Joseph Johnson v. Clair Sootsman

                              RECOMMENDED FOR PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 23a0181p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 JOSEPH JOHNSON,                                           ┐
                                 Plaintiff-Appellant,      │
                                                           │
                                                            >        No. 22-1937
        v.                                                 │
                                                           │
                                                           │
 CLAIR SOOTSMAN,                                           │
                                Defendant-Appellee.        │
                                                           ┘

                         Appeal from the United States District Court
                    for the Western District of Michigan at Grand Rapids.
                   No. 1:20-cv-01102—Jane M. Beckering, District Judge.
                                   Argued: July 26, 2023

                            Decided and Filed: August 16, 2023

               Before: McKEAGUE, GRIFFIN, and MURPHY, Circuit Judges.
                               _________________

                                          COUNSEL

ARGUED: Adam G. Winn, FIEGER, FIEGER, KENNEY & HARRINGTON, P.C., Southfield,
Michigan, for Appellant. Richard V. Stokan, Jr., KERR, RUSSELL AND WEBER, PLC,
Detroit, Michigan, for Appellee. ON BRIEF: Adam G. Winn, Robert G. Kamenec, FIEGER,
FIEGER, KENNEY & HARRINGTON, P.C., Southfield, Michigan, for Appellant. Richard V.
Stokan, Jr., Joanne Geha Swanson, KERR, RUSSELL AND WEBER, PLC, Detroit, Michigan,
for Appellee.
                                    _________________

                                           OPINION
                                    _________________

       MURPHY, Circuit Judge. This case shows that just because a correctional officer may
have violated a prison use-of-force policy or committed a state-law tort does not necessarily
mean that the officer violated the Eighth Amendment’s ban on “cruel and unusual punishments.”
 No. 22-1937                         Johnson v. Sootsman                                      Page 2


While serving a short sentence, Joseph Johnson caused a disturbance in a jail’s intake area.
Officers chose to take Johnson to his cell, but he then disobeyed orders to slow down.
So another officer, Deputy Clair Sootsman, stopped him.           After a brief exchange, Johnson
stepped in Sootsman’s general direction. Sootsman testified that he viewed this conduct as a
threat. In response, he immediately grabbed Johnson’s neck, pushed him against the wall, and
took him to the ground to be handcuffed. This force lasted about seven seconds. Investigators
found that Sootsman’s actions violated jail policies, and Sootsman pleaded guilty to a
misdemeanor battery.

       Johnson later sued Sootsman, alleging that his conduct violated the Eighth Amendment.
But this constitutional claim requires Johnson to meet a demanding standard. He must prove that
Sootsman used force “maliciously and sadistically for the very purpose of” inflicting pain.
Hudson v. McMillian, 

503 U.S. 1, 6

 (1992) (citation omitted). Johnson’s claim will fail, by
contrast, if Sootsman used force out of a belief—even an unreasonable belief—that the force was
necessary to control Johnson. See 

id.

 We affirm the district court’s summary-judgment ruling
for Sootsman because Johnson lacks enough evidence to meet this demanding Eighth
Amendment test.       That said, the States may impose stricter limits on officers than the
Constitution demands. So our holding does not foreclose all relief for Johnson. It just means
that he must try to seek that relief using his state tort claim that the district court dismissed
without prejudice.

                                                   I

       In 2019, Johnson pleaded guilty to a domestic-violence offense in Michigan, spent
several days in jail, and began to serve a term of probation. On February 13, 2020, a state court
found that Johnson had violated the conditions of his probation and sentenced him to a few
weeks at the county jail in Kalamazoo, Michigan.

       Right after this court hearing, Johnson was taken to the jail to begin his sentence. When
detainees first enter the jail, they get processed in its intake area. The intake area contains cells
that hold detainees for a short time until jail staff either transfer them to the general population or
release them. Staff initially housed Johnson in this area.
 No. 22-1937                      Johnson v. Sootsman                                   Page 3


       The next morning, Deputies Sootsman and Chantel Einhardt worked the first shift in the
intake area. Johnson remained there. About an hour after Einhardt arrived, she heard Johnson
“yelling and banging” on his cell door. Einhardt Dep., R.45-6, PageID 232–33. Johnson was
upset because he “wanted to be moved to general population.” 

Id.,

 PageID 232. Einhardt told
him that he would likely get moved soon and that she would have to restrain him if he continued
to hit the door. He stopped.

       As Einhardt anticipated, jail staff planned to transfer Johnson to his general-population
cell that afternoon. Shortly before 3:30 p.m., they left an unhandcuffed Johnson in the intake
area’s unsecured open space as they arranged for his transfer. While waiting, Johnson wrapped a
towel around his head in violation of jail policy. Deputy Alan Miller, who was assisting in the
area, asked him to remove it. Johnson refused and began to argue with Miller. Johnson also
threw his sack lunch.

       Deputy Sootsman was in the intake area at this time.          Based on Johnson’s prior
incarcerations, Sootsman knew that he had argued with deputies and disobeyed their orders in
the past. Sootsman also saw Johnson’s confrontation with Deputy Miller and watched him throw
his lunch. But Sootsman opted not to intervene because he was rounding up two other detainees
to take to their general-population cells. Sootsman walked out of the intake area with these
unrestrained inmates while Johnson continued to argue with Miller.

