Buckley v. Finney et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEMETRIUS BUCKLEY #449071,
Plaintiff, 	Hon. Hala Y. Jarbou
v. 	Case No. 1:25-cv-470
MDOC CORRECTONS OFFICERS
FINNEY, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiff, a prisoner currently incarcerated with the Michigan Department of Corrections
(MDOC) at the Cooper Street Correctional Facility, initiated this action under 42 U.S.C. § 1983
through counsel on April 26, 2025, against MDOC Corrections Officers (CO) Unknown Finney,
Sprague, Jones, Proctor, Lien, Fleck, and Dobias based on events that occurred at the Richard A.
Handlon Correctional Facility (MTU) in August of 2023. Plaintiff sues COs Finney, Sprague,
Jones, and Fleck for retaliation in violation of the First Amendment and COs Jones, Dobias, and
Lien for excessive force in violation of the Eighth Amendment. (ECF No. 1 at PageID.9–11.)
Presently before me is Defendants’ Motion to Dismiss (ECF No. 10), 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 IN PART AND DENIED IN PART.
I. 	Background
Plaintiff alleges that on August 23, 2023, while confined at MTU, he published an article
on Prisonreports.org that was critical of the MDOC and its COs at MTU. More specifically,
Plaintiff’s article criticized certain COs who were “power-drunk” and wrote false misconduct
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tickets for violations of prison rules, including low-level, petty violations. (Id. at PageID.2.) The
article mentioned CO Sprague in particular, noting that “power-drunk” Michigan Reformatory
COs had arrived at MTU and one of them, Sprague, was removed from the Calvin College unit
and placed in Plaintiff’s unit due to his “obsessive ticket-writing behavior.” (Id. at PageID.3.) The
article also described Sprague’s proclivity for writing “petty tickets,” sometimes in retaliation
against prisoners who spoke to a certain female officer with whom Sprague was rumored to have
a relationship. (Id.) The article also mentioned another CO, whom Sprague had sent to “shake []
down” Plaintiff’s cell. (Id.)
Plaintiff alleges, on information and belief, that COs who interacted with him were aware
of his article and had discussed it with each other. He further alleges that “[a]t one point,” CO
Jones told Plaintiff that he had read his article. Plaintiff alleges that two other unidentified non-
Defendant COs also told him they had read his article. (Id.)
On August 24, 2023—one day after his article was published—CO Sprague and non-
Defendant CO Wayland moved Plaintiff unexpectedly from his cell in the college (“C”) unit to a
different cell in “B” unit, which was not a college unit and was nicknamed “the hood.” When
Plaintiff asked why he was being moved, CO Wayland mentioned that he read an article Plaintiff
had written, and CO Sprague said, while smirking, “Don’t worry about it, I’ve got a spot for you.”
(Id.) The officers then placed Plaintiff in cell B-10 with prisoner Perry, who had various mental
health issues and a history of violently assaulting, and possibly murdering, his previous cellmates.
(Id. at PageID.3–4.) Plaintiff alleges that he was unaware of prisoner Perry’s reputation at the time
he was moved into cell B-10, although he asserts that officers at MTU frequently house prisoners
with violent cellmates as a means of punishing them for various violations or perceived
transgressions. (Id. at PageID.4.)
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Plaintiff alleges that after spending a few nights being hit by Perry while sleeping, he spoke
to various officers about his concern for his safety, but he was not moved. Plaintiff mentioned
these concerns to CO Finney and asked to be moved to a different cell, but Finney denied his
request and said that “he didn’t care” that Perry was hitting Plaintiff in his sleep. Finney also told
Plaintiff that he didn’t care whether or not Plaintiff and Perry killed each other. (Id. at PageID.4,
8.) Plaintiff also asked CO Sprague to be moved to a different cell but Sprague told Plaintiff that
he “wasn’t going to move him.” (Id. at PageID.4.) Plaintiff also told non-Defendant CO
Handsworth and CO Jones that he did not feel safe in his cell with Perry. (Id.)
