Toran Peterson v. Richard Johnson

court to deference habeas is entitled Batchelor, AEDPA. pursuant See 405; Richards, 566 563.

F.3d at F.3d at reasonable, agree we Because it is with is not district court that Miller entitled habeas relief this claim.

III. reasons, foregoing For the we AFFIRM habe- the district court’s denial Miller’s petition. PETERSON, Toran Plaintiff- V.

Appellant, JOHNSON; Larry Lindy; Ruo, Richard initiating identified on document as Lindy, Defendants-Appel Unknown lees, Klinesmith,

Unknown et al., Defendants.

No. 11-1845. of Appeals, United States Court Sixth Circuit. April 2013. Rehearing Rehearing En Banc May

Denied 2013.* * Batchelor, Judge. grant rehearing deference under AEDPA. See Donald 405; Richards, F.3d at F.3d at 563. reasons stated her dissent. Peterson, Ionia,

ON BRIEF: Toran Michigan, pro se. BATCHELDER, Judge;

Before: Chief DONALD, SUHRHEINRICH Circuit Judges. C.J.,

BATCHELDER, delivered court, in which opinion of the J„ DONALD, SUHRHEINRICH, joined. 918-20), (pp. separate J. delivered dissenting opinion.

OPINION BATCHELDER,

ALICE M. Chief Judge.

Appellant prisoner Toran Peterson is Michigan’s Facility, Ionia Correctional maximum-security He penitentiary. ap- alia, grant peals, inter the district court’s A in favor the de- summary judgment Appellees Rich- claim on his fendants Amendment claim Eighth Larry Lindy, officers of ard Johnson from an incident which Officers arises Corrections, Department of Lindy attempting were Johnson right Amendment Eighth his violated cell. hand be- punishment. and unusual just cruel stuck in the cell as the door came single question: Johnson’s frantic shouts began turns on close. appeal His stop Lindy to the door from shut- alerted disputed issue of fact is resolved aWhere ting on hand. The sole factual Johnson’s hearing as Michigan major misconduct at a in dispute this case—and the on which hearing’s necessary judg- of the part why hand hinges—is this case ment, preclusive have factfinding does that says in the was cell. Peterson Johnson litigation brought by the in collateral effect pull cell to his hand in the as an excuse Be- prisoner under U.S.C. 1983? him; Peterson out and assault Johnson case, that, are in persuaded we this cause grabbed maintains that Peterson John- does, district court’s we AFFIRM the hand it into the cell. pulled son’s and judgment. not way, happened Either what next is dispute: as a result of Johnson’s effort I cell, his out of pull hand the Peterson point, came out of the At that also cell. complaint filed a under Peterson forth, pulling after Peterson back and against Department § 1983 sixteen U.S.C. Lindy pushed him to the Johnson and prison, officials at his in- Corrections ground and him there until other pinned Lindy. cluding Officers Johnson and The prison helped place staff them Peterson or granted district court either dismissed back in his cell. This brief scuffle left no against him summary judgment on all of only on the use of marks Peterson and is claims, Peterson to properly and failed his that force Peterson claims excessive. of those appeal most claims. Of claims melee, Peterson claims As result appeal, carefully he we have does reviewed shock, from pain, fright, that he “suffered record, opinion the district court’s and humiliation.” and anguish, anger, He also and we conclude that the district court did wrist, alleges injury to his he right where granting summary judgment. not err dug says pain- the handcuffs into his skin Because, exception with the of Peterson’s fully during injury alleg- This scuffle. claim, Eighth Amendment district days edly “shooting caused 100 nerve correctly applicable court set out the law pain” running from to his Peterson’s wrist correctly applied that law the undis- injury occasionally shoulder. The puted facts material contained the rec- up particu- make his lock and caused hand ord, judgment every we affirm its for claim if he his arm his lar discomfort raised over Eighth claim the but Amendment on head. grounds stated in its opin- well-reasoned day inci- hand-grabbing The after ion. dent, a major Johnson filed misconduct claim, the Eighth As to Amendment Peterson, against alleging Pe- report court right district reached the result but battery. terson had committed assault adequately identify did the basis for later, a officer Two weeks conduct- missing that result. now supply We resolve ed law, major charge. By basis. miscon- must, below, we grabbed right detail [Johnson] duct hand and prisoner pulled accused a number of [Johnson’s] accord the hand into the cell as the See, rights. e.g., closing.” Mich. door was finding, Based Peterson exercised the hearing 791.252. several officer issued a final written rights. appeared hearing, those He at his guilty decision of assault him, pled heard all the evidence battery sentencing him thirty guilty charge, provided days several Nothing of detention. in the final his support sworn statements account decision purported validity to affect the facts, called five-witnesses in de- underlying conviction mur- fense and had their affidavits read into the or length der of the sentence that he record, was, is, and moved to have the serving as result of his disqualified for officer bias. underlying conviction. A copy of the written final evidence in the decision was case delivered to Peterson. The

