Small v. Brock

• Decision Date: 26 June 2020
• Docket Number: No. 19-1841,19-1841
• Citation: 963 F.3d 539
• Parties: Fletcher Darnell SMALL, Plaintiff-Appellant, v. Officer BROCK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

963 F.3d 539

Fletcher Darnell SMALL, Plaintiff-Appellant,

v.Officer BROCK, Defendant-Appellee.

No. 19-1841

United States Court of Appeals, Sixth Circuit.

Decided and Filed: June 26, 2020

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Fletcher Darnell Small, a Michigan prisoner proceeding pro se, appeals the dismissal of his 42 U.S.C. § 1983 complaint.¹ In his complaint, Small alleges that, without provocation, Officer Brock brandished a knife, threatened to kill Small, and motioned in a manner suggesting how Brock would use the knife to kill Small. This occurred on several occasions, causing Small to seek "treatment and counseling" for "paranoia, mental distress, [and] psychological stress." DE 1, Compl., PageID 3.

On initial screening, the district court determined that Small had failed to state a claim and dismissed the complaint under 28 U.S.C. §§ 1915(e)(2), 1915A(b), and 42 U.S.C. § 1997e(c). Small then asked the district court to alter or amend its judgment based on Parrish v. Johnson , 800 F.2d 600 (6th Cir. 1986). The district court denied that motion.

We review de novo an order dismissing a complaint under § 1915(e)(2) for failure to state a claim. Hill v. Lappin , 630 F.3d 468, 470 (6th Cir. 2010). To avoid dismissal, a complaint must "contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see also Hill , 630 F.3d at 470–71 (holding that the "dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim under [ § 1915(e)(2)(B)(ii) ]"). To state a claim under § 1983, a complaint must allege that persons acting under color of state law caused the deprivation of a federal statutory or constitutional right. Barber v. Overton , 496 F.3d 449, 453 (6th Cir. 2007).

Small argues that he has plausibly alleged an Eighth Amendment violation. The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. Although we have long held that verbal abuse and nonphysical harassment of prisoners do not alone give rise to a constitutional claim, Ivey v. Wilson , 832 F.2d 950, 954–55 (6th Cir. 1987), we have never directly addressed whether the combination of multiple, unprovoked verbal threats to immediately end a prisoner's life and the aggressive brandishing of a deadly weapon violates the Eighth Amendment. But see Hudson v. Palmer , 468 U.S. 517, 530, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (observing that some types of "calculated harassment unrelated to prison needs" violate the Eighth Amendment); Pelfrey v. Chambers , 43 F.3d 1034, 1037 (6th Cir. 1995) (finding an Eighth Amendment violation based on conduct "designed to frighten and degrade [the prisoner] by reinforcing the fact that his continued well-being was entirely dependent on the good humor of his armed guards").

Based on the facts alleged in Small's complaint, Brock had no legitimate penological reason for repeatedly placing Small in fear of his life, and it is reasonable to infer that Brock knew that his conduct would cause Small psychological harm. See Whitley v. Albers , 475 U.S. 312, 320–21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) ; see also Farmer v. Brennan , 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The issue then is whether unprovoked and repeated threats to a prisoner's life, combined with a demonstrated means to immediately carry out such threats, constitute conduct so objectively serious as to be "antithetical to human dignity." Hope v. Pelzer , 536 U.S. 730, 745, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

We find that such threats meet this standard. At the very least, a prisoner has "the right to be free from the terror of instant and unexpected death at the whim" of his jailors. Burton v. Livingston , 791 F.2d 97, 100 (8th Cir. 1986) ; see also Pelfrey , 43 F.3d at 1037. To that end, Brock's alleged pattern of conduct far exceeds the idle threats and verbal harassment we have previously found inadequate to trigger Eighth Amendment protection. See, e.g. , Johnson v. Dellatifa , 357 F.3d 539, 546 (6th Cir. 2004). A threatened loss of life, when made credible by the aggressive brandishing of a deadly weapon, is beyond the type of "unpleasant experience" that prisoners must endure. Id. ; see Hudson v. McMillian , 503 U.S. 1, 16, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (Blackmun, J., concurring) (noting the Supreme Court's rejection of a significant physical injury requirement and using the example of death threats with a gun to illustrate an infliction of psychological suffering prohibited by the Eighth Amendment).