On August 30, 2023, after about a week in the same cell with Perry, Perry attacked Plaintiff
in the middle of the night by striking him with a padlock wrapped around a belt, causing Plaintiff
visible physical injuries, including an open wound on his head. Plaintiff alleges that he reported
the incident to the COs on the next shift, including CO Jones, who blamed Plaintiff for the
altercation despite evidence to the contrary, including his head wound. Plaintiff alleges that CO
Jones did not take pictures of his injuries as required by MDOC policy because he claimed that his
camera was “broken.” (Id. at PageID.4–5.) Plaintiff also alleges that Jones taunted him in front of
two other officers who had arrived to determine what had occurred, asking Plaintiff if he and Perry
“went all the way” together. (Id. at PageID.5.) CO Jones, along with COs Dobias and Lien, who
had arrived at the cell, then handcuffed Plaintiff and placed him in a segregation shower to prepare
him for transfer to solitary confinement. (Id.)
Plaintiff alleges that five officers in full riot gear and gas masks, including COs Dobias,
Lien, and Jones, marched single file towards the shower where Plaintiff was standing. By that time
Plaintiff had managed to move his still-handcuffed hands to his front. (Id.) Despite the handcuffs,
the officers ordered Plaintiff to remove his clothing and threatened him with misconducts if he did
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not comply. Plaintiff told COs Dobias, Lien, and Jones that he could not remove his clothing due
to the handcuffs, but the officers again told him, “you need to strip your clothes off.” (Id.) Plaintiff
responded, “I don’t understand.” (Id. at PageID.5.) A few minutes later, after the officers told
Plaintiff that he had “one last chance,” the officers pepper-sprayed Plaintiff for several seconds,
causing him to crumple to the floor in agony. A short time later, the officers administered a second
burst of pepper spray at Plaintiff while continuing to order him to remove his clothing. Eventually,
over several minutes, Plaintiff succeeded in removing his clothing and passing it to the officers.
After being permitted to briefly rinse off in the shower, Plaintiff was taken to solitary confinement.
(Id.)
While in solitary confinement, Plaintiff received two misconduct tickets, one issued by CO
Dobias based on Plaintiff’s alleged attack of Perry, and one based on allegations by COs Dobias,
Lien, Jones, and Proctor regarding Plaintiff’s alleged refusal to follow orders to remove his clothes
in the segregation shower. (Id. at PageID.6–7.) In response to Defendants Sprague, Finney, and
Fleck’s refusals to move Plaintiff out of the cell with Perry, resulting in the assault by Perry, being
subjected to chemical spray in the shower, and CO Jones’s derogatory and inappropriate responses
to Perry’s attack, Plaintiff filed three grievances, all of which were denied at all steps of the
grievance process. (Id. at PageID.7–8.)
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.’”
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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:
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
Plaintiff alleges that Defendants Sprague, Finney, Fleck, and Jones retaliated against him
in violation of the First Amendment by moving him into, and refusing to move him from, a cell
with another prisoner with a history of violence towards his cellmates in response to Plaintiff’s
article published on Prisonreports.org that was critical of MTU officers, including CO Sprague.
(Id. at PageID.9–10.) Plaintiff further contends that Defendants Jones, Dobias, and Lien violated
the Eighth Amendment by using pepper spray on Plaintiff for failing to comply with a nearly
impossible task of removing his clothes while his hands were cuffed behind his back. 1 (Id. at
PageID.10–11.)
1 Plaintiff’s complaint contains contradictory allegations regarding whether Plaintiff’s hands were
in front or in back of him. In paragraph 30, Plaintiff alleges that “[h]e had managed to move his
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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’s failure to respond to
this argument constitutes a waiver of any response Plaintiff might have had to this issue. See AK
v. Behavioral Health Sys., Inc., 382 F. Supp. 3d 772, 774 (M.D. Tenn. 2019) (“[W]hen a party
fails to respond to an argument, that argument is generally deemed to be unopposed and the
proposition conceded”); Gomery v. Continental Cas. Co., No. 1:13-cv-947, 2014 WL 4209648, at
*4 (W.D. Mich. Aug. 25, 2014) (“Plaintiffs’ failure to respond to Defendant’s business-enterprise-
exclusion argument amounts to a waiver of their argument on the issue and a fatal omission in this
case.”) (citing, among others, Notredan, L.L.C. v. Old Republic Exch. Facilitator Co., 531 F.
