Clay v. Williams

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CARLEOUS DARRELL CLAY (18864-040), )

)

Plaintiff, ) Case No. 17 C 6461

)

v. ) Hon. Steven C. Seeger

)

LIEUTENANT WILLIAMS, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Carleous Darrell Clay took an employee of the U.S. Bureau of Prisons hostage

when he was incarcerated in the Chicago Metropolitan Correctional Center, awaiting trial on

federal charges of kidnapping, rape, and attempted murder. He held a knife to her throat, and

threatened to kill her. BOP officers, including Defendant Lt. Carl Williams (“Williams”),

intervened, rescued the victim, and restrained Clay. Clay later sued.

Clay brought this suit pro se under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), claiming that Williams had violated his constitutional

rights by using excessive force and destroying some of his property (his MP3 player). The Court

allowed the complaint to proceed past screening (in part) under 28 U.S.C. § 1915A because the

facts of the complaint warranted discovery into the reasonableness of Williams’s conduct.

That investigation into the underlying facts is now complete. At this stage, the question

is whether the undisputed material facts entitle Williams to judgment in his favor. For the

reasons discussed below, the Court grants Defendant’s motion for summary judgment.

Background

The Local Rules require parties to follow a specific procedure when filing and opposing a

motion for summary judgment. All litigants – including pro se litigants – must follow the Local

Rules, or face the consequences of non-compliance. Clay is no exception.

Local Rule 56.1 governs the procedures for filing and responding to summary judgment

motions. Local Rule 56.1(a)(3) requires the moving party to provide a “statement of material

facts as to which the moving party contends there is no genuine issue” for trial. Cracco v. Vitran

Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009) (quoting Local Rule 56.1(a)). “All material facts

set forth in the statement required of the moving party will be deemed to be admitted unless

controverted by the statement of the opposing party.” See Local Rule 56.1(b)(3)(C); see also

Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004).

To defeat summary judgment, the opposing party must “file ‘a response to each

numbered paragraph in the moving party’s statement, including, in the case of any disagreement,

specific references to the affidavits, parts of the record, and other supporting materials relied

upon.’” Cracco, 559 F.3d at 632 (quoting Local Rule 56.1(b)(3)(B)). “[M]ere disagreement

with the movant’s asserted facts is inadequate if made without reference to specific supporting

material.” Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

Next, if the opposing party wants the Court to consider additional facts – meaning facts

not presented by the moving party – he must submit them in a specific way. The non-moving

party must file a “separate statement ‘consisting of short numbered paragraphs[] of any

additional facts that require the denial of summary judgment[.]’” Ciomber v. Cooperative Plus,

Inc., 527 F.3d 635, 643 (7th Cir. 2008) (quoting Local Rule 56.1(b)(3)(C)). Any additional facts

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introduced by the opposing party must be supported by “references to the affidavits, parts of the

record, and other supporting materials relied upon.” See Local Rule 56.1(b)(3)(C).

Substantial compliance with Local Rule 56.1 is not enough. See Ammons, 368 F.3d at

817. The Court can require the parties, including pro se parties, to comply with Local Rule 56.1.

See Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015); see Collins v. Illinois, 554 F.3d

693, 697 (7th Cir. 2009) (“even pro se litigants must follow procedural rules”).

Consistent with the Local Rules, Defendant Williams filed a statement of undisputed

facts with his motion for summary judgment. See Def.’s Local Rule 56.1(a)(3) Stmt.

(“Statement of Facts”) (Dckt. No. 52). He supported each fact in his Statement of Facts with

admissible evidence in the record. He also served on Clay a Local Rule 56.2 Notice that

explained the requirements of Local Rule 56.1. See Dckt. No. 53.

In response, Clay filed two documents. The first is a response to Defendant’s Statement

of Facts in which Clay either admits or denies each statement, by paragraph number. See Pl.’s

Local Rule 56.1(b)(3)(B) Resp. (“Pl.’s Resp.”) (Dckt. No. 56). The second is a three-page letter

which serves as his response brief. See Pl.’s. Mem. of Law (“Pl.’s Mem.”) (Dckt. No. 57).

Clay’s handwritten response to the Statement of Facts was short – only two pages long.

See Pl.’s Resp. (Dckt. No. 56). He admitted some of the paragraphs. See, e.g., id. at 1 (admitting

paragraphs 2-15). When he did disagree, he cited no admissible evidence. He simply gave his

own version of the events, supported by nothing. For example, in response to paragraph 16, he

admits that he had a “knife in hand,” but denies that he put it against the victim’s throat. Id.

Clay’s response fails to comply with Federal Rule of Civil Procedure 56(c) and Local

Rule 56.1(b)(3). See Fed. R. Civ. P. 56(c)(1) (requiring any party asserting or disputing a fact to

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“cit[e] to particular parts of materials in the record” or “show[] 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”); Local Rule 56.1(b)(3) (requiring any party opposing a

motion for summary judgment to support any asserted factual disagreements with “specific

references to the affidavits, parts of the record, and other supporting materials relied upon”).

Clay’s raw statements, without any evidentiary support, do not create disputed questions of fact

for purposes of this motion.