hearing officer did not decision was permit Peterson to subsequently upheld upon the administrative Upon view was the video of event. review. Peterson did not exercise his stat- Department motion from the of Correc- tions, utory right to state -hearing the officer had exercised his review final decision. statutory authority keep to that evidence

confidential. See Mich. B 791.252(h). by statute, required As the though, hearing the entered into officer later, years Two Peterson the filed holding—“to the record the reason for his §' subject 1983 lawsuit that the is of this allow actual viewing [the video’s] seeking appeal, financial for damages capabilities reveal the limitations and of alleged use of excessive force. security the fixed device” that recorded the for As basis his Eighth Amendment Further, the hearing tussle. officer claim, maintained, before, he that John gave a detailed description Peterson of put son had his hand into cell as Peterson’s depicted, what video down to the time- pull an excuse to out of his cell Peterson stamped second each relevant recorded Lindy and abuse him. re Johnson activity. description That included the fol- sponded judg with a motion summary for lowing account of the altercation: ment, alia, inter that arguing, At is 1826:22 back at his cell. [Peterson] specific finding officer made a of fact that forward, 1826:27 bends [At] [Johnson] “instigated Peterson had the incident” closing Lindy the door is and Officer is hand, grabbing Johnson’s and that open. pulling struggle, There is a judgment court should “substitute its 1826:30 hands can be seen [Peterson’s] for that of officer on factual door, out of the and Peterson comes out issues.”. In addition to a number of state go of his and he cell officers discussing paid court decisions deference the floor. Other respond staff and Pe- administrative by state courts decisions terson is back in his cell at 1828:11. review, direct cited the defendants evidence, Johnson, considering Shelly After all of the F.Supp. (6th rejected (W.D.Mich.1987); aff'd, officer motion 849 F.2d 228 Cir.1988) curiam),

