Brent James Nash v. Austin Bryce

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0268p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRENT JAMES NASH,
Plaintiff-Appellant,
v.
AUSTIN BRYCE and CALVIN TURNER, Correctional
Officers, in their official and personal capacities,
Defendants-Appellees.
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No. 24-1263
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:22-cv-10258—George Caram Steeh III, District Judge.
Argued: December 11, 2024
Decided and Filed: September 30, 2025
Before: GILMAN, READLER, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Zachary T. Runyan, RUNYAN LAW GROUP, Saint Clair Shores, Michigan, for
Appellant. Christopher Alex, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Zachary T. Runyan, RUNYAN LAW GROUP,
Saint Clair Shores, Michigan, for Appellant. James E. Keathley, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
BLOOMEKATZ, J., delivered the opinion of the court in which GILMAN, J., concurred.
READLER, J. (pp. 31–53), delivered a separate dissenting opinion.
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OPINION
_________________
BLOOMEKATZ, Circuit Judge. Two corrections officers, Austin Bryce and Calvin
Turner, escorted prisoner Brent Nash through a prison hallway and out into a prison yard.
Upon entering the prison yard, the officers executed a takedown maneuver on Nash, throwing
him to the cement and fracturing his foot in two places in the process. This appeal centers on
whether that takedown maneuver was justified. Nash contends that he did nothing prior to the
takedown to warrant the officers’ use of force against him. The officers contend that Nash
lunged away from them, causing them to panic and take him to the ground.
Most of the relevant events were captured on the prison’s security videos. Relying on
that video footage, a prison misconduct hearing officer found that Nash had assaulted Bryce and
Turner by lunging away from them before their decision to take him down. Nash then filed suit
against Bryce and Turner under 42 U.S.C. § 1983, arguing that the takedown violated his Eighth
Amendment right to be free from excessive force. After discovery, the district court granted
summary judgment to the defendants, holding that they were entitled to qualified immunity. In
so doing, the district court made two conclusions about the factual record—that the hearing
officer’s factual findings from the prison misconduct hearing should have preclusive effect on
the litigation, and that the prison videos blatantly contradicted Nash’s testimony. We disagree
with both conclusions and, relying on a corrected review of the factual record, hold that Nash has
raised a genuine dispute of material fact regarding whether Bryce and Turner violated his Eighth
Amendment rights. We accordingly reverse the district court’s grant of summary judgment to
the officers.
BACKGROUND
I. Takedown
In April 2021, Brent Nash, a prisoner incarcerated at the St. Louis Correctional Facility in
St. Louis, Michigan, got into a physical altercation with a fellow inmate. What transpired after is
depicted in three surveillance videos from the facility. Because what is shown in the videos “can

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be interpreted multiple ways,” we construe the record as depicted by the videotapes,
supplemented by deposition testimony, in the light most favorable to Nash. Latits v. Phillips,
878 F.3d 541, 547 (6th Cir. 2017).
In the first video, we can see Nash smash his food tray into another inmate’s head.
Multiple officers, including Bryce and Turner, tackle Nash to the ground; Nash struggles against
the officers, but after some time, the officers succeed in handcuffing him. With Nash’s hands
now handcuffed behind his back, two officers—Bryce and Turner—pull Nash up and then stand
slightly behind him and on either side of him. With each officer holding one of Nash’s arms,
Bryce and Turner begin escorting Nash out of the room and through a hallway.
The second video shows a room in the prison known as the “dayroom.” The windows of
the dayroom look out into a hallway that leads to a prison yard. Through those windows, we can
see that Nash, with his arms still handcuffed, is led by Bryce and Turner through the hallway to
the door that leads to the prison yard. Nash walks at a normal speed, but we can tell that he is
swaying slightly from side to side. It is more difficult to see what happens while Nash, Bryce,
and Turner walk to the end of the hallway; the footage is blurry to begin with, and the glass
windows that show the hallway appear tinted. We can see that, as Nash walks through the end of
the hallway and out into the prison yard, his torso bends forward momentarily. But we cannot
tell what prompted him to bend over. Nash, Bryce, and Turner then walk through the door to the
outside.
The third video shows the prison yard. Nash, Bryce, and Turner exit the hallway door
and enter the yard. We can’t see the interaction between them as they exit the hallway into the
prison yard because the camera’s view of them is entirely obscured by the open door. Once
Nash can be seen in the video, his footsteps appear to shuffle slightly—but we can’t tell what
causes his feet to shuffle. Nash’s body then turns to his left, and Bryce and Turner slam him to
the ground.
In their deposition testimony, Nash, Bryce, and Turner offered differing perspectives
regarding the takedown incident depicted in the videos. Nash admitted that as he entered the
prison hallway, he was swaying slightly back and forth, but he contended that he did not struggle

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against Bryce and Turner. Nash stated that as Bryce and Turner were walking him through the
hallway, they had both of their hands on his arms and had him “bent over at the waist” so that his
body was at a “90-degree angle,” “walking with [his] face down towards the cement.” Nash
Dep., R. 36-1, PageID 220. Nash testified that as he was walking in this position, the officers
were also pulling at his arms and bending them up behind his back, causing him discomfort.
Nash explained that, as he walked out of the hallway and into the prison yard with Bryce and
Turner, he “kind of pull[ed]” his arms down to “the normal position they [were] supposed to be
in,” with his hands held behind his back. Id. at PageID 222. In reaction to Nash’s moving his
arms into a more neutral position, he says that Bryce and Turner took him to the ground.
Bryce and Turner, by contrast, both testified that Nash had been struggling against them
before their decision to take him down, but they offered inconsistent testimony regarding what
prompted their use of force. Bryce testified that as he and Turner walked through the hallway
with Nash, Nash began walking faster and swearing. In response, Bryce warned Nash to “stop
resisting and to slow down.” Bryce Dep., R. 36-2, PageID 282. Bryce further testified that, as
the three men walked through the prison hallway, Nash began swaying back and forth, causing
Bryce to begin losing his grip on Nash’s arm. Then, as Bryce, Turner, and Nash exited the
hallway door to the prison yard, Nash “began to pull away” from Bryce and to try to turn
towards him. Id. at PageID 280; see also id. at PageID 286. Bryce thought that Nash had turned
to his left voluntarily, in an attempt to turn around and face Bryce. Concerned that Nash was
going to spit on him, Bryce decided to take him down.
Like Bryce, Turner testified that Nash swore at the officers and then began to pull away
from them as they made their way through the prison hallway. But he otherwise recalled what
happened differently. He described that as he, Bryce, and Nash made their way through the
hallway, Nash had been walking at a normal speed. He noted that he had had no “issues” with
Nash’s walking from side to side. Turner further testified that, as he and Bryce opened the door
to the outside, Nash tried to pull away. Specifically, Turner stated that Nash “threw his head
back,” almost hitting Bryce in the face and upsetting Bryce as a result. Turner Dep., R. 36-3,
PageID 352–53. Bryce then executed the takedown maneuver. Turner testified that Bryce’s
execution of that takedown maneuver caused Nash’s body to turn to the left. So, contrary to

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Bryce’s testimony, Turner stated that Nash had not voluntarily turned toward Bryce, but rather
had been forcibly turned as Bryce took him to the ground.
During his deposition, Turner reviewed the videos of the incident. He acknowledged that
the videos did not show Nash throwing his head back towards Bryce as the three men exited the
hallway and entered the prison yard. Turner suggested, however, that it was possible that the
camera had not “caught” the movement because it happened so quickly. Id. at PageID 375–76.
Turner elaborated: “The camera doesn’t give a good representation of the situation.” Id. at
PageID 377.
As a result of Bryce and Turner’s takedown maneuver, Nash fractured his foot in two
places. He wore a cast for several weeks and a boot cast for several more as a result.
II. Major Misconduct Hearing
On the same day that Bryce and Turner took Nash to the ground, Bryce issued Nash a
prison misconduct citation for two offenses: (1) assault and battery of a staff victim and
(2) assault and battery of a fellow prisoner. Both offenses are designated as “Class I,” or major,
misconduct offenses by the Michigan Department of Corrections. Nash was accordingly entitled
to a hearing with certain procedural protections, including the ability to request and review
evidence. See Mich. Comp. Laws § 791.252. At the conclusion of the hearing, the hearing
officer found Nash guilty of both charges against him.
Only the first charge against Nash—for assault and battery of a staff victim—is relevant
here. The applicable Michigan Department of Corrections policy notes that “assault and battery”
of a staff victim includes “physical resistance or physical interference with an employee.” Class
I Misconduct Hr’g Rep., R. 36-4, PageID 393, 418. The charge related to Nash’s having
generally resisted the officers’ attempts to control him.
Nash pleaded not guilty, which led to a hearing regarding the charge. For that
proceeding, the hearing officer reviewed several pieces of evidence, including the three prison
videos and a report from a hearing investigator assigned to look into the matter. The hearing
officer’s report states that although Nash was entitled to request that the hearing investigator

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gather evidence, Nash “did not request witnesses, submit questions, or request evidence,” and so
did not “reasonably cooperate” with the hearing investigator. Id. at PageID 393.1 Nash was
permitted to participate in the hearing, but his access to evidence was limited. The hearing
officer’s report states that although the record was “reviewed with” Nash, he was not permitted
to view the prison videos either before or during the hearing. Id. at PageID 393, 395. Those
videos, the hearing report states, were marked confidential for “facility safety and security”
purposes. Id. at PageID 395.
The hearing officer found Nash guilty, relying substantially on the prison videos as
support for the ruling. The hearing officer found that after Nash had attacked another inmate, he
had resisted the officers’ attempts to handcuff him by “pulling away and rolling around,” thereby
“prevent[ing] the officers from placing” him in handcuffs. Id. at PageID 396. The hearing
officer then found that after Nash was handcuffed and was being led by Bryce and Turner
through the prison, he had “continued to resist by pulling away, walking side to side, and then
turning around towards the escorting officers.” Id. The hearing officer thus concluded that Nash
had “physically resisted the officers’ attempts to restrain and escort him,” so the hearing officer
upheld the charge against Nash. Id.
Nash did not exercise his right to seek judicial review in Michigan state court of the
hearing officer’s determination. See Mich. Comp. Laws § 791.255.
III. Procedural Background
In January 2022, Nash filed suit against Bryce and Turner in their individual capacities
under 42 U.S.C. § 1983, arguing that their use of force against him was constitutionally
1The record is unclear as to whether Nash in fact declined to request access to evidence. In the same
packet containing the hearing officer’s misconduct report, there is an undated letter from Nash to the hearing
investigator in which Nash states that he “received [the] misconduct report” and “would like ALL evidence.” Class
I Misconduct Hr’g Rep., R. 36-4, PageID 394. Because the letter is not dated, it is unclear whether Nash sent the
letter before the major misconduct hearing.

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excessive and accordingly violated his Eighth Amendment right to be free from cruel and
unusual punishment.2
Bryce and Turner filed a motion for summary judgment, contending that Nash had not
raised a genuine dispute of material fact as to whether they had violated his Eighth Amendment
rights and that they were accordingly entitled to qualified immunity.
In January 2024, the magistrate judge issued a Report and Recommendation to grant the
defendants’ motion for summary judgment, concluding that Nash had not raised a genuine
dispute of material fact as to whether the defendants’ use of force violated his Eighth
Amendment rights. The magistrate judge acknowledged that Nash, Turner, and Bryce had
offered conflicting testimony regarding the events leading up to the takedown. But the
magistrate judge reasoned that the Supreme Court’s opinion in Scott v. Harris required the court
to view the evidence as “depicted by the videotape”—and those prison videotapes “blatantly
contradicted” Nash’s recounting of events. R. & R., R. 39, PageID 441 (quoting Scott v. Harris,
550 U.S. 372, 380–81 (2007)). The magistrate judge elaborated: “In the Court’s view, the video
shows that Nash veered side to side through the hallway, bent over at the waist suddenly as he
went through the door to the yard, and took fast shuffling steps as defendants followed him
outside.” Id. The magistrate judge reasoned that the video evidence thus “corroborate[d]
defendants’ testimony that they took Nash down because he was actively pulling away from
them.” Id. Because the videotapes purportedly corroborated the defendants’ testimony, the
magistrate judge chose to disregard Nash’s version of events. Next, the magistrate judge
explained that the hearing officer’s factual findings from Nash’s prison misconduct hearing—
specifically, that Nash had actively resisted Bryce and Turner, prompting the takedown—should
have preclusive effect on the litigation. From its review of the videotapes and the hearing
officer’s findings that Nash had resisted Bryce and Turner, the magistrate judge concluded that
2Nash initially filed this suit pro se in the United States District Court for the Western District of Michigan
and named three other individuals, in addition to Bryce and Turner, as defendants. The Western District of
Michigan screened Nash’s complaint pursuant to the Prison Litigation Reform Act, see 28 U.S.C. §§ 1915(e)(2),
1915A, and dismissed two individual defendants and transferred the case to the Eastern District of Michigan. The
Eastern District of Michigan then screened Nash’s complaint again and dismissed a third defendant. Nash did not
appeal the dismissal of any of the three other defendants. Nash, now represented by counsel, proceeds against Bryce
and Turner only.

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Nash had not raised a genuine dispute of material fact regarding whether Bryce and Turner
violated his constitutional rights, so Bryce and Turner were entitled to qualified immunity.
The district court adopted the Report and Recommendation over Nash’s objections and
granted the defendants’ motion for summary judgment. As relevant here, the district court
reasoned that the magistrate judge had been right to rely on the videotapes to dismiss Nash’s
testimony because Nash’s “account [wa]s contradicted by” the video. Order, R. 42, PageID 710–
11.3
This timely appeal followed.
ANALYSIS
We review de novo the district court’s order granting the defendants’ motion for
summary judgment on qualified immunity grounds. Helphenstine v. Lewis County, 60 F.4th 305,
314 (6th Cir. 2023). At summary judgment, “courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party opposing the summary judgment
motion.” LaPlante v. City of Battle Creek, 30 F.4th 572, 578 (6th Cir. 2022) (citation and
internal quotation marks omitted). If the evidence would allow a reasonable jury to find for the
nonmoving party, a court may not grant summary judgment. Id.
We apply this standard in evaluating whether the district court erred in granting qualified
immunity to Bryce and Turner. A public official is entitled to qualified immunity when, viewing
the facts in the light most favorable to the plaintiff, the official’s conduct did not violate “clearly
established . . . constitutional rights of which a reasonable person would have known.” Heeter v.
Bowers, 99 F.4th 900, 908 (6th Cir. 2024) (citation omitted). Here, to demonstrate that the
district court erred, Nash must show a genuine dispute of material fact regarding whether Bryce
and Turner violated his Eighth Amendment rights by subjecting him to an “unnecessary and
wanton infliction of pain” when they took him to the ground. Williams v. Curtin, 631 F.3d 380,
383 (6th Cir. 2011) (citation omitted).
3Because the district court adopted the magistrate judge’s Report and Recommendation to grant the
defendants’ motion for summary judgment in a short order, the Report and Recommendation supplies much of the
relevant reasoning. We accordingly refer to the magistrate judge’s reasoning. See Poundstone v. Patriot Coal Co.,
485 F.3d 891, 901–03 (6th Cir. 2007) (examining the magistrate judge’s reasoning where the district court had
“adopted without significant comment the magistrate’s report and recommendation”).

