Jack McLaurin v. Keith Morton and Roger Marriott ( 1995 )

KENNEDY, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. CONTIE, J. (pp. 950-954), delivered a separate dissenting opinion.

KENNEDY, Circuit Judge.

Defendant Roger Marriott, a correctional officer of the Michigan Department of Corrections (“Department of Corrections”), appeals the denial of qualified immunity in this section 1983 action brought by plaintiff Jack McLaurin, a prisoner at Jackson State Prison. Plaintiffs suit stemmed from an incident during which, at Marriott’s order, mace was used to bring plaintiff down from the basketball goal and razor ribbon fence he had climbed in the prison exercise yard. Plaintiff alleges a violation of the Eighth Amendment through the use of excessive force and a violation of a state-created liberty interest under the Fourteenth Amendment. The District Court denied Marriott’s motion for summary judgment. Marriott appeals only with respect to the District Court’s denial of qualified immunity for plaintiffs state-created liberty interest claim.¹ ■ For the reasons stated, we reverse.

I.

On August 9, 1991, while confined to administrative segregation, plaintiff, intentionally broke a water sprinkler in his cell, causing his cell to flood. Plaintiff was, placed in a quiet cell for two hours for breaking the sprinkler and then was returned to his cell in administrative segregation. Upon his return, plaintiff discovered that the bed mattress in his cell was soaked with water and he complained to employees of the Department of Corrections.

Later that day, plaintiff was allowed to go to an exercise cage in the segregation exer--cise yard. While he. was in the yard, he continued to complain about his wet mattress. Plaintiff alleged, that Marriott made statements to the effect that-he did not care about. plaintiffs complaint. Plaintiff then climbed up on top, of the basketball goal located in the exercise cage and started protesting.

Plaintiff alleges that Marriott and Morton called him derogatory names and told him he better come down. One of the prison staff called the duty deputy, Deputy Warden Jerry Hofbauer, to obtain approval to use mace if necessary to remove plaintiff from the goal. The control center log book indicated permission was given. It is unclear when and in what form this permission was conveyed to Marriott. Deputy Hofbauer instructed the caller to inform the officer-in-charge that a psychologist had been ordered to go to the exercise yard to talk plaintiff into coming down voluntarily.

Before the psychologist arrived, plaintiff was gassed on Marriott’s order. Plaintiff then climbed from the basketball goal to a chain link fence which contained razor ribbon. The psychologist asked plaintiff what was going on. At the same time, correctional officers were yelling at plaintiff to get down and calling him an “asshole.” Plaintiff alleges that,' without any warning whatsoever, Marriott said, “All right, gas him again and charge him.” Plaintiff was again gassed. It was too windy for the gas to be effective, so plaintiff had to be physically removed from the fence. He was taken to the emergency room, where a cut on his foot was treated.

Prison officials investigated the incident and disciplined Marriott, finding that he had violated PD-BCF-32.02, a Department of Corrections Policy Directive titled “Resisting Prisoners — Use of Chemical Agents and Physical Restraints.” The version of PD-BCF-32.02 in effect at the time provided the following with respect to chemical agents:

[C]hemical agents shall be applied only in amounts necessary to gain control of a resisting prisoner. The application of ... chemical agents shall not be capricious, retaliatory or punitive....

It is essential that the supervisor in charge attempt to defuse the conflict by first talking directly to a resisting prisoner. The supervisor should hear the prisoner’s version of the problem and attempt a non-confrontational resolution of the prisoner’s concerns. If the use of force remains necessary the prisoner shall be advised of the intent to use force and be given a last opportunity to resist....

With Warden or Deputy Warden approval, chemical agents may be used to subdue a prisoner when one of the following situations exists:

1. A prisoner is engaging in or seriously threatening self-mutilation or self-destructive acts and represents a serious threat to others if physically approached.

2. A prisoner is armed or barricaded and a delay in bringing the situation under control may result in a major disturbance or constitute a serious hazard to the prisoner, to others, or to state property.

When the use of a chemical agent is planned against a specific prisoner, and when time permits, medical staff shall be consulted to ensure there is no medical reason to preclude chemical agent use....

The prison officials concluded that Marriott had acted capriciously in administering the gas and that he had failed to consult first with medical personnel.

Plaintiff sued Morton and Marriott under 42 U.S.C. § 1983, alleging that their failure to follow the policy directive violated a state-created liberty interest protected by the Fourteenth Amendment and that the use of. the mace constituted excessive force in violation of the Eighth Amendment. • Morton and Marriott moved for summary judgment, contending that they were entitled to qualified immunity. The District Court referred the motion to a magistrate judge.

The magistrate judge concluded, in a report adopted by the District Court, that Morton was entitled to qualified immunity but that Marriott was not. The magistrate judge found that PD-BCF-32.02 created a liberty interest and that a question of material fact remained as to whether Marriott’s actions violated clearly established law. The magistrate judge also found that a genuine issue of material fact remained regarding plaintiff’s Eighth Amendment claim against Marriott. Marriott now appeals the denial of qualified immunity as to plaintiff’s Fourteenth Amendment claim only. The excessive force claim is still pending before the District Court,

n.

