Leathers v. Johnson
Filing
52
OPINION AND ORDER DENYING 41 MOTION for Summary Judgment filed by Neil Johnson. Signed by Chief Judge Jon E DeGuilio on 8/19/2020. (mrm)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHRISTOPHER LEATHERS,
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Plaintiff,
v.
SGT. NEIL JOHNSON,
Defendant.
Case No. 3:18-CV-345-JD-MGG
OPINION AND ORDER
This matter is before the Court on Defendant Sergeant Neil Johnson’s Motion for
Summary Judgment [DE 41]. In relevant part, Plaintiff Christopher Leathers alleges cruel and
unusual punishment arising from the Defendant’s repeated requests for oral sex. The Defendant
argues that verbal harassment, standing alone, does not constitute cruel and unusual punishment.
In the alternative, the Defendant argues he is entitled to qualified immunity. The Court rejects
the Defendant’s arguments.
I. FACTUAL BACKGROUND
Plaintiff Christopher Leathers was an inmate in the Indiana Department of Corrections.
See DE 43-1, p. 3. 1 While incarcerated, the Plaintiff worked as a shoe shiner. Id. at 12-13. The
Defendant worked as a prison guard. Id. at 13.
On May 24, 2016, the Defendant requested that the Plaintiff shine his shoes. Id. at 15-16.
During the shoe shining, the Defendant requested oral sex. Id. at 16. The Plaintiff declined the
request. Id. The Defendant once again asked for a sexual favor, but the Plaintiff again declined.
Id. During his deposition, the Plaintiff described the incident as follows:
1
Throughout this Opinion and Order, the Court will cite to the CM/ECF electronic page header rather than the page
number listed on the actual document.
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Q.
Tell me what happened when Sergeant Johnson arrived.
A.
Mr. Johnson came in to get his shoes shined. And while he was there, he approached
me about—we were talking. And we were talking about other guards and stuff and
how they were bringing in contraband. And—and while we were discussing stuff,
he said—he asked me if I smoked tobacco. And I said yes, when I was—when I
was free.
And then he went on to prop—propose to me. He said if I did him a sexual favor,
then he would bring me in tobacco. I said ‘No, I’m not gay.’ And this all took place
while I was shining his boots. And, yeah, and then he asked me a second time if I’d
give him oral sex. And I declined. And then he said I’d regret it and that no one
would believe me if I brought it—brought it out into the light because he’s a guard
and I’m an inmate.
Id. at 16.
The Plaintiff stated that the Defendant “gestured with his hand on his crotch.” Id. at 18.
He further stated that the Defendant “kept grabbing himself” during the shoe shining. Id. at 17.
The Plaintiff testified that he “was really thrown off and intimidated. I wasn’t suspecting him to
proposition me like that. All right? And it really made me uncomfortable and in a weird
situation.” Id.
On May 25, 2016, the Defendant cited the Plaintiff for conspiracy and trafficking. See
DE 43-2. Thereafter, the Plaintiff was fired from his job as a shoe shiner. DE 43-1, p. 14. The
Plaintiff testified that the Defendant retaliated against him based upon his refusal to perform oral
sex. Id. at 23. He further testified that the Defendant’s actions were sexual abuse and that he was
“mentally scarred by this whole issue. I’ve had many sleepless nights because of it and running
over in my head what had transpired. I lost my job. I lost financial means to take care of myself
in here because of that. I had to see mental health [services].” Id. at 24. The Plaintiff also
testified that he has been verbally and sexually harassed by his fellow inmates as a result of this
incident. Id. at 5.
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II. STANDARD OF REVIEW
A court must 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). A “material” fact is one identified by the substantive law as affecting the outcome
of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists
with respect to any material fact when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and
summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). In determining whether a genuine issue of material fact exists, courts must
construe all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in that favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v.
Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party cannot
simply rest on its pleadings but must present evidence sufficient to show the existence of each
element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
III. DISCUSSION
The Defendant argues that verbal harassment, standing alone, does not constitute cruel
and unusual punishment. In the alternative, the Defendant argues he is entitled to qualified
immunity. The Court addresses these issues in turn.
