Bailey v. Jeffreys

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHRISTOPHER BAILEY, )

)

Plaintiff, )

)

vs. ) Case No. 3:21-CV-13-MAB

)

CECIL THOMAS HOLT, )

DANIEL SULLIVAN, TONY BUTLER, )

SHANE TASKY, DAVID HERMETZ, )

KIMBERLY WHARTON, )

MICHAEL HARRIS, and )

WARDEN OF BIG MUDDY RIVER )

CORRECTIONAL CENTER, )

)

Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is currently before the Court on Defendants’ motion for summary

judgment on all counts (Doc. 67). For the reasons explained below, the motion is granted

in part and denied in part.

BACKGROUND

Plaintiff Christopher Bailey, who is civilly committed at Big Muddy Correctional

Center as a sexually dangerous person (“SDP”) under the Illinois Sexually Dangerous

Persons Act, 725 ILL. COMP. STAT. 205/1.01, brought this action in January 2021 for alleged

deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 (Doc. 1).1 Plaintiff

1 The Sexually Dangerous Persons Act authorizes the state's Director of Corrections to involuntarily commit

and indefinitely detain individuals who have been charged with a crime and found to “suffer[ ] from a

mental disorder . . . coupled with criminal propensities to the commission of sex offenses” and

claims, in short, that he was wrongfully issued a disciplinary ticket and punished with

segregation for refusing to participate in the SDP treatment program. While in

segregation, he was assaulted by a correctional officer, which led to another false

disciplinary ticket and more punitive segregation time. Following a preliminary review

of the complaint pursuant to 28 U.S.C. § 1915A, Plaintiff was permitted to proceed on the

following six claims:

Count 1: Fourteenth Amendment claim against Dr. Cecil Holt, the SDP

Program Director at Big Muddy, for violating Plaintiff’s right to refuse

treatment.

Count 2: First Amendment claim against Dr. Holt for issuing Plaintiff a

disciplinary ticket and placing him in segregation in retaliation for refusing

treatment.

Count 3: Fourteenth Amendment claim for depriving Plaintiff of a

protected liberty interest without due process in connection with a

disciplinary ticket issued on January 10, 2019, against Dr. Holt, who wrote

the ticket, Officers Tony Butler and Shane Tasky, who served on Big

Muddy’s Adjustment Committee and found Plaintiff guilty, and Warden

Daniel Sullivan, who approved the recommended disciplinary action.

Count 4: Fourteenth Amendment claim for depriving Plaintiff of a

protected liberty interest without due process in connection with a second

disciplinary ticket issued on March 2, 2019 against Sergeant Michael Harris,

who wrote the ticket, Officers Tony Butler and David Hermetz, who served

on the Adjustment Committee and found Plaintiff guilty, and Warden

Daniel Sullivan, who approved the recommended disciplinary action.

Count 5: Fourteenth Amendment claim against Lieutenant Kimberly

Wharton for the use of excessive force.

“propensities toward acts of sexual assaults or acts of sexual molestation of children.” 720 ILL. COMP. STAT.

205/1.01, /3, /3.01, /8; Howe v. Hughes, 74 F.4th 849, 853 (7th Cir. 2023). The Act requires the Director of

Corrections to “provide care and treatment for the person committed to him designed to effect

recovery.” Id. at 205/8.

Count 6: Fourteenth Amendment claim against Sergeant Michael Harris for

failing to intervene and protect Plaintiff from assault by Wharton.

The parties attempted to mediate a settlement in February 2023 but were

unsuccessful (Docs. 49, 54). Defendants filed their motion for summary judgment on the

merits of Plaintiff’s claims on August 25, 2023 (Doc. 67). After requesting and receiving

several extensions of time, Plaintiff filed his response in opposition on December 28, 2023

(Doc. 75). Defendants did not file a reply brief despite their initial indication that they

would do so (see Doc. 76).

FACTS

SDPs at Big Muddy are subject to “Program Rules” as well as “Institutional Rules”

(see Doc. 67-4, pp. 1, 13). One of the rules SDPs are subject to is a dress code (Id. at p. 4).

The dress code requires SDPs to wear a blue shirt and blue pants, with the shirt tucked

in, Monday through Friday from 8:00 a.m. to 2:30 p.m. (with the exception of holidays)

(Id.). An SDP is given a verbal warning/counseling for their first violation of the dress

code (Id. at p. 15). For subsequent violations, they can receive a program ticket, intensive

therapy, or an institutional ticket, “depending upon additional behaviors at the time of

the infraction, response of the individuals involved when informed of the infraction,

[and] progressive nature of the offense” (Id. at p. 15; see also id. at pp. 13–14).

