Grant, James v. Gill et al

Filing 58

ORDER granting in part and denying in part 40 Motion for Summary Judgment. Defendants Beahm, Lunde, Bedker, Olig, Kitzman, Umentum, Schouten, Lukas, Marwitz, Schneider, Greff, and Meli are DISMISSED from the case. The schedule is AMENDED as stated within the opinion. Signed by District Judge James D. Peterson on 10/30/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JAMES EDWARD GRANT,
Plaintiff,
v.
JEFFERY GILL, JOSEPH BEAHM,
JESSE SCHNEIDER, BRIAN GREFF,
GABRIEL UMENTUM, DEREK SCHOUTEN,
MICHAEL J. LUNDE, LUKAS MARWITZ,
TODD OLIG, JUSTEN KITZMAN, TONY MELI,
and AARON BEDKER,

OPINION & ORDER
14-cv-436-jdp

Defendants.
Plaintiff James Edward Grant, a former state of Wisconsin inmate currently living in
Madison, brings claims that defendant prison officials used excessive force on him while they
escorted him to a disciplinary hearing, and that he was sexually assaulted during a strip search
while housed at the Waupun Correctional Institution (WCI). Defendants have filed a motion
for summary judgment. After I ordered supplemental briefing and gave Grant a chance to
conform his proposed findings of fact to this court’s rules, see Dkt. 54, the motion for summary
judgment is now fully briefed. I conclude that there are disputed issues of material fact over
defendant Jeremy Gill’s decision to use force against Grant that need to be resolved at trial. I
will grant summary judgment to defendants on the remainder of Grant’s claims.

UNDISPUTED FACTS
Plaintiff James Edward Grant is no longer in prison. The events in question took place
while Grant was incarcerated at WCI. At that time, defendants Jeffrey Gill, Joseph Beahm,
Michael Lunde, Aaron Bedker, Todd Olig, and Justen Kitzman were employed at WCI as

correctional officers. Defendants Gabriel Umentum, Derek Schouten, and Lukas Marwitz
worked as correctional sergeants. Defendant Jesse Schneider was a lieutenant. Defendant Brian
Greff was a corrections program supervisor. Defendant Anthony Meli was the security director.
On May 15, 2014, at about 2:00 p.m., Grant was scheduled to have “due process
hearings” on three conduct reports he had received. None of the defendants were directly
involved in the events underlying those conduct reports.
Grant says that on that morning, during the passing of breakfast meals in the Restrictive
Housing Unit, defendant Gill came to Grant’s cell and asked him, “[A]re you going to your
Due Process Hearing?” Grant said yes. Gill responded, “Well you don’t get breakfast then.”
Grant did not receive breakfast that day.
At about 2:00 p.m., defendants Gill, Bedker, and Umentum came to escort Grant to
the hearing room. Grant says that Gill told him, “If you look at me I will interpret that as a
threat to my safety.” Gill placed Grant into wrist restraints and directed him to remain facing
forward once his cell door was opened. Grant did not say that the wrist restraints were too
tight.
Most of the escort and following events is captured on the recording made by Bedker.
See Dkt. 43-1. Gill began escorting Grant to the hearing room. Bedker recorded the escort.
Umentum followed behind by several feet. As soon as the escort began, Grant started talking
directly to the camera making statements that defendants Beahm and Gill had broken another
inmate’s thumb. Grant was told multiple times during the escort by Gill to remain facing
forward, because he turned his head several times. He also accused Gill of squeezing his arm
too hard during the escort.

