Dillon Burnett v. Josh Griffith

RECOMMENDED FOR PUBLICATION

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

File Name: 22a0104p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

DILLON BURNETT,

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Plaintiff-Appellant/Cross-Appellee, │

> Nos. 21-1242/1293

│

v. │

│

JOSH GRIFFITH, │

Defendant-Appellee/Cross-Appellant. │

│

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:19-cv-00257—Hala Y. Jarbou, District Judge.

Argued: March 8, 2022

Decided and Filed: May 12, 2022

Before: GILMAN, STRANCH, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: William F. Piper, WILLIAM F. PIPER, PLC, Portage, Michigan, for

Appellant/Cross-Appellee. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills,

Michigan, for Appellee/Cross-Appellant. ON BRIEF: William F. Piper, WILLIAM F. PIPER,

PLC, Portage, Michigan, for Appellant/Cross-Appellee. Jeffrey C. Gerish, PLUNKETT

COONEY, Bloomfield Hills, Michigan, for Appellee/Cross-Appellant.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Dillon Burnett brought an Eighth Amendment

claim under 42 U.S.C. § 1983, as well as state-law claim for assault and battery, against Sergeant

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Josh Griffith, a Van Buren County corrections officer. The claim is based on Sergeant Griffith’s

alleged use of excessive force while Burnett was in custody at the Van Buren County Jail.

The district court granted Sergeant Griffith’s motion for summary judgment. It concluded

that, although the evidence could allow a reasonable jury to find that Sergeant Griffith had used

excessive force in bringing Burnett under control, the sergeant was nevertheless entitled to

qualified immunity because he did not have fair warning that his actions were unconstitutional.

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

I. BACKGROUND

A. Factual background

Burnett was arrested and charged with a failure to appear for a work-detail program, in

violation of a guilty-plea sentencing condition related to a separate charge. He was held in

custody at the Van Buren County Jail in Van Buren County, Michigan, where Sergeant Griffith

was on duty as the booking officer.

At Burnett’s arraignment hearing, his behavior was erratic enough for the district court to

hold Burnett in contempt of court and sentence him to jail. After his arraignment hearing,

Burnett was handcuffed to a bench in the booking area. Burnett unscrewed the bolt that he was

handcuffed to and pulled his arms out from behind his back. Another officer alerted Sergeant

Griffith, who resecured Burnett to the bench. Burnett then requested to speak with a mental-

health representative, who later advised Sergeant Griffith that Burnett should be placed on

suicide watch. Sergeant Griffith and another corrections officer, Paul Tessar, then took Burnett

to a separate room where they placed him in an anti-suicide gown.

After Burnett put on the gown, Sergeant Griffith and Officer Tessar informed him that

they would be escorting him to a cell for suicide watch. The use-of-force incident occurred

during this escort and was caught on video. Officer Tessar enters the video frame first. He

walks at a normal pace with paperwork in hand. Ann Niemi, a mental-health staffer, is also

present, standing behind a filing cabinet at the bottom of the video frame. Before proceeding

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toward the room’s exit door, Officer Tessar briefly pauses to assemble the paperwork and checks

over his shoulder, likely looking toward Sergeant Griffith and Burnett.

Burnett and Sergeant Griffith enter the video frame a second or two later. Sergeant

Griffith is seen holding on to Burnett’s arms, which are handcuffed behind his back, directing

Burnett toward the exit door. As Burnett and Sergeant Griffith move past a holding bench

shown in the top right of the video frame, Burnett pivots his body away from Sergeant Griffith

and toward the bench. Burnett continues to move his body forward in an attempt to break away

from Sergeant Griffith. In response, Sergeant Griffith maintains his hold on Burnett’s arms and

tries to pull Burnett backward. Burnett, however, continues to push his body forward and away

from Sergeant Griffith. At this point, Officer Tessar becomes aware of Burnett’s movements and

starts to move toward Sergeant Griffith and Burnett. Simultaneously, Sergeant Griffith propels

Burnett backwards, shifting Burnett to the left so that he appears to face the floor, and takes

Burnett down to the floor with significant force. Sergeant Griffith does not recall whether he

gave any verbal warning before he took Burnett down, although he acknowledges that he did not

first seek any assistance from Officer Tessar.