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I. Relevant Facts for Summary Judgment
Before we can arrive at the question of whether there is a genuine dispute of material fact
regarding Nash’s Eighth Amendment rights, we must “determine the relevant facts,” Scott, 550
U.S. at 378—in particular, whether Nash was resisting Bryce and Turner when they chose to take
him down. This “first step” in our analysis requires us to review two of the district court’s
conclusions about the factual record. Id. First, the district court concluded that the hearing
officer’s factual findings from the Michigan major misconduct hearing should have preclusive
effect on this litigation. Second, the district court, citing Scott v. Harris, 550 U.S. 372 (2007),
concluded that because the videos of the relevant events clearly contradicted Nash’s testimony, it
could decline to accept that testimony for the purposes of summary judgment. We hold that both
conclusions regarding the factual record were erroneous: the district court should not have
afforded preclusive effect to the hearing officer’s factual findings, and it should not have relied
on the prison videos to disregard Nash’s testimony.
A. Preclusion from Michigan Major Misconduct Hearing
We turn first to Nash’s argument that the district court erred in concluding that the
hearing officer’s factual findings from the prison misconduct hearing should have preclusive
effect on this litigation. As we have noted, the hearing officer found that Nash actively resisted
Bryce and Turner, both as they tried to handcuff him after he attacked another prisoner and a
couple of minutes later as they led him out to the prison yard. The hearing officer’s factual
finding that Nash actively resisted the officers as they led him out to the prison yard bears
directly on whether the takedown reflected an “unnecessary and wanton infliction of pain.”
Williams, 631 F.3d at 383.
We determine whether to give that factual finding preclusive effect by evaluating the four
criteria set forth by the Supreme Court in University of Tennessee v. Elliott, 478 U.S. 788 (1986),
for “according preclusive effect to a state administrative agency’s unreviewed factual
determination.” Peterson v. Johnson, 714 F.3d 905, 912 (6th Cir. 2013). First, the state agency
must have been acting in a “judicial capacity.” Id. (quoting Elliott, 478 U.S. at 799). Second,
the hearing officer must have “resolved a disputed issue of fact that was properly before” the

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officer. Roberson v. Torres, 770 F.3d 398, 403 (6th Cir. 2014) (citation omitted). Third, the
party to be precluded must have been afforded an “adequate opportunity to litigate” the “factual
dispute.” Id. (citation omitted). Finally, if the first three criteria are satisfied, the court “must
give the agency’s finding of fact the same preclusive effect it would be given in state courts.”
Peterson, 714 F.3d at 913. The test Michigan courts apply when deciding to give preclusive
effect to an agency’s findings of fact includes asking whether the parties had a “full and fair
opportunity” to litigate those facts before the agency. Id. at 914.
Examining the Elliot factors, we have already held that factual findings from Michigan
prison major misconduct hearings can, in some circumstances, have preclusive effect in a
prisoner’s federal litigation. See id. at 912–17; Roberson, 770 F.3d at 404–05. In Peterson, we
confronted that issue and concluded that a prisoner’s Michigan major misconduct hearing
satisfied the Elliott factors and that the factual findings from the hearing could accordingly have
preclusive effect over his federal litigation. 714 F.3d at 908. We reasoned that in Michigan
major misconduct hearings, the hearing officer acts in a “judicial capacity” because the officer
considers evidence from both parties and issues a written final decision that is subject to appeal.
Id. at 912. And we concluded that the dispute of fact resolved by the hearing officer had
preclusive effect over the prisoner’s litigation because it was a “necessary predicate” to the
hearing officer’s ultimate ruling. Id. at 913. We then held that the prisoner had an adequate
opportunity to litigate the disputed fact, pointing to the “statutory protections” available to the
prisoner during the misconduct hearing, which included the opportunity to present evidence and
arguments and the requirement that the hearing officer be impartial and recuse if the accused
files a motion that establishes bias. Id. at 912–13.
Turning to the final Elliott prong, we explained that the test that Michigan courts apply
“when deciding whether to give preclusive effect to an agency’s factual determination” includes
asking both whether “a question of fact essential to the judgment was actually litigated and
determined by a valid and final judgment” and whether “the parties had a full and fair
opportunity to litigate the issue.” Id. at 914. As to the first question, we concluded that the
finding had been “essential to the hearing officer’s judgment,” which had turned on the
“precise[]” fact to have preclusive effect in the litigation. Id. As to the second question, the

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prisoner had received a “full and fair opportunity to litigate” the factual dispute. Id. (citation
omitted). We noted that in assessing whether an individual received such a full and fair
opportunity, Michigan courts apply a multi-factor test “while recognizing that, ultimately, the
answer ‘rest[s] on the . . . court[’s] sense of justice and equity.’” Id. at 914–15 (quoting Monat v.
State Farm Ins. Co., 677 N.W.2d 843, 845 n.2 (Mich. 2004)). Among those factors is whether a
litigant had sufficient incentive to contest the issue in the prior proceeding, and we explained that
there was “no question that [the prisoner] had incentive to vigorously contest” the dispute of fact.
Id. at 915. We acknowledged, however, that it “g[ave] us pause” that the prisoner had not been
represented by counsel during the major misconduct hearing because “Michigan courts have
often found . . . the presence of counsel” to be “supporting evidence that a party has had a full
and fair chance to litigate an issue.” Id. at 916. But we decided that the prisoner’s lack of
counsel was not “categorically dispositive” of the inquiry under Michigan law. Id. We
elaborated that it appeared that the “absence of counsel” was not “problematic” for that
prisoner’s case, given that the “sole factual issue was a very simple one,” and an attorney
accordingly would “likely have had only negligible influence” on the critical dispute of fact. Id.
at 917. In light of the facts and circumstances presented in Peterson, we concluded that
Michigan state courts would grant preclusive effect to the hearing officer’s factual findings. Id.
A subsequent case, Roberson v. Torres, clarified that Peterson should not be read as a
“blanket blessing” to afford preclusion to “every factual finding in a major-misconduct hearing”
because the court’s decision in Peterson to afford preclusive effect to particular findings from the
prisoner’s misconduct hearing “necessarily turned, at least in part, on the particular
circumstances of” the prisoner’s case. Roberson, 770 F.3d at 404. We emphasized that because
application of the Elliott factors is fact-dependent, “the question of preclusion cannot be resolved
categorically.” Id. at 404–05. Rather, the preclusion determination “turns on case-specific
factual questions such as what issues were actually litigated and decided, and whether the party
to be precluded had sufficient incentives to litigate those issues and a full and fair opportunity to
do so—not just in theory, but in practice.” Id. at 405; see also Peterson, 714 F.3d at 914–17.
We also reiterated, as we had stated in Peterson, that the preclusion issue likewise “turns on the
court’s ‘sense of justice and equity,’ which may require a case-by-case analysis of surrounding

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circumstances.” Roberson, 770 F.3d at 405 (quoting Blonder-Tongue Labs., Inc. v. Univ. of Ill.
Found., 402 U.S. 313, 334 (1971)).
On appeal, Nash contends that the hearing officer’s findings of fact should not be given
preclusive effect because the circumstances of the hearing demonstrate that he lacked a full and
fair opportunity to litigate the factual dispute. He emphasizes that he was “not provided an
opportunity to review any of the evidence relied on” by the hearing officer, even though he
requested access to evidence prior to the hearing. Appellant Br. at 44. Reviewing the “particular
circumstances” of Nash’s major misconduct hearing, we agree that the district court erred in
affording preclusive effect to the hearing officer’s factual findings because Nash did not have a
full and fair opportunity to litigate the factual question of whether he resisted Bryce and Turner
as they walked with him out to the prison yard.4 Roberson, 770 F.3d at 404.
To begin, as Nash emphasizes, Nash lacked access to crucial evidence during the
misconduct hearing process. In the misconduct hearing report, the hearing officer stated that,
before the hearing, Nash had been afforded an opportunity to request evidence, but he had
declined to do so. But the record is unclear as to whether Nash in fact declined to request access
to evidence before the hearing. In the same packet containing the hearing officer’s report, there
is a letter from Nash to the hearing investigator in which Nash wrote that he had “received [the]
misconduct report” and “would like ALL evidence.” Class I Misconduct Hr’g Rep., R. 36-4,
PageID 394. Pointing to that letter, Nash contends that the hearing officer’s statement that he
4On appeal, Nash argues that the major misconduct hearing did not afford him a full and fair opportunity to
litigate the question of whether he was resisting Bryce and Turner before they took him down in the prison yard. He
emphasizes that, in both Peterson and Roberson, we explained that in deciding whether to afford factual findings
from a hearing preclusive effect, Michigan state courts pay careful attention to whether the litigant to be precluded
had a full and fair opportunity to litigate in the hearing. Relying on Michigan’s test for whether to afford preclusion,
which includes asking “whether the party to be precluded had sufficient incentives to litigate” and whether affording
preclusion would comport with “the court’s sense of justice and equity,” he contends that preclusion would be
inappropriate here. Appellant Br. at 42. And he argues, specifically, that we should not afford preclusion to the
misconduct hearing here because he was denied adequate access to evidence during the hearing. Thus, Nash has
done more than invoke a “threshold legal language.” Dissenting Op. at 43. And, as we will explain, this argument
is, alone, sufficient for us to decide that the misconduct hearing should not be given preclusive effect. We would
therefore reverse the district court’s preclusion decision based on an issue that Nash raised throughout this litigation.
Cf. Dissenting Op. at 38. To the extent that we examine additional reasons that preclusion is inappropriate beyond
those that Nash directly addressed in his brief on appeal, those issues are fairly encompassed within Nash’s
arguments that, based on Michigan’s test as described in Peterson and Roberson, he was deprived of a full and fair
opportunity to litigate.

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declined to request evidence is inaccurate. Unfortunately, because that letter is not dated, it is
not possible to tell with any certainty whether Nash sent the letter before or after the misconduct
hearing.5 Construing the letter in Nash’s favor, as we must at summary judgment, the letter
creates at least a dispute of material fact as to whether Nash in fact requested access to evidence
before the hearing and whether the hearing officer did not receive (or, less charitably, simply
ignored) that request. That itself is reason to conclude that Nash lacked a full and fair
opportunity to litigate the dispute: certainly, an individual who permissibly requests, but is
denied, access to highly relevant evidence is not given a fair opportunity in that litigation.
Even setting aside the question of whether Nash indeed requested access to evidence
prior to the hearing, Nash’s access to evidence relied upon during the hearing was insufficient to
have afforded him a “full and fair opportunity” to litigate the relevant factual dispute. Peterson,
714 F.3d at 914. In finding that Nash was guilty of assault and battery of a staff victim, the
hearing officer relied heavily on his own view of the prison videotapes. Nash was not permitted
to view those videotapes—arguably the most crucial pieces of evidence underlying the dispute—
at any point during the misconduct hearing process. That is because the hearing officer
“exercised his statutory authority to keep” the video evidence “confidential” and prevent Nash
from viewing it. Peterson, 714 F.3d at 909; see also Mich. Comp. Laws § 791.252(h) (noting
that a hearing officer “may deny access to the evidence to a party” if the officer “determines that
access may be dangerous to a witness or disruptive of normal prison operations”). As statutorily
required, the hearing officer explained in his report that he had marked the video confidential
“for facility safety and security and to avoid disclosure of camera locations and capabilities.”
Class I Misconduct Hr’g Rep., R. 36-4, PageID 395; see also Mich. Comp. Laws § 791.252(h)
(noting that if a hearing officer chooses to “deny access to the evidence to a party,” the “reason
for the denial shall be entered into the record”).
5At first blush, Nash’s statement in the letter that he had “received [a] misconduct report” could be read to
suggest that Nash did not send this letter until receiving the hearing officer’s final report. But a closer examination
of the record shows that Nash’s reference to the “misconduct report” could mean one of multiple documents. The
hearing officer’s final report was titled the “Class I Misconduct Hearing Report.” Class I Misconduct Hr’g Rep.,
R. 36-4, PageID 393. But, somewhat confusingly, the citation that Bryce issued Nash—which Nash presumably
received prior to the hearing process—was titled the “Misconduct Report.” Id. at PageID 397. Thus, Nash’s
reference to the “misconduct report” could just as easily refer to the citation document he had received from
Bryce—which perhaps suggests that he did, indeed, request evidence prior to the hearing.