that he disqualify (per himself bias and a federal district explained rejection. basis for of a holding, that The court in the context decision action, officer then issued fact that on collateral review cell, that “once Peterson was his he federal could not disturb the factual courts appeal, argues Peterson that there is Michigan prison hearing offi- On findings of material fact as to who genuine issue cers. grabbed whom and that the issue should assigned a magistrate The case was jury. resolved He does not dis- be Peterson had judge, who held pute against that the force him was used objectively he suffered both that prove fairly minor and that no visible he suffered as a result of Johnson pain serious injuries, any use physical argues but they Lindy’s use of force used sa- purely of real force for malicious and subjective out of sadistic intent force purposes necessarily distic is excessive. See, e.g., harm Peterson. Williams (6th Cir.2011). Curtin, 631 F.3d II magistrate finding that recommended We review de novo the district to meet either burden be- Peterson failed grant summary judgment. court’s had not suffered docu- cause Marine, Inc., v. James Spees injuries physical and the force mented (6th Cir.2010). Summary is judgment Peterson was de minimis. used is proper genuine where there no issue view, In former fact showed that moving party fact and the enti material objective meet suf- Peterson could not judgment as a matter of law. Id. tled fering prong, and latter showed 56(c)(2)). (citing Fed.R.Civ.P. In review subjective prove could not sa- that he facts, ing the we draw all reasonable infer prong. distic-intent may ences in favor and not Peterson’s credibility weigh make determinations or objected, arguing that at the Peterson Liberty the evidence. See Anderson summary judgment stage magistrate the Inc., 242, 255, Lobby, 477 U.S. 106 S.Ct. required to assume the truth of his was (1986). 2505, 91 As mov L.Ed.2d The district court allegations. overruled Lindy ing parties, Johnson and had the objection adopted mag- “ is, ‘showing’—that point initial burden of conclusion, crucially albeit istrate’s on dif- out to there ing the district court—that The held grounds. ferent district court support an absence of to [was] evidence accept that it could not Peterson’s factual Corp. case.” Celotex v. Ca [Peterson’s] allegation grabbed that Johnson him be- trett, 317, 2548, 106 S.Ct. allegation with the cause conflicted that showing, L.Ed.2d 265 After finding fact. hearing officer’s Because then shifted to Peterson to burden “ignore findings not could “designate showing that specific facts at [Peterson’s] made genuine there for trial.” Id. [was] issue hearing,” court concluded that district (internal 324, 106 quotation at S.Ct. 2548 subjec- Peterson could establish omitted). If marks Peterson failed prong of his claim. In other tive-intent necessary showing make the on an element words, grabbed had because Peterson upon which he would bear burden Johnson, resulting applied by “force trial, proof at and Lindy Johnson were good faith Defendants was effort summary at judgment. entitled id. See or discipline maintain restore was 322-23,106 S.Ct. 2548. unnecessary or wanton infliction The pain.” accordingly district court III found that it did not need to reach whether prove objective Ordinarily, Peterson could suffer- this standard of review be- ing require reversing judgment prong. below, disputes cy’s sharply low. Peterson Johnson determination but a collater- grabbed Lindy’s account of who proceeding al to wholly seeks set whom, disputed fact is material to agency’s prior aside the factual finding. Indeed, hand-grabbing the case. dis- Thus, presented we are squarely with the dispositive it frames the pute is because question of impression regarding first judicial inquiry” .the entirety of “core at kind preclusive give what effect we must here, issue which is “whether force was finding officer’s that Peter- applied good-faith in a effort maintain grabbed son Johnson’s hand and not vice maliciously or discipline, or restore question versa. answer to that turns sadistically to harm.” cause Wilkins v. first on federal law and then 1175, 1178, Gaddy, 559 U.S. S.Ct. law. (2010) (internal quotation 175 L.Ed.2d 995 omitted). just marks If mak- Johnson A ing up an Peterson out of pull excuse his him, attack cell and district court The federal courts this Circuit have in finding would have erred that Peterson occasionally preclusive given effect to fact- subjective could not establish the sadistic- Michigan prison hearings. from Curtin, intent prong. 631 F.3d instance, For Mandenberg, Johnson v. (recognizing that courts frown on even de (6th Cir.1990) (table), we of force the purpose minimis uses where a prisoner collaterally attacking instructed of the force was “diabolic or inhuman” findings the fact of a officer that McMillian, (quoting Hudson v. 503 U.S. remedy lay appeal “his in an to the Michi- (1992))). 117 L.Ed.2d 156 S.Ct. courts, gan not an action under 1983” hand, if grabbed But findings “subject because the be cannot danger being it in crushed collateral attack here.” Similarly, in the door, closing cell and exited his cell as a Shelly opinion Johnson we later hand, retrieving result of Johnson’s affirmed, Hillman Judge Chief explained ensuing then the two-minute effort to free that: hand and return to Peterson Federal district courts ... do not as sit only permissible, cell was not it was entire- appellate to courts review the factual ly though reasonable. This is true even findings in prison officers alleges that he pro- suffered hearings. misconduct To the extent afterwards, longed pain as nothing nerve dispute that there was a as to the factual allegations in his about the force used in- surrounding any given circumstances against it diabolically him shows that was cident, it was the function harm intended to him. officer, court, not this to resolve it. Sec- But is ordinary this not an case that tion 1983 to plaintiff [a] does extend comparatively comes to us on a blank in right relitigate a federal court evi- Rather, agency slate. it comes after an dentiary in questions arising administra- a has issued final on pre- determination disciplinary proceedings. tive cisely disputed on factual matter which F.Supp. at 945. But neither this case turns has so in Manden- and done an value, adjudicative berg Shelly precedential nor has nor setting parties where had to, did, they provide legal do clear and in fact a rationale vigorously incentive contradicting positions. Shelly their conclusions.. comes the clos- assert their And est, Strickland, review, citing it comes not on direct with Peter- Wood U.S. 308, 326, challenging legitimacy son of the agen- S.Ct. 43 L.Ed.2d (6th 18, 19 Cnty., Ky., a (1975), essentially quoting passage ferson Cir.1988)). standard, states, ex- the hear “§ 1983 does not Under it that from clearly in federal court here relitigate ing officer’s determination right tend the dis- in arising qualifies having school been rendered a evidentiary questions “judicial while capacity.” But Wood officer ciplinary proceedings.” certainly speaks it both precedential, into the considered evidence broadly briefly, provide Johnson, does not record Peterson and allowed any guidance on the exact contours any their parties argue version court should effect federal preclusive hearing, issued a facts at formal finding. agency’s that, give state final had Peterson written decision subject appeal, chosen to could have been Supreme opinion Court’s Enter to direct review in state court. See Mich. Elliott, University Tennessee § Laws 791.255. Comp. agency a state “when explained which resolves dis acting capacity in a Indeed, judicial- a whole raft of there is properly of fact before puted issues Michigan protections available to type adequate had an parties which have hearings. prisoners litigate, federal courts must opportunity to prisoner The accused must receive “evi- factfinding pre- the same give agency’s dentiary delay,” hearing without undue be be clusive to which it would entitled effect given hearing, notice” of the “reasonable in the State’s courts.” 478 “an evi- opportunity present receive (cita 106 S.Ct. 92 L.Ed.2d to present dence” and “oral and written marks, tion, and edits quotation internal fact,” on be arguments issues of al- omitted). agency Elliott addressed lowed to submit “rebuttal evidence” not been appealed determination that had evidence him. See Mich. court, the agency’s and found that to state (e). 791.252(a), (b), (d), Further, § binding were in the determinations hearing may be admit- the evidence action. Id. at plaintiffs collateral essentially the ted same evidentia- Thus, 3220. Elliott S.Ct. while ry all Michigan standard used for adminis- speak directly to Michi obviously does hearings, compare 791.252(g), trative findings, it estab gan hearing-officer does (standard § 24.275 with adminis- for, lish four in the context of criteria rules); objections evidentiary any trative case, according preclusive § 1983 effect to admissibility must be the evidence’s re- agency’s a state administrative unreviewed record, explained solved and on the see take We each one determination. § 791.252(g); all and admitted evidence in turn. record, be see part must made the 791.252(h). Further, agency is that the must the hear- presiding The first acting “judicial ing attorney, have a officer must be an can “ad- capacity.” been a recently This affirmed that an minister an oath or affirmation to wit- Circuit has “ judicial depositions” part ‘acts in a and as a agency administrative ness” “take evidence, role, fact-finding impartial it must capacity gives when hears be and if accused a parties argue to brief and must recuse files motion opportunity an bias, facts, successfully [gives showing their of the and must abstain versions parte with parties] opportunity an to seek court re from ex communications ” accusing Depart- any findings.’ prisoner view of adverse Herrera accused and staff, McGee, LLC, 539, and must make v. Churchill ment of Corrections (6th Cir.2012) at which hearing 547 record of the (quoting Nelson official Jef

