Brooks v. Racine Correctional Institution et al

Filing 32

ORDER signed by Judge J.P. Stadtmueller on 1/19/2017 GRANTING 18 Defendants' Motion for Summary Judgment. Action DISMISSED with prejudice. (cc: all counsel, via mail to Derrick E. Brooks at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DERRICK E. BROOKS,
Plaintiff,

Case No. 16-CV-77-JPS

v.
CAPTAIN GLOUDEMANS, LT.
SERRANO, R. SMITH, M. SMITH, S.
ANDERSON, CO GOTTI, SGT. STINE,
and CO MARTEN,

ORDER

Defendants.

1.

INTRODUCTION
Plaintiff Derrick Brooks (“Brooks”), a prisoner, brings this action

pursuant to 42 U.S.C. § 1983 against Defendants, prison officials at Racine
Correctional Institution (“Racine”), alleging that some of them used excessive
force against him and that the others failed to protect him from the use of
force, and that they subjected him to an unconstitutional strip search.
Defendants filed a motion for summary judgment on December 1, 2016.
(Docket #18). Pursuant to the Federal Rules of Civil Procedure and the
Court’s Local Rules, the deadline for Brooks to respond was January 3, 2017.
See Civ. L. R. 56(b)(2). To date, Brooks has filed nothing in response to the
motion. Therefore, the motion will be addressed in its unopposed form and,
for the reasons explained below, it will be granted.
2.

STANDARD OF REVIEW
Federal 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). The non-movant need not have more or better evidence than
his opponent, but he must present “appropriate evidence demonstrating that
there is a pending dispute of material fact.” Waldridge v. American Hoechst
Corp., 24 F.3d 918, 921 (7th Cir. 1994).
3.

RELEVANT FACTS
Because Brooks failed to respond to Defendants’ statement of facts

submitted in connection with their motion, the Court will consider them
undisputed. Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003) (“[F]ailure to respond by the nonmovant as mandated
by the local rules results in an admission.”); Hill v. Thalacker, 210 F. App’x
513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce
summary judgment rules against pro se litigants). Only those facts necessary
to the disposition of the motion are recounted below.
3.1

The November 20, 2014 Use of Force

During the relevant period, Brooks was an inmate at Racine.
Defendants are correctional officers of various ranks. On November 20, 2014,
Brooks ingested K-2, a form of synthetic marijuana, and suffered a psychotic
episode. At approximately 6:45 p.m. that day, there was a loud crash and
yelling coming from the north dayroom of the Rock Unit at Racine.
Defendants R. Smith, C.O. Marten (“Marten”), and Sgt. Stine (“Stine”)
responded and observed a table flipped over and Brooks yelling at another

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inmate. Brooks was screaming, “I’m a fighter” over and over again, and then
walked up to another inmate and punched him at least once in the face.
Stine ordered Brooks to stop yelling and he and R. Smith attempted
to separate the two inmates. Brooks then ran through the hallway from the
north side of the unit to the south side of the unit. R. Smith and Stine pursued
Brooks through the hallway, ordering him to stop and to put his hands
behind his back.
R. Smith caught up to Brooks and brought him to the ground in the
south dayroom. Brooks continued to ignore multiple directives to stop
resisting and to place his hands behind his back. Stine and Marten arrived on
the scene to assist in gaining control of the situation and placing Brooks in
mechanical restraints on his wrists and ankles. Marten attempted to secure
Brooks’s legs, but Brooks continued to be combative and disregarded orders
to stop resisting. Two other correctional officers who are not named as
defendants arrived and assisted Marten with securing Brooks’s legs in leg
irons. Due to Brooks’s combative behavior, the restraints were not able to be
double-locked to prevent them from tightening further. At this same time,
Stine secured Brooks’s right arm. While Brooks was being placed in the
restraints, he continued to be combative, spitting blood, and continuously
yelling, “I am Jesus! I am a murderer! I am God.”
Additional officers, including Defendants M. Smith, Anderson, Sgt.
Goettl (“Goettl”),1 Lt. Serrano (“Serrano”), and Capt. Gloudemans
(“Gloudemans”) arrived in response to the emergency team call. When they
arrived, the responding officers already had Brooks “decentralized”—which
the Court understands to mean “pinned”—on the floor and in mechanical

1

This defendant was mis-identified in Brooks’ complaint as “CO Gotti.”