We thus hold that a prisoner states an Eighth Amendment claim by alleging that, without provocation, a prison official threatened the prisoner's life on multiple occasions and took concrete steps, such as aggressively brandishing a deadly weapon, to make those threats credible. See Irving v. Dormire , 519 F.3d 441, 448–50 (8th Cir. 2008) (finding that "objectively credible" death threats that cause a prisoner to fear for his life violate the Eighth Amendment); Chandler v. D.C. Dep't of Corr. , 145 F.3d 1355, 1360–61 (D.C. Cir. 1998) (same); Northington v. Jackson , 973 F.2d 1518, 1523–24 (10th Cir. 1992) (same); Grant v. Foye , 981 F.2d 1258, 1992 WL 371312 at *2 (9th Cir. 1992) (table) (same); Hudspeth v. Figgins , 584 F.2d 1345, 1348 (4th Cir. 1978) (per curiam) (same).

And, based on the facts alleged here, neither the force threatened by Brock (i.e., death by knife) nor the resulting injury to Small (i.e., fearing for his life to the point of paranoia and psychological distress necessitating mental health treatment) was de minimis . See Hudson , 503 U.S. at 8–11, 112 S.Ct. 995 (rejecting a "significant injury" requirement for Eighth Amendment claims); id. at 16, 112 S.Ct. 995 (Blackmun, J., concurring) ("It is not hard to imagine inflictions of psychological harm—without corresponding physical harm—that might prove to be cruel and unusual punishment."); Pelfrey , 43 F.3d at 1037 (disapproving of conduct by prison officials that caused no physical injury to the prisoner but was "designed to frighten and degrade [the prisoner] by reinforcing the fact that his continued well-being was entirely dependent on the good humor of his armed guards"); Northington , 973 F.2d at 1524 (finding that a prison official's threat to kill a prisoner with a loaded gun was not "per se de minimis" and caused a cognizable psychological injury); Irving , 519 F.3d at 448 (holding that prison officials had engaged in " ‘brutal’ and ‘wanton act[s] of cruelty’ even though no physical harm was suffered" (quoting Burton , 791 F.2d at 99–100 )).

The dissent would hold differently, but it can point to no conflict with Sixth Circuit or Supreme Court precedent, and its reliance on our decision in Parrish v. Johnson , 800 F.2d 600 (6th Cir. 1986), is misplaced. See Dissenting Op. at 545–46. Although the plaintiff in Parrish was subject to other forms of abuse not encountered by Small, the case is just one example of conduct that we have found egregious enough to violate the Eighth Amendment; it does not purport to establish a floor of conduct necessary to state an Eighth Amendment claim. And, despite engaging in distinct forms of abuse, the defendant in Parrish never expressly threatened the plaintiff's life.

Of course, our holding does not mean that Small's right was clearly established for the purpose of qualified immunity. But we need not resolve the issue of qualified immunity in this appeal. Although the dissent points to several out-of-circuit cases holding that a court may sua sponte dismiss a prisoner or indigent plaintiff's claim at any time if it believes that the claim is barred by qualified immunity, such a rule has yet to be adopted in this circuit.² See Dissenting Op. at 545 (citing Redmond v. Fulwood , 859 F.3d 11, 13 (D.C. Cir. 2017) ; Martin v. Duffy , 858 F.3d 239, 250–51 & n.3 (4th Cir. 2017) ; Story v. Foote , 782 F.3d 968, 969–70 (8th Cir. 2015) ; Chavez v. Robinson , 817 F.3d 1162, 1167–69 (9th Cir. 2016) ; Manzini v. Fla. Bar , 511 F. App'x 978, 983 (11th Cir. 2013) (per curiam); Newland v. Reehorst , 328 F. App'x 788, 791 (3d Cir. 2009) (per curiam); Lee v. Waters , No. 98-6160, 1999 WL 49149, at *2 (10th Cir. Feb. 4, 1999) ).

In any event, we think that the approach taken by the Ninth Circuit strikes the right balance between screening for meritless claims and fidelity to the rules of pleading. Cf. Crawford–El v. Britton , 523 U.S. 574, 595, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ("We [have] refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense ...."); Gomez v. Toledo , 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) ("Since qualified immunity is a defense, the burden of pleading it rests with the defendant."). Under that approach, a court "may [sua sponte ] dismiss a [prisoner's] claim on qualified immunity grounds ..., but only if it is clear from the complaint that the plaintiff can present no evidence that could overcome a defense of qualified immunity." Chavez , 817 F.3d at 1169. That is so because "[p]ro se complaints frequently lack sufficient information for a judge to make a qualified immunity determination without the benefit of a responsive pleading or discovery." Id. Such is the case here: Small has a non-frivolous argument that his asserted right was clearly established based on our sister circuits’ longstanding recognition of that right. See, e.g. , Brown v. Battle Creek Police Dep't , 844 F.3d 556, 566–67 (6th Cir. 2016) (finding a clearly established right based on unanimous out-of-circuit precedent). It is thus for the district court to determine in the first instance whether Brock is entitled to qualified immunity.

We must address one final...