Blake Cretacci v. Joe Call

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0038p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
BLAKE CRETACCI,
│
Plaintiff-Appellant, │
> No. 20-5669
│
v. │
│
JOE CALL; BRIAN KEITH; JARED NELSON; JESSE │
HARDEN; CODY FOUST; COFFEE COUNTY, TENNESSEE, │
Defendants-Appellees. │
┘

Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 4:16-cv-00097—Christopher Harper Steger, Magistrate Judge.

Argued: January 12, 2021

Decided and Filed: February 17, 2021

Before: SUHRHEINRICH, McKEAGUE, and READLER, Circuit Judges.
_________________

COUNSEL

ARGUED: Drew Justice, JUSTICE LAW OFFICE, Murfreesboro, Tennessee, for Appellant.
Darrell G. Townsend, HOWELL & FISHER, PLLC, Nashville, Tennessee, for Appellees.
ON BRIEF: Drew Justice, JUSTICE LAW OFFICE, Murfreesboro, Tennessee, for Appellant.
Darrell G. Townsend, Nicholas A. Lastra, HOWELL & FISHER, PLLC, Nashville, Tennessee,
for Appellees.

McKEAGUE, J., delivered the opinion of the court in which SUHRHEINRICH and
READLER, JJ., joined. READLER, J. (pp. 13–17), delivered a separate concurring opinion.
 No. 20-5669 Cretacci v. Call, et al. Page 2

_________________

OPINION
_________________

McKEAGUE, Circuit Judge. Blake Cretacci sued Coffee County and Coffee County Jail
Deputies Joe Call, Brian Keith, Jared Nelson, Jesse Harden, and Cody Faust (“Appellees”)
pursuant to 42 U.S.C. § 1983 for constitutional violations that occurred while Cretacci was a
pretrial detainee at Coffee County Jail. The district court granted summary judgment in favor of
Appellees, finding that two claims were barred by the statute of limitations and that there were
no constitutional violations underlying the remaining two claims.

The untimely claims implicate the issue of whether the prison mailbox rule applies to
prisoners who are represented by counsel, an issue of first impression in the Sixth Circuit. A
majority of circuits have declined to extend the rule to represented prisoners, finding that the rule
established in Houston v. Lack, 487 U.S. 266 (1988), is premised on the relaxed procedural
requirements traditionally afforded to pro se prisoners who have no choice but to rely on the
prison authorities to file their pleadings. We agree and hold that, in the context of filing civil
complaints in federal court, the prison mailbox rule applies only to prisoners who are not
represented by counsel.

Finding no error in the district court’s judgment, we AFFIRM.

I.

Cretacci’s claims arise from three separate incidents occurring on three separate days—
September 29, 2015, October 11, 2015, and January 14, 2017—while Cretacci was a pretrial
detainee at the Coffee County Jail.

On September 29, 2015, three inmates in the BC pod1 of the Coffee County Jail—Jeremy
Mathis, BJ Murray, and Josh Byford—decided to lead a “peaceful riot” to protest the conditions
in the jail. The three ringleaders of the riot told the other inmates that if they refused to

1
“The pod is one large room, referred to as the dayroom, with a two-story ceiling.” Officers refers to pods
as letters, such as BA, BB, BC and BD.
 No. 20-5669 Cretacci v. Call, et al. Page 3

participate they would be beaten up. The riot involved inmates refusing to return to their cells
for lockdown when instructed. Cretacci, who was housed in the BC pod, did not want to
participate in the riot but took the threats of the ring leaders seriously, so he did not return to his
cell. When officers entered the pod, they grabbed Cretacci and put him on the floor. While
Cretacci was on the ground, he was struck twice with pepperballs. Cretacci also alleges that after
the incident the water in the sinks and toilets of the cells were turned off for at least three days,
that the inmates were denied toilet paper, and that they were not allowed to shower.

After the September 29 riot, Cretacci wanted to be moved to a different pod, but never
submitted a written request. Instead, Cretacci told multiple officers that he “need[ed] to get out
of [the] pod,” but he does not remember to whom he said it. Cretacci “would just say it out
loud,” to “[a]ny cop that came in pretty much at certain times.” Cretacci does not recall telling
any officers that he feared for his safety, because he was not “afraid of these three people,” but
remembers telling officers that “[the] pod is crazy,” and that “[t]hese people are nuts. I need to
get out of this pod. You guys need to move me into another pod.”

