circuit strikes the right

balance between screening for meritless claims and fidelity to the rules of pleading. Cf.

Crawford–El v. Britton, 523 U.S. 574, 595 (1998) (“We [have] refused to change the Federal

Rules governing pleading by requiring the plaintiff to anticipate the immunity defense . . . .”);

Gomez v. Toledo, 446 U.S. 635, 640 (1980) (“Since qualified immunity is a defense, the burden

of pleading it rests with the defendant.”). Under that approach, a court “may [sua sponte]

dismiss a [prisoner’s] claim on qualified immunity grounds . . . , but only if it is clear from the

complaint that the plaintiff can present no evidence that could overcome a defense of qualified

immunity.” Chavez, 817 F.3d at 1169. That is so because “[p]ro se complaints frequently lack

sufficient information for a judge to make a qualified immunity determination without the

benefit of a responsive pleading or discovery.” Id. Such is the case here: Small has a non-

frivolous argument that his asserted right was clearly established based on our sister circuits’

longstanding recognition of that right. See, e.g., Brown v. Battle Creek Police Dep’t, 844 F.3d

556, 566–67 (6th Cir. 2016) (finding a clearly established right based on unanimous out-of-

circuit precedent). It is thus for the district court to determine in the first instance whether Brock

is entitled to qualified immunity.

We must address one final point. In its order denying Small’s motion for reconsideration,

the district court relied on 42 U.S.C. § 1997e(e) as an alternative basis for dismissing Small’s

complaint. Section 1997e(e) bars prisoners from filing actions “for mental or emotional injury

suffered while in custody without a prior showing of physical injury.” The district court

reasoned that Small’s action was barred because he alleged no physical injury and sought only

Thus, as the dissent acknowledges, the cited decisions would bar Small’s suit only in so far as he seeks monetary

relief—they would not, standing alone, prevent him from seeking injunctive or declaratory relief.

No. 19-1841 Small v. Brock Page 6

compensatory damages for “emotional injuries.” DE 13, Order, PageID 54. But Small seeks

more than compensatory damages for his mental or emotional injuries. He also seeks punitive

damages, injunctive and declaratory relief, and “such other relief as it may appear that plaintiff is

entitled.” DE 1, Compl., PageID 4. In addition, Small’s request for compensatory damages is

not limited to mental or emotional injuries; it is phrased broadly enough to include compensatory

damages for his alleged constitutional injury.

At the very least, Small may continue to pursue his action based on the requests for non-

compensatory relief. There is widespread agreement among our sister circuits that § 1997e(e)

allows prisoners alleging non-physical injury to still pursue claims for nominal damages, as well

as injunctive and declaratory relief. See generally Aref v. Lynch, 833 F.3d 242, 262–67 & n.15

(D.C. Cir. 2016) (describing the precedential landscape in detail). Most of our sister circuits also

interpret the statute to allow claims for punitive damages. See id. at 266. And we recently

recognized that § 1997e(e) “does not bar claims for constitutional injury that do not also involve

physical injury.” King v. Zamiara, 788 F.3d 207, 213 (6th Cir. 2015). Thus, in so far as Small

seeks forms of relief other than compensatory damages, his case may proceed. See Lucas v.

Chalk, 785 F. App’x 288, 292 (6th Cir. 2019) (suggesting that § 1997e(e) allows prisoners to

seek nominal and punitive damages, as well as injunctive relief, for alleged Eighth Amendment

violations).

There is also a strong argument that § 1997e(e) allows Small to seek compensatory

damages for his alleged constitutional injury. As we observed in King, the statute “says nothing

about claims brought to redress constitutional injuries, which are distinct from mental and

emotional injuries.” 788 F.3d at 213. We thus allowed the prisoner in King to receive

compensatory damages for “injuries to [his] First Amendment rights.” Id. at 212. The same

logic would seem to apply here. See, e.g., Lucas, 785 F. App’x at 292 (applying King’s logic to

suggest that compensatory damages are available for Eighth Amendment violations). In the

absence of adversarial briefing, however, we decline to resolve whether this holding of King

extends to compensatory damages for alleged Eighth Amendment violations. It is sufficient at

No. 19-1841 Small v. Brock Page 7

this stage of the litigation to remand the case based on Small’s other requested forms of relief

and allow the district court to address this narrower issue in the first instance.3

Accordingly, we vacate the district court’s order dismissing Small’s complaint and

remand for further proceedings.

