Rivera, Nataneal v. Jimenez, George, et al

Filing 70

Transmission of Notice of Appeal, Appeal Information Sheet, Docket Sheet and Judgment to Seventh Circuit Court of Appeals re 68 Notice of Appeal. (Attachments: # 1 Information sheet, # 2 Order, # 3 Judgment, # 4 Docket sheet) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - NATANAEL RIVERA,
OPINION AND ORDER
Plaintiff,
12-cv-476-bbc
v.
GEORGE J. JIMENEZ,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this prisoner civil rights lawsuit, plaintiff Natanael Rivera, who is representing
himself, is proceeding on two claims regarding his treatment at the Green Bay Correctional
Institution: (1) defendant George Jimenez forced plaintiff to walk naked in front of other
prisoners, in violation of the Eighth Amendment; and (2) defendant Jimenez used excessive
force on plaintiff by “kneeing” him repeatedly and pulling on his chain, in violation of the
Eighth Amendment.
Several motions are before the court. First, defendant has filed a motion for summary
judgment on both of plaintiff’s claims. Dkt. #16. In addition, plaintiff has filed several of
his own motions: (1) “second motion to sanction defendants and their coworkers,” dkt.
#47; (2) “motion of genuine issues of material fact precludes summary judgment for the
defendants,” dkt. #50; (3) “motion for counsel,” dkt. #54; (4) “motion for order,” dkt.
#55; and (5) “motion to take judicial notice.” Dkt. #65. Finally, in the context of his brief
in opposition to defendant’s motion for summary judgment, plaintiff includes sections that
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he calls “Plaintiff’s Motion to Amend” and “Amended Pleadings.” Dkt. #51. For the
reasons discussed below, I am denying all of plaintiff’s motions and granting defendant’s.
The undisputed facts are set forth below. Although both sides filed proposed findings
of fact, plaintiff did not respond to defendant’s proposed findings of fact. This is a common
mistake that pro se litigants make, which is why it is included in the court’s Memorandum
to Pro Se Litigants Regarding Summary Judgment Procedures, which plaintiff received with
the preliminary pretrial conference order, dkt. #14 at 14, and again when defendant filed
his motion for summary judgment. The memorandum includes the following discussion:
This court expects all litigants, including persons representing themselves, to
follow this court’s Procedures to be Followed on Motions for Summary
Judgment. If a party does not follow the procedures, there will be no second
chance to do so. Therefore, PAY ATTENTION to the following list of
mistakes pro se plaintiffs tend to make when they oppose a defendant’s
motion for summary judgment:
• Problem: The plaintiff does not answer the defendant’s proposed facts
correctly.
Solution: To answer correctly, a plaintiff must file a document titled
“Response to Defendant’s Proposed Findings of Fact.” In this document, the
plaintiff must answer each numbered fact that the defendant proposes, using
separate paragraphs that have the same numbers as defendant’s paragraphs.
See Procedure II.D. If plaintiff does not object to a fact that the defendant
proposes, he should answer, “No dispute.”
Under the court’s procedures, “[u]nless the responding party puts into dispute a fact
proposed by the moving party, the court will conclude that the fact is undisputed.”
Procedure to be Followed on Motions for Summary Judgment, II.C. However, because it
made no difference to the outcome of the case, I considered plaintiff’s own proposed findings
of fact in determining whether any of defendant’s proposed findings of fact were genuinely
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disputed.

UNDISPUTED FACTS
On July 14, 2011, plaintiff Natanael Rivera was housed in segregation at the Green
Bay Correctional Institution. Plaintiff was complaining about the way in which restraints
had been placed on him during a family video visit earlier in the day and about his water
being turned off.