A.
Cruel and Unusual Punishment
The Defendant argues that, as a matter of law, verbal harassment does not constitute cruel
and unusual punishment. In support of this argument, the Defendant relies upon DeWalt v.
Carter, 224 F.3d 607 (7th Cir. 2000) and Dobbey v. Illinois Department of Corrections, 574 F.3d
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443 (7th Cir. 2009). However, as seen below, the Court concludes that DeWalt and Dobbey have
been distinguished by Beal v. Foster, 803 F.3d 356 (7th Cir. 2015) and Lisle v. Welborn, 933
F.3d 705 (7th Cir. 2019). Therefore, the Court concludes that verbal harassment may constitute
cruel and unusual punishment.
“The Eighth Amendment prohibits cruel and unusual punishments that involve the
unnecessary and wanton infliction of pain.” Welborn, 933 F.3d at 716 (citing Rhodes v.
Chapman, 452 U.S. 337, 346 (1981)). “The prohibition also includes acts ‘totally without
penological justification.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 737 (2002)); see also
Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003).
In DeWalt v. Carter, 224 F.3d 607, 610 (7th Cir. 2000), a prison guard and a prison
administrator made sexually suggestive and racially derogatory comments to a prisoner. Namely,
the guard and the administrator berated the prisoner for his alleged affection for a female
employee. See id. at 610-11. The prisoner sued, alleging that the employees’ actions violated the
Eighth Amendment and Fourteenth Amendment. Id. at 611. The district court concluded that
such language did not violate the Constitution and dismissed the claim. Id. at 611-12. The
Seventh Circuit agreed and reasoned as follows:
Precedent from this circuit as well as others supports the district court’s conclusion.
The use of racially derogatory language, while unprofessional and deplorable, does not
violate the Constitution. Standing 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. Accordingly, Mr. DeWalt’s claims that Officer
Young and Mr. Murray violated his Eighth and Fourteenth Amendment rights by directing
racially derogatory and sexually explicit language at him were properly dismissed.
Id. at 612 (emphasis added; citations omitted).
Similarly, in Dobbey v. Illinois Department of Corrections, 574 F.3d 443, 444 (7th Cir.
2009), a black prisoner alleged that a white prison guard hung a noose from the ceiling. The
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incident took place while the guards were playing cards in the main control room. Id. The
prisoner alleged that the officer swatted at the noose and “crossed his arms looking crazy with
evil eyes.” Id. The prisoner claimed that he feared that the guard would “snap” and cause him
physical injury. Id. at 445. The noose was removed within 20 minutes. Id. Thereafter, the
prisoner claimed that the noose incident was cruel and unusual punishment. Id. The district court
dismissed the claim, concluding that the prisoner failed to state a claim against the guards. Id. at
444. On appeal, the Seventh Circuit noted that “a threat, which is how the plaintiff interpreted
the incident, can rise to the level of cruel and unusual punishment.” Id. at 445. Despite
recognizing “the ugly resonance of the noose,” the court concluded that “getting up in the middle
of a card game to hang a noose in the sight of black prisoners, while the other players calmly
continue the game, cannot reasonably be taken seriously as a threat, rather than as racial
harassment.” Id. The court then concluded that “[t]he line between ‘mere’ harassment and ‘cruel
and unusual punishment’ is fuzzy, but we think the incident with the noose and the ‘evil eyes’
falls on the harassment side of the line because it was not a credible threat to kill, or to inflict any
other physical injury.” Id. at 446. Further, the court reasoned that “harassment, while regrettable,
is not what comes to mind when one thinks of ‘cruel and unusual’ punishment.” Id. Based upon
this, the court affirmed the dismissal of the prisoner’s cruel and unusual punishment claim. Id. at
447.
However, in Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015), a prison guard “made
verbal sexual comments” towards a prisoner. The guard told the prisoner “to place his penis
inside” another prisoner. Id. The guard would also urinate while in the presence of the prisoner.
Id. The prisoner claimed that other inmates began harassing him as a result of the guard’s
actions. Id. The prisoner also claimed that he suffered severe psychological harm. Id. at 358-59.
