United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
an inmate at the Southern Ohio Correctional Facility
("SOCF'), brings this prisoner civil rights action
under 42 U.S.C. § 1983 alleging that defendant Bear used
excessive force against him and defendants Bear, Keating,
Andre, Hart, and Reiter were deliberately indifferent to his
medical needs. (Doc. 5). This matter is before the Court on
defendants' motion to dismiss (Doc. 12), plaintiffs
response in opposition (Doc. 16), and defendants' reply
memorandum (Doc. 18). I. Background
Plaintiff filed his complaint in this matter on April 20,
2017, and this Court subsequently conducted a sua
sponte review of the complaint. (Docs. 5, 6). This Court
concluded by Report and Recommendation that plaintiff could
proceed with his Eighth Amendment claims against defendants
Bear, Keating, Andre, Hart, and Reiter based on his
allegation that defendant Bear used excessive force against
him and these defendants were deliberately indifferent to his
medical needs. (Doc. 6 at 3-4). The Court dismissed
plaintiffs claims against defendants in their official
capacities for monetary damages. (Id., at 4). The
Court also dismissed plaintiffs Fourteenth Amendment claims
against defendants Sammons, Felts, Green, and Mohr, and
plaintiffs claim against defendant Bear for allegedly writing
a false conduct report. The District Court adopted the Report
and Recommendation on May 22, 2017. (Doc. 9).' With
regard to the remaining Eighth Amendment claims against
defendants, plaintiff alleges that on December 16, 2015,
defendant Bear sprayed him at close range in the face with a
fogger can of pepper spray while he "wasnt [sic] doing
anything wrong." (Complaint, Doc. 5 at 1). Plaintiff
alleges that he was escorted to the segregation unit where
defendants Bear, Keating, and Andre denied him
decontamination and defendants Hart, Bear, Keating, Andre,
and Reiter denied him medical attention. (Id.).
Plaintiff alleges that he had trouble breathing and
defendants placed him in a cell that contained no water and a
"piece of a [sic] inside of a mat." (Id.
at 2). Plaintiff further alleges that defendants left him in
handcuffs inside the cell and left him there to "suffer
the mitigating effects of the pepper spray on [his] body and
Defendants' motion to dismiss (Doc. 12)
move to dismiss plaintiffs complaint pursuant to Fed.R.Civ.P.
12(b)(6) on the ground the complaint fails to state a claim
upon which relief can be granted. (Doc. 12). Defendants
contend that plaintiff fails to state cognizable claims under
42 U.S.C. § 1983 for Eighth Amendment excessive force
and deliberate medical indifference. (Id. at 5).
Defendants also contend that they are entitled to qualified
immunity. (Id. at 12).
Rule 12(b)(6) standard
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.
2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)). Only "a short and plain statement
of the claim showing that the pleader is entitled to relief
is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)),
"[T]he statement need only give the defendant fair
notice of what the . .. claim is and the grounds upon which
it rests." Id. ' Plaintiff subsequently
filed a motion for relief from judgment (Doc. 14) on June 9,
2017, which remains pending. (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks
omitted) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)). Although the plaintiff need not
plead specific facts, the "[f]actual allegations must be
enough to raise a right to relief above the speculative
level" and to "state a claim to relief that is
plausible on its face." Id. (quoting
Twombly, 550 U.S. at 555, 570). A plaintiff must
"plead factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
well-settled that a document filed pro se is "to be
liberally construed" and that a pro se complaint,
"however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers
[, ]" Erickson, 551 U.S. at 94 (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, the Sixth Circuit has recognized that the Supreme
Court's liberal construction case law has not had the
effect of "abrogating] basic pleading essentials"
in pro se suits. Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989).
Defendants' motion to dismiss plaintiffs Eighth Amendment
excessive force claim should be denied.
contend that plaintiffs excessive force claim should be
dismissed because he pleads no facts suggesting that the use
of force was objectively unreasonable. (Doc. 12 at 7). Citing
to a conduct report attached to plaintiffs complaint,
defendants argue that "[p]Iaintiff was acting
aggressively, and was told not to turn around."