3The dissent suggests that Small lacks standing to pursue his claims for injunctive and declaratory relief,

relying in large part on this pro se prisoner’s two-month delay in preparing a federal civil rights action on a complex

issue of first impression in our circuit. See Dissenting Op. at 12. Small may well lack standing to pursue these

forms of prospective relief, but he absolutely has standing to seek nominal, punitive, and compensatory damages for

alleged past harms. And, given these other bases for exercising jurisdiction over the underlying constitutional

dispute, we think it best to provide Small an opportunity to be heard on the standing issues identified by the dissent,

as well as an opportunity to then fix any jurisdictional deficiencies that the district court might ultimately find in his

complaint.

No. 19-1841 Small v. Brock Page 8

_________________

DISSENT

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THAPAR, Circuit Judge, dissenting. The allegations in this case are troubling. But the

Constitution is not a one-size-fits-all remedy for every injury. And in fact, the Constitution and

federal law often limit our authority to address certain injuries. Because that is the case here,

I respectfully dissent.

Congress passed the Prison Litigation Reform Act (PLRA) in response to “a sharp rise in

prisoner litigation in the federal courts.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). The Act

contains several provisions “designed to bring [prisoner] litigation under control.” Id. It does so

in part to help prisoners themselves: these provisions allow busy district courts to dismiss

“nonmeritorious claims” so that they can focus on “the allegations with merit.” Jones v. Bock,

549 U.S. 199, 203 (2007). Relevant here, one provision of the PLRA directs district courts to

summarily dismiss any part of a complaint that “is frivolous, malicious, or fails to state a claim

upon which relief may be granted,” or that “seeks monetary relief from a defendant who is

immune from such relief.” 28 U.S.C. § 1915A(b)(1)–(2).

Following Congress’s instructions, the district court dismissed Fletcher Small’s

complaint because it failed to state a claim. Small’s complaint alleged that a prison guard had

verbally threatened to kill him while waving a knife. And for this, he sought monetary,

declaratory, and injunctive relief based on the Eighth Amendment. The problem? The

Constitution and the PLRA bar Small from pursuing each form of relief.

Monetary Relief. Start with Small’s request for monetary relief. Again, the PLRA

requires district courts to screen prisoner complaints and dismiss any part that (among other

things) “fails to state a claim upon which relief may be granted” or “seeks monetary relief from a

defendant who is immune from such relief.” Id. The district court dismissed Small’s complaint

because it failed to state a claim under the Eighth Amendment. And as discussed below, that

ruling was correct. But our court has an even more straightforward ground to affirm the

No. 19-1841 Small v. Brock Page 9

dismissal: the defendant in this case is “immune” from “monetary relief” under basic principles

of qualified immunity.

Even before the passage of the PLRA, the Supreme Court recognized that courts could

summarily dismiss prisoner complaints when the defendant was “immune from suit.” Neitzke v.

Williams, 490 U.S. 319, 327 (1989). Congress then expressly confirmed this principle in

multiple provisions of the PLRA. See 28 U.S.C. § 1915A(b)(2); see also id. § 1915(e)(2)(B)(iii);

42 U.S.C. § 1997e(c)(1); Jones, 549 U.S. at 213–14. And our sister circuits have consistently

found that these provisions include immunity from suit based on qualified immunity. See, e.g.,

Redmond v. Fulwood, 859 F.3d 11, 13 (D.C. Cir. 2017); Newland v. Reehorst, 328 F. App’x 788,

791 (3d Cir. 2009) (per curiam); Martin v. Duffy, 858 F.3d 239, 250–51 & n.3 (4th Cir.

2017); Story v. Foote, 782 F.3d 968, 969–70 (8th Cir. 2015); Chavez v. Robinson, 817 F.3d

1162, 1167–69 (9th Cir. 2016); Lee v. Waters, No. 98-6160, 1999 WL 49149, at *2 (10th Cir.

Feb. 4, 1999); Manzini v. Fla. Bar, 511 F. App’x 978, 983 (11th Cir. 2013) (per curiam).

To overcome qualified immunity—and thus the PLRA—Small must show (1) that his

rights were violated and (2) that the violation was “clearly established at the time.” District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (cleaned up). These questions may be addressed

in either order. See Pearson v. Callahan, 555 U.S. 223, 236–42 (2009).