Government officials performing discretionary functions “generally are shielded from liability for civil, damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). When a claim to qualified immunity arises in the context of a motion for summary judgment, “we müst first decide whether the plaintiff has stated a section 1983 claim against the individual defendants beforé addressing the qualified immunity question ... If [plaintiff] has stated a claim, then we must examine whether summary judgment is warranted on the grounds of qualified immunity.” Black v. Parke, 4 F.3d 442, 445—46 (6th Cir.1993); Carlson v. Conklin, 813 F.2d 769, 771 (6th Cir.1987).

Plaintiff has stated a section 1983 claim if he has shown a violation of a constitutionally-protected right. In analyzing the claim involved in this appeal, we must first determine whether the policy directive created a liberty interest and, if so, what minimum process is constitutionally due-plaintiff because of the liberty interest. We must then determine whether plaintiff received the requisite due process. Only if plaintiff has a constitutional claim or there are questions of fact which, if resolved in his favor, establish a constitutional claim, do we need to reach the question of qualified immunity. Black, 4 F.3d at 446-49.

A district court’s denial of summary judgment based upon qualified immunity is a matter of law which we review de novo. Black, 4 F.3d at 444 (6th Cir.1993). We have held that- the issue of whether conduct, violates clearly-established law is purely a question of law, an issue which the trial court cannot simply avoid by characterizing it as a disputed question of fact. Dominque v. Telb, 881 F.2d 673, 677 (6th Cir.1987). On the other hand, “if genuine issues of material fact exist as to whether .[defendant] actually did commit acts that would violate -a clearly established right, then summary judgment on qualified immunity is improper.” Black, 4 F.3d at 445.

We find that the District Court improperly denied summary judgment because the policy directive creates no liberty interest. The policy directive creates a liberty interest if

it constitutes more than a simple procedural guideline and uses “language 'of an unmistakably mandatory character, requiring that, certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed'..: ■ and that [the use of chemical agents] will not occur absent specified substantive predicates — viz., ‘the need for control’ or ‘the threat of a serious disturbance.’”

Black, 4 F.3d at 446 (quoting Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983)); Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989). Taken as a whole, the policy directive, here leaves considerable official discretion 'and thus does not create- a liberty interest.

The policy does contain some mandatory language. For instance, when time permits, medical staff “shall be consulted to ensure there is no medical reason to preclude chemical agent use.” (Emphasis added.) The policy also provides that chemical agents “'shall be applied only in amounts necessary .to gain control.'” (Emphasis added). However, the amount necessary to gain control is left to the judgment or discretion of the officer.² In Kentucky Department of Corrections, 490 U.S. at 464 n. 4, 109 S.Ct. at 1910 n. 4, the Supreme Court cautioned that courts should not “search regulations for any imperative that might be found. The search 'is for relevant mandatory language that expressly-requires the decisionmaker to apply certain substantive predicates in determining whether an inmate may be deprived of the particular interest in question.” (Emphasis in origi-' nal.) The policy requirement that the prisoner be advised of the intent to use force may be such a predicate, but plaintiff does not claim he was not told that force would be used if he refused to come down-.

PD-BCF-32.02 does not establish mandatory, inflexible procedures which must be followed before chemical agents are used. Taken as a whole, it provides guidelines to aid the decisionmaking of prison officials while allowing considerable discretion. For instance, although it prohibits the use of chemical agents in a “capricious” manner, what is capricious must be determined by the officials. Furthermore, the officials have to make their own decision concéming when a prisoner is “resisting” or what is considered “self-mutilation or self-destructive acts!” In this instance, the prison officials concluded that Marriott violated the policy. However, even if Marriott had followed the policy guidelines he still had discretion to determine whether chemical agents were necessary to prevent harm to plaintiff and to the other officers who were trying to get him to come down.

Furthermore, the types of regulations which we. have found to create liberty interests are distinguishable from the type of policy directive at issue here. The regulations creating liberty interests have not involved situations where prison officials must make judgments in response to immediate security threats. Instead, they address situations where there is at- least time for a carefully considered decision, if not a formal hearing. For instance, in Mackey v. Dyke, 29 F.3d 1086 (6th Cir.1994), we found a liberty interest in a prisoner’s release from segregation after he was entitled to be reclassified, because a detailed hearing process was required for segregating him in non-emergency situations. Likewise, in Doe v. Sullivan County, 956 F.2d 545 (6th Cir.) cert. denied, — U.S. -, — , 113 S.Ct. 187, 121 L.Ed.2d 131 (1992), we found a liberty interest where a jail manual required prisoners to be classified upon their admission to prison and established factors such as safety which must be considered.³

The Supreme Court has recognized the need to limit restrictions federal courts place on prison officials’ judgments concerning security and discipline. “[Sjimply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations .... Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights ...” Bell v. Wolfish, 441 U.S. 520, 545—46, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (citations omitted). As a result,

[pjrison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel.... Prison administrators.... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.

Id. at 547, 99 S.Ct. at 1878. See also Hewitt, 459 U.S. at 474, 103 S.Ct. at 872 (“a prison’s internal security is peculiarly a matter normally left.to the discretion of prison administrators”) (citation omitted).