He stated that he was fed up with the “abuse” he received from

correctional officials.
Plaintiff believed that he was experiencing “mental health issues” and he decided to
cover the window of his cell with a towel so that prison staff could not see into his cell. In
addition, plaintiff used his mattress to cover the traps on his cell door. (Plaintiff says that
he did these things because he believed that prison officials wanted to kill him.) Covering
the cell window is a violation of prison rules because it prevents staff from seeing whether
a prisoner is engaging in acts that might pose a security threat, such as assembling weapons,
hiding contraband or engaging in self harm.
Prison staff called for backup and began videotaping the incident. After plaintiff
failed to comply with repeated orders by different staff members to remove the towel and
mattress, he temporarily moved the towel to the side and told staff that he was not coming
out, he was sick of living in the cell and he would make staff gas him every day. He then
covered the window again.
Thomas Campbell, a lieutenant at the prison, instructed staff to prepare to extract

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plaintiff from his cell. Defendant George Jimenez was one of these officers. Plaintiff stated
that he would “swing at” anyone who came into his cell. When Campbell told plaintiff that
he had permission to use “intervening agents” to get compliance, plaintiff said, “I don’t care
bring it on.”
After plaintiff refused additional orders to remove the towel and mattress, Campbell
administered a one-second burst of “incapacitating agent OC Mark 9” into plaintiff’s cell.
Plaintiff then complied and removed the towel and mattress.
Before opening plaintiff’s cell door to remove him, Campbell directed plaintiff to
remove his clothes for a visual inspection. (Defendants say that it is “standard protocol” to
do this because of the “security and safety concerns potentially posed by noncompliant
inmates”; plaintiff says that staff were violating “DAI policies,” but neither party cites any
policies in support of his position.) Plaintiff complied and then came to the front of his cell
so that restraints could be applied. The officers did not put plaintiff’s clothes back on him
because the clothes were contaminated with the incapacitating agent.
Defendant and the other officers escorted plaintiff to the shower down the hall so that
he could rinse off the incapacitating agent.

In the process, plaintiff passed by other

prisoners’ cells. Neither defendant nor any of the officers tried to draw attention to plaintiff
during the walk. It took approximately 40 seconds to transport plaintiff from his cell to the
shower.
After plaintiff showered and was taken to a new cell, he covered the window of that
cell door with a mattress. When officers ordered plaintiff to remove the mattress, he stated

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that “he did not give a fuck,” he was going to do everything the hard way and he did not care
who he hurt. Campbell told plaintiff that, if he did not comply, Campbell would again
introduce incapacitating agents into his cell to gain compliance.

After Campbell

administered a one-second burst of “OC Projector” into his cell, plaintiff complied with
orders to come to the front of his cell so that restraints could be applied.
Defendant and other officers escorted plaintiff to another cell, where they directed
him to kneel so that his leg restraints could be removed. After removing the leg restraints,
staff ordered plaintiff to stand up and move inside his cell. When he refused multiple orders,
defendant and other officers attempted to lift plaintiff into the cell. At that point, plaintiff
began resisting by kicking his feet out behind him and trying to pull his arms away from
staff. After struggling for approximately ten seconds, defendant and the officers were able
to move plaintiff inside the cell. The video shows the officers using their knees to push
plaintiff’s back to move him forward. (This portion of the incident occurs at around minute
41 of the video tape).
After plaintiff was inside the cell, defendant and the officers removed plaintiff’s arm
restraints. Defendant made no forceful pulling or tugging motions while removing the
restraints.
Plaintiff refused a shower, a smock and medical attention.

