Clay v. Williams et al
Filing
77
MEMORANDUM Opinion and Order Signed by the Honorable Steven C. Seeger on 5/31/2020. For the foregoing reasons, Defendant's Motion for Summary Judgment (Dckt. No. 50 ) is granted. Civil case terminated. Mailed notice. (jjr, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CARLEOUS DARRELL CLAY (18864-040),
Plaintiff,
v.
LIEUTENANT WILLIAMS, et al.,
Defendants.
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Case No. 17 C 6461
Hon. Steven C. Seeger
MEMORANDUM OPINION AND ORDER
Plaintiff Carleous Darrell Clay took an employee of the U.S. Bureau of Prisons hostage
when he was incarcerated in the Chicago Metropolitan Correctional Center, awaiting trial on
federal charges of kidnapping, rape, and attempted murder. He held a knife to her throat, and
threatened to kill her. BOP officers, including Defendant Lt. Carl Williams (“Williams”),
intervened, rescued the victim, and restrained Clay. Clay later sued.
Clay brought this suit pro se under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), claiming that Williams had violated his constitutional
rights by using excessive force and destroying some of his property (his MP3 player). The Court
allowed the complaint to proceed past screening (in part) under 28 U.S.C. § 1915A because the
facts of the complaint warranted discovery into the reasonableness of Williams’s conduct.
That investigation into the underlying facts is now complete. At this stage, the question
is whether the undisputed material facts entitle Williams to judgment in his favor. For the
reasons discussed below, the Court grants Defendant’s motion for summary judgment.
Background
The Local Rules require parties to follow a specific procedure when filing and opposing a
motion for summary judgment. All litigants – including pro se litigants – must follow the Local
Rules, or face the consequences of non-compliance. Clay is no exception.
Local Rule 56.1 governs the procedures for filing and responding to summary judgment
motions. Local Rule 56.1(a)(3) requires the moving party to provide a “statement of material
facts as to which the moving party contends there is no genuine issue” for trial. Cracco v. Vitran
Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (quoting Local Rule 56.1(a)). “All material facts
set forth in the statement required of the moving party will be deemed to be admitted unless
controverted by the statement of the opposing party.” See Local Rule 56.1(b)(3)(C); see also
Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004).
To defeat summary judgment, the opposing party must “file ‘a response to each
numbered paragraph in the moving party’s statement, including, in the case of any disagreement,
specific references to the affidavits, parts of the record, and other supporting materials relied
upon.’” Cracco, 559 F.3d at 632 (quoting Local Rule 56.1(b)(3)(B)). “[M]ere disagreement
with the movant’s asserted facts is inadequate if made without reference to specific supporting
material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).
Next, if the opposing party wants the Court to consider additional facts – meaning facts
not presented by the moving party – he must submit them in a specific way. The non-moving
party must file a “separate statement ‘consisting of short numbered paragraphs[] of any
additional facts that require the denial of summary judgment[.]’” Ciomber v. Cooperative Plus,
Inc., 527 F.3d 635, 643 (7th Cir. 2008) (quoting Local Rule 56.1(b)(3)(C)). Any additional facts
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introduced by the opposing party must be supported by “references to the affidavits, parts of the
record, and other supporting materials relied upon.” See Local Rule 56.1(b)(3)(C).
Substantial compliance with Local Rule 56.1 is not enough. See Ammons, 368 F.3d at
817. The Court can require the parties, including pro se parties, to comply with Local Rule 56.1.
See Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015); see Collins v. Illinois, 554 F.3d
693, 697 (7th Cir. 2009) (“even pro se litigants must follow procedural rules”).
Consistent with the Local Rules, Defendant Williams filed a statement of undisputed
facts with his motion for summary judgment. See Def.’s Local Rule 56.1(a)(3) Stmt.
(“Statement of Facts”) (Dckt. No. 52). He supported each fact in his Statement of Facts with
admissible evidence in the record. He also served on Clay a Local Rule 56.2 Notice that
explained the requirements of Local Rule 56.1. See Dckt. No. 53.
In response, Clay filed two documents. The first is a response to Defendant’s Statement
of Facts in which Clay either admits or denies each statement, by paragraph number. See Pl.’s
Local Rule 56.1(b)(3)(B) Resp. (“Pl.’s Resp.”) (Dckt. No. 56). The second is a three-page letter
which serves as his response brief. See Pl.’s. Mem. of Law (“Pl.’s Mem.”) (Dckt. No. 57).
Clay’s handwritten response to the Statement of Facts was short – only two pages long.
See Pl.’s Resp. (Dckt. No. 56). He admitted some of the paragraphs. See, e.g., id. at 1 (admitting
paragraphs 2-15). When he did disagree, he cited no admissible evidence. He simply gave his
own version of the events, supported by nothing. For example, in response to paragraph 16, he
admits that he had a “knife in hand,” but denies that he put it against the victim’s throat. Id.
Clay’s response fails to comply with Federal Rule of Civil Procedure 56(c) and Local
Rule 56.1(b)(3). See Fed. R. Civ. P. 56(c)(1) (requiring any party asserting or disputing a fact to
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“cit[e] to particular parts of materials in the record” or “show[] that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact”); Local Rule 56.1(b)(3) (requiring any party opposing a
motion for summary judgment to support any asserted factual disagreements with “specific
references to the affidavits, parts of the record, and other supporting materials relied upon”).
