
    Gregory POINDEXTER, Plaintiff, v. Kenneth McKEE and Kenneth Moore, Defendants.
    No. 5:05-cv-65.
    United States District Court, W.D. Michigan, Southern Division.
    Aug. 7, 2006.
    
      Gregory Poindexter, Carson City, MI, pro se.
    Mark D. Pakkala, Nantz Litowich Smith & Girard, Grand Rapids, MI, for Defendants.
   OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

MILES, Senior District Judge.

Plaintiff Gregory Poindexter, a prisoner within the custody of the Michigan Department of Corrections (MDOC), filed this civil rights action without benefit of counsel under 42 U.S.C. § 1983, based upon events that occurred while he was housed at the Bellamy Creek Correctional Facility. He alleged violations of his First and Eighth Amendment rights and state law. Plaintiff sued Kenneth McKee and Kenneth Moore, respectively the warden and factory supervisor at Bellamy Creek Correctional Facility.

Defendant Moore filed a motion for summary judgment. On June 2, 2006, United States Magistrate Judge Ellen S. Carmody submitted a Report and Recommendation, recommending that the Defendant Moore’s motion be granted as to the Eighth Amendment claim, and that the Court decline to exercise jurisdiction over Plaintiffs state law claims, (docket #44). Plaintiff filed objections to the Report and Recommendation, (docket # 52). For the reasons that follow, the -Court overrules Petitioner’s objections, and adopts the Report and Recommendation

Plaintiff was employed in the Michigan State Industries prison furniture factory located at the Bellamy Creek facility. On August 14, 2003, the factory supervisor, Kenneth Moore, observed Plaintiff standing/leaning on a podium. Moore kicked Plaintiff on the right ankle and advised him to remove his feet from the podium before he broke it. Plaintiff did not fall or lose his balance; had no trouble negotiating stairs; did not notice swelling on his foot or ankle; and did not feel he needed medical attention. . Plaintiff noticed slight bruising on his ankle. Later that day, Moore struck Plaintiff on the hands with a packet of time cards “grazing his buttocks.” Plaintiff did not sustain any injury to his hands or buttocks. Plaintiff claims that Defendant Moore’s actions violated Plaintiffs rights under the Eighth Amendment as well as constituted assault and battery under state law.

Standard of Review

The Court must review the magistrate judge’s report and recommendation de novo when objections have been made to the report and recommendation. 28 U.S.C. § 636(b)(1)(B); Fed.R.Cw.P. 72(b); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 515 (6th Cir.2001).

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.CwP. 56(c). In considering a motion for summary judgment, the district court must construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Discussion

Courts considering a prisoner’s Eighth Amendment claim must determine whether the defendant acted “with a sufficiently culpable state of mind,” and if the wrongdoing was objectively “harmful enough” to establish a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The magistrate judge found that the evidence failed to show that Defendant Moore acted “maliciously and sadistically for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Nor did the evidence show that Plaintiff sustained an injury sufficiently serious to implicate the Eighth Amendment. Id. at 9-10, 112 S.Ct. 995. Plaintiff does not object to the finding that his injury was de minimis. He argues that Defendant Moore’s “attacks” were unprovoked and therefore, malicious.

Plaintiff testified at his deposition that he believes Defendant Moore hit him with the time cards to get his attention because his back was to Moore. Considering this acknowledgment, along with the fact that Plaintiff suffered no injury to his hands or buttocks, and that being hit with a packet of time cards would not likely cause an injury, the Court agrees with the magistrate judge’s finding that Defendant Moore was not acting “maliciously and sadistically for the very purpose of causing harm.”

Defendant Moore stated in his affidavit that the podium had been manufactured at the prison for a church customer, and he was concerned that Plaintiffs foot on the podium could scratch or damage the finish. This portion of the affidavit is unrefuted. There is no reason to conclude that Defendant Moore could not have accomplished his purpose by simply directing Plaintiff to move his foot. Nonetheless, his concerns were reasonable, and while he may have used poor judgment, the Court agrees with the magistrate judge’s finding that he clearly did not act with the malicious intention of causing injury to Plaintiff.