True, Clay is proceeding pro se, and the Court would be prepared to give him some

latitude if his response was in the ballpark. But a wholesale abandonment of the Rules is a

bridge too far, even for a pro se litigant. See McNeil v. United States, 508 U.S. 106, 113 (1993)

(“[W]e have never suggested that procedural rules in ordinary civil litigation should be

interpreted so as to excuse mistakes by those who proceed without counsel[.]”) (citations

omitted); Coleman v. Goodwill Indus. of Se. Wis., Inc., 423 F. App’x 642, 643 (7th Cir. 2011)

(“Though courts are solicitous of pro se litigants, they may nonetheless require strict compliance

with local rules.”); Wilson v. Kautex, Inc., 371 F. App’x 663, 664 (7th Cir. 2010) (“[S]trictly

enforcing Local Rule 56.1 was well within the district court’s discretion, even though Wilson is a

pro se litigant[.]”) (citations omitted); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006)

(“[E]ven pro se litigants must follow rules of civil procedure[.]”).

Most of Clay’s response takes issue with Defendant’s characterization of the video of the

altercation. Although argumentative, the Court has considered Clay’s objections. But in the end,

the video itself – not either party’s characterization of the events depicted in the video – controls.

See, e.g., Williams v. Brooks, 809 F.3d 936, 942 (7th Cir. 2016) (relying primarily on video from

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dashboard camera of police vehicle); Holm v. Vill. of Coal City, 345 F. App’x 187, 190 (7th Cir.

2009) (considering record evidence rather than party’s characterization of evidence). The Court

can see for itself (and did see for itself) what the video shows.

For the non-video evidence, Clay did not counter Defendant’s facts by offering any facts

of his own, backed by admissible evidence. At the summary judgment stage, naked denials are

not enough. A party must present evidence, not mere disagreement. Accordingly, the Court

accepts as true all assertions in the Statement of Facts to the extent that they are supported by the

record. See McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998) (“An answer that

does not deny the allegations in the numbered paragraph with citations to supporting evidence in

the record constitutes an admission.”).

Nonetheless, the Court has interpreted Clay’s filings in this case generously in light of his

pro se status. The Court has construed the evidence in the light most favorable to Clay, and

drawn all reasonable inferences in his favor, since he is the non-moving party. The Court will

not, however, dig through the summary judgment record to identify disputed issues of fact or

find evidentiary support for any asserted disputes. See Johnson v. Cambridge Indus., Inc., 325

F.3d 892, 898 (7th Cir. 2003) (“We have repeatedly assured the district courts that they are not

required to scour every inch of the record for evidence that is potentially relevant to the summary

judgment motion before them,” given the amount of material typically generated through the

discovery process.). The Court will not hunt through the record, searching for evidence in Clay’s

favor.

The Court is mindful that “a nonmovant’s failure . . . to comply with Local Rule 56.1

does not automatically result in judgment for the movant. The ultimate burden of persuasion

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remains with [the movant] to show that [he] is entitled to judgment as a matter of law.”

Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006) (internal citation omitted).

With these standards in mind, the Court turns to the facts. Each fact recited below is

undisputed, except as noted.

Facts

In September 2015, Clay burglarized a home in Lansing, Illinois. See Statement of Facts,

at ¶ 1 (Dckt. No. 52). During the break-in, the resident (hereafter, “Victim A”) returned home.

Id. Clay threatened Victim A with a hammer and took her money. Id. Clay then abducted

Victim A and took her to the bank to use her debit card to get more money from her account. Id.

After stealing all of Victim A’s available cash, Clay forced her into the trunk of her car

and drove to the parking lot of a vacant commercial business. Id. at ¶ 2. Clay took Victim A out

of the trunk and raped her in the back seat of the car. Id. Clay then strangled Victim A until she

passed out on the ground in the parking lot. Id. After seeing that Victim A was still breathing,

Clay doused her with lighter fluid and set her on fire. Id. at ¶ 3.

Victim A survived, but she sustained permanent and life-threatening injuries. Id. Clay

was arrested and later confined at the Metropolitan Correctional Center of the U.S. Bureau of

Prisons (“BOP”) in Chicago. Id. at ¶ 4.

On April 3, 2017, Clay entered the office of a BOP case manager (hereafter, “Victim B”)

who worked at the MCC. Id. at ¶ 8. Clay pretended to make a complaint about another inmate

to Victim B. Id. When Victim B reached for her phone to call a lieutenant about the problem,

Clay grabbed her wrist to prevent her from dialing. He told her that he had a knife. Id.

Unbeknownst to Victim B, he was even holding a written note that threatened her life:

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[Victim B’s name.] Listen here you little bitch. I have a knife!!!

If you wanna go home tonight you will do what I say. If you try to

push that button I promise you that before anybody can help you I

will kill you. Put your hands on the desk and don’t move. If you

scream, I will kill you. I’m getting life in prison anyway so I don’t

have anything to lose. Please don’t try me. My intent is not to

hurt you.

Id.

But Clay never gave the note to Victim B. Instead, Clay pushed her to the floor. He

threatened her: “Get on the ground or I will fucking kill you,” or a phrase to that effect. Id. at

¶ 10. Clay threw Victim B’s radio to the floor, and used Victim B’s keys to lock himself inside

the office with Victim B. Id.

While Clay was locking the door, Victim B was able to reach the radio and call for help.

Id. Clay heard Victim B call for help, became agitated, and put a homemade knife to Victim B’s

throat. He repeated that he would “fucking kill” her. Id. Clay ordered Victim B to go back on

the radio and tell other MCC staff members not to respond. Id. at ¶ 11.

Victim B transmitted on the radio words to the effect of, “Don’t respond. He has a knife.