After taking Burnett down, Sergeant Griffith kneels over Burnett in an effort to control

him. Burnett continues moving his arms and legs. Officer Tessar joins Sergeant Griffith in a

kneeling position to assist with holding Burnett in place. Burnett claims that he temporarily lost

consciousness. When he regained consciousness, Burnett recalls lying face down on the floor

with several people standing around him.

Sergeant Griffith called for assistance on the jail radio when he noticed that Burnett had a

laceration on his head and was bleeding. Other officers arrived on the scene, where they tended

to Burnett’s head with paper towels and gauze. About four minutes later, a nurse arrived to

assess Burnett and clean his head injury. Her report reflects a laceration on Burnett’s forehead.

She referred him to the Lake View Hospital Emergency Department for further evaluation.

Officers later assisted Burnett to a standing position for transport to the hospital.

According to his medical records, Burnett reported moderate pain in the left-frontal part

of his head as well as radiating pain behind his left ear. Sergeant Griffith’s Use of Force Report

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noted that Burnett told Sergeant Griffith that his head and neck hurt and that he was experiencing

facial numbness. At the hospital, Burnett received three stitches to close the laceration on his

forehead, which was one centimeter in length and two millimeters in depth. Burnett was

discharged in good condition, returned to the jail, and placed on suicide watch. Since the

incident, Burnett claims that he suffers from post-traumatic stress disorder, severe migraines that

occur a couple of times per month, lower back pain, and possible changes in his personality.

B. Procedural background

Sergeant Griffith moved for summary judgment, seeking to dismiss all of Burnett’s

claims based on the defense of qualified immunity. The motion was referred to a magistrate

judge. In her first Report and Recommendation (R&R), the magistrate judge recommended that

the district court grant Sergeant Griffith’s motion in its entirety. Although the R&R concluded

that Burnett satisfied the objective component of an Eighth Amendment claim based on his

injuries and pain, the magistrate judge concluded that Burnett did not submit any “evidence that

Griffith maliciously and sadistically intended to inflict pain on Burnett,” which is necessary to

satisfy the subjective component of Burnett’s Eighth Amendment and state-law claims.

Burnett timely objected to the magistrate judge’s R&R. Agreeing with Burnett’s

objection that the R&R erred in holding that the record contained no evidence that Sergeant

Griffith had maliciously and sadistically intended to harm him, the district court rejected the

magistrate judge’s conclusion. The court determined that, viewing the footage of the incident in

question in the light most favorable to Burnett, “a reasonable jury . . . could infer that Griffith

acted with the requisite intent” necessary to sustain Burnett’s claims. Because the magistrate

judge had not addressed all aspects of the qualified-immunity defense, the court then remanded

the case for further consideration.

In a supplemental R&R, the magistrate judge recommended that the district court

conclude that Sergeant Griffith was not entitled to qualified immunity as a matter of law. The

supplemental R&R addressed only the issue of whether a reasonable officer in Sergeant

Griffith’s shoes would have been on notice that his actions violated Burnett’s clearly established

Eighth Amendment right to be free from the use of excessive force. Based on this court’s

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decision in Cordell v. McKinney, 759 F.3d 573 (6th Cir. 2014), the magistrate judge reasoned

that an officer has “fair and clear warning that throwing or slamming a handcuffed prisoner

headfirst to the ground, particularly when other options were available to moderate the amount of

force used, was an unreasonable method of regaining control over a prisoner.”