Plaintiff further argues that because Defendant has “finally admitted the assault and battery did occur,” the Court should exercise jurisdiction over Plaintiffs state law claim. The magistrate judge applied the correct law. Section 1983 does not provide a remedy for a violation of a state law. Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.1995); Sweeton v. Brown, 27 F.3d 1162, 1166 (6th Cir.1994). The United States Supreme Court and the Sixth Circuit have stated that when a district court dismisses all federal claims, the court should generally decline to exercise supplemental jurisdiction over state law claims. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (“if the federal claims are dismissed before trial ... the state claims should be dismissed as well.”); Weeks v. Portage County Executive Offices, 235 F.3d 275, 279-80 (6th Cir.2000); Landefeld v. Marion Gen. Hosp., 994 F.2d 1178, 1182 (6th Cir.1993); Wolotsky v. Huhn, 960 F.2d 1331, 1338 (6th Cir.1992) (holding that “where a district court exercises jurisdiction over state law claims solely by virtue of pendent jurisdiction and the federal claims are dismissed prior to trial, the state law claims should ordinarily be dismissed without reaching their merits.”); Washington v. Starke, 855 F.2d 346, 351 (6th Cir.1988) (“It is a clear rule of this circuit that if a plaintiff has not stated a federal claim, his pendant state law claims should be dismissed.”). Although Plaintiff may very well have a valid state-law tort claim, once the Court has dismissed the federal claims it is appropriate to dismiss, without prejudice, the state claims so that the plaintiff may pursue, if he chooses, these claims in the state courts. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1254 (6th Cir.1996).

Conclusion

The court has considered the magistrate judge’s report and recommendation and the Plaintiffs objections, and conducted an independent review of the record. For the reasons discussed above, the court finds that the magistrate judge’s findings, conclusions and recommendations are correct. Accordingly, the Court overrules the Plaintiffs objections (docket # 52), and adopts the magistrate judge’s report and recommendation (docket #44) in its entirety. Therefore,

IT IS ORDERED that Defendant Kenneth Moore’s Motion for Summary Judgment (docket # 38) is GRANTED as to the federal claims.

IT IS FURTHER ORDERED that the motion is denied as to the state law claims; the state law claims are DISMISSED WITHOUT PREJUDICE.

So ordered this 7th day of August, 2006.

REPORT AND RECOMMENDATION

ELLEN S. CARMODY, United States Magistrate Judge.

This matter is before the Court on Defendant’s Motion for Summary Judgment. (Dkt.# 38). Pursuant to 28 U.S.C. § 636(b)(1)(B) granting authority for United States Magistrate Judges to submit proposed findings of fact and recommendations for disposition of motions for summary judgment, the undersigned recommends that Defendant’s motion be granted in part and denied in part.

BACKGROUND

The following allegations are contained in Plaintiffs complaint. On August 14, 2003, Plaintiff was employed in the Michigan State Industries prison furniture factory located at the Bellamy Creek Correctional Facility. On that day, Factory Supervisor Kenneth Moore observed Plaintiff “standing/leaning on a podium,” at which point Moore “kicked” Plaintiff in the left foot/ankle. Moore instructed Plaintiff to remove his feet from the podium to prevent it from breaking. Later that day, Moore approached Plaintiff and “struck [him] on [the] hands, grazing [his] buttock.” Plaintiff subsequently filed a grievance against Moore. Plaintiff also requested that the Michigan State Police file criminal charges against Moore. On September 25, 2003, Plaintiff was transferred to the St. Louis Correctional Facility. Plaintiff alleges that Warden Kenneth McKee authorized his transfer.

On April 18, 2005, Plaintiff initiated the present action against Moore and McKee. Plaintiff asserts that Defendant Moore’s actions violate his constitutional rights and, moreover, constitute assault and battery under Michigan law. Plaintiff asserts that Defendant McKee transferred him in retaliation for exercising his constitutional right to file grievances. On August 1, 2005, Defendant McKee moved for summary judgment. (Dkt.# 18). On November 9, 2005, the undersigned recommended that Defendant McKee’s motion be granted. (Dkt.# 28). The Honorable Wendell A. Miles adopted this recommendation and dismissed Plaintiffs claims against Defendant McKee. (Dkt.# 40). Defendant Moore has now filed the present motion seeking summary judgment.

