                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0255n.06
                             File: April 12, 2006

                                            No. 05-1009

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ADRIAN CARLTON,                                   )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )
                                                  )    ON APPEAL FROM THE UNITED
P. TURNER, Corrections Officer, et al.,           )    STATES DISTRICT COURT FOR THE
                                                  )    WESTERN DISTRICT OF MICHIGAN
       Defendants-Appellees,                      )
                                                  )
M. JOHNSON, Corrections Officer,                  )
                                                  )
       Defendant.                                 )




       Before: KENNEDY, MOORE and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Proceeding pro se, Adrian Carlton challenges the district court’s

rejection of his § 1983 claims against several employees of the Michigan Department of Corrections.

Because Carlton has shown that material factual disputes preclude the entry of summary judgment

against him with respect to his Eighth Amendment claim for improper use of force and with respect

to most of his related claims, we reverse in part and affirm in part.
No. 05-1009
Carlton v. Johnson

                                                  I.


       An inmate at the Baraga Maximum Correctional Facility in Michigan, Carlton witnessed two

corrections officers assault another prisoner on May 17, 2003. Twelve days later, two corrections

officers, P. Turner and R. Ekdahl, removed Carlton from his cell and took him to the office of the

Resident Unit Manager, W. Jondreau. Carlton Aff. at 2 (July 6, 2004) (D. Ct. Docket No. 74). After

the officers seated him in a chair and handcuffed his arms behind his back, they asked him what had

happened on May 17. Compl. at 3 (Jan. 7, 2004) (D. Ct. Docket No. 1); Carlton Br. in Opp. to Mot.

for Dismissal and Summ. J. at 1–2, 14 (June 29, 2004) (D. Ct. Docket No. 68). When Carlton began

to relate his account of the assault, Turner “struck [him] violently [on] the back of the head.”

Carlton Br. in Opp. at 7. And when he tried to give his account of the incident a second time, Turner

again struck him, “this time with greater force,” causing Carlton “to almost fall into the desk of [ ]

Jondreau.” Id. The second time, Carlton claims, “Turner had keys in his hands,” and when Turner

struck him, “some part of the keys injured [Carlton’s] head” by “cut[ing] and/or bust[ing] a small

hole” in his head, causing him to bleed. Id. at 16. The other officers in the room, Ekdahl and

Jondreau, “both . . . failed to stop” Turner from assaulting him, Carlton alleges. Carlton Aff. at 2.

Carlton was so “frighten[ed]” by these attacks that “after being instructed by [ ] Jondreau to write

a statement favorable to the officers, [Carlton] offer[ed] to give the statement in the form of a sworn

affidavit and thereafter he was instructed to back date the statement to the date of the incident.”

Carlton Br. in Opp. at 2.




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No. 05-1009
Carlton v. Johnson

       After the incident, Carlton “asked for medical attention” for his injury “and got nothing.”

Id. at 16. He concedes, however, that he “did not sustain a serious injury,” acknowledging that the

injury was “minor.” Id.


       Carlton later made an additional statement on behalf of the officers, one that (he alleges)

Hearing Investigator Stephen Raymond released to the prisoner involved in the May 17 incident, an

inmate named Jones. Compl. at 4. When Jones’ sister received a copy of the statement, she offered

to pay Carlton to withdraw it and threatened to harm him if he did not. Id.


       In the aftermath of these incidents, Carlton filed a pro se § 1983 action in federal court

against Turner, Ekdal, Jondreau and Raymond, alleging that they had violated his First, Eighth and

Fourteenth Amendment rights.        The defendants conceded that Carlton had exhausted his

administrative remedies. See Def. Br. in Supp. of Mot. for Dismissal and Summ. J. at 3–4 (June 22,

2004) (D. Ct. Docket No. 60) (“Department records show that he filed three grievances on these

issues and took each one to the third step.”). But they denied that any of these events took place and

accordingly moved to dismiss the complaint or in the alternative for summary judgment.


       The magistrate judge recommended that the district court grant defendants’ summary-

judgment motion. Over Carlton’s objections, the district court adopted the magistrate judge’s report

and recommendation. Carlton appealed. Expressing a belief that “the issues in this pro se appeal

are without merit,” the State of Michigan chose not to submit an appellate brief to this court on

behalf of the defendants. Letter from Linda M. Olivieri (Jan. 21, 2005).