Clay’s raw statements, without any evidentiary support, do not create disputed questions of fact
for purposes of this motion.
True, Clay is proceeding pro se, and the Court would be prepared to give him some
latitude if his response was in the ballpark. But a wholesale abandonment of the Rules is a
bridge too far, even for a pro se litigant. See McNeil v. United States, 508 U.S. 106, 113 (1993)
(“[W]e have never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without counsel[.]”) (citations
omitted); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F. App’x 642, 643 (7th Cir. 2011)
(“Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance
with local rules.”); Wilson v. Kautex, Inc., 371 F. App’x 663, 664 (7th Cir. 2010) (“[S]trictly
enforcing Local Rule 56.1 was well within the district court’s discretion, even though Wilson is a
pro se litigant[.]”) (citations omitted); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006)
(“[E]ven pro se litigants must follow rules of civil procedure[.]”).
Most of Clay’s response takes issue with Defendant’s characterization of the video of the
altercation. Although argumentative, the Court has considered Clay’s objections. But in the end,
the video itself – not either party’s characterization of the events depicted in the video – controls.
See, e.g., Williams v. Brooks, 809 F.3d 936, 942 (7th Cir. 2016) (relying primarily on video from
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dashboard camera of police vehicle); Holm v. Vill. of Coal City, 345 F. App’x 187, 190 (7th Cir.
2009) (considering record evidence rather than party’s characterization of evidence). The Court
can see for itself (and did see for itself) what the video shows.
For the non-video evidence, Clay did not counter Defendant’s facts by offering any facts
of his own, backed by admissible evidence. At the summary judgment stage, naked denials are
not enough. A party must present evidence, not mere disagreement. Accordingly, the Court
accepts as true all assertions in the Statement of Facts to the extent that they are supported by the
record. See McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998) (“An answer that
does not deny the allegations in the numbered paragraph with citations to supporting evidence in
the record constitutes an admission.”).
Nonetheless, the Court has interpreted Clay’s filings in this case generously in light of his
pro se status. The Court has construed the evidence in the light most favorable to Clay, and
drawn all reasonable inferences in his favor, since he is the non-moving party. The Court will
not, however, dig through the summary judgment record to identify disputed issues of fact or
find evidentiary support for any asserted disputes. See Johnson v. Cambridge Indus., Inc., 325
F.3d 892, 898 (7th Cir. 2003) (“We have repeatedly assured the district courts that they are not
required to scour every inch of the record for evidence that is potentially relevant to the summary
judgment motion before them,” given the amount of material typically generated through the
discovery process.). The Court will not hunt through the record, searching for evidence in Clay’s
favor.
The Court is mindful that “a nonmovant’s failure . . . to comply with Local Rule 56.1
does not automatically result in judgment for the movant. The ultimate burden of persuasion
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remains with [the movant] to show that [he] is entitled to judgment as a matter of law.”
Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006) (internal citation omitted).
With these standards in mind, the Court turns to the facts. Each fact recited below is
undisputed, except as noted.
Facts
In September 2015, Clay burglarized a home in Lansing, Illinois. See Statement of Facts,
at ¶ 1 (Dckt. No. 52). During the break-in, the resident (hereafter, “Victim A”) returned home.
Id. Clay threatened Victim A with a hammer and took her money. Id. Clay then abducted
Victim A and took her to the bank to use her debit card to get more money from her account. Id.
After stealing all of Victim A’s available cash, Clay forced her into the trunk of her car
and drove to the parking lot of a vacant commercial business. Id. at ¶ 2. Clay took Victim A out
of the trunk and raped her in the back seat of the car. Id. Clay then strangled Victim A until she
passed out on the ground in the parking lot. Id. After seeing that Victim A was still breathing,
Clay doused her with lighter fluid and set her on fire. Id. at ¶ 3.
Victim A survived, but she sustained permanent and life-threatening injuries. Id. Clay
was arrested and later confined at the Metropolitan Correctional Center of the U.S. Bureau of
Prisons (“BOP”) in Chicago. Id. at ¶ 4.
On April 3, 2017, Clay entered the office of a BOP case manager (hereafter, “Victim B”)
who worked at the MCC. Id. at ¶ 8. Clay pretended to make a complaint about another inmate
to Victim B. Id. When Victim B reached for her phone to call a lieutenant about the problem,
Clay grabbed her wrist to prevent her from dialing. He told her that he had a knife. Id.
Unbeknownst to Victim B, he was even holding a written note that threatened her life:
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[Victim B’s name.] Listen here you little bitch. I have a knife!!!
If you wanna go home tonight you will do what I say. If you try to
push that button I promise you that before anybody can help you I
will kill you. Put your hands on the desk and don’t move. If you
scream, I will kill you. I’m getting life in prison anyway so I don’t
have anything to lose. Please don’t try me. My intent is not to
hurt you.
Id.
But Clay never gave the note to Victim B. Instead, Clay pushed her to the floor. He
threatened her: “Get on the ground or I will fucking kill you,” or a phrase to that effect. Id. at
¶ 10. Clay threw Victim B’s radio to the floor, and used Victim B’s keys to lock himself inside
the office with Victim B. Id.
While Clay was locking the door, Victim B was able to reach the radio and call for help.