Once again the district court rejected the R&R, concluding that Sergeant Griffith was

entitled to qualified immunity because he was not on fair warning that his actions violated

Burnett’s rights under the Eighth Amendment. The court concluded that “the facts in Cordell are

too dissimilar to the facts in this case to conclude that Sergeant Griffith violated a clearly

established right.” Accordingly, the court granted Sergeant Griffith’s motion for summary

judgment and dismissed Burnett’s Eighth Amendment claim on qualified-immunity grounds.

The court then declined to exercise supplemental jurisdiction over Burnett’s state-law claim for

assault and battery against Sergeant Griffith.

Burnett appeals the district court’s judgment that Burnett had not satisfied the “clearly

established” prong necessary to overcome Sergeant Griffith’s qualified-immunity defense. And

Sergeant Griffith cross-appeals the court’s first and second orders to the extent that they

concluded that a reasonable jury could find that Sergeant Griffith acted with the malicious intent

to harm Burnett.

II. ANALYSIS

A. Whether Sergeant Griffith is entitled to qualified immunity as a matter of law

Qualified immunity shields government officials from civil-damages liability for

violations of “clearly established statutory or constitutional rights.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). The Supreme Court has articulated a two-prong test to determine

whether an official is entitled to qualified immunity: The first prong questions whether the facts,

“taken in the light most favorable to the party asserting the injury, . . . show that the officer’s

conduct violated a constitutional right.” Jones v. Clark County, 959 F.3d 748, 766 (6th Cir.

2020) (internal quotation marks omitted) (quoting Silberstein v. City of Dayton, 440 F.3d 306,

311 (6th Cir. 2006)). And the second prong determines “whether the right is clearly

established.” Id. District courts and courts of appeals have discretion “in deciding which of the

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two prongs of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Here, we focus on the second prong.

This court “reviews a grant of summary judgment on the basis of qualified immunity

de novo.” Jones, 959 F.3d at 765 (citing Flint ex rel. Flint v. Ky. Dep’t of Corr., 270 F.3d 340,

346 (6th Cir. 2001)). “If the law did not put the officer on notice that his conduct would be

clearly unlawful, summary judgment based on qualified immunity is appropriate.” Saucier v.

Katz, 533 U.S. 194, 202 (2001).

In the present case, even if we were to conclude that a reasonable jury could find that

Sergeant Griffith violated Burnett’s Eighth Amendment right to be free from the use of excessive

force, we would still need to determine whether the state of the law, at the time of Sergeant

Griffith’s conduct, was sufficiently clear to a “reasonable official in the defendant’s shoes” that

he “would have understood that he was violating [the right in question].” Plumhoff v. Rickard,

572 U.S. 765, 779 (2014); see also Cordell v. McKinney, 759 F.3d 573, 587 (6th Cir. 2014)

(concluding that, although a “reasonable jury could find that Deputy McKinney violated

Cordell’s Eighth Amendment rights,” the court must also analyze whether “those Eighth

Amendment rights [were] clearly established as of [the date of the use-of-force incident]”).

Because we ultimately conclude that Sergeant Griffith did not have fair warning that his specific

conduct violated Burnett’s Eighth Amendment right to be free from the use of excessive force,

the circumstances of this case warrant addressing the “clearly established prong” first and

obviate the need to address whether Sergeant Griffith in fact violated Burnett’s rights under the

Eighth Amendment.

The relevant inquiry is thus whether Sergeant Griffith had fair warning that propelling a

handcuffed prisoner to the floor, in response to the prisoner’s attempt to break free, was “an

unreasonable method of regaining control of a prisoner in a [room] occupied only by other jail

officials.” Cordell, 759 F.3d at 588. In Cordell, the primary case relied on by Burnett, a prison

officer was escorting Cordell through a jail hallway at a fast pace. Id. at 577. According to the

security video, Cordell, who was handcuffed with his arms behind his back, “turn[ed] his head”

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in an effort to face the officer. Id. at 578. In response, the officer rammed Cordell headfirst into

a concrete wall, causing severe injuries. Id.

There are indeed similarities between the facts of Cordell and those in the present case.