App’x 567 (6th Cir. 2013) (recognizing that the plaintiff had waived a claim by failing to respond
to or refute arguments made by the defendants in the district court)). In any event, it is well
established that official capacity damage claims against state officials are barred by the Eleventh
Amendment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Matthews v. Jones,
35 F.3d 1046, 1049 (6th Cir. 1994). Thus, the official capacity claims must be dismissed.
B. 	Retaliation Claims
To establish his retaliation claim against each Defendant, Plaintiff must prove the following
elements: (1) he engaged in protected conduct; (2) the defendant took an adverse action against
hands, still handcuffed, to his front,” (ECF No. 1 at PageID.5), while in paragraphs 61 and 62
Plaintiff alleges that Defendants pepper-sprayed him for failing to comply “with a nearly
impossible task”—removing his clothes with his “hands . . . cuffed behind.” (Id. at PageID.10.)
Pursuant to the October 30, 2025 Order (ECF No. 31), I may consider the video only “to the extent
that it blatantly contradicts or utterly discredits the complaint.” (Id. at PageID.158.) Although not
material to Defendants’ arguments in support of their motion to dismiss, I note that the video
evidence, which clearly shows Plaintiff’s hands in front of him while he is in the segregation
shower, blatantly contradicts Plaintiff’s allegation that hands were cuffed behind him.
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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)).
1. 	Protected Conduct
Defendants do not dispute that Plaintiff has adequately alleged the first element of his
claim against each of them. That is, Plaintiff’s online article regarding COs’ misconduct-writing
activity at MTU constituted protected conduct under the First Amendment. See Crawford-El v.
Britton, 93 F.3d 813, 825 (D.C. Cir. 1996), vacated on other grounds by 523 U.S. 574 (1998)
(prisoner’s communications to the press critical of prison administration was protected activity
under the First Amendment).
2. 	Adverse Action
To meet his burden on this element, a prisoner-plaintiff must show adverse action by a
prison official sufficient to deter a person of ordinary firmness from exercising his constitutional
rights. Thaddeus-X, 175 F.3d at 396. The adverseness inquiry is an objective one and does not
depend on how a particular plaintiff reacted. The relevant question is whether the defendant’s
conduct is “capable of deterring a person of ordinary firmness;” the plaintiff need not show actual
deterrence. Bell v. Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (emphasis in original).
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Based on my review of the complaint, two adverse actions are at issue. First, both parties
recognize that Plaintiff’s transfer to Perry’s cell could amount to adverse action. While the Sixth
Circuit has observed that “[c]ell assignments are a normal part of prison life, and thus typically do
not amount to an adverse action,” LaFountain v. Harry, 716 F.3d 944, 949 (6th Cir. 2013),
“extraordinary circumstances” might transform a cell assignment into adverse action, such as
where the plaintiff’s cellmate is mentally ill or otherwise presents a danger to the plaintiff. Id.
Here, the complaint presents “extraordinary circumstances,” in that prisoner Perry allegedly had
an assaultive history towards his prior cellmates and might have even murdered one. (ECF No. 1
at PageID.4.) Defendants suggest that the transfer cannot be considered adverse action because the
complaint contains “no non-speculative allegation to support the conclusion that any defendant
knew Perry would assault Plaintiff.” (ECF No. 11 at PageID.50.) But knowledge that harm was
certain, or even likely, to occur is not required. As the Sixth Circuit observed in LaFountain,
“[a]lthough defendants are not responsible for adverse actions that they do not cause, they are
responsible for ‘those consequences that inextricably follow from [their] alleged retaliatory
conduct[.]’” Id. (quoting Siggers–El v. Barlow, 412 F.3d 693, 702 (6th Cir. 2005)). Thus, for
purposes of a retaliation claim, if a defendant houses a plaintiff with a cellmate known to be violent
or mentally ill, and harm results to the plaintiff, the defendant will be liable for those consequences
even if the defendant did not know for a certainty that harm would occur.
