Garner, Oscar v. Kirby

Filing 53

ORDER granting defendant's 39 Motion for Summary Judgment and dismissing this case. Defendant's motion to limit plaintiff Oscar Garner's access to an unredacted copy of Security Internal Management Procedure #13-a, Dkt. 51 , is DENIED as moot. In accordance with 28 U.S.C. § 1915(g), plaintiff is assessed a strike. The clerk of court is directed to enter judgment for defendant and close this case. Signed by District Judge James D. Peterson on 2/9/2017. (jef),(ps)

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

OSCAR GARNER,
Plaintiff,
v.

OPINION & ORDER
14-cv-545-jdp

OFFICER KIRBY,
Defendant.

Pro se plaintiff Oscar Garner is an inmate incarcerated at the Wisconsin Secure
Program Facility (WSPF). He contends that defendant Matthew Kirby, a corrections officer
at WSPF, subjected him to an improper pat-down search that violated his rights under the
Eighth Amendment. In his complaint, Garner alleges that Kirby caressed his genitals, “going
up and down and grabbing Garner’s testicles through [his] pants” for more than three
minutes. Dkt. 16.
Kirby moves for summary judgment. Dkt. 39. I have reviewed the documents filed by
both parties concerning Kirby’s motion, including an unredacted copy of the Division of
Adult Institutions’ Security Internal Management Procedure #13-a relating to pat-down
searches that the court ordered Kirby to submit in camera in response to Garner’s motion to
compel. See Dkt. 50. Because Kirby adduces a video that disproves Garner’s factual
allegations and Garner points to no evidence that Kirby conducted the brief pat-down to
humiliate or harass Garner, summary judgment in Kirby’s favor is appropriate.

UNDISPUTED FACTS
The following facts are drawn from the parties’ summary judgment materials and
previous documents submitted in this litigation. The facts are undisputed except where
noted.
Defendant Matthew Kirby is a correctional officer who works at the Waupun
Correctional Institution (WCI). Plaintiff Oscar Garner is a prisoner in the custody of the
Wisconsin Department of Corrections (DOC). He was incarcerated at WCI and housed in
the segregation unit during the relevant events in this case. Prisoners in the segregation unit
are allowed one hour of recreation four times a week in “recreation cells.” On December 5,
2012, after Garner’s recreation time, Kirby conducted a pat-down search of Garner that was
recorded by a security camera. The search lasted approximately eight seconds. Kirby began
the search by running his hands along Garner’s arms and chest, then down to his abdomen.
Garner then pulled away from Kirby and objected to the search. In response, Kirby stopped
the pat search and returned Kirby to the recreation cell. Kirby did not touch Garner’s genital
area at all. Although Garner’s initial description of the search in his complaint was very
different,1 he does not now dispute this description of the search.

1

From the amended complaint:
At about 6:15pm, officer kirby started from my neck patting me
down in front of the other inmates, while rubbing my chest
down until he got below my waist and when officer kirby got
down to my genital he started to caressing my genitals going up
and down and grabbing Garner’s testicles through plaintiffs
pants for about 3 minutes maybe 4 minutes, so Garner asked
officer Kirby what are you doing?, And officer Kirby replyed this
is protocal of Waupun institution and Garner started
complaining more vigorously and protecting and officer Kirby
just ignored Garner’s Concerns and said: “That’s nice and
smiling and smirking saying it’s true about size” . . . .

2

The parties now dispute Kirby’s motivation for conducting the search: Kirby contends
that he was looking for gloves that are normally left in the recreation cells during the winter
months but had recently gone missing. Garner argues that not every recreation cell contains
gloves, no gloves were missing from the recreation cells on December 5, and Garner removed
his gloves in Kirby’s presence, so Kirby had no reason to search Garner for gloves.
Garner filed a complaint in this court on August 5, 2014, Dkt. 1, and later amended
his complaint, Dkt. 16. I screened his amended complaint pursuant to 28 U.S.C. §§ 1915
and 1915A and granted him leave to proceed with a claim under the Eighth Amendment for
Kirby’s conduct during the pat-down search. Dkt. 19. Kirby has now moved for summary
judgment. I have subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331
because Garner’s claim arises under federal law.

ANALYSIS
A. Summary Judgment
To succeed on a motion for summary judgment, Kirby 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.” Brummet 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 Garner’s favor as the nonmoving party. Baron v. City of Highland Park, 195 F.3d 333,
338 (7th Cir. 1999). If Garner fails to establish the existence of an essential element on
Dkt. 16, at 1.

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which he will bear the burden of proof at trial, summary judgment for Kirby is proper. See
Celotex, 477 U.S. at 322.
Garner contends that Kirby’s pat-down search was unconstitutional under the Eighth
Amendment because it was calculated to humiliate and not motivated by a legitimate
penological interest. To withstand summary judgment, Garner must point to admissible
evidence that (1) Kirby’s act objectively resulted “in the denial of ‘the minimal civilized
measure of life’s necessities’” and (2) Kirby did so with a “sufficiently culpable state of
mind,” that is, that Kirby was deliberately indifferent to the risk of harm to Garner. Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Garner points to no evidence of the first, objective prong of the test. Although “[a]n
unwanted touching of a person’s private parts, intended to humiliate the victim or gratify the
assailant’s sexual desires, can violate a prisoner’s constitutional rights,” Washington v. Hively,
695 F.3d 641, 643 (7th Cir. 2012), there is no evidence in the record that Kirby touched
Garner’s genitals. A video of the incident shows Kirby briefly running his hands along
Garner’s arms, chest, and abdomen before Garner steps back and the search ends. Garner
does not now dispute that the entire search lasted about eight seconds. Garner points to no
evidence showing that Kirby’s hands went below Garner’s waist during the search. No
reasonable juror could find that Kirby’s act violated a prisoner’s “extremely limited”
expectation of privacy.