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The limitations on Nash’s access to evidence during the hearing did not end with the
videotapes. The hearing officer’s report indicates that, including the videotapes, the hearing
officer relied on twelve pieces of evidence as support for his ruling. The hearing officer
designated seven of those total twelve pieces of evidence as “confidential,” meaning that Nash
did not get to view them. Class I Misconduct Hr’g Rep., R. 36-4, PageID 395. Included among
those seven pieces of evidence was virtually all information regarding the videotapes—not just
the videotapes themselves, but also stills from the videos and a memorandum from the hearing
investigator to the hearing officer in which the hearing investigator provided a time-stamped log
of what each video showed. Cf. Recording of Oral Arg. at 17:57-18:02 (counsel for defendants
acknowledging that Nash was denied access to all information regarding what the video showed,
including the time-stamped log describing the video). So Nash was denied all information
regarding the contents of the videotapes, even though they appear to have been crucial to the
hearing officer’s determinations. It is difficult to imagine how an individual who is denied
access to any part of the most crucial evidence has received an adequate opportunity to litigate a
dispute.
To be sure, in Peterson, we held that the findings from the prisoner’s major misconduct
hearing could have preclusive effect on his federal litigation—even though the prisoner was not
permitted to view the video of the relevant events. 714 F.3d at 909. But we cannot read
Peterson in a vacuum, divorced from our consistent later case law. In Roberson, this court made
clear that Peterson turned on its facts and that the case should not serve as a “blanket blessing” to
afford preclusion to every Michigan major misconduct hearing. 770 F.3d at 404–05. Roberson
instead emphasized that courts must closely examine the “particular circumstances” of a
prisoner’s case and consider whether the prisoner in fact had a “full and fair opportunity” to
litigate. Id. at 405. An examination of those particular circumstances—as instructed by
Roberson—reveals that Nash did not have such a full and fair opportunity here. Nash’s case, in
other words, is not on all fours with Peterson.
Indeed, the limitations on Nash’s access to the evidence here were substantially greater
than the limitations on the prisoner’s access in Peterson. There, we noted that the “only
evidence” that the hearing officer had denied the prisoner from viewing “was the video of the

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No. 24-1263 Nash v. Bryce, et al. Page 15
event.” Id. (emphasis added). The hearing officer had also gone to some lengths to ensure that,
despite being prohibited from viewing the video itself, the prisoner received as much information
as possible about what the video showed. To that end, the hearing officer provided the prisoner
“a detailed description of what the video depicted, down to the time-stamped second of each
relevant recorded activity.” Id.; see also Major Misconduct Rep., Peterson v. Johnson, No. 1:09-
cv-00225 (W.D. Mich. Nov. 13, 2009), R. 25-3, PageID 198 (hearing officer explaining that
although he had prohibited the prisoner from viewing the video, for “purposes of confrontation”
he “did generally reveal the content of the video to the charged prisoner at [the] hearing” by
providing a time-stamped description of what the video showed).
Here, by contrast, the hearing officer denied Nash access not only to the video, but also to
both the memorandum that provided time-stamped details regarding what was shown in the
video and still images from the videotape (along with other relevant pieces of evidence). This
distinction between Nash’s case and Peterson is significant. Cf. Dissenting Op. at 36
(contending that Nash’s case mirrors Peterson in every “legally significant way”). It means that,
quite unlike Nash, the prisoner in Peterson was provided with at least some minimal amount of
evidence required to make arguments using the video. This fact does not lack “legal
significance.” Dissenting Op. at 40. Rather, Roberson relied on it in explaining why preclusion
was appropriate in Peterson despite the inmate’s inability to view the video. We emphasized
that although Peterson concluded that preclusion was appropriate despite the fact that Peterson
was not allowed to view the video, it did so “where . . . ‘the hearing officer gave Peterson a
detailed description of what the video depicted, down to the time-stamped second of each
relevant recorded activity.’” Roberson, 770 F.3d at 404 (quoting Peterson, 714 F.3d at 915–16).
Nash did not get such evidence.
Thus, the record construed in Nash’s favor demonstrates that Nash requested, but was
denied, access to some of the most relevant evidence prior to the major misconduct hearing. And
it seems beyond question that Nash’s lack of access to this evidence was highly prejudicial. Cf.
Appellant Br. at 44 (“Of course, without reviewing the evidence relied on by the ALJ, it
significantly hampered Plaintiff’s ability to defend himself against the charges.”). Under these
circumstances, we do not believe that Michigan courts would conclude that Nash received a “full

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and fair opportunity to litigate” the factual dispute. Peterson, 714 F.3d at 914 (citation omitted).
Nor would it comport with our “sense of justice and equity” to afford preclusive effect to Nash’s
misconduct hearing under these circumstances—a factor that binding precedent and Michigan
law dictate we consider. Roberson, 770 F.3d at 405 (quoting Blonder-Tongue Labs., 402 U.S. at
334); Peterson, 714 F.3d at 915 (quoting Monat, 677 N.W.2d at 845 n.2). The fact that Nash
was denied all access to evidence regarding the contents of the videos and related evidence is,
alone, adequate reason to decline to afford preclusive effect to the hearing here.
There are yet more reasons to think that affording preclusive effect to the misconduct
hearing would be inappropriate here. For example, Nash’s lack of counsel during the hearing
process also points against any notion that he received a full and fair opportunity to litigate the
factual dispute.6 As noted, in Peterson we stated that Michigan courts often look to the
“presence of counsel” as relevant to whether a party had a “full and fair chance to litigate an
issue.” 714 F.3d at 916. We nonetheless concluded that the “absence of counsel” was not
“categorically dispositive” of the question of whether a party had a full and fair opportunity to
litigate. Id. at 916–17. We then turned to the particular facts and circumstances of the prisoner’s
misconduct hearing and concluded that, on those facts, the absence of counsel for the prisoner
was not “problematic” because the “sole factual issue” at dispute during the hearing “was a very
simple one,” and an attorney would accordingly have had “only negligible influence on such a
factual judgment.” Id. at 917.
The same cannot be said here. Given what we know about Nash’s prison hearing, it
seems that an attorney representing Nash would have had more than a “negligible influence” on
the hearing officer’s factual finding that Nash actively resisted the officers as they led him out to
the prison yard. Id. For starters, an attorney representing Nash would likely have been able to
6The dissent characterizes Nash’s lack of counsel during the misconduct hearing process as “Nash’s own
doing.” Dissenting Op. at 44. But counsel is expensive, and Nash is an indigent defendant. Nash began this
litigation pro se, received permission to proceed in forma pauperis, and unsuccessfully moved for the appointment
of counsel before the district court (before eventually managing to retain counsel over a year into the litigation). We
would not fault Nash for failing to retain counsel for the prison misconduct hearing. In any event, by examining the
non-dispositive factor of whether Nash was represented by counsel—and by responding to the dissent’s contention
that indigent defendants are at fault for not retaining counsel for administrative hearings—we do not “deem[]
Michigan’s disciplinary scheme a legal nullity.” Dissenting Op. at 47. Instead, we follow our binding precedent
and Michigan law, both of which require us to consider presence of counsel as one of the multiple factors in our
analysis. Peterson, 714 F.3d at 916.

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view—and make arguments using—the substantial swaths of evidence to which Nash was denied
access. Because, as we will explain, the video evidence is far less clear than the hearing officer
(and later the district court) made it out to be, an attorney’s assistance in presenting arguments as
to why the video evidence was inconclusive would have substantially impacted—or, as the
outcome of this appeal suggests, perhaps even changed the outcome of—the hearing. In addition
to viewing and making arguments using the existing evidence, an attorney could also have
requested more evidence, including—as Nash emphasizes on appeal—a statement from Turner,
whose deposition testimony contradicted Bryce’s allegations against Nash. We believe that,
under these circumstances, Nash’s lack of representation during the hearing process further
points against the notion that he had full and fair opportunity to litigate the factual dispute.7
What’s more, a review of the misconduct hearing report suggests that Nash lacked
“sufficient incentives to litigate” the hearing officer’s factual finding that Nash resisted Bryce
and Turner as they walked with him out to the prison yard. Roberson, 770 F.3d at 405; see also
Peterson, 714 F.3d at 911, 915 (noting that Michigan courts look to whether an individual had
sufficient incentives to litigate in assessing whether they had a full and fair opportunity to
litigate). That specific finding was not necessary for the hearing officer to rule that Nash was
guilty of assault and battery of a staff member.
To understand why, recall that the applicable Michigan Department of Corrections policy
states that “assault and battery” of a staff member includes any “physical resistance or physical
interference with an employee.” Class I Misconduct Hr’g Rep., R. 36-4, PageID 418. So, to find
Nash guilty of assault of a staff member, the hearing officer needed to determine only that Nash
had physically resisted Bryce and Turner at any point between when he attacked another prisoner
and when he was ultimately taken to the ground by the officers. Nash was already guilty of that
7We are, of course, bound by Peterson’s statement that a prisoner’s lack of counsel during a major
misconduct hearing process is not categorically dispositive of the preclusion question. We note, however, that there
are serious questions regarding whether a prisoner who is not represented by counsel during a prison misconduct
hearing process ever truly has an adequate opportunity to contest the charges against him. Indeed, we are aware of
no other federal court of appeals that has held that a party who was unrepresented by counsel during a state
administrative process had an adequate opportunity to litigate the factual dispute. And the Supreme Court has not
had cause to address the issue because the party precluded in Elliott was represented by counsel during the
administrative process. See Elliott v. Univ. of Tenn., 766 F.2d 982, 985 (6th Cir. 1985). Given Peterson, the
question of whether a prisoner’s lack of counsel, standing alone, is dispositive of the preclusion issue would need to
be addressed by an en banc court.

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offense by virtue of having resisted Bryce, Turner, and other officers when they tried to handcuff
him after he attacked another prisoner, as the prison video clearly shows. Thus, the factual
question at issue here—whether Nash also resisted Bryce and Turner as they walked him into the
prison yard—was not necessary to the hearing officer’s ultimate determination.
Indeed, the hearing officer’s final report makes plain that the hearing officer did, in fact,
find Nash guilty of assaulting Bryce and Turner on the basis of more conduct than Nash’s having
pulled away from the officers as they led him out to the prison yard. In the section of his report
concerning assault and battery of a staff victim, the hearing officer first summarized the
applicable definition of that charge; he noted that assault and battery includes “physical
resistance or physical interference with an employee.” Id. at PageID 396. He then made
findings in support of his conclusion that Nash had assaulted Bryce and Turner at multiple
instances during the relevant events, including addressing Nash’s resistance to being handcuffed
just after he assaulted another prisoner. The hearing officer concluded:
Officer Bryce reported that Prisoner Nash actively resisted and lunged away from
the escorting officers. Video surveillance showed Prisoner Nash resisted staff’s
attempts to restrain him by continuing to move towards [the prisoner he had
attacked], rolling around, and pulling away from staff, additional staff assisted,
the prisoner was restrained, placed on his feet, and as he was being escorted from
the unit, he continued to pull away from the officers, moved side to side as he
walked, and as they exited the unit, Prisoner Nash pulls away and turns around
towards the escorting officers, he was taken [to] the ground, additional staff
assisted, and the prisoner was escorted away from the unit. The ALJ finds the
prisoner resisted the officer’s attempts to restrain him by pulling away and rolling
around prevent[ing] the officers from placing restraints. The ALJ also finds after
the restraints were placed, the prisoner continued to resist by pulling away,
walking side to side, and then turning around towards the escorting officers, and
these actions interfered with the officers’ attempts to restrain and escort him from
the unit. . . . Therefore, the ALJ finds the prisoner physically resisted the officers’
attempts to restrain and escort him. The charge is upheld.
Id.
As this reasoning makes clear, the hearing officer made specific findings that Nash
assaulted the officers both by “resist[ing] the officers’ attempts to restrain him by pulling away
and rolling around” after he assaulted another prisoner and by “pulling away” from the officers
as they led him out into the prison yard. Id. The upshot is that, even if Nash had successfully

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argued that he did not pull away from the guards while they walked him out of the prison
hallway and into the prison yard, the hearing officer still would have found that Nash committed
an assault earlier by resisting the guards’ attempts to restrain him. As a result, we believe that
Nash lacked “sufficient incentives to litigate” the particular factual issue of what happened when
Nash exited the prison yard with Bryce and Turner. Roberson, 770 F.3d at 405; see also
Peterson, 714 F.3d at 914–15.
It follows that, for this additional reason, Michigan courts would not afford the relevant
factual finding preclusive effect. As we have explained, in evaluating the preclusive effect of an
agency’s factual determinations, Michigan courts look both to whether the parties “had a full and
fair opportunity to litigate the issue” and to whether “a question of fact essential to the judgment
was actually litigated and determined by a valid and final judgment.” Peterson, 714 F.3d at 914
(emphasis added). That Nash lacked incentive to litigate the relevant dispute means that he
lacked a “full and fair opportunity” to litigate the factual question of whether he resisted Bryce
and Turner before they took him down. Id. at 914–15. The factual issue to have preclusive
effect in this litigation—whether Nash resisted Bryce and Turner as they walked him into the
prison yard—was also not “essential to the hearing officer’s judgment.” Id. at 914. To the
contrary, the hearing officer’s judgment (and Nash’s resulting punishment) would seemingly
have been unchanged even absent this fact.8
To be sure, read in isolation, the citation document here—that is, the misconduct ticket
that Bryce prepared shortly after taking Nash to the ground, which charged Nash with assault of
a staff member—references only Nash’s resistance to Bryce and Turner as they walked with
Nash out from the hallway and into the prison yard, not Nash’s earlier resistance to the officers
just after he assaulted a fellow inmate. Dissenting Op. at 48. But the misconduct hearing
officer’s report shows that the scope of the hearing was focused more broadly on whether Nash
assaulted the officers during their entire interaction with him. In addressing the charge regarding
the assault and battery of a staff member, the hearing officer appears to have understood that the
charge was not tied to the precise moment when Bryce and Turner took Nash to the ground. The
8At oral argument, counsel for Bryce and Turner was asked whether Nash’s punishment would have
changed depending on whether he was found guilty of more than one charge of assaulting a staff member. Counsel
acknowledged that nothing in the record indicated that Nash’s punishment would have changed.

