JOSEPH JOHNSON v. CLAIR SOOTSMAN
No. 22-1937
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: August 16, 2023
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 23a0181p.06. Argued: July 26, 2023. Before: McKEAGUE, GRIFFIN, and MURPHY, Circuit Judges.
COUNSEL
ARGUED: Adam G. Winn, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellant. Richard V. Stokan, Jr., KERR, RUSSELL AND WEBER, PLC, Detroit, Michigan, for Appellee. ON BRIEF: Adam G. Winn, Robert G. Kamenec, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellant. Richard V. Stokan, Jr., Joanne Geha Swanson, KERR, RUSSELL AND WEBER, PLC, Detroit, Michigan, for Appellee.
OPINION
MURPHY, Circuit Judge. This case shows that just because a correctional officer may have violated a prison use-of-force policy or committed a state-law tort does not necessarily mean that the officer violated the
Johnson later sued Sootsman, alleging that his conduct violated the
I
In 2019, Johnson pleaded guilty to a domestic-violence offense in Michigan, spent several days in jail, and began to serve a term of probation. On February 13, 2020, a state court found that Johnson had violated the conditions of his probation and sentenced him to a few weeks at the county jail in Kalamazoo, Michigan.
Right after this court hearing, Johnson was taken to the jail to begin his sentence. When detainees first enter the jail, they get processed in its intake area. The intake area contains cells that hold detainees for a short time until jail staff either transfer them to the general population or release them. Staff initially housed Johnson in this area. The next morning, Deputies Sootsman and Chantel Einhardt worked the first shift in the intake area. Johnson remained there. About an hour after Einhardt arrived, she heard Johnson “yelling and banging” on his cell door. Einhardt Dep., R.45-6, PageID 232–33. Johnson was upset because he “wanted to be moved to general population.” Id., PageID 232. Einhardt told him that he would likely get moved soon and that she would have to restrain him if he continued to hit the door. He stopped.
As Einhardt anticipated, jail staff planned to transfer Johnson to his general-population cell that afternoon. Shortly before 3:30 p.m., they left an unhandcuffed Johnson in the intake area‘s unsecured open space as they arranged for his transfer. While waiting, Johnson wrapped a towel around his head in violation of jail policy. Deputy Alan Miller, who was assisting in the area, asked him to remove it. Johnson refused and began to argue with Miller. Johnson also threw his sack lunch.
Deputy Sootsman was in the intake area at this time. Based on Johnson‘s prior incarcerations, Sootsman knew that he had argued with deputies and disobeyed their orders in the past. Sootsman also saw Johnson‘s confrontation with Deputy Miller and watched him throw his lunch. But Sootsman opted not to intervene because he was rounding up two other detainees to take to their general-population cells.
Meanwhile, Deputy Einhardt returned to the intake area after helping transfer other detainees who had court appearances. She learned from a booking clerk that Johnson had thrown his lunch and believed that his argument with Miller “was escalating very quickly.” Id., PageID 234. (Miller claimed that he was not arguing with Johnson but agrees that Johnson was “being loud[.]” Miller Dep., R.45-7, PageID 267.) To reduce tensions, Einhardt decided to move Johnson to general population herself. Given Johnson‘s animated state, she asked Deputy Talia Harris to accompany her. Johnson grabbed his things and began to walk with them. After this group left the intake area, however, Johnson started to speed walk ahead of the two deputies. Einhardt twice ordered Johnson to slow down so that she could keep control of him, but he appeared to ignore her. To get to the jail‘s general population from its intake area, they had to walk down a long hallway. Three security cameras record video (but not audio) of this hallway. The video demonstrates that Deputy Sootsman and his two detainees entered this hallway first on their way to the general-population area. Sootsman recalled hearing Johnson. The video also confirms his memory: It captures him and his two detainees stopping and looking at a commotion behind them as they entered the hallway. Given their pause and Johnson‘s fast pace, he quickly caught up with them and passed them on the right. The video next shows Sootsman pointing toward the right wall as Johnson passed. Sootsman said that he ordered Johnson to stop.