On January 10, 2019, Defendant Dr. Cecil Holt issued a Disciplinary Report—

meaning an institutional ticket—to Plaintiff (Doc. 67-1, p. 6). The ticket states that Dr. Holt

met with Plaintiff “to discuss his assertion that he ‘will not follow the Policy and

Procedures of the SDP Program or recognize [Holt’s] authority as the Administrator of

the SDP Program.’” (Id.). Dr. Holt “explained the expectation that the Policy and

Procedure[s] of the Program be followed and gave [Plaintiff] a minimum of five (5) direct

orders to wear his blue shirt (tucked-in) while in the Day-Room during treatment hours

. . .” (Id.). Plaintiff “loudly, angrily replied, “There ain’t no way. I am not going to do it—

ever. Your rules don’t apply to me and you know it.” (Id.). Plaintiff returned to B-wing,

went upstairs, and took off his shirt in clear view of staff (Id.). Plaintiff “was then

observed loudly informing and encouraging the large crowd of SDPs waiting for chow

that SDPs who refuse to attend group are not under the Policy and Procedures of the SDP

Program and do not have to follow them” (Id.). Plaintiff’s offenses were listed as 205—

Dangerous Disturbance, 208—Dangerous Communication, 215—Disobeying a Direct

Order Essential to Safety and Security, 313—Disobeying a Direct Order, and 404—

Violation of SDP Program Rules (Id.).

Defendants Shane Tasky and Tony Butler held an Adjustment Committee hearing

on Plaintiff’s disciplinary ticket on January 15, 2019 (Doc. 67-1, pp. 4–5). Plaintiff pled

guilty to the 313 charge of Disobeying a Direct Order (Id.). He argued that he has the right

to refuse treatment and that “nothing that ticket shows or states that it was dangerous

communications or a threat to safety” (Id.). The hearing committee found Plaintiff not

guilty of the first two charges, but guilty of the third, fourth, and fifth charges of 215—

Disobeying a Direct Order Essential to Safety and Security, 313—Disobeying a Direct

Order, and 404—Violation of SDP Program Rules (Id.). Defendants Tasky and Butler

recommended three months of C-grade designation and three months of segregation

(Id.). Warden Daniel Sullivan approved the recommended discipline (Id.).

On the evening of March 2, 2019, while Plaintiff was in segregation, Officer

Berkeley (who is not a defendant) came to get Plaintiff’s cellmate for the evening

medication line (Doc. 67-3, pp. 78–79). Officer Berkeley told Plaintiff to get out of bed and

come to the door to cuff up so his cellmate could be taken out (Id. at p. 79). Plaintiff

explained at his deposition that, previously, an officer would just have him sit on the bed

or go to the back of the cell but then the policy changed and officers made him cuff up

(Id. at pp. 79–80). Plaintiff further explained that he would be left in the cuffs for five to

ten minutes while his cellmate was at medline, and the cuffs were only removed after his

cellmate got back (Id. p. 80). Plaintiff thought the whole process was unnecessary, so he

refused to cuff up when Berkeley asked (Id. at pp. 80–81). Hearing the disagreement

between Berkeley and Plaintiff, Defendants Kimberly Wharton, a lieutenant, and Michael

Harris, a sergeant, came to the cell to assist (Id. at pp. 79, 81). Defendant Wharton ordered

Plaintiff to come to the door and cuff up, and he did so (Id. at pp. 81, 82).

As Plaintiff tells it, after his cellmate and Officer Berkeley left to visit the medical

line, Plaintiff initiated a verbal altercation with Defendant Wharton, complaining about

the necessity of being cuffed during cellmate extractions and saying “something about

her attitude is not necessary,” because he thought she was being “unnecessarily . . . hostile

in her tone, her attitude, her behavior, [and] her body language” (Doc. 67-3, pp. 83–84,

86). Plaintiff said Defendant Wharton slammed the cell door shut and turned to walk

away (Id. at p. 87). But she had slammed the door so hard that it did not latch and bounced

back open (Id. at p. 87). Wharton turned back toward the cell and grabbed the door again

(Id.). Plaintiff admitted that he was not at the back of the cell; he said in a grievance that

he had stepped toward the door when Wharton shut the door the first time, (Doc. 75, p.

45), and he testified at his deposition that he was in the middle of the cell (Doc. 67-3, p.