       Meanwhile, Deputy Einhardt returned to the intake area after helping transfer other
detainees who had court appearances. She learned from a booking clerk that Johnson had thrown
his lunch and believed that his argument with Miller “was escalating very quickly.” 

Id.,

 PageID
234. (Miller claimed that he was not arguing with Johnson but agrees that Johnson was “being
loud[.]” Miller Dep., R.45-7, PageID 267.) To reduce tensions, Einhardt decided to move
Johnson to general population herself. Given Johnson’s animated state, she asked Deputy Talia
Harris to accompany her. Johnson grabbed his things and began to walk with them. After this
group left the intake area, however, Johnson started to speed walk ahead of the two deputies.
Einhardt twice ordered Johnson to slow down so that she could keep control of him, but he
appeared to ignore her.
 No. 22-1937                        Johnson v. Sootsman                                   Page 4


        To get to the jail’s general population from its intake area, they had to walk down a long
hallway. Three security cameras record video (but not audio) of this hallway. The video
demonstrates that Deputy Sootsman and his two detainees entered this hallway first on their way
to the general-population area. Sootsman recalled hearing Johnson. The video also confirms his
memory: It captures him and his two detainees stopping and looking at a commotion behind
them as they entered the hallway. Given their pause and Johnson’s fast pace, he quickly caught
up with them and passed them on the right. The video next shows Sootsman pointing toward the
right wall as Johnson passed. Sootsman said that he ordered Johnson to stop.

        Johnson took many more steps before eventually stopping with his back against the wall.
Sootsman, who took a position closer to general population in front of Johnson, spoke to him for
about twelve seconds. According to Johnson (whose account we must accept), Sootsman angrily
told him that he was “being a pussy” and that he should look Sootsman “in the eyes.” Johnson
Dep., R.45-3, PageID 187. Johnson allegedly said “I am,” but nothing else. 

Id.

 The video then
shows Johnson take a slow step in the direction of Sootsman and the general-population area.

        Sootsman testified that he perceived Johnson’s step “as a threat[.]” Sootsman Dep.,
R.45-5, PageID 217. On the video, Sootsman can be seen forcefully pushing Johnson back
against the wall with his right arm and restraining him there for about two seconds. According to
Johnson, Sootsman grabbed his neck and “choked” him. Johnson Dep., R.45-3, PageID 178.
Johnson also claimed that he hit the “back of [his] head on the wall” when Sootsman pushed
him. 

Id.

 Deputies Harris and Einhardt agreed that Sootsman “grabbed [Johnson’s] neck” when
pushing him. Harris Dep., R.45-4, PageID 201; Einhardt Dep., R.45-6, PageID 237. Deputy
Miller had also followed the others and caught up with them. He suggested that Sootsman
“squeezed [Johnson’s] throat” in order to gain control of him. Miller Dep., R.45-7, PageID 272.
According to Sootsman, by contrast, he used an “open” hand to push Johnson at the base of his
neck. Sootsman Dep., R.45-5, PageID 217. The video does not show which of these conflicting
stories is true.

        But it does show that Sootsman immediately turned Johnson around and took him to the
ground by putting him in a chokehold and pulling him down. Einhardt assisted in this takedown
by grabbing Johnson’s arms. The entire use of force from the time that Sootsman pushed
 No. 22-1937                         Johnson v. Sootsman                                  Page 5


Johnson to the time that Sootsman got him on the ground lasted about seven seconds. Once
Johnson was on the ground, the officers brought him to a sitting position. Einhardt handcuffed
him. The officers then pulled a handcuffed Johnson up and continued to walk him to the
general-population area.

       Sootsman’s use of force caught the other deputies off guard. Einhardt described his
actions as “out of the blue[.]”      Einhardt Dep., R.45-6, PageID 236.      Harris testified that
Sootsman’s actions surprised her because she did not think that Johnson did anything to justify
them. Harris Dep., R.45-4, PageID 201, 203. Miller likewise did not believe that Johnson’s
conduct “warranted” Sootsman’s use of force. Miller Dep., R.45-8, PageID 280.

       Johnson filed a grievance against Sootsman. A jail investigator found that Sootsman’s
use of force did not follow the use-of-force policy of the sheriff’s department. The investigator
also found that probable cause existed to believe that Sootsman had assaulted Johnson “by
grabbing him by the neck and squeezing his throat.” Rep., R.51-3, PageID 606. The investigator
placed Sootsman on leave, and prosecutors charged him with a battery. Sootsman chose to
retire. He later decided to plead guilty to a battery misdemeanor and pay $546 in fines and court
costs rather than face the greater expense of trial.

       As for the harm that this encounter caused Johnson, the investigator found that Johnson
voiced a complaint of “discomfort in his throat” but had “no visible injuries[.]” Rep., R.51-3,
PageID 606. Johnson claimed that he requested to see medical staff but that the jail staff ignored
him. He did not visit any medical personnel while in the jail. He also did not seek medical
attention until a year after this incident and several months after he brought this suit. Johnson
testified that the incident has caused him to have bad headaches and neck pain for which he has
received physical therapy. Johnson Dep., R.45-3, PageID 175–77. He added that his medical
providers have instructed him to wear a brace on his right wrist and to attend physical and
occupational therapy for pain in his wrist and neck. 