Both Cordell and Burnett were handcuffed and in an area of the jail where only jail officials were

present. But unlike in Cordell, Burnett created an immediate exigency by pulling away from

Sergeant Griffith in an attempt to break free from Sergeant Griffith’s grasp. The act of breaking

away from an officer’s control is a far greater show of resistance than the act of turning toward

an officer. Although Burnett was restrained by handcuffs with his arms behind his back, the

video plainly establishes that Burnett was resisting control, which was never the situation with

Cordell. The fact that Cordell was always under control was a key consideration in this court’s

ultimate holding that a reasonable jury could find that the prison officer in that case used

excessive force. Id. at 584–88.

Another material fact that distinguishes Cordell from the present case is that, in the

moments leading up to the use-of-force incident in Cordell, the prison officer and Cordell had

engaged in a heated verbal exchange that caused the officer to display his taser in a threatening

manner. Id. at 576–77. Sergeant Griffith, in contrast, did not display any aggression toward

Burnett prior to Burnett’s attempt to break free. Moreover, Sergeant Griffith did not receive a

formal reprimand for his use of force, as did the officer in Cordell. Id. at 584.

In sum, the contours of the fair-warning requirement that were satisfied in Cordell do not

extend to the circumstances of Burnett’s case. Cordell makes clear that the Eighth Amendment

includes the right to be free from a jail official’s use of excessive force against a compliant

prisoner who is handcuffed and in an area of the jail where only other jail officials are present.

Whether the prisoner is under control can thus be characterized as an important determinate of

the right established by Cordell. See id. at 588.

The video evidence here shows that Burnett was resisting control at the time that

Sergeant Griffith used force to restrain him. Cordell thus cannot fairly be extended to this case

to conclude that Sergeant Griffith had fair warning that his use of force to take Burnett to the

floor, in response to an exigency created by Burnett, was a violation of Burnett’s rights under the

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Eighth Amendment. This is especially so because Sergeant Griffith had to take split-second

action in response to Burnett’s unexpected attempt to break free, and we must grant that split-

second decision “wide-ranging deference.” See Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir.

2002) (explaining that because prison officials “‘must make their decisions in haste, under

pressure, and frequently without the luxury of a second chance,’ we must grant them ‘wide-

ranging deference in the adoption and execution of policies and practices that in their judgment

are needed to preserve internal order and discipline and to maintain institutional security’”

(quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992))).

Moreover, the other cases relied on by Burnett fail to establish that Sergeant Griffith had

fair warning that his actions were unconstitutional. Two of these cases are from the Fifth Circuit.

One is Bush v. Strain, 513 F.3d 492 (5th Cir. 2008), where the court held that a police officer

violated the plaintiff’s clearly established right to be free from the use of excessive force when,

during an arrest, the officer slammed the plaintiff’s face into a vehicle even though she was

handcuffed, subdued, and not resisting arrest or attempting to flee. Id. at 501–02. The other

Fifth Circuit case is Ramirez v. Martinez, 716 F.3d 369 (5th Cir. 2013), which affirmed the

denial of qualified immunity where the plaintiff “posed no threat to the officers and yet was tased

twice, including once after he was handcuffed and subdued while lying face down on the

ground.” Id. at 379. Along with our general rule against using out-of-circuit caselaw in the

“clearly established” inquiry, see Ashford v. Raby, 951 F.3d 798, 804 (6th Cir. 2020), neither of

these cases is comparable to the circumstances in the case before us.

Burnett also relies on three Sixth Circuit cases to establish “that the act of a subject

attempting to walk or pull away or refuse to comply is not sufficient resistance to justify[]

slamming a subject into a hard object like a wall or a floor.” But the cases cited by Burnett do

not support his argument. The first cited case is Bennett v. Krakowski, 671 F.3d 553 (6th Cir.