87). Wharton ordered Plaintiff to sit down (Id. at pp. 84, 86, 87; Doc. 75, p. 45). Plaintiff

said that he “began to step backwards towards the bunk while stating ‘that attitude isn’t

necessary’” (Doc. 75, p. 45). Wharton then charged into the cell and shoved him with an

open hand against his chest and yelled at him again to sit down (Id.). Plaintiff told

Wharton “not to put her hands on [him]” (Id.). Wharton shoved him two or three more

times, yelling at him to sit down, all the while Plaintiff talked back (Id.; Doc. 67-3, pp. 84,

86, 89). The last shove forced Plaintiff’s back up against the side of the bedframe (Doc. 75,

p. 45; Doc. 67-3, pp. 87, 90). At that point, Plaintiff stuck his leg up and kicked Wharton

in her lower abdomen and/or groin area (Doc. 67-3, pp. 85, 90, 91).

Plaintiff said he did not kick Wharton “with the intent of actually harming her or

even necessarily hitting her . . . [but] only to interrupt what she was doing, which was

repeatedly [shoving him].” (Id. at pp. 85–86). Once Plaintiff kicked Wharton, Defendant

Harris, who was positioned behind Wharton, sprung between Plaintiff and Wharton to

stop the altercation (Id. at p. 89). Plaintiff admits that he suffered no injuries as a result of

being shoved by Defendant Wharton (Id. at pp. 87–88).

Defendant Harris issued a disciplinary report to Plaintiff describing the incident

and charging Plaintiff with two Violations: (1) Assault with Injury, and (2) Disobeying a

Direct Order Essential to Safety and Security (Doc. 67-1, p. 3). According to the ticket,

Plaintiff “kick[ed] Lt. Wharton in the stomach and groin area stating, ‘fuck you bitch, I

know my rights’ after refusing several direct orders from Lt. Wharton to move back from

the opened cell door and sit down while . . . his cell mate [was being removed] for

medline.” (Id.). Defendants Tony Butler and David Hermetz held an Adjustment

Committee hearing on the ticket on March 5, 2019 (Id. at pp. 1–2). Plaintiff pled not guilty

and objected to Defendant Butler’s presence on the Hearing Committee stating, “we have

a history.” (Id.; see also Doc. 67-3, pp. 95–96; Doc. 75, pp. 50–51). According to the report,

the Committee determined there was no basis for Plaintiff’s objection to Defendant

Butler, and Plaintiff “then refused to take part in the hearing” (Id.). Plaintiff was found

guilty of both violations (Id.). The Committee recommended one year C-grade, one year

segregation, six months contact visits restriction, and one year segregation yard

restriction (Id.). Warden Sullivan approved the recommended disciplinary action on

March 7, 2019 (Id.).

Plaintiff disputes the narrative in the Adjustment Committee’s report as to what

occurred at the hearing (Doc. 75, p. 2 #20, p. 11). Plaintiff testified that he raised an

objection to Defendant Butler's involvement at the beginning of the hearing, and Butler

said he could not object (Doc. 67-3, pp. 95–96; Doc. 75, pp. 50–51). Plaintiff argued that he

did have the right to object to a committee member presiding over the hearing, and he

and Butler “had a back-and-forth” on the issue (Doc. 67-3, p. 96; Doc. 75, pp. 50–51).

Plaintiff recounted in a grievance that the dispute reached a point where Butler said, “You

think you fucking know everything don’t you?” (Doc. 75, p. 51). Butler then stood up and

“got in [Plaintiff’s] face like nose to nose,” and something to the effect of “Why don’t you

try kicking me like you kicked her. I’ll beat your fucking ass” (Doc. 67-3, pp. 96–97; see

also Doc. 75, p. 51). Plaintiff retorted something along the lines of, “If you give me a reason

for me to defend myself, I will.” (Doc. 67-3, p. 97; see also Doc. 75, p. 51). Plaintiff said he

and Butler bickered a bit more until Butler ended it by telling Plaintiff that he would not

be making a statement to the Committee and telling an officer to take Plaintiff back to his

cell (Id. at p. 97; see also Doc. 75, p. 51).

LEGAL STANDARD

Summary judgment is proper when the moving party “shows that there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(a). Under Rule 56, the movant has the initial burden of

informing the court why a trial is not necessary. Modrowski v. Pigatto, 712 F.3d 1166, 1168

(7th Cir. 2013) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The burden then

switches to the party opposing summary judgment to come forward with properly

supported arguments or evidence that show the existence of a genuine issue of material

fact. Treadwell v. Office of Ill. Sec'y of State, 455 F.3d 778, 781 (7th Cir. 2006). “Factual

disputes are genuine only if there is sufficient evidence for a reasonable jury to return a

verdict in favor of the non-moving party on the evidence presented, and they are material

only if their resolution might change the suit’s outcome under the governing law.”