Id.,

 PageID 174–75, 183.

       Johnson sued Sootsman, Einhardt, and Harris under 

42 U.S.C. § 1983

 and state tort law.
He alleged that Sootsman’s and Einhardt’s uses of force violated the Eighth Amendment. He
also alleged that Harris violated the Eighth and Fourteenth Amendments by failing to intervene
 No. 22-1937                   Johnson v. Sootsman                              Page 6


to stop this force. And he alleged that Sootsman and Einhardt committed a battery under
Michigan law.
 No. 22-1937                         Johnson v. Sootsman                                   Page 7


         After discovery, a magistrate judge recommended that the district court reject the federal
constitutional claims and decline supplemental jurisdiction over the state tort claims.        See
Johnson v. Sootsman, 

2022 WL 9806957

, at *8 (W.D. Mich. July 1, 2022). The judge reasoned
that Sootsman had not violated the Eighth Amendment because he used only de minimis force
and had a plausible reason to do so. 

Id.

 at *5–6. The judge next held that Einhardt had acted
properly in getting Johnson under control to handcuff him. 

Id. at *7

. At the least, the judge
suggested, the law did not clearly establish that Sootsman’s and Einhardt’s uses of force
exceeded constitutional bounds. 

Id.

 at *6–7. The judge lastly found that Harris lacked sufficient
time to intervene to stop their force. 

Id.

 at *7–8. The district court adopted these conclusions,
granting summary judgment to the deputies on the federal claims and dismissing the state claims
without prejudice. See Johnson v. Sootsman, 

2022 WL 4298230

, at *1–3 (W.D. Mich. Sept. 19,
2022).

         Johnson appealed. He raised arguments only about Sootsman’s conduct, so the parties
agreed to dismiss Einhardt and Harris from the appeal. We review the district court’s grant of
summary judgment to Sootsman de novo, resolving all evidentiary conflicts in Johnson’s favor at
this stage. See Griffin v. Hardrick, 

604 F.3d 949

, 952–53 (6th Cir. 2010).

                                                 II

         Sootsman has raised a qualified-immunity defense to Johnson’s Eighth Amendment
claim.       That defense required Johnson to show both that Sootsman violated the Eighth
Amendment and that Johnson’s Eighth Amendment rights were so “clearly established” that any
reasonable officer would have recognized that Sootsman’s actions infringed them. See Pearson
v. Callahan, 

555 U.S. 223, 232

 (2009). The Supreme Court has held that we may resolve these
two qualified-immunity “prongs” in any order—either by holding that a constitutional claim fails
on its merits or by holding that a defendant’s conduct did not violate clearly established law. See

id. at 236

. We find it appropriate to reject Johnson’s Eighth Amendment claim on the merits in
this case.
 No. 22-1937                         Johnson v. Sootsman                                    Page 8


                                                 A

       The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The
Supreme Court has long held that the Fourteenth Amendment incorporates the Eighth
Amendment’s ban on “cruel and unusual punishments” against the States. See Robinson v.
California, 

370 U.S. 660

, 666–67 (1962); Louisiana ex rel. Francis v. Resweber, 

329 U.S. 459, 463

 (1947) (plurality opinion). The Court has also long held that this ban does not just cover the
formal “punishment” that a state court metes out to criminal defendants. The ban also applies to
informal harms that prison officials inflict on convicted prisoners during their terms of
incarceration.   The Eighth Amendment thus regulates the force that prison guards use on
prisoners, see Whitley v. Albers, 

475 U.S. 312, 320

 (1986), the medical care that prison doctors
provide prisoners, see Estelle v. Gamble, 

429 U.S. 97

, 102–05 (1976), and the physical facilities
in which prison administrators house them, see Rhodes v. Chapman, 

452 U.S. 337

, 345–47
(1981). In each setting, the ban on cruel and unusual punishments prohibits the “unnecessary
and wanton infliction of pain” on prisoners. Hudson, 

503 U.S. at 5

 (quoting Whitley, 

475 U.S. at 319

); see also Rhodes, 

452 U.S. at 346

.

       What qualifies as the “unnecessary and wanton infliction of pain”? This requirement has
objective and subjective components, both of which follow from the Eighth Amendment’s text.
See Phillips v. Tangilag, 

14 F.4th 524, 535

 (6th Cir. 2021); Williams v. Curtin, 

631 F.3d 380, 383

 (6th Cir. 2011). Objectively, harm to a prisoner must rise to a sufficiently serious level
because the Eighth Amendment prohibits only “cruel and unusual” deprivations, not just
uncomfortable or “even harsh” ones. Rhodes, 

452 U.S. at 347

; see Phillips, 

14 F.4th at 534

.
Subjectively, harm to a prisoner must result from a prison official’s sufficiently volitional actions
because the Eighth Amendment bars only willful conduct that “inflict[s]” “punishment,” not
accidental conduct that causes injury. See Phillips, 

14 F.4th at 535

 (citing Wilson v. Seiter, 

501 U.S. 294, 300

 (1991)).
 No. 22-1937                        Johnson v. Sootsman                                    Page 9


       Yet the nature of these objective and subjective tests “varies” depending on the type of
action (or inaction) that injures a prisoner. Hudson, 503 U.S. at 5–6, 8–9. Johnson challenges a
correctional officer’s use of force. In this use-of-force context, the Supreme Court has applied a
more demanding subjective test but a more relaxed objective test. See 

id.

