Compton v. Toler et al

Filing 69

ORDER DISMISSING CASE signed by Chief Judge Pamela Pepper on 1/27/2025. 65 Plaintiff's motion for extension of time DENIED. 47 Defendant's motion for summary judgment GRANTED. (cc: all counsel and mailed to Anthony Compton at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ANTHONY DEWAYNE COMPTON,
Plaintiff,
v.

Case No. 22-cv-497-pp

JOSHUA TOLER
Defendant.
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(DKT. NO. 47), DENYING PLAINTIFF’S MOTION FOR EXTENSION OF TIME
(DKT. NO. 65) AND DISMISSING CASE
______________________________________________________________________________
Plaintiff Anthony DeWayne Compton, Jr., who is incarcerated at
Oshkosh Correctional Institution and is representing himself, filed this case
alleging that several defendants violated his constitutional rights. The court
screened the complaint under 28 U.S.C. §1915A and allowed the plaintiff to
proceed on an Eighth Amendment claim against defendant Joshua Toler based
on allegations that Toler touched him inappropriately when escorting the
plaintiff to the showers; a retaliation claim against Toler for allegedly harassing
the plaintiff because the plaintiff had filed a grievance against Toler; and
retaliation claims against former defendants Emil Toney, Eric Henslin, E.
Norman and James Zanon based on allegations that, in retaliation for the
grievance the plaintiff had filed against Toler, they had issued the plaintiff a
conduct report and encouraged him to withdraw his grievance. Dkt. No. 11 at
13-14. On September 12, 2023, the court granted the defendants’ motion for
partial summary judgment on exhaustion grounds as to the plaintiff’s
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retaliation claims; the court dismissed defendants Toney, Zanon, Henslin and
Norman. Dkt. No. 36 at 13-14.
Defendant Toler has filed a motion for summary judgment on the merits.
Dkt. No. 47. The plaintiff has filed a motion for an extension of time to file a
response to the defendant’s reply in support of his motion for summary
judgment. Dkt. No. 65. This order grants the defendant’s motion for summary
judgment, denies the plaintiff’s motion for an extension of time and dismisses
the case.
I.

Facts1
The plaintiff alleges that on February 2, 2021, during an escort at

Oshkosh Correctional Institution, the defendant touched him inappropriately
by “putting his finger in the crack of [the plaintiff’s] rear end.” Dkt. No. 49 at
¶3.
A.

Housing and Security

At Oshkosh, individuals housed in the general population units can leave
their cells and/or housing units for recreation, library, religious services and
education. Id. at ¶4. They also can use the dayrooms on the unit, take showers
during dayroom time, make phone calls and sign themselves in/out of the
housing units. Id. at ¶5. Individuals housed in the general population units
generally conduct these activities without escort or restraint. Id.

1 The court includes only material, properly supported facts in this section. See

Fed. R. Civ. P. 56(c).
2

Individuals housed in the Restrictive Housing Unit (RHU) must remain in
their cells unless a staff member authorizes them to leave it for activities. Id. at
¶6. Any time an incarcerated individual is out of his cell in RHU, a staff
member must escort him using handcuffs and waist belts. Id. Staff members
use these types of restraints in the RHU to prevent movement, to keep
incarcerated individuals under staff control and to ensure safety. Id. Additional
restraints such as leg cuffs or two-person escorts may be necessary depending
on the incarcerated individual’s behavior and/or the situation. Id.
B.