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restraints. A make-shift spit mask was placed over Brooks’s face as he was
spitting blood at staff. Even while in restraints, Brooks continued to be
combative. He kept screaming statements such as, “I am a fighter, I am a
fighter, I am Jesus, I am God,” and “fuck white people.” After Brooks was
fully restrained and supervised by several officers, Serrano determined that
Brooks should be taken to the segregation unit. He ordered staff to assist
Brooks to his knees, but Brooks actively resisted by kicking and swinging his
arms and legs. Serrano explained to Brooks that if he did not comply, Serrano
would be forced to use a taser. Brooks responded incoherently, including
claiming to be “Jesus” again and again. Serrano again directed Brooks to
comply with being assisted up to his knees, but Brooks refused all directives
and continued to be combative, so in order to move Brooks to the segregation
unit, Serrano activated a taser on Brooks’s upper back and shoulder. It did
not produce any results.
Nevertheless, the team was able to get Brooks standing and walked
about five to seven feet out of the unit with him before Brooks became
resistant again. Serrano explained to Brooks that if he did not comply,
Serrano would have to use the taser on him again. Brooks continued to resist.
As a result of Brooks’s resistance, he was again decentralized to the ground
by staff, and Serrano was able to dry stun Brooks on his back with the taser.2
After the taser stopped, Brooks continued to yell, “I’m Jesus, fuck you
bitches” and “I’ll take all of you.” Brooks continued to be noncompliant
while being escorted. This included dragging his legs, not walking, and
actively trying to break the compliance holds of the escorting officers. Since
the distance to the segregation building was too far for the officers to carry
2

A dry stun is when the taser is placed directly on the body and discharged
without probes. This is typically done when at a close range.

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Brooks, a flatbed cart was used. Even after Brooks was placed on the flatbed
cart, he continued to resist the officers by flailing his body, trying to break the
officers’ holds, and incoherently yelling.
Serrano activated the taser at least two more times during the escort.
After every deployment of the taser, Serrano tried to talk to Brooks and give
him direction, but Brooks went back to being resistant and yelling, “I am
Jesus,” “I am God,” and “I am a murderer.” Brooks continued to resist by
attempting to kick and jerk his body away and trying to break the
compliance holds of the officers. Because the taser did not have the desired
effect, Stine eventually delivered three knee strikes to Brooks’s lower
abdomen in an attempt to gain compliance. After this, Brooks became less
resistant and the officers were able to escort him the rest of the way to the
segregation unit.
3.2.

The November 20, 2014 Staff-Assisted Strip Search

Once an inmate is transferred to the segregation unit, they must
undergo a strip search before they are placed in a cell. There are two types
of strip searches: staff-assisted and visual. A visual search is done by taking
an inmate to a small cell called a strip cell, taking handcuffs off the inmate
once they are in the strip cell, and letting the inmate manipulate all of his
own body parts. Because the inmate must be moved and handcuffs taken off,
not all situations can be handled by doing a visual strip search. If an inmate
has demonstrated non-compliance and force has to be used, the inmate is not
given the choice of a visual strip search. A staff-assisted strip search is done
instead to ensure staff and inmate safety.
In this case, due to Brooks’s assaultive behavior and continued
noncompliance, once the officers arrived in the segregation unit, Serrano
gave staff an order to perform a staff-assisted strip search on Brooks for
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safety and security concerns and in accordance with Wis. Admin. Code §
DOC 306.17(2). Brooks was escorted into the shower area for the search.
Serrano supervised the cutting off of Brooks’s clothing and the subsequent
strip search by an officer who is not named as a defendant here. While one
officer cut off Brooks’s clothes, Anderson began to remove Brooks’s socks.
Stine and Anderson observed two small green balloons filled with an
unknown substance fall out of his sock onto the floor. Upon later testing, it
was determined that the balloons contained K-2. Serrano avers that the
officers completed the remainder of the strip search after discovering the
balloons in order to ensure that Brooks had no other contraband secreted on
his person. None of the named defendants actually participated in the search
except Serrano as a supervising officer.
Brooks alleges in his complaint that during the search, officers
sexually assaulted him by touching his genitals and buttocks. Serrano avers
that the search was conducted in accordance with the applicable correctional
policies and procedures and that Brooks was not sexually harassed during
the search. He also reports that Brooks never complained at the time of the
search that he found the officers’ conduct harassing.
After the search, Brooks was taken to a local hospital for treatment of
his injuries. The medical staff reported superficial abrasions and, in a followup visit the next day, noted that Brooks had swelling in his wrists resulting
from struggling against the officers’ restraints. He did not sustain any
fractures, and he was prescribed ice packs and Tylenol for the joint swelling.
4.