913 First, Comp. hearing Mich. Laws officer “re- presides. he See 791.251(6); 791.252(f), (i), (j); “disputed §§ 791.253. fact” that solvefd]” issue[ ] it,” Elliott, hearing pro- must conclude the “properly officer was before 478 U.S. 3220, issuing 799, final decision that rejected cess written at 106 S.Ct. he when solely preponderance on the found, is based Peterson’s factual account and aas record, that evidence in the decision necessary predicate to ruling his ultimate must mailed to the accused immediately be that Peterson committed assault and bat- Comp. prisoner. See Laws Mich. tery, “grabbed that Peterson [Johnson] 791.252(k). if prisoner And dis- right pulled hand and hand [Johnson’s] decision, agrees he with final has closing.” into the cell the door as right appeal agency within and Second, above, as length demonstrated at then, displeased, if court. still state See adequate Peterson had “an opportunity 791.254, §§ 791.255. Mich. litigate” dispute. the factual Id. Not have, exercise, plethora did he protections, it is Given all these no statutory protections, objections any he Michigan for wonder that decades courts had hearing itself recognized major have misconduct hear- have appealed could been de- within the See ings “judicial proceedings.” Couch then, partment if necessary, to state 292, Schultz, Mich.App. 483 N.W.2d court. He exercised the first of these (reaching this conclusion appellate rights, which resulted in the noting after in these hear- prisoners agency’s fi- affirming officer’s ings statutory rights to present have evi- decision; appeal nal he declined to to state dence, arguments, oral and written present court. questions examine via submitted witnesses officer, receive notice of the brings That us to the last Elliott criteri- officer, hearing, an unbiased and on, provides prior which that if the three review).

judicial Similarly, both satisfied, are then we must give agen- long courts this Circuit have held cy’s 'finding preclusive of fact the same “Michigan prison hearing officers” given effect it in state would be courts. judicial are themselves “full time offi- Elliott, at 106 S.Ct. 3220. Johnson, Shelly v. F.2d cer[s].” inquiry And so now our turns to Michigan (6th Cir.1988) curiam); (per Jones v. law. Sherman, Mich.App. 625 N.W.2d (2000). Thus, instance, 392-93 B recently that a Michi- Court concluded law, interpret To “we apply gan officer was a officer of the state’s court.” highest law acting “judicial in her capacity” when Herrera, (internal quota F.3d [major “presiding over a hear- misconduct] omitted). tion has marks When that court ing authoring hearing report.” yet subject, speak on a we “must ascer Harris,

Reynolds-Bey v. Fed.Appx. 428 data,” tain from all the state law relevant Cir.2011) 493, (6th added; (emphasis 498 including appellate the state’s intermediate omitted). quotation internal marks In courts, of opinions give which we sum, agency factfinding before this controlling, but weighty, deference. clearly judicial court in a was rendered Michigan Supreme Id. Neither the Court capacity. Michigan Appeals yet nor the of has Court determined preclusive The next two Elliott criteria are effect whether just given major to to a simpler as clear and even should be misconduct show.