Maniscalco v. Simon, 712 F.3d 1139, 1143 (7th Cir. 2013) (citation and internal quotation

marks omitted). In deciding a motion for summary judgment, the court’s role is not to

determine the truth of the matter, and the court does not “weigh conflicting evidence,

resolve swearing contests, determine credibility, or ponder which party's version of the

facts is most likely to be true.” Stewart v. Wexford Health Sources, Inc., 14 F.4th 757, 760 (7th

Cir. 2021). Instead, the court’s task is to view the record and draw all reasonable

inferences in the light most favorable to the non-moving party and decide if there is a

genuine material dispute of fact that requires a trial. Stewart, 14 F.4th at 760; Hansen v.

Fincantieri Marine Grp., LLC, 763 F.3d 832, 836 (7th Cir. 2014).

DISCUSSION

A. COUNT 1 – RIGHT TO REFUSE TREATMENT

In Count 1, Plaintiff alleged that Dr. Holt violated his right to refuse treatment by

ticketing him when he refused treatment and refused to be a part of the SDP treatment

program (Doc. 7; see also Doc. 1, pp. 9, 14, 24). It is now clear at summary judgment that

Plaintiff was actually ticketed for not following the dress code of the SDP program

(amongst other things). Plaintiff essentially contends that the dress code is treatment, or

at least a component of treatment, arguing that the dress code “exists solely as part of the

[SDP] program,” which “in and of itself is treatment” and “which [he] has the right to

refuse to be a part of” (Doc. 75, pp. 4–5).

Plaintiff seems to think that his right to refuse treatment extends so far as to allow

him to opt out of any involvement whatsoever with the SDP program, and therefore he

does not have to follow any of the rules of the program. But his argument is an illogical

game of semantics, twisting the meaning of the word “treatment” to fit his narrative. This

argument is unavailing.

A dress code is generally not considered “treatment.” Rather, it is one of many

rules that normally govern confinement of any kind and are designed to ensure a safe,

secure, and orderly-run institution. See, e.g., Young v. Lane, 922 F.2d 370, 375 (7th Cir. 1991)

(noting that prisons have a strong security interest in uniform dress regulations). See also

Cruzan v. Dir., Mo., Dep’t of Health, 497 U.S. 267, 278 (1990) (“[A] competent person has a

constitutionally protected liberty interest in refusing unwanted medical treatment . . . .”)

(emphasis added). As Defendants said, Plaintiff maintains the right to refuse treatment

and Dr. Holt respected that right by not forcing Plaintiff to participate in group sessions

or assigning him any type of therapy-related work (Doc. 67, p. 9). The right to refuse

treatment, however, does not release Plaintiff from his judicially mandated civil

confinement or absolve him from following the rules implemented for civilly committed

SDPs at Big Muddy. Plaintiff has not offered any convincing argument or supporting

authority to the contrary (see Doc. 75). Simply put, so long as Plaintiff is confined in an

IDOC facility, he must follow a dress code, and a failure to do so can lead to punishment

by the institution. See Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003) (explaining that

assigning civil committees to prisons and subjecting them to the usual institutional rules

designed to assure safety and security does not amount to constitutionally impermissible

punishment); West v. Schwebke, 333 F.3d 745, 748 (7th Cir. 2003) (civil detainees can be

punished for violating institutional rules).

Accordingly, no reasonable jury could conclude that Dr. Holt violated Plaintiff’s

right to refuse treatment by ticketing him for failing follow the dress code, and Dr. Holt

is entitled to summary judgment on Count 1.

B. COUNT 2 – RETALIATION FOR REFUSING TREATMENT

To prevail on his First Amendment retaliation claim, a plaintiff must show that he

engaged in activity protected by the First Amendment, the defendant took adverse action

against him that would likely deter the protected activity in the future, and his protected

activity was at least a motivating factor in the defendant’s decision to subject him to the

adverse treatment. Manuel v. Nalley, 966 F.3d 678, 680 (7th Cir. 2020) (citing Kidwell v.

Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012)). If the plaintiff makes this prima facie

showing, the burden shifts to the defendant to demonstrate “that the activity would have

occurred regardless of the protected activity.” Manuel, 966 F.3d at 680 (citation omitted).