Id. Clay heard Victim B call for help, became agitated, and put a homemade knife to Victim B’s
throat. He repeated that he would “fucking kill” her. Id. Clay ordered Victim B to go back on
the radio and tell other MCC staff members not to respond. Id. at ¶ 11.
Victim B transmitted on the radio words to the effect of, “Don’t respond. He has a knife.
He’s going to kill me.” Id. Clay got on the radio himself and said words to the effect of, “I’m
going to kill her if you come in. Don’t come in.” Id. Clay ordered Victim B to get back on the
floor, face down, which she did. Id. at ¶ 12. Clay straddled Victim B, grabbed her by the hair,
and put the knife to her throat. Id.
Defendant Williams responded to the emergency call and quickly arrived at the door to
the office. Williams worked for the BOP as a lieutenant at the MCC, and served as a shift
supervisor. Id. at ¶ 5. Williams knew who Clay was, and based on the local news, he knew that
Clay had allegedly kidnapped and raped Victim A, before setting her on fire. Id. at ¶ 6.
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Williams looked through a window and saw that an inmate was holding a knife to Victim
B’s throat. Id. at ¶ 13. Another MCC staff member, who was also outside of Victim B’s office
door, ordered Clay to drop the knife and come to the door. Id. at ¶ 12. Clay refused. Id.
Because he did not have a key to the office, Williams then attempted to deploy his pepper spray
under the door, but most of the spray came back at the officers. Id. at ¶ 14.
A correctional counselor arrived with the key and opened the door. Id. When the door
flung open, Williams recognized Clay as the attacking inmate. Id. at ¶ 15. He saw Clay on top
of Victim B, straddling her, with a knife to her neck. Id. Williams believed that Clay might
have been attempting to remove Victim B’s pants while holding a knife to her throat. Id. at ¶ 16.
Multiple MCC staff members, including Williams, entered Victim B’s office and deployed their
cannisters of pepper spray. Id. at ¶ 14. MCC staff members pulled Clay off of Victim B and
removed her from the room. Id.
After deploying the pepper spray, Williams and other MCC staff scuffled with Clay, who
didn’t go down quietly. He was still fighting and, most importantly, he was still holding the
knife. Id. at ¶ 17. A struggle ensued. The BOP employees successfully disarmed Clay and
placed him in handcuffs. Id. During the struggle, it was difficult to see because of the amount of
pepper spray in the air. Id.
Clay disagrees that a scuffle preceded his handcuffing. According to him, when the door
opened, he “dropped the knife and submitted to the restraints.” See Pl.’s Resp., at ¶ 17 (Dckt.
No. 56). He asserts in his opposition brief that the officers “beat” him after he was handcuffed.
See Pl.’s Mem., at 1 (Dckt. No. 57). But his testimony was more constrained. Clay didn’t
exactly testify that the officers actually beat him. Instead, he testified that, while they were
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restraining him, he “felt that [he] was being hit” all over his face, ribs, and stomach, and he also
felt knees “holding [him] down.” See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111).
So, Clay “felt” like he was being hit while they were restraining him. Id.
At deposition, Clay described the feeling of being pinned down. He felt “guys” and “four
or five people” restraining him. But he didn’t testify that Williams hit him:
Q:
What happened next after you were in handcuffs?
A:
I felt the guys – because I couldn’t – my vision was blurry,
because I had been sprayed, but I felt that I was being hit,
that my body was being attacked. And this happened, I
probably stayed in that office after I was cuffed for
probably ten minutes.
Q:
Where did you feel like you were being hit?
A:
All over, my face, I could feel it in like my ribs, my
stomach, that area, my back. Somebody was – it was like
four or five people. I felt knees all over me, you know, like
they was holding me down with knees and all of that stuff.
The only person that I could actually make out was the
lieutenant, was Lieutenant Williams.
See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111).
After Clay was in handcuffs, Williams began to feel overcome by the pepper spray. See
Statement of Facts, at ¶ 18 (Dckt. No. 52). He ordered the other BOP employees to bring Clay
down the stairs to the elevator, and Williams left the room to escape the pepper spray. Id.
Williams did not issue any orders about how to bring Clay down the stairs. Id.
The rescue took about 90 seconds. Video footage from a common area reveals that
Williams arrived in the vicinity about a minute and a half before rescuing Victim B. Id. at ¶¶ 2021. Williams exited the area about one minute after the rescue. Id. at ¶ 22. (Video from inside
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the office where Clay carried out his attack is unavailable.) Williams then went to a nearby sink
to flush his eyes and wash off the pepper spray. Id.
The video also shows other guards – not Defendant Williams – taking Clay away less
than two minutes after the rescue. Id. at ¶ 23. The guards pulled Clay down a set of eight stairs
on his back, but his head did not come into contact with the stairs. Id. at ¶ 24. Williams was not
one of the people transporting Clay down the stairs. Id. Clay, however, states that Williams
dropped him in front of the stairs, and that he was dragged down the stairs “face first,” as
Williams directed. See Pl.’s Mem., at 1 (Dckt. No. 57). But the video shows his feet and knees
pointed up, not down. See Def.’s Rule 56.1 Statement of Facts, Ex. 9 (Dckt. No. 52). That is,
the video shows Williams going down the stairs on his back, not “face first.”
Video shows that the guards placed Clay in front of an elevator, which he then entered.