(Id.). Defendants also argue that while one handcuff
was on plaintiffs hand, he turned around aggressively and
made a "hocking sound" as though plaintiff was
going to spit on defendant Bear. (Id.). Defendants
contend that the pepper spray "appears to have been
applied in a good-faith effort to maintain or restore
discipline." (Id.) (citing Whitley v.
Albers, 475 U.S. 312, 321 (1986)).
convicted prisoner's right to be free from the use of
excessive force by prison officials is governed by the Eighth
Amendment. Whitley, 475 U.S. at 327. An Eighth
Amendment claim has both an objective and subjective
component. Cordell v. McKinney, 759 F.3d 573, 580
(6th Cir. 2014) (citing Santiago v. Ringle, 734 F.3d
585, 590 (6th Cir. 2013)). The subjective component focuses
on "whether force was applied in a good faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm." Id. (quoting
Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In
making this inquiry, the Court should consider the need for
the use of force, the relationship between that need and the
type and amount of the force used, the threat reasonably
perceived by the official, the extent of the injury
inflicted, and any efforts made to temper the severity of a
forceful response. See Hudson, 503 U.S. at 7;
Whitley, 475 U.S. at 319-21. The inmate is not
required to suffer a serious injury, but the extent of his
injuries may be considered in determining whether the force
used was wanton and unnecessary. Hudson, 503 U.S. at
objective component requires the "pain inflicted to be
'sufficiently serious'" to offend
"contemporary standards of decency."
Cordell, 759 F.3d at 580 (quoting Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011);
Hudson, 503 U.S. at 8). "While the extent of a
prisoner's injury may help determine the amount of force
used by the prison official, it is not dispositive of whether
an Eighth Amendment violation has occurred."
Id. at 580-81 (citing Wilkins v. Gaddy, 559
U.S. 34, 37 (2010)). "When prison officials maliciously
and sadistically use force to cause harm, contemporary
standards of decency always are violated ... [w]hether or not
significant injury is evident. Otherwise, the Eighth
Amendment would permit any physical punishment, no matter how
diabolic or inhuman, inflicting less than some arbitrary
quantity of injury." Id. at 581 (quoting
Hudson, 503 U.S. at 9).
stage in the proceedings, the Court finds that plaintiff has
pleaded sufficient facts satisfying both the objective and
subjective elements of an Eighth Amendment excessive force
claim. The complaint alleges that defendant Bear sprayed
plaintiff in the face with pepper spray at close range when
plaintiff "wasnt [sic] doing anything wrong." (Doc.
5 at 1). Defendant Bear's actions, if true, suggest that
the force used was unnecessary and not applied in a good
faith effort to maintain or restore discipline, but rather to
cause harm, and thus satisfying the subjective component of
an Eighth Amendment excessive force claim. Hudson,
501 U.S. at 7. See also Williams, 631 F.3d at 384
(plaintiff stated a valid excessive force claim when he
"allege[d] that, when instructed to 'pack up, '
he inquired, 'What for, sir?, ' at which point an
'assault team' entered the cell and used a chemical
agent on him."); Roberson v. Torres, 770 F.3d
398, 406-07 (6th Cir. 2014) (denying qualified immunity at
the summary judgment stage to defendants who allegedly
sprayed an inmate with a chemical agent while he was
has also pleaded sufficient facts satisfying the objective
component of an Eighth Amendment excessive force claim.
Plaintiff has alleged that as a result of the pepper spray
application, he suffered an injury in the form of difficulty
breathing. (Doc. 5 at 1). Defendants argue that plaintiff has
not alleged a "serious injury beyond the normal
discomfort associated with being exposed to pepper
spray." (Doc. 12 at 8). However, the Supreme Court has
consistently rejected the notion that a serious injury is a
threshold requirement for stating an excessive force claim.
Wilkins, 559 U.S. at 37 (citing Hudson, 503
U.S. at 7). Here, plaintiffs allegation that he had
difficulty breathing after defendant Bear sprayed him with
pepper spray is sufficient to state a claim for excessive
force under the Eighth Amendment. Williams, 631 F.3d
at 384 (finding inmate's allegations of coughing and
shortage of oxygen sufficient to satisfy the objective
component of an Eighth Amendment excessive force claim).
Cf. Jennings v. Mitchell,93 Fed.Appx. 723, 724 (6th
Cir. Mar. 12, 2004) (explaining that ...