The burden then shifts back to the plaintiff to demonstrate that the defendant’s proffered

reason is pretextual or dishonest. Manuel, 966 F.3d at 680 (citation omitted).

In Count 2, Plaintiff claims that Dr. Holt retaliated against him by ticketing him

and subjecting him to segregation for refusing treatment and also informing other SDP

detainees that they have a right to refuse treatment (Doc. 75, p. 5; see also Doc. 7, pp. 7–8;

Doc. 1, p. 9). However, Plaintiff’s allegations are not exactly borne out by the evidence on

summary judgment. The disciplinary report indicates that Plaintiff was ticketed for

refusing Dr. Holt’s orders to follow the dress code, which Plaintiff erroneously refers to

as “treatment,” loudly stating that the SDP Program rules did not apply to him, and then

going to the top of the stairs and taking off his shirt in a particularly dramatic display of

defiance before “loudly informing and encouraging the large crowd of SDPs waiting for

chow” to, in essence, not follow the Policy and Procedures of the SDP Program.

According to Plaintiff, his proclamation to his fellow SDPs was protected by the

First Amendment (Doc. 75, p. 5). That is not so. While Plaintiff may have a First

Amendment right to petition the prison for redress of his grievance regarding the

applicability of the SDP rules, he does not have free reign to choose the manner of his

protest. “If inmates have some First Amendment rights, . . . they only have those rights

that are consistent with prison discipline.” Hale v. Scott, 371 F.3d 917, 919 (7th Cir. 2004)

(quoting Ustrak v. Fairman, 781 F.2d 573, 580 (7th Cir. 1986)). See also Freeman v. Texas Dep't

of Crim. Just., 369 F.3d 854, 864 (5th Cir. 2004) (explaining that while an inmate “retain[s],

in a general sense, a right to criticize prison officials,” he must “exercise[e] that right in a

manner consistent with his status as a prisoner.”).

Plaintiff’s pronouncement to the other SDPs was undoubtedly disruptive and

served to undermine Dr. Holt’s authority and ability to implement and enforce program

rules. Publicly urging other SDPs to flout the rules and not respect authority is

inconsistent with legitimate penological interests in discipline and order and therefore

not protected speech. Cf. Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir. 2010) (holding

inmate law clerk’s public criticism of librarian’s policies was unprotected speech because

it was disruptive and impeded librarian’s authority); Pilgrim v. Luther, 571 F.3d 201, 205

(2d Cir.2009) (finding that a pamphlet urging inmates to engage in work stoppages was

inconsistent with legitimate penological interests); Freeman, 369 F.3d at 864 (concluding

that a public rebuke of a prison chaplain that incited some fifty prisoners to walk out of

a church service was inconsistent with prison discipline).

Defendants also argue that Plaintiff was not punished for his pronouncement to

the other SDPs—he was found not guilty of the 205 charge for Dangerous Disturbance

and the 208 charge for Dangerous Communication—and that he would have been

punished even if he had not made the pronouncement to the other SDPs because of the

other rule infractions (Doc. 67, pp. 11–12). In response, Plaintiff contends that even

though he was found not guilty of the offenses related to his statements to the other SDPs,

those charges still contributed to the punishment that he received (Doc. 75, p. 6). And he

claims the ticket and segregation stint he received “were designed to silence [him]” (Id.).

Plaintiff’s contentions, however, are pure speculation, which is not enough to defeat

summary judgment. Devbrow v. Gallegos, 735 F.3d 584, 588 (7th Cir. 2013) (citing Springer

v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (speculation concerning retaliatory motives

cannot create a genuine issue of material fact)). The evidence demonstrates that there was

a legitimate reason independent of any retaliatory motive for issuing the ticket: Plaintiff

committed other rule infractions by refusing to obey Dr. Holt’s orders to follow the dress

code and taking off his shirt, neither of which Plaintiff denies (see Doc. 75). In fact, Plaintiff

acknowledged his adamancy that he was not to subject to the dress code and that he took

off his blue shirt (Doc. 67-3, pp. 41–43). Under these circumstances, it is difficult to see

how writing Plaintiff a ticket could be viewed as retaliatory, rather than the natural,

logical consequence of Plaintiff refusing to follow the rules.

For these reasons, Plaintiff cannot establish the necessary elements of a First

Amendment retaliation claim, and Dr. Holt is entitled to summary judgment.

C. COUNT 3 – DUE PROCESS RE: FIRST HEARING

In Count 3, Plaintiff alleged that the ticket Dr. Holt wrote in January 2019 was

pretextual, that he was denied procedural due process in connection with the Adjustment

Committee hearing in front of Defendants Butler and Tasky, and that Warden Sullivan

nevertheless approved of the recommended punishment (Doc. 7, pp. 8, 2; Doc. 1, pp. 14,

24, 35).