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hearing officer stated: “Officer Bryce reported that Prisoner Nash actively resisted and lunged
away from the escorting officers. Video surveillance showed that Prisoner Nash resisted staff’s
attempts to restrain him by continuing to move towards [the other prisoner] . . . .” Class I
Misconduct Hr’g Rep., R. 36-4, PageID 396. And, as just explained, in finding Nash guilty of
assaulting a staff member, the hearing officer made explicit findings regarding Nash’s actions
not only immediately before the takedown, but also earlier, just after he assaulted a prisoner.
See id. (finding that Nash “resisted the officer’s attempts to restrain him by pulling away and
rolling around prevent[ing] the officers from placing restraints” and that “after the restraints were
placed, [Nash] continued to resist by pulling away, walking side to side, and then turning around
towards the escorting officers, and these actions interfered with the officers’ attempts to restrain
and escort him from the unit” (emphasis added)). The hearing officer’s choice to make a finding
concerning Nash’s assault of Bryce and Turner as they struggled to place restraints on him after
he had assaulted another prisoner is telling. So too is the hearing officer’s choice to phrase the
finding concerning Nash’s later struggle against the officers as he walked out of the prison
hallway into the yard as a continuation of his earlier resistance. If the only conduct relevant to
Nash’s assault charge was Nash’s resistance in the few seconds before Bryce and Turner took
him to the ground, much of the hearing officer’s reasoning makes little sense.
In any event, the relevant question is not whether we can decipher the precise scope of
the conduct for which Nash was cited—it is whether, considering the circumstances of the
hearing, we think Nash had “sufficient incentives to litigate” the hearing officer’s factual finding
that Nash resisted Bryce and Turner as they walked with him out to the prison yard. Roberson,
770 F.3d at 405; Peterson, 714 F.3d at 911, 915. The hearing officer’s findings indicate that
Nash’s conduct just after he assaulted another prisoner was, indeed, also at issue during the
hearing. We accordingly believe that Nash lacked sufficient incentives to litigate whether he
later resisted the officers and that a Michigan court would not afford preclusive effect to that
particular finding by the hearing officer.
Because Nash lacked adequate access to the evidence, was unrepresented during the
hearing, and did not have sufficient incentives to litigate the relevant factual dispute, we hold

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that the district court erred in affording the hearing officer’s findings preclusive effect in this
litigation.
B. Comparing the Video Evidence and the Parties’ Testimony
Having concluded that the factual findings from the Michigan major misconduct hearing
do not have preclusive effect on this litigation, we turn to Nash’s argument that the district court
erred in disregarding his testimony on the grounds that it was “blatantly contradicted” by the
video tapes. Scott, 550 U.S. at 380. Because the videos in this case were far from clear, we
agree with Nash and hold that the district court erred in disregarding his testimony.
At summary judgment, construing the facts in the light most favorable to the nonmoving
party “usually means adopting the plaintiff’s version of the facts.” Coble v. City of Whitehouse,
634 F.3d 865, 868 (6th Cir. 2011). The Supreme Court has clarified, however, that a court must
view the facts in the light most favorable to the nonmoving party “only if there is a ‘genuine’
dispute as to those facts.” Scott, 550 U.S. at 380 (quoting Fed. R. Civ. P. 56(c)). A videotape
that “blatantly contradict[s]” the nonmoving party’s telling can render a factual dispute not
genuine. Id. Accordingly, “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Id.
Nash’s testimony was that he did not resist Bryce and Turner as they walked him out into
the prison yard. Specifically, Nash testified that as he walked through the hallway with Bryce
and Turner, he was bent forward because the officers had his arms held up behind his back in an
uncomfortable position, so that his face was forced downward towards the floor. Nash stated
that he was not struggling against Bryce and Turner before they decided to slam him to the
ground, but rather tried only to move his arms slightly downward to a less uncomfortable
position.
Contrary to the district court’s conclusion, the videos here do not come close to “blatantly
contradict[ing]” this testimony. Id. The videos show that as Nash walks through the hallway
with Bryce and Turner, he sways slightly back and forth; in fact, Nash concedes as much. But

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No. 24-1263 Nash v. Bryce, et al. Page 22
the fact that Nash was swaying slightly as he walked in the hallway does not contradict his
testimony, nor does it show that he was struggling against the officers. In fact, Turner testified
that he had no issues with Nash swaying from side to side. As Nash proceeds down the hallway
with Bryce and Turner toward the door to the prison yard, it does appear—as the magistrate
judge stated—that Nash was bent over at the waist. But that fact is not inconsistent with Nash’s
testimony either: Nash testified that the officers had forced him into this bent position because
of the way they were holding his arms behind and above him. From the videotape, we cannot
tell why Nash was bent over. We must “view any relevant gaps or uncertainties left by the
videos in the light most favorable to” Nash. LaPlante, 30 F.4th at 578 (citation omitted). So we
must assume in Nash’s favor that Bryce and Turner forced him into this position.
Likewise, we cannot see what happens at the very end of the hallway as Nash, Bryce, and
Turner walk out of the door to the prison yard in the moments before the takedown. Bryce’s and
Turner’s backs are to the camera, with their bodies largely blocking Nash from view. As Nash,
Turner, and Bryce exit the hallway together, all that we can see of Nash is part of his white shirt
and, for a brief moment, one of his arms. The video does not, in other words, show Nash “buck[]
back and forth” and then “ben[d] over at the waist suddenly,” as the magistrate judge stated.
R. & R., R. 39, PageID 440–41. To the contrary, we can barely see Nash at all.9
What happens just as Nash, Bryce, and Turner exit the hallway and enter the prison yard
is impossible to tell because the three men are entirely obscured by the open hallway door. Once
we can see Nash in the video, it does appear—as the magistrate judge stated—that his footsteps
shuffle slightly. But it is unclear whether Nash is shuffling because he is attempting to pull away
from the officers, or rather because the defendants had already begun to move Nash’s body as
they executed the takedown maneuver.
9One part of the video would seem to cut against the notion that Nash was struggling against Bryce and
Turner while walking through and out of the hallway. The video shows that as Nash, Turner, and Bryce enter the
hallway, a third officer follows them in. After watching them walk down the hallway for a moment, the officer
calmly turns back to close the door behind him. At an unhurried pace, the officer follows Nash, Bryce, and Turner
out as they open the door and exit the hallway to the outside. It appears that the officer might have sped up as he
reached the end of the hallway, but based on the timestamps shown on the videos, it seems that the officer did not
speed up until Bryce and Turner had already begun actively taking Nash to the ground. Had Nash been visibly
struggling against Bryce and Turner prior to the takedown, we might expect to see the third officer respond
differently. We can accordingly assume in Nash’s favor that the third officer did not see any cause for alarm.

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Based on the videotapes, it is possible that a reasonable jury could review the videos and
decide, like the magistrate judge and the district court, that it believes the defendants’
contentions that Nash had been struggling against them, triggering the takedown. But a
reasonable jury could also view the videotapes, listen to various testimony, and instead conclude
that Nash had not been struggling when Bryce and Turner decided to take him down. When
videotape evidence is subject to such reasonable debate, it is error for a court to grant summary
judgment based on its own interpretation of what the video shows. See Coble, 634 F.3d at 869–
70.
The magistrate judge’s focus on whether the videos “corroborate[d]” the defendants’
version of events accordingly reflects the wrong inquiry. R. & R., R. 39, PageID 441. In
assessing whether a video makes it necessary to disregard the nonmovant’s testimony, a court
should not ask whether the video makes the movant’s story more likely. Instead, a court must ask
whether the video evidence illustrates that the nonmovant’s version of events is so “blatantly
contradicted by the record” that “no reasonable jury could believe it,” thus making summary
judgment appropriate. Scott, 550 U.S. at 380. As we have explained, “[f]acts that are not
blatantly contradicted by the . . . recording remain entitled to an interpretation most favorable to
the non-moving party.” Coble, 634 F.3d at 870. So, instead of dismissing Nash’s testimony out
of hand, the magistrate judge should have carefully examined the video evidence, identified the
facts, if any, from Nash’s testimony that the magistrate judge thought the video evidence
blatantly contradicted, and then assumed the remaining facts in Nash’s favor.
Instead of conducting that inquiry, the magistrate judge appears to have overlooked other
record evidence that undercut any notion that the video evidence resolved this case. Crucially,
after Turner watched the videotapes in his deposition, he testified: “The camera doesn’t give a
good representation of the situation.” Turner Dep., R. 36-3, PageID 377. Further, the magistrate
judge’s statement that the videotape “corroborates” the defendants’ testimony seems to have
disregarded the fact that the defendants’ testimony was itself inconsistent. R. & R., R. 39,
PageID 441. For example, Turner explained that the takedown was prompted by Nash’s
throwing his head back, almost hitting Bryce in the face. Bryce, by contrast, made no mention of
Nash moving his head back, and instead testified that he executed the takedown maneuver
because Nash had actively turned towards him in an attempt to face him. (Turner also explicitly

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No. 24-1263 Nash v. Bryce, et al. Page 24
contradicted the notion that Nash had voluntarily turned towards Bryce, testifying that Nash was
turned around in the course of the takedown, not of his own volition.) It is accordingly difficult
to ascertain which version of events the magistrate judge believed the videos corroborated.
We thus hold that the district court erred in dismissing Nash’s testimony as being
contradicted by the video evidence. Having so concluded, we must still “determine the relevant
facts” for the purposes of analyzing Nash’s Eighth Amendment claim. Scott, 550 U.S. at 378.
With the appropriate standard in view—that is, construing the facts in the light most favorable to
Nash and relying on the videos only to the extent that they blatantly contradict Nash’s story—a
different set of facts emerges:
Nash smashed his food tray into another prisoner and then struggled against the
corrections officers as they tried to handcuff him. As Bryce and Turner began escorting Nash
out of the dayroom, with Nash’s hands now handcuffed behind his back, Nash was calling them
names and swearing at them. Turner and Bryce then walked Nash through the hallway and
outside. While in the hallway, Nash swayed back and forth slightly, but we cannot assume that
Nash’s swaying indicates that he was struggling against the officers. Nash then walked with his
torso bent over, but we assume that Nash was bent over because the officers were forcing him
into this position by holding his arms up behind his back. We cannot see what happened as
Bryce, Turner, and Nash walked through the hallway door to the prison yard, so we assume that
Nash tried only to adjust his arms back to a more neutral position. Bryce and Turner responded
to this minor movement by slamming Nash to the cement. Although the video shows that Nash
turned to his left and shuffled his feet as he, Bryce, and Turner exited the breezeway, we assume
that these movements were caused by the takedown and were not evidence of a struggle.
In short, construing the record in Nash’s favor, the record reflects that Bryce and Turner
chose to take Nash to the ground in response to his minor adjustment of his arms to a more
neutral position.
II. Qualified Immunity on Nash’s Eighth Amendment Claim
With the “relevant facts” in view, we turn to the question of whether the district court
erred in granting Bryce and Turner summary judgment on their qualified immunity defense.

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Scott, 550 U.S. at 378. To overcome the defendants’ qualified immunity defense, Nash “must
show that (1) the official[s] violated his constitutional rights, and (2) at the time of the violation,
it was ‘clearly established’ that the officer[s’] conduct would violate the constitution.” Heeter,
99 F.4th at 908 (quoting Palma v. Johns, 27 F.4th 419, 428 (6th Cir. 2022)). Examining both of
these issues, we hold that Bryce and Turner are not entitled to summary judgment on their
qualified immunity defense.
A. Constitutional Violation
“The Eighth Amendment prohibits the imposition of ‘cruel and unusual punishments’
upon prisoners.” Cordell v. McKinney, 759 F.3d 573, 580 (6th Cir. 2014). Although the
“maintenance of prison security and discipline may require that inmates be subjected to physical
contact actionable as assault under common law,” Combs v. Wilkinson, 315 F.3d 548, 556 (6th
Cir. 2002), prison officials nevertheless violate the Eighth Amendment when their conduct
“reflects an unnecessary and wanton infliction of pain,” Williams, 631 F.3d at 383 (citation
omitted). To show that Bryce’s and Turner’s use of force violated his Eighth Amendment rights,
Nash must “satisfy both an objective and a subjective component.” Id. The subjective
component “focuses on the state of mind of the prison officials.” Id. The determinative question
for this component is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992). The objective component asks whether the pain inflicted by the officers was
“sufficiently serious.” Williams, 631 F.3d at 383 (citation omitted).
1. Subjective Component
To determine whether a prison official had a sufficiently culpable state of mind, we
attempt to draw “inferences” to ascertain whether the officer’s use of force “could plausibly have
been thought necessary, or instead evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a known willingness that it occur.” Whitley v. Albers, 475
U.S. 312, 321 (1986). We look to factors such as “the need for the application of force, the
relationship between the need and the amount of force that was used, [and] the extent of injury
inflicted.” Id. (alteration in original and citation omitted). We also examine “the extent of the
threat” posed by the prisoner “to the safety of staff and inmates,” as the officers would

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reasonably have perceived it at the time, and “any efforts made to temper the severity of a
forceful response.” Id.
To begin, Nash has raised a genuine dispute of material fact as to whether Bryce and
Turner had “a plausible justification for applying any force” whatsoever to him. Cordell, 759
F.3d at 581 (emphasis added). As we have noted, construing the record in the light most
favorable to Nash, as Nash, Bryce, and Turner exited the hallway, Nash moved his arms slightly
downward to a more neutral position, closer to his body; he did not physically struggle or make
other sudden movements that could have been reasonably interpreted as an attempt to fight or
escape the officers. Bryce and Turner responded to Nash’s minor arm movement by slamming
him to the concrete, fracturing his ankle in two places. From this record, a reasonable jury could
conclude that Bryce and Turner had a sufficiently culpable state of mind—officers, of course,
may not tackle a prisoner to the ground, fracturing his ankle in two places, for no reason. See,
e.g., Peterson, 714 F.3d at 911 (noting that if a prisoner could show that an officer had no reason
to pull him from his cell and attack him, the prisoner would have raised a genuine dispute as to
the subjective intent prong); Cordell, 759 F.3d at 585–86 (explaining that we “have held in the
past that ‘striking a neutralized subject who is secured by handcuffs is objectively
unreasonable’” (quoting Schreiber v. Moe, 596 F.3d 323, 332 (6th Cir. 2010))).
Still, we recognize that an “official’s decision to use force is entitled to deference,”
Griffin v. Hardrick, 604 F.3d 949, 954 (6th Cir. 2010), considering the reality that prison
officials “must make their decisions in haste, under pressure, and frequently without the luxury
of a second chance,” Hudson, 504 U.S. at 6 (citation and internal quotation marks omitted). But
this deference does little for Bryce and Turner. Even assuming that Nash’s minor arm
movements gave Bryce and Turner “a reasonable basis for using some force” against Nash, a
reasonable jury could nonetheless conclude that the officers lacked “a reasonable basis for using
the amount of force that [they] did.” Cordell, 759 F.3d at 582. To the extent that Nash’s minor
movement reasonably caused Bryce and Turner some alarm, the “need for the application of
force” was nonetheless quite minimal because Nash was handcuffed and was not actively
struggling against the officers. Whitley, 475 U.S. at 321. Yet Bryce and Turner chose to respond