2011), in which this court declined to exercise its jurisdiction over the defendants’ appeal of a

denial of summary judgment on qualified-immunity grounds because the defendants’ “arguments

. . . [were] based on contested facts that [were] pertinent to that determination.” Id. at 559.

Burnett next cites Solomon v. Auburn Hills Police Department, 389 F.3d 167 (6th Cir. 2004),

which held that an officer used excessive force in attempting a leg-sweep maneuver on the

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plaintiff when the plaintiff was not resisting arrest and was walking toward the officers as

instructed. Id. at 174–75. Finally, Burnett cites Smith v. Stoneburner, 716 F.3d 926 (6th Cir.

2013), where this court concluded that a dispute of material fact remained as to whether the

plaintiff was resisting arrest, but noting that if the plaintiff did resist arrest, then “the officers’

force may well have been reasonable.” Id. at 934 (citing Hagans v. Franklin Cnty. Sheriff’s

Office, 695 F.3d 505, 509 (6th Cir. 2012)). There is no genuine dispute here that Burnett was

resisting Sergeant Griffith’s attempt to restrain him because the video footage captures Burnett’s

actions in doing so.

Sergeant Griffith in turn points to this court’s decision in Griffin v. Hardrick, 604 F.3d

949 (6th Cir. 2010), to support his argument that his use of force was appropriate. Griffin is

similar enough to the present case to support the conclusion that Sergeant Griffith did not have

fair warning that his actions could be found to constitute excessive force. In Griffin, the plaintiff

had been noncompliant with a jail-staff nurse and later resisted an officer’s attempts to lead her

back to a different area of the jail. Id. at 951–52. The court concluded that, in light of those

circumstances, the officer had “plausible reason to believe that force was necessary to bring

Griffin to the floor so that she could be handcuffed and taken back to her holding cell.” Id. at

955.

As a final argument, Burnett contends that the Supreme Court’s decisions in McCoy

v. Alamu, 141 S. Ct. 1364 (2021) (vacating and remanding 950 F.3d 226 (5th Cir. 2020)), and

Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam), compel a ruling in his favor. We disagree.

The Supreme Court’s decisions in Taylor and, to a lesser extent, McCoy stand for the proposition

that, when the conduct of a government official is so egregious that a constitutional violation is

apparent, the Supreme Court does not require that a case be “directly on point” to satisfy the

“clearly established” prong of the qualified-immunity analysis. See Moderwell v. Cuyahoga

County, 997 F.3d 653, 660 (6th Cir. 2021) (discussing Taylor and explaining that qualified

immunity can be denied without a prior case on point when “no reasonable correctional officer

could have concluded that the challenged action was constitutional” (internal quotation marks

omitted) (quoting Taylor, 141 S. Ct. at 53)).

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In Taylor, the Supreme Court concluded that the Fifth Circuit erred in granting qualified

immunity to prison officers that confined a prisoner in “shockingly unsanitary cells.” Taylor,

141 S. Ct. at 53 (explaining that one cell was covered with feces “nearly floor to ceiling” and a

second cell was “frigidly cold” and “equipped with only a clogged drain in the floor to dispose of

bodily wastes”). The Court rejected the Fifth Circuit’s reasoning that the officers “responsible

for Taylor’s confinement did not have fair warning that their specific acts were unconstitutional.”

Id. (internal quotation marks omitted) (quoting Taylor v. Stevens, 946 F.3d 211, 222 (5th Cir.

2019), vacated sub nom. Taylor v. Riojas, 141 S. Ct. 52 (2020)). Instead, the Court concluded

that, when “[c]onfronted with the particularly egregious facts of this case, any reasonable officer

should have realized that Taylor’s conditions of confinement” were constitutionally

impermissible. Id. at 54.