He’s going to kill me.” Id. Clay got on the radio himself and said words to the effect of, “I’m

going to kill her if you come in. Don’t come in.” Id. Clay ordered Victim B to get back on the

floor, face down, which she did. Id. at ¶ 12. Clay straddled Victim B, grabbed her by the hair,

and put the knife to her throat. Id.

Defendant Williams responded to the emergency call and quickly arrived at the door to

the office. Williams worked for the BOP as a lieutenant at the MCC, and served as a shift

supervisor. Id. at ¶ 5. Williams knew who Clay was, and based on the local news, he knew that

Clay had allegedly kidnapped and raped Victim A, before setting her on fire. Id. at ¶ 6.

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Williams looked through a window and saw that an inmate was holding a knife to Victim

B’s throat. Id. at ¶ 13. Another MCC staff member, who was also outside of Victim B’s office

door, ordered Clay to drop the knife and come to the door. Id. at ¶ 12. Clay refused. Id.

Because he did not have a key to the office, Williams then attempted to deploy his pepper spray

under the door, but most of the spray came back at the officers. Id. at ¶ 14.

A correctional counselor arrived with the key and opened the door. Id. When the door

flung open, Williams recognized Clay as the attacking inmate. Id. at ¶ 15. He saw Clay on top

of Victim B, straddling her, with a knife to her neck. Id. Williams believed that Clay might

have been attempting to remove Victim B’s pants while holding a knife to her throat. Id. at ¶ 16.

Multiple MCC staff members, including Williams, entered Victim B’s office and deployed their

cannisters of pepper spray. Id. at ¶ 14. MCC staff members pulled Clay off of Victim B and

removed her from the room. Id.

After deploying the pepper spray, Williams and other MCC staff scuffled with Clay, who

didn’t go down quietly. He was still fighting and, most importantly, he was still holding the

knife. Id. at ¶ 17. A struggle ensued. The BOP employees successfully disarmed Clay and

placed him in handcuffs. Id. During the struggle, it was difficult to see because of the amount of

pepper spray in the air. Id.

Clay disagrees that a scuffle preceded his handcuffing. According to him, when the door

opened, he “dropped the knife and submitted to the restraints.” See Pl.’s Resp., at ¶ 17 (Dckt.

No. 56). He asserts in his opposition brief that the officers “beat” him after he was handcuffed.

See Pl.’s Mem., at 1 (Dckt. No. 57). But his testimony was more constrained. Clay didn’t

exactly testify that the officers actually beat him. Instead, he testified that, while they were

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restraining him, he “felt that [he] was being hit” all over his face, ribs, and stomach, and he also

felt knees “holding [him] down.” See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111).

So, Clay “felt” like he was being hit while they were restraining him. Id.

At deposition, Clay described the feeling of being pinned down. He felt “guys” and “four

or five people” restraining him. But he didn’t testify that Williams hit him:

Q: What happened next after you were in handcuffs?

A: I felt the guys – because I couldn’t – my vision was blurry,

because I had been sprayed, but I felt that I was being hit,

that my body was being attacked. And this happened, I

probably stayed in that office after I was cuffed for

probably ten minutes.

Q: Where did you feel like you were being hit?

A: All over, my face, I could feel it in like my ribs, my

stomach, that area, my back. Somebody was – it was like

four or five people. I felt knees all over me, you know, like

they was holding me down with knees and all of that stuff.

The only person that I could actually make out was the

lieutenant, was Lieutenant Williams.

See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111).

After Clay was in handcuffs, Williams began to feel overcome by the pepper spray. See

Statement of Facts, at ¶ 18 (Dckt. No. 52). He ordered the other BOP employees to bring Clay

down the stairs to the elevator, and Williams left the room to escape the pepper spray. Id.

Williams did not issue any orders about how to bring Clay down the stairs. Id.

The rescue took about 90 seconds. Video footage from a common area reveals that

Williams arrived in the vicinity about a minute and a half before rescuing Victim B. Id. at ¶¶ 20-

21. Williams exited the area about one minute after the rescue. Id. at ¶ 22. (Video from inside

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the office where Clay carried out his attack is unavailable.) Williams then went to a nearby sink

to flush his eyes and wash off the pepper spray. Id.

The video also shows other guards – not Defendant Williams – taking Clay away less

than two minutes after the rescue. Id. at ¶ 23. The guards pulled Clay down a set of eight stairs

on his back, but his head did not come into contact with the stairs. Id. at ¶ 24. Williams was not

one of the people transporting Clay down the stairs. Id. Clay, however, states that Williams

dropped him in front of the stairs, and that he was dragged down the stairs “face first,” as

Williams directed. See Pl.’s Mem., at 1 (Dckt. No. 57). But the video shows his feet and knees

pointed up, not down. See Def.’s Rule 56.1 Statement of Facts, Ex. 9 (Dckt. No. 52). That is,

the video shows Williams going down the stairs on his back, not “face first.”

Video shows that the guards placed Clay in front of an elevator, which he then entered.

See Statement of Facts, at ¶ 25 (Dckt. No. 52). While waiting for the elevator, several BOP

employees crowded around Clay and physically restrained him. But the footage does not depict

that he was assaulted while waiting for the elevator. Id. They restrained him like someone

would be restrained after attacking a prison guard.