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to Nash’s movement with quite a considerable “amount of force”—they slammed him to the
concrete, inflicting a relatively severe injury. Id.
Indeed, we have previously concluded that a prisoner raised a genuine dispute of material
fact regarding his Eighth Amendment claim even when the prisoner’s movements gave an officer
more cause for alarm than Nash’s movement did here. In Cordell, a corrections officer placed a
prisoner in handcuffs and began escorting him to another area of a jail. 759 F.3d at 577. The
officer held the prisoner in an “escort position,” with the prisoner’s hands held behind his back
and upwards, towards his shoulders. Id. The prisoner alleged that as he and the officer
proceeded, the officer began pushing him from behind to force him to move faster. Id. So the
prisoner tried to turn around and face the officer to see what the officer was doing. Id. In
response, the officer rammed the prisoner head-first into a wall with significant force. Id. at
577–78.
Although we acknowledged that the prisoner’s attempt to turn and face the officer
justified some amount of force, considering that “prison officials may use appropriate force to
regain control of an aggressive inmate,” we nonetheless held that the prisoner had raised a
genuine dispute of material fact regarding the subjective component of his Eighth Amendment
claim. Id. at 581. We first noted the “severity” of the prisoner’s injuries, which included
whiplash and a laceration that required stitches. Id. at 582–83. Next, we emphasized that, at the
time of the use of force, the extent of the threat posed by the prisoner was minimal, considering
that he was in a “submission hold,” with his arms “cuffed behind his back.” Id. at 583. We
elaborated: “It is hard to understand—even being deferential to [the officer’s] split-second
judgment—how a prisoner in such an incapacitated position would present a sufficient threat to
justify the extreme use of force” that the prisoner had accused the officer of using. Id.
Here, construing the record in the light most favorable to Nash, Nash’s movements
before Bryce’s and Turner’s takedown presented less cause for concern than the more aggressive
and noncooperative actions of the prisoner in Cordell. Nash only slightly readjusted his arms.
And, like the prisoner in Cordell, Nash was handcuffed and in a submission hold, with his arms
being securely held up by Bryce and Turner, at the time Bryce and Turner chose to take him to
the cement. As in Cordell, then, it is difficult to understand how Nash could have presented a

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“sufficient threat” to justify Bryce’s and Turner’s choice to take him forcefully to the cement,
even with deference given to the officers’ “split-second judgment.” Id.
Bryce’s and Turner’s attempts to distinguish Cordell are unpersuasive. Bryce and Turner
emphasize that, at the time of the takedown, Nash was outside in a prison yard filled with other
inmates, not in a hallway occupied only by other corrections officers. See id. at 583. True
enough, the “extent of the threat to the safety of staff and inmates,” Whitley, 475 U.S. at 321,
might indeed be higher where a prisoner is in the vicinity of other inmates. But it does not
follow that Bryce’s and Turner’s use of force was therefore so plainly reasonable as to warrant
summary judgment in their favor. For one thing, although Nash was outdoors in the general
vicinity of other prisoners, the video reflects that all the prisoners were a considerable distance
away. For another, Nash’s movement that triggered the takedown was slight. A reasonable jury
could conclude that the mere fact of being in a prison yard does not justify exerting significant
force against a prisoner who makes a minor movement.
Bryce and Turner next argue that, unlike in Cordell, there is no clear evidence that either
officer was upset or agitated at the time he chose to take Nash to the ground. See Cordell, 759
F.3d at 584 (noting that the officer was “aggressive” to the prisoner before the use of force and
remained “agitated” afterward). We have never held, however, that such clear evidence of the
required mental state is necessary or dispositive. Cf. Whitley, 475 U.S. at 321 (noting that the
court can draw “inferences” regarding an officer’s mental state based on several factors). In any
event, this case is not devoid of clear evidence suggesting that Bryce or Turner had a sufficiently
culpable mental state. Turner testified that Nash had been swearing at Bryce and Turner as they
walked him through the prison and that Bryce had been “visibly upset” by Nash’s behavior just
prior to taking Nash down. Turner Dep., R. 36-3, PageID 353. Turner further commented that
he and Bryce had decided to use force against Nash in part because they were outside and in
front of other inmates, explaining that he and Bryce did not want to “g[ive] off the impression
that [they were] weak, [they] let anybody do what they want.” Id. at PageID 381–82.
A reasonable jury could infer from these comments that the takedown of Nash might have
stemmed from something other than purely an attempt to use “appropriate force to regain control
of an aggressive inmate.” Cordell, 759 F.3d at 581.

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We accordingly hold that Nash has raised a genuine dispute of material fact regarding the
subjective component of his Eighth Amendment claim.
2. Objective Component
We turn next to the objective component of Nash’s Eighth Amendment claim. This
component requires us to ask if Nash has raised a genuine dispute of material fact as to whether
“the pain inflicted” by Bryce and Turner was “sufficiently serious.” Id. at 580 (citation omitted).
This component is “contextual and responsive to ‘contemporary standards of decency.’”
Hudson, 503 U.S. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)).
Nash has raised a genuine dispute of material fact regarding the objective prong of his
Eighth Amendment claim. The record shows that Bryce and Turner took Nash to the cement
with force sufficient to fracture his foot in two places, requiring him to wear a cast for several
weeks. A reasonable jury could conclude, based on the extent of Nash’s injuries, that the pain
inflicted by Bryce and Turner was “sufficiently serious.” Cordell, 759 F.3d at 585; see also id.
at 586 (noting that the objective component was satisfied where the prisoner suffered “rather
significant injuries”); Griffin, 604 F.3d at 954 (concluding that the objective component was
satisfied where the prisoner had “suffered serious pain”).
B. Clearly Established Right
To overcome the defendants’ qualified immunity defense, Nash ordinarily would need to
show that it was “clearly established” in April 2021 that the defendants’ use of force would
violate his Eighth Amendment rights. Mercer v. Athens County, 72 F.4th 152, 164 (6th Cir.
2023). For a constitutional right to be clearly established, the “contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.” Burwell v. City of Lansing, 7 F.4th 456, 476 (6th Cir. 2021) (citation omitted).
We need not determine whether Nash’s Eighth Amendment rights were clearly
established at the time of Bryce and Turner’s use of force, however, because the defendants have
forfeited the clearly established prong of their qualified immunity defense. Bryce and Turner did
not raise any argument whatsoever, either in their summary judgment briefing in the district

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court or in their answering brief on appeal, as to the clearly established prong, instead focusing
entirely on the question of whether Nash had shown a violation of his constitutional rights. We
accordingly hold that Bryce and Turner have forfeited the clearly established prong of their
qualified immunity defense by failing to meaningfully contest the issue. See, e.g., Cockrun v.
Berrien County, 101 F.4th 416, 419–20 (6th Cir. 2024) (concluding that the defendants had
forfeited qualified immunity by mentioning the defense in their summary judgment briefing only
“in a perfunctory manner”); Watkins v. Healy, 986 F.3d 648, 666 (6th Cir. 2021) (explaining that
because the defendant “failed to raise a qualified-immunity argument to the district court or in
his brief” on appeal, he had “thus forfeited the issue”); Ashford v. Univ. of Mich., 89 F.4th 960,
975 (6th Cir. 2024) (holding that considering the defendants’ “scant treatment” of the clearly-
established prong of qualified immunity, the defendants “forfeited the argument that our
precedent had not clearly established” the plaintiffs’ constitutional rights).10
CONCLUSION
For all the reasons stated above, we reverse the district court’s order granting the
defendants’ motion for summary judgment and remand this case for further proceedings
consistent with this opinion.
10Contrary to the dissent’s logic, our conclusion that Bryce and Turner have forfeited the clearly
established prong of their qualified immunity argument is not at odds with our resolution of Nash’s arguments
regarding whether the findings from the Michigan major misconduct hearing should have preclusive effect on this
litigation. Regarding preclusion, Nash provided arguments in his brief on appeal that were themselves sufficient to
conclude that preclusion is inappropriate. See supra n.4. Bryce and Turner have provided no argument regarding
the clearly established prong of qualified immunity at all.

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_________________
DISSENT
_________________
READLER, Circuit Judge, dissenting. Taken at face value, this is not a difficult case.
Following a timely review of the events at hand, an administrative law judge found that inmate
Brent James Nash improperly resisted and pulled away from two prison officers as the officers
escorted Nash toward a housing unit door leading to the prison yard. On that basis, the ALJ
found Nash guilty of assault and battery of a staff member. In subsequent federal litigation, a
magistrate judge honored that finding, as did the district court judge when reviewing the
magistrate judge’s decision. And if Nash resisted the officers, as these jurists concluded, all of
us seem to agree that the officers were entitled to regain control over him, including by taking
him to the ground. Maj. Op. 27–28.
Yet the majority opinion ultimately denies the officers qualified immunity. In undoing
the good work of all three tribunals to have considered Nash’s case, the majority opinion
commits two fundamental errors. One, it embraces arguments Nash never made—points that,
even had Nash raised them himself, in the end are at odds with the law and the record. Two, it
fails to honor our decision in Peterson v. Johnson, 714 F.3d 905 (6th Cir. 2013), which otherwise
easily resolves today’s case. Contrary to the majority opinion, I would affirm the district court.
A. The facts necessary to resolve this appeal are not in dispute. Nash assaulted a fellow
inmate in the prison cafeteria. Officers Austin Bryce and Calvin Turner intervened, taking Nash
to the ground. After a brief struggle, the officers placed handcuffs on Nash. The officers then
escorted Nash out of the cafeteria. With Nash in hand, the officers traveled along a hallway that
led to the housing unit’s front door, which opened into the prison yard where other inmates were
present. Purportedly because Nash began pulling away from their hold, the officers lost their
grip on Nash. That prompted the officers to initiate a takedown. In the process, Nash fractured
his ankle in two places.

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Nash’s conduct resulted in him being issued a violation for Class I Major Misconduct.
The violation consisted of two underlying charges, one for assaulting a prisoner in the cafeteria,
and, relevant here, another for assaulting a staff member near the housing unit door. See Class I
Misconduct Hr’g Rep., R. 36-4, PageID 397.
Given the severity of Nash’s misconduct, Bryce prepared a written “Misconduct Report”
detailing the specific allegations underlying the respective charges.
Id.; see Mich. Dep’t of Corr., Policy Directive 03-03-105, Prisoner Discipline (2018), at 1,
https://perma.cc/U5ZA-PXAX [hereinafter Policy Directive 03-03-105] (“A Misconduct Report
shall be written if the behavior constitutes a non-bondable Class I misconduct.”). In the section
titled “Describe Violation,” the report described two distinct violations, occurring at different
points in time. First, the charging document alleged that at “1735” hours, Nash assaulted a
prisoner in the cafeteria by hitting the prisoner with a food tray. Class I Misconduct Hr’g Rep.,
R. 36-4, PageID 397. Two minutes later, at “1737” hours, Nash, having been removed from the
cafeteria, then assaulted a staff member. Id. As Bryce and Turner “were escorting Prisoner
Nash 406338 to Housing Unit 7,” Nash “began actively resisting and lung[ing] away from
[Bryce] at the Housing Unit 6 front door entrance.” Id. Bryce “placed” Nash “on the ground to
gain compliance.” Id. Upon being stood up, Nash was “escorted . . . to Housing Unit 7 with no
further incident.” Id. The report, in short, was precise in its allegations regarding the two assault
charges against Nash: The first involved assaulting a prisoner in the cafeteria, and the second

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involved assaulting an officer as Nash resisted the officer near the front door to Unit 6. Id.; see
also id. at PageID 418 (defining “[a]ssault and [b]attery” of staff as any “physical resistance or
physical interference with an employee”).
Before the charging document was finalized, it was evaluated by a reviewing officer to
verify its scope and nature. Id. at PageID 397; Policy Directive 03-03-105, supra, at 7 (“If the
reviewing officer determines a Misconduct Report is not appropriate or not properly written, s/he
may return the report to the staff member who wrote it for rewriting.”); id. at 8 (stating that the
review “shall include . . . [e]xamining the Misconduct Report to determine that the charge is
appropriate”). Nash was given a copy of the document prior to his hearing. Class I Misconduct
Hr’g Rep., R. 36-4, PageID 397; see also Policy Directive 03-03-105, supra, at 3 (explaining that
a “[p]risoner receives a copy of the misconduct report after review is complete”). He later
pleaded not guilty to the charges. Class I Misconduct Hr’g Rep., R. 36-4, PageID 393.
Issuance of the misconduct report triggered a mandatory hearing deadline. See Policy
Directive 03-03-105, supra, at 5 (“[T]he hearing shall be conducted within 14 business days.”).
Consistent with that deadline, Nash, representing himself, contested the two charges during a
timely hearing before an ALJ. Class I Misconduct Hr’g Rep., R. 36-4, PageID 393. There, the
ALJ considered several pieces of evidence, including a report from a hearing investigator, prison
video of the incident, video stills, and statements from both Bryce and Nash. Id. With respect to
the staff assault charge in particular, Bryce, in line with the charging document, indicated that
Nash had “actively resisted and lunged away from the escorting officers” near the housing unit
door. Id. at PageID 396. Specifically, Bryce explained, as Nash was being “escorted from the
unit” and out the door, he “lunged away from the officers.” Id. at PageID 395. The ALJ also
received and reviewed video and video stills of the events at the unit door. Id. at PageID 393,
408–09. At the hearing’s close, the ALJ, in resolving the staff assault charge, found that Nash,
while heading toward the unit door, “resist[ed] by pulling away, walking side to side, and then
turning around towards the escorting officers,” at which point the officers took him to the
ground. Id. at PageID 396. These actions, the ALJ concluded, “interfered with the officers’
attempts to . . . escort him from the unit.” Id. Accordingly, Nash was found guilty of the

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charged offense. Id. (“The charge is upheld.”). The ALJ also found Nash guilty of the separate
charge of assaulting a prisoner. Id.
Id. at PageID 393; see also id. at PageID 418 (Describing Class I Misconduct violations for
assault on a prisoner as using reporting code “007” and assault on staff as using code “008”).
Nash did not appeal this decision, either within the prison or to state court. See Mich. Comp.
Laws §§ 791.254, 791.255; Maj. Op. 7.
Turn now to federal court, where these same findings would again take center stage.
With the assistance of counsel, Nash sued the officers for excessive force tied to the injuries he
suffered after being taken to the ground by the housing unit door leading to the prison yard. The
officers asserted qualified immunity, noting the ALJ’s findings that Nash had “resisted” and
“interfered with” the officers near the unit door, thereby justifying their actions. Giving these
findings preclusive effect, the magistrate judge rejected Nash’s excessive force claims. See R. &
R., R. 39, PageID 438; see also id. at PageID 447 (“After considering the fairness of the
misconduct hearing here and the accuracy of the factual findings from that hearing, the Court
agrees with defendants that Nash should not be allowed to relitigate whether he resisted
defendants.”). Reviewing that decision, the district court judge similarly referenced the
administrative record and the ALJ’s conclusions in rejecting Nash’s contention “that the ALJ’s
findings are not supported by the evidence.” Order, R. 42, PageID 712; see also id.
(emphasizing “the ALJ’s findings that [Nash] ‘. . . pulled away from, and turned towards, the
officers and the officers had to place him on the ground to gain control of him’” near the housing
unit door).
1. We are bound by the ALJ’s findings. As we have explained, factual findings from
Michigan’s major-misconduct hearings customarily are entitled to preclusive effect in federal
court. Peterson v. Johnson, 714 F.3d 905, 908 (6th Cir. 2013). That is so when, as in Peterson,
the administrative proceeding at issue satisfies the requirements laid out in University of
Tennessee v. Elliott, 478 U.S. 788 (1986). These include (1) whether the state agency acted in a

