UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NICHOLAS ROBERSON,

Plaintiff,

CASE NO. 2:09-CV-12927

v. JUDGE DENISE PAGE HOOD

MAGISTRATE JUDGE PAUL KOMIVES

J. TORRES, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION ON DEFENDANT TORRES’S MOTION FOR

SUMMARY JUDGMENT (docket #79)

I. RECOMMENDATION: The Court should grant defendant Torres’s motion for summary

judgment.

II. REPORT:

A. Procedural Background

Plaintiff Nicholas Roberson is a state prisoner who, at the times relevant to this action, was

incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan. Plaintiff commenced

this action on June 25, 2009, by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983

in the United States District Court for the Western District of Michigan. The case was transferred

to his Court on July 24, 2009, and plaintiff filed an amended complaint on August 12, 2009.

Defendants are Correctional Officers James Torres, Juan De Los Santos; Deputy Warden Lee

McRoberts; Resident Unit Manager Brian Evers; Shawne Sarnac and Jennifer Pirlot, employees in

the Corrections Mental Health Program; Grievance Coordinator James Eaton; and eight unknown

correctional officers.

In his amended complaint plaintiff alleges that defendants violated his Eighth Amendment

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rights by using excessive force, failing to protect him, and failing to appropriately respond to his

serious medical needs, and that they violated his First Amendment rights by retaliating against him

for the filing of grievances. Specifically, plaintiff alleges that on March 10, 2009, he was instructed

to move to the top bunk in his cell to make room for a new cell mate, and his current cell mate was

instructed to pack his belongings to move to another cell. He tried to explain to the officer that he

suffered from antisocial personality disorder, but was confronted by defendant Evers. Although he

and his cell mate were “slowly” complying with the orders they had been given, the Emergency

Response Team (ERT) was called. Defendant De Los Santos asked plaintiff and his cell mate if they

were ready to move, and plaintiff responded that he was not the one moving. At that point, defendant

De Los Santos sprayed him with a chemical agent. He and his cell mate were assaulted by the

members of the ERT, and he was again sprayed with a chemical agent. He was then removed from

the cell and placed in segregation. As a result of this incident, plaintiff alleges, he fell into a state

of depression. He was placed in a suicide observation cell, even though he denied any suicidal

ideation. While in that cell, he was under constant surveillance. He was woken up and again sprayed

with a chemical agent, and transferred to Duane L. Waters hospital. Defendant Torres wrote a

misconduct ticket against plaintiff based on the initial incident in the cell.

When he was returned to the prison after his release from the hospital, plaintiff was informed

that his psychological treatment team had been switched by defendant Pirlot, and that his new

therapist was defendant Sarnac. Plaintiff alleges that defendant Sarnac failed to meet with him and

falsely corroborated the claims in the misconduct ticket written by defendant Torres. In a subsequent

meeting with defendant Pirlot, she threatened to have him removed from the residential treatment

program and placed in an out-patient program because of his complaints. Plaintiff alleges that he

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filed grievances and sent letters regarding these incidents, but his complaints were denied by

defendant Eaton. He also alleges that defendant Pirlot was responsible for him being transferred to

a maximum security prison, where only an out-patient treatment program is available. See Amended

Compl., at 4-10. Plaintiff was subsequently appointed counsel, and is currently proceeding through

counsel.

On September 27, 2010, the Court, accepting my Recommendation, granted in part and

denied in part a motion for summary judgment filed by defendants. Specifically, the Court granted

summary judgment with respect to plaintiff’s claims against defendants McRoberts, Evers, and

Eaton. Plaintiff subsequently voluntarily dismissed his claims against defendant De Los Santos.

Thus, the claims which remain pending are those asserting excessive force against the eight unnamed

correctional officers based on the initial entry into his cell and his being sprayed with a chemical

agent, and his claim against defendant Torres based on the second chemical agent incident. On June

7, 2012, defendant Torres filed this motion for summary judgment. He contends that there is no

genuine issue of material fact that would establish that his actions constituted excessive force under

the Eighth Amendment, and that he is entitled to qualified immunity. Plaintiff, through counsel, filed

a response to the motion on June 28, 2012, and defendant filed a reply on July 5, 2012. 