       As a subjective matter, the Court has held that prisoners who challenge a correctional
officer’s use of force must prove more than that the officer acted with “deliberate indifference”
to whether the force was necessary (the type of intent that prisoners must prove to challenge their
conditions of confinement or medical care). See 

id.

 at 5–6; cf. Wilson, 501 U.S. at 302–03. The
Court has instead described the “core judicial inquiry” in this use-of-force context as
distinguishing between force used in a “good-faith effort to maintain or restore discipline” and
force used “maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 

559 U.S. 34, 37

(2010) (per curiam) (quoting Hudson, 

503 U.S. at 7

). Only the latter kind of force—force
exerted maliciously and sadistically to inflict pain—violates the Eighth Amendment.            See
Hudson, 503 U.S. at 5–7. So even if an officer uses force because of an “unreasonable” belief
that it is necessary to restrain a prisoner, the officer does not violate the Eighth Amendment.
Whitley, 

475 U.S. at 324

.

       As an objective matter, the Court has held that prisoners who challenge a correctional
officer’s use of force need not prove “extreme” or “serious” harms (the types of harms that
prisoners must allege to challenge their conditions of confinement or medical care). See Hudson,

503 U.S. at 9

. The Court reasoned that the Eighth Amendment’s “contextual” objective element
relies on our “contemporary standards of decency” to decide whether specific conduct qualifies
as cruel and unusual. 

Id.

 at 8 (quoting Estelle, 

429 U.S. at 103

). And the malicious and sadistic
infliction of pain violates these contemporary standards whether or not the pain leads to any
significant injury. Id. at 9. After all, “diabolic” torture sometimes may not cause such an injury.
Id.   At the same time, the Court has added a limiting principle to this conclusion by
differentiating an injury from the force that causes it. See Wilkins, 

559 U.S. at 38

. Although the
Eighth Amendment can reach minor injuries caused by significant force, the Court explained, the
amendment simply does not apply to “de minimis uses of physical force” so long as this force
does not repulse “the conscience of mankind.” Hudson, 503 U.S. at 9–10 (citation omitted).
 No. 22-1937                       Johnson v. Sootsman                                  Page 10


                                                B

       Johnson’s Eighth Amendment claim flunks these standards. The magistrate judge’s
opinion—which the district court adopted in a short order—rejected that claim under the
“objective” element by holding that Sootsman used only de minimis force. Johnson, 

2022 WL 9806957

, at *5. But we think it easiest to resolve Johnson’s claim under the subjective element
by holding that Sootsman did not maliciously and sadistically inflict harm.

       Objective Element. Before we get to Sootsman’s subjective intent, though, we start with
the magistrate judge’s reliance on the objective element. It is debatable whether Sootsman’s
force rose to a level that could be called “cruel and unusual” even under the relaxed standards
that the Supreme Court follows in this use-of-force context. See Hudson, 503 U.S. at 9–10. This
element did not require Sootsman to have inflicted a “significant injury” on Johnson, but it did
require Sootsman to have used more than “de minimis” force against him. 

Id.

       What divides actionable force from de minimis force? A few examples from both sides
of this line help illuminate the murky border between the two. The Supreme Court has found
actionable force when officers repeatedly punched and kicked a prisoner, causing him to suffer
minor bruises and swelling, loosened teeth, and a cracked dental plate. See 

id. at 4, 10

; see also
Wilkins, 

559 U.S. at 35, 38

. We have likewise found actionable force when an officer rammed a
handcuffed inmate headfirst into a concrete wall, putting a large gash in his forehead and
requiring an immediate hospital visit. See Cordell v. McKinney, 

759 F.3d 573

, 577–79, 585–86
(6th Cir. 2014); see also, e.g., United States v. Budd, 

496 F.3d 517

, 531–32 (6th Cir. 2007);
Carlton v. Turner, 

2006 WL 955886

, at *1 (6th Cir. Apr. 12, 2006). We have also found
actionable force when an officer slammed a steel door on a prisoner, Hardy v. Vieta, 

174 F. App’x 923, 926

 (6th Cir. 2006), or sprayed an inmate with a chemical agent, see Roberson v.
Torres, 

770 F.3d 398, 400

 (6th Cir. 2014); Williams, 

631 F.3d at 384

. And we have found that
actions violated the Eighth Amendment even when officers did not use any force. So we held
that a prisoner could pursue an Eighth Amendment claim when she alleged that an officer
sexually abused her without making physical contact. See Rafferty v. Trumbull County, 

915 F.3d 1087

, 1095–96 (6th Cir. 2019). And we held that a prisoner could pursue such a claim when he
 No. 22-1937                         Johnson v. Sootsman                                Page 11


alleged that an officer repeatedly threatened to kill him, once while brandishing a knife. See
Small v. Brock, 

963 F.3d 539, 541

 (6th Cir. 2020).

