Lobley v. Yang et al

Filing 84

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 6/30/2021. 72 Plaintiff's motion for summary judgment DENIED. 74 Defendant's motion for summary judgment GRANTED. (cc: all counsel and mailed to Deangelo Lobley at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEANGELO D. LOBLEY,
Plaintiff,
v.

Case No. 18-cv-812-pp

TOUKAO YANG,
Defendant.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (DKT.
NO. 72), GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 74) AND DISMISSING CASE
______________________________________________________________________________
Plaintiff Deangelo D. Lobley, who is incarcerated at Green Bay
Correctional Institution, filed this case alleging that the defendants violated his
constitutional rights. Dkt. No. 1. On September 29, 2020, the court granted in
part the defendants’ motion for partial summary judgment on exhaustion
grounds, dismissing the plaintiff’s retaliation claims against former defendants
Lt. Daniel Cushing and Michael Cole and one of his retaliation claims against
defendant Toukao Yang. Dkt. No. 69. The plaintiff’s excessive force claim and
his other retaliation claim against defendant Yang remain. The parties have
filed cross-motions for summary judgment on the remaining claims. Dkt. Nos.
72, 74. The court will deny the plaintiff’s motion, grant the defendant’s motion,
and dismiss the case.

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I.

Facts1
The plaintiff has been confined at Green Bay since July 2013. Dkt. No.

76 at ¶1; Dkt. No. 81 at ¶2. The defendant was a correctional officer from April
2017 to June 2018 and a correctional sergeant from June 2018 to winter 2019.
Dkt. No. 76 at ¶2. Green Bay is an adult, male, maximum-security institution.
Id. at ¶3.
The plaintiff has alleged an Eighth Amendment excessive force claim and
a First Amendment retaliation claim. Dkt. No. 76 at ¶4. Specifically, the
plaintiff claims that the defendant used excessive force when he slapped or
slammed the plaintiff’s arm after the plaintiff reached into the secured
workstation. Id. The plaintiff claims that the defendant retaliated against him
by waging a “campaign of harassment” because the plaintiff complained about
and filed this lawsuit against the defendant. Id.
A.

Facts related to excessive force claim

The incident giving rise to the plaintiff’s excessive force claim occurred on
April 28, 2017. Dkt. No. 76 at ¶5. That day, the defendant worked as the extra
officer in the south cell hall’s secured workstation, where he monitored the
security surveillance cameras and operated the secured entrances to the south
cell hall. Id. at ¶¶6-8. For safety and security reasons, inmates may not enter
or reach into the secured workstation. Id. at ¶9. For example, there may be