B. Legal Standard

Under Rule 56, summary judgment should be granted “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Hedrick v. Western Reserve Care Sys., 355 F.3d

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444, 451 (6th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A fact

is material only if its resolution will affect the outcome of the lawsuit.” Hedrick, 355 F.3d at 451-52

(citing Anderson, 477 U.S. at 248). In deciding a motion for summary judgment, the Court must

view the evidence in a light most favorable to the non-movant as well as draw all reasonable

inferences in the non-movant’s favor. See Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603,

613 (6th Cir. 2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

“The moving party has the initial burden of showing the absence of a genuine issue of

material fact as to an essential element of the non-moving party’s case.” Hedrick, 355 F.3d at 451

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To meet this burden, the moving party

need not produce evidence showing the absence of a genuine issue of material fact. Rather, “the

burden on the moving party may be discharged by ‘showing’ -- that is, pointing out to the district

court -- that there is an absence of evidence to support the non-moving party’s case.” Celotex Corp.,

477 U.S. at 325. “Once the moving party satisfies its burden, ‘the burden shifts to the nonmoving

party to set forth specific facts showing a triable issue.’” Wrench LLC v. Taco Bell Corp., 256 F.3d

446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)); see also, FED. R. CIV. P. 56(e).

To create a genuine issue of material fact, however, the non-movant must do more than

present some evidence on a disputed issue. As the Supreme Court has explained:

There is no issue for trial unless there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party. If the [non-movant’s] evidence is

merely colorable, or is not significantly probative, summary judgment may be

granted.

Anderson, 477 U.S. at 249-50. (citations omitted); see Celotex Corp., 477 U.S. at 322-23; Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Thus, “[t]he existence of a

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In his amended complaint, which he drafted pro se, plaintiff also asserted that defendants’

actions collectively violated his Fourth and Fourteenth Amendment rights, as well as his First

Amendment rights because they were taken in retaliation for his exercise of his First Amendment rights.

Defendant briefly addresses these claims in his motion, arguing that they are without merit. Plaintiff

does not address these arguments in his response, and it thus appears that he is proceeding only on his

claim that defendant Torres used excessive force under the Eighth Amendment. To the extent plaintiff

continues to press these alternative claims against defendant Torres, the Court should conclude that

defendant Torres is entitled to summary judgment on them. Although plaintiff generally asserts a First

Amendment retaliation claim, he does not specifically allege any facts that defendant Torres took an

adverse action against him in retaliation for his exercise of any First Amendment right, and thus he

cannot state a claim against defendant Torres. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999). Further, the Fourth Amendment is inapplicable to the claims of plaintiff, a prison inmate at the

time of the events at issue. See Bonilla v. Jaronczyk, 354 Fed. Appx. 579, 581 (2d Cir. 2009); cf. Hudson v.

Palmer, 468 U.S. 517, 525-26 (1984). Finally, because the Eighth Amendment provides a specific

constitutional standard for assessing plaintiff’s claim, “[t]he validity of the claim must . . . be judged by

reference to [this] specific constitutional standard,” rather than under the Due Process Clause of the

Fourteenth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989).

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mere scintilla of evidence in support of the non-moving party’s position will not be sufficient; there

must be evidence on which the jury could reasonably find for the non-moving party.” Sutherland,

344 F.3d at 613.

C. Analysis

Plaintiff asserts that defendant Torres violated his Eighth Amendment right to be free from

cruel and unusual punishment by spraying him with a chemical agent while he was sleeping. The

Court should conclude that defendant Torres is entitled to summary judgment on this claim.1

1. Excessive Force Generally

Unlike excessive force claims against police officers, which are analyzed for reasonableness under

the Fourth Amendment, claims that prison guards used excessive force against an inmate are

analyzed under the Eighth Amendment’s prohibition on cruel and unusual punishment. See Hudson

v. McMillian, 503 U.S. 1, 5-6 (1992). However, not “every malevolent touch by a prison guard gives

rise to a federal cause of action.” Id. at 9. In order to constitute cruel and unusual punishment

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prohibited by the Eighth Amendment, the plaintiff must establish both a subjective and objective

component. As to the subjective component, the actions of prison officials must constitute “‘the

unnecessary and wanton infliction of pain[.]’” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting

Ingraham v. Wright, 430 U.S. 651, 670 (1977)). Thus, in analyzing claims of excessive force by

prison officials, the Court’s inquiry focuses on “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at

7. In Hudson, the Court recognized factors relevant to a determination of whether the force was

wanton and unnecessary: (1) the extent of the injury suffered by the inmate; (2) the need for

application of force; (3) the relationship between the need for force and the amount of force used;

(4) the official’s reasonable perception of the threat posed; and (5) any efforts made by the officials

to temper the severity of their response. See Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at

321); see also, Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010) (per curiam). With respect to the

objective component, plaintiff must show that the defendants actions were “objectively harmful

enough” to offend “contemporary standards of decency.” Id. at 6.