February 2, 2021 Escort

On February 2, 2021, the defendant was working first shift in the RHU
and the plaintiff was housed in the RHU because he was serving disciplinary
separation sanctions for a conduct report. Id. at ¶¶9-10. That day, the plaintiff
was scheduled to use the unit shower and the defendant escorted him there.
Id. at ¶12. Because the plaintiff was housed in the RHU, the restraints required
for the plaintiff during this escort were handcuffs and a waist belt. Id. at ¶¶11,
13. A waist belt is a mechanical restraint consisting of a vinyl wrap/belt with
Velcro connectors that goes around the incarcerated person’s midsection and
connects to handcuffs in the front. Id. at ¶14. When utilizing this midsection
wrap restraint, the corrections officer must maintain a hands-on escort and
control over the incarcerated individual’s movements. Id. at ¶15.
There is video footage of the defendant escorting the plaintiff from his cell
to the showers on February 2, 2021. Id. at ¶16. The escort lasts forty-one
seconds. Id.; Exh. 1008. When the video begins, the defendant can be seen in
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the video frame of “N Tier Facing Control” outside the plaintiff’s cell door. Dkt.
No. 49 at ¶17; Exh. 1008, at 9:10:34. The defendant applied handcuff
restraints to the plaintiff’s wrists and attached the tether through the trap
door; the plaintiff placed his hands back into the cell prior to his cell door
opening. Dkt. No. 49 at ¶18; Exh. 1008 at 9:10:34.2 The RHU control bubble
unlocked the cell door and it slid open. Dkt. No. 49 at ¶19; Exh. 1008 at
9:10:39. The plaintiff exited his cell, facing the defendant. Dkt. No. 49 at ¶20;
Exh. 1008 at 9:10:42.
After the plaintiff came out of his cell, the defendant wrapped a restraint
belt around the plaintiff’s midsection, over his shirt, as the plaintiff exited his
cell door. Dkt. No. 49 at ¶21; Exh. 1008 at 9:10:43.3 The defendant moved
behind the plaintiff to secure the restraint. Dkt. No. 49 at ¶22; Exh. 1008 at
9:10:45. The defendant then moved in front of the plaintiff to unlock the tether
from the handcuffs so that they could walk to the next area. Dkt. No. 49 at
¶23; Exh. 1008 at 9:10:53. The plaintiff turned to face away from the camera,
and the defendant placed his hand onto the restraint belt against the plaintiff’s
back.4 Dkt. No. 49 at ¶24; Exh. 1008 at 9:11:02. The defendant’s blue-gloved

2 The plaintiff says that he disagrees with the sequence of the application of the

handcuffs and placement of the tether. Dkt. No. 61 at ¶18. This disagreement
does not amount to a material, factual dispute.
3 The plaintiff says that the defendant wrapped the restraint belt around the

plaintiff’s buttocks. Dkt. No. 61 at ¶21. The video does not support the
plaintiff’s assertion.
4 The plaintiff disagrees with this statement and says that from the time the

defendant grabbed the restraint until the time he took the restraint from
4

hand can be seen holding the belt and the plaintiff’s orange shirt can be seen
both above and below the waist/restraint belt. Dkt. No. 49 at ¶25; Exh. 1008
at 9:11:02.
The defendant escorted the plaintiff down the hallway; the defendant’s
hand does not move from the back of the plaintiff’s restraint belt; the restraint
belt does not move and the plaintiff’s clothing does not move. Dkt. No. 49 at
¶26; Exh. 1008 at 9:11:02 - 9:11:08. The defendant then can be seen entering
the video frame of “South Dayroom,” escorting the plaintiff through the hallway
opening. Dkt. No. 49 at ¶27; Exh. 1008 at 9:11:09. The defendant escorted the
plaintiff to another doorway with his blue-gloved hand still on the back of the
restraint belt. Dkt. No. 49 at ¶28; Exh. 1008 at 9:11:09 - 9:11:13. The
defendant removed the restraint belt, which came off completely. Dkt. No. 49 at
¶29; Exh. 1008 at 9:11:16.
The plaintiff stepped into the doorway of the shower room/stall while still
facing the defendant, and the defendant closed the door once the plaintiff was
inside the stall. Dkt. No. 49 at ¶30; Exh. 1008 at 9:11:17. The defendant
removed the plaintiff’s handcuff restraints, which remained connected to the
restraint belt through the trap door. Dkt. No. 49 at ¶31; Exh. 1008 at 9:11:17.
The restraint belt can be seen being passed through the plaintiff’s shower stall
trap door. Dkt. No. 49 at ¶32; Exh. 1008 at 9:11:30. The defendant left the
front of the shower stall. Dkt. No. 49 at ¶33; Exh. 1008 at 9:11:34.
around the plaintiff, the defendant’s hand was in the area of the plaintiff’s
buttocks. Dkt. No. 61 at ¶24; Exh. 1008 at 9:11:11-9:11:17.
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The defendant’s hand can be viewed on the video throughout the entire
escort. Dkt. No. 49 at ¶34. It does not move beyond holding the restraint wrap
against the plaintiff’s back. Id. The plaintiff’s shirt can be seen underneath the
waist restraint—both above and below the waist restraint—throughout the
entire escort. Id.
C.