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judicial capacity; (2) whether the hearing officer resolved a disputed issue of fact properly before
him; and (3) whether the party had an adequate opportunity to litigate the factual dispute.
Peterson, 714 F.3d at 912–14 (citing Elliott, 478 U.S. at 799). If those requirements are met, we
give the administrative finding the same preclusive effect it would be afforded by Michigan
courts. And Michigan courts, for their part, afford agency factfinding preclusive effect when
“the parties had a full and fair opportunity to litigate the issue,” and where “a question of fact
essential to the judgment was actually litigated” and decided. Id. at 914. Deeming all factors
satisfied, we agreed in Peterson that the ALJ’s factual findings there precluded “a contrary
finding in federal court.” Id. at 917.
Given its deep significance to resolving Nash’s case, the similarities between Peterson
and today’s dispute bear particular emphasis. In Peterson, a Michigan prisoner (Peterson)
allegedly assaulted an officer by pulling the officer’s hand inside a prison cell, putting it at risk
of being crushed by the cell door. Id. at 914. In response, prison officers initiated a takedown,
injuring Peterson in the process. Id. at 908. The incident was captured on video. Id. at 909.
Due to this conduct, Peterson was charged with assault on a staff member and subjected to a
major misconduct hearing. Id. at 908. At the hearing, Peterson contested the charge, claiming
that the officer instigated the contact as an excuse to abuse Peterson. Id. at 909–10. Peterson
also reviewed “the evidence against him” save for the video, which was marked confidential for
prison safety reasons. Id. at 909. At the conclusion of the hearing the ALJ, relying heavily on
the video, determined that Peterson instigated the incident by grabbing the officer’s hand and,
accordingly, found Peterson guilty of assault. Id. Later, Peterson brought a § 1983 claim,
asserting that the officers violated his Eighth Amendment rights when they took him down
without justification. Id. at 908. Again, he claimed officers instigated the attack. Id. Yet we
concluded that Peterson was not free to relitigate this point, as he was bound by the ALJ’s
findings. Id. at 917. In doing so, we first noted that the ALJ acted in a judicial capacity by
resolving the dispute and issuing a decision that could be appealed to state court. Id. at 912.
Next, we explained that Peterson was afforded a plethora of statutory protections, ensuring that
he had an adequate opportunity to litigate. Id. at 913. Finally, we determined that Michigan
courts would likewise afford the ALJ’s findings preclusive effect. Id. at 917.

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Nash’s case mirrors Peterson in every legally significant way, including the fact that both
prisoners were subjected to the same Michigan inmate disciplinary scheme. That is not my
conclusion alone. At oral argument, it bears emphasizing, Nash’s counsel agreed that “Peterson
is very similar” to the case at hand. Oral Arg. Tr. 7:01. In light of Peterson, a “very similar”
precedent, we must similarly give preclusive effect to the ALJ’s finding that Nash resisted the
officers near the housing unit door. See Martin v. Franklin Cap. Corp., 546 U.S. 132, 139
(2005) (noting “the basic principle of justice that like cases should be decided alike”).
Turn then to the Peterson framework as applied to Nash’s case. With respect to
Peterson’s first two preclusion factors, which largely encompass Michigan’s second factor, all
agree that the ALJ here “acted in a judicial capacity” by considering record evidence, allowing
the parties to be heard, and issuing a decision that Nash could have appealed in state court.
Peterson, 714 F.3d at 912; Maj. Op. 10. And, notably, like the ALJ in Peterson, Nash’s ALJ
resolved the factual dispute by finding that Nash resisted the officers. See Peterson, 714 F.3d at
913; Maj. Op. 7.
That leaves the third Peterson factor, which overlaps with Michigan’s remaining factor—
whether Nash “had an adequate” (or, in Michigan’s phrasing, “full and fair”) “‘opportunity to
litigate’ the factual dispute.” Peterson, 714 F.3d at 913 (quotation omitted); Monat v. State
Farm Ins. Co., 677 N.W.2d 843, 845 (Mich. 2004). He did. To begin, Nash was afforded the
same “plethora of statutory protections” as Peterson, including the opportunity to present
evidence, submit written arguments, use rebuttal evidence to counter the evidence presented
against him, and examine witnesses via questions submitted to the hearing officer. Peterson, 714
F.3d at 912; see also Mich. Comp. Laws § 791.252(a), (b), (d), (e). On top of that, Nash (like
Peterson) retained the ability to appeal the ALJ’s decision within the agency, and, if needed, to
state court. See Mich. Comp. Laws §§ 791.254, 791.255. Together, these protections fairly
ensured he had a full and fair opportunity to litigate the issue. Peterson, 714 F.3d at 913; id. at
912 (“[T]here is a whole raft of judicial-type protections available to Michigan prisoners in
major misconduct hearings.”). And Nash, understandably, was sufficiently motivated to do so.
See Monat, 677 N.W.2d at 847 (discussing that a “full and fair opportunity to litigate” includes
having “sufficient incentive” to contest the issue). As in Peterson, Nash faced discipline and

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sanctions if found guilty of the charge. Class I Misconduct Hr’g Rep., R. 36-4, PageID 393. A
finding that he committed the offense would result in the loss of privileges and detention. See
Policy Directive 03-03-105, supra, at 20 (describing discipline for a Class I Misconduct offense);
Class I Misconduct Hr’g Rep., R. 36-4, PageID 393 (finding Nash guilty and sentencing him to
loss of privileges for forty-six days and twenty days of detention). That stark reality in
conjunction with other available information plainly gave Nash, like Peterson, an “incentive to
vigorously contest” the charge he faced. Peterson, 714 F.3d at 915 (holding that a prisoner “had
incentive to vigorously contest [the Officer’s] account” because “losing the argument could
mean . . . thirty days of detention”).
And, like Peterson, contest he did. Before the hearing, Nash was provided a copy of the
misconduct report, which, again, served as the charging document for the alleged Class I Major
Misconduct Violations—assaulting a prisoner, and, separately, assaulting a staff member. Class
I Misconduct Hr’g Rep., R. 36-4, PageID 397. With respect to the staff member assault charge,
the report indicated that Nash resisted officers “at the Housing Unit 6 front door entrance”
leading to the prison yard. Id. He pleaded not guilty to both charges. Id. at PageID 393. At his
hearing, Nash was given an opportunity to review much of the evidence and, in turn, made a
statement himself. As to the staff misconduct charge, Nash explained to the ALJ that he “d[id
not] [know] how [he] was supposed to pull away from [the officers]” near the unit door because
his ankle was already broken. Id. at PageID 396; see also Peterson, 714 F.3d at 915 (affording
preclusive effect to ALJ’s fact finding on issue contested by prisoner). But the ALJ concluded
that Nash’s explanation was “not credible.” Class I Misconduct Hr’g Rep., R. 36-4, PageID 396.
Instead, the ALJ “upheld” the charge against Nash for resisting the officers at the unit door. Id.
(upholding charge for “ASSAULT AND BATTERY (Staff Victim)”). The ALJ did the same for
the prisoner assault charge. Id. at PageID 395–96 (upholding charge for “ASSAULT AND
BATTERY (Prisoner Victim)”); see also id. at PageID 393 (finding Nash guilty of “Charge No.
1” corresponding to “Reporting Code 007” and guilty of “Charge No. 2,” “Reporting Code
008”); id. at PageID 418 (explaining a charge for assault on a prisoner uses reporting code “007”
and assault on staff uses code “008”).

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Against this backdrop, it becomes evident that a Michigan court would grant preclusive
effect to the ALJ’s findings that Nash resisted the officers while being escorted near the unit
door. We too must respect that jurist’s firsthand conclusions and afford them preclusive effect
today, as we did in Peterson. See, e.g., Peterson, 714 F.3d at 914 (giving preclusive effect to
ALJ finding “that [the prisoner] grabbed [the officer’s] hand and put it in danger of being
crushed” because “this charge was submitted to the hearing officer for resolution, and it was
resolved”).
2. The majority opinion sees things otherwise. To its mind, Michigan courts would not
afford the ALJ’s factfinding preclusive effect because Nash lacked “a full and fair opportunity”
to litigate the issues. Maj. Op. 12. That is so, the majority opinion says, for three distinct
reasons. One, Nash was denied access to certain pieces of evidence. Id. at 14. Two, Nash lacked
counsel during his administrative hearing. Id. at 19. And three, Nash “lacked sufficient
incentives to litigate” whether he resisted the officers near the unit door. Id. at 16. As measured
by Peterson, each argument fails.
a. Begin with the majority opinion’s first assertion: that Nash lacked a full and fair
opportunity to litigate because “he was ‘not provided an opportunity to review any of the
evidence relied on’ by the hearing officer.” Maj. Op. 12 (quoting Appellant Br. 44). This is a
difficult basis upon which to deny preclusive effect to the ALJ’s findings when, as the record
reveals, Nash never requested that evidence before his hearing. The ALJ’s report, prepared at
the close of Nash’s hearing, explains that “Nash did not request . . . witnesses[] or documents
[to] review.” Class I Misconduct Hr’g Rep., R. 36-4, PageID 393. Nash cannot complain now
about the lack of access to evidence that he did not seek to begin with. See Peterson, 714 F.3d at
916. The majority opinion attempts to refute this conclusion by pointing to an undated letter
from Nash, in which he acknowledged that he had “received [the] misconduct report” and then
asserted that he “would like ALL evidence.” Class I Misconduct Hr’g Rep., R. 36-4, PageID
394. But the undisputed evidence at summary judgment shows this letter was sent after his
hearing. That fact is confirmed twice over, once by the ALJ’s statement that Nash made no such
pre-hearing request, and again by the letter’s request for evidence that had not been marked
confidential at the hearing. Id. at PageID 393; id. at PageID 394 (requesting exhibits “Not

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Marked confidential”). And, needless to say, the absence of evidence on when the letter was
sent cannot create a genuine dispute of material fact. See Feagin v. Mansfield Police Dep’t, ---
F.4th ---, 2025 WL 2621665, at *8 (6th Cir. Sept. 11, 2025).
Even then, despite Nash’s failure to request evidence, the ALJ nevertheless reviewed the
record with Nash before the hearing commenced. Class I Misconduct Hr’g Rep., R. 36-4,
PageID 393 (noting that the “Misconduct Report [was] Read to and Discussed with Prisoner”
and that the “Hearing Investigation [was] Read to and Discussed with Prisoner”). As a factual
matter, it follows, Nash was not barred from reviewing “any of the evidence relied on by the
hearing officer,” as the majority opinion leads one to believe. Maj. Op. 12.
True, the video of the incident at issue was marked confidential due to security concerns,
meaning, as in Peterson, Nash did not review it. Class I Misconduct Hr’g Rep., R. 36-4, PageID
395; id. (explaining that video recordings were marked confidential “for facility safety and
security and to avoid disclosure of camera locations and capabilities”). And perhaps, as the
majority opinion surmises, the video recordings were “arguably the most crucial pieces of
evidence underlying the dispute.” Maj. Op. 13. Yet as a matter of settled precedent, a lack of
access to video recordings could not, as a matter of law, deprive Nash of a “full and fair
opportunity to litigate.” Peterson, 714 F.3d at 916–17. Again, in Peterson, video captured
Peterson assaulting an officer by pulling the officer’s hand inside a prison cell, putting it at risk
of being crushed by the cell door. Id. at 914. Like Nash, Peterson was charged with assault on a
staff member and subjected to a major misconduct hearing. Id. at 908. At the hearing, however,
the video footage was marked confidential in light of prison security concerns, meaning Peterson
was unable to review it. Id. at 909 (explaining the video was deemed confidential because of a
concern that allowing the video’s “actual viewing would reveal the limitations and capabilities”
of the device). Based almost exclusively on the weight of the video evidence, the ALJ found
Peterson guilty of assaulting the guard. Id. Yet even without access to this critical video, we
held that Peterson had a fair chance to contest the matter, and, in turn, afforded the ALJ’s
findings preclusive effect. Id. at 916–17. The same should be true here.

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Despite the plain similarities between these two cases, the majority opinion portrays “the
limitations on Nash’s access to evidence [as] substantially greater than those on” Peterson. Maj.
Op. 14 (emphasis added). But those differences, the majority opinion later explains, boil down
to the fact that in Peterson, unlike here, the inmate was provided a written time-stamped log of
what was on the video and, in addition, had the ALJ verbally describe the video’s contents. Maj.
Op. 14–15; see also Peterson, 714 F.3d at 909. But this distinction lacks any legal significance.
In Peterson, it bears noting, the panel observed the video log’s existence only in its discussion of
the facts. That background observation was neither mentioned in, nor a basis for, the panel’s
legal analysis and conclusion that Peterson had a “full and fair opportunity to litigate” the matter.
Rather, Peterson turned on the broad statutory protections afforded to prisoners in this
disciplinary setting, including the ability to appeal to state court. Peterson, 714 F.3d at 915–16.
Nash received these same protections. See generally Mich. Comp. Laws § 791.252. Just as in
Peterson, Nash “was entitled to raise [his evidentiary] concerns in an appeal to state court and, if
the state court[] . . . failed to resolve his concerns, to appeal to the U.S. Supreme Court.”
Peterson, 714 F.3d at 916. And, critically, had Nash taken advantage of these opportunities, the
“state court would have automatically made the video part of the record.” Id. It follows that
Nash’s “failure to use those procedures,” as in Peterson, cannot “be considered proof that the
procedures themselves were somehow inadequate.” Id. At bottom, if Nash had concerns about
what evidence he was given, “this is not the forum in which to first bring those complaints.” Id.
This holding, and not Peterson’s fact section, is what directs us here. An observation
(like the existence of a timestamped log in Peterson) “that does nothing to determine the
outcome . . . has no binding force.” Wright v. Spaulding, 939 F.3d 695, 701 (6th Cir. 2019). Put
another way, controlling caselaw may not be swept aside merely because legally immaterial
factual distinctions exist. See Gonzales v. Raich, 545 U.S. 1, 20 (2005) (explaining that when a
fact did not “play any role in the Court’s analysis” in an earlier case, attempts to distinguish the
case on that basis “do[es] not diminish the precedential force” of the prior case); Graves v.
Malone, 810 F. App’x 414, 424 (6th Cir. 2020) (explaining that minor “factual distinctions
between . . . cases do not alter the certainty about the law . . . .” (quotation omitted)).