914 factors Thus, remaining at 846. The we will have factfinding. N.W.2d hearing’s a bit more attention. require by standard rules their guided to be preclusion. agency issue first Turning prong to the already that the stage, we have noted first apply test courts The and Peterson agency decision resolved preclusive give to deciding whether when grabbed whom dispute over who determination factual agency’s effect to an was to this resolution essential and and tracks several stages in two proceeds was judgment, officer’s which stage ap The first factors. of EUiott and committed assault that Peterson had preclusion is cases where plies to all battery precisely by grabbing Johnson’s (1) claimed, question a and asks whether: have been question And to hand. actu judgment to the was of essential put must “actually litigated,” it have been by valid ally and determined litigated by complaint, into issue submitted (2) parties had judgment;1 and final fact, the trier and determined opportunity litigate fair full and Bithell, 254 Keywell trier. & v. Rosenfeld (3) issue; mutuality estop- there is and 300, 759, n. 49 Mich.App. 657 N.W.2d Braverman, v. pel. McCormick (2002) curiam) (citing (per VanDeventer Cir.2006) (6th 382, (citing Monat 456, Bank, Mich.App. Nat’l Mich. Co., 469 Mich. State Farm Ins. curiam)). (1988) (per N.W.2d (2004)). next The N.W.2d 845-46 Here, charge Johnson made only seeking to stage applies parties his grabbed was that Peterson a factual issue that preclude litigation on danger being hand and an agency. administrative was decided crushed, to the charge this was submitted (1) the It asks whether: administrative resolution, it was hearing officer for and (2) nature; adjudicatory in was decision Thus, litigated.” “actually it was resolved. right there from the deci appeal was statute, was a Finally, by this resolution sion; legislature intended to and is, and final a resolution valid one—that appeal. make the decision absent an final empowered by law hearing officer was Treasury Dep’t, 448 Mich. Nummer v. subject and to make to have carried out 250, 253 533 N.W.2d appellate Comp. See only to review. Mich. (requiring hearing §§ 791.251 offi Laws already these been Some of factors have hear major to conduct misconduct cers agency are The de- reviewed or obvious: 791.252(k) (describing hearing offi ings), termination, above, ad- established major cer’s resolution of misconduct nature, judicatory Dep’t see also Gee v. “final as a “final decision” and a Corr., 291, 597 Mich.App. N.W.2d 791.255(1) “a fi (stating that disposition”), (1999) (“A pur- conducted is hearings nal decision ... of a officer” Comp. suant to Laws is [Mich. 791.251] review). subject only to agency administrative adjudicatory proceed- ...”); courts ing. right ap- question Michigan Peterson had the next -court, a “full peal to state see ask is whether Peterson received the determination 791.255; litigate” opportunity Mich. there fair Monat, at 845 mutuality estoppel—which, allegations. this con- 677 N.W.2d (internal text, quotation marks brackets parties means (Peterson omitted). they assessing question, In Johnson) recognizing thirteen while essentially weigh are the same as the factors “ Monat, on that, ultimately, answer parties proceeding, ‘rest[s] to this see 677

915 justice equi by ... supported competent, courts’ sense of “is material and ” record”), substantial on ty.’ (quoting Id. at 845 n. Blonder- evidence the whole 24.306(l)(d) (direct Labs., judicial with Tongue Inc. v. Univ. Illinois review of Found., 334, agency finding of fact 1434, is limited to deter S.Ct. mining if (1971)). “supported by it is competent, of 28 L.Ed.2d Almost all material and substantial evidence on clearly weigh thirteen factors either fa record”); whole see also Meadows v. Mar finding simply of a full-and-fair or are vor Warden, quette Prison Mich.App. examples irrelevant to this Id. As of case. curiam) (per 324 N.W.2d former, Peterson could have obtained (reviewing hearing officer’s factual find preclu judicial up review and the issue for ings under the same standard of review as legal; example is factual and not as an sion all agency factfinding). other in latter, judicial there no of are other in ensuring terest fair and accurate fact- that were with determinations inconsistent finding appeals major exists.in of both a factfinding. officer’s While we any misconduct type other of that, stop ques could we with consider If, agency hearing. then, there were some “justice equity” tion further ensure of special sort concern factfinding with the finding counsel that Peterson had a full major at hearings, they misconduct litigate. and fair chance to See id. by not receive identical review state courts Again, is question there no that Peter- Thus, direct appeal. on it is apparent that vigorously son had incentive to contest Michigan major considers misconduct account, losing not least because hearings a forum which to fully mean, mean, argument could and did fairly See, litigate questions. factual e.g., thirty days of detention. And vigorously Corr., 443 Mich. Dep’t Walen did, appearing hearing, contest it he at the (1993). N.W.2d (finding that “a witnesses, calling submitting per- several prison disciplinary case falls within the affidavits, responding sonal ” evidence [statutory] definition a ‘contested case’ against him, moving disqualify and even just determination, like other any agency Further, officer for bias. he which that such means cases are identical had a panoply statutory rights agency proceedings to other “in which disposal to assure him a full op- and fair duties, rights, of the legal determination or obtain portunity to a fair decision on the privileges by of a named is party required issue, up including judicial to and by agency law be made after an proceeding. review the entire opportunity evidentiary hearing” for an (some omitted)). quotation internal marks Indeed, type judicial avail- review to him on agency’s able factual deter- This not mean the forum itself does mination shows that considers any agency is identical to other forum. It major hearings misconduct “full and fair” instance, not. For agency is a standard opportunities ques- such litigate factual can hearing, party agency’s use the sub- because, law, tions. This is power compel poena ap- witnesses to misconduct major determinations made at pear, briefing legal is entitled to submit hearings receive the same issues, “substantial-evi- personally and can cross-examine dence” review on direct appeal Comp. adverse witnesses. See Mich. Laws any agency’s findings 24.273; 24.272(3), do other of fact. §§ But dis- those 791.255(4) Compare Mich. tinctions make no difference to the fullness (direct judicial a hearing review of officer’s the opportunity and fairness of afforded determining if limited to to decide a prison agency’s a allegation is no be- that started with state There issue.

