# Jerome L. Williams v. Peter Vidor and Willie Ray > Court of Appeals for the Sixth Circuit · February 23, 1994 · 17 F.3d 857 URL: https://www.frixlaw.com/law-library/cases/9486480 ## Case - **Full name:** Jerome L. WILLIAMS, Plaintiff-Appellant, v. Peter VIDOR and Willie Ray, Defendants-Appellees - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** February 23, 1994 - **Citations:** 17 F.3d 857; 1994 U.S. App. LEXIS 3111; 1994 WL 51249 - **Precedential status:** Published - **Opinion:** Concurring in part by Jones - **Judges:** Jones, Brown, Weber - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486480 ## How later opinions describe it (automated extraction) - noting that such “opinion” work product is specifically what 18 the doctrine is designed to protect - noting “the factual observation that disabling pain 18 shoulder#1 (last visited Mar. 24, 2020 ## Opinion text NATHANIEL R. JONES, Circuit Judge, concurring in part and dissenting in part. Although I concur in the rest of the majority opinion, I respectfully dissent from section III. I While I do not disagree with the statement of facts provided by the majority, there are additional facts that need to be highlighted. They are set forth herein. First of all, a key disputed fact is not cited. Williams maintains that, at approximately 11 a.m. on March 25, 1988, moments before William’s was escorted from his cell and placed in TOB restraints, Ray said to Williams, “You got it coming. You’re in restraints for days.” J.A. at 9 (Complaint); Plaintiffs Affidavit at ¶ 5. Ray maintains that he said no such thing. Ray Affidavit at ¶ 8. Both parties agree, however, that Williams damaged his toilet at 10:35 a.m. on March 25. At 11:05, Williams was escorted to another cell in order to be physically restrained, and pursuant to Vidor’s orders, Williams was placed in top of bed (TOB) restraints at 11:17. Significantly, Defendants do not dispute that, once the toilet was damaged, Williams became entirely cooperative, displaying no violent, belligerent, or anti-social behavior after that time. Not only do Defendants not contend otherwise, but Ray, in his affidavit, expressly declares that Williams was placed in TOB restraints “without incident.” Ray Affidavit at ¶ 6. The unit log book also confirms that Williams “went voluntarily no force.” Unit 3 Log Book (2/10/88 — 4/27/88). Ray also admits that Williams was restrained “for destroying/breaking his toilet,” and does not contend that the restraints were applied in order to prevent any anticipated further violence. Ray Affidavit at ¶ 8. Vidor, in his affidavit, also declares that “Williams was placed in TOB restraints because he damaged cell property,” but Vidor notes that the restraint also served to prevent possible further damage to cell property. Vidor Affidavit at ¶ 25. Significantly, however, Vidor does not state any reason for believing that such further damage was anticipated in Williams’s case; rather he merely attests in general terms that but for TOB restraints, “prisoners could destroy cells continuously,” Id. at ¶ 7, and that but for restraints Williams “would still have enough mobility to damage his cell if he choose [sic] to do so.” Id. at ¶ 27 (emphasis added). Vidor acknowledges that approximately a half hour passed, without any further display of violence by Williams, between the time that Williams damaged his toilet and the time that he was escorted from his cell. Id. at ¶¶ 5, 7. It is helpful to review in some detail the 72 hours that Williams spent shackled to a bed, in order to indicate just how little attention Williams actually received. A nurse checked on Williams shortly after he was placed in TOB. Williams complained of pain, but did not want to take Tylenol. At that time, a note was entered into the unit log stating that “Williams is on 15 minute watch because of TOB restraints.” Unit Log Book, supra. This requirement of a 15 minute check is in accordance with Michigan Department of Corrections Policy Directive PD-BCF-32.02, page 4, subpart (d), (quoted infra), which was *861 in effect at the time. This directive also requires that each 15 minute check must be documented. For the next 20 hours, however, there is no indication that anyone checked on Williams every 15 minutes. To the contrary, subsequent notations in the log pertaining to Williams occur only hours apart. In light of the fact that, as of the following morning, the log does show that Williams was checked every 15 minutes, and in light of the fact that the relevant policy directive mandates documentation of each 15 minute check, it is fair to assume that Williams was not checked except at the times specifically noted in the log. At 2:45 