Early in the morning on October 11, 2015, the three ringleaders of the riot were in the
dayroom talking loudly. Cretacci walked out of his cell to ask them to be quiet and then returned
to his cell. A few minutes later, Mathis came into Cretacci’s cell and assaulted him. Cretacci
was able to “hit [Mathis] out the door” and back into the dayroom, but Byford and Murray then
came to Mathis’s assistance, and the three of them attempted to push Cretacci back into his cell.
Cretacci forced his way out into the dayroom and “started to have more words with” his
assailants. When the four of them got out into the dayroom, officers entered the pod and
Cretacci walked back into his cell. The physical fighting had ended before the officers came in.
The officers asked Cretacci what happened, and Cretacci replied: “I don’t know what the f*** is
going on.” The officers spoke to Mathis, Murray, and Byford in the dayroom, but Cretacci could
not hear what they said. After the officers left the pod, Mathis, Murray, and Byford threatened to
kill Cretacci.

Thirty minutes later, breakfast was served. Cretacci grabbed his tray of food and set it
down on the table. Cretacci then went into his cell to grab his spoon and Mathis followed him.
Mathis hit Cretacci and Cretacci fell to the floor. Mathis punched Cretacci “four or five times”
 No. 20-5669 Cretacci v. Call, et al. Page 4

and then left the cell. Cretacci got up and started walking back to the table when Officer Keith
came up behind him, grabbed him, and put him up against the wall to keep him from being
assaulted. Officers Keith and Call took Cretacci to the medical unit for examination. Cretacci
was then permanently transferred to the AD pod.

Officer Call’s incident report stated that “a verbal altercation began with Inmates Mathis,
Byford, Murray, and Cretacci, regarding a conflict that started this morning around [6:00 a.m.].”
Officer Call testified that he learned about the 6:00 a.m. altercation when he spoke to Cretacci
after removing him from the pod.

On January 14, 2017, corrections officers overheard an inmate threaten to stab another
inmate in the AD pod, where Cretacci was housed. Officer Faust ordered Officer Dubicki to
make an announcement over the loudspeaker in the dayroom of the AD pod instructing the
inmates to lie on their stomachs. Officer Faust heard Officer Dubicki give this order, but
Cretacci did not.2 Officer Dubicki observed that the inmates were not complying with his order
and alerted Officer Faust. Officer Faust and five other officers then entered the pod, and Officer
Faust repeated Officer Dubicki’s order to get on the ground. Cretacci was sitting in the dayroom
playing chess when he saw the officers enter the pod and heard Officer Faust’s order. Cretacci
did not comply with the order, so Officer Foust fired pepperballs towards Cretacci. Cretacci
alleges he was hit once or twice on the arm. Cretacci then stood up from his chair and began
yelling at the officers, so Officer Foust ordered him to lay down. When Cretacci refused, Officer
Foust again launched pepperballs towards Cretacci, hitting him once on the back. Cretacci then
finally complied and laid back down on the floor.

Cretacci secured an attorney, Andrew Justice, to represent him in a lawsuit against the
jail. Justice drafted a complaint and intended to file it electronically, but on the evening of
September 28, 2016, the day before the statute of limitations expired on Cretacci’s claims
stemming from the September 29, 2015 incident, Justice realized he was not admitted to practice
law in the district that encompassed Coffee County Jail, the Eastern District of Tennessee.
Justice was only admitted in the Middle District of Tennessee, where he mistakenly believed

2
In a declaration, Cretacci stated: “the dayroom does not have a loudspeaker.” It is not clear whether he
was referencing the dayroom in the BC pod, the AD pod, or speaking generally about all the jail’s pods.
 No. 20-5669 Cretacci v. Call, et al. Page 5

Coffee County Jail was located. The next day, Justice looked into being admitted into the
Eastern District pro hac vice so that he could electronically file the complaint, but did not think
he could complete the requirements in time. Accordingly, Justice drove to the Winchester
courthouse in the Eastern District to attempt to file the complaint in person. However, the
Winchester courthouse does not have a staffed clerk’s office and documents cannot be filed in-
person there. Justice determined he would not be able to drive to the Chattanooga courthouse
before it closed, so instead he took the complaint to Cretacci at the Coffee County Jail for
Cretacci to file. Justice gave Cretacci an envelope stamped and addressed to the Chattanooga
courthouse and told him to deliver it to the correctional officers immediately, explaining that
because he was an inmate, he could take advantage of the prison mailbox rule, which allows
inmate filings to be assessed for timeliness on the day they are handed over to the jail authorities
rather than on the day the district court receives them. Cretacci did so on the night of September
29, and the district court received the complaint on October 3. Justice monitored the case on
PACER, and on November 22, 2016, Justice was admitted pro hac vice into the Eastern District.
He entered his appearance in the case that same day.