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Grant and Gill and entered the “due process room” where the hearing would be held.
They moved into the room, out of the range of the camera held by Bedker, who was still
following.1 At this point, Gill says that Grant turned his head to the left, which Gill took as a
threat because he thought that Grant was looking to see where Gill was so that he could prepare
an attack. Grant admits that he did not keep his head forward, but he states that he looked
down when Gill grabbed Grant’s hand to handcuff it to a ring inside the hearing room. Gill
then pushed Grant into the wall while loudly telling him to continue facing forward. Gill says
that he “directed” Grant into the wall. Grant says that Gill “threw” him into the wall.
This happened as Umentum was walking into the room. It is unclear from Umentum’s
declaration whether he saw Gill’s use of force. Umentum radioed for other security staff to
respond to the due process room in the Restrictive Housing Unit to assist, and he requested
that staff bring leg restraints. Bedker entered the due process room about three or four seconds
after Gill.
Defendants Beahm and Schneider responded to Umentum’s radio call. Beahm applied
leg restraints to Grant. Because of Grant’s reported non-compliance, Schneider decided to place
Grant into “control status” and for staff to escort Grant to a strip cell for a strip search. Control
status can be used for segregation inmates who exhibit disruptive behavior. If an inmate is
placed into control status, the inmate must undergo a strip search before he is placed in the
control cell. “Staff-assisted” strip searches, in which a restrained inmate’s body parts are

1

Grant says that it was “ironic” that Umentum walked through view of the camera as Grant
and Gill entered the room. By this I take him to mean that Umentum was attempting to block
the camera. The state says that Umentum “got directly behind defendant Gill and Grant so he
could keep a direct visual.” Dkt. 51, at 12, ¶ 35. This is ultimately immaterial, as it was the
doorway of the due process room itself that obscured Gill pushing Grant into the wall, not
Umentum.

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manipulated by prison officials, are used when an inmate has already demonstrated noncompliance.
Once Grant was secured at the strip cell, Gill was relieved by defendant Schouten. Gill
had no involvement with the strip search. A nurse checked Grant’s complaint of injuries: she
stated that he had no markings on his right wrist, and that she could fit three fingers in each
ankle restraint. In his deposition, Grant admits that he did not sustain any physical injury from
the events, although he does say that he suffered pain in his jaw, and that the restraints or
defendants’ actions hurt his wrists and ankles.
Beahm conducted the strip search. The parties agree that Umentum secured one of
Grant’s arms during the search. They disagree about whether defendants Schouten or Olig
secured the other arm. Defendants Greff and Lunde were also present for at least part of the
strip search but did not directly take part. Defendants Marwitz and Kitzman were not present
for any of these events.
Bedker’s footage shows how Beahm conducted the strip search. Grant remained
handcuffed with his face toward the strip cage. Beahm cut off Grant’s clothes and had him
kneel. Beahm used bladed hands to lift Grant’s scrotum and spread Grant’s buttocks. Beahm
also inspected Grant’s mouth, hair, ears, fingers, armpits, feet, and toes. Beahm found no
contraband. Grant’s midsection was wrapped in a towel and he was taken to his cell. He did
not appear at his due process hearing.
Gill gave Grant a conduct report for disobeying orders during the escort and for lying
when he said that Beahm and Gill had broken another inmate’s thumb. Defendant Meli
reviewed the conduct report and allowed it to proceed as a major offense.

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ANALYSIS
Grant brings claims that defendants retaliated against him, used excessive force against
him, and performed an unnecessary strip search for the purpose of humiliating him.2
To succeed on a motion for summary judgment, the moving party must show that there
is no genuine issue of material fact and that he is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of
material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a
jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d 686, 692
(7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record must
be drawn in the nonmoving party’s favor. Baron v. City of Highland Park, 195 F.3d 333, 338
(7th Cir. 1999). If the nonmoving party fails to establish the existence of an essential element
on which that party will bear the burden of proof at trial, summary judgment for the moving
party is proper. Celotex, 477 U.S. at 322.
A. Excessive force
In his operative complaint, Grant alleged that defendants violated the Eighth
Amendment by using excessive force against him at several points during the events detailed

2

In a footnote to its brief-in-chief, defendants contend that Grant’s in forma pauperis status
should be revoked because his claims in this case involve events concerning past harm, and he
has “struck out” under 28 U.S.C. § 1915(g). I caution the state against raising arguments in
footnotes. See Harmon v. Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013) (“We have often said
that a party can waive an argument by presenting it only in an undeveloped footnote”). But in
any event, defendants’ argument is meritless because I have already concluded that Grant’s
allegations about being sexually assaulted could pass muster under the “imminent danger”
exception to § 1915(g). See Dkt. 2, at 2 n.1 & Dkt. 14, at 1 n.1. Grant’s transfer away from
the Waupun Correctional Institution and his eventual release after he filed the original
complaint in this lawsuit do not deprive him of the ability to proceed in forma pauperis in this
case. Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003).