They took Clay for an immediate medical exam. Id. at ¶ 26. According to Clay, he was

“assaulted again inside the elevator.” See Pl.’s Mem., at 2 (Dckt. No. 57). He felt officers

holding him down, “hitting my body,” and his request to have a shirt removed from over his face

was ignored. See Clay Dep., at 28:2-15 (Dckt. No. 52-2, at 90 of 111). After receiving medical

treatment, Clay walked unassisted to a segregation cell. See Statement of Facts, at ¶ 26 (Dckt.

No. 52).

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All things considered, Clay suffered modest injuries, at most. His only injuries were mild

abrasions to his head and upper torso, as confirmed by photographs. See Statement of Facts, at

¶ 27 (Dckt. No. 52).

Clay does not even try to dispute the fact that his injuries were slight. In fact, the

statement about his modest injuries in the Statement of Facts is the only paragraph that elicited

no response from Clay. He skipped it entirely. See Pl.’s Resp., at 2 (Dckt. No. 56) (omitting any

response to paragraph 27, but responding to paragraphs 25–26, and 28–30). So Clay admitted

that he had no significant injuries.

The parties dispute what happened to Clay’s MP3 player, but only Defendant offers any

evidence. According to Williams, he did not discard or destroy any of Clay’s property. See

Statement of Facts, at ¶ 28 (Dckt. No. 52). As Clay tells it, another inmate told him that he saw

Williams destroy his MP3 player by throwing it against a wall. See Pl.’s Resp., at ¶ 28 (Dckt.

No. 56). But Clay doesn’t offer any testimony from that inmate. And Clay doesn’t offer his own

testimony on that point, either. Just unsworn hearsay.

Clay later testified that he kidnapped Victim B in an attempt to commit suicide. He

hoped that the police would subdue him with lethal force. See Statement of Facts, at ¶ 36 (Dckt.

No. 52). So, he tried to precipitate a fatal injury, not cuts and bruises.

The day after the attack, Clay was transferred to a prison in Kankakee County, where he

remained for over two months. Id. at ¶ 29. He was later transferred to a BOP facility in New

York City. See id. at ¶ 30. On September 7, 2017, more than five months after the attack, Clay

sent letters to the MCC Chicago, alleging that he was beaten and his belongings were

confiscated. Id. at ¶ 33. Those letters were the first written notice of a potential claim. Id.

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Clay later brought this lawsuit under Bivens against Williams, claiming that he used

excessive force during the hostage situation. Clay alleged that: (1) he was beaten while

handcuffed for ten minutes inside the office where he had held Victim B captive; (2) he was

dragged face-first down the stairs and that Williams made sure that he hit his face and head on

the stairs; (3) he was assaulted outside the elevator; and (4) he was assaulted again once inside

the elevator. See Dckt. No. 9. Clay also claimed that Williams unlawfully destroyed his

property. He had property in his cell, but never saw it again. Other inmates told him that

Williams had smashed his MP3 player against the wall. Id.

Based on these allegations, Judge Shah (the presiding District Judge before reassignment)

allowed Clay to proceed on an excessive force claim against Williams. See Dckt. No. 8. The

Court dismissed all other claims, including the property damage claim. Id.

Williams now moves for summary judgment on the excessive force claim.1

Legal Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A genuine dispute of material fact exists if “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). The party seeking summary judgment has the burden of establishing that there is no

genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

To survive summary judgment, the opposing party must go beyond the pleadings and identify

specific facts showing the existence of a genuine issue for trial. Anderson, 477 U.S. at 256.

1 Clay also sued Officer Brussette, but based on the docket, she was never served with process. See Dckt.

No. 12. So this motion involves the only claim against the only Defendant (Lt. Williams).

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The Court construes all facts and reasonable inferences in the light most favorable to the

nonmoving party. Chaib v. Geo Grp., Inc., 819 F.3d 337, 341 (7th Cir. 2016). The Court does

not weigh the evidence, judge credibility, or determine the truth of the matter, but rather

determines only whether a genuine issue of triable fact exists. Nat’l Athletic Sportswear, Inc. v.

Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Summary judgment is appropriate if, on

the evidence provided, no reasonable jury could return a verdict in favor of the non-movant.

Celotex Corp., 477 U.S. at 322; Gordon v. FedEx Freight, Inc., 674 F.3d 769, 772-73 (7th Cir.

2012).

Summary judgment is the time for a party to put its evidentiary cards on the table.

“Summary judgment is ‘not a dress rehearsal or practice run; it is the put up or shut up moment

in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to

accept its version of the events.’” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting

Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)); see also Caisse

Nationale de Credit v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996) (“A party seeking to

defeat a motion for summary judgment is required to ‘wheel out all its artillery to defeat it.’”)

(citation omitted). If Clay had evidence in his favor, summary judgment was the time to offer it.

Discussion

Williams moves for summary judgment on the excessive force claim on three grounds.

First, Williams argues that he used objectively reasonable force during the hostage situation.

Second, he asserts qualified immunity. And third, he argues that Clay failed to exhaust his

administrative remedies. See Def.’s Mem. of Law, at 7–11 (Dckt. No. 51). Defendant also

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addresses the due process claim based on the destruction of property, even though Judge Shah

screened out that claim. See id. at 11–14.

Based on the undisputed facts, Williams is entitled to summary judgment because he used

objectively reasonable force, and because he is protected by qualified immunity. There is

sufficient grounds to grant the motion, so this Court does not reach the issue of exhaustion.2

A. Excessive Force

All too often, excessive force cases are poor candidates for summary judgment. In many

cases, there are issues of fact about what took place, and whether the use of force was

appropriate. See Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010).

