               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0284n.06

                                          No. 09-2411

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                   May 03, 2011
                                                                             LEONARD GREEN, Clerk

ROBERT LEE BAILEY,                                  )
                                                    )
       Plaintiff-Appellant,                         )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
v.                                                  )       THE WESTERN DISTRICT OF
                                                    )       MICHIGAN
CHRISTOPHER GOLLADAY, et al.,                       )
                                                    )
       Defendants-Appellees.                        )


       Before: SUTTON and KETHLEDGE, Circuit Judges; and HOOD, Senior District
Judge.*

       PER CURIAM. Robert Lee Bailey appeals from the district court’s order accepting the

magistrate judge’s report and recommendation and granting summary judgment for the defendants

on qualified immunity grounds. The district court found that Bailey’s Eighth Amendment rights

were not violated and that the defendants were entitled to qualified immunity.

       For the reasons that follow, the district court’s order of judgment is AFFIRMED in part,

REVERSED in part, and REMANDED for further proceedings.

I. Factual and Procedural Background

       At all relevant times, Bailey was incarcerated at the Alger Maximum Correctional Facility in

Munising, Michigan. In his pro se complaint brought pursuant to 42 U.S.C. § 1983, he avers that the


       *
         The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
defendants, Corrections Officers Christopher Golladay, John Duvall, Kirt Mahar, Matthew Storey,

and John Forrest, violated his right to be free of cruel and unusual punishment because they subjected

him to excessive force in an incident initially between him and Golladay on January 14, 2006, arising

out of Bailey’s possession of a betting slip, an item of contraband.

        Golladay ordered Bailey to hand over the betting slip. Bailey refused to comply with the order,

instead tearing up the betting slip and flushing the pieces down the toilet. Golladay ordered Bailey

and his cell mate out of their cell so that he could search the cell and pat them down. Bailey was

escorted to the television room, and Golladay returned to search for contraband with Correction

Officer Roy Headley. Approximately 20 minutes later, Headley ordered Bailey and his cell mate to

return to their cell. Bailey returned to his cell to discover a number of his personal items had been

damaged or destroyed. Upset, Bailey reported Golladay’s behavior to Golladay's supervisor,

identified only as Sergeant Burk. At some point, Bailey exited his cell, whereupon Sergeant Burk

ordered Bailey to return to his cell and stated that he, Burk, would be there shortly to resolve the

complaint. Upon arriving in the hallway outside his cell, Bailey realized that Golladay had entered

his cell again.

        The parties dispute whether Bailey or Golladay initiated physical contact after Bailey entered

his cell. It is undisputed, however, that Bailey ran toward his cell. Video footage of the incident then

shows Golladay forcing Bailey to the floor of the hallway outside of the cell. Bailey alleges that

Golladay struck him with a closed fist to the jaw then grabbed Bailey's wrist and propelled him out

of the cell, slamming him into a concrete wall, and knocking the wind out of him.

        In the hallway, Golladay put Bailey up against the wall, began punching his ribs, and then

rammed his head into Bailey's abdomen and chest. Bailey admits that he continued to resist


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Golladay’s efforts to subdue him until other officers arrived. Bailey only stopped fighting after

several officers restrained him. Bailey, however, alleges that when Storey arrived, he grabbed

Bailey's arms and held them securely while Duvall began to punch Bailey in the upper torso. Storey

then placed Bailey in handcuffs. While Bailey was immobilized on his stomach, Golladay told Bailey

that he was going to kill him. Subsequently, Bailey alleges Golladay, Forrest, Mahar, Storey and

Duvall struck Bailey in the face and head numerous times with their feet and their fists. Bailey claims

that Mahar punched and kneed him in the back.

       Subdued, Bailey was escorted to the segregation unit by defendants Duvall, Storey, Forrest,

and an unnamed officer, all of whom allegedly physically threatened Bailey and used excessive force

while transporting him to segregation. Bailey’s brief describes the scene as follows:

       Racial slurs were being shouted at [Bailey] throughout this whole transfer. [Bailey’s]
       head was being held down forcibly to the point of actual choking by Defendants
       Story and Forrest, and as the Segregation unit doorway was approached, these
       Defendants intentionally slammed [Bailey’s] head into the dividing structure causing
       [Bailey] dizziness, faintness, and the inability to maintain normal balance. [Bailey]
       was carried into the Segregation unit where he was thrown into a caged shower on
       C-wing where he laid semi-conscious, battered and abused, on the filthy shower stall
       floor and allowed to suffer unnecessarily from the extreme pain of the beating.
       [Bailey] continually asked for medical treatment, even as the excruciating pain from
       the beating and from the slamming into the door left him in and out of consciousness.
       [Bailey] was left on the filthy concrete shower floor for approximately one hour until
       he was rousted [sic] conscious by officers and a nurse.

       Bailey was treated in the emergency room and diagnosed with two black eyes, nerve damage

to his left eye, multiple contusions to his head and body, a possible fracture to his left wrist, nerve

damage to his left wrist, and permanent scars.

II. Standard of Review




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       We review de novo a district court's grant of summary judgment. Lockett v. Suardini, 526

F.3d 866, 872 (6th Cir. 2008) (citing Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.

2006)). Thus, a grant of summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). The moving party bears the initial burden to show the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden is met simply by

showing the court that there is an absence of evidence on a material fact on which the nonmoving

party has the ultimate burden of proof at trial. Celotex Corp., 477 U.S. at 325. The burden then

shifts to the nonmoving party to “come forward with some probative evidence to support its claim.”

Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The court's function is not to weigh

the evidence but to decide whether there are genuine issues for trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986); Multimedia 2000, Inc. v. Attard, 374 F.3d 377, 380 (6th Cir. 2004).

In determining whether there are genuine issues of material fact, the evidence should be construed

in the light most favorable to the nonmoving party when deciding whether there is enough evidence

to overcome summary judgment. Anderson, 477 U.S. at 255; Summers v. Leis, 368 F.3d 881, 885

(6th Cir. 2004).

III. Discussion

       Government officials, performing discretionary functions, generally are shielded 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. Estate of Dietrich v. Burrows,

167 F.3d 1007, 1012 (6th Cir. 1999). “Whether a defendant is entitled to qualified immunity

depends on whether the plaintiff’s constitutional rights were violated and whether those rights were


                                                  4
clearly established.” Mingus v. Butler, 591 F.3d 474, 479 (6th Cir. 2010) (citing Dorsey v. Barber,

517 F.3d 389, 394 (6th Cir. 2008); see Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815-16

(2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). A court may exercise its discretion when

determining which prong to address first in light of the circumstances. Pearson, 129 S. Ct. at 818.

When making a qualified immunity analysis, the facts must be interpreted in the light most favorable

to the plaintiff. “Summary judgment is not appropriate if there is a genuine factual dispute relating

to whether the defendants committed acts that allegedly violated clearly established rights.”

Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996) (citing Buckner v. Kilgore, 36 F.3d

536, 540 (6th Cir. 1994)).

       The Eighth Amendment prohibits “the unnecessary and wanton infliction of pain against

prisoners.” Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (citing Whitley v. Albers, 475 U.S.

312, 319 (1986)). “Although prison discipline may require that inmates endure relatively greater

physical contact, the Eighth Amendment is nonetheless violated if the ‘offending conduct reflects

an unnecessary and wanton infliction of pain.’” Id. at 383 (quoting Pelfrey v. Chambers, 43 F.3d

1034, 1037 (6th Cir. 1995)).

       The prisoner must satisfy both an objective and a subjective component with respect to this

inquiry. Id. at 383. In the context of a prison disturbance, the analysis “ultimately turns on ‘whether

force was applied in a good faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.’” Hudson v. McMillian, 503 U.S. 1, 6 (1992)

(quoting Whitley, 475 U.S. at 320-21). This showing will satisfy the subjective component required

for a claim under the Eighth Amendment. Williams, 631 F.3d at 383. To make this determination,

the court may “evaluate the need for application of force, the relationship between that need and the


                                                  5
amount of force used, the threat reasonably perceived by the responsible officials, and any efforts

made to temper the severity of a forceful response.” Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S.

at 321) (internal quotations omitted). The objective component requires “the pain inflicted to be

sufficiently serious.” Williams, 631 F.3d at 383 (quoting Wilson v. Seiter, 501 U.S. 294, 298

(1991)). However, the seriousness of the injuries is not dispositive. Id. This is a “contextual”

inquiry that is “responsive to contemporary standards of decency.” Id. (quoting Hudson, 503 U.S.

at 8-9).

           The district court, after reviewing several videos of the alleged incident, determined that

Bailey initiated the incident by barging into the cell and that the force used by the defendants to

restrain Bailey and to control the situation that Bailey had created was necessary and reasonable

under the circumstances. The district court noted that Bailey had to be restrained by several officers

and only stopped his aggressive behavior when he was completely restrained. The district court

determined that the defendants had not violated the Eighth Amendment and, accordingly, that they

were entitled to qualified immunity.

           To the extent that the defendants Golladay, Forrest, Mahar, Storey and Duvall were acting

to bring Bailey under control, this Court completely agrees with the district court. Bailey instigated

the disturbance in the cell block area, which involved several other inmates and resulted in injuries

to four corrections officers. The disturbance could have easily escalated, but the corrections officers

were able to quash the violence quickly and effectively. To the extent that the corrections officers

used force to subdue and restrain Golladay, that use of force was made by the corrections officers

in a good faith effort to maintain discipline. It is clear that the corrections officers only used as much




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force as necessary and reasonably calculated to respond to the reasonable threat perceived by the

corrections officers. We affirm the district court’s opinion in this regard.

        However, the district court did not address Bailey’s allegations that his Eighth Amendment

right to be free of cruel and unusual punishment was violated by the conduct of defendants Duvall,

Storey, Forrest, and the unnamed officer after he was restrained and as he was being transported to

the shower in the segregation unit. Bailey alleges that, as the defendants were transporting him to

the segregation unit, they were using racial slurs and making physical threats while causing him to

choke. Additionally, he alleges that they intentionally and repeatedly banged his head into the steel

entrance to the unit. Interpreting the facts in a light most favorable to Bailey, as this Court must,

these alleged actions are sufficient to demonstrate unnecessary and wanton infliction of pain

unrelated to any legitimate penological purpose upon a prisoner once he is restrained and compliant.

Johnson v. Perry, 106 F. App’x 467, 469 (6th Cir. 2004) (“An unprovoked application of force to

a handcuffed and shackled prisoner would violate clearly established law under the Eighth

Amendment.”); see Pelfrey, 43 F.3d at 1037.

       As there is a factual dispute as to whether such force was used against Bailey after he was

restrained and had become cooperative, the district court erred in determining that Defendants

Duvall, Story, Forrest and the unnamed officer were due qualified immunity for the actions taken

while transporting Bailey to the segregation unit.

VI. Conclusion

       For the foregoing reasons, the district court’s grant of summary judgment is AFFIRMED

in part and REVERSED in part. The matter is REMANDED to the district court for further

proceedings consistent with this opinion.


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