See Statement of Facts, at ¶ 25 (Dckt. No. 52). While waiting for the elevator, several BOP
employees crowded around Clay and physically restrained him. But the footage does not depict
that he was assaulted while waiting for the elevator. Id. They restrained him like someone
would be restrained after attacking a prison guard.
They took Clay for an immediate medical exam. Id. at ¶ 26. According to Clay, he was
“assaulted again inside the elevator.” See Pl.’s Mem., at 2 (Dckt. No. 57). He felt officers
holding him down, “hitting my body,” and his request to have a shirt removed from over his face
was ignored. See Clay Dep., at 28:2-15 (Dckt. No. 52-2, at 90 of 111). After receiving medical
treatment, Clay walked unassisted to a segregation cell. See Statement of Facts, at ¶ 26 (Dckt.
No. 52).
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All things considered, Clay suffered modest injuries, at most. His only injuries were mild
abrasions to his head and upper torso, as confirmed by photographs. See Statement of Facts, at
¶ 27 (Dckt. No. 52).
Clay does not even try to dispute the fact that his injuries were slight. In fact, the
statement about his modest injuries in the Statement of Facts is the only paragraph that elicited
no response from Clay. He skipped it entirely. See Pl.’s Resp., at 2 (Dckt. No. 56) (omitting any
response to paragraph 27, but responding to paragraphs 25–26, and 28–30). So Clay admitted
that he had no significant injuries.
The parties dispute what happened to Clay’s MP3 player, but only Defendant offers any
evidence. According to Williams, he did not discard or destroy any of Clay’s property. See
Statement of Facts, at ¶ 28 (Dckt. No. 52). As Clay tells it, another inmate told him that he saw
Williams destroy his MP3 player by throwing it against a wall. See Pl.’s Resp., at ¶ 28 (Dckt.
No. 56). But Clay doesn’t offer any testimony from that inmate. And Clay doesn’t offer his own
testimony on that point, either. Just unsworn hearsay.
Clay later testified that he kidnapped Victim B in an attempt to commit suicide. He
hoped that the police would subdue him with lethal force. See Statement of Facts, at ¶ 36 (Dckt.
No. 52). So, he tried to precipitate a fatal injury, not cuts and bruises.
The day after the attack, Clay was transferred to a prison in Kankakee County, where he
remained for over two months. Id. at ¶ 29. He was later transferred to a BOP facility in New
York City. See id. at ¶ 30. On September 7, 2017, more than five months after the attack, Clay
sent letters to the MCC Chicago, alleging that he was beaten and his belongings were
confiscated. Id. at ¶ 33. Those letters were the first written notice of a potential claim. Id.
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Clay later brought this lawsuit under Bivens against Williams, claiming that he used
excessive force during the hostage situation. Clay alleged that: (1) he was beaten while
handcuffed for ten minutes inside the office where he had held Victim B captive; (2) he was
dragged face-first down the stairs and that Williams made sure that he hit his face and head on
the stairs; (3) he was assaulted outside the elevator; and (4) he was assaulted again once inside
the elevator. See Dckt. No. 9. Clay also claimed that Williams unlawfully destroyed his
property. He had property in his cell, but never saw it again. Other inmates told him that
Williams had smashed his MP3 player against the wall. Id.
Based on these allegations, Judge Shah (the presiding District Judge before reassignment)
allowed Clay to proceed on an excessive force claim against Williams. See Dckt. No. 8. The
Court dismissed all other claims, including the property damage claim. Id.
Williams now moves for summary judgment on the excessive force claim. 1
Legal Standard
Summary judgment is appropriate “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). A genuine dispute of material fact exists if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The party seeking summary judgment has the burden of establishing that there is no
genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To survive summary judgment, the opposing party must go beyond the pleadings and identify
specific facts showing the existence of a genuine issue for trial. Anderson, 477 U.S. at 256.
1
Clay also sued Officer Brussette, but based on the docket, she was never served with process. See Dckt.
No. 12. So this motion involves the only claim against the only Defendant (Lt. Williams).
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The Court construes all facts and reasonable inferences in the light most favorable to the
nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016). The Court does
not weigh the evidence, judge credibility, or determine the truth of the matter, but rather
determines only whether a genuine issue of triable fact exists. Nat’l Athletic Sportswear, Inc. v.
Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Summary judgment is appropriate if, on
the evidence provided, no reasonable jury could return a verdict in favor of the non-movant.
Celotex Corp., 477 U.S. at 322; Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73 (7th Cir.
2012).
Summary judgment is the time for a party to put its evidentiary cards on the table.
“Summary judgment is ‘not a dress rehearsal or practice run; it is the put up or shut up moment
in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to
accept its version of the events.’” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)); see also Caisse
Nationale de Credit v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (“A party seeking to
defeat a motion for summary judgment is required to ‘wheel out all its artillery to defeat it.’”)
(citation omitted). If Clay had evidence in his favor, summary judgment was the time to offer it.
Discussion
Williams moves for summary judgment on the excessive force claim on three grounds.
First, Williams argues that he used objectively reasonable force during the hostage situation.
Second, he asserts qualified immunity. And third, he argues that Clay failed to exhaust his
administrative remedies. See Def.’s Mem. of Law, at 7–11 (Dckt. No. 51). Defendant also
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addresses the due process claim based on the destruction of property, even though Judge Shah
screened out that claim. See id. at 11–14.