Plaintiff’s complaint alleged three counts under 42 U.S.C. § 1983: a deliberate
indifference claim against Officers Call, Keith, Nelson, Harden and Coffee County3 for the
assaults that occurred on October 11, 2015; an excessive force claim against Coffee County
arising from the September 29, 2015 riot; and a claim against Coffee County for failure to
“distribute essential supplies to the inmates” after the September 29, 2015 riot. After the January
14, 2017 incident, Cretacci amended his complaint to include Count IV, alleging excessive force
against Officer Faust and Coffee County.4

Defendants moved for summary judgment, arguing that Counts II and III were barred by
the statute of limitations because Cretacci was represented by counsel when he filed his
complaint and therefore could not benefit from the prison mailbox rule, and that there were no

3
Cretacci withdrew his deliberate indifference claim against Coffee County.
4
Count IV alleges Coffee County is also responsible for Officer Faust’s use of excessive force, but Cretacci
has withdrawn that argument on appeal.
 No. 20-5669 Cretacci v. Call, et al. Page 6

constitutional violations underlying Counts I and IV. The district court agreed and granted
summary judgment in full in favor of Defendants. Cretacci now appeals.

II.

In Houston v. Lack, the Supreme Court held that notices of appeal from pro se prisoners
are considered filed when the prisoner delivers the notice to prison authorities for mailing.
487 U.S. 266, 270 (1988). This is now known as the prison mailbox rule.5 In adopting the rule,
the Court emphasized the unique challenges faced by pro se prisoners seeking to appeal: they
cannot travel to the courthouse to file the notice, they cannot place the filing “directly into the
hands of the United States Postal Service” and track its progress, nor “do they have lawyers who
can take these precautions for them.” Id. at 271. Because pro se prisoners are “[u]nskilled in
law, unaided by counsel, and unable to leave the prison,” they have “no choice but to entrust the
forwarding of [their] notice of appeal to prison authorities whom [they] cannot control nor
supervise and who may have every incentive to delay.” Id.

The prison mailbox rule has since been extended in some circuits to apply to filings other
than notices of appeal. See, e.g., Richard v. Ray, 290 F.3d 810, 813 (6th Cir. 2002) (per curiam)
(civil complaints); Jones v. Bertrand, 171 F.3d 499, 501–02 (7th Cir. 1999) (habeas corpus
petitions); In re Flanagan, 999 F.2d 753, 755 (3d Cir. 1993) (appeals of bankruptcy order);
Tapia–Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (administrative filings under the Federal
Tort Claims Act). Following the amendment to Federal Rule of Appellate Procedure 4, the
Fourth and Seventh Circuits have also applied the mailbox rule to prisoners represented by
counsel in the context of a notice of appeal in criminal proceedings. See United States v. Moore,
24 F.3d 624, 626 (4th Cir. 1994); United States v. Craig, 368 F.3d 738, 740 (7th Cir. 2004). But
see Rutledge v. United States, 230 F.3d 1041, 1052 (7th Cir. 2000) (declining to extend the
prison mailbox rule to a motion to amend filed by a represented inmate).

5
The prison mailbox rule applicable to the filing of a notice of appeal was later codified in the Federal
Rules of Appellate Procedure. See Fed. R. App. P. 4 advisory committee’s note to 1993 amendment. Today, that
Rule states, in relevant part: “If an inmate files a notice of appeal in either a civil or a criminal case, the notice is
timely if it is deposited in the institution’s internal mail system on or before the last day for filing.” Fed. R. App. P.
4(c)(1).
 No. 20-5669 Cretacci v. Call, et al. Page 7

Cretacci first argues that he should receive the benefit of the prison mailbox rule because
he was not represented by Justice when he filed his complaint. In the alternative, if he was
represented, Cretacci asks this Court to extend the application of the prison mailbox rule to
prisoners proceeding with assistance of counsel. We address each argument in turn.

A.