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OPINION
A. Plaintiff’s Motions
1. Motion for leave to amend complaint
In the order screening plaintiff’s complaint, I did not consider potential claims about
the validity of the decisions to use chemical agents on plaintiff or to conduct a strip search
because plaintiff did not include any facts about those events in his complaint. Although
plaintiff named several defendants in the caption, I dismissed all of them except Jimenez
because plaintiff did not include any allegations about the others. Id. Plaintiff referred
generally to “defendants” throughout his complaint, but that is not sufficient to give each
defendant notice of plaintiff’s claim against him. Grieveson v. Anderson, 538 F.3d 763, 778
(7th Cir. 2008) (plaintiff may not rely on “[v]ague references to a group of ‘defendants,'
without specific allegations tying the individual defendants to the alleged unconstitutional
conduct”). After this order issued, plaintiff did not seek reconsideration of the decision and
he did not file an amended complaint to clarify his allegations, though he has filed various
other motions with the court since then.
In plaintiff’s brief in opposition, he says for the first time that he intended to
challenge the validity of the strip search and that he wishes to reinstate his claims against the
dismissed defendants. Dkt. #51 at 19-20. In addition, he challenges the decision to use
chemical agents. However, it is too late for plaintiff to raise these issues now. Shanahan v.
City of Chicago, 82 F.3d 776, 781 (7th Cir.1996) (plaintiff “may not amend his complaint
through arguments in his brief in opposition to a motion for summary judgment”). In any

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event, even if I were to grant plaintiff’s motion, it would not make any difference because
plaintiff has not adduced evidence that any of the officers involved violated his Eighth
Amendment rights at any point in the course of the events relevant to this case.

2. Motion for assistance in recruiting counsel
Accompanying plaintiff’s brief in opposition to defendant’s motion for summary
judgment was a request for appointment of counsel, the first such request that plaintiff has
filed in this case. Although a court does not have the authority to compel a lawyer to
represent a particular litigant, it may assist an indigent plaintiff in recruiting a lawyer. 28
U.S.C. § 1915(e)(1). However, a plaintiff must make reasonable efforts to find a lawyer on
his own before the court will intervene. Jackson v. County of McLean, 953 F.2d 1070 (7th
Cir. 1992). To prove that he has made reasonable efforts to find a lawyer, the plaintiff
should give the court rejection letters from at least three lawyers. In this case, plaintiff has
not shown that he made any efforts to obtain a lawyer on his own.
Even if I were to excuse plaintiff’s failure to follow Jackson, he has not shown that he
is entitled to court assistance. A court will seek to recruit counsel for a pro se litigant only
when he demonstrates that his is one of those relatively few cases in which it appears from
the record that the legal and factual difficulty of the case exceeds his ability to prosecute it.
Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). In this case, the claims are not
complicated. They do not require expert testimony or significant discovery. Rather, they
required plaintiff to do little more than explain his version of events. Plaintiff has shown

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that he is capable of doing that.
In his two-page motion, plaintiff says that he needs a lawyer because he has not been
able to make the court understand what he is saying and he cites as evidence his complaint,
which he says the court construed more narrowly than he intended. Plaintiff makes a similar
argument in what he calls his “motion to take judicial notice,” dkt. #65, which appears to
be a renewed motion for assistance in recruiting counsel. Although it is true that plaintiff
failed to include many important facts in his complaint, he did include many of those
missing facts in his summary judgment materials, showing that he was capable of doing so
earlier. He does not explain why he did not even try to file an amended complaint when the
court pointed out the problems with it.
To the extent that plaintiff believes that his failure to respond to defendant’s motion
for summary judgment shows that he does not have the ability to represent himself, I
disagree. Filing responses to proposed findings of fact is no more difficult than filing one’s
own proposed findings of fact, which plaintiff was able to do. Although I do not know why
plaintiff failed to respond to defendant’s proposed findings of fact, it is not because he did
not have the ability to do so.
Finally, plaintiff says that “mental health issues” and concerns over his spelling and
writing support a decision to help him obtain counsel.

However, in light of the

straightforward nature of his claims, I am not persuaded that his limitations render him
unable to represent himself.

Accordingly, I am denying his motions for assistance in

recruiting counsel.