       Conversely, the Supreme Court has suggested that a malevolent “‘push or shove’ that
causes no discernible injury” will fall short of the force required to violate the Eighth
Amendment. Wilkins, 

559 U.S. at 38

 (citation omitted). Similarly, we have held that an officer
used de minimis force when he landed a “karate chop” on the “back” of a prisoner’s “neck” but
did not harm the prisoner. Leary v. Livingston County, 

528 F.3d 438, 443

 (6th Cir. 2008). We
have also held that an officer used de minimis force when he “grabbed [a prisoner’s] neck and
threatened him” without causing a “physical injury[.]” Scott v. Churchill, 

2000 WL 519148

, at
*3 (6th Cir. Apr. 6, 2000) (order). And we have held that officers used de minimis force when
they harmed a prisoner’s wrists by handcuffing him too tightly, see Jones v. Johnson, 

2021 WL 1578185

, at *2 (6th Cir. Apr. 21, 2021) (order), and when they strip searched a prisoner, see
Evans v. Vinson, 

427 F. App’x 437, 443

 (6th Cir. 2011). See also, e.g., Johnson v. Unknown
Coolman, 

102 F. App’x 460, 461

 (6th Cir. 2004) (order); Jackson v. Pitcher, 

1992 WL 133041, at *1

 (6th Cir. June 16, 1992) (order).

       The amount of force that Sootsman used likely falls somewhere in between these two
precedential poles. On the one hand, Sootsman did not repeatedly kick or punch Johnson (like
the officers in Hudson) or ram Johnson headfirst into a wall with such momentum as to require
an urgent trip to the hospital (like the officer in Cordell). Sootsman instead pushed Johnson back
against a wall by the neck (allegedly choking him in the process) for about two seconds and then
pulled Johnson to the ground in another five seconds. At first blush, this force resembles the
“karate chop” that we held did not suffice in Leary, 

528 F.3d at 443

, or the “grabb[ing] [of the
prisoner’s] neck” that we held did not suffice in Scott, 

2000 WL 519148

, at *3. And the average
person who watched the video of this encounter would not likely describe Sootsman’s brief
actions as “repugnant to the conscience of mankind.” Hudson, 

503 U.S. at 10

 (citation omitted).

       On the other hand, Leary and Scott both included a disclaimer: they held that the conduct
in these cases did not rise above de minimis force in part because it did not cause “any
objectively verifiable injury” to the prisoner. Leary, 

528 F.3d at 443

; see Scott, 

2000 WL 519148

, at *3.     The magistrate judge here similarly suggested that Johnson lacked any
 No. 22-1937                        Johnson v. Sootsman                                 Page 12


“admissible evidence” that Sootsman’s actions caused a “discernible injury[.]” Johnson, 

2022 WL 9806957

, at *6. The judge described Johnson’s testimony that he had sought medical care
right after the encounter as “self-serving.” 

Id.

 She next noted that Johnson’s medical treatment
for his neck and wrist pain occurred in March 2021—over a year after the February 2020
encounter and several months after he sued. 

Id.

 The judge found this treatment too far removed
to allow a jury to find it connected to Sootsman’s actions. 

Id.

 In addition, Johnson admitted that
his wrist pain could have arisen from an earlier incarceration when he was put in an “emergency
restraint chair,” which caused his wrists to swell and bleed. Id.; Johnson Dep., R.45-3, PageID
180, 183. And Johnson noted that any wrist injury would have arisen when Deputy Einhardt—
not Sootsman—grabbed his arm and put it behind his back to handcuff him. See Johnson Dep.,
R.45-3, PageID 176.

       If Johnson lacked proof that Sootsman caused any “verifiable injury,” this case may well
be analogous to Leary. 

528 F.3d at 443

. But the magistrate judge failed to take the facts in the
light most favorable to Johnson. See Griffin, 

604 F.3d at 953

. Most notably, the judge wrongly
relied on the “self-serving” nature of Johnson’s testimony to reject his claim that he sought
immediate medical care. This “self-serving” label does not provide a valid basis to ignore
evidence. See Boykin v. Family Dollar Stores of Mich., LLC, 

3 F.4th 832

, 841–42 (6th Cir.
2021). Perhaps the judge meant that Johnson’s testimony was too conclusory to create a genuine
issue of material fact on this point, see 

id. at 842

, but even Sootsman conceded that Johnson’s
grievance form requested medical aid, Sootsman Dep., R.45-5, PageID 220. Unlike his wrist
pain, moreover, Johnson also testified that he had never had neck pain before this encounter.
Johnson Dep., R.45-3, PageID 176. So the record may well have permitted a reasonable jury to
find that Sootsman’s use of force caused Johnson to suffer minor neck pain for which he later
sought physical therapy. And that fact might distinguish cases like Leary or Scott that found
force de minimis because it indisputably caused no injury. In the end, though, we will leave it
for future cases to clarify the scope of this objective element because Johnson cannot satisfy the
subjective one.