Defendants concede that Plaintiff’s punishment of three months in segregation

triggered his right to procedural due process safeguards (Doc. 67, pp. 12–13). The Court

likewise operates on that assumption. Cf. Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002)

(“A pretrial detainee cannot be placed in segregation as a punishment for a disciplinary

infraction without notice and an opportunity to be heard; due process requires no less.”);

Rapier v. Harris, 172 F. 3d 999, 1005 (7th Cir. 1999) (“[I]t is permissible to punish a pretrial

detainee for misconduct while in pretrial custody, [but] that punishment can be imposed

only after affording the detainee some sort of procedural protection.”).

The purported pretextual ticket does not in and of itself violate due process, and a

prisoner does not have a viable constitutional claim so long as procedural due process

protections were provided. Bramlett v. Carich, 590 Fed. Appx. 625, 627 (7th Cir. 2014)

(citing McPherson v. McBride, 188 F.3d 784, 787 (7th Cir. 1999)); Hadley v. Peters, 70 F.3d

117 (7th Cir. 1995), affirming 841 F.Supp. 850, 856 (C.D. Ill. 1994). Those protections

include: (1) advanced written notice of the disciplinary charges against him; (2) the right

to appear before an impartial decisionmaker; (3) the right to call witnesses and present

evidence, if prison safety allows; and (4) a written statement of the reasons for the

discipline imposed. Prude v. Meli, 76 F.4th 648, 657 (7th Cir. 2023); see also Wolff v.

McDonnell, 418 U.S. 539, 563-569 (1974). Additionally, “the disciplinary decision must be

supported by at least ‘some evidence.’” Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007)

(citing Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985)).

Plaintiff raises a number of due process challenges to the first disciplinary hearing.

He claims that Defendant Butler was not an impartial decisionmaker, that he was not

allowed to submit any evidence in his favor, and that the Adjustment Committee did not

provide an explanation for finding him guilty (Doc. 75, pp. 6, 7). Plaintiff also argues there

is no basis for the 404 charge for violating the SDP program rules and that there is

insufficient evidence to support finding him guilty of the 215 charge for disobeying a

direct order essential to safety and security (Id. at pp. 7–9).

1. Impartial Decisionmaker

Due process entitles a prisoner to an impartial decisionmaker during a prison

disciplinary hearing. Prude, 76 F.4th at 657. See also Ramirez v. Turner, 991 F.2d 351, 355

(7th Cir. 1993) (“There must be a ‘neutral and detached’ decision-making body.”) (citation

omitted). However, “[a]djudicators enjoy a presumption of honesty and integrity, and

thus the constitutional standard for impermissible bias is high.” Prude, 76 F.4th at 657

(citation omitted); Piggie v. Cotton, 342 F.3d 660, 666 (7th Cir. 2003) (citations omitted).

“The presumption is a rebuttable one, but the burden of rebuttal is heavy . . . . [T]he party

claiming bias must lay a specific foundation of prejudice or prejudgment, such that the

probability of actual bias is too high to be constitutionally tolerable.” Hess v. Bd. of Trustees

of S. Illinois Univ., 839 F.3d 668, 675 (7th Cir. 2016) (citing Withrow v. Larkin, 421 U.S. 35,

47, 55 (1975)). See also Higgason v. Lemmon, 6 Fed. Appx. 433, 435 (7th Cir. 2001) (“This

presumption can be overcome with ‘clear evidence to the contrary.’”) (quoting United

States v. Armstrong, 517 U.S. 456, 464 (1996)); Head v. Chicago Sch. Reform Bd. of Trustees,

225 F.3d 794, 804 (7th Cir. 2000) (to overcome presumption of adjudicator's good faith,

honesty, and integrity, “a plaintiff must come forward with substantial evidence of actual

or potential bias, such as evidence of a pecuniary interest in the proceeding, personal

animosity toward the plaintiff, or actual prejudgment of the plaintiff's case.”) (citing

Withrow, 421 U.S. at 47). Due process is offended only if the decisionmaker is so biased

that it presents “a hazard of arbitrary decision making.” Wolff, 418 U.S. at 571.