But not always. The Seventh Circuit has emphasized that “[w]hether a particular use of

force was objectively reasonable ‘is a legal determination rather than a pure question of fact for

the jury to decide.’” Dockery v. Blackburn, 911 F.3d 458, 464 (7th Cir. 2018) (quoting Phillips

v. Cmty. Ins. Corp., 678 F.3d 513, 520 (7th Cir. 2012)); see also Fitzgerald v. Santoro, 707 F.3d

725, 733 (7th Cir. 2013); Catlin v. City of Wheaton, 574 F.3d 361, 367 (7th Cir. 2009).

2 Williams should note, however, that he should have raised and litigated the exhaustion issue much

earlier in this case. Defendant bears the burden of demonstrating non-exhaustion. Turley v. Rednour, 729

F.3d 645, 650 (7th Cir. 2013). An inmate must exhaust administrative remedies that are “available” to

him. 42 U.S.C. § 1997e(a). Prison authorities may not affirmatively mislead an inmate regarding

available procedures. See Twitty v. McCoskey, 226 F. App’x 594, 596 (7th Cir. 2007). Whether Clay

failed to exhaust his administrative remedies here would turn on whether the direction that he says he

received from officials at the facility in Kankakee County rendered administrative remedies “unavailable”

to him. Obviously, this is a fact issue. But Williams did not raise the exhaustion issue until the summary

judgment stage, after the conclusion of discovery. The Seventh Circuit has instructed that the best

practice is to resolve the issue of exhaustion at the start of the case, before pretrial discovery begins. See

Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Early resolution of the exhaustion issue both

comports with the PLRA and promotes judicial economy by potentially allowing the parties to avoid the

cost of discovery altogether. Id. The Court nevertheless does not reach the exhaustion issue – including

whether the defense was waived – because it grants the motion on other, independently sufficient

grounds.

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There is no special set of summary judgment rules for excessive force claims. Normal

rules apply. So if countervailing evidence is lacking, it’s lacking. Summary judgment is proper

when there is no genuine issue of material fact between the parties, or when Plaintiff’s version of

events is accepted as true, and no reasonable jury could find that the use of force was excessive.

See, e.g., Catlin, 574 F.3d at 367; Williams v. Brooks, 809 F.3d 936, 944 (7th Cir. 2016).

Clay has no quarrel with any force used against him before he was handcuffed. He states

that “my complaint is only as to what happened after I was in cuff.” See Pl.’s Mem., at 1 (Dckt.

No. 57) (emphasis in original). That concession makes sense. It was unavoidable. Clay created

an exceptionally dangerous situation, and Williams and the others sprang into action to save a

colleague’s life. They acted in the heat of the moment, and in the end, Clay suffered no serious

injuries. They used reasonable force to restrain him, as even Clay admits.

Here, Clay has abandoned or modified several of the allegations in the complaint,

presumably because the video evidence proves them to be false. For starters, Clay no longer

maintains that the officers beat him for ten minutes. See Pl.’s Mem. (Dckt. No. 57). The video

shows that Williams was at the office for no more than two and a half minutes total, and that he

left the office about one minute after the hostage rescue. See Statement of Facts, at ¶¶ 20–22

(Dckt. No. 52). Plus, the video also shows other guards taking Clay away from the scene less

than two minutes after Victim B’s rescue. Id. at ¶ 23. Clay also no longer asserts that he was

assaulted outside the elevator; instead, it was “near” the elevator. See Pl.’s Resp., at 2 (Dckt. No.

56). The video footage shows no assault outside or “near” the elevator. Id. at ¶ 25.3

3 The government provided a courtesy copy of the video to the Court’s chambers, and the Court watched

the video. The government cited the video as exhibit 9 to the Rule 56.1 statement, but did not file a copy

of the video with the Clerk’s office. See Statement of Facts, at ¶¶ 20–26 (Dckt. No. 52); Def.’s App’x of

Exs. to Statement of Facts (Dckt. No. 52-1) (naming “Disk of MCC Surveillance Video” as Exhibit 9);

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But Clay does persist in contending that he was dragged face-first down the stairs and

that Williams made sure that he hit his face and head on the steps. See Pl.’s Mem., at 1 (Dckt.

No. 57). The video evidence shows otherwise. Plaintiff’s story is just a story, supported by no

evidence – and contradicted by the evidence.

Here, the video unequivocally shows that Clay was pulled down the stairs on his back.

See Def.’s Rule 56.1 Statement of Facts, Ex. 9 (Dckt. No. 52). He did not hit his face or head on

the stairs. And most importantly, Williams was not with the group of individuals who

transported Clay down the stairs and away from the pepper spray. See Def.’s Rule 56.1

Statement of Facts, at ¶ 24. Williams did not use excessive force because he didn’t exercise any

force at all. He wasn’t even there. Id. Summary judgment is permissible if one story is

“blatantly contradicted by the record, so that no reasonable jury would believe it . . . .” Scott v.

Harris, 550 U.S. 372, 380 (2007) (holding that party’s position was contradicted by videotape of

incident, requiring the court to reject party’s position on what occurred and instead rely on the

videotape); Johnson v. Moeller, 269 F. App’x 593, 596 (7th Cir. 2008) (summary judgment

upheld for defendant on excessive force claim where security-camera footage belied Plaintiff’s

version of events and demonstrated reasonableness of force used).