Cretacci was not proceeding without assistance of counsel. Justice and Cretacci had an
explicit attorney-client relationship in which Justice agreed to represent Cretacci in his lawsuit
against the jail. Importantly, Justice developed Cretacci’s case against Coffee County, identified
the proper legal causes of action to bring, and wrote the complaint. When an attorney agrees to
represent a client and then prepares legal documents on his behalf, the client is not proceeding
without assistance of counsel. See Tenn. Code Ann. § 23-3-101(3) (defining “practice of law” as
“the appearance as an advocate in a representative capacity or the drawing of papers, pleadings
or documents or the performance of any act in such capacity in connection with proceedings
pending or prospective before any court”); see also Stillman v. LaMarque, 319 F.3d 1199, 1200–
01 (9th Cir. 2003) (using California’s definition of practicing law, “the preparing of legal
documents and the giving of legal advice,” to hold that prisoner was represented for the purposes
of the prison mailbox rule because an attorney prepared and filed a habeas petition on his behalf,
despite the attorney’s specific admonition that she would not “assume responsibility for
representing him”).

And the fact that Cretacci himself filed the complaint does not lead to a different result.
Justice attempted to file the complaint several times, and only when those attempts proved
unsuccessful, advised Cretacci to file it with prison officials in an effort to trigger the prison
mailbox rule. Moreover, Justice’s and Cretacci’s attorney-client relationship did not end after
Justice drafted the complaint. Justice represented Cretacci throughout the proceedings at the
district court and continues to represent him here on appeal. See Stillman, 319 F.3d at 1201 n.3
(“Our conclusion that a lawyer-client relationship existed is buttressed by the fact that [the
prisoner’s] lawyer later assisted him with numerous other legal matters.”).
 No. 20-5669 Cretacci v. Call, et al. Page 8

We affirm the district court’s finding that Cretacci was represented by counsel when he
filed his complaint. Thus, we turn now to the question of whether represented prisoners can take
advantage of the prison mailbox rule.

B.

The majority of circuits have declined to extend the prison mailbox rule to prisoners
proceeding with counsel.6 These circuits reasoned that the rationale of Houston was premised on
the plight of pro se prisoners specifically, who have no means to file legal documents except
through the prison mail system and who cannot monitor the status of their mailings to ensure
timely delivery. See, e.g., Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002); United States v.
Camilo, 686 F. App’x 645, 646 (11th Cir. 2017). Represented prisoners, on the other hand, are
not dependent on the prison mail system and can rely on their attorneys to file the necessary
pleadings on time. See Burgs v. Johnson County, 79 F.3d 701, 702 (8th Cir. 1996) (per curiam);
United States v. Rodriguez-Aguirre, 30 F. App’x 803, 805 (10th Cir. 2002).

The two circuits that have extended the prison mailbox rule to represented prisoners did
so in the context of notices of appeal, not the filing of civil complaints, and relied on the text of
Federal Rule of Appellate Procedure 4, which was amended after Houston to add subsection (c).
Rule 4, these circuits reasoned, does not distinguish between pro se and represented prisoners:
“If an inmate files a notice of appeal . . . [it] is timely if it is deposited in the institution’s internal
mail system on or before the last day for filing.” See Moore, 24 F.3d at 626; Craig, 368 F.3d at
740.

We agree with the majority of circuits. The prison mailbox rule was created to prevent
pro se prisoners from being penalized by any delays in filing caused by the prison mail system.
But if a prisoner does not need to use the prison mail system, and instead relies on counsel to file
a pleading on his or her behalf, the prison is no longer responsible for any delays and the

6
These circuits have concluded in contexts other than the one we consider today (the filing of a civil
complaint) that the mailbox rule does not apply to represented prisoners. See Cousin v. Lensing, 310 F.3d 843, 847
(5th Cir. 2002) (habeas petition); Rutledge, 230 F.3d at 1052 (motion to amend); Burgs v. Johnson County, 79 F.3d
701, 702 (8th Cir. 1996) (per curiam) (notice of appeal); Stillman, 319 F.3d at 1201 (habeas petition); United States
v. Rodriguez-Aguirre, 30 F. App’x 803, 805 (10th Cir. 2002) (habeas petition); United States v. Camilo, 686 F.
App’x 645, 646 (11th Cir. 2017) (filings objecting to a plea agreement and prison sentence).
 No. 20-5669 Cretacci v. Call, et al. Page 9

rationale of the prison mailbox rule does not apply. And because this case is not governed by
Appellate Rule 4(c), it is readily distinguished from Moore and Craig.

Accordingly, we hold that, in the context of the filing of civil complaints, the prison
mailbox rule applies only to prisoners who are not represented by counsel and are proceeding pro
se.

III.