In situations such as the one at bar, prison officials must make rapid judgments concerning the preservation of order and security. “Although prison officials are not free under any circumstances to use physical force indiscriminately ... using chemical agents in a humane manner to control recalcitrant inmates who pose threats to institutional' security will rarely be a proper basis for judicial oversight.” Colon v. Schneider, 899 F.2d 660, 669 (7th Cir.1990). As the Supreme Court has stated,

[t]he creation of procedural guidelines to channel the decisionmaking of prison officials is, in the view of many experts in the field, a salutary development. It would be ironic to hold that when a State embarks on such desirable experimentation it thereby opens the door to scrutiny by the federal courts, while States that choose not to adopt such procedural provisions entirely avoid the strictures of the Due Process Clause. The adoption of such procedural guidelines, without more, suggests that it is these restrictions alone, and not those federal courts might also impose under the Fourteenth Amendment, that the State chose to require.

Hewitt, 459 U.S. at 471, 103 S.Ct. at 871. We therefore conclude plaintiff has not stated a state-created liberty interest claim and grant Marriott’s motion for summary judgment.

Plaintiffs Eighth Amendment claim remains pending before the District Court. The dissent raises an important issue on which the circuits are split. There are two competing interests here. .Granting qualified immunity on only one of the claims may reduce discovery but jt does not eliminate it. Additionally, defendant will nonetheless be exposed to trial, albeit a more limited one. Thus, an immediate appeal of less than all claims does not afford defendant complete relief. To the extent that it affords a defendant relief, the purpose recognized in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) of relieving public officials from the cost of litigation is advanced. However, since there is still discovery and trial of the remaining issues, the value of the final judgment rule is lost.

The Eleventh Circuit, which addressed the issue en banc with two judges dissenting, Green v. Brantley, 941 F.2d 1146 (11th Cir. 1991), concluded that a denial of summary judgment based on qualified immunity was immediately appealable even though the second claim of two civil rights damage claims would proceed to trial even if the qualified immunity appeal was successful. Id. at 1148-49. The Green court noted that “[a] defendant’s litigation burdens are lessened when a claim is dismissed” because discovery is limited to the issue for which there is no immunity and the trial may be shortened or more focused. Id. at 1149.

In Schrob v. Catterson, 967 F.2d 929 (3d Cir.1992), the Third Circuit, relying on the dissent in Green, did not allow an immediate appeal of the denial of a motion to substitute the United States.as a defendant (it would have replaced the individual defendants, thus relieving them of liability) where the defendants still would be required to go to trial on Bivens claims regardless of whether the substitution occurred. Id. at 939. The Schrob court stressed the importance of the final judgment rule and stated that the Eleventh Circuit had overstated the benefits of an immediate appeal, especially where the claims arose from a common nucleus of fact and the defendants would still be subject to money damages. Id. at 941.

On balance, we believe permitting defendant’s appeal best meets the objectives of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), which states that the qualified immunity doctrine was fashioned to “avoid ‘subjecting] government officials either to the costs of trial or to the burdens of broadreaching discovery.’ ” Id. at 526, 105 S.Ct. at 2815 (emphasis added) (citing Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)). We have permitted appeal of qualified immunity issues when other claims to which qualified immunity was not a defense remained pending in the district court. Thus, in Huron Valley Hospital, Inc. v. City of Pontiac, 792 F.2d 563 (6th Gir.), cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986), we heard an appeal on qualified immunity involving a civil rights claim even though a pending antitrust claim, which was not appealed, involved the same evidence. Likewise, in Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986), cert. denied, 479 U.S. 1103, 107 S.Ct. 1334, 94 L.Edüd 185 (1987), we held that plaintiffs request for injunctive relief against the defendants in their official capacity did not preclude the defendants’ interlocutory appeal of the denial of their claim of qualified immunity. See also Walton v. City of Southfield, 995 F.2d 1331 (6th Cir.1993). Accordingly, we adopt the reasoning of Green and conclude we have jurisdiction to hear this appeal.

III.

For the foregoing reasons, we REVERSE the District Court with respect to plaintiffs state-created liberty interest claim and REMAND for further proceedings consistent with this opinion.

1 ., The court granted the motion of co-defendant . Morton, another correctional officer, and that matter is not before us.

2 . The policy also requires that before force is used, the prisoner should be advised of the intent to use force. Plaintiff does not claim that he was not told force would be used to. get him down if he continued to refuse to do so.

3 . See also Howard v. Grinage, 6 F.3d 410 (6th Cir.1993) (regulation requiring hearing before placing prisoner in restricted security); Black, 4 F.3d at 448 (prisoner entitled to review of segregation status within reasonable time and chance to respond in writing); Beard v. Livpsay, 798 F.2d 874 (6th Cir. 1986) (regulation requiring hearing before reclassifying prisoner); Franklin v. Aycock, 795 F.2d 1253 (6th Cir. 1986) (procedures mandating hearing before disciplinary segregation imposed with proof of guilt required by a preponderance of the evidence).