SUMMARY JUDGMENT STANDARD

In reviewing a motion for summary judgment, the Court must confine itself to the narrow questions of whether there exist “no genuine issue[s] as to any material fact and [whether] the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). On a Rule 56 motion, the Court cannot try issues of fact, but is empowered to determine only whether there exist issues in dispute to be decided in a trial on the merits. See Perez v. Aetna Insurance Co., 96 F.3d 813, 819 (6th Cir.1996); Aiken v. The City of Memphis, 37 F.3d 1155, 1161 (6th Cir.1994). The crux of the motion is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also, Terry Barr Sales Agency v. All-Lock Co. Inc., 96 F.3d 174 (6th Cir.1996) (citing Booker v. Bronm & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989)).

A motion for summary judgment requires the Court to view “inferences to be drawn from the underlying facts ... in the light most favorable to the party opposing the motion.” Matsushita Electric Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also, Terry Barr Sales Agency, 96 F.3d at 174; Schaffer v. A.O. Smith Harvestore Products, Inc., 74 F.3d 722, 727 (6th Cir.1996). The opponent, however, has the burden to show that a “rational trier of fact [could] find for the non-moving party [or] that there is a ‘genuine issue for trial.’ ” Historic Preserva tion Guild of Bay View v. Burnley, 896 F.2d 985, 993 (6th Cir.1989) (quoting Matsushita Electric Ind. Co., 475 U.S. at 587, 106 S.Ct. 1348); see also, Schaffer, 74 F.3d at 727.

As the Sixth Circuit has recognized, Supreme Court decisions have encouraged the granting of summary judgments, as such may be “an appropriate avenue for the ‘just, speedy and inexpensive determination’ of a matter.” Kutrom v. City of Center Line, 979 F.2d 1171, 1173 (6th Cir.1992). Consistent with this concern for judicial economy, “the mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also Bailey v. Floyd County Board of Education, 106 F.3d 135, 140 (6th Cir.1997). Furthermore, mere allegations do not suffice. See Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989) (“the party with the burden of proof at trial is obligated to provide concrete evidence supporting its claims and establishing the existence of a genuine issue of fact”).

ANALYSIS

Plaintiff asserts that Defendant Moore violated his Eighth Amendment right to not be subjected to the excessive use of force. Relying on 42 U.S.C. § 1997e(e), Defendant asserts that Plaintiffs Eighth Amendment claim must be dismissed because Plaintiff has failed to establish that he suffered a serious physical injury. Defendant’s reliance on § 1997e(e), however, is misplaced. This particular provision provides that

No federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.

(emphasis added).

Because Plaintiff is not seeking damages for mental or emotional injury, the physical injury requirement articulated in § 1997e(e) is simply inapplicable. Defendant is correct that Plaintiff suffered, at most, de minimis injuries. While this fact is relevant when evaluating Plaintiffs Eighth Amendment claim, it is not disposi-tive. As the Supreme Court has held

When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter 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.

Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (internal citations omitted).

The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. U.S. Const, amend. VIII. The excessive use of force which results in the unnecessary and wanton infliction of pain violates this provision. See Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Thus, an assault by a prison official can constitute cruel and unusual punishment, despite the fact that the prisoner did not suffer severe physical injury. See Hudson, 503 U.S. at 4, 112 S.Ct. 995.

Claims alleging the excessive use of force have both a subjective and an objective component. See Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The objective component of the analysis examines whether the pain or deprivation allegedly suffered by the prisoner was “sufficiently serious” to implicate the Eighth Amendment. Id. To be “sufficiently serious,” the prison official’s act or omission must deny the prisoner of “the minimal civilized measure of life’s necessities,” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), as defined by contemporary standards of decency. See Hadix v. Johnson, 367 F.3d 513, 525 (6th Cir.2004).

The subjective component of the analysis examines whether the prison official’s conduct reflected “obduracy and wantonness” or was instead the product of “inadvertence or error in good faith.” Wilson, 501 U.S. at 299, 111 S.Ct. 2321. In this respect, the relevant inquiry is “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.” Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078. When evaluating whether a prison official’s conduct falls short of this standard, the Court must consider the following factors: (1) the need for the application of force, (2) the relationship between such need and the force used, (3) the threat reasonably perceived by the prison official, and (4) any efforts undertaken to temper the severity of the response. Hudson, U.S. at 7. The absence of injury, while relevant, is not dispositive. Id. An evaluation of the evidence in this matter compels the conclusion that Plaintiff can satisfy neither the objective nor the subjective prong of the analysis.