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above. “The unnecessary and wanton infliction of pain on a prisoner violates his rights under
the Eighth Amendment.” Lewis v. Downey, 581 F.3d 467, 475 (7th Cir. 2009) (internal
quotation omitted). To prevail on a claim of excessive force against a correctional officer, a
plaintiff must prove that the officer applied force “maliciously and sadistically for the very
purpose of causing harm,” rather than “in a good faith effort to maintain or restore discipline.”
Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320–21
(1986)). The factors relevant to this determination include (1) why force was needed; (2) how
much force was used; (3) the extent of the injury inflicted; (4) whether the defendant perceived
a threat to the safety of staff and prisoners; and (5) whether efforts were made to temper the
severity of the force. Whitley, 475 U.S. at 321.
1. Handcuffs
Grant alleged that at the beginning of the escort, defendant Gill maliciously placed
handcuffs on him tightly. But at summary judgment, Grant does not adduce any evidence
supporting this allegation. Grant says nothing in his opposition materials about the handcuffs.
In the video, Grant did not say anything to Gill about the handcuffs being too tight. And in
his deposition, Grant said that he was not physically injured during the entire sequence of
events. There is simply nothing in the summary judgment record supporting this claim.
At this stage of the case, it is Grant’s responsibility to put on evidence showing Gill’s
deliberate indifference. Because he fails to provide any evidence showing that Gill maliciously
handcuffed him tightly, I will dismiss this claim.
2. Squeezing arm
During the escort, Grant complained about Gill squeezing his arm as he led him toward
the hearing room. But not “every malevolent touch by a prison guard gives rise to a federal

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cause of action.” Hudson, 503 U.S. at 10. “Even if an officer’s use of force serves no good-faith
disciplinary purpose, the force may be so ‘de minimis’3 that it does not violate the Eighth
Amendment.” Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir. 2009) (citing Hudson, 503
U.S. at 10). See also DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000) (officer’s shove of
prisoner into door frame considered de minimis); Lunsford v. Bennett, 17 F.3d 1574, 1582 (7th
Cir. 1994) (pouring bucket of water on prisoner and causing bucket to hit him in the head
considered de minimis).
Here, Gill’s grip on Grant was arguably fully justified by the penological task at hand:
escort to the hearing room. The video itself does not establish exactly how hard Gill gripped
Grant’s arm or how much pain it caused Grant. But even if Gill squeezed harder than was
necessary, no reasonable observer could watch the video and conclude that this use of force
rose above the de minimis threshold. The video shows a completely unremarkable escort by
Gill. At no point does he appear to be applying so much pressure to Gill’s arm that a reasonable
observer could come close to thinking that his actions violated the Eighth Amendment.
Accordingly, I will dismiss this claim.
3. Push into wall
It is undisputed that defendant Gill pushed Grant into the wall of the hearing room.
The parties characterize it somewhat differently, with Gill saying that he “directed” Grant into
the wall, while Grant says that Gill “threw” him into the wall. The view of the incident was
obscured in the video because defendant Bedker trailed Gill and Grant as they entered the
room.

3

This phrase is based on the legal maxim de minimis non curat lex, meaning that “the law does
not concern itself with trifles.” See Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir. 2012).

