Snow v. List et al
Filing
92
OPINION: Defendant List's motion for summary judgment on qualified immunity is denied 71 . Entered by Judge Sue E. Myerscough on 4/17/2014. (ME, ilcd)
E-FILED
Thursday, 17 April, 2014 02:30:55 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MATTHEW SNOW,
Plaintiff,
v.
DAMON LIST,
Defendant.
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No. 11-CV-3411
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This case is set for a trial on April 22, 2014, on Plaintiff’s claim
arising from an incident in the Logan Correctional Center on
February 24, 2011. Defendant List moves for summary judgment
on the grounds of qualified immunity.1 For the reasons below, that
motion is denied.
The relevant facts are taken from Plaintiff’s allegations in his
Complaint and from the undisputed facts in Defendant’s motion.
Plaintiff is overweight and has large breasts. (Compl. p. 5.)
On February 24, 2011, Plaintiff was incarcerated in Logan
Qualified immunity was asserted as an affirmative defense in Defendants' Answer, but was
not raised in Defendants' first motion for summary judgment. The Court, therefore, has not
ruled on the issue, contrary to Plaintiff's assertion.
1
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Correctional Center. Defendant List approached Plaintiff in the
dayroom that day, stared at Plaintiff’s chest, and remarked that
Plaintiff “would have made a lot of money here back in the day.” By
this Officer List meant that “Plaintiff could have used his large male
breasts to have earned money from fellow prisoners.” (Compl. p. 6;
Undisputed Fact 3.) List then thrust his pelvis and remarked,
"What do I gotta' do? Draw a map for ya'?" Then, List “placed both
his hands on [Plaintiff's] chest, squeezed it, then forced [Plaintiff’s
breasts] together in the middle to look like boobs and said ‘with
these babies!’” (Compl. p. 7.) Plaintiff claims that he was severely
traumatized by this incident.
Officer List argues that qualified immunity applies to him
because no case law gave him fair notice that his conduct violated
the Constitution. Qualified immunity shields government officials
from liability unless they violate "clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is
clearly established if "'every reasonable official would have
understood that what he is doing violates that right.'" Ashcroft v.
al-Kidd, 131 S.Ct. 2074 (2011)(quoting Anderson v. Creighton, 483
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U.S. 635, 640 (1987)). Plaintiff bears the burden of demonstrating
that the right at issue was clearly established when the misconduct
occurred. To defeat qualified immunity, a case directly on point in
all factual respects is not required, but "'existing precedent must
have placed the statutory or constitutional question beyond
debate.'" Stanton v. Sims, 134 S.Ct. 3 (2013)(quoting al-Kidd, 131
S.Ct. at 2083).
An Eighth Amendment claim based on the infliction of
psychological pain on an inmate requires (1) objectively, sufficiently
serious misconduct, and, (2) subjectively, an intent to wantonly
inflict psychological pain for no legitimate purpose. Calhoun v.
DeTella, 319 F.3d 936, 939 (7th Cir. 2003),
The subjective element is satisfied here. A reasonable jury
could find that Officer List acted as he did solely to humiliate,
demean, and wantonly inflict psychological pain on Plaintiff. The
question here is whether List’s misconduct was objectively serious
enough to violate Eighth Amendment standards.
In general, offensive remarks by prison guards, if limited to
remarks, are not objectively serious enough to violate the
Constitution. The Seventh Circuit made this clear in DeWalt v.
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Carter, 224 F.3d 607 (7th Cir. 2000). In DeWalt, the Seventh Circuit
affirmed the dismissal of a prisoner’s claim that guards had verbally
assaulted an inmate with racially derogatory and sexually explicit
language. The Seventh Circuit held that "[s]tanding alone, simple
verbal harassment does not constitute cruel and unusual
punishment, deprive a prisoner of a protected liberty interest or
deny a prisoner equal protection of the laws.” Id. at 612.
Likewise, in Dobbey v. Illinois Department of Corrections, 574
F.3d 443 (7th Cir. 2009), a white prison guard allegedly hung a
noose from the ceiling in plain view of black inmates. The white
guard allegedly “swatted at the noose to make it swing back and
forth, then sat down in a chair and ‘crossed his arms looking crazy
with evil eyes.’” 574 F.3d at 445. The Seventh Circuit, though
acknowledging “the ugly resonance of the noose, symbolic of the
lynching of blacks,” nevertheless affirmed dismissal, reasoning that
racial harassment alone, with no realistic threat of harm, was not
cruel and unusual punishment under Eighth Amendment
standards. 574 F.3d at 446.
Remarks alone, therefore, do not violate the Constitution, even
if meant to demean, humiliate, and wantonly inflict psychological
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pain on an inmate. However, DeWalt and Dobbey do not protect
Officer List here, because Officer List’s offensive behavior went
beyond verbal harassment.
The Seventh Circuit has repeatedly held that pat-downs and
strip searches conducted for the purpose of humiliating an inmate
or to gratify a guard’s sexual desires violate the Eighth Amendment.