p.m., Williams was offered a bathroom break. Half an hour later, nurses checked on Williams, offered him another bathroom break, and ascertained that his circulation was fine. Four hours later, his restraints were checked again. Two and a half hours later, at 9:20 p.m., he enjoyed another bathroom break. His restraints were checked again at 12:30 a.m., March 26th, and he was offered water and the use of the bathroom at 2:50 a.m. At 4 a.m., Williams complained that the stomach chain was irritating his colostomy stitches. A nurse placed a pillow between the stitches and the chain. Between 6:40 a.m. and 2 p.m., Williams was checked every 15 minutes. He was offered water and use of the restroom regularly, and he was fed twice. He complained of pain at 12:20 p.m. The nurse offered him Tylenol, but he wanted something stronger. After the 6 to 2 shift left, Williams was no longer cheeked every 15 minutes. The next log entry was at 3:10 p.m., when Williams was again offered use of the bathroom. Williams enjoyed no further interaction for the next four hours. At 7:45 p.m., and again at 9:20 p.m., he was checked and was offered bathroom breaks. At 12:20 a.m., on March 27, he was checked again. At 2:50 a.m., he was offered another bathroom break, and at 5:45, he was checked again. Like the previous day, Williams was checked every 15 minutes by the 6 to 2 shift. He was offered water and use of the bathroom regularly, was given a cigarette, and was fed. After the shift changed, Williams was not checked again until 3:20 p.m. Williams was allowed to smoke a cigarette at 5:30 p.m. and was given water at 7:30 p.m. There was no interaction for the next six hours. The next time Williams was checked was 1:30 a.m. on March 28. He was not checked again until four hours later. The 6 to 2 shift again checked on Williams regularly, but there is no indication that they fed him. Defendant Vidor instructed that Williams be taken off of TOB at 11:22 a.m., Monday, March 28. According to Defendants, in the 72 hours that Williams had been chained to the bed, he was checked only eight times by nurses. Defendant’s Brief at 6. Vidor declared in his affidavit that Williams was finally removed from TOB restraints because he was no longer hostile. Vidor does not contend, however, that Williams had ever been hostile between the time he was escorted from his cell three days earlier, and the time he was finally released from the restraints. During this period, it is uncontroverted that Williams displayed no violent, belligerent, or anti-social behavior whatsoever. Williams’s affidavit indicates, among other things, that he pleaded with a guard and a nurse to be allowed out of the restraints, and that they replied that they could not remove him because it was a weekend. Similarly, Vidor admits in his affidavit that he did not review Williams’s situation between Friday, March 25, and Monday, March 28. When the district court granted Defendant’s summary judgment motion, it found that Williams demonstrated a “threat of continued destructive behavior,” and expressly gave full credence to Defendants’ version of the facts, even while acknowledging that Plaintiff offered a different version of them, and that the court must construe contested facts in Plaintiffs favor. J.A at 20-21, 24. Oddly, even though Williams’s affidavit was properly attached to his motion for summary judgment, the court failed to take notice of it, and erroneously held that “Plaintiff has not responded to defendants’ motion with affida-vits_” Id. at 22. *862 Next, the district court held that the use of the TOB restraints for three days was reasonable as a matter of law. Id. at 24. The court concluded, solely from the note in the log at the beginning of Williams’s 72 hours in TOB restraints, that Williams was checked every 15 minutes for the full three days, ignoring the fact that the rest of the log book clearly indicates otherwise. Id. at 26. Defendants do not assert in their affidavits that Williams was checked this often. Similarly, the district court found that Williams was offered a bathroom break every two hours, but the log shows otherwise, and the record is utterly devoid of any evidence to support the court’s finding. Id. II The reason that I must dissent from Section III of the majority decision is that genuine issues of material fact remain with regard to Defendant Ray. The majority states that “the record shows without dispute that [Ray] did not make the decision to place Williams in the TOB regime, did not make the decision to keep Williams there for any particular period of time and that he did carry out his duty, personally or by guards under his direction, to check on Williams from time to time.” Op. at 859, supra. The record does not support this statement. To the contrary, it indicates vast disagreement regarding whether Ray actually carried out his duties toward Williams. First, according to Williams’s version of the facts, as early as 11:00 a.m. Friday, Ray declared that Williams would spend “days” in restraints. If this were true, it would indicate a flagrant disregard of several provisions of Policy Directive PD-BCF-32.02 (effective 9/85 to 10/88), issued by the Michigan Department of Corrections. 