Because CO Sprague is the only Defendant who played a part in the transfer, Defendants
Jones, Finney, and Fleck cannot be held liable for retaliation based on the transfer. Id. Even so,
Plaintiff alleges that Defendants Finney, Fleck, and Jones retaliated by refusing to move Plaintiff
despite his complaints about Perry. Such inaction can also amount to adverse action. Id. (holding
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that the plaintiff’s allegation that the defendants’ refusal of his requests to be moved from a cell
with a mentally-ill cellmate demonstrated adverse action).2
To the extent Plaintiff alleges that Defendants retaliated against him by making false and
misleading statements that resulted in the denial of his grievances, I find that that activity does not
amount to adverse action because it would not deter a prisoner of ordinary firmness from
exercising his constitutional rights. See Stone v. Curtin, No. 1:11-cv-820, 2011 WL 3879505, at
*4 (W.D. Mich. Aug. 31, 2011) (the failure to process a prison grievance would not deter a prisoner
of ordinary firmness from exercising his right to file a grievance); Green v. Caruso, No. 1:10-cv-
958, 2011 WL 1113392, at *10 (W.D. Mich. Mar. 24, 2011) (the denial of a prisoner’s grievances
was not sufficiently adverse to support a retaliation claim); Burgos v. Canino, 641 F. Supp. 2d 443,
454 (E.D. Pa. 2009), aff’d, 358 F. App’x 302 (3d Cir. 2009) (the rejection or denial of prison
grievances does constitute an adverse action for purposes of a retaliation claim).
3. 	Causal Connection
Last, Plaintiff must allege sufficient facts showing that each Defendant took an adverse
action against Plaintiff because of his article published on Prisonreports.org.
a. 	Defendant Sprague
Defendants concede that Plaintiff has alleged sufficient facts—Sprague’s statement,
“Don’t worry about it, I’ve got a spot for you[,]” coupled with the non-Defendant officer’s mention
of reading Plaintiff’s article—to establish that Sprague was aware of Plaintiff’s protected conduct,
but they argue that the complaint lacks sufficient facts to show that Sprague was aware of Perry’s
2 Although Plaintiff mentions two misconduct reports in his complaint and suggests that they were
false, it appears that Plaintiff is not alleging that the reports constituted adverse action for purposes
of his retaliation claim. (ECF No. 1 at PageID.6–7; ECF No. 17 at PageID.79.) Indeed, CO Dobias,
who is not subject to the retaliation claim, wrote the misconduct report blaming Plaintiff for the
incident with Perry. (ECF No. 1 at PageID.6.)
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assaultive history at the time of the cell transfer. Defendants note that the complaint’s only
allegation on this front is the conclusory statement that “the COs were well aware” of Perry’s
mental illness and assaultive history. (ECF No. 11 at PageID.50.) Plaintiff responds that he alleges
that COs were aware of Perry’s violent history and contends that, if discovery shows Perry had
actually killed a fellow inmate, Defendants could not plausibly deny knowledge of Perry’s history.
Plaintiff also cites the unexpected nature of the transfer, the temporal proximity between his article
and the transfer, and Sprague’s statement about having a cell for Plaintiff as further supporting an
inference that Sprague knew about Perry’s history. (ECF No. 17 at PageID.77.)