Plaintiff testified that Defendant’s act of kicking his foot did not cause him to stumble or lose his balance in any way. (Deposition Transcript at 13). Plaintiff was not injured and perceived no need to seek medical care. Id. at 13-17, 26. In fact, only a few minutes after this incident Plaintiff was able to walk down a flight of stairs (without assistance) where he stood around visiting with his friends. Id. at 13-17.

While Plaintiff was visiting with his friends, Defendant approached Plaintiff. Id. at 17-18. Defendant walked behind Plaintiff and “hit” Plaintiffs hands with some time cards he was carrying. Id. at 18-19. Immediately after doing so, Defendant told Plaintiff “we’re going to have to have a talk.” Id. at 19-20. Plaintiff was not injured in any way by Defendant’s actions. Id. at 19-20. In fact, Plaintiff characterized the encounter as something which might transpire between “beer buddies or best friends.” Id. at 18-19. Furthermore, Plaintiff acknowledged that Defendant simply used the time cards to “get [his] attention” because he had his back turned to Defendant. Id. at 19.

Later that day, Plaintiff was ordered to go to health services for an examination. Id. at 26-27. Plaintiff reiterated that he did not require medical attention, but he nonetheless went to health care as instructed. Id. at 27. A nurse examined Plaintiffs foot and concluded that he “may have some bruising, maybe some swelling,” but that he would “be okay.” Id. at 28. The nurse gave Plaintiff some aspirin, but otherwise provided no treatment. Id. Furthermore, the nurse did not impose on Plaintiff any physical limitations or restrictions. Id. at 31. Plaintiff testified that he did not experience any subsequent difficulties with his foot and did not return to health care for treatment. Id. at 28-29.

Plaintiff has presented no evidence from which a reasonable person could conclude that Defendant’s actions caused Plaintiff to experience a deprivation or injury “sufficiently serious” to implicate the Eighth Amendment. There is absolutely no evidence that Plaintiff experienced any adverse effect as a result of Defendant’s actions. Furthermore, Plaintiff has presented no evidence that Defendant acted with malice or wantonness “for the very purpose of causing harm.” To the contrary, Plaintiff acknowledged that Defendant actions were motivated by his desire that Plaintiff (a) remove his feet from the podium and (b) recognize that he was being spoken to.. Id. at 12,19.

As is well recognized, “prison security and discipline may often require that prisoners be subjected to physical contact equivalent to common law assault.” Brikho v. Horan, 146 Fed.Appx. 13, 15 (6th Cir., Aug.4, 2005) (citing Whitley, 475 U.S. at 319, 106 S.Ct. 1078). However, not every such contact runs afoul of the Eighth Amendment. Brikho, 146 Fed.Appx. at 15. While the Court does not condone Defendant’s alleged actions, to assert that such actions constituted the wanton and unnecessary infliction of pain only serves to trivialize the truly serious deprivations which the Eighth Amendment is designed to protect. In sum, Plaintiff cannot establish either prong of the standard articulated above. Accordingly, the undersigned recommends that Defendant is entitled to summary judgment as to Plaintiffs claim that Defendant violated his Eighth Amendment rights.

Having recommended the dismissal of Plaintiffs federal law claim, the Court must turn its attention to Plaintiffs state law claims. Pursuant to 28 U.S.C. § 1367(c)(3), the district court may decline to exercise supplemental jurisdiction over a state law claim if it “has dismissed all claims over which it has original jurisdiction.” Indeed, “if the federal claims are dismissed before trial ... the state claims should be dismissed as well.” Taylor v. First of America Bank-Wayne, 973 F.2d 1284, 1287 (6th Cir.1992) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)); see also, Wojnicz v. Davis, 80 Fed.Appx. 382 (6th Cir.2003) (same). Accordingly, the undersigned recommends that the Court decline to exercise jurisdiction over Plaintiffs state law claims and instead dismiss such without prejudice.

CONCLUSION

For the reasons articulated herein, the undersigned recommends that Defendant is entitled to summary judgment as to Plaintiffs Eighth Amendment claim. The undersigned further recommends that Plaintiffs remaining state law claims be dismissed without prejudice. Accordingly, the undersigned recommends that Defendant’s Motion for Summary Judgment, (dkt.# 38), be granted in part and denied in part.

OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the specified time waives the right to appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). 
      
      . Plaintiff claimed that, in retaliation for filing a grievance against Defendant Moore, Defendant McKee transferred Plaintiff to a different prison facility. On February 10, 2006, the Court granted Defendant McKee’s motion for summaiy judgment.
     