Based on the undisputed facts, Williams is entitled to summary judgment because he used
objectively reasonable force, and because he is protected by qualified immunity. There is
sufficient grounds to grant the motion, so this Court does not reach the issue of exhaustion. 2
A.
Excessive Force
All too often, excessive force cases are poor candidates for summary judgment. In many
cases, there are issues of fact about what took place, and whether the use of force was
appropriate. See Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010).
But not always. The Seventh Circuit has emphasized that “[w]hether a particular use of
force was objectively reasonable ‘is a legal determination rather than a pure question of fact for
the jury to decide.’” Dockery v. Blackburn, 911 F.3d 458, 464 (7th Cir. 2018) (quoting Phillips
v. Cmty. Ins. Corp., 678 F.3d 513, 520 (7th Cir. 2012)); see also Fitzgerald v. Santoro, 707 F.3d
725, 733 (7th Cir. 2013); Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th Cir. 2009).
2
Williams should note, however, that he should have raised and litigated the exhaustion issue much
earlier in this case. Defendant bears the burden of demonstrating non-exhaustion. Turley v. Rednour, 729
F.3d 645, 650 (7th Cir. 2013). An inmate must exhaust administrative remedies that are “available” to
him. 42 U.S.C. § 1997e(a). Prison authorities may not affirmatively mislead an inmate regarding
available procedures. See Twitty v. McCoskey, 226 F. App’x 594, 596 (7th Cir. 2007). Whether Clay
failed to exhaust his administrative remedies here would turn on whether the direction that he says he
received from officials at the facility in Kankakee County rendered administrative remedies “unavailable”
to him. Obviously, this is a fact issue. But Williams did not raise the exhaustion issue until the summary
judgment stage, after the conclusion of discovery. The Seventh Circuit has instructed that the best
practice is to resolve the issue of exhaustion at the start of the case, before pretrial discovery begins. See
Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Early resolution of the exhaustion issue both
comports with the PLRA and promotes judicial economy by potentially allowing the parties to avoid the
cost of discovery altogether. Id. The Court nevertheless does not reach the exhaustion issue – including
whether the defense was waived – because it grants the motion on other, independently sufficient
grounds.
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There is no special set of summary judgment rules for excessive force claims. Normal
rules apply. So if countervailing evidence is lacking, it’s lacking. Summary judgment is proper
when there is no genuine issue of material fact between the parties, or when Plaintiff’s version of
events is accepted as true, and no reasonable jury could find that the use of force was excessive.
See, e.g., Catlin, 574 F.3d at 367; Williams v. Brooks, 809 F.3d 936, 944 (7th Cir. 2016).
Clay has no quarrel with any force used against him before he was handcuffed. He states
that “my complaint is only as to what happened after I was in cuff.” See Pl.’s Mem., at 1 (Dckt.
No. 57) (emphasis in original). That concession makes sense. It was unavoidable. Clay created
an exceptionally dangerous situation, and Williams and the others sprang into action to save a
colleague’s life. They acted in the heat of the moment, and in the end, Clay suffered no serious
injuries. They used reasonable force to restrain him, as even Clay admits.
Here, Clay has abandoned or modified several of the allegations in the complaint,
presumably because the video evidence proves them to be false. For starters, Clay no longer
maintains that the officers beat him for ten minutes. See Pl.’s Mem. (Dckt. No. 57). The video
shows that Williams was at the office for no more than two and a half minutes total, and that he
left the office about one minute after the hostage rescue. See Statement of Facts, at ¶¶ 20–22
(Dckt. No. 52). Plus, the video also shows other guards taking Clay away from the scene less
than two minutes after Victim B’s rescue. Id. at ¶ 23. Clay also no longer asserts that he was
assaulted outside the elevator; instead, it was “near” the elevator. See Pl.’s Resp., at 2 (Dckt. No.
56). The video footage shows no assault outside or “near” the elevator. Id. at ¶ 25.3
The government provided a courtesy copy of the video to the Court’s chambers, and the Court watched
the video. The government cited the video as exhibit 9 to the Rule 56.1 statement, but did not file a copy
of the video with the Clerk’s office. See Statement of Facts, at ¶¶ 20–26 (Dckt. No. 52); Def.’s App’x of
Exs. to Statement of Facts (Dckt. No. 52-1) (naming “Disk of MCC Surveillance Video” as Exhibit 9);
3
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But Clay does persist in contending that he was dragged face-first down the stairs and
that Williams made sure that he hit his face and head on the steps. See Pl.’s Mem., at 1 (Dckt.
No. 57). The video evidence shows otherwise. Plaintiff’s story is just a story, supported by no
evidence – and contradicted by the evidence.
Here, the video unequivocally shows that Clay was pulled down the stairs on his back.
See Def.’s Rule 56.1 Statement of Facts, Ex. 9 (Dckt. No. 52). He did not hit his face or head on
the stairs. And most importantly, Williams was not with the group of individuals who
transported Clay down the stairs and away from the pepper spray. See Def.’s Rule 56.1
Statement of Facts, at ¶ 24. Williams did not use excessive force because he didn’t exercise any
force at all. He wasn’t even there. Id. Summary judgment is permissible if one story is
“blatantly contradicted by the record, so that no reasonable jury would believe it . . . .” Scott v.