We turn now to the merits of Cretacci’s constitutional claims. This Court reviews a
district court’s grant of summary judgment de novo, “viewing all the evidence in the light most
favorable to the nonmoving party and drawing ‘all justifiable inferences’ in his favor.” Fisher v.
Nissan N. Am., Inc., 951 F.3d 409, 416 (6th Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)). The central question is “whether the evidence presents a sufficient
factual disagreement to require submission of the case to the jury, or whether the evidence is so
one-sided that the moving parties should prevail as a matter of law.” Payne v. Novartis Pharms.
Corp., 767 F.3d 526, 530 (6th Cir. 2014).

A.

In Counts II and III, Cretacci brings claims for excessive force and for failure to
“distribute essential supplies to the inmates” against Coffee County for the events arising from
the September 29, 2015 riot and the three subsequent days. Because Cretacci cannot take
advantage of the prison mailbox rule, his complaint was filed on October 3, 2016, when it was
received by the district court. Counts II and III are therefore barred by the statute of limitations,
which expired on September 29, 2016, or October 2, 2016, at the latest. See Tenn. Code Ann.
§ 28-3-104(a)(1); Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634–35 (6th Cir.
2007).

B.

In Count I, Cretacci alleges that Officers Call, Keith, Nelson, and Harden showed
deliberate indifference to his safety when they allowed him to be attacked by Mathis, Murray,
and Byford on October 11.
 No. 20-5669 Cretacci v. Call, et al. Page 10

Cretacci has the burden of “presenting evidence from which a reasonable juror could
conclude that the individual defendants were deliberately indifferent to a substantial risk of
serious harm to [him] and that they disregarded that risk by failing to take reasonable measures
to protect him.” Richko v. Wayne County, 819 F.3d 907, 915 (6th Cir. 2016) (citing Farmer v.
Brennan, 511 U.S. 825, 842 (1994)). Cretacci must satisfy both an objective component and
subjective component: (1) that the risk of harm was objectively, sufficiently serious, and (2) that
“‘the official being sued subjectively perceived facts from which to infer a substantial risk to the
prisoner,’ . . . the official ‘did in fact draw the inference,’ and . . . the official ‘then disregarded
that risk.’” Id. (quoting Rouster v. County of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014));
accord Roberts v. Coffee County, 826 F. App’x 549, 552 (6th Cir. 2020).

Cretacci cannot satisfy the subjective component. Cretacci has not put forth any evidence
that Appellee officers knew that Cretacci was attacked by Mathis, Murray, and Byford at 6:00
a.m. before breakfast. Cretacci himself testified that the physical violence had ended by the time
the officers entered the pod. And when the officers asked Cretacci what had happened, he did
not tell them that he was assaulted, instead replying that he had no idea what was going on.
Cretacci argues that because Officer Call’s incident report referenced the 6:00 a.m. attack,
Officer Call must have been aware of the attack before Cretacci was assaulted for the second
time. But Officer Call testified that he received that information from Cretacci after removing
him from the pod, and Cretacci has not offered any evidence to the contrary.

Cretacci also argues that the district court erred by basing its holding on the fact that “the
guards could not have seen the fight because the cell door was closed.” But the district court did
not make such a finding. In its order granting summary judgment, the court wrote: “the cell has
a solid door except for a very narrow window. There is no evidence that the officers could see
inside the cell when the first assault happened.” And the court did not base its holding on the
fact that the officers could not have seen through the small window. It found that the officers did
not perceive facts from which to infer Cretacci was at risk of serious harm because Cretacci
presented no evidence that the officers had seen the fight, especially considering that Cretacci
testified that when the officers entered the pod, the inmates were in the dayroom and the fight
was only verbal.
 No. 20-5669 Cretacci v. Call, et al. Page 11

Thus, because Cretacci failed to provide evidence showing that the officers perceived
facts from which they could infer Cretacci was at risk of being assaulted, we affirm the district
court’s grant of summary judgment to Appellees on Count I.

C.

In Count IV, Cretacci alleges that Officer Faust used excessive force when he struck
Cretacci with pepperballs on January 14, 2017 following the security threat in which officers
overheard an inmate threaten to stab another inmate.

“[T]he Due Process Clause protects a pretrial detainee from the use of excessive force
that amounts to punishment.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (quoting
Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). To prevail on an excessive force claim, a
pretrial detainee must show “that the force purposely or knowingly used against him was
objectively unreasonable.” Id. at 396–97. “[O]bjective reasonableness turns on the ‘facts and
circumstances of each particular case,’” id. at 397 (quoting Graham, 490 U.S. at 396), including

the relationship between the need for the use of force and the amount of force
used; the extent of the plaintiff’s injury; any effort made by the officer to temper
or to limit the amount of force; the severity of the security problem at issue; the
threat reasonably perceived by the officer; and whether the plaintiff was actively
resisting.