Clay alleges that Williams directed the MCC employees to hit his face on the stairs. But

that makes no difference. The point is that he did not hit his face on the stairs at all, because he

went down on his back. The video showed the falsity of Clay’s story. No reasonable jury could

find otherwise.

Def.’s Exs. to Statement of Facts, at 47–49 of 111 (Dckt. No. 52-2) (skipping from Exhibit 8 to Exhibit

10). So the Court has directed the government to file a copy on the docket. See Dckt. Nos. 72, 76. Still,

the omission falls in the “no harm, no foul” category. The Court did receive a copy in chambers, and

Clay received a copy, too.

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That leaves two components of Clay’s excessive force claim. Clay argues that Williams

assaulted him in the 60 seconds while he was handcuffed (after the rescue, but before leaving the

office). He also claims that he was assaulted in the elevator.

The Court views the evidence in the light most favorable to the non-moving party, and

draws all inferences in his favor. Williams argues that he is nonetheless entitled to summary

judgment. See Def.’s Reply, at 5-8 (Dckt. No. 60); see also Dockery, 911 F.3d at 464;

Fitzgerald, 707 F.3d at 733; Catlin, 574 F.3d at 367; Williams, 809 F.3d at 944. The Court

agrees.

The Due Process Clause of the Fourteenth Amendment governs a claim of excessive

force by a pretrial detainee. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015). To

succeed, a pretrial detainee must show that the “force purposely or knowingly used against him

was objectively unreasonable.” Id. at 2473. A court must make this determination “from the

perspective of a reasonable officer on the scene, including what the officer knew at the time, not

with the 20/20 vision of hindsight.” Id.

An officer is not required to use the least amount of force possible to restrain an inmate.

Rather, the force must be reasonable under the circumstances. See Scott v. Edinburg, 346 F.3d

752, 760 (7th Cir. 2003). Officers do not have the luxury of time, and they do not act in an

adrenaline-free environment. Officers must make split-second decisions about the use of force in

tense, uncertain, and rapidly evolving environments. See Dockery, 911 F.3d at 464. Especially

when someone’s life is on the line.

At the summary judgment stage, the question is whether a reasonable jury could find that

a use of force was objectively unreasonable. That question depends on factors like (1) the

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relationship between the need for the use of force and the amount of force used; (2) the extent of

the plaintiff’s injury; (3) any effort made by the officer to temper or to limit the amount of force;

(4) the severity of the security problem at issue; (5) the threat reasonably perceived by the

officer; and (6) whether the plaintiff was actively resisting. Kingsley, 135 S. Ct. at 2473 (citation

omitted). The question is what a reasonable officer on the scene would have understood in that

moment, without the benefit of hindsight. Id.

Here, all of the factors weigh heavily in favor of the reasonableness of the use of force.

In fact, the balancing is so lopsided that no reasonable jury could find in Clay’s favor.

Clay took a female BOP case manager hostage in the prison. He put a knife to her throat.

He threatened to kill her. And when Williams arrived on the scene, Clay was straddling the

victim with, again, a knife at her throat. Williams reasonably perceived that Clay may have been

attempting to remove his victim’s pants, presumably to sexually assault her. And Williams knew

that Clay had previously kidnapped, raped, and strangled a different female victim before setting

her on fire in an attempt to kill her. It was eminently reasonable for Williams to reach the

obvious conclusion: a highly dangerous person was engaged in a violent act. It required

emergency action.

Addressing a few of these factors in order, the Court starts with factor one – the

relationship between the need for the use of force and the amount of force used. See id. The

force that Williams allegedly used against Clay in both the office and elevator – hits to the head

and torso and restraining Clay with his knees – was very mild in comparison to the

overwhelming need for force, in light of the existing danger. And factor two, the extent of

Clay’s injuries, also weighs in favor of Williams. Clay’s injuries amounted to mild abrasions

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and bruising to the face and upper torso. These injuries are consistent with the BOP employees’

efforts to subdue Clay in Victim B’s office. Clay presents no evidence to show that these

injuries were caused by purely gratuitous violence after he meekly submitted in handcuffs,

whether in Victim B’s office or while he was in the elevator.

Factor three looks to the officer’s effort to temper, or limit, the amount of force. Here,

Williams tempered the amount of force he used. Recall Clay’s end goal. He claims he was

attempting to commit suicide by goading the MCC officers into killing him. He admits that his

behavior posed such a clear and present danger that lethal force was not only warranted, but the

end-goal. Getting tackled is reasonable when Clay sought to get killed.

As Clay himself admits, the initial use of force – before the handcuffing – was eminently

reasonable. And no jury could think it was unreasonable for BOP employees to continue to

subdue a dangerous, violent person even after he was handcuffed, or that the officers used

unreasonable force in doing so. Clay testified that he “felt” like he was being hit all over and felt

knees holding him down. See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111). Given

the circumstances, Clay’s account is unsurprising – he was being subdued and immobilized by

multiple officers after holding a prison employee hostage and threatening to kill her.

If Defendant Williams had actually hit Clay, it would have been easy for Clay to say so,

squarely and directly. He could have testified, say, that Williams swung at him, or had a closed

fist, or dealt him body blows, or smacked him in the face, or something along those lines. “He

punched me,” for example, is easy to say. But Clay offered no such testimony. Instead, he

testified that getting restrained by a group of people (after threatening to kill someone) “felt” like

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he was getting beaten. That’s not enough to support a jury verdict that Williams used objectively

unreasonable force.