Harris, 550 U.S. 372, 380 (2007) (holding that party’s position was contradicted by videotape of
incident, requiring the court to reject party’s position on what occurred and instead rely on the
videotape); Johnson v. Moeller, 269 F. App’x 593, 596 (7th Cir. 2008) (summary judgment
upheld for defendant on excessive force claim where security-camera footage belied Plaintiff’s
version of events and demonstrated reasonableness of force used).
Clay alleges that Williams directed the MCC employees to hit his face on the stairs. But
that makes no difference. The point is that he did not hit his face on the stairs at all, because he
went down on his back. The video showed the falsity of Clay’s story. No reasonable jury could
find otherwise.
Def.’s Exs. to Statement of Facts, at 47–49 of 111 (Dckt. No. 52-2) (skipping from Exhibit 8 to Exhibit
10). So the Court has directed the government to file a copy on the docket. See Dckt. Nos. 72, 76. Still,
the omission falls in the “no harm, no foul” category. The Court did receive a copy in chambers, and
Clay received a copy, too.
16
That leaves two components of Clay’s excessive force claim. Clay argues that Williams
assaulted him in the 60 seconds while he was handcuffed (after the rescue, but before leaving the
office). He also claims that he was assaulted in the elevator.
The Court views the evidence in the light most favorable to the non-moving party, and
draws all inferences in his favor. Williams argues that he is nonetheless entitled to summary
judgment. See Def.’s Reply, at 5-8 (Dckt. No. 60); see also Dockery, 911 F.3d at 464;
Fitzgerald, 707 F.3d at 733; Catlin, 574 F.3d at 367; Williams, 809 F.3d at 944. The Court
agrees.
The Due Process Clause of the Fourteenth Amendment governs a claim of excessive
force by a pretrial detainee. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015). To
succeed, a pretrial detainee must show that the “force purposely or knowingly used against him
was objectively unreasonable.” Id. at 2473. A court must make this determination “from the
perspective of a reasonable officer on the scene, including what the officer knew at the time, not
with the 20/20 vision of hindsight.” Id.
An officer is not required to use the least amount of force possible to restrain an inmate.
Rather, the force must be reasonable under the circumstances. See Scott v. Edinburg, 346 F.3d
752, 760 (7th Cir. 2003). Officers do not have the luxury of time, and they do not act in an
adrenaline-free environment. Officers must make split-second decisions about the use of force in
tense, uncertain, and rapidly evolving environments. See Dockery, 911 F.3d at 464. Especially
when someone’s life is on the line.
At the summary judgment stage, the question is whether a reasonable jury could find that
a use of force was objectively unreasonable. That question depends on factors like (1) the
17
relationship between the need for the use of force and the amount of force used; (2) the extent of
the plaintiff’s injury; (3) any effort made by the officer to temper or to limit the amount of force;
(4) the severity of the security problem at issue; (5) the threat reasonably perceived by the
officer; and (6) whether the plaintiff was actively resisting. Kingsley, 135 S. Ct. at 2473 (citation
omitted). The question is what a reasonable officer on the scene would have understood in that
moment, without the benefit of hindsight. Id.
Here, all of the factors weigh heavily in favor of the reasonableness of the use of force.
In fact, the balancing is so lopsided that no reasonable jury could find in Clay’s favor.
Clay took a female BOP case manager hostage in the prison. He put a knife to her throat.
He threatened to kill her. And when Williams arrived on the scene, Clay was straddling the
victim with, again, a knife at her throat. Williams reasonably perceived that Clay may have been
attempting to remove his victim’s pants, presumably to sexually assault her. And Williams knew
that Clay had previously kidnapped, raped, and strangled a different female victim before setting
her on fire in an attempt to kill her. It was eminently reasonable for Williams to reach the
obvious conclusion: a highly dangerous person was engaged in a violent act. It required
emergency action.
Addressing a few of these factors in order, the Court starts with factor one – the
relationship between the need for the use of force and the amount of force used. See id. The
force that Williams allegedly used against Clay in both the office and elevator – hits to the head
and torso and restraining Clay with his knees – was very mild in comparison to the
overwhelming need for force, in light of the existing danger. And factor two, the extent of
Clay’s injuries, also weighs in favor of Williams. Clay’s injuries amounted to mild abrasions
18
and bruising to the face and upper torso. These injuries are consistent with the BOP employees’
efforts to subdue Clay in Victim B’s office. Clay presents no evidence to show that these
injuries were caused by purely gratuitous violence after he meekly submitted in handcuffs,
whether in Victim B’s office or while he was in the elevator.
Factor three looks to the officer’s effort to temper, or limit, the amount of force. Here,
Williams tempered the amount of force he used. Recall Clay’s end goal. He claims he was
attempting to commit suicide by goading the MCC officers into killing him. He admits that his
behavior posed such a clear and present danger that lethal force was not only warranted, but the
end-goal. Getting tackled is reasonable when Clay sought to get killed.
As Clay himself admits, the initial use of force – before the handcuffing – was eminently
reasonable. And no jury could think it was unreasonable for BOP employees to continue to
subdue a dangerous, violent person even after he was handcuffed, or that the officers used
unreasonable force in doing so. Clay testified that he “felt” like he was being hit all over and felt
knees holding him down. See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111). Given
the circumstances, Clay’s account is unsurprising – he was being subdued and immobilized by
multiple officers after holding a prison employee hostage and threatening to kill her.