Johnson took many more steps before eventually stopping with his back against the wall. Sootsman, who took a position closer to general population in front of Johnson, spoke to him for about twelve seconds. According to Johnson (whose account we must accept), Sootsman angrily told him that he was “being a pussy” and that he should look Sootsman “in the eyes.” Johnson Dep., R.45-3, PageID 187. Johnson allegedly said “I am,” but nothing else. Id. The video then shows Johnson take a slow step in the direction of Sootsman and the general-population area.
Sootsman testified that he perceived Johnson‘s step “as a threat[.]” Sootsman Dep., R.45-5, PageID 217. On the video, Sootsman can be seen forcefully pushing Johnson back against the wall with his right arm and restraining him there for about two seconds. According to Johnson, Sootsman grabbed his neck and “choked” him. Johnson Dep., R.45-3, PageID 178. Johnson also claimed that he hit the “back of [his] head on the wall” when Sootsman pushed him. Id. Deputies Harris and Einhardt agreed that Sootsman “grabbed [Johnson‘s] neck” when pushing him. Harris Dep., R.45-4, PageID 201; Einhardt Dep., R.45-6, PageID 237. Deputy Miller had also followed the others and caught up with them. He suggested that Sootsman “squeezed [Johnson‘s] throat” in order to gain control of him. Miller Dep., R.45-7, PageID 272. According to Sootsman, by contrast, he used an “open” hand to push Johnson at the base of his neck. Sootsman Dep., R.45-5, PageID 217. The video does not show which of these conflicting stories is true.
But it does show that Sootsman immediately turned Johnson around and took him to the ground by putting him in a chokehold and pulling him down. Einhardt assisted in this takedown by grabbing Johnson‘s arms. The entire use of force from the time that Sootsman pushed Johnson to the time that Sootsman got him on the ground lasted about seven seconds. Once Johnson was on the ground, the officers
Sootsman‘s use of force caught the other deputies off guard. Einhardt described his actions as “out of the blue[.]” Einhardt Dep., R.45-6, PageID 236. Harris testified that Sootsman‘s actions surprised her because she did not think that Johnson did anything to justify them. Harris Dep., R.45-4, PageID 201, 203. Miller likewise did not believe that Johnson‘s conduct “warranted” Sootsman‘s use of force. Miller Dep., R.45-8, PageID 280.
Johnson filed a grievance against Sootsman. A jail investigator found that Sootsman‘s use of force did not follow the use-of-force policy of the sheriff‘s department. The investigator also found that probable cause existed to believe that Sootsman had assaulted Johnson “by grabbing him by the neck and squeezing his throat.” Rep., R.51-3, PageID 606. The investigator placed Sootsman on leave, and prosecutors charged him with a battery. Sootsman chose to retire. He later decided to plead guilty to a battery misdemeanor and pay $546 in fines and court costs rather than face the greater expense of trial.
As for the harm that this encounter caused Johnson, the investigator found that Johnson voiced a complaint of “discomfort in his throat” but had “no visible injuries[.]” Rep., R.51-3, PageID 606. Johnson claimed that he requested to see medical staff but that the jail staff ignored him. He did not visit any medical personnel while in the jail. He also did not seek medical attention until a year after this incident and several months after he brought this suit. Johnson testified that the incident has caused him to have bad headaches and neck pain for which he has received physical therapy. Johnson Dep., R.45-3, PageID 175–77. He added that his medical providers have instructed him to wear a brace on his right wrist and to attend physical and occupational therapy for pain in his wrist and neck. Id., PageID 174–75, 183.