ANALYSIS

Upon screening Brooks’ complaint, the Court permitted the following
three claims to proceed: (1) an Eighth Amendment claim that Defendants
used excessive force on him on November 20, 2014; (2) an Eighth
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Amendment claim that Defendants failed to protect him from other prison
officials’ use of excessive force on November 20, 2014; and (3) Fourth
Amendment and Eighth Amendment claims that Defendants subjected him
to an unconstitutional strip search on November 20, 2014. See (Docket #8 at
10). On the undisputed facts in this case, each of Brooks’ claims fails as a
matter of law. The Court will address each claim in turn.
4.1

Excessive Force and Failure to Protect

First is Brooks’ claim that Defendants used excessive force against him
on November 20, 2014. The Eighth Amendment prohibits the “unnecessary
and wanton infliction of pain” on prisoners. Outlaw v. Newkirk, 259 F.3d 833,
837 (7th Cir. 2001). When an official is accused of using excessive force, the
core inquiry is “whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.” Hudson
v. McMillian, 503 U.S. 1, 7 (1992); Santiago v. Walls, 599 F.3d 749, 757 (7th Cir.
2010). Several factors are relevant to this determination, including the need
for force, the amount applied, the threat the officers reasonably perceived,
the effort made to temper the severity of the force used, and the extent of the
injury caused to the prisoner. Hudson, 503 U.S. at 7; Fillmore v. Page, 358 F.3d
496, 504 (7th Cir. 2004). The Supreme Court has instructed that the question
is not whether the force employed was strictly necessary, viewed in
hindsight, but whether the force employed was motivated by “obduracy and
wantonness, not inadvertence or error in good faith.” Whitley v. Albers, 475
U.S. 312, 319 (1986).
Here, it is uncontested that Brooks caused a major disturbance by
upending a table, screaming incoherently, and punching another inmate.
Brooks’ violent rage necessitated a response from correctional officers, who
are charged with the unenviable task of maintaining discipline in the prison
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environment. See id. at 321–22 (“When the ‘ever-present potential for violent
confrontation and conflagration’ ripens into actual unrest and conflict, the
admonition that ‘a prison’s internal security is peculiarly a matter normally
left to the discretion of prison administrators’ carries special weight.”)
(internal citations omitted). The officers gave repeated direction for Brooks
to stop yelling and refrain from resisting their attempts to subdue him. Yet
he forcefully resisted at every turn, spitting blood in their faces and
attempting to strike them and squirm from their grasp. This is just the sort
of blatantly insubordinate and dangerous conduct that necessitates the
judicious application of force.
Moreover, here Defendants only escalated the force they
employed—from manual handling to tasing (several times) to “knee
strikes”—as lesser measures proved ineffective. As such, this case is
analogous to Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012). There, the
officer first ordered the inmate to “get against the wall,” which the inmate
refused to do. Id. at 1045. The officer bent the inmate’s wrist, but still the
inmate did not comply. Id. Finally, he “slammed” the inmate against the wall.
Id. The Seventh Circuit did not find this use of force excessive, observing that
the officer “did not use any force until [the inmate] disobeyed a command
that was designed to maintain order within the prison; and, when [he]
applied modest force, [the inmate] remained defiant. [The officer] did not
violate the Constitution by applying additional force.” Id. at 1046; see also
Burton v. Ruzicki, 258 F. App’x 882, 884 (7th Cir. 2007) (no excessive force
where officer escalated use of force in the face of “an insubordinate inmate
whom she knew posed an escape and assault risk and had caused other
disturbances recently”).

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The Court, viewing as a whole the events of November 20, 2014, finds
that Defendants’ escalation of force was not constitutionally impermissible.
Even the repeated use of the taser gun, though it admittedly can cause severe
pain, see Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009), was not unjustified
under these circumstances, where officers were presented with a defiant,
aggressive, and manic inmate bent on causing harm to everyone near him,
and officers gave repeated warnings that a taser would be employed if
noncompliance continued, see Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.
1984) (“The use of mace, tear gas or other chemical agent of the like nature
when reasonably necessary. . .to subdue recalcitrant prisoners does not
constitute cruel and inhuman punishment.”); Forrest v. Prine, 620 F.3d 739,
745–46 (7th Cir. 2010) (use of taser was not inappropriate where the plaintiff
was intoxicated, defiant, belligerent, was clenching his fists and yelling
obscenities, and had attacked another officer earlier that evening); Lewis, 581
F.3d at 477 (“In many circumstances—often when faced with aggression,
disruption, or physical threat—compelling compliance with an order is a
valid penological justification for use of a taser.”). And there is no evidence
that Defendants’ use of force, whether through the taser or otherwise, caused
Brooks any lasting harm.
At a minimum, on these facts, no reasonable jury could conclude that
the use of force was undertaken maliciously to cause Brooks harm rather
than in a good-faith effort to subdue Brooks’ alarmingly violent outbursts.
Hudson, 503 U.S. at 7; Bell v. Wolfish, 441 U.S. 520, 547 (1979) (noting that
“[p]rison administrators. . .should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain institutional
security”). As a result, Brooks’ claim for use of excessive force must be
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dismissed. Further, since no excessive force was employed against him on
November 20, 2014, no defendant can be accused of failing to protect him
from such force. Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). Thus,
Brooks’ failure to protect claim must also be dismissed.
4.2