If Defendant Williams had actually hit Clay, it would have been easy for Clay to say so,
squarely and directly. He could have testified, say, that Williams swung at him, or had a closed
fist, or dealt him body blows, or smacked him in the face, or something along those lines. “He
punched me,” for example, is easy to say. But Clay offered no such testimony. Instead, he
testified that getting restrained by a group of people (after threatening to kill someone) “felt” like
19
he was getting beaten. That’s not enough to support a jury verdict that Williams used objectively
unreasonable force.
At best, Williams has offered evidence that some amount of force was used against him
while he was restrained. But he didn’t offer evidence of unreasonable force. And he didn’t offer
any evidence that Williams, in particular, used unreasonable force. He testified that he could
“make out” Williams amidst the pepper spray, but he didn’t testify that he saw Williams hit him
or gratuitously beat him. See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111). Based
on this evidence, no reasonable jury could conclude that Williams used objectively unreasonable
force against Clay.
Factors four and five are intertwined here, assessing both the severity of the threat and the
threat reasonably perceived by the officer. A detainee accused of one violent crime who has just
committed another violent crime while in lock-up is clearly a serious threat. Handcuffing such a
person would not necessarily ensure the safety of BOP employees. No jury would think that the
BOP employees were safe just because Clay was in handcuffs. Using additional force was
reasonable to ensure that Clay was not a danger to anyone else.
And finally, factor six favors Williams if Clay was actively resisting. In this case, Clay
cannot create a genuine issue of fact by claiming that he did not resist once the officers opened
the door. Even if Clay did not physically fight back once the officers entered the office, he
continued to actively resist – just moments before – by refusing to drop the knife. He refused to
come to the door, and barricaded himself in the locked office despite the pepper spray. The
officers were not expected to stop on a dime and assume a placid inmate. See Mason-Funk v.
City of Neenah, 895 F.3d 504, 510 (7th Cir. 2018) (“To drive home the point, it is worth
20
recounting what occurred in the short span of six minutes. Flathoff had continuously made
threats that he would kill the hostages, which prompted the hasty team to act.”); Varnadore v.
Merritt, 778 F. App’x 808, 815 (11th Cir. 2019) (finding active resistance factor tipped for
officers where suspect had previously refused to comply with their order to show his hands, even
though the suspect was not actively resisting arrest when the officers shot him).
Based on the undisputed facts, no reasonable jury could find that Williams used excessive
force on Clay after he was handcuffed in Victim B’s office. Even if Clay had stopped all
resistance, submitted to his restraints, and stopped fighting immediately, a reasonable officer
would not have anticipated such a drastic and sudden change of behavior. With blood pumping
in the heat of the moment, the officers would not have recognized the lion-to-lamb
transformation for some period of time. Continuing to restrain a violent inmate – moments after
an attack – was reasonable.
Clay insists that his “intention wasn’t to hurt anyone.” See Pl.’s Mem., at 2 (Dckt.
No. 57). The knife to the throat suggested otherwise. So did the call for help from the victim.
And Clay’s threat to kill her. All available information told Williams that a fellow BOP
employee’s life was on the line, and the undisputed evidence is that he acted accordingly.
Clay’s minor injuries – mild bruises and abrasions – are unrebutted evidence that the
force was not excessive. If anything, the modesty of the injuries – after BOP officers had to
forcibly subdue him – confirms that the officers acted with restraint and professionalism. “The
extent of injury is relevant to the . . . inquiry because it provides some indication of the amount
of force applied, and because it may suggest whether the use of force was plausibly necessary in
21
a particular situation.” McCottrell v. White, 933 F.3d 651, 664 (7th Cir. 2019) (Eighth
Amendment context).
The use of force on a restrained suspect, if tempered to keep him still and the officers
safe, is typically not unreasonable in most circumstances. See Abdullahi v. City of Madison, 423
F.3d 763, 771 (7th Cir. 2005) (“just enough force to prevent an individual from ‘squirming’ or
escaping might be eminently reasonable”). Here, again, to Williams and the other officers, Clay
had just appeared poised to murder an MCC employee. No reasonable jury could conclude that
handcuffing him was enough to ensure the safety of MCC employees, at least during the minutes
after he was handcuffed. Thus, though Clay points to his bruises as evidence that the force
against him was excessive, his mild injuries demonstrate that the force used was reasonable
under the circumstances. And Clay has presented no evidence that he in fact received any of his
mild injuries after being handcuffed. Clay can’t make a res ipsa loquitor argument, arguing he
couldn’t have sustained these injuries unless he was beaten after being handcuffed. After all,
Clay’s injuries are entirely consistent with being disarmed, subdued, and restrained during the
rescue of Victim B, when exceptionally high levels of force would have obviously been
reasonable.
B.
Qualified Immunity
Even if his use of force could be considered objectively unreasonable (which was not the
case), Williams is entitled to qualified immunity.
The doctrine of qualified immunity “‘gives government officials breathing room to make
reasonable but mistaken judgments,’ and ‘protects all but the plainly incompetent or those who
knowingly violate the law.’” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting
22
Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). As applied to an excessive force claim, “the
qualified-immunity doctrine gives enhanced deference to officers’ on-scene judgments about the
level of necessary force.” Dockery, 911 F.3d at 466 (internal quotations omitted). “This is so
because, even if the plaintiffs demonstrate that excessive force was used, they must further
establish that it was objectively unreasonable for the officer to believe that the force was lawful –
i.e., they must demonstrate that the right to be free from the particular use of force under the
relevant circumstances was ‘clearly established.’” Abbott v. Sangamon County, 705 F.3d 706,
725 (7th Cir. 2013).