Id. Courts must make this totality-of-the-circumstances determination based on what a
reasonable officer on the scene knew at the time and account for the jail’s legitimate interest in
maintaining their facility, “deferring to ‘policies and practices that . . . are needed to preserve
internal order and discipline and to maintain institutional security.’” Id. (quoting Bell v. Wolfish,
441 U.S. 520, 540, 547 (1979)).

Here, it was reasonable for Officer Faust to use force against Cretacci when he did not
obey the order to get on the ground. Based on the threat the officers overheard, Officer Faust
had a legitimate interest in maintaining order to prevent violence and protect the inmates.
Further, Officer Faust used a non-lethal weapon against Cretacci, a pepperball launcher, which
led only to minor injuries—bruises that lasted for a few days.
 No. 20-5669 Cretacci v. Call, et al. Page 12

Cretacci makes much of the fact that he did not hear Officer Dubicki’s order to get on the
ground over the loudspeaker. He claims that there is an evidentiary dispute over whether the
guards even gave such a command, and therefore summary judgment should not have been
granted. However, viewing the record in the light most favorable to Cretacci, and assuming no
announcement was ever made, it is undisputed that Officer Faust made the announcement when
he entered the pod, and Cretacci stated that he heard that order. Moreover, Officer Faust had no
reason to believe that Officer Dubicki never gave the order over the loudspeaker because Officer
Faust heard it himself.

Cretacci next argues that the second time Officer Faust deployed pepperballs against him
was excessive force because Officer Faust did not give him an opportunity to comply with his
order. But Cretacci was not in the process of complying with Officer Faust’s order when he was
hit with a pepperball the second time; he was beginning to stand up and yell at Faust. And
“[a]ctive resistance to an officer’s command can legitimize” an officer’s use of force. Hanson v.
Madison Cnty. Det. Ctr., 736 F. App’x 521, 531 (6th Cir. 2018) (quoting Goodwin v. City of
Painesville, 781 F.3d 314, 323 (6th Cir. 2015)). “Such resistance can take the form of ‘verbal
hostility’ or ‘a deliberate act of defiance.’” Id. (emphasis omitted) (quoting Goodwin, 781 F.3d
at 323). Officer Faust did not act unreasonably in hitting Cretacci with a pepperball for a second
time after Cretacci actively resisted the order to get on the ground by yelling and standing up.

Considering the totality of the circumstances, Officer Faust did not use excessive force
against Cretacci when he did not obey the order to get on the ground. We affirm the district
court’s grant of summary judgment to Appellees on Count IV.

IV.

For the foregoing reasons, we AFFIRM the decision of the district court.
 No. 20-5669 Cretacci v. Call, et al. Page 13

_________________

CONCURRENCE
_________________

CHAD A. READLER, Circuit Judge, concurring. I concur in full with the majority
opinion. I write separately to emphasize that any rewriting of our federal filing requirements to
create exceptions for incarcerated individuals should come from Congress or the Judicial
Conference’s Committee on Rules of Practice and Procedure, commonly known as the “Standing
Committee,” rather than individual judges.

1. Including the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988), various federal
courts have been tinkering with the otherwise clear filing requirements in the respective Federal
Rules of Civil and Appellate Procedure. In Houston, the Supreme Court effectively rewrote the
then-existing versions of Federal Rules of Appellate Procedure 3(a) and 4(a)(1), which together
required that a notice of appeal in a civil case “be filed with the clerk of the district court within
30 days after the date of entry of the judgment or order appealed from.” Id. at 272 (quoting Fed.
R. App. P. 4(a)(1) (1986)). Houston interpreted those Rules to mean that a prisoner, upon
handing his notice of appeal to a prison official, has “filed his notice . . . [with] the District
Court.” Id. at 270 (emphasis added). That creative rewriting of the Federal Rules set the
foundation for what has come to be known as the “prison mailbox rule.” See United States v.
Smotherman, 838 F.3d 736, 737 (6th Cir. 2016).