factual determination, then state compel appealed could not was to that Peterson fore us witness, court, by particular highest a later the state’s decided attendance concern, a court, been such finally if there had to the U.S. appealed even appeal Court). Peterson, have a direct Indeed, could made Peterson had Supreme have court, the court could to where instance, recording state thought the video for it fit. as much as saw the record expanded to state court would dispositive, appealing 24.305; Walen, § Laws Comp. See Mich. automatically part made the video a have that mis- (noting at 521 505 N.W.2d of the record. See Mich. to,” subject among “hearings are conduct 791.253(2). Nor can the results of 24.305). Further, there things, § other procedures to failure use those be consid- to be entitled to need for Peterson was no procedures proof ered that themselves legal briefing, opposed as to Herrera, inadequate. were somehow See entitled, to which he was because briefing (noting party’s that 680 F.3d at 550 a one of fact. only contested issue was. proce- to himself of the full “failure avail personally could not And while Peterson by does con- provided dures state law not him, the witnesses cross-examine (internal sign inadequacy” stitute a of their questions he to submit for the was entitled omitted)). quotation marks brackets ask witnesses hearing officer to adverse gives pause that us concern any have refusal and to that that courts have often found in the Mich. included record. See officer supporting evi presence counsel is 791.252(e). This accommo- Comp. Laws that a full fair party dence has had seems, context, prison in the suffi- dation See, e.g., chance to Mo litigate issue. creating fairness without preserve cient to nat, Nummer, 847; at N.W.2d prisoners to abuse witnesses forum at not N.W.2d 253. Peterson did And See, government or time. otherwise waste But not that have counsel. we do think Couch, (treating e.g., N.W.2d lack categorically dispositive either is reasonable). as the accommodation specifically requires finding or Peter said, con That did state some here. son did have full-and-fair chance how the agency cerns to the about participation categor- If were a counsel’s (as he actually proceeded opposed how necessity, ical then it would have been proceed), was entitled law have It among listed Monat’s thirteen factors. alleged such as the bias Indeed, not. although was Monat officer, view se inability to presence Nummer found counsel curity tape, and the officer’s deci the full-and-fair supporting evidence on questions sion not to some ask they begin suggest did not question, this is Peterson submitted. But Further, necessary that it was evidence. bring com forum which to first those nothing Michigan’s Administrative Pro- plaints to court. After his failed federal Act covering major cedure or its laws mis- Peterson was enti appeal, administrative hearing procedures requires conduct ei- in an appeal tled to raise those concerns present ther that counsel must be or and, court if the state courts had hearing. at a concerns, present counsel cannot be appeal failed to resolve his See, governing Nor do the laws Supreme e.g., Super the U.S. Court. intendent, Inst., given adjust the appeal v. deference on direct Walpole Corr. Mass. Hill, par- 86 level of deference based on whether 105 S.Ct. represented by Finally, (resolving dispute ty L.Ed.2d 356 counsel. perverse rule could categorical have conse- that is agency’s evidence that the decision quences: party to the clearly who went effort “is intended to be a final decision expense hiring of litigate counsel to a on the merits” because “the appeal pro- claim face- in a preclusion would issue col- cess, nature, very its does not contem- proceeding, lateral a party while 'who new, (also plate a original action.” Id. chose to hire counsel could avoid pre- noting that holding otherwise runs the risk clusion and have his live litigat- case to be having “of panels two different issue two day ed another before a different court. potentially opposing opinions concerning issue”). one factual Nor do we consider of the absence coun- sel problematic for case. The Thus, we conclude that courts very sole issue simplé factual was a one grant preclusive would effect to the hear- on judg- and it turned officer’s ing officer’s that Peterson grabbed ment of Johnson’s and Peterson’s credibili- Johnson’s hand. ty on of his review the video record- ing. attorney likely An have had C only negligible influence such a "factual explaining Sometimes what something is judgment. goes a long way showing toward what Thus, we conclude Peterson had a it is. And because this is an issue first full fair opportunity litigate whether impression, we wish to perfectly make grabbed he Johnson’s hand or Johnson preclusion clear analysis that our is dis- grabbed his. tinct from two other parallel lines law. deciding last factor First, suggesting we are not give whether to preclusive effect to the the hearing legal officer’s conclusion that hand-grabbing determination is whether Peterson committed assault battery Michigan legislature clearly intended any bearing has on whether Johnson treat to make the officer’s determina ed Peterson with excessive force. It does tion final in the appeal. absence of Num not. As this mer, explained Court Lockett v. 533 N.W.2d at 253. Three factors (6th Cir.2008), 526 F.3d indicate that the legislature did so intend. Suardini assault-and-battery First, analyt conviction is repeatedly statute refers to the ically distinct from an excessive force hearing officer’s un-appealed determina claim; prisoner can commit the former tion a “final disposi as or “final decision” See, simultaneously be the victim of a e.g., tion.” Mich. 791.252(k) Rather, guard’s §§ excessive force. what we (referring of hold is that ficer’s officer’s determination as “final” three 791.253(2) times), (once), 791.254(3) (once), finding that Peterson was one who 791.255(1)(twice). here, Second, where, grabbed precludes as Johnson’s hand con trary finding there is an legislative being “absence intent to federal court. That true, contrary, question whether, applicability principles then becomes case, of preclusion presumed.” is Dearborn on the facts of-this jury reasonable Heights Wayne Sch. Dist. No. v.7 Co. could find that struggle Johnson’s brief MEA/NEA, Mich.App. 592 free his hand and then return Peterson Third, where, N.W.2d his cell awas malicious and sadistic use of here, “the procedure City available to force. excessive Bazzi Dear born, (6th Cir.2011) party aggrieved by a final decision of the courts,” [agency] is direct (recognizing review summary judgment ap- underlying murder con- that his such that a indication if “the evidence is propriate any way