As an initial matter, Plaintiff may not speculate about what discovery might show to defeat
Defendants’ motion to dismiss. The Sixth Circuit has squarely rejected the notion that discovery
can fill a factual void left by conclusory allegations. See Kolley v. Adult Prot. Servs., 725 F.3d 581,
587 (6th Cir. 2013) (“A plaintiff is not entitled to discovery before a motion to dismiss, and
dismissal under Rule 12(b)(6) helps protect defendants from expending resources on costly
discovery for cases that will not survive summary judgment.”) (citing Twombly, 550 U.S. at 558–
59). Moreover, the Supreme Court has directed district courts not to “unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678–79.
That being said, I find the issue close. On the one hand, Plaintiff’s factual allegations
concerning Sprague’s awareness of Perry’s history are rather sparse. Plaintiff’s essential premise
seems to be that all COs in a facility would be familiar with a prisoner who had previously
murdered another prisoner, but this is nothing more than speculation, particularly given the large
number of inmates housed at MDOC facilities at any given time. It is also worth noting that
Plaintiff’s article expressly criticized COs who had come to MTU after Michigan Reformatory
closed; thus, COs such as Sprague would not necessarily be familiar with the prisoner population
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at MTU. In addition, Plaintiff does not allege that COs such as Sprague have authority to determine
prisoner cell assignments or could have influenced or determined Plaintiff’s assignment with
Perry. On the other hand, given the close temporal proximity between Plaintiff’s article and the
cell transfer (one day), the unexpected nature of the transfer, and Sprague’s comment that he had
a cell for Plaintiff in response to the other officer’s mention of Plaintiff’s article, I find Plaintiff
has alleged enough factual matter to create a plausible inference that Sprague was aware of Perry’s
history. Therefore, I recommend that the motion be denied as to CO Sprague.
b. 	COs Finney and Fleck
In contrast to CO Sprague, Plaintiff’s allegations as to Defendants Finney and Fleck fail to
create a plausible inference that they were aware of Plaintiff’s protected conduct or Perry’s history.
Plaintiff’s sole allegation relating to these Defendants’ knowledge is that “[o]n information and
belief, COs who had interactions with [Plaintiff] were aware of the article and discussed the article
with each other.” (ECF No. 1 at PageID.3.) But Plaintiff’s naked “information and belief”
allegations are not sufficient to satisfy the Twombly/Iqbal standard with regard to Defendants
Finey and Fleck. “[C]omplaints grounding claims on ‘information and belief’ can survive a motion
to dismiss,” if they “‘set forth a factual basis for such belief[.]” Smith v. General Motors LLC, 988
F.3d 873, 885 (6th Cir. 2021) (quoting Sanderson v. HCA-The Healthcare Co., 447 F.3d 873, 878
(6th Cir. 2006)); see also Gold Crest, LLC v. Project Light, LLC, 525 F. Supp. 3d 826, 837 n.10
(N.D. Ohio 2021) (“Factual allegations based upon information and belief may be sufficient to
support a plausible claim for purposes of Rule 12(b)(6) analysis where the factual allegations in
the entire pleading allow the Court to draw the reasonable inference that defendant is liable for the
conduct alleged.”). The complaint lacks this level of support as to COs Finney and Fleck.
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Plaintiff contends that his allegations that five COs at MTU indicated their awareness of
Plaintiff’s article within two days of its publication creates a plausible inference that all COs at
MTU discussed Plaintiff’s article rather than finding it through their own independent efforts on
the Prisonreports.org website. (ECF No. 17 at PageID.76.) But contrary to Plaintiff’s argument,
the complaint does not allege that five COs were aware of the article within two days of its
publication on the internet. Rather, paragraph 12 alleges that Defendant Jones made a remark about
the article to Plaintiff “at some point” and that two other unidentified COs made a remark, but it
does not say when their remarks were made. (ECF No. 1 at PageID.3.) Moreover, even if five
COs—who may have worked on different shifts or in different parts of MTU than Finney and
Fleck—had mentioned Plaintiff’s article to him within two days of its publication, such an
allegation is still too speculative to show that Defendants Finney and Fleck were aware of
Plaintiff’s protected conduct, and Plaintiff offers no non-speculative basis to show that they were
aware of Perry’s assaultive history. Last, in connection with his response to Defendants’ argument
that COs Finney, Fleck, and Jones were not involved in transferring Plaintiff to Perry’s cell,
Plaintiff argues that their indifference to Perry’s assaults on Plaintiff and refusals to transfer him
out of Perry’s cell “certainly indicates complicity in the transfer, and a deliberate choice to keep
[Plaintiff] housed with Perry.” (ECF No. 17 at PageID.79.) As noted above, “defendants are not
responsible for adverse actions that they do not cause[.]” LaFountain, 716 F.3d at 949. There is
no fact suggesting that Finney, Fleck, or Jones were involved in any way in the transfer. As for
refusing Plaintiff’s request to transfer to a different cell, this alone does not demonstrate
Defendants’ knowledge that Plaintiff’s transfer into Perry’s cell was retaliatory or that continuing
to house him with Perry was part of a retaliatory scheme.