Plaintiff’s argument regarding Defendant Butler’s impartiality at the hearing for

the January 2019 ticket is perfunctory and undeveloped (see Doc. 75, p. 6). All he says is

that Defendant Butler “was not impartial and conducted himself in a manner that

supports that claim” (Id.). Plaintiff also did not cite to evidence sufficient for a reasonable

jury to side with him. He cited to “Doc. 1, Ex. 4, Ex. 4 – C, H, and K” (Id.). “Ex. 4” is a ten-

page, unsworn “Petition of the Facts” (Doc. 75, pp. 20–29), and Plaintiff did not provide

a pin cite (see Doc. 75, p. 6). The Court will not scour this entire document for references

to Butler and then speculate as to whether those statements were the ones Plaintiff

intended to support his argument. See Grant v. Trustees of Indiana Univ., 870 F.3d 562, 572

(7th Cir. 2017) (courts are not required to “scour the record in search of evidence to defeat

a motion for summary judgment.”) (citation omitted). Document “C” is a grievance, in

which Plaintiff wrote that Butler got “angry” when he objected to Butler’s presence on

the Adjustment Committee and sent Plaintiff back to his cell (Doc. 75, p. 33). Plaintiff said

he was brought back later that day for a hearing “before Butler and Tasky despite my

objections” (Id.). Plaintiff stated that he objected to Butler’s involvement because “on

multiple occasions in the past he has threatened me, both with physical violence and

recently by stating that he would ensure that I got excessive discipline on tickets” (Id. at

p. 34). Exhibit “H” is a grievance response that states “Officer Butler . . . denied offender’s

claims of previous threats” and that “the Committee took [Plaintiff’s] objection under

consideration and deemed there was no conflict of interest [so] the hearing continued.”

(Id. at p. 35). And Exhibit “K” is a four-page letter to the Administrative Review Board,

which contests the statements made in the grievance response but provides no further

details about Butler’s supposed threats (Id. at pp. 36–39). Other evidence came from

Plaintiff’s deposition, where he testified, “I’ve had multiple issues with Butler both on

and off the adjustment committee” (Doc. 67-3, p. 95). “A lot of inmates have had issues

with him and his personality problems . . . .” (Id. at p. 96).

None of this amounts to clear and substantial evidence that Butler harbored some

kind of personal animosity against Plaintiff to an extent that disqualified him from

adjudicating the disciplinary ticket. Plaintiff provides only vague and unspecific

statements that he had “issues” with Butler and that Butler had threatened him. He does

not recount any specific factual instances of purported run-ins with Butler, when or

where they occurred, how often they occurred, what Butler specifically said to him and

why they may have occured. Such details are necessary for a reasonable jury to infer that

Defendant Butler was not a neutral and impartial decisionmaker See Shroyer v. Cotton, 80

Fed. Appx. 481, 485 (7th Cir. 2003) (“[U]nsupported allegations of vindictiveness on the

part of the [decisionmaker] do not overcome the presumption of honesty and integrity

that [decisionmakers] are entitled to.”).2

2 See also Smith v. City of Janesville, 40 F.4th 816, 821 (7th Cir. 2022) (“If the evidence is merely colorable, or

is not significantly probative, summary judgment may be granted.”) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249–50 (1986)); Gabrielle M. v. Park Forest–Chicago Heights, IL. Sch. Dist. 163, 315 F.3d 817,

822 (7th Cir. 2003) (“It is well established that in order to withstand summary judgment, the non-movant

must allege specific facts creating a genuine issue for trial and may not rely on vague, conclusory

allegations.”) (emphasis in original; citations omitted); Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901

(7th Cir. 2003) (“Summary judgment 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 events.”) (citation

omitted); Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 692 (7th Cir. 2000) (“[N]either ‘the mere

2. Witnesses and Evidence

Plaintiff contends that the Adjustment Committee did not allow him to submit any

evidence (Doc. 75, p. 6), but Plaintiff did not identify what evidence he wanted to present

(see id.). The portion of the record that he cited to only vaguely mentions “documents”

(see id. at pp. 6, 38). Plaintiff did not indicate what the documents were, how they might

have aided his defense (particularly given that he pled guilty to disobeying a direct order,

thereby admitting he failed to follow the dress code), or why he thinks they would have

changed the hearing officers’ assessment. Absent something more specific, no reasonable

jury could infer that Plaintiff’s inability to present his “documents” harmed him in some

way or amounts to a due process violation. See Grossman v. Bruce, 447 F.3d 801, 805 (10th