or is in affected a ver- viction sentence return jury [not] could reasonable Instead, (internal Peterson seeks by his claim. quotation plaintiff’ for the dict al- damages for Johnson’s omitted)). solely it financial find that could not We marks Thus, leged the the court.1 excessive force. affirm district accordingly Heck/Ed- here. rule has no relevance wards Further, only holding includes our factu- by agency. Both a state issues decided al IV which we state cases on and the Elliott preclusive effect explicit that the rely were reasons, the we AFFIRM foregoing For factual purely concerned they recognized summary judg- of grant the district court’s determinations, makes and that limitation ment Peterson. pur- the officer good sense. Had regard- legal make a conclusion ported to DONALD, Judge. B. Circuit BERNICE rights, federal constitutional ing Peterson’s necessarily be different analysis majority would that the dis- agree our I with the be likely summary could not so deferential.2 granted and we properly trict court to the Defendants on Peterson’s judgment Second, relying on the rule we are not and on Amendment Retaliation claim First 477, 114 Humphrey, 512 U.S. from Heck v. I claim. take his Eleventh Amendment (1994), 2364, 129 L.Ed.2d 383 S.Ct. however, majority’s to the con- exception, 641, Balisok, 520 U.S. Edwards that the court reached clusion district (1997), 1584, that 137 L.Ed.2d 906 S.Ct. result, wrong rea- correct albeit rejects prisoner’s § 1983 claim where sons, Eighth Amendment on Peterson’s vindicating necessarily imply it majority in- claim. Because I believe disciplinary invalidity prison agency’s of a hinges correctly this case finds that applies That rule determination. cell, hand in the and be- who whose challenge prisoner’s where I remains cause would find that there dura- ... his conviction or the “threatens fact as to exces- genuine issue material tion of his sentence.” Muhammad force, respectfully sive I dissent. Close, 540 U.S. S.Ct. curiam). at It is true that officer (per Pe- 158 L.Ed.2d 32 hearing made factu- Peterson’s misconduct challenge threatens neither. He terson’s at findings to the incident issue. any that the al related does seek relief for effect not that, It true in certain circum- assault-and-battery may have is also conviction stances, give preclusive required are any- nor does we good-time had on credits findings in good-time agency’s to an factual thing the record effect show §a 1983 action. proceeding is no collateral to implicated, were and there credits however, do, response 2. We note that even if the factual 1. The dissent believes question grabbed preclu- finding of who whose hand can have dissent that factual subject dispute, to further sufficient issues particular legal regardless of effect what sive preclude sum- material fact still remain Thus, support. being used to claim is However, mary judgment. we hold finding original- here was that the factual having hand-grabbing question with been (i.e., legal one claim ly made in the context of conclusively officer's settled negate pre- battery) does assault remaining finding, factual factual Peterson's effect of that same clusive allegations present an ex- are insufficient (e.g., legal claims exces- the context other claim that can survive sum- cessive force force). sive mary judgment. Elliott, claim—“[wjhere University Tennessee v. there is room for the facts 788, 799, 106 S.Ct. 92 L.Ed.2d alleged plaintiff and the facts essen however, principle, ap- This tial to judgment agency the state plies only attempting co-exist, where the claimant is peacefully 1983 must be relitigate evidentiary questions go allowed to forward.” Lockett v. Suar (6th prior dini, Cir.2008) (in at the state proceeding. raised Id. 797-98, my S.Ct. 3220. It is view ternal omitted); citations and quotations that, although on premised Huey Stine, 226, the same set of see also v. 230 F.3d (6th facts, Cir.2000) brought Peterson has claim dis- that (finding question “the tinct from that determined the hearing degree the police force used or officer, thus, and the officer’s find- analytically corrections officer is distinct relevant, ing, while dispositive. question from the plaintiff whethér (citation law”) omitted), violated the abro Peterson’s con- was gated grounds by on other v. Muhammad ducted to resolve Johnson’s accusation of Close, 749, 1303, 540 U.S. 124 S.Ct. related, battery; although assault and L.Ed.2d 32 not a if was determine Johnson Lindy used excessive on Peter- The Eighth prohibition force Amendment’s son. The scope distinction is critical to the punishment cruel and unusual extends to preclusive of the effect afforded to the the unnecessary and wanton infliction of I do proceedings. pain upon Curtin, not take issue prisoners. Williams (6th Cir.2011). with -the majority’s determination that Pe- pre- To motion, terson’s misconduct was a state vail on the Defendants’ agency acting that, in a capacity objectively, within must pain show was meaning My of Elliot. sufficiently and, issue lies with serious subjectively, that its determination that the hearing officer’s “the applied good force was faith finding precludes bringing Peterson from discipline effort maintain or restore or Eighth claim maliciously Amendment for excessive sadistically very for the force. causing purpose of harm.” Wilkins v. Gaddy, 1175, 1178, 559 U.S. 130 S.Ct. majority opinion The fails consider 175 L.Ed.2d 995 (quoting Hudson v. complaint alleged that Peterson’s facts in McMillian, 1, 7, S.Ct. addition to Johnson putting Peterson’s (1992)). 117 L.Ed.2d 156 cell. pleadings hand other list contributing incidents as allegations majority that While recounts Peter- force, including excessive injuries “fairly Johnson and son’s were minor that Lindy floor, throwing Peterson to the injuries[,]” he suffered no physical visible Johnson driving objective his knee into component can be satisfied back, allegation as well the where “the inmate does not suffer serious tight—resulting Hudson, handcuffs were too in injury.” 503 U.S. at S.Ct. Thus, pain. regardless nerve hear- Supreme 995. The Court made clear that ing officer’s finding that Peterson judged this element is to be by the nature door, force, Johnson’s hand in the cell offi- of not the extent of the injury. Wilkins, cers could still be found to have used at 1178. S.Ct. As to the excessive force in their attempts subjective component, subdue Peterson averred Moreover, finding him. that Peterson that he did resist officers Johnson guilty of assault on Johnson does not Lindy they when him out of cell. pulled necessarily preclude fact, give preclusive an excessive force In if we effect ag- the initial Peterson was Jr.; BARNEY, R. OF William ESTATE possible Johnson entirely it is