Johnson sued Sootsman, Einhardt, and Harris under
After discovery, a magistrate judge recommended that the district court reject the federal constitutional claims and decline supplemental jurisdiction over the state tort claims. See Johnson v. Sootsman, 2022 WL 9806957, at *8 (W.D. Mich. July 1, 2022). The judge reasoned that Sootsman had not violated the
Johnson appealed. He raised arguments only about Sootsman‘s conduct, so the parties agreed to dismiss Einhardt and Harris from the appeal. We review the district court‘s grant of summary judgment to Sootsman de novo, resolving all evidentiary
II
Sootsman has raised a qualified-immunity defense to Johnson‘s
A
The
What qualifies as the “unnecessary and wanton infliction of pain“? This requirement has objective and subjective components, both of which follow from the
As a subjective matter, the Court has held that prisoners who challenge a correctional officer‘s use of force must prove more than that the officer acted with “deliberate indifference” to whether the force was necessary (the type of intent that prisoners must prove to challenge their conditions of confinement or medical care). See id. at 5–6; cf. Wilson, 501 U.S. at 302–03. The Court has instead described the “core judicial inquiry” in this use-of-force context as distinguishing between force used in a “good-faith effort to maintain or restore discipline” and force used “maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (quoting Hudson, 503 U.S. at 7). Only the latter kind of force—force exerted maliciously and sadistically to inflict pain—violates the
As an objective matter, the Court has held that prisoners who challenge a correctional officer‘s use of force need not prove “extreme” or “serious” harms (the types of harms that prisoners must allege to challenge their conditions of confinement or medical care). See Hudson, 503 U.S. at 9. The Court reasoned that the
B
Johnson‘s
Objective Element. Before we get to Sootsman‘s subjective intent, though, we start with the magistrate judge‘s reliance on the objective element. It is debatable whether Sootsman‘s force rose to a level that could be called “cruel and unusual” even under the relaxed standards that the Supreme Court follows in this use-of-force context. See Hudson, 503 U.S. at 9–10. This element did not require Sootsman to have inflicted a “significant injury” on Johnson, but it did require Sootsman to have used more than ”de minimis” force against him. Id.
What divides actionable force from de minimis force? A few examples from both sides of this line help illuminate the murky
Conversely, the Supreme Court has suggested that a malevolent “push or shove’ that causes no discernible injury” will fall short of the force required to violate the
The amount of force that Sootsman used likely falls somewhere in between these two precedential poles. On the one hand, Sootsman did not repeatedly kick or punch Johnson (like the officers in Hudson) or ram Johnson headfirst into a wall with such momentum as to require an urgent trip to the hospital (like the officer in Cordell). Sootsman instead pushed Johnson back against a wall by the neck (allegedly choking him in the process) for about two seconds and then pulled Johnson to the ground in another five seconds. At first blush, this force resembles the “karate chop” that we held did not suffice in Leary, 528 F.3d at 443, or the “grabb[ing] [of the prisoner‘s] neck” that we held did not suffice in Scott, 2000 WL 519148, at *3. And the average person who watched the video of this encounter would not likely describe Sootsman‘s brief actions as “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 10 (citation omitted).
On the other hand, Leary and Scott both included a disclaimer: they held that the conduct in these cases did not rise above de minimis force in part because it
If Johnson lacked proof that Sootsman caused any “verifiable injury,” this case may well be analogous to Leary. Leary, 528 F.3d at 443. But the magistrate judge failed to take the facts in the light most favorable to Johnson. See Griffin, 604 F.3d at 953. Most notably, the judge wrongly relied on the “self-serving” nature of Johnson‘s testimony to reject his claim that he sought immediate medical care. This “self-serving” label does not provide a valid basis to ignore evidence. See Boykin v. Family Dollar Stores of Mich., LLC, 3 F.4th 832, 841–42 (6th Cir. 2021). Perhaps the judge meant that Johnson‘s testimony was too conclusory to create a genuine issue of material fact on this point, see id. at 842, but even Sootsman conceded that Johnson‘s grievance form requested medical aid, Sootsman Dep., R.45-5, PageID 220. Unlike his wrist pain, moreover, Johnson also testified that he had never had neck pain before this encounter. Johnson Dep., R.45-3, PageID 176. So the record may well have permitted a reasonable jury to find that Sootsman‘s use of force caused Johnson to suffer minor neck pain for which he later sought physical therapy. And that fact might distinguish cases like Leary or Scott that found force de minimis because it indisputably caused no injury. In the end, though, we will leave it for future cases to clarify the scope of this objective element because Johnson cannot satisfy the subjective one.