Our Court too has not been shy about rewriting federal filing requirements. Taking our
cue from Houston, we extended the “mailbox rule” from the notice of appeal setting to instances
when “civil complaints [are] filed by pro se petitioners incarcerated at the time of filing.”
Richard v. Ray, 290 F.3d. 810, 813 (6th Cir. 2002) (per curiam). As then-Federal Rule of Civil
Procedure 5(e) explained, “[t]he filing of papers with the court as required by these rules shall be
made by filing them with the clerk of court.” Fed. R. Civ. P. 5(e) (2000) (emphasis added). In
departing from that plain text to deem a prisoner to have “filed” a complaint with the court
simply by handing those papers to a prison official, we invoked the policy concerns “highlighted
by the Supreme Court in Houston v. Lack.” Richard, 290 F.3d at 813. Those policy concerns
coupled with the notion that “Houston gives no indication, in either text or analytical framework,
 No. 20-5669 Cretacci v. Call, et al. Page 14

that it should be limited to the habeas context,” seemingly gave us license to ignore the text of
Civil Rule 5(e) and overhaul the filing requirements for civil complaints by inmates. Id. That is
a curious conclusion—and not just because it ignores the Rule’s text in favor of a judge’s policy
preferences. As a matter of interpreting precedent, simply because the Supreme Court cracks
open a door in one context does not mean we should kick the door wide open at the next possible
opportunity. Today, we understandably curtail any further expansion of this atextual, judge-
inspired rewriting of the Federal Rules.

Reason for caution in this setting is further reflected by the fact that Richard and cases
like it have the potential to upset substantive state law rules. See 28 U.S.C. § 2072(b) (requiring
that rules of procedure created by the Supreme Court “shall not abridge, enlarge or modify any
substantive right”). By allowing a civil complaint to be deemed “filed” before it is received by a
court clerk, Richard arguably created a tolling amendment to a state’s statute of limitations. To
be sure, one way to read Richard is that it simply interprets the meaning of “filing” under the
Federal Rules to include an inmate handing her complaint to a prison official. But another way
to understand the decision is that it effectively extends the period for filing set by state law. In
Richard, Kentucky law required that the inmate’s medical malpractice claim be filed within one
year of May 20, 1999, yet the complaint was accepted as timely despite being stamped “filed”
with the federal district court on May 23, 2000. 290 F.3d at 812–13. In that way, the rule from
Richard arguably tolled the applicable state statute of limitations.

All of this is to say that, to my mind, it is dangerous practice for federal judges to be
rewriting the Federal Rules on their own whims. In addition to potentially undermining
principles of state law, doing so effectively implements policy judgments regarding the equities
of prisoner litigation. Those policy judgments, however, are better made by subject-matter
experts: Congress, or in its absence, the Standing Committee. Especially so, it seems, when
federal courts, in making those policy judgments, also “expand and contract the scope of their
own competence.” Houston, 487 U.S. at 279 (Scalia, J., dissenting). Allowing individual judges
to rewrite the rules of procedure also undermines the overarching goal of “uniform meaning” for
“ordinary statutory deadlines” as well as “court-created rules.” Id. A contrary patchwork system
of federal rules, as Richard and other cases invite, has far less appeal. Why, for example, would
 No. 20-5669 Cretacci v. Call, et al. Page 15

we prefer a system in which an unrepresented federal prisoner in Ohio can file her complaint
simply by handing it to a prison official, whereas a prisoner in neighboring Pennsylvania cannot?
See Jackson v. Nicoletti, 875 F. Supp. 1107, 1109–14 (E.D. Pa. 1994) (declining to extend the
prison mailbox rule to the filing of a civil complaint). Yet that is the natural result of ad hoc,
atextual, court-created filing rules.

2. Despite my disagreement with the process that gave rise to the “mailbox rule,” I am
not blind to the challenges inmates face in pursuing legal remedies. See, e.g., McQuiggin v.
Perkins, 569 U.S. 383 (2013). Accommodating those challenges when possible, in fact, “makes
a good deal of sense.” Houston, 487 U.S. at 277 (Scalia, J., dissenting). As a policy matter, one
can see why a litigant who cannot personally ensure a timely filing with the court should benefit
from a filing rule that accounts for her unique circumstance. But reconciling those policy
concerns should come from Congress, or, as often occurs, the Standing Committee, whose
proposals take effect when, once reported by the Supreme Court, are not altered by Congress in
the ensuing seven months. See 28 U.S.C. §§ 2071–74; How the Rulemaking Process Works,
United States Courts, https://www.uscourts.gov/rules-policies/about-rulemaking-process/how-
rulemaking-process-works (last visited Feb. 16, 2021). Just as it was difficult “to understand
why the [Supreme] Court” in Houston “felt the need to short-circuit the orderly process of rule
amendment in order to provide immediate relief in the present case,” 487 U.S. at 284 (Scalia, J.,
dissenting), I share that same confusion over our decision in Richard. But I also have reason to
believe that the Standing Committee would be up to the task of resolving whether to alter the
procedural rules applicable to the filing of civil complaints by incarcerated individuals.