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3. Other motions
Plaintiff’s motion for sanctions is a renewed version of a previous motion in which
plaintiff alleged that prison officials altered a video of the incidents at issue in this case. I
denied the first motion because plaintiff did not present any evidence to support it. In his
renewed motion and supporting declaration, he gives several reasons for his belief of
misconduct by prison officials. First, he says that he viewed the video on two separate
occasions, once on September 5, 2013, and again on September 17, 2013, but the video he
watched on September 17 was not the same video that he watched on September 5.
However, plaintiff does not identify any differences in the content between the two videos,
so this allegation is not helpful.
Second, plaintiff says that the label on the DVD he viewed on September 17, 2013,
did not have the same writing and exhibit sticker on it as either the DVD he viewed on
September 5 or the photocopy of the DVD that defendant filed with the court. These
differences suggest that there are multiple copies of the DVD, but they provide no support
for a belief that prison officials altered the content of the video.
Finally, plaintiffs says that one of the officers is wearing a “s[i]lver metallic watch” at
one point in the video, but he is wearing a “gray plastic watch” at another point in the video.
Plaintiff never explains what inference he wants the court to draw from this observation, but
presumably he believes it is evidence that some or all of the video was “faked” by prison
officials for the purpose of this lawsuit. Regardless, I see no differences in the watch that the
officer was wearing. Even if there were two watches, plaintiff does not deny that he is the

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prisoner in the video and he does not identify any specific portion of the video that is
inaccurate. Accordingly, I am denying his motion for sanctions.
In his “motion for order,” plaintiff seems to be complaining about orders in which the
court denied previous motions he filed in this case, but he does not ask for any specific relief
related to those orders. In addition, he says that prison officials are interfering with the
mailing of his summary judgment materials, but this issue is moot because the court has
received those materials. He concludes the motion by asking for appointment of counsel and
a transfer to a different facility. I denied plaintiff’s motion for assistance in recruiting
counsel for the reasons discussed above. He has not made any showing that he is entitled
to a prison transfer.
Finally, I am denying as unnecessary plaintiff’s “motion of genuine issues of material
fact precludes summary judgment for the defendants,” dkt. #50, because it is not a motion,
but simply a request to deny defendant’s motion for summary judgment.

B. Defendant’s Motion for Summary Judgment
1. Forced nudity
As I stated in the screening order, the Court of Appeals for the Seventh Circuit has
not considered a claim in which a prisoner was forced to be naked in front of other prisoners,
but I concluded in Ghashiyah v. Frank, No. 07-C-308-C, 2007 WL 2061053, *7 (W.D. Wis.
2007), that the standard for evaluating strip searches should apply to such a claim. Neither
side questions that conclusion in their summary judgment submissions.

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In evaluating whether a strip search violates the Constitution, the Court of Appeals
for the Seventh Circuit has stated that
only those searches that are maliciously motivated, unrelated to institutional
security, and hence totally without penological justification are considered
unconstitutional. In other words, the search must amount to calculated
harassment unrelated to prison needs, with the intent to humiliate and inflict
psychological pain.
Whitman v. Nesic, 368 F.3d 931, 934-35 (7th Cir. 2004) (internal quotations and citations
omitted).
No reasonable jury could find that plaintiff has met that standard in this case with
respect to defendant, whose only involvement was to help escort plaintiff to the shower. The
undisputed facts show that plaintiff’s clothes were not returned to him immediately after the
strip search because they were contaminated and that plaintiff was escorted down the hall
so that he could be taken to the shower. Although perhaps defendant or another officer
could have attempted to locate something to cover plaintiff during the escort, that failure
shows at most that defendant could have been more considerate; it does not show that
defendant or any of the other officers involved were trying to humiliate plaintiff.
Particularly because the escort lasted only 40 seconds and neither defendant nor the other
officers made any attempt to draw attention to plaintiff during the escort, there is no basis
for finding that defendant violated plaintiff’s constitutional rights.
In his brief, plaintiff says that a desire to humiliate him may be inferred because he
was not taken to the shower after a second incident involving chemical agents the same day.
Plaintiff says that the reason is that there was no “audience” present the second time.