Plaintiff’s Deposition Testimony

The plaintiff testified at his deposition that before the alleged incident, he
had neither positive nor negative interactions with the defendant. Id. at ¶35. He
testified that on February 2, 2021, an officer came to the plaintiff’s door to take
him to the shower because he was in “Seg” and moved under escort only. Id. at
¶36. The plaintiff testified that the officer put the Velcro waist strap around his
waist and that when the officer grabbed the Velcro waist strap, his finger went
in between the plaintiff’s butt crack. Id. at ¶37. The plaintiff testified that from
the time he started walking, the officer’s finger stayed in the same position the
entire time. Id. at ¶38. The plaintiff testified that the finger did not penetrate
his anus. Id. at ¶39.
The plaintiff testified that he had a t-shirt on, that the belt went over the
t-shirt and the finger was on top of the t-shirt. Id. at ¶40. The plaintiff testified
that he was wearing pants which were sagging down as he walked. Id. at ¶41.
He testified that the defendant did not do anything to hold up or pull down the
plaintiff’s pants. Id. at ¶42. The plaintiff testified that upon arrival at the
shower area, he was strapped to the door, and the waist strap was taken off,
leaving him handcuffed to a tether and the door; he testified that he then went
6

into the shower and was uncuffed. Id. at ¶43. He testified that there was
nothing said by the plaintiff or the defendant during the uncuffing process. Id.
at ¶44.
The plaintiff watched the video during his conduct report hearing. Id. at
¶45. He conceded that the defendant’s hand is positioned on the strap. Id. at
¶46. He expressed the belief, however, that the waist belt was lower than
normal, “hugging the top where [the plaintiff’s] waist and buttocks begin.” Id. at
¶47. The plaintiff testified that nothing happened other than what was
captured on the video. Id. at ¶48.
D.

Complaint and PREA Investigation

On February 7, 2021, the plaintiff submitted an inmate complaint
alleging that the defendant had inappropriately touched him while escorting
him to the showers on February 2, 2021. Id. at ¶49. The institution complaint
examiner’s office referred the complaint to the security director for further
investigation. Id. at ¶50. An investigation into the defendant’s actions was
initiated for potential Prison Rape Elimination Act (PREA) violations. Id. at ¶51.
On February 16, 2021, the plaintiff received a conduct report from the
security director for lying about an employee. Id. at ¶52. The security director
reviewed the camera footage and determined that the allegations leveled by the
plaintiff were not substantiated by the video evidence.5 Id. On March 1, 2021,

5 The plaintiff states that the video footage used during the disciplinary hearing

was of higher quality than the footage the defendant provided the plaintiff
during discovery. Dkt. No. 61 at ¶52.
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the plaintiff had a major disciplinary hearing where the hearing officer affirmed
the security director’s findings that the plaintiff’s allegations were untrue based
on the video evidence. Id. at ¶53. The plaintiff was found guilty of lying about
an employee and received a ten-day disciplinary separation disposition.6 Id.
The defendant was not interviewed for the Employee/PREA investigation;
the investigator determined it was unnecessary because the video refuted the
allegation. Id. at ¶54. On March 22, 2021, the PREA investigation was
completed. Id. at ¶55. The disposition of the case was “unfounded,” meaning
that the allegation was investigated and determined either not to have occurred
or not to constitute either sexual abuse or harassment. Id. at ¶56. The
defendant did not receive any discipline in response to the plaintiff’s
allegations. Id. at ¶57.
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
6 The plaintiff states that on July 16, 2021, Warden Cheryl Eplett used her

