Leary v. Livingston County

528 F.3d 438, 2008 U.S. App. LEXIS 12370, 2008 WL 2340231

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 10, 2008
• Docket: 06-2603, 06-2604
• Status: Published

Opinions

SUTTON, J., delivered the opinion of the court, in which McKEAGUE, J., joined. CLAY, J. (pp. 445-55), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

Not long after word spread at the Livingston County Jail that detainee Shaun Leary had been charged with raping a nine-year-old girl, several prisoners beat him up. At stake in this § 1983 action is, one, whether officer Scott Stone was deliberately indifferent to Leary’s safety needs and, two, whether officer Denis McGuekin used excessive force against Leary when he hit him on the back of his neck while walking him to his cell. As to Stone, we affirm the district court’s denial of qualified immunity; as to McGuekin, we reverse the district court’s denial of qualified immunity because the force used was de minimis.

I.

Just after noon on Friday, February 11, 2000, police arrested Leary on charges of criminal sexual conduct against a minor and brought him to the Livingston County Jail. During the intake process later that night, according to Leary, officer Denis McGuckin called Leary a “sick prick” and struck him on the back of the neck.' JÁ 640. That same evening, according to Leary, officer Scott Stone “mention[ed] to [Leary] that once other inmates found out what he did that there would be no protection from anyone here at the jail,” JA 391, and proceeded to tell other inmates that Leary “was in for raping a nine year old girl,” JA 846. The inmates began harassing Leary about the child-rape charges on Sunday morning and beat him severely that evening. An ambulance took him to the hospital, where he was treated for facial fractures and a skull fracture.

Leary filed this § 1983 action against Livingston County, Stone and McGuckin. In ruling on the defendants’ motions for summary judgment, the district court denied qualified immunity to Stone as to the deliberate-indifference claim against him and denied qualified immunity to McGuc-kin as to the excessive-force claim against him. Stone and McGuckin filed this interlocutory appeal.

II.

To overcome a qualified-immunity defense in the setting of a constitutional tort, a plaintiff must establish (1) that the defendant violated a “constitutional right” and (2) that the right “was clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We decide the first question before we reach the second one. Id. at 200, 121 S.Ct. 2151.

A. •

Before addressing the merits of Stone’s appeal, we must consider a jurisdictional question. For some time now, it has been clear that we may entertain interlocutory appeals .from government officials challenging a denial of qualified immunity. See Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). But that jurisdiction does not extend to appeals that merely quibble with the district court’s reading of the factual record, as opposed to appeals that challenge the legal premises of the district court’s 'decision—such as what the relevant constitutional provision requires, whether plaintiffs record-supported allegations violate that constitutional guarantee and whether that constitutional right was clearly established at the time of the underlying incident. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996); Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Floyd v. City of Detroit, 518 F.3d 398, 404-05 (6th Cir.2008); Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397, 403 (6th Cir.2007).

Stone’s appellate papers are not a model of clarity. Some of his arguments merely push back on the district court’s reading of the record-supported factual allegations, including most conspicuously what the record says about Stone’s knowledge of the risk of harm to Leary. If that were all Stone’s appeal' did, we would lack jurisdiction over it. See Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir.2005). But that is not all Stone’s appeal does. Even after “taking the facts in the light most favorable to” Leary, Stone’s appeal also presents “a series of strictly legal questions,” Phelps v. Coy, 286 F.3d 295, 298-99 (6th Cir.2002): Did the conditions facing Leary pose an objectively “substantial risk of serious harm”? Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); see Br. at 23 (arguing that Leary could show no “substantial ¡risk of serious harm.” because Leary neither took the threats seriously nor sought help and because the officers were not aware of similar assaults in the past). And was the alleged constitutional violation “so clearly established at the time of the events in question that a reasonable officer would have known” that his conduct was unlawful in the situation he confronted? Phehps, 286 F.3d at 298; see Br. at 25-29 (citing the reasonable-officer standard on each page); Reply Br. at 16 (arguing that Leary did not meet his “burden to prove that no reasonable officer would have acted in the manner that Officer Stone acted in”); id. at 17 (arguing that Leary has not shown “that it would be clear to a reasonable officer that his conduct was unlawful in a situation he confronted”); see also id. at 15 (“[T]here is no clearly established law prohibiting a jail officer from talking to an inmate about another’s charge....”). Because “these are the kind of questions that may be raised by interlocutory appeal ... [,] we have jurisdiction over this appeal.” Phelps, 286 F.3d at 298-99; see also Livermore, 476 F.3d at 403.