Whitman v. Nesic, 368 F.3d 931, 935 (7th Cir. 2004) (quoting

Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir. 1987)). The video conclusively disproves
Garner’s original claim that Kirby caressed his genitals and grabbed his testicles for more than
three minutes.

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Nor has Garner shown that Kirby acted with deliberate indifference, that is, that
Kirby “was motivated by a desire to harass or humiliate rather than by a legitimate
justification, such as the need for order and security in prisons.” King v. McCarty, 781 F.3d
889, 897 (7th Cir. 2015). Prison officials “must be accorded wide-ranging deference in
matters of internal order and security.” Whitman, 368 F.3d at 934-35 (quoting Meriwether,
821 F.2d at 417). Kirby contends that although searching inmates returning from recreation
time is not common, he noticed several pairs of gloves missing from the recreation cells, so he
searched Garner for gloves as Garner was leaving the recreation cell. Kirby’s search was
permitted by Department of Corrections policy: Wis. Admin. Code § DOC 306.17(1)(b)(1)
allows correctional officers to conduct a pat-down search of a prisoner when they have
reasonable grounds to believe that the prisoner possesses contraband, that is, something that
the inmate is not supposed to possess.2 Garner argues that he took off the gloves he was
wearing during recreation time in front of Kirby, obviating the need for Kirby to search him
for gloves. But even if Garner took off the gloves he was wearing, Kirby could have been
searching for other gloves. Garner’s supposition is merely speculation that Kirby had no
legitimate motive. Kirby has shown that his search was motivated by a “legitimate interest in
the safety and security of the staff, prison populace, and community.” Whitman v. Nesic, 368
F.3d 931, 935-35 (7th Cir. 2004). Garner points to no evidence that Kirby was instead
trying to harass or humiliate Garner. Garner’s claim is particularly baseless in light of the fact
that the search was only a brief pat-down of his upper body.

2

Garner points to this policy in opposition to Kirby’s summary judgment motion, see
Dkt. 47, at 2; the same substantive policy is contained in Security Internal Management
Procedure #13-a, which the court reviewed in camera in response to Garner’s motion to
compel. See Dkt. 51-1, at 2.

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Kirby has shown that there is no genuine dispute of any material fact. Summary
judgment in his favor is appropriate.
Garner’s case got past the screening stage because he alleged that Kirby groped his
genitals for several minutes. That allegation was not a good-faith error or a reasonable
difference of opinion. It was a lie, and this case was based, from the start, on a frivolous
allegation. I must assess Garner a strike under the PLRA. See 28 U.S.C. § 1915(g). If he
accumulates two more strikes, he will not be able to proceed in forma pauperis, that is, as one
not required to prepay the full filing fee, unless he can show that he is “under imminent
danger of serious physical injury.” Id.
B. Motion to limit Garner’s access to Security Internal Management Procedure #13-a
The court ordered Kirby to submit copies of the Department of Corrections’ policies
relating to pat-down searches in camera in response to Garner’s motion to compel. See
Dkt. 50. Kirby did so, submitting an unredacted version of the Division of Adult Institutions’
Security Internal Management Procedure #13-a, regarding searches of inmates. See
Dkt. 51-1. I considered the unredacted copy of S.I.M.P. #13-a as evidence when analyzing
Kirby’s summary judgment motion.
When submitting S.I.M.P. #31-a, Kirby noted that he had previously produced a
redacted version of the policy to Garner. See Dkt. 51, at 2 and Dkt. 51-2. He asked the court
to limit Garner’s access to the unredacted version of the policy, explaining that “[p]roviding
an inmate with a copy of the unredacted restricted policy creates a security risk at the
institution.” Dkt. 51, at 2. I have my doubts. Most of S.I.M.P. #13-a simply restates Wis.
Admin. Code § DOC 306.17, which is already available to inmates and the general public.

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And it is unclear how inmates’ access to policies on when and how to conduct searches would
create a security risk.
But because this case will be dismissed, I will deny Kirby’s motion to limit Garner’s
access to the unredacted copy of the Division of Adult Institutions’ Security Internal
Management Procedure #13-a as moot. Because this case is not going to trial, Garner does
not need access to the policy, and there is no need to determine what amount of access to
give Garner to this document.

ORDER
IT IS ORDERED that:
1. Defendant Matthew Kirby’s motion for summary judgment, Dkt. 39, is
GRANTED, and this case is DISMISSED.
2. Defendant’s motion to limit plaintiff Oscar Garner’s access to an unredacted
copy of Security Internal Management Procedure #13-a, Dkt. 51, is DENIED
as moot.
3. In accordance with 28 U.S.C. § 1915(g), plaintiff is assessed a strike.
4. The clerk of court is directed to enter judgment for defendant and close this
case.
Entered February 9, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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