To begin with, Small can’t show that his constitutional rights were violated. To the

contrary, the Supreme Court has observed that “de minimis uses of physical force” generally are

not covered by the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 10 (1992) (cleaned

up); see Leary v. Livingston Cty., 528 F.3d 438, 443 (6th Cir. 2008) (Eighth Amendment

claimant “must show something more than de minimis force”). If a prisoner usually cannot bring

an Eighth Amendment claim for de minimis physical force, then a prisoner ought not be able to

bring a claim when only threats are involved.

Circuit precedent points in the same direction. Our court has repeatedly held that threats

or harassment, standing alone, do not amount to unconstitutional cruel-and-unusual punishment.

See, e.g., Ivey v. Wilson, 832 F.2d 950, 954–55 (6th Cir. 1987) (per curiam); see also Williams v.

Gobles, No. 99-1701, 2000 WL 571936, at *1 (6th Cir. May 1, 2000) (order) (“[N]either verbal

No. 19-1841 Small v. Brock Page 10

harassment nor threats constitute punishment within the context of the Eighth Amendment.”).

Other circuits have held the same. See, e.g., Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)

(per curiam) (“[I]t trivializes the eighth amendment to believe a threat constitutes a constitutional

wrong.”); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983).

Indeed, in a prior knife-waving case, our circuit held that a cruel-and-unusual-punishment

claim requires far more than the facts alleged here. See Parrish v. Johnson, 800 F.2d 600, 605

(6th Cir. 1986). There, the knife waving was only one of a series of inappropriate actions by an

officer that in their “totality” amounted to a constitutional violation. Id. Those actions included

(among others) making a paraplegic prisoner sit in his own feces, depriving him of food, and

claiming to have infected his food with venereal disease. Id. at 603, 605. We held that it was

“the type, number, and seriousness” of all these acts together that rose to the level of cruel-and-

unusual punishment. Id. at 605. And the differences between that case and this one speak for

themselves.

But even if you doubted this precedent, there’s little doubt that the alleged constitutional

violation here wasn’t clearly established and thus that the defendant is entitled to qualified

immunity. The majority opinion acknowledges as much but still remands the case to the district

court.

And for what purpose? Just so that the defendant can file a motion to dismiss, which the

district court will (almost certainly) grant and our court will (almost certainly) affirm. Wouldn’t

these resources be better spent in state court? If his allegations are true, Small likely could

pursue multiple claims under Michigan law. See, e.g., Espinoza v. Thomas, 472 N.W.2d 16, 21

(Mich. Ct. App. 1991) (defining assault); Roberts v. Auto-Owners Ins. Co., 374 N.W. 2d 905,

908–09 (Mich. 1985) (defining intentional infliction of emotional distress). But instead, our

court sends him on his way to pursue a quixotic lawsuit in federal court. I would spare him a

pointless journey.

The majority justifies this outcome in two ways.

No. 19-1841 Small v. Brock Page 11

First, the majority adopts the following test from the Ninth Circuit: a district court may

dismiss a prisoner complaint based on qualified immunity “only if it is clear from the complaint

that the plaintiff can present no evidence that could overcome a defense of qualified immunity.”

Chavez, 817 F.3d at 1169. Where does this test come from? If you trace it back to its source, it

originates from a case in which the Supreme Court concluded that a pro se complaint should not

be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 520–21

(1972) (per curiam) (cleaned up). If that test sounds familiar, it should. It’s the general pleading

standard announced in the infamous case of Conley v. Gibson, 355 U.S. 41, 45–46 (1957). But

the problem is that the Supreme Court more recently retired Conley’s “no set of facts” test and

told us that a complaint must allege facts that state a “plausible” claim for relief. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 559–63 (2007). And even though pro se complaints are

liberally construed, our court has refused to “abrogate basic pleading essentials in pro se suits.”

Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Indeed, it’s hard to see our court could have

done otherwise given that the operative language in the PLRA mirrors the language in Rule 12 of

the Federal Rules of Civil Procedure. Compare 28 U.S.C. § 1915A(b)(1), with Fed. R. Civ. P.

12(b)(2); see Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010). So in the end, the majority’s

new test resurrects bad law in defiance of the Supreme Court, our court, and Congress. See, e.g.,

Twombly, 550 U.S. at 561 (rejecting notion that a claim would survive a motion to dismiss

“whenever the pleadings left open the possibility that a plaintiff might later establish some set of

undisclosed facts to support recovery” (cleaned up)); Martin v. Overton, 391 F.3d 710, 714 (6th

Cir. 2004) (“[L]iberal construction does not require a court to conjure allegations on a [pro se]

litigant’s behalf.” (cleaned up)). That’s especially unfortunate here given that the defendant

never even had an opportunity to weigh in on this issue before our court resolved it against him.