       Subjective Element. Johnson’s Eighth Amendment claim required him also to prove that
Sootsman used the force “maliciously and sadistically” to inflict pain. Hudson, 

503 U.S. at 7

.
To decide whether a jury could find that an officer acted with this malicious intent, the Supreme
 No. 22-1937                       Johnson v. Sootsman                                 Page 13


Court has identified several factors to consider: What was the extent of the prisoner’s injury?
What was the nature of the threat that justified the use of force? Was the amount of force
proportional to the threat? And did the officer take any actions designed to reduce the required
amount of force? See id.; Whitley, 

475 U.S. at 321

. More generally, we have added that, while
judges may review an encounter by slowing down, pausing, and replaying a video, officers have
no such luxury. They must make quick decisions in the heat of the moment. So we defer to their
decisions and avoid “unreasonable post hoc judicial second-guessing” of their conduct. Lockett
v. Suardini, 

526 F.3d 866, 875

 (6th Cir. 2008) (citation omitted); see also Griffin, 

604 F.3d at 954

.

       As applied here, the Supreme Court’s factors show that Johnson lacks sufficient evidence
to prove Sootsman’s malevolent intent. First, although the Eighth Amendment does not require
a prisoner to suffer a “serious injury,” the “absence” of such an injury goes a long way to
disprove any claim that an officer used force with the required intent to harm. Hudson, 503 U.S.
at 7–8. We have thus denied a prisoner’s Eighth Amendment claim when an officer’s use of
force caused the prisoner to suffer “only some tenderness, bruising, and slight swelling,”
Bullocks v. Hale, 

2021 WL 1578198

, at *2 (6th Cir. Mar. 1, 2021) (order), or “minor lacerations
and cuts,” Lockett, 

526 F.3d at 876

; see also Richmond v. Settles, 

450 F. App’x 448

, 453–54 (6th
Cir. 2011). Similar logic applies here. Johnson’s evidence shows, at most, that Sootsman caused
“minor injuries.”   Lockett, 

526 F.3d at 876

.    For example, the investigator who reviewed
Sootsman’s conduct noted at the time that Johnson had “no visible injuries” and complained only
“of discomfort in his throat[.]” Rep., R.51-3, PageID 606. Johnson’s neck pain started to
improve, so he thought his neck would “heal by itself.” Johnson Dep., R.45-3, PageID 180.
When he finally received medical care (over a year later), he admitted that his doctors diagnosed
his pain as a “few tight places they want to work on” with physical therapy. 

Id.,

 PageID 176.
“That’s about it.” 

Id.

       Second, Sootsman had a “plausible basis” to believe that Johnson constituted a threat who
needed to be restrained under all the circumstances. Whitley, 

475 U.S. at 323

. Consider what
Sootsman knew before Johnson entered the hallway. Johnson had disobeyed orders during his
prior incarcerations and was “always . . . trying to be intimidating.” Sootsman Dep., R.45-5,
PageID 213–14. Sootsman also had just seen Johnson cause a scene in the intake area. Johnson
 No. 22-1937                        Johnson v. Sootsman                                 Page 14


“had been engaged in a loud, lengthy, and animated” argument over Deputy Miller’s request that
he remove a towel from his head. Griffin, 

604 F.3d at 955

. Johnson became so “frustrated” that
he threw his lunch. Sootsman Dep., R.45-5, PageID 211–12. Given Johnson’s combative
conduct, the jail’s policies required Deputy Einhardt to handcuff him before moving him to his
general-population cell. Einhardt Dep., R.45-6, PageID 242. But Einhardt violated the policies
by allowing Johnson to walk to his cell unrestrained (and she later received “counseling” for this
violation). 

Id.,

 PageID 242–43. Sootsman likewise knew that Johnson “should have been
handcuffed” before he left the intake area. Sootsman Dep., R.45-5, PageID 218.

       Next consider what Sootsman knew when Johnson entered the hallway. The hallway
video proves that Johnson continued to be disruptive. For example, it shows the two inmates
who accompanied Sootsman turning around to look at Johnson, leaving no doubt that he was the
one causing a commotion. And it shows Johnson gesticulating and his lips moving as he goes
past them. By quickly walking out of the intake area, moreover, Johnson had put distance
between himself and the deputies who were supposed to have control of him. He then appeared
to ignore Einhardt’s orders to slow down. Einhardt Dep., R.45-6, PageID 235–36. Sootsman,
who was already in the hallway, heard her orders. Sootsman Dep., R.45-5, PageID 214–15.

       Also consider what Sootsman knew when he spoke with Johnson.               Sootsman was
confronting an unhandcuffed inmate who had just disobeyed a colleague’s order. Sootsman also
had two other unhandcuffed inmates in the hallway, adding to the risks. The video next reveals
that Johnson took a step (admittedly, a slow one) in the general direction of Sootsman and the
general-population area during their conversation. Video E3, R.54, at 0:53. Sootsman saw “no
reason” for Johnson to move toward him because Sootsman had not ended their conversation.
Sootsman Dep., R.45-5, PageID 224. Sootsman testified that he perceived Johnson’s step “as a
threat” and in response used force to restrain (and handcuff) him. 