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Gill says that Grant was becoming increasingly agitated, and upon entering the room,
Grant looked to his left, toward Gill, which Gill considered to be a “target glance” raising the
possibility that Grant was going to attack him or another officer. If a jury believed Gill’s version
of events, he would be entitled to summary judgment. Prisons are dangerous places and
correctional officers need to maintain order and protect themselves. Grant argues that he was
never physically violent in prison, but even if this is true, Gill could nevertheless reasonably
consider him to be a risk. Gill’s shove, if intended to serve a security purpose, would not violate
the Eighth Amendment even if the shove was marginally unreasonable given the circumstances.
See Whitley v. Albers, 475 U.S. at 319 (“The infliction of pain in the course of a prison security
measure . . . does not amount to cruel and unusual punishment simply because it may appear
in retrospect that the degree of force authorized or applied for security purposes was
unreasonable, and hence unnecessary in the strict sense.”); Guitron v. Paul, 675 F.3d 1044,
1046 (7th Cir. 2012) (“Custodians must be able to handle, sometimes manhandle, their
charges, if a building crammed with disgruntled people who disdain authority . . . is to be
manageable.”).
But because of the difficulty of proving a party’s subjective state of mind, cases involving
motivation and intent are often inappropriate for summary judgment. See Alexander v. Wis.
Dep’t of Health and Family Servs., 263 F.3d 673, 681 (7th Cir. 2001); see also Sallie v. Thiel, 23
F. App’x 586, 589 (7th Cir. 2001) (applying this proposition to prison excessive force case). A
jury would not have to believe Gill’s version of events or his security-based motive. The video
does not show Grant making a target glance. Grant says that he merely looked down as Gill
placed a handcuff or tether on his restraints. Defendants argue that because Grant admits that
he moved his head even after being directed not to do so, Gill was justified in pushing him into

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the wall. But their stated justification continues to be a security-based one. Defendants do not
explain how Grant looking down could have threatened Gill. The state also argues that the
video shows that Grant was increasingly “agitated.” But a jury would not necessarily have to
agree with that characterization or make the logical leap that his agitation created more of a
threat. Another reasonable way of looking at the video might be that Grant’s incessant chatter
got under Gill’s skin. Slamming him into the wall out of frustration could violate the Eighth
Amendment.
Grant theorizes that Gill had a different rationale: he was retaliating against him for
exercising his First Amendment right to defend himself in his conduct report hearings. As
discussed in more detail below, Grant’s proposed finding that Gill earlier intentionally withheld
breakfast from him because he chose to attend the hearing provides evidence that could lead a
reasonable jury to believe that Gill wanted to punish Grant for attending the hearing. Grant
also states—and the video shows—that Gill shoved Grant only after he was out of camera
range, despite Grant turning his head several times while he was in camera range. This raises
the inference that Gill’s shove wasn’t about Grant’s head turn at all, but rather was born out
of a retaliatory motive or his irritation with Grant.
As I discussed above, no matter the reason for Gill’s actions, his shove would not violate
the Eighth Amendment if I concluded that it was merely an exercise of de minimis force. And
there is some support in the case law for shoves by correctional officers qualifying as
de minimis. See DeWalt, 224 F.3d at 620 (7th Cir. 2000) (“The shove [into a doorframe] was
a single and isolated act, unaccompanied by further uses of force. Moreover, the bruising Mr.
DeWalt allegedly suffered does not appear to have been particularly serious.”); see also Hudson,
503 U.S. at 9 (“That is not to say that every malevolent touch by a prison guard gives rise to