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Carlton v. Johnson

                                                  II.


       Our standard of review in this setting is familiar. We give fresh review to the district court’s

grant of summary judgment, Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005); we “construe

all reasonable inferences in favor of the nonmoving party,” id.; and we will affirm the grant of

summary judgment if “no genuine issue of material fact” exists “and the moving party is entitled to

judgment as a matter of law,” id.


       It is a “settled rule” that “the unnecessary and wanton infliction of pain constitutes cruel and

unusual punishment forbidden by the Eighth Amendment.” Hudson v. McMillian, 503 U.S. 1, 5

(1992) (internal quotation marks and ellipses omitted). “What is necessary to establish an

unnecessary and wanton infliction of pain,” however, “varies according to the nature of the alleged

constitutional violation,” id. (internal quotation marks omitted), “for two reasons,” id. at 8. “First,

the general requirement that an Eighth Amendment claimant allege and prove the unnecessary and

wanton infliction of pain should be applied with due regard for differences in the kind of conduct

against which an Eighth Amendment objection is lodged.” Id. (internal quotation marks, ellipses

and brackets omitted). “Second, the Eighth Amendment’s prohibition of cruel and unusual

punishments draws its meaning from the evolving standards of decency that mark the progress of

a maturing society, and so admits of few absolute limitations.” Id. (internal quotation marks,

ellipses and brackets omitted).




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No. 05-1009
Carlton v. Johnson

        “[W]henever prison officials stand accused of using excessive physical force in violation of

the Cruel and Unusual Punishments Clause, the core judicial inquiry” is “whether force was applied

in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”

Id. at 6–7.       “When prison officials maliciously and sadistically use force to cause harm,

contemporary standards of decency always are violated,” “whether or not significant injury is

evident.” Id. at 9; see also id. (“Otherwise, the Eighth Amendment would permit any physical

punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of

injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as

it is today.”).


        Viewing the facts in the light most favorable to Carlton, they present a picture of

unacceptable conduct. The officers assaulted him twice for relating what he had seen during an

altercation between prison guards and another inmate, apparently in an effort to induce him to

change his story to coincide with the guards’ version of events. Seated and handcuffed, in a room

with no other inmates and with three prison officials present, Carlton could not have posed a threat

to the officers’ (or anyone else’s) safety. While not “every malevolent touch by a prison guard gives

rise to a federal cause of action,” id., and while “de minimis uses of physical force” do not support

a cognizable Eighth Amendment claim, id. at 10, that is not all that happened here. According to

Carlton’s allegations, the plural assaults drew blood, and even if the resulting injury was “minor”

(as Carlton acknowledges), that fact does not preclude him from stating a cognizable Eighth

Amendment claim in all settings. See Thaddeus-X v. Love, No. 98-2211, 2000 WL 712354, at *2


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No. 05-1009
Carlton v. Johnson

(6th Cir. May 22, 2000) (“While a de minimis use of force will not support an actionable claim, a

plaintiff may recover even if he suffers only minor injury.”) (citation omitted); Moore v. Holbrook,

2 F.3d 697, 700–01 (6th Cir. 1993) (concluding that if an inmate’s claims that “he was savagely

beaten on three occasions by the defendants for no reason” are true, “[u]nder the Hudson and Whitley

[v. Albers, 475 U.S. 312 (1986)] doctrines, [his] evidence would appear to show that defendants

acted in bad faith” even if his injuries—“he complained of soreness to his wrists, underarms,

shoulders, and groin, and that he had an ‘edema’ on his forehead, and that he did not dislocate or

fracture his right shoulder”—were only “de minimis for purposes of Eighth Amendment analysis”)

(internal quotation marks omitted); Kryling v. Sealscott, No. 98-3470, 1999 U.S. App. LEXIS 20322,

at *4 (6th Cir. Aug. 17, 1999) (“A de minimis use of force will not support an actionable claim, but

a plaintiff may recover even if he suffers only minor injury.”) (citations omitted).


