Lee #530085 v. King et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN C. LEE #530085,
Plaintiff, 	Hon. Robert J. Jonker
v. 	Case No. 1:25-cv-373
DUSTIN KING, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Presently before me is Defendants’ Moton for Partial Dismissal for Failure to State a Claim
(ECF No. 22), which is fully briefed and ready for decision. Pursuant to 28 U.S.C. § 636(b)(1)(B),
I recommend that the motion be GRANTED and that Plaintiff’s claims against Defendants in their
official capacities and any First, Fourth, and Fourteenth Amendment claims be dismissed.
I. 	Background
Plaintiff alleges that on May 6, 2024, while in the Unit 5 small exercise yard at Bellamy
Creek Correctional Facility, he saw Defendant Correctional Officers (CO) becoming enraged and
verbally assault Prisoner Rice while threatening to “beat” and “break” Rice’s “wrist.” Rice
appeared afraid of the COs and ran away from them towards, and then past, Plaintiff while
screaming for help. (ECF No. 1 at PageID.4.) As the COs ran towards Plaintiff, he attempted to
“defuse [sic] the situation and prevent an unnecessary beating” by raising his hands “in a posture
of surrender,” stating. “Please stop, think and be professional about this.” (Id.)
The COs did not stop, but instead ran past him and “violently took Prisoner Rice to the
ground” even though he was not “resisting, nor assaultive.” (Id.) After observing the COs punching
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and kicking Rice, Plaintiff entered the fray by jumping onto the COs in order to prevent them from
killing Rice. (Id. at PageID.5.) At this point, the COs, including Defendant King, turned on
Plaintiff and placed him in a choke hold. Other officers, including Defendant Russell, sprayed
chemical spray into Plaintiff’s face, nose, and mouth, including a second time when he was not
resisting or violating any rules. Plaintiff also alleges that Defendant Ige “field-goal-kicked”
Plaintiff directly in his left temple, causing him excruciating pain in his brain, neck, head, and face,
and causing him to lose consciousness. (Id. at PageID.5–6.)
Plaintiff alleges that Defendants King, Russell, and Ige’s use of force was excessive
contrary to the Eighth Amendment. He further alleges that Defendants Csernyik and Miller
violated his Eighth Amendment rights by failing to intervene to prevent the misuse of force. (Id.
at PageID.7–9.)
II. 	Motion Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure
to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to
raise a right to relief above the speculative level on the assumption that all of the complaint’s
allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal citations
and footnote omitted). As the Supreme Court has held, to satisfy this rule, 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 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility
standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. If the complaint simply “pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (internal quotation marks omitted). As the Court further observed:
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Two working principles underlie our decision in Twombly. First, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Rule 8 marks a
notable and generous departure from the hyper-technical, code-pleading regime of
a prior era, but it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not “show[n]”—“that the pleader is entitled to relief.”
Id. at 678–79 (internal citations omitted).
III. 	Discussion
Defendants move for partial dismissal of Plaintiff’s complaint, including: (1) the official
capacity claims; and (2) any claims under the First, Fourth, and Fourteenth Amendments, as
Plaintiff’s excessive force claims arise solely under the Eighth Amendment. (ECF No. 23 at
PageID.88–92.) Plaintiff responds that the motion is improper because the Court screened the
complaint and concluded that it stated plausible claims for violation of Plaintiff’s constitutional
rights. (ECF No. 26 at PageID.102–03; see also ECF No. 16 at PageID.67.) The Standard Case
Management Order in a Prisoner Civil Rights Case (CMO) (ECF No. 20) entered on November
24, 2025 provides:
(a) Rule 12(b)(6) Motions. The Court has conducted an initial review of the
complaint pursuant to 28 U.S.C. §1915(e), §1915A and 42 U.S.C. § 1997e(c),
to determine whether it is frivolous, malicious, fails to state a claim upon which
relief can be granted or seeks monetary relief against a defendant that is
immune from such relief. Upon initial review, the Court concludes that the
complaint is not subject to dismissal for any of the reasons listed above. In
reaching this conclusion, the court has determined that the complaint contains
‘enough facts to state a claim to relief that is plausible on its face.’ Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Twombly, 550 U.S. at 570). Accordingly, the Court
discourages the filing of motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
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(Id. at PageID.76.) Plaintiff contends that this provision required Defendants to seek leave from
the Court before filing their motion. (ECF No. 26 at PageID.102–03.)
Defendants contend that notwithstanding the CMO’s language “discourage[ing]” the filing
of motions to dismiss, nothing therein precludes them from doing so. This is correct. As noted in
Anderson v. Huss, No. 2:21-cv-123, 2023 WL 10682683 (W.D. Mich. Oct. 26, 2023), report and
recommendation affirmed, 2024 WL 1152270 (W.D. Mich. Mar. 18, 2024), “[n]othing within the
CMO stated that the Federal Rules of Civil Procedure did not apply to this case or that a party
could not file a motion to dismiss.” Id. at *6. Thus, Defendants acted properly in filing their motion
to dismiss.