gressor, Jr., Trust; Barney, Caroline William R. maliciously sadistically or Lindy acted Barney, Plaintiffs-Appellants, G. provocation. See response to Peterson’s Hudson, 112 S.Ct. 995. 503 U.S. incident, BANK, than the “hand-in-cell”

Other PNC NATIONAL ASSOCI dispute Peter- Lindy ATION, do not Defendant-Appellee. Johnson and place. events that took son’s version No. 12-3540. effect give preclusive if we Even States of Appeals, United Court finding that Peterson hearing officer’s Sixth Circuit. cell, into the law hand pulled us, of a motion for on review requires Argued: March 2013. to view the evidence summary judgment, April Decided and Filed: 2013. light most favorable in the dispute where there is Lindy’s malicious or sadistic intent. Inc., Lobby, Liberty

See Anderson 242, 255, S.Ct. L.Ed.2d conclusion, I believe that this case In granting which presents an instance in officer’s preclusive effect as it to Peterson’s finding of fact relates disposi- Officer Johnson is not assault on subsequent 1983 ex- of Peterson’s tive majority’s deter- force claim. The cessive dispositive mination that this fact is indeed is the reason it would not succumb sole our standard of review and reverse I find judgment below. Because would differently and believe there remains genuine regarding issue material degree whether the of force used excessive, I reverse Peterson was summary judg- grant the district court’s ment Defendants.

Case Details

Case Name: Toran Peterson v. Richard Johnson

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 12, 2013

Citation: 714 F.3d 905

Docket Number: 11-1845

Court Abbreviation: 6th Cir.