       What makes this injury and claim cognizable under the Eighth Amendment is that the

officers provided no legitimate explanation for using force. While we will excuse exercises of force

“applied in a good-faith effort to maintain or restore discipline,” Hudson, 503 U.S. at 7, the officers

did not provide any justification for their conduct, see Moore, 2 F.3d at 700 (“To determine whether

a claim of assault rises to a level of constitutional magnitude, a court must consider the reasons or

motivation for the conduct, the type of force used, and the extent of the inflicted injury.”); id.

(holding that if officials assaulted an inmate “for no reason,” the evidence “would appear to show

that defendants acted in bad faith” in violation of Hudson); Al-Bari v. Guider, No. 96-6707, 1998

U.S. App. LEXIS 2947, at *7–8 (6th Cir. Feb. 19, 1998) (holding that inmate’s “version of the facts


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No. 05-1009
Carlton v. Johnson

supports a claim that defendant violated his Eighth Amendment rights” because “defendant used

force to inflict pain on plaintiff, not to maintain or restore order”); Thaddeus-X, 2000 WL 712354,

at *2 (“Abrasions, pain, and swelling . . . may be sufficient injury to support an Eighth Amendment

claim where, as here, there are genuine fact issues concerning the cause of plaintiff’s injury and the

justification for, and the reasonableness of, any force applied by defendant.”); Kryling, 1999 U.S.

App. LEXIS 20322, at *4 (holding that because the inmate “wore restraints and posed no physical

threat to” the guard when he assaulted the inmate, the inmate had stated a cognizable Eighth

Amendment claim).


          The critical question in this case is what happened: In other words, are Carlton’s allegations

true or false? If what Carlton says is true, he has stated a cognizable Eighth Amendment claim. If

not, the claim evaporates. Given that the claim rises or falls based on a credibility assessment of

what happened during this confrontation and given the few facts and arguments before us, the case

should go to a factfinder to determine who is telling the truth.


          Four other points deserve attention. First, in the aftermath of Hudson, a 1992 decision by the

Supreme Court and the principal decision upon which we rely today, the defendants cannot claim

that they are entitled to qualified immunity because if Carlton’s allegations are true, the officers

violated clearly established constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).




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No. 05-1009
Carlton v. Johnson

       Second, to the extent Carlton’s pro se brief means to raise discovery-related objections to the

disposition of his claim below, we note that he may seek discovery upon remand.


       Third, in addition to the excessive-force Eighth Amendment claim arising from the alleged

assaults, Carlton asserts several other related constitutional claims stemming from the May 29

incident. He claims that Jondreau and Ekdahl exhibited deliberate indifference to his constitutional

rights when they did not stop Turner from assaulting him, Compl. at 2; that Jondreau, Turner and

Ekdahl retaliated against him when they assaulted him for exercising his First Amendment rights

(when he tried to tell the truth about the May 17 incident), Carlton Br. in Opp. at 19–20; and that

Jondreau, Turner and Ekdahl conspired to cover up both the May 17 incident (by forcing him to

make a false statement on their behalf) and the cover-up itself (by lying and asserting that what

Carlton alleges happened on May 29 never did happen), Compl. at 3, 6. Because it appears from the

thin record we have before us that these other claims rise or fall based on the same factual dispute

that underlies the Eighth Amendment assault claim, they too deserve to be considered by the

factfinder or at least deserve further consideration by the district court.


       Finally, Carlton independently claims that Raymond retaliated against him, exhibited

deliberate indifference and subjected him to threats and risk of harm from other inmates by releasing

his confidential statement to prisoner Jones, which caused Carlton to be labeled a “snitch” among

his fellow inmates. Id. at 4, 7. In contrast to the above claims, Carlton has not provided any non-

hearsay evidence to support this claim, has not contradicted Raymond’s affidavit that Raymond did



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No. 05-1009
Carlton v. Johnson

not release the confidential information, and has not sought evidence to support this claim. Under

these circumstances, the district court properly dismissed Carlton’s claim against Raymond.


                                               III.


       For these reasons, we reverse in part and affirm in part, and we remand the case for further

proceedings consistent with this opinion.




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