Id.,

 PageID 217. Even if, “in
retrospect,” a jury rejected Sootsman’s testimony as not credible, or found “unreasonable” his
belief that Johnson was a threat, the totality of the circumstances would not permit a reasonable
jury to draw the more demanding inference that Sootsman used force for no other reason than to
inflict pain or injure him. Whitley, 

475 U.S. at 319, 324

.
 No. 22-1937                       Johnson v. Sootsman                                  Page 15


       Third, the video of the encounter illustrates that Sootsman used an amount of force
proportional “to the need for forcibly bringing [Johnson] under control.” Lockett, 

526 F.3d at 876

. Our caselaw has found a similar level of force proportional when it involved, for example,
“[s]hoving” or “grabbing” a prisoner to gain control of him, id.; see also, e.g., Begley v. Tyree,

2018 WL 3244508

, at *3 (6th Cir. Feb. 13, 2018) (order), pushing and holding a prisoner against
a wall to handcuff him, Brooks v. Fed. Bureau of Prisons, 

1999 WL 427179

, at *2 (6th Cir. June
15, 1999) (order), or using a “leg-sweep maneuver” to take a prisoner to the ground so that she
could be handcuffed and returned to her cell, Griffin, 604 F.3d at 954–56. Similarly, we have
repeatedly described the use of a taser or pepper spray as a proportional level of force in
response to a prisoner’s refusal to follow orders, including an order to accompany an officer,
Sams v. Quinn, 

2017 WL 4574497

, at *2 (6th Cir. Sept. 7, 2017) (order), and an order to “exit
the shower,” Jennings v. Mitchell, 

93 F. App’x 723, 5725

 (6th Cir. 2004). See also, e.g.,
Alexander v. Ojala, 

2018 WL 5905588

, at *3 (6th Cir. May 29, 2018) (order); Caldwell v.
Moore, 

968 F.2d 595

, 601–02 (6th Cir. 1992). Sootsman used a similar level of force—an
amount designed to gain control of Johnson and handcuff him. He pushed Johnson against the
wall with his right arm (and, under Johnson’s view, squeezed his neck) for about two seconds
and then pulled Johnson to the ground in order to handcuff him in about five seconds.

       Fourth, and finally, that Sootsman’s use of force lasted all of seven seconds shows that
Sootsman “temper[ed] the severity” of the force. Whitley, 

475 U.S. at 321

. The video discloses
that he did not land any blows that could be described as extraneous to the goal of gaining
control of Johnson. All told, every reasonable jury would conclude that Sootsman could have
“plausibly” believed that his use of force was necessary. Griffin, 

604 F.3d at 954

 (quoting
Whitley, 

475 U.S. at 321

). So no reasonable jury could find that Sootsman’s actions arose from a
sadistic intent to inflict pain on Johnson rather than a (perhaps mistaken) belief of the need to
restrain him.

                                                C

       In response, Johnson fails to identify evidence that would allow a reasonable jury to find
that Sootsman harbored the required intent.         He initially describes as an “absurdity” the
magistrate judge’s conclusion that the video shows him remaining agitated in the hallway.
 No. 22-1937                         Johnson v. Sootsman                                 Page 16


Appellant’s Br. 21. Johnson cites Einhardt’s deposition testimony that “he was done yelling”
when he left intake and asserts that nothing in the video (which lacked sound) “blatantly
contradicted” this testimony. Einhardt Dep., R.45-6, PageID 234; Scott v. Harris, 

550 U.S. 372, 380

 (2007). But he ignores the video evidence showing both his lips moving and Sootsman and
his two detainees stopping and turning around to look behind them in the hallway. Only one
conclusion can be drawn from this footage: Sootsman continued to cause a commotion. In all
events, Einhardt’s testimony separately confirmed what the video shows—that Johnson
disobeyed her orders by walking quickly away, forcing her to move at almost a “jogging pace” to
keep up with him. Einhardt Dep., R.45-6, PageID 235. So his improper conduct undisputedly
continued into the hallway.

        Johnson thus turns to the testimonies of Deputies Einhardt, Harris, and Miller. Because
they saw “no reason” for Sootsman’s use of force, Johnson argues that a reasonable jury could
find that he acted for malicious and sadistic reasons. Appellant’s Br. 23–24 (quoting Rep., R.51-
3, PageID 600). Yet Johnson provides no record citation at which these deputies state they even
saw Johnson take the visible-on-the-video step that triggered Sootsman’s force. So they do not
opine on whether Sootsman could have viewed that step as threatening. And while Johnson
responds that the video shows the step to have been slow and just as much in the direction of the
general-population area as Sootsman, he does not claim that Sootsman authorized him to walk
away.