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Seizing on our later decision in Roberson v. Torres, 770 F.3d 398 (6th Cir. 2014), as does
the majority opinion, makes little difference. Maj. Op. 14–16. Just as “[o]ne panel of this court
may not overrule the decision of another panel,” United States v. Ferguson, 868 F.3d 514, 515
(6th Cir. 2017), neither can Roberson’s gloss on Peterson’s facts alter in the slightest how
Peterson was actually decided, let alone its controlling force. Nor, in any event, would the
application of Roberson lead to a different result here. True, Roberson, noted that Peterson had
access to a time-stamped description of the video. 770 F.3d at 404. Yet Roberson still
recognized that Peterson was given an adequate opportunity to litigate due to the “plethora of
statutory protections” afforded to prisoners, the same protections afforded Nash. Id. (quoting
Peterson, 714 F.3d at 913).
The majority opinion’s reliance on Roberson is unavailing for other reasons too. For one,
Roberson barely touched on the preclusion issue and instead remanded the question for
consideration by the district court, making no holding of its own. Id. at 405. For another,
Roberson is a far cry from this case. There, unlike here, the ALJ, among other unusual actions,
“refused to review the alleged video of the incident” for herself. Id. We thus remanded the case
to the district court to consider the propriety of that decision by the ALJ, as well as the “basis for
[the ALJ’s] factual findings.” Id. Conspicuously absent from Roberson’s list of relevant
considerations on remand was the prisoner’s access to video evidence. At day’s end, because
the facts before us closely resemble those in Peterson in all legally significant respects, our
decision should follow suit.
With all other avenues closed, the majority opinion lastly takes refuge in its “sense of
justice and equity.” Maj. Op. 16 (quoting Roberson, 770 F.3d at 405). Rather than relying on
one’s idiosyncratic “sense” or obscure notions of “equity,” I would instead follow binding
precedent. Any other approach would permit courts to flout binding case law based on little
more than a whim, deeply undermining our system of precedent. See Thornburgh v. Abbott, 490
U.S. 401, 427 (1989) (Stevens, J., concurring in part and dissenting in part) (explaining that the
“casual discarding . . . of considered precedent ill serves the orderly development of law”).
Regrettably, that is the exact tack employed by the majority opinion in disregarding Peterson.

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b. Consider next the majority opinion’s reliance on the fact that Nash lacked counsel
during the administrative proceedings. That is an odd point to raise considering that Nash
himself has never done so. Nash failed to complain about his lack of legal representation during
his proceeding before the ALJ. See generally Class I Misconduct Hr’g Rep., R. 36-4. He did not
do so in federal court before the magistrate judge, even with the assistance of counsel. Instead,
he and his counsel focused exclusively on the validity of the ALJ’s findings regarding the charge
that he resisted officers near the unit door. Resp. Defs.’ Mot. Summ. J., R. 36, PageID 200–02
(arguing that the ALJ’s findings should not be given preclusive effect because they were
inaccurate). Nor did he complain about his lack of counsel with the district court when, again
with the benefit of counsel, he contested the magistrate judge’s ruling against him. Obj. R. & R.,
R. 40, PageID 478–79 (same). Here too, Nash failed to mention the issue in either his briefing or
during oral argument, where he and counsel focused instead on the fact that the ALJ’s findings
were not consistent with the evidence. Appellant Br. 43; see also Oral Arg. Tr. 0:01–12:22.
Nash has thus forfeited the point. See Joseph Forrester Trucking v. Dir., Off. of Workers’ Comp.
Programs, 987 F.3d 581, 593 (6th Cir. 2021) (noting our practice of enforcing forfeiture at all
three stages).
We cannot raise it on his behalf. “[W]e rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of matters the parties present.” Greenlaw
v. United States, 554 U.S. 237, 243 (2008). In other words, no matter the theories we might
conjure up on a party’s behalf, the longstanding party presentation rule confines us to
considering only the arguments raised, not those we could imagine. See NASA v. Nelson, 562
U.S. 134, 147 n.10 (2011) (“The premise of our adversarial system is that appellate courts do not
sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.” (quotation omitted)). This settled
principle has understandable justifications. It exists to preserve our fundamental nature as
neutral arbiters. See United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020) (“[C]ourts are
essentially passive instruments of governments. They do not, or should not, sally forth each day
looking for wrongs to right.” (citation and quotation omitted)). It ensures that the opposing party
is on notice to respond to the issue, and that the district court has the chance to resolve it in the
first instance. See Gray v. State Farm Mut. Auto. Ins. Co., 145 F.4th 630, 651–52 (6th Cir. 2025)

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(Readler, J., dissenting). And it affords us the benefit of the parties’ (and the district court’s)
views on an issue before pronouncing an outcome, which helps protect against the creation of
accidental or mistaken law. Cf. Sineneng-Smith, 590 U.S. at 376 (vacating and remanding a
decision “for an adjudication of the appeal attuned to the case shaped by the parties rather than
the case designed by the appeals panel”). After all, as each of us should recognize, a “dose of
judicial humility requires acknowledging that even seemingly straightforward legal issues can
have hidden wrinkles.” Su v. Med. Staffing of Am., LLC, No. 22-1290, 2023 WL 3735221, at *5
(4th Cir. May 31, 2023) (Richardson, J., dissenting) (observing that “[a]ppellate courts acting sua
sponte and without the benefits of the adversarial system can and do make serious errors”
(quoting Ronald J. Offenkrantz & Aaron S. Lichter, Sua Sponte Actions in the Appellate Courts:
The “Gorilla Rule” Revisited, 17 J. App. Prac. & Process 113, 129 (2016))); see also Rhodes v.
Stewart, 488 U.S. 1, 5 (1988) (Marshall J., dissenting) (explaining that briefing of an issue “leads
to greater accuracy in [the Court’s] decisions” and serves to reduce “the inevitable incidence of
error”).
These longstanding limits on judicial power notwithstanding, the majority opinion deems
the issue regarding lack of counsel at Nash’s administrative hearing preserved simply because
Nash, in his appellate brief, recited the “full and fair” prong articulated in Peterson before
making a completely different argument about his inability to review video evidence. Maj. Op.
12 n.4. That Nash somehow preserved all possible “full and fair” arguments just by invoking
threshold legal language is difficult to accept. The majority opinion’s understanding of our
preservation requirement is at odds with how we have historically applied the principle, which
requires that a party “argue or explain how that standard or those elements were satisfied” in
their case. United States v. Kelso, 468 F. App’x 551, 556 (6th Cir. 2012); Orchano v. Advanced
Recovery, Inc., 107 F.3d 94, 99 (2d Cir. 1997) (“[R]ecitation of the applicable . . . legal standard,
standing alone, is normally not sufficient to permit appropriate appellate review.”). The rule has
cemented itself for good reasons. After all, employing the majority opinion’s unprecedented
approach would forgive forfeiture in virtually every case as to virtually any argument we might
conceive, so long as a party has invoked a general legal principle. Contra Zakora v. Chrisman,
44 F.4th 452, 466 (6th Cir. 2022) (reasoning that because the defendants “did not make any
argument at all” as to the clearly established prong of qualified immunity in their brief on appeal,

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but rather only cited the legal test, they had “forfeited the argument as an appellate issue”);
Courser v. Mich. House of Representatives, 831 F. App’x 161, 182 (6th Cir. 2020) (holding that
the “bare recitation” of the “elements of tortious interference with a business relationship” “is not
enough to preserve [that] claim”). Imagine the mischief this rule invites. Under the majority
opinion’s logic, a defendant in a negligence action who merely recites negligence’s four
elements preserves the defenses of breach, causation, and damages even if he devoted the
entirety of his litigation efforts on the argument that he did not owe the plaintiff a duty of care.
In the end, a world rid of traditional preservation and notice requirements would allow a court to
conjure up an argument on any legal issue at any time, all without the benefit of briefing from
either side.
Even more problematic here is the fact that the majority opinion does not apply its newly
framed rule evenly. On the one hand, the majority opinion penalizes the officers for “failing to
meaningfully contest . . . the clearly established prong of their qualified immunity defense.”
Maj. Op. 29–30 (holding that the officers “forfeited the clearly established prong of their
qualified immunity defense by failing to meaningfully contest the issue”). Yet on the other, it
willfully overlooks Nash’s failure to raise any objection regarding the absence of counsel. Maj.
Op. 12 n.4. As both sides made equal efforts to raise their respective issues, I would treat them
equally. Compare Appellant Br. 42 (reciting Peterson’s legal test, including the “full and fair”
element, but raising unrelated arguments), with Appellee Br. 15 (reciting qualified immunity test,
including the “clearly established” element, but raising unrelated arguments). Neutral principles,
in other words, deserve neutral application. Whole Woman’s Health v. Hellerstedt, 579 U.S.
582, 644 (2016) (Alito, J., dissenting) (“As a court of law, we have an obligation to apply . . .
rules in a neutral fashion in all cases, regardless of the subject of the suit.”).
In any event, even had Nash made this argument, he would still come up short. To start,
it seems that the lack of reliance on counsel during his administrative hearing may well have
been Nash’s own doing, considering that he did retain counsel to aid him in federal court. Notice
of Appearance, R. 26, PageID 65; see also Mich. Dep’t of Corr., Policy Directive 05-03-116,
Prisoner’s Access to the Courts (2021), at 1–4, https://perma.cc/ACU5-FXAE [hereinafter
Policy Directive 05-03-116] (discussing a prisoner’s access to counsel and not explicitly

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precluding access to counsel at administrative hearings). Regardless, Peterson rejected the
notion that the presence of counsel is necessary to a full and fair chance to litigate a disciplinary
charge. 714 F.3d at 916. Rather, as we explained, Michigan courts deem “the presence of
counsel” merely as supporting evidence that a prisoner enjoyed a full and fair opportunity to
contest his charges. Id. Using different parlance, it may be considered a “plus factor” in the
analysis. Peterson, 714 F.3d at 916. But it is not a requirement, nor is it a negative factor that
weighs against a finding of a “full and fair” opportunity to litigate. As we said in Peterson, “[i]f
counsel’s participation were a categorical necessity, then it would have been listed among
[Michigan’s] . . . factors.” Id. In short, that the assistance of counsel may aid the fairness of
administrative hearings does not mean that the absence of counsel renders them unfair.
See NLRB v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring in the
judgment) (explaining “the incorrect assumption that if P implies Q, then not-P implies not-Q”).
Indeed, not only does the absence of representation not weigh against the “full and fair”
analysis in this administrative setting, but also, as in Peterson, it would have made no difference
here to the administrative proceeding’s outcome. Back to Peterson, where we held that the
prisoner’s lack of legal representation did not merit a finding that the prisoner was denied a fair
chance to litigate. Just as “the absence of counsel [was not] problematic” there, so too here.
Peterson, 714 F.3d at 917. Both here and there, “the factual issue” needed to resolve the matter
“was a very simple one” that, in Nash’s case, framed in the words of Peterson, “turned on the
[ALJ’s] judgment of [Bryce’s] and [Nash’s] credibility and on his review of video recording[s].”
Id.; see also Class I Misconduct Hr’g Rep., R. 36-4 at PageID 396 (looking only to the video,
Nash’s statement, and Bryce’s report to conclude Nash was guilty of assaulting a staff member).
As a result, counsel would have had at most only a “negligible influence on such a factual
judgment” here. Peterson, 714 F.3d at 917.
On this point, I note, the majority opinion largely seems to agree. To its mind, counsel’s
contribution would have been merely to assist Nash in securing access to evidence he was unable
to obtain himself. Maj. Op. 16–17. Yet even that seems to be overstating things. Michigan
prison regulations make no provision whatsoever for confidential evidence to be disclosed to an
attorney in lieu of a prisoner, as the majority opinion assumes would have occurred. To the

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contrary, those provisions indicate that the ALJ “may deny access to the evidence to a party,”
which under any fair reading would include the party’s counsel. Mich. Comp. Laws
§ 791.252(h); cf. Policy Directive 05-03-116, supra, at 1 (discussing that when prisons have
access to counsel, counsel cannot “violate[] a [prison] policy directive or operating procedure”
“or aid[] a prisoner” in doing so). Thus, it is little more than speculation to assert that counsel
would have aided Nash in accessing the video. And, as Peterson emphasized, there would be
“perverse consequences” if issue preclusion turned on the assistance of counsel: “[A] party who
went to the effort and expense of hiring counsel to litigate a claim would face issue preclusion in
a collateral proceeding, while a party who chose not to hire counsel could avoid preclusion and
have his case live to be litigated another day before a different court.” Peterson, 714 F.3d at 917.
In any event, as already discussed, Nash would have received that evidence had he
appealed to state court. Mich. Comp. Laws § 791.253(2). By any measure, in other words, there
was no complex legal issue that mandated the assistance of counsel, even if, contrary to
Peterson, counsel was required.
* * *
One final point bears mentioning. The majority opinion finds legal significance in the
fact that, in its telling, Nash could not afford counsel at the administrative stage based on his
commencing his federal litigation in forma pauperis. Maj. Op. 16 n.6. The record suggests
otherwise. Again, Nash could and ultimately did retain counsel in the district court. And, it
bears repeating, neither Nash nor his counsel ever asserted in federal court that Nash lacked the
ability to retain counsel during his administrative proceedings, let alone that this limitation has
any bearing on the preclusive nature of those proceedings. Only the majority opinion argues as
much.
Rather than grappling with the particulars of this case, the majority opinion opts for a
broader proposition—namely, that it can never be an indigent prisoner’s “fault” that he failed to
retain counsel for an administrative disciplinary proceeding and, further, that the resulting lack of
counsel “points against any notion that [the prisoner] received a full and fair opportunity to
litigate.” Maj. Op. at 16 & n.6. Taking all of this together, the majority opinion functionally