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c. 	CO Jones
As for CO Jones, Plaintiff alleges that “at one point” he remarked to Plaintiff that he had
read Plaintiff’s article. (ECF No. 1 at PageID.12.) Defendants contend that this non-specific
allegation is insufficient to support a plausible claim that Jones knew about the article at the time
of Plaintiff’s transfer or when Plaintiff told CO Jones that he was concerned about his safety after
being moved to Perry’s cell. I find this argument persuasive. First, as discussed above regarding
COs Finney and Fleck, Plaintiff alleges no fact suggesting that Jones was involved in the transfer.
And as to refusing to move Plaintiff, Plaintiff’s non-specific allegation about Jones’s remark is
insufficient to show that Jones was aware of Plaintiff’s protected activity when Plaintiff spoke to
him about Perry. In fact, the timing of Jones’s alleged remark to Plaintiff is a fact within Plaintiff’s
own knowledge, such that he would be able to allege it in his complaint to establish a causal
connection for Jones. Therefore, I recommend that CO Jones be dismissed from the retaliation
claim.
C. 	Excessive Force Claim
Defendants do not argue that Plaintiff does not sufficiently allege an excessive force claim
against some CO. Rather, they contend that the claim is subject to dismissal because Plaintiff does
not allege that COs Jones, Dobias, and Lien discharged the pepper spray at Plaintiff or ordered or
acquiesced in its deployment. (ECF. No. 11 at PageID.53–54.) Thus, Defendants contend that
Plaintiff fails to allege that they personally used excessive force against Plaintiff.
Plaintiff responds that he was unable to allege who used the pepper spray because all of
the COs (including the two not named as Defendants) were masked when the pepper spray was
deployed and he was unable to determine who deployed it. Plaintiff contends that this case is
similar to Batson v. Hoover, 788 F. App’x 1017 (6th Cir. 2019), in which the plaintiff was unable
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to determine which of two officers slammed him into doors and walls as they walked him to a
solitary confinement cell because he had been blinded by pepper spray. Id. at 1019. On appeal of
the district court’s denial of qualified immunity at the summary judgment stage, one of the
defendants argued that the plaintiff could not prove that he violated the plaintiff’s constitutional
rights because the plaintiff was unable to show that the defendant was involved in the alleged
excessive force. Id. at 1020. The court disagreed, noting that “summary judgment may not be
warranted when the plaintiff, because of circumstances beyond his control, is unable to identify
the officer.” Id. The court observed, “[i]n these circumstances, if the plaintiff is unable to
definitively identify which officer committed allegedly unconstitutional acts, a plaintiff may
nonetheless survive summary judgment when he introduces sufficient evidence to place the officer
at the scene.” Id. (citing Fazica v. Jordan, 926 F.3d 283, 290 (6th Cir. 2019).