Indeed, one need look no further than the Standing Committee’s amendment to Appellate
Rule 4, which accommodated the challenges an inmate faces in filing a notice of appeal. See
Fed. R. App. P. 4 advisory committee’s note to 1993 amendment. Rule 4(c) now provides: “If an
inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is
deposited in the institution’s internal mail system on or before the last day for filing.” Fed. R.
App. P. 4(c) (2019). In enacting amended Rule 4, the Standing Committee was also able to
address relevant considerations unaddressed by Houston, for example, how an inmate certifies
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the date of filing, and how the mailbox rule affects when other parties’ time to file an appeal
begins to run. See id.

A similar process would provide uniform direction on whether to extend the “mailbox
rule” to the filing of a civil complaint. Cf. Smith v. State, 47 A.3d 481, 487 (Del. 2012)
(referring the issue to the state rules committee to consider whether the court system “should
consider adopting the prison mailbox rule as a rule of procedure”). Unlike a panel of appellate
judges, the Standing Committee may study a proposed rule’s impact, hear from interested
constituencies, consult experts, and then debate whether a rule amendment ultimately should be
adopted. That process also affords Congress a voice, as all new proposed rules must be
submitted to Congress for review before enactment. 28 U.S.C. § 2074. And it has the benefit of
uniformity. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988) (explaining that
a “uniform rule” preserves “operational consistency and predictability”); Hanna v. Plumer,
380 U.S. 460, 472 (1965) (“One of the shaping purposes of the Federal Rules is to bring about
uniformity in the federal courts by getting away from local rules.” (citation omitted)). The
Standing Committee stepping in would also surely curtail the temptation for judges to tinker with
our otherwise uniform rules of procedure.

3. Were the Standing Committee, following its review, inclined to extend the prison
mailbox rule to a prisoner’s filing of a civil complaint, it should consider doing so irrespective of
whether that inmate is represented. As today’s case reflects, any other approach seemingly
leaves judges with the unenviable task of determining whether an inmate was “represented” at
the time of filing. Which, as this case and others demonstrate, is often no easy task. See, e.g.,
Stillman v. LaMarque, 319 F.3d 1199, 1201 & n.3 (9th Cir. 2003). Is an inmate “represented,”
for instance, if her counsel is not admitted in the state in which the inmate’s case must be filed?
Or if she has consulted with a lawyer only informally? Or with a family member with a law
degree who has offered to assist the inmate, but not to formally represent her? And the
seemingly obvious solution for an inmate in this circumstance—a solution that may well have
saved Cretacci’s complaint here—would be for the inmate to fire her counsel immediately before
she turns her complaint over to a prison official. After all, that ostensibly would leave the inmate
 No. 20-5669 Cretacci v. Call, et al. Page 17

unrepresented, and thus free to avail herself of the prison mailbox rule. See Richard, 290 F.3d at
813.

This is the approach the Standing Committee followed in revising Federal Rule of
Appellate Procedure 4. By its plain terms, Rule 4(c)’s articulation of the mailbox rule applies to
“an inmate,” whether pro se or represented, when she files a notice of appeal. See United States
v. Craig, 368 F.3d 738, 740 (7th Cir. 2004) (Easterbrook, J.) (“A court ought not pencil
‘unrepresented’ or any extra word into the text of Rule 4(c), which as written is neither
incoherent nor absurd.”); United States v. Moore, 24 F.3d 624, 626 & n.3 (4th Cir. 1994)
(applying the prison mailbox rule to a represented inmate and recognizing its holding to be
“consistent” with the amendment to Rule 4). Taking that same approach here would instill a
bright-line rule that asks only whether the litigant filing the complaint is an inmate, not whether
the inmate is also unrepresented. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U.
Chi. L. Rev. 1175, 1178–80 (1989) (recognizing bright-line rules as advantageous because they
create predictability and consistency, provide assurance to litigants that their case was decided
fairly, and constrain judges from indulging their personal preferences). Doing so would avoid
tasking courts with resolving thorny questions of representation. And it would avoid
incentivizing inmates to game the system as to whether they were represented at the time of
filing.

Of course, there may well be other considerations at play. This is simply one judge’s
view. But that give and take can be debated by the Standing Committee, if it so chooses. Better
them, as I see it, than us.