To succeed on an Eighth Amendment excessive force claim, a plaintiff need not establish any

minimum quantum of injury sustained, and even force which causes no discernible injury may be

actionable. See Wilkins, 130 S. Ct. at 1178 (discussing Hudson, 503 U.S. at 9). However, “[t]his is

not to say that the ‘absence of serious injury’ is irrelevant to the Eighth Amendment inquiry. ‘[T]he

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.’ The extent of injury may also

provide some indication of the amount of force applied.” Id. (quoting Hudson, 503 U.S. at 7 (in turn

quoting Whitley, 475 U.S. at 321)).

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2. Analysis

Defendant Torres avers that he sprayed a single, three-second burst of a chemical agent after

plaintiff refused his order to back-up to the food slot so that he could be restrained in order to be

removed from the cell for a medical run. Plaintiff does not present any evidence that defendant

Torres did not give such an order, or that he complied with the order. Thus, the fact of the order

being given and being disobeyed is taken as true for purposes of this motion. There is a dispute,

however, as to whether plaintiff heard the order. Defendant Torres avers that plaintiff was fully

awake when he gave the order and repeatedly responded, “I’m not coming out, do what you have to

do.” Def.’s Mot., Ex. A, Aff. of James Torres, ¶ 4. Plaintiff testified in his deposition that he was

asleep in his cell with his blanket over his head. See Pl.’s Resp., Ex. A, at 25-26. Further, although

plaintiff asserts that he had difficulty breathing for a few minutes after the spraying, he does not

allege that he suffered any injury as a result of defendant Torres’s actions. Considering these facts

in light of the Hudson factors discussed above, the Court should conclude that defendant Torres is

entitled to summary judgment.

Here, even accepting plaintiff’s version of events, defendant Torres’s actions do not constitute

a wanton and unnecessary infliction of pain. Defendant Torres had issued an order with which

plaintiff refused to comply. Even assuming plaintiff was asleep at the time, defendant Torres had

no way of knowing this as petitioner’s head was covered with his blanket. The brief, single use of

a chemical agent, with no resulting injury, to secure plaintiff’s compliance was a reasonable amount

of force, and much less force than alternative measures such as entry into the cell by a team of armed

officers. There is no question that defendant Torres had a legitimate interest in having his order

obeyed. See Caldwell v. Moore, 968 F.2d 595, 601 (6th Cir. 1992) (quoting Soto v. Dickey, 744 F.2d

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1260, 1267 (7th Cir. 1984)) ( “‘Inmates cannot be permitted to decide which orders they will obey,

and when they will obey them. Someone must exercise authority and control.’”). There is also no

question that “even simple inmate recalcitrance, in the form of refusal of verbal orders, may justify

the use of tear gas/pepper spray/mace-like agents, in non-dangerous amounts, to obtain inmate

compliance so as to maintain institutional Order, even when the inmate is in handcuffs, or locked in

his cell when the chemical agent is used.” Enriquez v. Kearney, 694 F. Supp. 2d 1282, 1294 (S.D.

Fla. 2010) (citing cases); see also, Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002); Siggers

v. Renner, 37 Fed. Appx. 138, 140 (6th Cir. 2002); Soto, 744 F.2d at 1270. Petitioner does not allege

or present any facts to show that Torres’s purpose in using the chemical agent was to cause pain

rather than to secure compliance with his order, or that Torres used more than was necessary to

secure compliance. On the contrary, it is generally recognized that “the decision to use a chemical

agent to obtain physical control is generally preferable to the use of physical force.” Alspaugh v.

Dahl, No. 2:07-cv-136, 2008 WL 4425813, at *1 (W.D. Mich. Sept. 26, 2008); see also, Williams

v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (quoting Soto, 744 F.2d at 1262) (“A limited

application of mace may be ‘much more humane and effective than a flesh to flesh confrontation with

an inmate.”).

Plaintiff’s only argument to establish a constitutional violation is that there was no need to

use force at all because he was asleep. However, under his version of events plaintiff’s head was

covered by his blanket, and thus defendant Torres had no way of knowing that petitioner was asleep

rather than simply refusing to acknowledge Torres and obey his command. Whether, in hindsight,

the application of force was necessary does not determine whether an Eighth Amendment violation

has occurred. The relevant inquiry is whether the guard reasonably thought that force was necessary

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and used force commensurate with the perceived need, or rather maliciously used force for the

purpose of inflicting pain. In other words, the question is “whether the use of force could plausibly

have been thought necessary, or instead evinced such wantonness with respect to the unjustified

infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at 321.