And in McCoy, a prison officer, without any justification, pepper-sprayed a prisoner who

was locked in his cell. 950 F.3d 226, 229 (5th Cir. 2020), vacated, 141 S. Ct. 1364 (2021). The

Fifth Circuit granted qualified immunity to the officer, reasoning that the law was not clearly

established because it was not “beyond debate” that the officer broke the law by using pepper

spray. Id. at 233 (explaining that it was not beyond debate that using pepper spray, despite no

provocation, was an excessive use of force). In light of its decision in Taylor, the Supreme Court

remanded the case to the Fifth Circuit for further consideration. McCoy, 141 S. Ct. at 1364.

Sergeant Griffith’s actions were not so egregious as to obviate the requirement of

identifying precedent that places “the statutory or constitutional question beyond debate” such

that Sergeant Griffith was placed on fair warning that his conduct was unconstitutional. Gordon

v. Bierenga, 20 F.4th 1077, 1082 (6th Cir. 2021) (quoting Rivas-Villegas v. Cortesluna, 142 S.

Ct. 4, 8 (2021)). And in further contrast to Taylor and McCoy, the video evidence in this case

establishes that Sergeant Griffith’s use of force was motivated by an exigency created by

Burnett’s actions. Cf. Taylor, 141 S. Ct. at 54 (noting that “[t]he Fifth Circuit identified no

evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency”).

Based on the foregoing, we conclude that the state of the law at the time that Sergeant

Griffith acted did not provide him with fair warning that his actions would violate Burnett’s

Eighth Amendment right to be free from the use of excessive force. The district court

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accordingly did not err in granting summary judgment in favor of Sergeant Griffith on qualified-

immunity grounds.

B. Sergeant Griffith’s cross-appeal

We now turn to Sergeant Griffith’s cross-appeal, which challenges the district court’s two

orders rejecting the magistrate judge’s R&Rs and seeks to have Burnett’s state-law claim

dismissed on the merits. “The duty of this court . . . is to decide actual controversies by a

judgment which can be carried into effect, and not give opinions upon moot questions or abstract

propositions[.]” Wheeler v. City of Lansing, 660 F.3d 931, 940 (6th Cir. 2011) (first alteration in

original) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Sergeant Griffith argues that the

district court erred when it held that a genuine dispute of material fact exists as to whether he

used excessive force in restraining Burnett. But Sergeant Griffith has ultimately prevailed on his

summary judgment motion under the “clearly established” prong of the qualified-immunity

analysis, which makes the constitutional-violation issue presented by his cross-appeal moot. See

id. at 939–40 (dismissing as moot the defendant’s cross-appeal challenging the district court’s

determination that a constitutional violation had occurred where the defendant was granted

qualified immunity under the “clearly established” prong). And Sergeant Griffith’s cross-appeal

regarding Burnett’s state-law claim is moot because the district court declined supplemental

jurisdiction over that claim.

C. Burnett’s state-law assault-and-battery claim

This leaves Burnett’s remaining claim against Sergeant Griffith, which arises under state

law. We review a district court’s decision to decline to exercise supplemental jurisdiction over a

plaintiff’s state-law claims under the abuse-of-discretion standard. See Gamel v. City of

Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010). “[A] federal court that has dismissed a plaintiff’s

federal-law claims should not ordinarily reach the plaintiff’s state-law claims.” Rouster v. County

of Saginaw, 749 F.3d 437, 454 (6th Cir. 2014) (quoting Moon v. Harrison Piping Supply, 465 F.3d

719, 728 (6th Cir. 2006)). Because the district court dismissed Burnett’s federal-law claim at the

summary judgment stage, we conclude that the court did not abuse its discretion in declining to

exercise jurisdiction over Burnett’s remaining state-law claim for assault and battery. See Wee

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Care Child Ctr., Inc. v. Lumpkin, 680 F.3d 841, 849 (6th Cir. 2012) (finding no abuse of discretion

where the district court declined to exercise supplemental jurisdiction over state-law claims after

dismissing the federal claims).

III. CONCLUSION

For all the foregoing reasons, we AFFIRM the judgment of the district court and

DISMISS Sergeant Griffith’s cross-appeal as moot.