        In the end, perhaps the other deputies’ testimony and Johnson’s arguments about the
nature of his step suggest that Sootsman acted in an “unreasonable” manner by using
“unnecessary” force to restrain Johnson. Whitley, 

475 U.S. at 319

. But that inference falls short
of what is needed. The negligent use of force—even the reckless use of force—does not
establish an Eighth Amendment claim; Johnson must prove the malicious use of force for the
exclusive purpose to inflict pain.     See 

id.

 at 320–21.     To put things in perspective, this
demanding intent element exceeds the “deliberate indifference” test that the Supreme Court
requires for other types of Eighth Amendment claims. See Hudson, 503 U.S. at 5–7. And that
deliberate-indifference test is itself demanding, requiring prison officials to have acted with the
“subjective recklessness” that could render them liable under “the criminal law[.]” Farmer v.
Brennan, 

511 U.S. 825, 839

 (1994).
 No. 22-1937                         Johnson v. Sootsman                                  Page 17


       Johnson also points to the factual dispute over what was said between him and Sootsman
before the use of force. Sootsman claims that Johnson argued with him in a threatening manner,
while Johnson claims that he meekly said “I am” in response to Sootsman’s demand to look
Sootsman in the eyes. Johnson also claims that Sootsman was screaming at him and using
offensive language. And the video shows Sootsman shaking his finger at Johnson. Although we
must resolve this factual dispute in Johnson’s favor, it does not change things. In Griffin, for
example, we accepted the prisoner’s claim that the correctional officer said that “she was going
to live in his hell” and that she “was his bitch” before he used a leg-sweep maneuver that ended
up breaking her tibia. 

604 F.3d at 955

. But we held that this version of the conversation did not
matter given the undisputed video evidence that the prisoner was “struggling” with the officer
before the use of force. 

Id.

 Similarly, in Alexander, we held that a prisoner did not satisfy the
subjective component of his Eighth Amendment claim when an officer used his taser on the
prisoner to break up a fight. 

2018 WL 5905588

, at *3. That was so even though the officer told
the prisoner that he had “been waiting to get your ass” after using the taser. 

Id. at *1

. This logic
applies here too. The video undisputedly shows that Johnson stepped toward Sootsman before
he pushed Johnson against the wall. So Sootsman used “limited” force “to preserve internal
order” after Johnson had repeatedly violated the officers’ instructions. 

Id. at *3

.

       Although Johnson equates the facts of his case with those of Cordell, that decision
undercuts his Eighth Amendment claim. The inmate in Cordell could not have plausibly posed a
threat because he was handcuffed and in a submission hold. 

759 F.3d at 583

. Johnson was
neither. The officer in Cordell also used the plaintiff “as a human battering ram” by slamming
him headfirst into a concrete wall. 

Id. at 582

. This action is not one to gain “control” of a
prisoner. Sootsman, by contrast, took that type of action. And the plaintiff in Cordell suffered
“sever[e]” injuries that required an immediate hospital visit, shifted his vertebrae, and led to a
diagnosis of chronic pain syndrome. 

Id.

 at 582–83. Johnson’s purported injuries of headaches
and neck pain (and diagnosis a year later of tightness in the neck) are not on the same level.

       Finally, Johnson stresses that Sootsman violated the jail’s use-of-force policy and pleaded
guilty to a misdemeanor battery. These factors cannot save his claim. As for the policy
violation, a sheriff’s department may “choose to hold its officers to a higher standard than that
required by the Constitution[.]” Smith v. Freland, 

954 F.2d 343, 347

 (6th Cir. 1992); see
 No. 22-1937                          Johnson v. Sootsman                               Page 18


Burwell v. City of Lansing, 

7 F.4th 456, 471

 (6th Cir. 2021). As for the battery conviction,
Johnson does not dispute the magistrate judge’s conclusion that he forfeited any attempt to
invoke issue preclusion. See Johnson, 

2022 WL 9806957

, at *4. And he did not even tell us the
elements of this offense until his reply brief—a point in time that “comes too late.” Bannister v.
Knox Cnty. Bd of Educ., 

49 F.4th 1000, 1017

 (6th Cir. 2022); Reply Br. 2–3. Even under
Johnson’s view of Michigan law, Sootsman’s conviction meant that he admitted only that he did
not “honestly and reasonably” believe that his force was necessary. Reply Br. 3 (emphasis
added) (quoting Mich. Crim. J. Inst. 7.22). So Sootsman’s “unreasonable” belief about the need
for the force might have sufficed for a conviction under this criminal law. Whitley, 

475 U.S. at 319

. But that belief falls well short of showing that Sootsman used force “maliciously and
sadistically for the very purpose of causing harm.” 

Id.

 at 320–21 (citation omitted).

                                              * * *

       One should not misunderstand our holding. A conclusion that Sootsman’s conduct did
not violate the Eighth Amendment as a matter of neutral constitutional interpretation says
nothing about whether his conduct was proper as a matter of good policy. Just because the
Constitution does not bar certain actions does not make those actions right. The Constitution
instead leaves this policy question to Michigan, which may regulate its correctional officers in
the way that it thinks best through its prison rules or tort laws. So nothing we say here affects
whether Johnson may pursue the tort claim against Sootsman that the district court left for state
court. Our holding only means that federal judges are not free to turn the Eighth Amendment
into a “font of tort law” by imposing their own views about the optimal balance between
protecting the liberty of a state’s prisoners and ensuring the security of its prisons. Leary,

528 F.3d at 445

 (citation omitted).

       We affirm.