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deems Michigan’s disciplinary scheme a legal nullity as to indigent prisoners unless the state
provides them representation or, alternatively, an attorney would have operated as little more
than a potted plant during the prisoner’s administrative proceeding. Id. at 20 (declaring no
preclusive effect if an attorney would have been “able to view” evidence or “make arguments” or
“request[] more evidence”). That is a breathtaking use of preclusion rules, especially when one
considers the many other settings where we routinely honor an adjudication even in the absence
of counsel on all sides. See Scott v. Illinois, 440 U.S. 367, 373 (1979) (prosecution of
misdemeanors where punishment is a fine or probation); Pennsylvania v. Finley, 481 U.S. 551,
555–57 (1987) (post-conviction relief); Turner v. Rogers, 564 U.S. 431, 448 (2011) (civil
contempt proceedings where incarceration is possible). Tellingly, the majority opinion cites no
authority for its unique suggestion. While I do not dispute that, as a general principle, access to
counsel touches on important aspects of fairness, I would not loosely deploy those principles to
upend a state’s selected administrative disciplinary process, especially where no party has raised
the question, and where no precedent seemingly supports the answer.
c. Finally, the majority opinion believes that Nash lacked a “sufficient incentive” to
litigate whether he resisted at the unit door—conduct relating to the precise charge against him.
See Monat, 677 N.W.2d at 847 (discussing that a “full and fair opportunity to litigate” includes
having “sufficient incentive” to contest the issue). Why? Because, we are told, Nash “was
guilty of [assault of a staff member] by virtue of having resisted Bryce, Turner, and other officers
when they tried to handcuff him” in the cafeteria, before officers escorted him down the hallway
to the unit door. Maj. Op. 17–18. It follows, says the majority opinion, that Nash had no
incentive to contest whether he resisted officers near the unit door, as that finding would have
had no bearing on his guilt. Id. at 18–19 (arguing that even if “Nash had successfully argued that
he did not pull away from the guards . . . the hearing officer still would have found that Nash
committed an assault earlier” in the cafeteria).
Here too, the majority opinion runs into a threshold barrier: Nash has never disputed his
incentive to challenge before the ALJ allegations regarding his conduct near the housing unit
door. He did not make such an argument before the magistrate judge. Resp. Defs.’ Mot. Summ.
J., R. 36, PageID 200–02 (arguing that ALJ’s findings should not be given preclusive effect

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because they were inaccurate). Nor did he raise a “lack of incentive” argument with the district
court. Obj. R. & R., R. 40, PageID 478–79 (same). It is thus perhaps no surprise that he
likewise did not make this argument to us. See Appellant Br. 41–45. Again, because Nash made
no mention of his supposed lack of incentive to litigate (other than the bare recitation of
Peterson’s legal test), he has forfeited the issue. See United States v. Huntington Nat’l Bank, 574
F.3d 329, 332 (6th Cir. 2009) (“To preserve an argument, . . . the litigant not only must identify
the issue but also must provide some minimal level of argumentation in support of it.”).
In any event, there is good reason why Nash never argued that events in the cafeteria
discouraged him from contesting the allegations about his behavior near the unit door: Nash’s
staff assault charge was tied exclusively to events near the unit door. Class I Misconduct Hr’g
Rep., R. 36-4, PageID 397. Recall that the charging document that prompted Nash’s disciplinary
hearing specified that Nash’s assault violation was for “actively resisting and lung[ing] away
from [Bryce] at the Housing Unit 6 front door entrance.” Id. Tellingly, the cafeteria was
referenced only with respect to the prisoner assault charge. And the conduct that gave rise to that
charge, it bears emphasizing, occurred two minutes before the conduct at the housing unit door,
which prompted the staff assault charge. Id. By its plain terms, in other words, Nash’s charge
for assaulting a staff member was solely linked to events near the unit door; it made no mention
of the cafeteria. That is why Nash, in responding to the staff assault charge before the ALJ,
understandably focused exclusively on his behavior near the housing unit door. Id. at PageID
396 (“I don’t [know] how I was supposed to pull away from them when they broke my ankle.”).
Both the magistrate judge and the district court understood the record this way. See R. &
R., R. 39, PageID 447–48 (noting the ALJ found that Nash resisted while officers escorted him
near the unit door); Order, R. 42, PageID 711 (similar). In affording the ALJ’s findings
preclusive effect, the magistrate judge’s recitation of the relevant facts made no mention of
Nash’s conduct towards staff in the cafeteria. R. & R., R. 39, PageID 448. So too for the district
court. Order, R. 42, PageID 712. And the majority opinion, it seems, agrees that the misconduct
citation references only Nash’s conduct near the unit door, and “not Nash’s earlier resistance to
the officers” in the cafeteria. Maj. Op. 19.

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Working backwards, the majority opinion nonetheless concludes that Nash’s earlier
conduct in the cafeteria must have been relevant to the staff assault charge because the ALJ
mentioned it in his report. See id. at 24 (“If the only conduct relevant to Nash’s assault charge
was Nash’s resistance in the few seconds before Bryce and Turner took him to the ground, much
of the hearing officer’s reasoning makes little sense.”). This proposition, given with the luxury
of hindsight, is a tough pill to swallow. Nash’s incentive to litigate the charge against him, it
should go without saying, is not judged based off of the hearing’s result. See Restatement
(Second) of Judgments § 28 cmt. j (A.L.I. 1982) (“[R]efusal to give the first judgment preclusive
effect should not occur without a compelling showing of unfairness, nor should it be based
simply on a conclusion that the first determination was patently erroneous.”).
And, of course, Nash’s initial charges cannot be amended by later fact finding, meaning
Nash had all the reason in the world to respond to the initial charges. Consider just the
constitutional ramifications of doing so. Viewing Nash as at risk of jeopardy for the uncharged
purported staff assault in the cafeteria would run afoul of basic due process protections, given the
absence of notice of the charges against him. Wolff v. McDonnell, 418 U.S. 539, 557, 564 (1974)
(explaining that due process requires a prisoner be given notice of the charges against him to
“give the charged party a chance to marshal the facts in his defense and to clarify what the
charges are, in fact”); Sessions v. Dimaya, 584 U.S. 148, 177 (2018) (Gorsuch, J., concurring in
part and concurring in the judgment) (“[T]he most basic of due process’s customary protections
is the demand of fair notice. Criminal indictments at common law had to provide ‘precise and
sufficient certainty’ about the charges involved.” (quotation and citations omitted)); Warnock v.
Warden, FCI Ray Brook, No. 22-10771, 2023 WL 3620868, at *3 (11th Cir. May 24, 2023) (per
curiam) (identifying due process violation under Wolff when the “original charges varied from
the sanctions [the prisoner] actually received” and remanding to the district court to consider the
issue). That is why prisons in Michigan are required to ensure that a prisoner receives “advanced
written notice of the charges at least 24 hours prior to the disciplinary hearing.” Tocco v.
Marquette Prison Warden, 333 N.W.2d 295, 297 (Mich. Ct. App. 1983); see also Policy
Directive 03-03-105, supra, at 3.

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The ALJ, of course, noted in passing that, before being taken out of the cafeteria and later
being led to the housing unit door, Nash had to be restrained by officers. Class I Misconduct
Hr’g Rep., R. 36-4, PageID 396; Maj. Op. 20. That observation is folded into the ALJ’s broader
narration of what was captured on the prison recording system. But, again, only the events at the
unit door were the subject of the staff assault charge, events that, after being addressed by the
ALJ, led the ALJ to conclude that “the charge is upheld.” Id. at PageID 396; see also Adams v.
Gunnell, 729 F.2d 362, 370–71 (5th Cir. 1984) (recognizing that a prison cannot charge an
inmate for violating one prison rule but then punish him for “some other conduct” without
running afoul of the Due Process Clause). Perhaps Nash could also have been charged for staff
member assault stemming from the cafeteria incident (although it bears noting that Nash’s
conduct there seemingly did not include more serious instances of Nash lunging away from or
turning his head at the officers). Either way, the fact remains that he was not so charged. Cf.
Peterson, 714 F.3d at 914 (noting for issue preclusion to apply, Michigan courts ask if an issue
has been “actually litigated,” meaning “it must have been put into issue by the complaint,” and
holding that the factual question at issue was actually litigated because “the charge [the officer]
made against Peterson was that Peterson grabbed his hand and put it in danger of being crushed,
this charge was submitted to the hearing officer for resolution, and it was resolved”). As a result,
any reference by the ALJ to Nash’s activity in the cafeteria has no legal relevance here—it is
simply background information that sets the stage for the main event. Cf. Stirone v. United
States, 361 U.S. 212, 219 (1960) (recognizing the legal nullity of being convicted on a charge the
“grand jury never made against him”). There is thus no reason to believe, as the majority
opinion tepidly asserts, that the ALJ “appears to have understood” the charge against Nash as
encompassing anything more than his behavior at the unit door. Maj. Op. 19.
In the end, the majority opinion frames these events backwards. Nash had no reason to
litigate whether he violated any conduct rules in the cafeteria, as that was not the basis for his
charge and disciplinary hearing. But there is little doubting that Nash had “sufficient incentive to
litigate” the events near the housing unit door, the very subject of the hearing and the only
conduct that he was informed was charged against him.

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No. 24-1263 Nash v. Bryce, et al. Page 51
With Peterson as our guide, it is clear that Nash had a full and fair chance to litigate. We
are thus bound by the ALJ’s findings that Nash “actively resisted” the officers before he was
taken down near the unit door. Peterson, 714 F.3d at 917.
* * *
As the foregoing discussion reflects, Peterson makes this case an easy one. And as a
published precedent, Peterson may not be cast aside. That is so even if we disagree with its
reasoning, a sentiment that appears throughout the majority opinion. See Maj. Op. 17 n.7 (taking
issue with the fact that Peterson held that a lack of counsel during a prisoner’s misconduct
hearing does not deprive a prisoner of a full and fair opportunity to litigate and calling for
Peterson to be overruled on that basis); id. at 20 (arguing that Nash would have had a full and
fair opportunity to litigate if he was represented by counsel); id. at 19 (arguing that lack of access
to video denies a prisoner an adequate opportunity to litigate despite Peterson’s holding to the
contrary). Precedent, in the end, is precedent, no matter how much we may dislike where it
leads. Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (noting that adherence to prior
precedent is a “foundation stone of the rule of law”); Williams v. Anderson, 460 F.3d 789, 816
(6th Cir. 2006) (“No matter how misguided this case law may be, it binds us.”).
While that principle should be unassailable, it bears dwelling for a moment on why that is
so. Honoring precedent brings predictability to the law and channels our decisionmaking,
features, not bugs, of our system of adjudication. Payne v. Tennessee, 501 U.S. 808, 827–28
(1991) (explaining that stare decisis “promotes the evenhanded, predictable, and consistent
development of legal principles”). Both custom and rule require that we faithfully apply a
published case’s holding. See Ferguson, 868 F.3d at 515 (“One panel of this court may not
overrule the decision of another panel; only the en banc court or the United States Supreme
Court may overrule the prior panel.”); see also 6th Cir. R. 32.1(b) (“A published opinion is
overruled only by the court en banc.”). But with en banc or Supreme Court review exceedingly
rare, it is left to each panel to carry out this most-important tradition. In essence, then, this
practice operates as something of an honor system; in deciding whether those marks have been
met, we police ourselves.

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No. 24-1263 Nash v. Bryce, et al. Page 52
Doing so in name only, however, is not enough. Indeed, it need not be said that
“honoring stare decisis requires more than beating [a precedent] to a pulp,” leaving it only
“technically alive.” Hein v. Freedom from Religion Found, Inc., 551 U.S. 587, 636 (2007)
(Scalia, J., concurring in the judgment). Yet today, that admonition has largely gone unheard.
B. When bound by the ALJ’s factual findings, it becomes readily apparent that the
officers did not engage in a constitutional violation. As a result, we must affirm the grant of
summary judgment in their favor. Cf. Peterson, 714 F.3d at 918 (noting preclusion “includes
only factual issues decided by a state agency,” not legal conclusions).
Qualified immunity protects the officers from personal liability so long as they did not
violate Nash’s “clearly established” constitutional rights. Pearson v. Callahan, 555 U.S. 223,
232 (2009). Nash thus bears the burden to show that “(1) the official violated his constitutional
rights, and (2) at the time of the violation, it was clearly established that the officer’s conduct
would violate the Constitution.” Heeter v. Bowers, 99 F.4th 900, 908 (6th Cir. 2024) (quotation
omitted).
We can resolve this case at the first step, as no constitutional violation occurred. For
Nash to show that the officers’ use of force violated his Eighth Amendment rights, he “must
satisfy both an objective and a subjective component.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011). The latter subjective component “focuses on the state of mind of the prison
officials.” Id. And on that score, the officers could have fairly believed that Nash’s resistance
imperiled their safety, justifying their actions.
In assessing the subjective prong, we distinguish 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) (quotation omitted). To do so, we
ask whether an officer’s use of force “could plausibly have been thought necessary.” Whitley v.
Albers, 475 U.S. 312, 321 (1986). In making that determination, we consider “the need for the
application of force, the relationship between the need and the amount of force that was used,
and the extent of injury inflicted,” as well as “the extent of the threat to the safety of staff and
inmates, as reasonably perceived by the responsible officials on the basis of the facts known to

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them, and any efforts made to temper the severity of a forceful response.” Id. (quotation marks
omitted). All the while, we remain mindful that split-second decisions to use force are granted
“wide-ranging deference.” Combs v. Wilkinson, 315 F.3d 548, 557 (6th Cir. 2002) (quotation
marks omitted).
Giving the ALJ’s factual determinations preclusive effect, Nash pulled away from Bryce
and Turner, causing them to lose their grip on him. This scenario understandably created an
immediate safety concern. See Burnett v. Griffith, 33 F.4th 907, 912 (6th Cir. 2022) (holding a
prisoner created an “immediate exigency by pulling away from” an officer’s grasp and holding
the officer was justified in taking him down). That fear was especially acute given that Nash’s
resistance occurred near the housing door in the prison yard, which was populated with other
inmates. See Whitley, 475 U.S. at 321 (noting we consider “the extent of the threat to the safety
of staff and inmates”). The officers therefore had a “plausible basis” to believe
that Nash “constituted a threat who needed to be restrained under all the circumstances.”
Johnson v. Sootsman, 79 F.4th 608, 619 (6th Cir. 2023) (quotation omitted). Executing a
takedown maneuver in that scenario was not a disproportionate amount of force. See, e.g.,
Cordell v. McKinney, 759 F.3d 573, 581 (6th Cir. 2014) (“[P]rison officials may use appropriate
force to regain control of an aggressive inmate.”); Griffin v. Hardrick, 604 F.3d 949, 952–53,
955 (6th Cir. 2010) (holding an officer was entitled to qualified immunity after using a “leg
sweep” maneuver to regain control of a prisoner who was struggling against the officer’s hold).
Said differently, in view of the split-second nature of the officers’ decision, they could plausibly
have believed that force was necessary to mitigate a safety risk.
Because Nash cannot demonstrate that the “exclusive purpose [of the takedown was] to
inflict pain,” Sootsman, 79 F.4th at 621, he cannot show the officers violated his constitutional
rights. Accordingly, qualified immunity was properly granted to the officers. On that basis,
I would affirm the district court.

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