authority to dismiss the plaintiff’s conduct report for undisclosed reasons. Dkt.
No. 61 at ¶53. The plaintiff cites to “Dkt. No. 32, Exhibit 1009” in support of
this assertion. Dkt. No. 62 at ¶38. Docket Number 32, which is the plaintiff’s
brief opposing the defendants’ motion for summary judgment on exhaustion
grounds, does not reference or include an Exhibit 1009. However, the plaintiff
attached an Exhibit 1009 to Docket Number 34, which is his declaration
supporting his opposition to the defendants’ motion for summary judgment on
exhaustion grounds. Dkt. No. 34-1 at 1-2. Exhibit 1009 is a memo to the
plaintiff from Eplett stating, “[i]n light of mitigating factors, I am altering the
disposition on CR#001511043 to Dismissed in full.” Id. at 2. Eplett’s dismissal
of the disposition on the plaintiff’s conduct report is not relevant to the
resolution of the plaintiff’s Eighth Amendment claim.
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judgment as a matter of law.” Federal Rule of Civil Procedure 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:
(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.

Discussion

The defendant contends that the plaintiff’s Eighth Amendment claim
must be dismissed because the video footage of the escort refutes the plaintiff’s
allegations. Dkt. No. 48 at 5. He states that the undisputed evidence shows
that the defendant did nothing more than escort the plaintiff to the shower. Id.
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at 8. The defendant also contends that he is entitled to qualified immunity. Id.
at 9.
The plaintiff responds that the court must deny the defendant’s motion
for summary judgment because the video footage refutes the defendant’s
version of the incident. Dkt. No. 60 at 3. The plaintiff asserts that the
defendant placed his hand at the plaintiff’s buttocks, not at his back, and that
the defendant “subtly slid[] his finger into the crack of [the plaintiff’s] rear end,
through his loose clothing, while grabbing and holding his restraint, and to add
insult to injury he kept his finger in [the plaintiff’s] butt-crack for the duration
of the escort while subtly playing it off as if he was just holding the restraint.”
Id. at 8. Dkt. No. 61 at ¶29. The plaintiff also disputes that the defendant is
entitled to qualified immunity. Dkt. No. 60 at 10.
The Eighth Amendment protects incarcerated individuals from cruel and
unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991). An
Eighth Amendment claim consists of both objective and subjective
components. Farmer v. Brennan, 511 U.S. 825, 834 (1994). In the context of a
claim of excessive or unwanted force, the plaintiff must show both that (1) “the
alleged wrongdoing was objectively ‘harmful enough’ to establish a
constitutional violation,” and (2) “‘the officials act[ed] with a sufficiently
culpable state of mind.’” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting
Wilson, 501 U.S. at 298, 303). “An unwanted touching . . . intended to
humiliate the victim or gratify the assailant’s sexual desires, can violate a
prisoner’s constitutional rights whether or not the force exerted by the
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assailant is significant.” Washington v. Hively, 695 F.3d 641, 643 (7th Cir.
2012).
If the only evidence presented to the court had been the parties’
conflicting statements about the incident, there might be a genuine dispute of
material fact for a jury to decide. If a jury were to credit the plaintiff’s version—
that the defendant deliberately placed his finger in the crack of the plaintiff’s
rear end—there would probably have been a factual dispute because the
defendant denies that he sexually assaulted the plaintiff.
But the defendant has provided a video of the incident. Contrary to the
plaintiff’s assertion that the video refutes the defendant’s version of the events,
the video contradicts the plaintiff’s version of the events. The Supreme Court
has held that “[w]hen opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it,
a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 378-81 (2007).
The Seventh Circuit has held that not every movement must be captured on a
video for a court to find that it blatantly contradicts a particular version. See
Boyd v. Pollard, 621 F. App’x 352, 356 (7th Cir. 2015) (stating, “We conclude
that no juror who viewed the video could reasonably conclude—given the
professional behavior of the guards and minor injury sustained by Boyd—that
the guards, when outside the camera’s view, attacked Boyd.”) The Seventh
Circuit reemphasized in Boyd that summary judgment is improper only if a