As the Court explained, “[t]he infliction of pain in the course of a prison security measure . . . does

not amount to cruel and unusual punishment simply because it may appear in retrospect that the

degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary

in the strict sense.” Whitley, 475 U.S. at 319. Here, even assuming as true plaintiff’s version of

events, defendant Torres could have plausibly thought that plaintiff was willfully disobeying his

order and that the use of a limited means of obtaining compliance was necessary. Thus, petitioner

cannot show that defendant Torres’s use of a chemical agent constituted the wanton and unnecessary

infliction of pain, rather than as a reasonable means of obtaining compliance with his order.

Moreover, even if plaintiff could raise a genuine issue of material fact with respect to whether

defendant Torres violated his Eighth Amendment rights, defendant Torres is entitled to qualified

immunity.“Under § 1983 . . . , a plaintiff may seek money damages from government officials who

have violated her constitutional or statutory rights. But to ensure that fear of liability will not unduly

inhibit officials in the discharge of their duties, the officials may claim qualified immunity; so long

as they have not violated a clearly established right, they are shielded from personal liability.”

Camreta v. Greene, 131 S. Ct. 2020, 2030-31 (2011) (internal quotations and citations omitted).

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009). Thus,

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“[q]ualified immunity shields an officer from suit when she makes a decision that, even if

constitutionally deficient, reasonably misapprehends the law governing the circumstances she

confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). The inquiry into whether

a particular right is clearly established “‘must be undertaken in light of the specific context of the

case, not as a broad general proposition.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

However, it is not necessary that “the very action in question has previously been held unlawful.”

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation omitted). Rather, what is required is

that “in light of pre-existing law the unlawfulness . . . be apparent.” Id. (internal quotation omitted).

“[A]n action’s unlawfulness can be apparent from direct holdings, from specific examples described

as prohibited, or from the general reasoning that a court employs.” Feathers v. Aey, 319 F.3d 843,

848 (6th Cir. 2003) (citing Hope, 536 U.S. at 740-41); see also, Grawey v. Drury, 567 F.3d 302, 313-

14 (6th Cir. 2009). Under Brosseau, as the Sixth Circuit has explained, a plaintiff may show that a

defendant violated clearly established law by showing either that: (1) the violation was obvious under

the general constitutional standards governing the asserted right; or (2) the defendant’s conduct failed

to adhere to a particularized body of precedent that governs the case. See Lyons v. City of Xenia, 417

F.3d 565, 579 (6th Cir. 2005) (discussing Brosseau, 543 U.S. at 199-200).

Here, abundant case law makes clear that the use of a chemical agent is generally a

permissible means of obtaining compliance with a guard’s order. The undisputed facts show that

defendant Torres gave a lawful order to plaintiff and that plaintiff failed to comply with that order.

The facts in the light most favorable to plaintiff also show that, even if plaintiff was asleep at the time

of the order, that fact could not have been known to defendant Torres. Although in certain situations

the use of a chemical agent may constitute excessive force under the Eighth Amendment, “[t]he law

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is unclear regarding the parameters of the permissible use of pepper spray to address inmates who

disobey orders[.]” Jennings v. Hays, No. CV 10-8004, 2011 WL 1480038, at *9 (D. Ariz. Apr. 19,

2011). Because of this, and in light of the fact that plaintiff did not comply with defendant Torres’s

order, “even if [d]efendant[‘s] conduct violated the Eighth Amendment, that would not have been

clear to a reasonable officer in the situation confronted,” and defendant is therefore entitled to

qualified immunity. Id. at *10; see also, Howard v. Nunley, No. CV-06-00191, 2010 WL 3785536,

at *5-*6 (E.D. Cal. Sept. 24, 2010), aff’d, 465 Fed. Appx. 669 (9th Cir. 2012); cf. Davis v. City of

Albia, 434 F. Supp. 2d 692, 706-08 (S.D. Iowa 2006) (police officer entitled to qualified immunity

for use of pepper spray during arrest where contours of permissible and impermissible uses of pepper

spray were not clear and officer’s use did not fall into the category of clearly impermissible uses).

D. Conclusion

In view of the foregoing, the Court should conclude that, even in the light most favorable to

the plaintiff, the facts do not support a finding that defendant Torres violated plaintiff’s Eighth

Amendment right to be free from cruel and unusual punishment. The Court should also conclude

that, even if defendant Torres’s conduct did violate the Eighth Amendment, defendant is entitled to

qualified immunity. Accordingly, the Court should grant defendant Torres’s motion for summary

judgment.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R.CIV.P. 72(b). Failure to file specific objections constitutes a waiver of any further right of appeal.

Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505

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(6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which

raise some issues but fail to raise others with specificity, will not preserve all the objections a party

might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931

F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 1/3/13

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record and by

electronic means or U.S. Mail on January 3, 2013.

s/Eddrey Butts 

Case Manager

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