The court includes only material, properly supported facts in this section. See
Fed. R. Civ. P. 56(c).
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confidential or sensitive materials in the workstation, and several items could
be used as weapons or for self-harm. Id. at ¶10.
Around 3:00 p.m. on April 28, the plaintiff reached into the secured
workstation. Dkt. No. 76 at ¶11. According to the defendant, the plaintiff
reached his entire arm, from his fingers to his shoulder, into the secured
workstation. Id. at ¶12. According to the plaintiff, he reached somewhere from
a few inches past his wrist to halfway between his fingertips and elbow into the
secured workstation. Id. at ¶13. The plaintiff says he reached into the secured
workstation to return his pass in the basket there, which required him to reach
his hand into the station. Id. at ¶14; Dkt. No. 81 at ¶3.
An inmate receives a pass so he can attend events such as going to the
library, social services or psychological services. Dkt. No. 76 at ¶¶15-16. Once
an inmate completes his event, he returns his pass to a marked basket located
at the front of the secured workstation. Id. at ¶¶18-20. An inmate would have
needed to reach only from his fingertips to a few inches in front of his wrist to
place his pass in the basket. Id. at ¶21. An inmate would not need to reach
past his wrist to place his pass in the basket at the workstation. Id. at ¶22.
Based on how far the plaintiff reached his arm inside the workstation,
the defendant believed he was trying to grab items within the plaintiff’s reach
such as a stapler, keyboard, computer monitor, scissors and OC spray. Id. at
¶¶23-24. The defendant did not know what the plaintiff was reaching for and
felt concerned that the plaintiff may damage those items or use them as
weapons. Id. at ¶¶24-25. According to the defendant, he loudly ordered the
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plaintiff to remove his arm from the workstation, but the plaintiff did not
remove his arm. Id. at ¶27. The plaintiff disputes that the defendant ordered
him to remove his arm. Id. at ¶28. According to the defendant, because the
plaintiff ignored the defendant’s directive and because the plaintiff had reached
into the workstation, he attempted to gain control of the situation by making a
downward movement at the plaintiff’s arm to stop the plaintiff from taking
anything. Id. at ¶29. The plaintiff says the defendant smacked his arm,
specifically making contact with the part of his arm that is a couple of inches
up from his wrist and down from his elbow. Id. at ¶30; Dkt. No. 81 at ¶4.2
After the defendant made contact, the plaintiff removed his arm from the
secured workstation and started yelling that the defendant had assaulted him.
Dkt. No. 76 at ¶31. According to the defendant, the plaintiff yelled, “You cannot
touch me like that, that is considered assault and I am writing you up! You are
going to regret that! Where is the sergeant?! I want a white shirt now!” Id. at
¶32. The plaintiff admits that he probably yelled, that he used an “angry tone”
after the slap and that he asked to speak with the sergeant. Id. at ¶¶33-34.
According to the defendant, the plaintiff yelled so loudly that Sergeant John
Lannoye came from the other side of the cell hall to speak with the plaintiff. Id.
at ¶36. According to the plaintiff, Lannoye was standing “right across by the
door from the cage hall,” so he and another inmate who was present during the
incident (Michael Moffet) approached Lannoye to complain about what had
For purposes of summary judgment, the defendant agrees to call the contact
a smack or slap and agrees with the plaintiff’s description of where he made
contact with the plaintiff’s arm. Dkt. No. 76 at ¶30.
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happened. Id. at ¶37. Either way, Lannoye spoke with the plaintiff away from
the workstation as the defendant continued with his normal job duties. Id. at
¶¶38, 40.
Lannoye instructed the plaintiff and Moffet to return to their cells. Dkt.
No. 76 at ¶41. According to the defendant, Moffet complied and returned to his
cell, but according to the plaintiff, both he and Moffet refused to return to their
cells. Id. at ¶42. The plaintiff says he refused to return to his cell until he met
with a supervisor. Id. at ¶43. Lannoye calmed the plaintiff and called for a
supervisor. Id. at ¶44; Dkt. No. 81 at ¶5. Lieutenant Daniel Cushing
responded, spoke with the plaintiff and ultimately convinced him to return to
his cell. Dkt. No. 76 at ¶45.
Once the plaintiff returned to his cell, an officer arrived and
photographed his arm. Dkt. No. 76 at ¶46. The plaintiff felt a sting and
developed redness and a bruise from the smack and from hitting his arm on
the secured workstation while removing it. Id. at ¶47. The plaintiff did not
submit any health service requests for medical attention and at his deposition,
he could not remember if he verbally asked for medical attention. Id. at ¶48.
The stinging and redness stopped by the next day. Id. at ¶49. The plaintiff does
not have any permanent injuries from this incident. Id. at ¶50.
B.

Facts related to retaliation claim

The plaintiff filed an amended complaint alleging that the defendant
retaliated against him after he filed complaints and after he filed this lawsuit.
The plaintiff says the defendant retaliated against him by ordering him to the
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top bunk in his cell. Dkt. No. 76 at ¶53. The plaintiff suggests that this
happened on May 20, 2018, when he was moved to the south cell hall. Id.; Dkt.
No. 73 at ¶11.
The unit sergeant, not the defendant, assigns an inmate to either the top
or bottom bunk in a cell. Dkt. No. 76 at ¶¶54, 56. The plaintiff’s bed
assignments show he moved to the south cell hall on May 18, not May 20,
2018. Id. at ¶59. His bed assignments also show that he was assigned to the
top bunk on May 18 and that he had a cellmate. Id. at ¶¶60-61. The defendant
did not work at the prison on May 18 and he did not make the plaintiff’s cell
assignment on that date. Id. at ¶62. The defendant does not remember a time
where he ordered the plaintiff to the top bunk in a cell. Id. at ¶57. If staff had
assigned the plaintiff to a top bunk, however, the defendant would have
instructed the plaintiff to reside in the assigned top bunk. Id. at ¶58.
The plaintiff says the defendant retaliated against him by calling him gay
in front of other inmates. Dkt. No. 76 at ¶63. The defendant says he did not
know the plaintiff was gay and that, even if he had known, he would not have
told inmates because it could have jeopardized their safety, the defendant’s
safety or the safety and security of the institution. Id. at ¶¶64-66.
The defendant did not learn about the plaintiff’s inmate complaints
GBCI-2017-11396, GBCI-2018-11258, and GBCI-2018-13516, until “now,”
when he learned about them from the Wisconsin Department of Justice.3 Dkt.

The court assumes that “now” is January 29, 2021, when the defendant
signed his declaration. Dkt. No. 77.
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No. 76 at ¶68. Institution complaint examiner Alan DeGroot did not tell the
defendant about GBCI-2017-11396, GBCI-2018-11258 or GBCI-2018-13516.
Id. at ¶69. The defendant first learned that the plaintiff complained that he
called the plaintiff gay on July 5, 2018, when he was interviewed about the
plaintiff’s Prison Rape Elimination Act (PREA) complaint against him. Id. at
¶70. The defendant did not learn about this lawsuit until January 28,
2019,when he received an email from the Wisconsin Department of Justice
with the complaint and screening order. Id. at ¶71. The defendant says that
even if he had known about the plaintiff’s complaints and lawsuit, he would
not have retaliated against him for filing those things. Id. at ¶72.
II.