A. 	Official Capacity Claims
Defendants contend that Plaintiff’s official capacity claims for damages are subject to
dismissal because they are barred by the Eleventh Amendment. Plaintiff concedes this issue in his
response. (ECF No. 26 at PageID.103.) Therefore, the official capacity claims should be dismissed.
B. 	First, Fourth, and Fourteenth Amendment Claims
Plaintiff alleges at the beginning of his complaint that he brings this action “to remedy the
deprivation of rights secured by the United States Constitution’s First, Fourth Eighth, and
Fourteenth Amendment[s].” (ECF No. 1 at PageID.1.) Defendants contend that, to the extent
Plaintiff seeks to assert claims under anything other then the Eighth Amendment, such claims
should be dismissed because his only claims—excessive force and failure to intervene—arise
solely under the Eighth Amendment. Plaintiff fails to respond at all to these arguments.
It is well established that a plaintiff's failure to respond to an argument in a motion to
dismiss constitutes a forfeiture of the claims to which the argument is addressed. See Notredan,
L.L.C. v. Old Republic Exchange Facilitator Co., 531 F. App’x 567, 569 (6th Cir. 2013) (stating
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that failure to respond to an argument that a claim is subject to dismissal “amounts to a forfeiture
of 	[such] 	claim”). 	Thus, 	Plaintiff 	has 	forfeited 	any 	response 	to 	Defendants’ 	arguments.
Notwithstanding Plaintiff’s forfeiture, I also conclude that Plaintiff fails to state a claim under the
First, Fourth, or Fourteenth Amendments.
Nothing in the complaint suggests that Plaintiff alleges a First Amendment retaliation
claim. To do so, he must allege the following elements: (1) he engaged in protected conduct; (2)
the defendant took an adverse action against him “that would deter a person of ordinary firmness
from continuing to engage in that conduct;” and (3) the adverse action was taken (at least in part)
because of the protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en
banc). Plaintiff must allege facts establishing all of the elements of his retaliation claim as to each
Defendant. See Heyne v. Metropolitan Nashville Pub. Schs., 655 F.3d 556, 564 (6th Cir. 2011)
(“This Court has consistently held that damage claims against government officials arising from
alleged violations of constitutional rights must allege, with particularity, facts that demonstrate
what each defendant did to violate the asserted constitutional right.” (internal quotation marks
omitted)). Here, the only conduct that can be deemed protected conduct is Plaintiff’s plea to the
COs to “stop, think, and be professional about [using force on Prisoner Rice].” (ECF No. 1 at
PageID.5.) But the complaint does not allege that Plaintiff’s speech had anything to do with
Defendants’ use of force (the only potential adverse action) on Plaintiff. As Plaintiff admits in his
complaint, Defendants employed force only after Plaintiff jumped on them, which does not amount
to protected conduct. See Odom v. Smith, No. 1:08-cv-1181, 2009 WL 125286, at *4 (W.D. Mich.
Jan. 16, 2009) (“Assaulting a prison officer clearly is not protected conduct.”). Thus, any
retaliation claim fails.
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Next, the Fourth Amendment does not apply to Plaintiff’s excessive force claim. Rather,
as Plaintiff concedes in his complaint, his excessive force claim as a convicted prisoner is governed
by the Eighth Amendment. See Leary v. Livingston Cnty., 528 F.3d 438, 443 (6th Cir. 2008)
(observing 	that 	“convicted 	prisoners 	may 	bring 	excessive-force 	claims 	under 	the 	Eighth
Amendment” while “free citizens may bring such claims under the Fourth Amendment” (internal
quotation marks and brackets omitted)); see also Coley v. Lucas Cnty., 799 F.3d 530, 537-38 (6th
Cir. 2015) (stating that in excessive force cases, the Fourth Amendment applies to force used
during an arrest or seizure of a free citizen, while the Eighth Amendment applies to such claims
by “convicted prisoners”).
Last, nothing in the complaint suggests that Plaintiff intended to plead a separate claim
under the Fourteenth Amendment. Indeed, the complaint lacks any basis for any claim arising
under that amendment.
IV. 	Conclusion
For the foregoing reasons, I recommend that Defendants’ Motion to Dismiss (ECF No. 22)
be granted and that Plaintiff’s official capacity and any First, Fourth, and Fourteenth Amendment
claims be dismissed for failure to state a claim.
Dated: February 4, 2026 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court
within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to file
objections within the specified time waives the right to appeal the District Court’s order. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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