Staff-Assisted Strip Search

Brooks’ remaining claim is that the staff-assisted strip search he was
subjected to on entering segregation was unconstitutional. Under certain
circumstances, a strip search in prison can constitute cruel and unusual
punishment, in violation of the Eighth Amendment. See Mays v. Springborn,
575 F.3d 643, 649 (7th Cir. 2009). This occurs when the search was motivated
by a desire to harass or humiliate rather than by a legitimate justification,
such as the need for order and security. See Calhoun v. DeTella, 319 F.3d 936,
939 (7th Cir. 2003). Even when supported by penological justification, a
search may still violate the Eighth Amendment if “conducted in a harassing
manner intended to humiliate and cause psychological pain.” Mays, 575 F.3d
at 649. The Seventh Circuit has summarized that “where there is no
legitimate reason for the challenged strip-search or the manner in which it
was conducted, the search may ‘involve the unnecessary and wanton
infliction of pain’ in violation of the Eighth Amendment.” King v. McCarty,
781 F.3d 889, 897 (7th Cir. 2015) (quoting Rhodes v. Chapman, 452 U.S. 337, 346
(1981)). Nevertheless, while “[t]here is no question that strip searches may be
unpleasant, humiliating, and embarrassing to prisoners, [] not every
psychological discomfort a prisoner endures amounts to a constitutional
violation.” Calhoun, 319 F.3d at 939.
Strip searches may also violate the Fourth Amendment’s prohibition
on unreasonable searches. In this context, courts give considerable deference
to judgments of prison officials about matters of institutional safety and
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security. See Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir. 2005). Nevertheless,
the Fourth Amendment continues to protect some degree of privacy for
convicted prisoners, at least when it comes to bodily searches, although that
protection is significantly lessened by the punitive purposes of prison and the
very real threats to safety and security of prisoners, correctional staff, and
visitors. See Peckham v. Wis. Dep’t of Corr., 141 F.3d 694, 697 (7th Cir. 1994).
The Seventh Circuit has emphasized that “it is difficult to conjure up too
many real life scenarios where prison strip searches of inmates could be said
to be unreasonable.” Id. In assessing the reasonableness of any search, the
court should balance “the scope of the particular intrusion, the manner in
which it was conducted, the justification for initiating it, and the place in
which it is conducted.” Bell, 441 U.S. at 559. Additionally, the Fourth
Amendment is only implicated when there is an intrusion into the body.
King, 781 F.3d at 900.
Neither the Fourth nor the Eighth Amendment proscribe the search
conducted in this case. There can be no question here that use of a staffassisted strip search was justified. First, the use of a strip search on inmates
entering segregation is expressly permitted under the Wisconsin
Administrative Code, and Brooks has not challenged the constitutionality of
that provision. See Wis. Admin. Code § DOC 306.17(2).3 The search helps
ensure that contraband does not enter the highly secured segregation units,
where the most unruly offenders are housed. See Simpson v. Mason, No.
13–cv–776–jdp, 2015 WL 5918928, at *13 (W.D. Wis. Oct. 9, 2015) (a staff-

3

The mere fact that the search was completed pursuant to prison policy is
not sufficient on its own to justify it, see King, 781 F.3d at 898, but that fact, coupled
with Brooks’ failure to offer reasons why this search policy is inappropriate, is part
of the Court’s holistic assessment of the constitutionality of the search.