Second, the majority notes that Small has a “non-frivolous argument” that the alleged

violation in this case was clearly established based on out-of-circuit precedent. But the PLRA

doesn’t just bar “frivolous” claims; it bars all claims that “fail[] to state a claim upon which relief

may be granted” or “seek[] monetary relief from a defendant who is immune from such relief.”

28 U.S.C. § 1915A(b). And in any event, Small’s argument seems pretty frivolous. See, e.g.,

Ashford v. Raby, 951 F.3d 798, 804 (6th Cir. 2020) (explaining that out-of-circuit decisions will

No. 19-1841 Small v. Brock Page 12

provide clearly established law only in “extraordinary cases where [they] both

point unmistakably to a holding and are so clearly foreshadowed by applicable direct authority as

to leave no doubt regarding that holding” (cleaned up)). So this point does nothing more to save

Small’s complaint.

Declaratory Relief. Consider next Small’s request for declaratory relief. He asks us to

declare the defendant’s behavior unlawful under the Eighth Amendment. But the problem is that

Small lacks standing to pursue this relief. “The fact that a harm occurred in the past does

nothing to establish a real and immediate threat that it will occur in the future”—as is required to

establish standing for declaratory relief. Kanuszewski v. Mich. Dep’t of Health & Human Servs.,

927 F.3d 396, 406 (6th Cir. 2019) (cleaned up). And Small has alleged nothing that would show

the “immediacy and reality” that such harms will reoccur. City of Los Angeles v. Lyons,

461 U.S. 95, 104 (1983) (cleaned up).

Indeed, Small alleges that the defendant threatened him while waving a knife once in

December 2018 and a second time in February 2019. (He also makes a vague reference to

“another threaten[ing] and intimidating behavior” around the same time. R. 1, Pg. ID 3.) Yet

Small did not file his complaint until months later (in May) and did not allege that any further

incidents occurred in the interim. Nor has he offered any reason to think that further incidents

will occur in the future. Given all this, Small hasn’t shown that he has standing to pursue

prospective relief for an entirely hypothetical future harm (though he does have standing to

pursue monetary relief for a “completed harm”). Kanuszewski, 927 F.3d at 407–08. In short, our

court should dismiss this request for lack of jurisdiction.

Injunctive Relief. Finally, take Small’s request for injunctive relief. Small asks us to

issue an injunction ordering the defendant to “not be around [him] for any reason.” R. 1, Pg. ID

4. But no principle of law entitles Small to such a broad remedy. Certainly, the defendant in this

case does not violate the Eighth Amendment every time he’s “around” Small—the defendant’s

prior behavior notwithstanding. Cf. Hudson, 503 U.S. at 9–10. And Small’s request also

conflicts with basic principles of equity. “Precisely because equitable relief is an extraordinary

remedy,” our court has recognized, “it follows that the scope of relief should be strictly tailored

No. 19-1841 Small v. Brock Page 13

to accomplish only that which the situation specifically requires.” Sharpe v. Cureton, 319 F.3d

259, 273 (6th Cir. 2003) (cleaned up). The proposed injunction does not satisfy this requirement.

On top of all that, Small’s request runs headfirst into the PLRA, which requires that any

“[p]rospective relief . . . with respect to prison conditions . . . [be] narrowly drawn, extend[] no

further than necessary to correct the violation of the Federal right, and [be] the least intrusive

means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A); see

also Porter v. Nussle, 534 U.S. 516, 523–532 (2002) (holding that the phrase “prison conditions”

in another provision of the PLRA applies to individual claims of excessive force under the

Eighth Amendment); Freeman v. Francis, 196 F.3d 641, 643–44 (6th Cir. 1999) (concluding that

the phrase has the same meaning across the PLRA and covers individual claims of excessive

force). The Act also requires courts to “give substantial weight to any adverse impact on public

safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C.

§ 3626(a)(1)(A). Together, these provisions (like others) are designed “to eliminate unwarranted

federal-court interference with the administration of prisons.” Woodford, 548 U.S. at 93. Yet

Small’s request asks us to do exactly what the PLRA prohibits: micromanage a prison. That we

may not do.

***

It’s often said that hard cases make bad law. This case proves the truth of that adage.

Both the Constitution and federal law limit our authority to grant a remedy to this plaintiff—no

matter how sympathetic we might find his allegations. Because I would heed those limits,

I respectfully dissent.