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Plaintiff does not cite any evidence showing that more prisoners were able to see him during
the first incident. In any event, plaintiff does not deny defendant’s proposed finding of fact
that officers did not give plaintiff a shower after the second incident because he refused one.
Accordingly, I am granting defendant’s motion for summary judgment as to this claim.
Although I have concluded that it is too late for plaintiff to add claims about the
decision to use chemical agents or perform the strip search, even if those claims had been
included in his complaint, he could not prevail on them. Again, the facts show that the
officers had legitimate security justifications for both decisions, so no reasonable jury could
find that any of the officers involved violated plaintiff’s Eighth Amendment rights.

2. Excessive force
In his complaint, plaintiff identified two instances of alleged excessive force while
defendant and other officers were moving him to another cell.

First, he alleged that

defendant “knee[d]” him “over and over,” causing pain and bruising on his back. Second,
plaintiff alleged that defendant caused bruises again by pulling on the chain attached to
plaintiff’s hand restraints.
In determining whether an officer has used excessive force against a prisoner in
violation of the Eighth Amendment, the question is “whether force was applied in a good
faith effort to maintain or restore discipline or maliciously and sadistically for the very
purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320 (1986). The factors
relevant to making this determination include:

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•

the need for the application of force;

•

the relationship between the need and the amount of force that was used;

•

the extent of injury inflicted;

•

the extent of the threat to the safety of staff and inmates, as reasonably
perceived by the responsible officials on the basis of the facts known to them;

•

any efforts made to temper the severity of a forceful response.

No reasonable jury could find that defendant’s conduct involved a malicious or
sadistic application of force for the mere purpose of causing harm to plaintiff in connection
with either alleged incident. It is undisputed that plaintiff refused repeated orders to stand
up and walk into his cell on his own and that he resisted when staff tried to assist him.
Although the video shows that officers used their knees to help push plaintiff into his cell,
the video does not show any force that was excessive under the circumstances. The officers
were not striking plaintiff with their knees, only pushing him. Particularly because that
portion of the incident lasted less than ten seconds, I see no basis for finding that the force
defendant used was unreasonable, let alone malicious or sadistic.
In his declaration, plaintiff repeats his allegation that officers kneed him “over and
over,” causing bruises. Rivera Decl. ¶ 24, dkt. #53. However, at the summary judgment
stage, plaintiff cannot simply repeat conclusory allegations from his complaint in his
declaration; he must set forth specific facts showing that there is a genuine issue for trial.
Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990). In any event, because the
video shows clearly that defendant did not use excessive force, I could not credit his

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testimony to the contrary. Scott v. Harris, 550 U.S. 372 (2007) (in excessive force case,
concluding that lower court erred in accepting facts as alleged by plaintiff when they were
discredited by videotape).
With respect to the second incident, defendant denies that he used excessive force
when removing plaintiff’s restraints. Although the video does not show defendant’s or
plaintiff’s hands during the relevant time, it includes no signs of an unusual amount of force.
The only mention in plaintiff’s declaration about the amount of force used in the second
incident is a paragraph in which plaintiff writes “IRON x FLESH x FORCE = PAIN AND
SUFFERING.” Rivera Decl. ¶ 35, dkt. #53. Obviously, that statement would not allow a
juror to make a determination about the reasonableness of the force defendant used in this
particular case. Accordingly, I am granting defendant’s motion for summary judgment with
respect to plaintiff’s excessive force claims as well.

ORDER
IT IS ORDERED that
1.

Plaintiff Natanael Rivera’s (1) “second motion to sanction defendants and their

coworkers,” dkt. #47; (2) “motion of genuine issues of material fact precludes summary
judgment for the defendants,” dkt. #50; (3) “motion for counsel,” dkt. #54; (4) “motion for
order,” dkt. #55; (5) “motion to take judicial notice,” dkt. #65, and (6) “motion to amend,”
dkt. #51, are DENIED.
2.

Defendant George Jimenez’s motion for summary judgment, dkt. #16, is

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GRANTED.
3. The clerk of court is directed to enter judgment in favor of defendant and close
this case.
Entered this 9th day of December, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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