At best, Williams has offered evidence that some amount of force was used against him

while he was restrained. But he didn’t offer evidence of unreasonable force. And he didn’t offer

any evidence that Williams, in particular, used unreasonable force. He testified that he could

“make out” Williams amidst the pepper spray, but he didn’t testify that he saw Williams hit him

or gratuitously beat him. See Clay Dep., at 24:23 – 25:14 (Dckt. No. 52-2, at 89 of 111). Based

on this evidence, no reasonable jury could conclude that Williams used objectively unreasonable

force against Clay.

Factors four and five are intertwined here, assessing both the severity of the threat and the

threat reasonably perceived by the officer. A detainee accused of one violent crime who has just

committed another violent crime while in lock-up is clearly a serious threat. Handcuffing such a

person would not necessarily ensure the safety of BOP employees. No jury would think that the

BOP employees were safe just because Clay was in handcuffs. Using additional force was

reasonable to ensure that Clay was not a danger to anyone else.

And finally, factor six favors Williams if Clay was actively resisting. In this case, Clay

cannot create a genuine issue of fact by claiming that he did not resist once the officers opened

the door. Even if Clay did not physically fight back once the officers entered the office, he

continued to actively resist – just moments before – by refusing to drop the knife. He refused to

come to the door, and barricaded himself in the locked office despite the pepper spray. The

officers were not expected to stop on a dime and assume a placid inmate. See Mason-Funk v.

City of Neenah, 895 F.3d 504, 510 (7th Cir. 2018) (“To drive home the point, it is worth

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recounting what occurred in the short span of six minutes. Flathoff had continuously made

threats that he would kill the hostages, which prompted the hasty team to act.”); Varnadore v.

Merritt, 778 F. App’x 808, 815 (11th Cir. 2019) (finding active resistance factor tipped for

officers where suspect had previously refused to comply with their order to show his hands, even

though the suspect was not actively resisting arrest when the officers shot him).

Based on the undisputed facts, no reasonable jury could find that Williams used excessive

force on Clay after he was handcuffed in Victim B’s office. Even if Clay had stopped all

resistance, submitted to his restraints, and stopped fighting immediately, a reasonable officer

would not have anticipated such a drastic and sudden change of behavior. With blood pumping

in the heat of the moment, the officers would not have recognized the lion-to-lamb

transformation for some period of time. Continuing to restrain a violent inmate – moments after

an attack – was reasonable.

Clay insists that his “intention wasn’t to hurt anyone.” See Pl.’s Mem., at 2 (Dckt.

No. 57). The knife to the throat suggested otherwise. So did the call for help from the victim.

And Clay’s threat to kill her. All available information told Williams that a fellow BOP

employee’s life was on the line, and the undisputed evidence is that he acted accordingly.

Clay’s minor injuries – mild bruises and abrasions – are unrebutted evidence that the

force was not excessive. If anything, the modesty of the injuries – after BOP officers had to

forcibly subdue him – confirms that the officers acted with restraint and professionalism. “The

extent of injury is relevant to the . . . inquiry because it provides some indication of the amount

of force applied, and because it may suggest whether the use of force was plausibly necessary in

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a particular situation.” McCottrell v. White, 933 F.3d 651, 664 (7th Cir. 2019) (Eighth

Amendment context).

The use of force on a restrained suspect, if tempered to keep him still and the officers

safe, is typically not unreasonable in most circumstances. See Abdullahi v. City of Madison, 423

F.3d 763, 771 (7th Cir. 2005) (“just enough force to prevent an individual from ‘squirming’ or

escaping might be eminently reasonable”). Here, again, to Williams and the other officers, Clay

had just appeared poised to murder an MCC employee. No reasonable jury could conclude that

handcuffing him was enough to ensure the safety of MCC employees, at least during the minutes

after he was handcuffed. Thus, though Clay points to his bruises as evidence that the force

against him was excessive, his mild injuries demonstrate that the force used was reasonable

under the circumstances. And Clay has presented no evidence that he in fact received any of his

mild injuries after being handcuffed. Clay can’t make a res ipsa loquitor argument, arguing he

couldn’t have sustained these injuries unless he was beaten after being handcuffed. After all,

Clay’s injuries are entirely consistent with being disarmed, subdued, and restrained during the

rescue of Victim B, when exceptionally high levels of force would have obviously been

reasonable.

B. Qualified Immunity

Even if his use of force could be considered objectively unreasonable (which was not the

case), Williams is entitled to qualified immunity.

The doctrine of qualified immunity “‘gives government officials breathing room to make

reasonable but mistaken judgments,’ and ‘protects all but the plainly incompetent or those who

knowingly violate the law.’” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting

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Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)). As applied to an excessive force claim, “the

qualified-immunity doctrine gives enhanced deference to officers’ on-scene judgments about the

level of necessary force.” Dockery, 911 F.3d at 466 (internal quotations omitted). “This is so

because, even if the plaintiffs demonstrate that excessive force was used, they must further

establish that it was objectively unreasonable for the officer to believe that the force was lawful –

i.e., they must demonstrate that the right to be free from the particular use of force under the

relevant circumstances was ‘clearly established.’” Abbott v. Sangamon County, 705 F.3d 706,

725 (7th Cir. 2013).