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a federal cause of action. . . . ‘Not every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers, violates a prisoner’s constitutional rights’” (quoting Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). Moreover, although there is no de minimis
injury standard, I note that Grant’s injuries were minor. He says that he suffered no physical
injury but he does state on the video that his jaw hurt from Gill’s maneuver.
But ultimately I cannot conclude as a matter of law that Gill’s actions constituted
de minimis force. Grant’s statement that he was “thrown” into the wall suggests that Gill’s
effort was more violent than a mere shove. And even given examples like DeWalt, I do not
understand the body of Eighth Amendment excessive force law to give correctional officers
carte blanche to slam inmates against the wall for no reason or malicious reasons. I will deny
summary judgment to defendants on this claim against Gill. It will be up to the jury to decide
how much force Gill used and his reasons for it. I will instruct the jury on the Whitley factors,
as well as the de minimis force rule if the facts presented at trial give reason for such
instructions.
Grant also brought an excessive force claim against defendant Bedker for not
intervening in Gill’s actions. At summary judgment he suggests that Bedker intentionally
delayed in entering the room so that the altercation would not be on camera. It’s true that
Bedker did not capture the shove on tape, but nothing in the video raises a reasonable inference
that this was intentional, given the distance he had to cover and relatively confined spaces in
which they were working. Grant provides nothing more than speculation that Bedker conspired
to allow Gill room to harm him off camera, so I will dismiss this claim against Bedker.4

4

As mentioned above, see supra note 1, Grant suggests that Umentum attempted to block the
recording by walking through the shot on his way into the hearing room. Grant did not include
this claim against Umentum in his complaint, but even if he had, I would dismiss it because

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4. Strip search – excessive force
As I discuss in further detail below, Grant brings a claim that defendants unnecessarily
humiliated him by giving him a strip search following the altercation with Gill. But also, Grant
recently clarified that he would like to bring an excessive force claim about the strip search.
Grant alleged that he suffered severe pain from being handcuffed to the strip cage, and also
suffered pain from defendant Beahm spreading Grant’s buttocks, “forcefully” spreading Grant’s
fingers apart, and inserting his fingers in Grant’s mouth.
Regarding Grant’s handcuffs, it is unclear from the video whether Grant was actually
tethered to the strip cage. The video does show that Grant stood facing the cage with his wrists
handcuffed behind his back, while two defendants held his wrists.5 He did complain about his
wrist while he was at the strip cage, but nothing in the video shows the defendants twisting his
wrists in an unnatural fashion, and Grant concedes that he was not physically injured. Grant
had the opportunity at summary judgment to provide more detail about exactly why he believes
that defendants’ actions violated his rights with regard to his wrist restraints, but he has not
done so. I do not doubt that having one’s wrists handcuffed behind one’s back could be an
uncomfortable experience, but the record here shows no more than de minimis force used by
the officers to secure Grant while he was being strip searched, so I will dismiss these claims.

the footage does not raise a reasonable inference that Umentum intentionally attempted to
interfere with the shot.
5

As stated above, the parties dispute which of the defendants held Grant’s wrist. The video is
dispositive, in a sense, because it shows the two men holding Grant’s arms. But as an observer
who cannot identify each defendant on sight without more information about what each person
looks like, I cannot resolve the dispute at this point.

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As for the strip search itself, it is important to clarify what this excessive force claim is
not about. It is possible for a correctional officer to use even very minimal force during a strip
search that could be maximally humiliating to an inmate. But that theory is discussed below.
The question here is whether Beahm’s allegedly “forceful” actions were excessively so given the
circumstances. The video shows that they were not excessive. Regarding Grant’s specific
allegations, Beahm indeed spread Grant’s buttocks, but he did not do so particularly violently
or in a manner that would suggest a malicious attempt at causing pain. Although Beahm’s
actions in checking Grant’s mouth are partially obscured in the video, nothing he did suggests
excessive force. Beahm opened Grant’s jaw with his hand and may have slightly inserted his
fingers into Grant’s mouth in the course of spreading his lips to check his gums. But those
actions are completely consistent with an honest attempt at examining an inmate’s mouth.
Beahm spread Grant’s fingers while other defendants held his handcuffed wrists. Grant said
that this hurt, but nothing in the video suggests that this done maliciously to harm him. Rather,
Beahm used minimal force to accomplish the appropriate security goal involved in checking
Grant for contraband before placing him in control status.
B. Retaliation
I allowed Grant to proceed with retaliation claims against all of the defendants for their
actions, on the theory that each of the defendants conspired against Grant to prevent him from
exercising his right to defend himself in his conduct report hearings. To state a claim for
retaliation under the First Amendment, a plaintiff must identify: (1) the constitutionally
protected activity in which he was engaged; (2) one or more retaliatory actions taken by the
defendant that would deter a person of “ordinary firmness” from engaging in the protected
activity; and (3) sufficient facts to make it plausible to infer that the plaintiff’s protected