“Qualified immunity is an affirmative defense, and once raised, the plaintiff bears the
burden of defeating it by showing: (1) the defendant violated a constitutional right, and (2) that
the right was clearly established at the time of the alleged violation.” Sinn v. Lemmon, 911 F.3d
412, 418 (7th Cir. 2018) (citing Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017)). “A
failure to show either is fatal for the plaintiff’s case.” Id. at 418 (quoting Archer, 870 F.3d at
613).
The Supreme Court has “repeatedly told courts . . . not to define clearly established law at
a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Instead, “[t]he
contours of the right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see
Dockery, 911 F.3d at 466 (“[T]he precedent must be ‘particularized to the facts of the case.’”).
This principle is “particularly important in excessive force cases” because “[u]se of excessive
force is an area of the law in which the result depends very much on the facts of each case.” City
of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam).
23
In fact, excessive force caselaw arising in non-hostage situations is not specific enough to
warn officers about the legality of force used in a hostage situation. A hostage-taker has already
demonstrated a propensity for violence and unpredictability, which makes the situation different
from other cases. See Mason-Funk v. City of Neenah, 895 F.3d 504, 509 (7th Cir. 2018) (“Funk
fails to cite to any precedent . . . which involved a hostage situation. On this basis alone, the
remaining cases cited by Funk are factually distinct and incapable of giving the officers any fair
warning that they violated a clearly established right.”) (emphasis added).
Here, Clay failed to meet his burden to defeat a qualified immunity defense. Recognizing
that Clay is pro se, however, the Court conducted its own search and located no precedential
authority providing guidance on how a correctional officer must respond under the circumstances
confronted by Williams while rescuing Victim B. The Court did locate Seventh Circuit authority
prohibiting significant and gratuitous force against subdued suspects in certain circumstances.
See, e.g., Kingsley v. Hendrickson, 801 F.3d 828, 832 (7th Cir. 2015) (concluding that a
reasonable officer was on notice that a manacled, non-resisting suspect already lying on his back
did not justify the use of taser); Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (finding
that a reasonable jury could have determined that the officer deliberately broke arrestee’s jaw
with knee when the arrestee no longer posed a threat, and was already lying spread eagle on the
ground); Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995) (“The Constitution clearly does not
allow police officers to force a handcuffed, passive suspect into a squad car by breaking his
ribs.”).
But those cases are distinguishable. The cases did not involve a suspect like Clay, who
demonstrated an immediate willingness to harm law enforcement personnel. And they all turned
24
on the fact that the officers used unnecessary force against prisoners who were already
restrained. In other words, there is no clearly established constitutional right for a detainee –
who has just kidnapped and threatened to murder a prison employee – to be free from force
beginning at the very instant that he stops fighting. He had no constitutional right to a “hands
off” approach.
In sum, based on the undisputed facts, Williams enjoyed qualified immunity, even if (for
the sake of argument) he exercised unreasonable force. See Johnson v. Rogers, 944 F.3d 966,
969 (7th Cir. 2019) (“Only when precedent places the invalidity of a particular action beyond
debate may damages be awarded.”). Williams’s perspective in the moment was colored by
Clay’s prior actions. And moments earlier, Clay appeared poised to stab Victim B in the neck, a
potentially fatal blow. Williams had no reason to assume that Clay had a change of heart, and no
longer sought to kill or injure MCC employees. See Townsend v. McWilliams, 2019 WL
5618821, at *5 (S.D. Ind. 2019) (finding qualified immunity in light of the fact that a struggle
had preceded the handcuffing).
C.
Property Deprivation
Under 28 U.S.C. § 1915A, Judge Shah pre-screened the due process claim based on
deprivation of property, and dismissed the claim. See Dckt. No. 8. Williams nonetheless moved
for summary judgment on the claim. See Def.’s Mem. of Law, at 11-14 (Dckt. No. 51). There is
no need for this Court to grant summary judgment on a claim that it has already dismissed.
Conclusion
Defendant Williams’s motion for summary judgment [50] is granted. The Clerk of Court
will enter final judgment for Defendant Williams and against Clay. Defendant Officer Brussette
25
is dismissed for failure to effectuate service of process See Fed. R. Civ. P. 4(m). This case is
closed.4
Date: May 31, 2020
Steven C. Seeger
United States District Judge
4
If Clay wants to appeal, he must file a notice of appeal with this Court within thirty days of the entry of
judgment. See Fed. R. App. P. 4(a)(1). If Clay appeals, he will be liable for the $505.00 appellate filing
fee regardless of the appeal’s outcome. See Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 812 (7th Cir.
1998). If the appeal is found to be non-meritorious, he could be assessed a “strike” under 28 U.S.C. §
1915(g). If a prisoner accumulates three strikes because three federal cases or appeals have been
dismissed as frivolous or malicious, or for failure to state a claim, the prisoner may not file suit in federal
court without pre-paying the filing fee unless he is in imminent danger of serious physical injury. Id. If
Clay seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to proceed in
forma pauperis in this Court stating the issues he intends to present on appeal. See Fed. R. App. P.
24(a)(1).
26
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