To say that we have jurisdiction over Stone’s appeal, however, is not to say that he should prevail. To raise a cognizable deliberate-indifference claim, an inmate must show that the alleged mistreatment was “objectively” serious and that the defendant “subjectively” ignored the risk to the inmate’s safety. Farmer, 511 U.S. at 829, 834, 114 S.Ct. 1970. On this record and at this stage of the case, Leary has satisfied these requirements.

Objectively, the harm facing Leary was “sufficiently serious.” Id. at 834, 114 S.Ct. 1970 (internal quotation marks omitted). Stone told two inmates, Duane Kim-mel and Ross Hinchey, that Leary had been charged with raping a nine-year-old girl. McGuckin verified the risk of serious harm that Leary would face if the inmates learned of his charges: He “told [Leary] to keep his mouth shut about his charges ... [f]or his own safety” because he “fear[ed that someone might] assault[ ] him [for] a charge like that.” JA 696-97. Stone’s statement to Leary that “once other inmates found out what he did[,] there would be no protection from anyone here at the jail,” JA 391, confirmed that the inmates’ knowledge of such charges posed an objectively serious risk of harm.

Subjectively, Stone’s own words show he was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]” and that he “dr[ew] the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. “[0]nce other inmates found out what [Leary] did,” Stone knew there was reason to believe that Leary would need “protection ... at the jail,” JA 391, and he persisted in telling other inmates about Leary’s charges despite that knowledge. Nor does the record offer any evidence that Stone took any reasonable steps to protect Leary from the known substantial risk of serious harm.

Not only has Leary established a cognizable claim of deliberate indifference, but he also has shown that the right was clearly established: “[P]rison officials have a duty ... to protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833, 114 S.Ct. 1970 (internal quotation marks omitted); see also id. at 834, 837, 114 S.Ct. 1970. It thus would have been “clear to a reasonable officer that [this] conduct was unlawful in the situation [Stone] confronted.” Saucier, 533 U.S. at 202, 121 S.Ct. 2151. The district court correctly rejected Stone’s motion for summary judgment.

B.

Because Leary is a pretrial detainee, he brings his excessive-force claim against McGuckin under the Fourteenth Amendment’s Due Process Clause, which “protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395 n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also United States v. Budd, 496 F.3d 517, 530 (6th Cir.2007). By contrast, convicted prisoners may bring excessive-force claims under the Eighth Amendment, see Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865, and “free citizen[s]” may bring such claims under the Fourth Amendment, see id. at 394, 109 S.Ct. 1865. While there is room for debate over whether the Due Process Clause grants pretrial detainees more protections than the Eighth Amendment does, see id. at 395 n. 10, 109 S.Ct. 1865, we need not resolve that debate here. Under either constitutional guarantee, an excessive-force claimant must show something more than de minimis force. See Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (Eighth Amendment); Bell v. Wolfish, 441 U.S. 520, 539 n. 21, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (Due Process Clause); Budd, 496 F.3d at 530-31; see also Riley v. Dorton, 115 F.3d 1159, 1167 (4th Cir.1997) (en banc).

The undisputed facts in this case show that Leary’s single allegation of force — that McGuckin hit him “[i]n the back of the neck” with the side of his hand, performing “a karate chop kind of deal”— was de minimis. JA 654. Leary, to start with, did not suffer any objectively verifiable injury from the blow. There was no hospital visit after the encounter, no doctor’s visit, no bruise, nothing in short to indicate that the encounter rose above a “negligible [use of] force” or caused anything more than a “trifling injury.” Riley, 115 F.3d at 1167. There is a good reason, it turns out, why there was no identifiable manifestation of injury: Leary himself testified at his deposition that the hit “didn’t hurt or nothing,” that he “didn’t have any injury” and that he never sought any medical treatment. JA 654. If “not ... every malevolent touch by a prison guard gives rise to a federal cause of action,” Hudson, 503 U.S. at 9, 112 S.Ct. 995, it would seem to follow' that a “malevolent” hit to the back of the neck that, in the claimant’s words, “didn’t hurt or nothing” does not give rise to a federal cause of action either, cf. Budd, 496 F.3d at 531 (explaining that more than de minimis force was alleged where the plaintiff testified that, after an assault, he requested medical attention and “had bumps on his head and bruising on his body”); Carlton v. Turner, No. 05-1009, — Fed.Appx.-,-, 2006 WL 955886, at *2 (6th Cir. Apr.12, 2006) (explaining that more than de minimis force was alleged where “plural assaults drew blood”).