Analysis
A.

Summary Judgment Standard

“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 also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th Cir.
2011). “Material facts” are those under the applicable substantive law that
“might affect the outcome of the suit.” See Anderson, 477 U.S. at 248. A
dispute over “material fact” is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
A party asserting that a fact cannot be, or is, genuinely disputed must
support the assertion by:
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(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials; or
(B) showing 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.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
B.

Excessive Force Claim

The Eighth Amendment’s Cruel and Unusual Punishments Clause
prohibits “unnecessary and wanton infliction of pain” on prisoners. Hudson v.
McMillian, 503 U.S. 1, 5 (1992). In cases involving the use of excessive force,
the question is “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Id. at 7.
Factors for courts to consider in determining whether the use of force was
wanton and unnecessary include “the need for an application of force, the
relationship between that need and the amount of force used, the threat
‘reasonably perceived by the responsible officials,’ and ‘any efforts made to
temper the severity of a forceful response.’” Id. (quoting Whitley v. Albers, 475
U.S. 312, 321 (1986)).
Often circumstances require prison officials to balance the need “to
maintain or restore discipline” with using force and the risk of injury to
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inmates. Hudson, 503 U.S. at 6. Both situations require officials to act quickly
and decisively. Id. Likewise, both implicate the principle 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.”
Id. (internal citations and quotations omitted.) A “prisoner need not show a
‘significant injury’ in order to have a good claim under the [E]ighth
[A]mendment, if a guard inflicted pain maliciously or sadistically.” Guitron v.
Paul, 675 F.3d 1044, 1046 (7th Cir. 2012) (citing Hudson, 503 U.S. at 7).
The parties agree that the plaintiff reached into the secured workstation.
And while the parties dispute how far he reached into the workstation, the
plaintiff admits that he reached somewhere from a few inches past his wrist to
halfway between his fingertips and elbow, which means that he reached farther
into the workstation than necessary to return his pass. The defendant, who
believed the plaintiff might grab items inside the workstation, which included a
stapler, keyboard, computer monitor, scissors and an OC holster, slapped the
plaintiff’s arm and the plaintiff pulled it away. The plaintiff felt a sting and he
developed redness and a bruise from the smack, and from hitting his arm on
the workstation while removing it. The sting and redness had stopped by the
next day.
According to the plaintiff, after the incident, Lieutenant Cushing told him
he was being placed in the restrictive housing unit for attempting to reach into
the officer station to steal a bag of chips. Dkt. No. 81 at ¶6; Dkt. No. 80 at 3.
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The plaintiff states that, while there may be circumstances that require an
officer to use force, administrative policy does not permit officers to use force
on an inmate for attempting to commit a theft and, in particular, for attempting
to steal a bag of chips. Dkt. No. 72 at 4. The plaintiff has offered no evidence to
support his assertion that the defendant slapped him because he tried to steal
a bag of chips. Even if the defendant had told Cushing that the plaintiff tried to
steal a bag of chips (and the record does not support that he did), the plaintiff
still reached his arm into a secured workstation. Finally, while the record does
not support a finding that the defendant violated administrative policy by
slapping the plaintiff’s arm, even if his actions had violated policy, a violation of
prison policy, standing alone, does not state a claim for a constitutional
violation in a civil rights case. See Williams v. Mierzejewski, 401 F. App’x 142,
144 (7th Cir. 2010) (citing Guajardo-Palma v. Martinson, 622 F.3d 801, 806
(7th Cir. 2010); Domka v. Portage Cty., Wis., 523 F.3d 776, 784 (7th Cir.
2008)).
Nor has the plaintiff provided any evidence that the defendant slapped
him for the purpose of being malicious or sadistic. There is no dispute that the
plaintiff reached further into the workstation than was necessary to return his
pass. The defendant has asserted that he slapped the plaintiff’s arm out of a
concern for what the plaintiff might be trying to do with items in the
workstation. Without evidence that the defendant acted to inflict pain
maliciously or sadistically, the plaintiff is not entitled to relief.

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The record does not support a finding the defendant used excessive force
when he slapped the plaintiff’s hand away after the plaintiff reached into the
secured workstation. The court will grant the defendant’s motion for summary
judgment as to the plaintiff’s excessive force claim.
C.