1 In particular, the directive provides that any continued restraint beyond 2 hours must be approved by the warden or his deputy, and staff, (which of course includes Ray), is responsible for re *863 moving the restraints as soon as the need for them no longer exists. Thus, it is not surprising that Ray denies this allegation. What is surprising, however, is that neither the trial court nor the panel majority regards this as a dispute of material fact. Second, even without the benefit of counsel, Williams managed to allege both in his affidavit to the court below, and in his brief on appeal, that Ray failed to comply with several other aspects of this policy directive. The directive requires that an inmate in restraints must be checked every 15 minutes. The log book indicates that this was not done. The directive also requires that a restrained inmate must have the opportunity to receive drinking water and to take a bathroom break every two hours. This, too, did not occur. Finally, as mentioned above, the directive mandates that “staff’ must remove TOB restraints as soon as the restrained inmate’s behavior permits. Construing the facts in Williams’s favor, as we must in this summary judgment posture, Ray may have borne the responsibility for complying with this mandate in Vidor’s absence. Especially in light of the fact that Williams has not yet had the benefit of legal representation in this matter, it is grossly unfair to not allow Williams, upon remand, to argue that Ray’s failure to execute his duties resulted in the violation of Williams’s Eighth Amendment and due process rights. Ill Although I join in sections IV through VI of the majority opinion, I wish to address some issues that are relevant to these sections that are unaddressed in the majority opinion. The Eighth Amendment prohibits both “barbarous physical punishments,” and “punishments which, although not physically barbarous, involve the unnecessary and wanton infliction of pain.” Rhodes, v. Chapman, 452 U.S. 337, 345-46 , 101 S.Ct. 2392, 2399 , 69 L.Ed.2d 59 (1981). In Stewart v. Rhodes, 473 F.Supp. 1185, 1193 (S.D.Ohio 1979), aff'd without op., 785 F.2d 310 (6th Cir.1986), the court held, and the Sixth Circuit affirmed that, although TOB restraints may be necessary to control a violent inmate, it is a violation of the Eighth Amendment to use them to punish an inmate. The court stressed that the constitutional use of such restraints was limited to instances “when the inmate threatens suicide or experiences a violent episode- of mental instability, or needs to be completely subdued for a very short period of time after behaving violently toward another person.” Id. In the present case, the uneontroverted evidence is that Williams was completely docile at the time he was restrained, and thereafter for the full three days he remained in TOB restraints. He displayed no violence toward anyone, and the only violence he displayed prior to being restrained, (which was merely directed at a toilet), had since subsided. Under Stewart , the use of TOB restraints under these circumstances violated Williams’s Eighth Amendment rights. The district court attempted to distinguish Stewart on its facts. It pointed out that in Stewart , the plaintiffs were not allowed to use toilets and were not fed while they were restrained. However, the district court in the present case failed to notice that most of the propositions of law set forth in Stewart did not turn on these particular facts, but applied to the use of TOB restraints in general. In my view, the only reason that Plaintiff is not entitled to summary judgment on this issue is that there remains a genuine issue of material fact as to the extent to. which Vidor and Ray, together with other corrections officers, share the responsibility for violating Williams’s rights. IV I agree with the majority that the factual record as regards Williams’s due process claim was not well developed in the court below, and that remand is therefore appropriate. In particular, it' is not clear to what extent Vidor and Ray are themselves liable for violating Williams’s due process rights. Nevertheless, I believe that the relevant law on this subject is clear, and it may be helpful *864 to the parties and to the court below to review it. The Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property without due process of law,” and protects “the individual against arbitrary action of government.” Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 459-60 , 109 S.Ct. 1904, 1908 , 104 L.Ed.2d 506 (1989); Meachum v. Fano, 427 U.S. 215, 223 , 96 S.Ct. 2532, 2538 , 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 558 , 94 S.Ct. 2963, 2975 , 41 L.Ed.2d 935 (1974). Due process claims are to be handled in two steps: first, one asks whether a liberty or property interest exists that has been interfered with by the state; second, one determines whether the procedures attendant upon that deprivation were constitutionally sufficient. Thompson , 490 U.S. at 460 , 109 S.Ct. at 1908 . Liberty interests that are protectible under the due process clause can arise either directly from the Constitution, or indirectly from the laws of the states. Id. A state creates a liberty interest by placing substantive limitations on official discretion. Id. at 462 , 109 S.Ct. at 1909 . The test for determining whether a liberty interest flows directly from the due process clause is whether the interest is “qualitatively different from the punishment characteristically suffered by a person convicted of crime.” Id. at 460 , 109 S.Ct. at 1908 . In Thompson , for example, the Court held that denial of prison access to a particular prisoner was not protected directly by the due process clause, because such a denial “was well within the terms of confinement ordinarily contemplated by a prison sentence.” Id. at 461 , 109 S.Ct. at 1909 . Applying this reasoning to the present case, TOB restraints are not at all within the terms of confinement ordinarily contemplate ed by a prison sentence, and they are indeed qualitatively different from characteristic punishments. Thus, the liberty interest of being free from TOB restraints flows directly from the due process clause of the Constitution. It is also an interest created by Michigan law. See Policy Directive PD-BCF-32.02 (quoted supra). The language in the directive is obviously mandatory, and it clearly places substantive limits on a prison official’s discretion to use TOB restraints. The court below erred to hold otherwise. As per Thompson , through this policy directive, the State of Michigan created liberty interests on the part of Williams that are protected by the due process clause. The next step is to determine what process was due. At minimum, Williams was at least entitled to the protections granted in the policy directive. But it is clear that these protections were not provided to Williams. Williams was restrained far beyond the degree necessary to gain control over him, and far more than was necessary to ensure the safety of persons or property; apparently, the restraints were applied in order to punish Williams for damaging his toilet, rather than to prevent any further anticipated acts of violence; no consideration was given to placing Williams in a modified cell without restraining him, and such placement never “prove[d] to be inadequate to control the prisoner’s behavior”; belly chains were applied even though soft restraints would have been effective; Williams was not offered the opportunity to use toilet facilities and obtain drinking water at least every two hours; he was not visually checked every 15 minutes with the check recorded on the appropriate document; medical staff visited him eight times in three days, which is far less often than twice each shift; and Williams’s restraints were not removed as soon as his behavior permitted. Therefore, Williams’s due process rights were violated. The only question remaining is whether, and to what extent, Vidor and Ray were the ones responsible for these violations, or whether other prison officials shared this responsibility. V State prison officials are entitled to qualified immunity from damage liability under § 1983. Procunier v. Navarette, 434 U.S. 555 , 98 S.Ct. 855 , 55 L.Ed.2d 24 (1978). Under the qualified immunity doctrine, Plaintiff is entitled to recover from prison officials only if the officials knew or should have known that they were violating “clearly es *865 tablished statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). In the present case, any reasonable prison official knew or should have known that one does not chain to a bed for three full days a docile, cooperative prisoner. They reasonably should have known that they were interfering with a liberty interest created by both the Constitution and Michigan’s own policy directive. The