Jerome L. Williams v. Peter Vidor and Willie Ray ( 1994 )

PER CURIAM.

Plaintiff Jerome L. Williams, a prisoner in Michigan, brought this pro se action under 42 U.S.C. § 1983 against the deputy warden, Peter Vidor, and against Willie Ray, a sergeant, of the state institution in which plaintiff was a prisoner. Defendants filed a motion for summary judgment supported by affidavits, and plaintiff also filed a motion for summary judgment so supported. The district court granted the motions of the defendants and denied the motion of plaintiff.¹ Plaintiff appealed, and we affirm the district court’s grant of summary judgment to Sergeant Ray and its denial of plaintiffs motion as to Ray. We reverse the district court’s grant of summary judgment to Deputy Warden Vidor but affirm its denial of summary judgment to plaintiff with respect to defendant Vidor. The result is that we remand plaintiffs action against defendant Vidor to the district court for further proceedings.²

I

In reviewing the grant of summary judgment to Sergeant Ray, we consider the facts in a light most favorable to plaintiff, but in reviewing the denial of summary judgment to plaintiff as to his claim against Sergeant Ray, we consider the facts in a light most favorable to Sergeant Ray. In reviewing the grant of summary judgment to Deputy Warden Vidor, we consider the facts in a light most favorable to plaintiff and in reviewing the denial of summary judgment to plaintiff, we consider the facts in a light most favorable to Vidor.

II

In stating the operative facts presented by the cross-motions for summary judgment, we set forth those that are not in dispute in the affidavits making up the summary judgment record.

Williams was imprisoned at the Ionia Maximum Correctional Facility (“IMCF”). Defendant Vidor was deputy warden of the IMCF; Sergeant Ray was employed there. On Friday morning, March 25, 1988, Williams was transferred to a housing unit at the IMCF. In response to the staffs withholding of his stereo headphone set, Williams became angry, repeatedly shook or kicked the door to his cell and loudly complained, causing other prisoners to become restive, and he threw a trash can, damaging and requiring replacement of the cell’s toilet.

Guards then took Williams from his cell and placed him in top-of-bed (“TOB”) restraints, that is, plaintiff was fully restrained by chains and shackled to his bed (but allowed to smoke and go to the toilet from time to time), where he remained for some 72 hours until he was released on Monday, March 28. Deputy Warden Vidor authorized the TOB restraint, and Sergeant Ray placed Williams in the restraint. During this period of restraint, Williams particularly complained of pain in his abdomen, where he had an exposed “stitch” resulting from an old stab wound and colostomy closure. The prison’s nurses and other employees checked him from time to time and supplied him with Tylenol although he requested a stronger pain killer. On Saturday, March 26, a nurse wrapped a pillow case around the belly chain after Williams complained it was irritating his colostomy stitch. Authority to hold Williams TOB more than 24 hours (effectively over the weekend) was granted by an Assistant Deputy Director and Vidor approved his release and return to a cell on Monday, March 28. Williams was not violent while he was TOB but did complain bitterly about his condition.

Williams brought suit under § 1983 claiming that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment;³ that he was treated differently from other prisoners based on his race and was thus denied equal protection of the law under the Fourteenth Amendment;⁴ that the defendants deliberately ignored his need for medical care;⁵ and that his Fourteenth Amendment due process and liberty interest rights were violated by the TOB restraint.

III

With respect to Sergeant Ray, we have no problem with approving the grant of summary judgment to him because the record shows without dispute that he did not make the decision to place Williams in the TOB regime, did not make the decision to keep Williams there for any particular period of time and that he did carry out his duty, personally or by guards under his direction, to check on Williams from time to time.

IV

As to Deputy Warden Vidor, the picture is more complicated with respect to the “cruel and unusual punishment” claim. The main thrust of plaintiffs claim here is that Vidor is responsible for Williams’ being kept TOB for 72 hours. It is true, of course, that, as heretofore stated, Vidor approved his initially being placed TOB on Friday and approved his release from TOB on the following Monday, but, according to Vidor’s affidavit, the decision to continue Williams’ TOB status over the weekend was made by an Assistant Deputy-Director, not Vidor. Accordingly, we could not hold that Williams is entitled to summary judgment against Vidor on the theory that, as a matter of law, it was cruel and unusual punishment to maintain Williams TOB for 72 hours. On the other hand, we cannot approve the grant of summary judgment to Vidor on this issue because we should not assume at this point that Vidor did not actually approve Williams’ being held TOB for 72 hours. This is true because Williams, proceeding pro se, was denied discovery, on motion of defendants, by a magistrate judge pending disposition of defendants’ motion for summary judgment. It is without dispute, of course, that Vidor ordered Williams to be placed on TOB for about 24 hours, but applying the standards of Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir.1987) (“unnecessary and wanton infliction of pain”), and Hudson v. McMillian, — U.S. -, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (whether the TOB restraint was objectively harmful enough and Vidor acted with a sufficiently culpable state of mind), we cannot say that, as a matter of law, such conduct of Vidor violated that standard.

V

Williams also contends that his being placed in TOB status, under the circumstances, was in violation of various state laws, rules and regulations and, as such, constituted a violation of a liberty interest under the Fourteenth Amendment. The district court denied relief under this theory.

Because this issue was not developed in the district court (Williams being pro se), it should, if Williams continues to pursue it, be presented upon remand. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).

VI

Vidor also relies on qualified immunity as a separate defense. The district court did not deal with this question, because, in granting summary judgment to defendants on the ground that there was no constitutional violation, it was unnecessary to do so. Accordingly, we need not dispose of this issue.

VII

It results that the dismissal of plaintiffs claim against defendant Ray is AFFIRMED; the dismissal of his claim against defendant Vidor is REVERSED, and the cause is REMANDED for further proceedings.

The district court will promptly appoint counsel for plaintiff.

1 . When the court initially granted defendants’ motion, it did not realize that plaintiff had filed a motion for summary judgment that was supported by affidavit. After recognizing that it had overlooked plaintiff's affidavit, it then, nevertheless, again held that defendants were entitled to summary judgment.

2 . " 'The fact that [both plaintiff and defendants] have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts.' ” Taft Broadcasting Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991) quoting Mingus Constructors, Inc. v. U.S., 812 F.2d 1387, 1391 (Fed.Cir.1987).

3 . "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const, amend. VIII.

4 . There is nothing in the record to support the contention that Williams was treated differently because of his race and therefore we approve summary judgment on that issue.

5 . We treat plaintiff's claim that defendants deliberately ignored his need for medical care as an aspect of his "cruel and unusual punishment” claim. In any event, in view of the care Williams received, by nurses and others, we cannot say that lack of such care, as shown by the summary judgment record, constituted cruel and unusual punishment as a matter of law.