Retaliation Claim

The plaintiff contends that the court should grant him summary
judgment on his retaliation claim. Dkt. No. 72 at 6. He says that after he made
a complaint about the defendant’s misconduct and filed this case, the
defendant retaliated against him. Id. The plaintiff states that on May 20, 2018,
he transferred to the South Cell Hall where the defendant worked and when he
entered his assigned cell, he selected the lower bunk. Id. According to the
plaintiff, the defendant singled him out and demanded that he move to the top
bunk and when the plaintiff asked to speak to a supervisor about the
suspected retaliation, he was placed in the restrictive housing unit. Id. The
plaintiff also says that the defendant harassed him by telling other inmates the
plaintiff wanted to have sex with them which incited an assault on the plaintiff,
which he described in complaint GBCI-2018-13516. Id. The plaintiff states that
the defendant’s actions started after the plaintiff made complaints and filed
this lawsuit. Id.
To establish a prima facie case of unlawful retaliation, a plaintiff must
show: (1) he engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First Amendment activity in the
future; and (3) the First Amendment activity was at least a motivating factor in
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the defendant’s decision to take the retaliatory action. See Douglas v. Reeves,
964 F.3d 643, 646 (7th Cir. 2020). If the plaintiff makes this prima facie
showing, the defendant must show that the adverse action would have
occurred anyway. Mays v. Springborn, 719 F.3d 631, 634 (7th Cir. 2013); see
also Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011) (if inmate meets all
three elements, burden shifts to show that officers would have taken the same
actions “even in the absence of protected conduct”). If the defendants meet this
burden, then the plaintiff must show that their proffered reason was
pretextual—in other words, a lie—and that the real reason was retaliatory
animus. Thayer v. Chiczewski, 705 F.3d 237, 252 (7th Cir. 2012).
The plaintiff has a First Amendment right to complain about prison
conditions. See Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir. 2010). He has
satisfied the first element of a retaliation claim; he exercised his First
Amendment rights by filing the inmate complaints and this lawsuit. The
defendant contends that the plaintiff cannot satisfy the second and third
elements of a retaliation claim based on his cell assignment allegations. The
court agrees. The plaintiff has not explained why he preferred the bottom bunk
and, without more, the court cannot conclude that the defendant’s direction to
the plaintiff to move to the top bunk (where the unit sergeant had assigned
him) would deter future the plaintiff from future exercises of his First
Amendment activity. See Douglas, 964 F.3d at 643. Moreover, while the
plaintiff states that the defendant demanded he move to the top bunk on May
20, 2018, the record shows that the unit sergeant assigned the plaintiff to the
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top bunk on May 18, 2018. A reasonable factfinder could not conclude that the
defendant retaliated against the plaintiff by directing him to an upper bunk to
which he already had been assigned. The defendant does not remember telling
the plaintiff to go to the upper bunk but, assuming he did, a reasonable
factfinder could not conclude that he did so with a retaliatory motive because
the plaintiff already had been assigned to the upper bunk.
Turning to the allegations regarding homophobic slurs, the defendant
concedes that being called gay in front of other inmates could deter future First
Amendment action, thereby satisfying the second element of a retaliation claim.
But while the defendant denies using homophobic slurs regarding the plaintiff,
the dispute over whether he did so is immaterial; even assuming that the
defendant called the plaintiff homophobic names or made homophobic
comments about the plaintiff, the timing of the alleged name-calling shows that
the defendant could not have done it in retaliation for the plaintiff’s complaints
and for filing this case.
The secured workstation incident took place on April 28, 2017. The
plaintiff filed this case on March 25, 2018. Almost three months later, on June
20, 2018, he filed offender complaint GBCI-2018-13516, alleging that the
defendant used homophobic slurs against him. The plaintiff filed the amended
complaint adding his retaliation claim against the defendant on February 14,
2019. The defendant first learned that the plaintiff had filed a complaint
alleging that he called the plaintiff homophobic names on July 5, 2018—after
the June 20, 2018 inmate complaint the plaintiff filed. The defendant learned
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the plaintiff had filed this lawsuit on January 28, 2019. And the defendant did
not learn that the plaintiff filed inmate complaints related to his allegations in
this case until he learned about them from the Wisconsin Department of
Justice in January 2021. The plaintiff has not provided specific information
about the timing of the alleged homophobic name-calling, but it had to have
been before the plaintiff filed his June 20, 2018 inmate complaint in which he
raised the allegations. The defendant did not know about the inmate
complaints or this lawsuit during the time of the alleged retaliatory namecalling, i.e., before June 20, 2018.
A reasonable jury could not conclude that the defendant retaliated
against the plaintiff. The court will therefore grant the defendant’s motion for
summary judgment as to plaintiff’s retaliation claim.
III.

Conclusion
The court DENIES the plaintiff’s motion for summary judgment. Dkt. No.

72.
The court GRANTS the defendant’s motion for summary judgment. Dkt.
75.
The court DISMISSES this case. The clerk will enter judgment
accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
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deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under limited circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 30th day of June, 2021.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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