Subjective Element. Johnson‘s
As applied here, the Supreme Court‘s factors show that Johnson lacks sufficient evidence to prove Sootsman‘s malevolent intent. First, although the
Second, Sootsman had a “plausible basis” to believe that Johnson constituted a threat who needed to be restrained under all the circumstances. Whitley, 475 U.S. at 323. Consider what Sootsman knew before Johnson entered the hallway. Johnson had disobeyed orders during his prior incarcerations and was “always . . . trying to be intimidating.” Sootsman Dep., R.45-5, PageID 213–14. Sootsman also had just seen Johnson cause a scene in the intake area. Johnson “had been engaged in a loud, lengthy, and animated” argument over Deputy Miller‘s request that he remove a towel from his head. Griffin, 604 F.3d at 955. Johnson became so “frustrated” that he threw his lunch. Sootsman Dep., R.45-5, PageID 211–12. Given Johnson‘s combative conduct, the jail‘s policies required Deputy Einhardt to handcuff him before moving him to his general-population cell. Einhardt Dep., R.45-6, PageID 242. But Einhardt violated the policies by allowing Johnson to walk to his cell unrestrained (and she later received “counseling” for this violation). Id., PageID 242–43. Sootsman likewise knew that Johnson “should have been handcuffed” before he left the intake area. Sootsman Dep., R.45-5, PageID 218.
Next consider what Sootsman knew when Johnson entered the hallway. The hallway video proves that Johnson continued to be disruptive. For example, it shows the two inmates who accompanied Sootsman turning around to look at Johnson, leaving no doubt that he was the one causing a commotion. And it shows Johnson gesticulating and his lips moving as he goes past them. By quickly walking out of the intake area, moreover, Johnson had put distance between himself and the deputies who were supposed to have control of him. He then appeared to ignore Einhardt‘s orders to slow down. Einhardt Dep., R.45-6, PageID 235–36. Sootsman, who was already in the hallway, heard her orders. Sootsman Dep., R.45-5, PageID 214–15.
Also consider what Sootsman knew when he spoke with Johnson. Sootsman was confronting an unhandcuffed inmate who had just disobeyed a colleague‘s order. Sootsman also had two other unhandcuffed inmates in the hallway, adding to the risks. The video next reveals that Johnson took a step (admittedly, a slow one) in the general direction of Sootsman and the general-population area during their conversation. Video E3, R.54, at 0:53. Sootsman saw “no reason” for Johnson to
Third, the video of the encounter illustrates that Sootsman used an amount of force proportional “to the need for forcibly bringing [Johnson] under control.” Lockett, 526 F.3d at 876. Our caselaw has found a similar level of force proportional when it involved, for example, “[s]hoving” or “grabbing” a prisoner to gain control of him, id.; see also, e.g., Begley v. Tyree, 2018 WL 3244508, at *3 (6th Cir. Feb. 13, 2018) (order), pushing and holding a prisoner against a wall to handcuff him, Brooks v. Fed. Bureau of Prisons, 1999 WL 427179, at *2 (6th Cir. June 15, 1999) (order), or using a “leg-sweep maneuver” to take a prisoner to the ground so that she could be handcuffed and returned to her cell, Griffin, 604 F.3d at 954–56. Similarly, we have repeatedly described the use of a taser or pepper spray as a proportional level of force in response to a prisoner‘s refusal to follow orders, including an order to accompany an officer, Sams v. Quinn, 2017 WL 4574497, at *2 (6th Cir. Sept. 7, 2017) (order), and an order to “exit the shower,” Jennings v. Mitchell, 93 F. App‘x 723, 725 (6th Cir. 2004). See also, e.g., Alexander v. Ojala, 2018 WL 5905588, at *3 (6th Cir. May 29, 2018) (order); Caldwell v. Moore, 968 F.2d 595, 601–02 (6th Cir. 1992). Sootsman used a similar level of force—an amount designed to gain control of Johnson and handcuff him. He pushed Johnson against the wall with his right arm (and, under Johnson‘s view, squeezed his neck) for about two seconds and then pulled Johnson to the ground in order to handcuff him in about five seconds.