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jury reasonably could find excessive force after reconciling the entirety of the
plaintiff’s assertions with the video evidence. Id.
In this case, the plaintiff was housed in the RHU, which required that the
defendant escort the plaintiff to the shower using a waist belt and handcuffs
and maintain a hands-on escort on the plaintiff. The video shows that the
defendant held onto the back of the plaintiff’s waist belt during the short walk
from the plaintiff’s cell to the shower, then removed the waist belt. The waist
belt was positioned over the plaintiff’s clothes and the defendant simply held
onto the belt. The video does not support the plaintiff’s assertion that the
defendant placed the waistbelt low on the plaintiff’s body such that the
defendant’s finger went into the crack of the plaintiff’s buttocks. Even if the
video did show this, the record contains no evidence that the defendant
purposefully touched the plaintiff in an effort to humiliate the plaintiff or gratify
himself. See Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir. 2014); see also
Smith v. Turner, 834 F. App’x 261, 263-64 (7th Cir. 2021) (video did not show
that officer’s actions were punitive or excessive in relation to legitimate purpose
of search and the undisputed evidence showed that any touching of genitals
was incident to proper search).
A reasonable factfinder could not conclude that the defendant violated
the plaintiff’s constitutional rights, and the court will grant the defendant’s
motion for summary judgment. Because the court has granted the defendant’s

12

motion on the merits, it will not consider the defendant’s argument that he is
entitled to qualified immunity.7
III.

Conclusion
The court GRANTS the defendants’ motion for summary judgment. Dkt.

No. 47.
The court DENIES the plaintiff’s motion for extension of time. Dkt. No.
65.
The court ORDERS that this case is DISMISSED. 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 Rules of Appellate Procedure 3, 4. This court may extend this
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 Fed. R.
App. P. 4(a)(5)(A).). If the plaintiff appeals, he will be liable for the $605
appellate filing fee regardless of the outcome of the appeal. If the plaintiff seeks

7 After the defendant’s motion for summary judgment was fully briefed, the

plaintiff filed a motion for an extension of time to file a response to the
defendant’s reply—effectively a sur-reply. Dkt. No. 65. The plaintiff
subsequently filed his response. Dkt. No. 66. This court’s local rules do not
provide for sur-replies. The defendant did not propose new facts or evidence in
his reply that would warrant a sur-reply from the plaintiff. See Slaughter v.
Lutsey, Case No. 17-C-1448, 2019 WL 11502919, at *1 (E.D. Wis. June 14,
2019), aff’d, 805 F. App’x 424 (7th Cir. 2020) (citations omitted). The court will
deny the plaintiff’s motion for extension of time to file a sur-reply. The court did
not consider the sur-reply when deciding the motion for summary judgment.
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to proceed on appeal without prepaying the appellate filing fee, he must file a
motion in this court. See Fed. R. App. P. 24(a)(1). The plaintiff may be assessed
a “strike” by the Court of Appeals if it concludes that his appeal has no merit. If
the plaintiff accumulates three strikes, he will not be able to file a case in
federal court (except a petition for habeas corpus relief) without prepaying the
full filing fee unless he demonstrates that he is in imminent danger of serious
physical injury. Id.
Under certain 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
Rule 59(e) must be filed within 28 days of the entry of judgment. The court
cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Rule
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 Fed.
R. Civ. P. 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 __ day of January, 2025.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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