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activity was one of the reasons defendants took the action they did against him. Bridges v.
Gilbert, 557 F.3d 541, 556 (7th Cir. 2009). Defendants focus on the third prong.
When I allowed Grant leave to proceed on retaliation claims, I explained the difficulty
Grant might have in proving that each of the defendants meant to retaliate against him:
The most difficult prong for plaintiff is the connection between
the protected activity and defendants’ alleged actions. But
construing plaintiff’s allegations generously, I conclude that he
has alleged enough to raise a plausible connection: he seems to be
saying that Gill took particular interest in plaintiff’s participation
in the conduct report hearing and was ready to take action against
plaintiff if he did anything that could be portrayed as remotely
provocative. Gill was then unnecessarily rough with plaintiff, and
plaintiff was sent to a strip cage without Gill even calling for help,
which suggests that the other defendants, all of whom were
present for some of the events in question, yet failed to intervene,
were in on the plan to harass plaintiff by strip searching him and
giving him an additional conduct report for no reason. . . .
But plaintiff should be aware that it will be much harder for him
to prevail at summary judgment or trial than it was for him to
proceed with these claims at screening. Plaintiff will have to
support each of the elements of a retaliation claim with evidence
proving his claims. In particular, to prevail against a particular
defendant on a retaliation claim, plaintiff will have to show that
the defendant acted the way he did in an effort to retaliate against
plaintiff, rather than merely reacting to a call for help, otherwise
acting in the normal course of their duties, or even acting out of
animus toward plaintiff unrelated to his conduct report hearing.
Dkt. 17, at 4-5.
At summary judgment, Grant mostly fails to show how defendants meant to retaliate
against him. For the most part, all he has in his favor in timing: his placement in control status
directly prevented him from attending his conduct report hearings, the very right he was
attempting to assert. But this does not in itself raise a reasonable inference that defendants
acted against him because he was planning on testifying at those hearings. If the suspicious

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timing of defendants’ actions were the only piece of evidence he had supporting his retaliation
claims, I would dismiss them.
But he has more, at least with respect to defendant Gill. Grant says that Gill
intentionally withheld breakfast from him that morning because Grant was going to testify at
his 2:00 hearing. Defendants argue that whether or not Grant was served breakfast is
immaterial, but this is incorrect. If a jury believed that Gill intentionally withheld Grant’s
breakfast because Grant was planning on later appearing at his conduct report hearing, the jury
could also reasonably believe that Gill’s later use of force took place for the same retaliatory
reason. Accordingly, I will deny defendants summary judgment on Grant’s retaliation claim
against Gill.
That leaves the rest of the defendants. Grant does not provide any evidence suggesting
that any of them intended to conspire with Gill to further punish him. In his complaint, Grant
said that at least some of the defendants arrived at the hearing room without actually having
been called there, which suggested that they had prearranged the altercation and subsequent
punishment. But the video shows that Umentum called for backup, so these defendants’
appearance afterward cannot reasonably be attributed to retaliatory intent or a desire to
conspire with Gill.
Schneider was the prison employee who decided that a strip search should be
performed, but Grant does not explain why that decision was retaliatory, given that Schneider
was working off of Gill’s report of an altercation. Likewise, there is no evidence that Beahm or
any other of the defendants present at the strip search acted the way they did for any reason
other than following Schneider’s orders.