Fourth, and finally, that Sootsman‘s use of force lasted all of seven seconds shows that Sootsman “temper[ed] the severity” of the force. Whitley, 475 U.S. at 321. The video discloses that he did not land any blows that could be described as extraneous to the goal of gaining control of Johnson. All told, every reasonable jury would conclude that Sootsman could have “plausibly” believed that his use of force was necessary. Griffin, 604 F.3d at 954 (quoting Whitley, 475 U.S. at 321). So no reasonable jury could find that Sootsman‘s actions arose from a sadistic intent to inflict pain on Johnson rather than a (perhaps mistaken) belief of the need to restrain him.
C
In response, Johnson fails to identify evidence that would allow a reasonable jury to find that Sootsman harbored the required intent. He initially describes as an “absurdity” the magistrate judge‘s conclusion that the video shows him remaining agitated in the hallway. Appellant‘s Br. 21. Johnson cites Einhardt‘s deposition testimony that “he was done yelling” when he left intake and asserts that nothing in the video (which lacked sound) “blatantly contradicted” this testimony. Einhardt Dep., R.45-6, PageID 234; Scott v. Harris, 550 U.S. 372, 380 (2007). But he ignores the video evidence showing both his lips moving and Sootsman and his two detainees stopping and turning around to look behind them in the hallway. Only one conclusion can be drawn from this footage: Sootsman continued
Johnson thus turns to the testimonies of Deputies Einhardt, Harris, and Miller. Because they saw “no reason” for Sootsman‘s use of force, Johnson argues that a reasonable jury could find that he acted for malicious and sadistic reasons. Appellant‘s Br. 23–24 (quoting Rep., R.51-3, PageID 600). Yet Johnson provides no record citation at which these deputies state they even saw Johnson take the visible-on-the-video step that triggered Sootsman‘s force. So they do not opine on whether Sootsman could have viewed that step as threatening. And while Johnson responds that the video shows the step to have been slow and just as much in the direction of the general-population area as Sootsman, he does not claim that Sootsman authorized him to walk away.
In the end, perhaps the other deputies’ testimony and Johnson‘s arguments about the nature of his step suggest that Sootsman acted in an “unreasonable” manner by using “unnecessary” force to restrain Johnson. Whitley, 475 U.S. at 319. But that inference falls short of what is needed. The negligent use of force—even the reckless use of force—does not establish an
Finally, Johnson stresses that Sootsman violated the jail‘s use-of-force policy and pleaded guilty to a misdemeanor battery. These factors cannot save his claim. As for the policy violation, a sheriff‘s department may “choose to hold its officers to a higher standard than that required by the Constitution[.]” Smith v. Freland, 954 F.2d 343, 347 (6th Cir. 1992); see Burwell v. City of Lansing, 7 F.4th 456, 471 (6th Cir. 2021). As for the battery conviction, Johnson does not dispute the magistrate judge‘s conclusion that he forfeited any attempt to invoke issue preclusion. See Johnson, 2022 WL 9806957, at *4. And he did not even tell us the elements of this offense until his reply brief—a point in time that “comes too late.” Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000, 1017 (6th Cir. 2022); Reply Br. 2–3. Even under Johnson‘s view of Michigan law, Sootsman‘s conviction meant that he admitted only that he did not “honestly and reasonably” believe that his force was necessary. Reply Br. 3 (emphasis added) (quoting Mich. Crim. J. Inst. 7.22). So Sootsman‘s “unreasonable” belief about the need for the force might have sufficed for a conviction under this criminal law. Whitley, 475 U.S. at 319. But that belief falls well short of showing that Sootsman used force “maliciously and sadistically for the very purpose of causing harm.” Id. at 320–21 (citation omitted).
* * *
One should not misunderstand our holding. A conclusion that Sootsman‘s conduct did not violate the
We affirm.