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The prisoner sued, alleging that the guard had inflicted cruel and unusual punishment. Id. at 357.
The district court dismissed the claim after concluding that “standing alone, verbal harassment of
an inmate does not constitute a constitutional violation.” Id. On appeal, the Seventh Circuit
concluded that “[t]he proposition that verbal harassment cannot amount to cruel and unusual
punishment is incorrect.” Id. The court emphasized that drawing “a categorical distinction
between verbal and physical harassment is arbitrary. In short, the alleged pain sufficient to
constitute cruel punishment may be physical or psychological.” Id. at 357-58 (internal quotation
marks and alterations omitted). Turning to the facts of the case, the Seventh Circuit noted that the
prisoner claimed severe psychological harm as a result of the guard’s actions. Id. at 358-59.
Further, the court reasoned that “the plaintiff feared that [the officer’s] comments labeled him a
homosexual and by doing so increased the likelihood of sexual assaults on him by other
inmates.” Id. at 358. Finally, based upon the guard’s public urination, the court found that the
prisoner had alleged nonverbal harassment. Id. at 359. Thus, the appellate court reversed and
remanded for further proceedings. Id.
Likewise, in Lisle v. Welborn, 933 F.3d 705, 711 (7th Cir. 2019), a prisoner attempted
suicide on multiple occasions. The prisoner was placed on suicide watch and his vital signs were
monitored by prison staff. Id. at 712. The prisoner alleged that a nurse repeatedly mocked him
for his failed suicide attempts and encouraged him to “do a better job next time.” Id. The
prisoner sued, alleging that the nurse’s comments were cruel and unusual punishment. Id. at 71213. The nurse denied making the comments and moved for summary judgment. Id. The district
court, relying upon DeWalt, concluded that the nurse’s actions were “simple verbal harassment”
and did not amount to cruel and unusual punishment. Id. at 713. On appeal, the Seventh Circuit
reasoned as follows:
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The district court granted summary judgment, quoting our statement that, “Standing
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.”
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (officer allegedly used racially and
sexually derogatory language). Since DeWalt, however, we have said that its language was
too broad, explaining: “The proposition that verbal harassment cannot amount to cruel and
unusual punishment is incorrect.” Beal v. Foster, 803 F.3d 356, 357 (7th Cir. 2015).
Id. at 717. Turning to the facts of the case, the Seventh Circuit concluded that the nurse’s
statements “went beyond ‘simple verbal harassment.’ She is alleged to have taunted and
encouraged an inmate known to be suicidal and in the midst of a mental health crisis to take his
own life.” Id. at 718. The court reasoned that such comments, if true, may have caused
“psychological pain.” Id. Thus, the court reasoned that the nurse’s comments “could be deemed
cruel infliction of mental pain and deliberate indifference to his risk of suicide, making summary
judgment improper.” Id. at 717.
Relying upon DeWalt and Dobbey, the Defendant argues that “verbal harassment in
prison, standing alone, does not constitute cruel and unusual punishment as a matter of law.” DE
42, p. 5. However, as seen above, the rationale of DeWalt and Dobbey has been significantly
undercut by Beal and Welborn. Specifically, the Seventh Circuit has recently concluded that
“[t]he proposition that verbal harassment cannot amount to cruel and unusual punishment is
incorrect.” Beal, 803 F.3d at 357. Moreover, the Seventh Circuit reasoned that “a categorical
distinction between verbal and physical harassment is arbitrary. In short, the alleged pain
sufficient to constitute cruel punishment may be physical or psychological.” Id. at 357-58
(internal quotation marks and alterations omitted); see also Welborn, 933 F.3d at 717
(recognizing that DeWalt was distinguished by Beal). Thus, verbal harassment may constitute
cruel and unusual punishment.
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Furthermore, the Defendant’s actions, if true, went beyond “simple verbal harassment.”
See Welborn, 933 F.3d at 717. The Plaintiff, who was a prisoner working as a shoe shiner,
testified that the Defendant, who was a prison guard, requested oral sex during a shoe shining.