“Qualified immunity is an affirmative defense, and once raised, the plaintiff bears the

burden of defeating it by showing: (1) the defendant violated a constitutional right, and (2) that

the right was clearly established at the time of the alleged violation.” Sinn v. Lemmon, 911 F.3d

412, 418 (7th Cir. 2018) (citing Archer v. Chisholm, 870 F.3d 603, 613 (7th Cir. 2017)). “A

failure to show either is fatal for the plaintiff’s case.” Id. at 418 (quoting Archer, 870 F.3d at

613).

The Supreme Court has “repeatedly told courts . . . not to define clearly established law at

a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). Instead, “[t]he

contours of the right must be sufficiently clear that a reasonable official would understand that

what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987); see

Dockery, 911 F.3d at 466 (“[T]he precedent must be ‘particularized to the facts of the case.’”).

This principle is “particularly important in excessive force cases” because “[u]se of excessive

force is an area of the law in which the result depends very much on the facts of each case.” City

of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam).

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In fact, excessive force caselaw arising in non-hostage situations is not specific enough to

warn officers about the legality of force used in a hostage situation. A hostage-taker has already

demonstrated a propensity for violence and unpredictability, which makes the situation different

from other cases. See Mason-Funk v. City of Neenah, 895 F.3d 504, 509 (7th Cir. 2018) (“Funk

fails to cite to any precedent . . . which involved a hostage situation. On this basis alone, the

remaining cases cited by Funk are factually distinct and incapable of giving the officers any fair

warning that they violated a clearly established right.”) (emphasis added).

Here, Clay failed to meet his burden to defeat a qualified immunity defense. Recognizing

that Clay is pro se, however, the Court conducted its own search and located no precedential

authority providing guidance on how a correctional officer must respond under the circumstances

confronted by Williams while rescuing Victim B. The Court did locate Seventh Circuit authority

prohibiting significant and gratuitous force against subdued suspects in certain circumstances.

See, e.g., Kingsley v. Hendrickson, 801 F.3d 828, 832 (7th Cir. 2015) (concluding that a

reasonable officer was on notice that a manacled, non-resisting suspect already lying on his back

did not justify the use of taser); Miller v. Gonzalez, 761 F.3d 822, 829 (7th Cir. 2014) (finding

that a reasonable jury could have determined that the officer deliberately broke arrestee’s jaw

with knee when the arrestee no longer posed a threat, and was already lying spread eagle on the

ground); Rambo v. Daley, 68 F.3d 203, 207 (7th Cir. 1995) (“The Constitution clearly does not

allow police officers to force a handcuffed, passive suspect into a squad car by breaking his

ribs.”).

But those cases are distinguishable. The cases did not involve a suspect like Clay, who

demonstrated an immediate willingness to harm law enforcement personnel. And they all turned

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on the fact that the officers used unnecessary force against prisoners who were already

restrained. In other words, there is no clearly established constitutional right for a detainee –

who has just kidnapped and threatened to murder a prison employee – to be free from force

beginning at the very instant that he stops fighting. He had no constitutional right to a “hands

off” approach.

In sum, based on the undisputed facts, Williams enjoyed qualified immunity, even if (for

the sake of argument) he exercised unreasonable force. See Johnson v. Rogers, 944 F.3d 966,

969 (7th Cir. 2019) (“Only when precedent places the invalidity of a particular action beyond

debate may damages be awarded.”). Williams’s perspective in the moment was colored by

Clay’s prior actions. And moments earlier, Clay appeared poised to stab Victim B in the neck, a

potentially fatal blow. Williams had no reason to assume that Clay had a change of heart, and no

longer sought to kill or injure MCC employees. See Townsend v. McWilliams, 2019 WL

5618821, at *5 (S.D. Ind. 2019) (finding qualified immunity in light of the fact that a struggle

had preceded the handcuffing).

C. Property Deprivation

Under 28 U.S.C. § 1915A, Judge Shah pre-screened the due process claim based on

deprivation of property, and dismissed the claim. See Dckt. No. 8. Williams nonetheless moved

for summary judgment on the claim. See Def.’s Mem. of Law, at 11-14 (Dckt. No. 51). There is

no need for this Court to grant summary judgment on a claim that it has already dismissed.

Conclusion

Defendant Williams’s motion for summary judgment [50] is granted. The Clerk of Court

will enter final judgment for Defendant Williams and against Clay. Defendant Officer Brussette

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is dismissed for failure to effectuate service of process See Fed. R. Civ. P. 4(m). This case is

closed.* .

Date: May 31, 2020 aS

Steven C. Seeger

United States District Judge

“ If Clay wants to appeal, he must file a notice of appeal with this Court within thirty days of the entry of

judgment. See Fed. R. App. P. 4(a)(1). If Clay appeals, he will be liable for the $505.00 appellate filing

fee regardless of the appeal’s outcome. See Evans v. Ill. Dep’t of Corr., 150 F.3d 810, 812 (7th Cir.

1998). If the appeal is found to be non-meritorious, he could be assessed a “strike” under 28 U.S.C. §

1915(g). Ifa prisoner accumulates three strikes because three federal cases or appeals have been

dismissed as frivolous or malicious, or for failure to state a claim, the prisoner may not file suit in federal

court without pre-paying the filing fee unless he is in imminent danger of serious physical injury. /d. If

Clay seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to proceed in

forma pauperis in this Court stating the issues he intends to present on appeal. See Fed. R. App. P.

24(a)(1).

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