Although Batson was a summary judgment case, the Sixth Circuit has applied the same
principle at the motion to dismiss/judgment on the pleadings stage. See Greer v. City of Highland
Park, 884 F.3d 310 (6th Cir. 2018). The plaintiffs in Greer alleged that a group of police officers
wearing swat gear and face masks violated their Fourth Amendment rights by either serving an
invalid search warrant or improperly executing a valid warrant. Id. at 314. In support of their Rule
12(c) motion raising qualified immunity, the officers argued that the plaintiffs failed to state a
plausible Fourth Amendment violation because they failed to specify in their complaint the actions
each officer took during execution of the warrant. The court rejected the argument, noting that
“courts are disinclined to dismiss complaints that fail to allege specific conduct by each officer
when the officers’ actions have made them impossible to identify.” Id. at 315–16 (citing Burley v.
Gagacki, 729 F.3d 610, 622 (6th Cir. 2013)).
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I find that the rule employed in Batson and Greer applicable here. Defendants’ attempt to
distinguish Batson is unconvincing. First, Defendants argue that Batson is a qualified immunity
case, but this argument does not explain why Batson could not apply in these circumstances.
Although Defendants have not raised qualified immunity in their motion to dismiss, the Sixth
Circuit has observed, “asking whether there was a violation of a constitutional right resembles the
Rule 12(b)(6) question—has the plaintiff pleaded facts that state a claim for relief in the
complaint?” Crawford v. Tilley, 15 F.4th 752, 764 (6th Cir. 2021). And in Greer, the court applied
the identification rule in addressing whether the plaintiffs had a plausible Fourth Amendment
violation, 884 F.3d at 315–16, similar to the inquiry here.
Next, Defendants argue that Batson is distinguishable because the plaintiff in that case
alleged alternative bases for liability, excessive force and failure to intervene, whereas here,
Plaintiff alleges only use of excessive force. But the court in Batson merely observed that because
the defendant admitted he was one of the officers who escorted the plaintiff, a jury could find that
the defendant was liable for the alleged constitutional violation either by using excessive force or
by failing to intervene. Nothing in Batson suggests that a plaintiff must allege a companion failure
to intervene claim for the rule pertaining to inability to identify officers at the scene of a
constitutional violation to apply, and it is important to bear in mind that Batson was a summary
judgment case. Here, Plaintiff alleges that all five COs in the segregation shower were wearing
masks. Thus, as Plaintiff argues, while he might have been able to see which CO sprayed the
pepper spray, he could not identify the specific individual due to the mask. See Greer, 884 F.3d at
313, 315–16 (plaintiffs’ inability to specify the actions each officer took due to face masks did not
warrant dismissal at the Rule 12(c) stage).
Thus, I recommend that the motion be denied as to the Eighth Amendment claim.
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D. 	Defendant Proctor
Defendants argue that Defendant Proctor should be dismissed from this action because the
complaint does not allege that he retaliated against Plaintiff or used excessive force on him. (ECF
No. 11 at PageID.56.) Indeed, Neither Count I nor Count II identify Proctor as having violated
Plaintiff’s constitutional rights. Although Count II mentions Proctor, it does not allege that he was
present in the shower or used pepper spray on Plaintiff. In response, Plaintiff points to his
allegation in paragraph 38 that Proctor stated in the misconduct report relating to the shower
incident that Plaintiff refused to follow orders and did not take his clothes off. Plaintiff argues that
because Proctor provided information as to what occurred in the shower, it is plausible that he was
a participant. (ECF No. 17 at PageID.82.) While this may be so, Count II does not allege that he
was present or sprayed pepper spray in the segregation shower. Accordingly, I recommend that
the motion be granted as to Defendant Proctor.
IV. 	Conclusion
For the foregoing reasons, I recommend that Defendants’ Motion to Dismiss (ECF No. 10)
be granted in part and denied in part as follows: (1) deny the motion as to the retaliation claim
against Defendant Sprague, but grant it as to the retaliation claim against Defendants Finney,
Fleck, and Jones; (2) deny the motion as to the Eighth Amendment claim against Defendants
Jones, Lien, and Dobias; and (3) grant the motion as to Defendant Proctor.
Dated: December 10, 2025 	/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
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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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