While Leary said that McGuckin used “a karate chop kind of deal” when hitting him on the back of the neck, he not only downplayed the possibility that the force “hurt” him when he testified at his deposition, but he also downplayed at his deposition any notion that the officer was trying to hurt him. JA 654. As he testified, McGuckin “didn’t hit [him] that hard.” Id. And, as he further testified, apparently to downplay the amount of force used, McGuckin hit him “the way a woman would hit a man.” Id.; see also Bell-Bey v. Mayer, No. 98-1425, 1999 WL 1021859, at *2 (6th Cir. Nov.3, 1999); cf. Budd, 496 F.3d at 531 (explaining that more than de minimis force was used where an officer “rammed [plaintiffs] head into at least two different doors, slammed his head into a table, and repeatedly shoved him into a wall”).

Nor can Leary create a triable issue of fact simply by pointing to discrepancies between his complaint (which said that the slap hurt) and his deposition testimony (which said that the slap did not hurt). When a claimant’s testimony contradicts the allegations in his complaint, we will credit his later testimony. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (noting that a summary judgment motion “requires the nonmoving party to go beyond the pleadings”); Fed.R.Civ.P. 56(e)(2) (“When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial.”); see also Scott v. Hams, — U.S.-, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007); Wysong v. City of Heath, 260 Fed.Appx. 848, 857 (6th Cir.2008). A claimant may not create a triable issue of fact by saying one thing in a complaint and something else in a deposition.

Pelfrey v. Chambers, 43 F.3d 1034 (6th Cir.1995), does not lead to a different conclusion. There, we permitted an excessive-force claim to go to a jury where two officers pulled out their knives, approached the plaintiff, “grabbed” his hands and “forc[ed] them down to [his] side,” placed their hands on his head and shoulder, “cut[] off a great portion of [his] hair” with a knife, let him go and “stood there grinning[,] smiling [and] laughing and dropping [his] hair on the floor.” Id. at 1035 (internal quotation marks omitted). There is a considerable difference between the degree and nature of force used in that case and in this one. Not only did the officers “grab[ ]” the plaintiffs hands and “forc[e]” them down, but they also threatened him with weapons, held him in place and used a knife against him. They also instilled in the plaintiff an objective fear of serious physical harm- — he was “scared, intimidated, and threatened,” id. (internal quotation marks omitted) — something Leary does not claim and indeed positively disclaims by saying “it didn’t hurt or nothing,” JA 654.

Leary also relies on Hardy v. Vieta, 174 Fed.Appx. 923 (6th Cir.2006), but that case bolsters the conclusion that McGuckin used de minimis force. In Hardy, an officer “purposefully and intentionally push[ed] a steel door on” the plaintiff, “smashing] him between the steel door and a brick wall [and] injuring his arm and lower back.” Id. at 924. While “the extent of [the plaintiffs] injuries [was] not known,” id. at 926, no evidence in the record contradicted his allegation that he was injured to some degree. No less importantly, pushing and smashing an inmate into a steel door — so much so that another inmate heard a sound “like the door hitting something,” id. at 924 (internal quotation marks omitted) — differ in degree and kind from McGuckin’s “karate chop kind of deal,” which “didn’t hurt” and was not “that hard,” JA 654.

In the final analysis, this is an unusual case. It is not often that a constitutional tort claimant seeks relief for an alleged assault or battery but then says that the defendant’s actions “didn’t hurt or nothing” and never says that he felt threatened by the officer’s action. That is why we can agree with our colleague’s framing of the issue — that the question is whether the actual or threatened force was de minimis, not just whether the injury was de minim-is — but not with his conclusion.

No doubt, the complaint in this case sufficed to move the action from the pleadings stage to discovery. But Leary’s answers in discovery made it clear that McGuckin’s actions, while rude and unprofessional, did not rise to the level of a cognizable constitutional claim. As a matter of state tort law, it may be that “the least touching of another in anger is a battery,” but that does not make it “a violation of a constitutional right actionable under 42 U.S.C. § 1988.” Riley, 115 F.3d at 1167 (internal quotation marks omitted). The point of the de minimis rule is to make it clear that the Constitution does not become a “font of tort law” that the federal courts “superimpose[ ] upon whatever systems” the States already have. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Otherwise, every minor touching would become actionable, blurring the lines between the state courts’ enforcement of their tort laws and the federal courts’ enforcement of the Constitution. Whatever else non-actionable de minimis force may be, it must include a touching that neither “hurt” nor threatened the individual.

III.

For these reasons, we reverse the denial of qualified immunity as to McGuekin, but we affirm as to Stone and remand for further proceedings.