See, e.g., Washington v. Hively, 695 F.3d 641 (7th Cir.
2012)(summary judgment reversed where the plaintiff alleged that a
guard fondled the plaintiff’s testicles and penis through the
plaintiff’s clothes during a pat down and alleged fondled the
plaintiff’s nude testicles for two or three seconds during a strip
search); Mays v. Springborn, 575 F.3d 643, 650 (7th Cir.
2009)(reversing summary judgment where the plaintiff alleged
group strip searches conducted with dirty gloves and demeaning
comments); Rivera v. Drake, 497 Fed.Appx. 635 (7th Cir.
2012)(unpublished)(reversing summary judgment where the
plaintiff alleged that a guard had inserted his thumb between the
plaintiff's buttocks during a pat-down). A prison guard's
unconsented, sexual touching of an inmate is objectively serious
enough to violate the Eighth Amendment. Wood v. Beauclair, 692
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F.3d 1041 (7th Cir. 2012)(reversing summary judgment where a
female guard allegedly entered the plaintiff's cell, reached into his
gym shorts, and stroked his penis and on another occasion put her
hands on the plaintiff’s groin); Walker v. Taylorville Correctional
Center, 129 F.3d 410 (1997)(inmate stated claim where he alleged
that a correctional counselor rubbed his arm and called him honey,
touched the inmate’s penis under his bed covers, and made a
sexual comment while the inmate was taking a shower); see also
Johnson v. Winters, 2013 WL 4029114 (N.D. Ill. 2013)(summary
judgment denied where a female prison guard allegedly made
sexual remarks about an inmate’s buttocks and grabbed the
inmate’s buttocks while he was showering).
In Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003), the
Seventh Circuit held that an inmate stated an Eighth Amendment
claim based on a strip search allegedly “conducted in a harassing
manner intended to humiliate and inflict psychological pain.” The
inmate in Calhoun had been forced to strip in front of female
guards whose presence was unnecessary. The inmate was then
ordered to "perform 'provocative acts'" while the guards ridiculed
him, made "'sexual ribald comments,'" and '"pointed their sticks
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towards his anal area'" when the inmate spread his buttocks. Id. at
938. The Seventh Circuit reversed dismissal of the claim, holding
that the Eighth Amendment proscribed the wanton infliction of both
physical pain and psychological pain. Id. at 939. "Such gratuitous
infliction of pain always violates contemporary standards of decency
and need not produce serious injury in order to violate the Eighth
Amendment." Id. at 939 (citing Hudson v. McMillian, 503 U.S. 1
(1992)).
Here, Officer List ridiculed and sexually harassed Plaintiff by,
essentially, telling Plaintiff that Plaintiff could prostitute himself to
other inmates by allowing other inmates to put their penis in
between Plaintiff’s breasts to masturbate. List thrust his pelvis and
then grabbed Plaintiff’s breasts, squeezing Plaintiff’s breasts
together to further humiliate and demean Plaintiff.
Officer List argues that Calhoun is too factually different from
this case to defeat qualified immunity. True, Officer List did not
force Plaintiff to disrobe or to perform "provocative acts" as the
guards did in Calhoun. Also true is that the cases discussed above
in which a guard sexually touched an inmate, the touching was of
the inmate’s genitals or buttocks, rather than the inmate’s breasts.
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Those distinctions make no difference in the Court's opinion.
Qualified immunity should not turn on whether Officer List grabbed
Plaintiff’s crotch or Plaintiff’s breasts. List’s touching was sexual
and done for the sole purpose of humiliating and demeaning
Plaintiff, or at least a reasonable jury could so find. Plaintiff had to
stand and take the abuse, given the power differential. “[J]ust as
defining a right too broadly may defeat the purpose of qualified
immunity, defining a right too narrowly may defeat the purpose of §
1983.” Abbott v. Sangamon County, 705 F.3d 706, 732 (7th Cir.
2013); Estate of Escobedo v. Bender, 600 F.3d 770, 780 (7th Cir.
2010). The primary purpose of qualified immunity is to "give[]
government officials breathing room to make reasonable but
mistaken judgments about open legal questions." Ashcroft, 131
S.Ct. at 2085; Gonzalez v. City of Elgin, 578 F.3d 526 (7th Cir.
2009)("purpose of qualified immunity is to protect public officials
from guessing about constitutional developments"). No reasonable
officer in List's position would have mistakenly believed that his
actions were lawful in light of Calhoun and the other cases
discussed above.
Page 8 of 9
Officer List cites cases from the Second, Eighth and Ninth
Circuits which he believes are more analogous than Calhoun.
Resort to other circuit's law is not necessary, given the Seventh
Circuit controlling precedent set forth above. Estate of Escobedo v.
Bender, 600 F.3d 770 (7th Cir. 2010)(look first to controlling
precedent).
IT IS THEREFORE ORDERED that Defendant List’s motion for
summary judgment on qualified immunity is denied (d/e 71).
ENTERED: 4/17/2014
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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