DE 43-1, p. 17. This request for oral sex was made by an individual in a position of power over a
prisoner. The Plaintiff stated that the Defendant repeatedly touched “his private area” during the
shoe shining. Id. The Plaintiff noted that he was “really thrown off and intimidated.” Id. He
testified that the Defendant retaliated against him based upon his refusal to perform oral sex. Id.
at 23. He further testified that the Defendant’s actions were sexual abuse and that he was
“mentally scarred” and had to seek mental health services. Id. at 24. Further, the Plaintiff
testified that he has been verbally and sexually harassed by his fellow inmates as a result of this
incident. Id. at 5. Thus, this case is factually distinguishable from DeWalt and Dobbey and is
more comparable to Beal and Welborn. Thus, whether the Plaintiff was subjected to cruel and
unusual punishment is a disputed issue of material fact that must be decided at trial.
B.
Qualified Immunity
The Court also rejects the Defendant’s invocation of qualified immunity. “Qualified
immunity shields public officials from liability when they act in a manner that they reasonably
believe to be lawful.” Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009) (citing
Anderson v. Creighton, 483 U.S. 635, 638–39 (1987)). “Qualified immunity is ‘an immunity
from suit rather than a mere defense to liability.’” Pearson v. Callahan, 555 U.S. 223, 237
(2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The plaintiff carries the burden
of defeating the qualified immunity defense.” Chasensky v. Walker, 740 F.3d 1088, 1095 (7th
Cir. 2014). “To overcome a defendant’s invocation of qualified immunity, a plaintiff must show
(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly
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established at the time of the challenged conduct.” Green v. Newport, 868 F.3d 629, 633 (7th Cir.
2017) (internal quotation marks omitted). A right is clearly established when “there is ‘a clearly
analogous case establishing a right to be free from the specific conduct at issue’ or that ‘the
conduct is so egregious that no reasonable person could have believed that it would not violate
clearly established rights.’” Gonzalez, 578 F.3d at 540 (quoting Smith v. City of Chicago, 242
F.3d 737, 742 (7th Cir. 2001)); see also Chasensky, 740 F.3d at 1094. “If either inquiry is
answered in the negative, the defendant official is entitled to summary judgment.” Gibbs v.
Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (emphasis in original).
When the facts are viewed in the light most favorable to the nonmoving party, the
Defendant violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The
Defendant pressured the Plaintiff to perform oral sex. DE 43-1, pp. 16-17. This request was
made by an individual in a position of power over a prisoner. Id. The Defendant also touched his
genitals from the exterior of his clothing while the Plaintiff shined his shoes. Id. at 17-18. The
Defendant retaliated against the Plaintiff when he refused to perform oral sex. Id. at 23. As a
result of the Defendant’s actions, the Plaintiff was intimidated and suffered psychological
distress. Id. at 18, 24. Further, the Plaintiff was also subjected to harassment by his fellow
prisoners as a result of the Defendant’s actions. Id. at 5. Thus, when viewed in the light most
favorable to him, the Plaintiff was subjected to cruel and unusual punishment.
Furthermore, the Plaintiff’s constitutional right to be free from this punishment was
clearly established. “Inmates have long had a clearly established right to be free from
intentionally inflicted psychological torment and humiliation unrelated to penological interests.”
Leiser v. Kloth, 933 F.3d 696, 703 (7th Cir. 2019) (citing Hudson v. Palmer, 468 U.S. 517, 530
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(1984); King v. McCarty, 781 F.3d 889, 892 (7th Cir. 2015); Beal, 803 F.3d at 359; Mays v.
Springborn, 575 F.3d 643, 649 (7th Cir. 2009)). Moreover, cases such as Beal
are clearly analogous to the facts of this case. Regardless, no reasonable prison guard could have
believed that pressuring an inmate to perform oral sex would be lawful. Accordingly, the
Defendant’s invocation of qualified immunity is denied.
IV. CONCLUSION
For the reasons stated above, the Defendant’s Motion for Summary Judgment [DE 41] is
DENIED.
SO ORDERED.
ENTERED: August 19, 2020
/s/ JON E. DEGUILIO
Chief Judge
United States District Court
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