Sixth Circuit affirmed Stewart in 1986, and so knowledge of Stewart is imputed to Defendants. Similarly, the due process doctrine described above has been well-settled for decades. See, e.g., Meachum, 427 U.S. at 223-24 , 96 S.Ct. at 2537-38 ; Wolff, 418 U.S. at 558 , 94 S.Ct. at 2975 . It follows that a qualified immunity defense is not available to Defendants in the present case. VI For the foregoing reasons, I would reverse the grant of summary judgment in favor of Ray. I join the court in reversing the grant of summary judgment in favor of Vidor, and in remanding the matter in order to determine the extent to which Vidor and other prison officials share liability for violating Williams’s constitutional rights. I agree with the majority regarding the need for prompt appointment of counsel in this matter. Vidor’s affidavit suggests that an unnamed Assistant Deputy Director may share liability with Vidor, or may even be wholly liable, for violating Williams’s rights. See § IV infra. Without expressing any opinion as to whether some facts may be uncovered that could toll the relevant statute of limitations, I note that Michigan has a six year statute of limitations governing this § 1983 action, and that the events underlying this suit took place from March 25-28, 1988. Therefore, the district court should not only act promptly in appointing counsel, but should also expressly caution the appointee that, if Williams wishes to amend his complaint to add other defendants, counsel would be wise to do so before March 25,1994, so as to avoid any potential statute of limitations difficulties. . The express objective of this policy directive is: To assure that prisoners who are suicidal, destructive, violent, or who display signs of imminent violence, are properly controlled through methods most appropriate to their condition and are subject to no more than the amount of force and physical restraint necessary to ensure the safety of the prisoner him/herself, of staff and other prisoners, and/or to protect state property. The directive provides, in pertinent part: When it is necessary to overpower and restrain a prisoner who constitutes a danger to self or others, or who is destroying state property, only that amount of force which is necessary to gain control over the person is permitted. Such actions may never be capricious, retaliatory or punitive under any circumstances. # # * # * * When there is the opportunity to plan strategy in advance when dealing with prisoners who are suicidal, destructive, violent, or who display signs of imminently becoming violent, the shift commander or assistant shift commander must be in charge and at the scene. Sufficient staff will be mustered because a show of superior strength and preparedness will often convince the prisoner that resistance is futile. If possible, the supervisor at the scene must listen to the prisoner's side of the issue, explain to the prisoner what must be done, and outline the alternatives which the prisoner faces. * ***** * Upon gaining physical control over the prisoner, initial consideration shall be given for placing him/her into a "stripped” cell or room, quiet room, suicide observation room or psychiatric seclusion room, as appropriate. However, if these modified cells or rooms prove to be inadequate to control the prisoner’s behavior, physical restraints may be applied, subject to the following safeguards: (a) Soft (leather) restraints must be used if feasible. Hard restraints (metal handcuffs, belly chains and leg irons) shall only be applied if soft restraints have proven ineffective. ... (d) Restrained prisoners must be offered the opportunity to use toilet facilities and shall have access to fresh drinking water every two hours when awake. They shall be fed by staff at mealtime if it is not considered safe to remove the restraints for self-feeding. They must be visually checked by staff every 15 minutes which is to be documented on the door card. (e) Use of restraints beyond an 8-hour period requires the supervision of medical personnel. They shall visit the prisoner at least twice during each shift.... (f) Restraint equipment may not be used to secure a prisoner to a stationary object. However, in some instances, it may be necessary to restrain the prisoner on top of a bed. In such cases, his/her arms will be positioned by the prisoner's side, not above his/her head. Staff must also periodically rotate the prisoner's position to prevent soreness or stiffness. (g) Staff is responsible for removing the restraints as soon as the need for them no longer exists.... --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486480. Public record. Not legal advice.