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Grant alleged that Meli’s conduct report was retaliatory. The facts at summary
judgment detail Meli’s involvement slightly differently—Gill issued the conduct report and Meli
approved it—but nothing in the record shows that Meli acted with a retaliatory motive in
approving it; he had no reason to doubt Gill’s narrative. Finally, Grant concedes that
defendants Marwitz and Kitzman had no involvement with the events at issue in this lawsuit.
Because Grant fails to present evidence that could lead a reasonable jury to conclude that any
of the remaining defendants retaliated against him, I will grant those defendants summary
judgment on Grant’s retaliation claims.
C. Strip search – humiliation
I allowed Grant leave to proceed on claims that defendants violated his Eighth
Amendment rights by giving him an invasive “staff-assisted” strip search for the purpose of
humiliating him rather than for any legitimate penological purpose, that Beahm conducted the
search in a manner meant to humiliate Grant, and that the other defendants who were present
during the strip search did nothing to stop Beahm from conducting the search in an
inappropriate manner.
A strip search violates the Eighth Amendment when it is “conducted in a harassing
manner intended to humiliate and inflict psychological pain.” Calhoun v. DeTella, 319 F.3d
936, 939 (7th Cir. 2003); Fillmore v. Page, 358 F.3d 496, 505 (7th Cir. 2004). Stated another
way, the question is whether there was a legitimate penological reason for both the search and
its scope. Whitman v. Nesic, 368 F.3d 931, 934–35 (7th Cir. 2004); see also Vasquez v. Raemisch,
480 F. Supp. 2d 1120, 1131–32 (W.D. Wis. 2007) (stating that case law “supports a
conclusion of heightened protection for a manual as opposed to visual inspection.”).

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As discussed above, the video evidence shows that defendants did not use excessive
force during the strip search. By the same token, nothing in the video suggests that defendant
Beahm’s technique in performing the search was intended to humiliate Grant. Rather, the video
shows a routine staff-assisted strip search. Although this type of a search by definition includes
unwanted touching, that alone is not enough to violate the Eighth Amendment: prison staff
need to be able to conduct admittedly invasive searches this one where there is a legitimate
penological purpose for doing so. See, e.g., Simpson v. Mason, No. 13-cv-776-jdp, 2015 WL
5918928, at *13 (W.D. Wis. Oct. 9, 2015) (“While forcibly lifting a man’s testicles and
spreading his buttocks would be sexual assault in the outside world, it is part and parcel of a
staff-assisted strip search serving the legitimate penological purpose of keeping the prison
secure by ensuring that no prisoner transports contraband. Plaintiff seems to equate any
unwanted touching with sexual assault but this is simply not the standard for prison strip
searches.”).
Even a strip search conducted with appropriate methods could violate the Constitution
if the reason for conducting it was to humiliate a prisoner rather than for legitimate penological
purposes. But as with his retaliation claims, Grant does not provide any evidence suggesting
that defendant Schneider acted with a motive other than a legitimate one in choosing to have
him strip searched. There is no indication that Schneider conspired with Gill to punish Grant.
Rather, Schneider responded to Umentum’s call and ordered Grant placed in control status
after hearing the report of the altercation between Gill and Grant. Therefore, I will grant
defendants summary judgment on all of Grant’s strip search claims.

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CONCLUSION
This case will proceed to trial on Grant’s excessive force and retaliation clams against
defendant Gill. I will follow this order with an order setting forth some trial preparation
instructions for Grant’s benefit. Although the December 6 final pretrial conference and
December 11 trial dates will remain in place, I will amend the pretrial submission dates slightly
to give the parties more time. The new pretrial submissions and disclosures deadline is
November 16, 2017. The new response deadline is November 28, 2017.

ORDER
IT IS ORDERED that:
1. Defendants’ motion for summary judgment, Dkt. 40, is DENIED regarding plaintiff
James Edward Grant’s excessive force and retaliation claims against defendant
Jeffrey Gill. Defendants’ motion is GRANTED on all of plaintiff’s other claims.
2. Defendants Beahm, Lunde, Bedker, Olig, Kitzman, Umentum, Schouten, Lukas,
Marwitz, Schneider, Greff, and Meli are DISMISSED from the case.
3. The schedule is AMENDED as stated in the opinion above.
Entered October 30, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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