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assisted strip search “serv[es] the legitimate penological purpose of keeping
the prison secure by ensuring that no prisoner transports contraband”);
Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1517
(2012) (“[C]orrectional officials must be permitted to devise reasonable search
policies to detect and deter the possession of contraband in their facilities”);
see also Whitman v. Nesic, 368 F.3d 981, 934 (7th Cir. 2004) (finding strip search
prior to urinalysis justified on prison concerns about contraband smuggling).
Moreover, Brooks’ unrestrained, psychotic conduct could have suggested
that he was under the influence of controlled substances, necessitating a
thorough search of his person. In fact, such contraband was discovered when
officers removed one of Brooks’ socks.
Second, Serrano avers that the decision to perform a staff-assisted
rather than visual strip search was predicated on Brooks’ aggression and his
unrelenting noncompliance prior to the search. It would have been unwise,
in Serrano’s estimation, to remove Brooks’ handcuffs and allow him to
remove his own clothing in light of his assaultive behavior mere minutes
earlier. To maintain order, security, and the safety of both the officers and
Brooks, Serrano concluded that a staff-assisted strip search was appropriate
under the circumstances, and the Court will not second-guess that decision.
Cherry v. Frank, No. 03–C–129–C, 2003 WL 23205817, at *11 (W.D. Wis. Dec.
4, 2003), aff’d, 125 F. App’x 63 (7th Cir. 2005); Simpson, 2015 WL 5918928, at
*9 (“[P]rison officials do not violate the Eighth Amendment when they have
legitimate reasons to deny a prisoner [the] choice” between a visual or staffassisted strip search.) In sum, it cannot be said that there was no legitimate
reason for a staff-assisted strip search and that it was done in order to harass
or humiliate Brooks. Calhoun, 319 F.3d at 939; Whitman, 368 F.3d at 934
(“[O]nly those searches that are ‘maliciously motivated, unrelated to
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institutional security, and hence ‘totally without penological justification’ are
considered unconstitutional.”) (quoting Meriwether v. Faulkner, 821 F.2d 408,
418 (7th Cir. 1987)).
Nor was this search conducted in a constitutionally impermissible
manner. During the search, officers removed his clothing and inspected his
body, including his genital area and between his buttocks, consistent with
Wisconsin Department of Corrections procedures. See Scott v. Schneider, Case
No. 14–CV–908, 2016 WL 5340211, at *2 (E.D. Wis. Sept. 19, 2016) (describing
staff-assisted strip search procedures). There is no indication that the search
was done in a public setting, open to other inmates and guards of both sexes,
or that the search occurred over a prolonged period. See King, 781 F.3d at 898.
And, contrary to the allegations of his complaint, there is no evidence
that Brooks was sexually harassed during the search. Even assuming that
during the search officers made contact with Brooks’ genitals and buttocks
(which is likely), this does not itself rise to the level of a constitutional
violation. Cherry, 2003 WL 23205817, at *12 (“Any manual search of an
individual’s body will require some amount of manipulation of the genitals
in order to accomplish the purpose of the search. Although ‘grabbing’ and
‘tugging’ could cause some discomfort and embarrassment, it does not rise
to the level of ‘unnecessary and wanton infliction of plain’ so long as it occurs
as part of an otherwise justified search.”). There is no competent evidence
that Defendants groped him, squeezed his genitals or buttocks, penetrated
his anus, or engaged in other conduct outside the scope of a permissible staffassisted strip search. Simpson, 2015 WL 5918928, at *10; Scott, 2016 WL
5340211, at *5; Lewis v. Stephen, 15-cv-051-jdp, 2016 WL 6638029, at *7 (W.D.
Wis. Nov. 9, 2016) (finding that evidence of anal penetration during staffassisted strip search could support jury finding of harassment or
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humiliation). In short, the mere fact that Defendants may have touched his
buttocks and penis to complete their search, without more, is not sufficient
to state an Eighth or Fourth Amendment claim. Simpson, 2015 WL 5918928,
at *10 (“Plaintiff seems to equate any unwanted touching with sexual assault
but this is simply not the standard for prison strip searches.”). Additionally,
without evidence showing that there was penetration into Brooks’ body, the
search does not implicate the Fourth Amendment at all. King, 781 F.3d at 900.
In sum, the undisputed facts fall well short of demonstrating that
Defendants’ strip search was an “unjustified effort to humiliate [Brooks]”
rather than a “routine” process grounded in legitimate safety and security
concerns. King, 781 F.3d at 898; Peckham, 141 F.3d at 697. As a result, Brooks’
claim relating to the November 20, 2014 strip search, whether analyzed
under the Fourth or Eighth Amendment, must be dismissed.
5.

CONCLUSION
Brooks failed to contest the facts Defendants proffered. Viewing those

undisputed facts in the light most favorable to Brooks, the Court is obliged
to conclude that each of his claims fails as a matter of law. This action will,
therefore, be dismissed in its entirety.
Accordingly,
IT IS ORDERED that Defendants’ motion for summary judgment
(Docket #18) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 19th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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