United States District Court, E.D. Wisconsin
CARLOS C. MCDANIELS, Plaintiff,
BRIAN POBANZ, Defendant.
STADTMUELLER U.S. DISTRICT JUDGE.
September 5, 2017, the Court screened Plaintiff's
complaint. (Docket #11). The complaint alleged that
Defendant, a prison guard, violated Plaintiff's
constitutional rights by sexually harassing Plaintiff during
a pat down search. Id. at 3-4. This occurred while
Plaintiff was incarcerated at Oshkosh Correctional
Institution. Id. Plaintiff was allowed to proceed on
a claim of cruel and unusual punishment, in violation of the
Eighth Amendment, against Defendant. Id. at 6.
1, 2018, Defendant moved for summary judgment. (Docket #37).
Plaintiff's response to the motion was due on or before
May 31, 2018. Civ. L. R. 7(b). That deadline has passed and
no response has been received. The Court could summarily
grant Defendant's motion in light of Plaintiff's
non-opposition. Civ. L. R. 7(d). However, as explained below,
Defendant also presents a valid basis for dismissing
Plaintiff's claim. For both of these reasons,
Defendant's motion must be granted.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides that the court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016). A fact is “material” if
it “might affect the outcome of the suit” under
the applicable substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact
is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Id. The court construes all facts and
reasonable inferences in the light most favorable to the
non-movant. Bridge v. New Holland Logansport, Inc.,
815 F.3d 356, 360 (7th Cir. 2016).
relevant facts are undisputed because Plaintiff failed to
dispute them. In the Court's scheduling order, entered
October 13, 2017, Plaintiff was warned about the requirements
for opposing a motion for summary judgment. (Docket #15 at
2-3). Accompanying that order were copies of Federal Rule of
Civil Procedure 56 and Civil Local Rule 56, both of which
describe in detail the form and contents of a proper summary
judgment submission. In Defendant's motion for summary
judgment, he too warned Plaintiff about the requirements for
his response as set forth in Federal and Local Rules 56.
(Docket #37). Plaintiff was provided with additional copies
of those Rules along with Defendant's motion.
Id. at 3-11. In connection with his motion,
Defendant filed a supporting statement of material facts that
complied with the applicable procedural rules. (Docket #42).
It contained short, numbered paragraphs concisely stating
those facts which Defendant proposed to be beyond dispute,
with supporting citations to the attached evidentiary
materials. See id.
response, Plaintiff filed absolutely nothing-no brief in
opposition, much less a response to the statement of
facts. Despite being twice warned of the
strictures of summary judgment procedure, Plaintiff ignored
those rules by failing to properly dispute Defendant's
proffered facts with citations to relevant, admissible
evidence. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.
2003). Though the Court is required to liberally construe a
pro se plaintiff's filings, it cannot act as his
lawyer, and it cannot delve through the record to find
favorable evidence for him. Thus, the Court will, unless
otherwise stated, deem Defendant's facts undisputed for
purposes of deciding his motion for summary judgment.
See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4);
Hill v. Thalacker, 210 Fed.Appx. 513, 515 (7th Cir.
2006) (noting that district courts have discretion to enforce
procedural rules against pro se litigants).
absence of any factual disputes, and in the interest of
brevity, the Court will discuss the material facts as part of
its analysis of Plaintiff's claim. All factual discussion
is drawn from Defendant's statement of proposed facts.
noted above, Plaintiff was allowed to proceed on a single
claim for cruel and unusual punishment. “A prison guard
carrying out a prison security measure can violate the Eight
Amendment in one of two ways: by maliciously inflicting pain
or injury, . . . or by performing some action that is
intended to humiliate the victim or gratify the
assailant's sexual desires[.]” Gillis v.
Pollard, 554 Fed.Appx. 502, 505 (7th Cir. 2014)
(citations and quotations omitted). Plaintiff alleges that
during a pat down search, Defendant touched his butt
suggestively and whispered in Plaintiff's ear
“don't I know you from somewhere?” (Docket
#11 at 3). Plaintiff's claim, then, implicates the second
variety of cruel and unusual punishment.
undisputed facts flatly contradict Plaintiff's
allegations. Defendant denies touching Plaintiff
inappropriately or whispering in his ear. Plaintiff filed an
inmate complaint about the incident a few weeks after it
occurred. The complaint was investigated by a supervising
correctional officer, who interviewed both parties and
reviewed security footage of the encounter. The footage,
provided to the Court with Defendant's motion, shows that
Defendant conducted the pat down search in accordance with
his training. Defendant searched Plaintiff for less than ten
seconds. His hands were only near Plaintiff's lower body
for about two seconds. At no point does the footage show
Defendant groping or squeezing Plaintiff's body or
leaning towards Plaintiff's ear. Plaintiff did not flinch
during the search or otherwise react in a manner which would
suggest that he was aggrieved by what was happening.
context of searches, the focus of the Eighth Amendment
inquiry is penological justification. Calhoun v.
DeTella, 319 F.3d 936, 939-40 (7th Cir. 2003). If the
officer had a legitimate reason to conduct the search, and
did so in a reasonable manner, Eighth Amendment liability
does not arise. Id. “There is no question that
strip searches may be unpleasant, humiliating, and
embarrassing to prisoners, but not every psychological
discomfort a prisoner endures amounts to a constitutional
violation.” Id. at 939. Plaintiff may not have
liked being made to endure a pat down search, but such
searches have ample penological justification and are
conducted numerous times per day in every prison in the
country. There is no ...