Robert C. Sherrill v. Dale Foltz Kim H. Wittman, Sgt.

869 F.2d 1492

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Robert C. SHERRILL, Plaintiff-Appellant,
v.
Dale FOLTZ, et al.; Defendants,
Kim H. WITTMAN, Sgt., Defendant-Appellee.

No. 88-1920.

United States Court of Appeals, Sixth Circuit.

Feb. 8, 1989.

Before ENGEL, Chief Judge, and MERRITT and DAVID A. NELSON, Circuit Judges.

ORDER

1

Plaintiff Sherrill moves for counsel on appeal from the district court's grant of summary judgment to defendant Wittman in this prisoner's civil rights case. 42 U.S.C. Sec. 1983. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

At the time of the events described in the complaint, Sherrill was a prisoner at the State Prison of Southern Michigan. Defendant Wittman was a prison officer. In his complaint, Sherrill alleged that Wittman punched him in the face, violating Sherrill's eighth and fourteenth amendment rights. Wittman filed a motion for summary judgment, accompanied by an affidavit stating that Sherrill threw a cup of urine on Wittman. Sherrill essentially admitted this fact in his complaint. The district court held that, assuming the punch occurred, Wittman's action was a reasonable response to Sherrill's assault.

3

We agree with the district court that Wittman's actions did not constitute the excessive use of force. See Wilson v. Beebe, 770 F.2d 578, 582 (6th Cir.1985) (en banc). We also agree with the conclusion of the district court that the existence of adequate state remedies bars the plaintiff's due process claim. See Wilson, 770 F.2d at 584-85 (citing Parratt v. Taylor, 451 U.S. 527, 540-41 (1981)).

4

The motion for counsel is denied. The judgment of the district court is affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.