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Simpson v. Esser

United States District Court, W.D. Wisconsin

September 12, 2016



          JAMES D. PETERSON District Judge

         Plaintiff Willie Simpson proceeded to trial in January 2016 on the following claims: defendants (1) used excessive force against plaintiff by tasing him; (2) chose to conduct a staff-assisted strip search of plaintiff for the purpose of humiliating him; (3) forced plaintiff to crawl into his cell for the purpose of humiliating him; and (4) threatened to harm and kill him. The jury found in defendants' favor on each of these claims.

         Plaintiff orally submitted a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) during the trial and renewed that motion under Rule 50(b) following the verdict. Plaintiff confirmed with a written motion, Dkt. 204, and supporting brief, Dkt. 205. After considering his briefing, I will deny the motion.

         The main thrust of plaintiff's motion is that the jury found for defendants on the strip search, crawling-into-cell, and threat claims only because I gave the jury improper instructions.[1] Plaintiff contends that those claims should have been characterized as “excessive force” claims, and the jury was not instructed on factors traditionally examined to determine whether a defendant's actions were “wanton” under an excessive force theory. Plaintiff cites five factors commonly used in excessive force cases to determine whether a defendant used “extreme or excessive cruelty”:

• the need to use force;
• the relationship between the need to use force and the amount of force used;
• the extent of Plaintiff's injury;
• whether Defendant reasonably believed there was a threat to the safety of staff or prisoners;
• any efforts made by Defendant to limit the amount of force used.

         Federal Civil Jury Instructions of the Seventh Circuit § 7.15; see also Hudson v. McMillian, 503 U.S. 1, 7 (1992). I included these factors in the instruction for the tasering claim but did not on the other three claims. Plaintiff accurately states that he asked for these factors to be added to the instructions for these claims, but I denied his request. Plaintiff contends that “[c]onsequently the jury rendered an easy verdict against plaintiff inconsistent with law with respect to the claims plaintiff seeks judgment on.” Dkt. 205, at 5.

         The court is not required to give an “idealized set of perfect jury instructions, ” but the instructions must be legally correct and supported by the evidence. Byrd v. Illinois Dep't. of Pub. Health, 423 F.3d 696, 705 (7th Cir. 2005). To obtain a new trial based on erroneous jury instructions, plaintiff must establish that (1) the instructions did not adequately state the law, and (2) the error was prejudicial because the instructions confused or misled the jury. Id.; Boyd v. Illinois State Police, 384 F.3d 888, 894 (7th Cir. 2004). Plaintiff fails to make these showings.

         First, although plaintiff characterizes the strip search claim as an excessive force claim, the facts at issue in this case do not fit an excessive force theory. In some circumstances, a strip search might involve rough conduct analogous to excessive force, but that was not the case here. At the summary judgment stage, I specifically concluded that this claim was not about the manner in which the strip search was performed:

Based on plaintiff's deposition testimony, no reasonable jury could conclude that defendants “fondled” his buttocks or testicles as that term is defined by the dictionary. Rather, plaintiff is saying that defendants touched him in an unwanted manner by lifting his testicles and spreading his buttocks. While forcibly lifting a man's testicles and spreading his buttocks would be sexual assault in the outside world, it is part and parcel of a staff-assisted strip search serving the legitimate penological purpose of keeping the prison secure by ensuring that no prisoner transports contraband. Plaintiff seems to equate any unwanted touching with sexual assault but this is simply not the standard for prison strip searches. Nor does plaintiff describe any harassing, humiliating, or demeaning comments or behavior on the part of any prison staff during the search that might create an inference that particular techniques used during this search were done to humiliate him. Therefore, I conclude that no reasonable jury could conclude that the manner in the strip search was conducted, as opposed to the decision to conduct the staff-assisted search in the first place, violated plaintiff's Eighth Amendment rights.

Dkt. 154, at 24 (citation omitted). There was no evidence that defendants acted improperly in the specific techniques they used in performing the strip search, or that they physically harmed plaintiff through the use of “force” in the context that term is usually used-taking actions that physically harm the prisoner: punching, kicking, shoving, etc. The only question was whether they chose a specific type of strip search-a more invasive “staff ...

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