Cir. 2006) (“[A] prisoner cannot maintain a due process claim for failure to permit witness

testimony if he fails to show that the testimony ‘would have affected the outcome of his

case.’”) (citation omitted); Doan v. Buss, 82 Fed. Appx. 168, 171 (7th Cir. 2003) (holding no

due process violation where plaintiff failed to show how uncalled witnesses “would have

affected the outcome”). See also Scruggs, 485 F.3d at 939–40 ("[P]rison disciplinary officials

need not permit the presentation of irrelevant or repetitive evidence in order to afford

prisoners due process in disciplinary proceedings. Nor are officials required to allow the

existence of some alleged factual dispute between the parties,’ nor the existence of ‘some metaphysical

doubt as to the material facts,’ will defeat a motion for summary judgment.” (internal citations omitted);

Drake v. Minnesota Mining & Manufacturing Co., 134 F.3d 878, 887 (7th Cir. 1998) (“Rule 56 demands

something more specific than the bald assertion of the general truth of a particular matter, rather it requires

affidavits that cite specific concrete facts establishing the existence of the truth of the matter asserted.”)

(citation omitted).

presentation of evidence that could threaten institutional safety or correctional goals.")

(citations omitted).

3. Explanation for Discipline & Sufficiency of the Evidence

“Due process requires that an inmate subject to disciplinary action is provided ‘a

written statement by the factfinders as to the evidence relied on and the reasons for the

disciplinary actions.’” Scruggs, 485 F.3d at 941 (quoting Forbes, 976 F.2d at 318. This

requirement, however, “is not onerous” and “[t]he statement need only illuminate the

evidentiary basis and reasoning behind the decision.” Scruggs, 485 F.3d at 941.

The evidentiary basis required for disciplinary decisions is “some evidence” that

“bear[s] some indicia of reliability.” Scruggs, 485 F.3d at 941 (calling “some evidence”

standard a “meager threshold”). See also Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 2016)

( “[A] hearing officer’s decision need only rest on ‘some evidence’ logically supporting it

and demonstrating that the result is not arbitrary.”); Eichwedel v. Chandler, 696 F.3d 660,

675 (7th Cir. 2012) (“The some evidence standard . . . is satisfied if there is any evidence

in the record that could support the conclusion reached by the disciplinary board.”)

(citation and quotation marks omitted).

Plaintiff seems to contend that the written statement here does not pass muster

because it parrots the narrative written by Dr. Holt on the ticket (Doc. 75, p. 7). But there

is no categorical rule that exists in the Seventh Circuit prohibiting the Adjustment

Committee from crediting and adopting the statement of the officer who wrote the ticket.

Furthermore, Plaintiff’s argument fails to acknowledge that he pled guilty to disobeying

a direct order (see id.). The Adjustment Committee’s report demonstrates that it relied on

Plaintiff’s admission of guilt, as well as Dr. Holt’s description of Plaintiff’s conduct (see

Doc. 67-1, p. 4). That is sufficient under the circumstances for the 313 charge for

disobeying a direct order and the 404 charge for violating the SDP Program rules. See

Scruggs, 485 F.3d at 941 (upholding sufficiency of written explanation where prison board

relied on inmate’s admission in finding him guilty); Culbert v. Young, 834 F.2d 624, 629

(7th Cir. 1987) (finding summary statement “refer[ing] to the conduct report as the basis

for its guilt determination” sufficient when only issue was relative credibility of the

conduct report and plaintiff's account of the incident. ‘Obviously, . . . the committee

believed the conduct report and disbelieved the plaintiff.’”) (quoting Saenz v. Young, 811

F.2d 1172, 1173–74 (7th Cir. 1987)).

Plaintiff also argues there was no basis for charging him with the 404 offense for

violating the SDP program rules, let alone finding him guilty and punishing him, because

he was not participating in the program and therefore not subject to its rules (Doc. 75, p.

8). The Court has already rejected his argument. Plaintiff was civilly committed to the

custody of the IDOC as a Sexually Dangerous Person. And as the Court previously

explained, he did not cite to any legal authority that he could opt not to follow the rules

governing the confinement of SDPs at Big Muddy. Nor does the Court find his argument

on this subject convincing. Plaintiff has therefore failed to establish a genuine issue of

material fact as to whether the 404 charge violated his right to procedural due process.

Plaintiff also challenges the basis for the 215 charge, conviction, and punishment

for Disobeying a Direct Order Essential to Safety and Security (Doc. 75, p. 8). According

to Plaintiff, the only direct order at issue here was Dr. Holt’s order to follow the dress

code and wear his blue shirt, tucked in, during treatment hours (Doc. 75, p. 9; see also Doc.

67-1, p. 6). Plaintiff argues that not wearing a blue shirt in the dayroom “could not

possibly threaten the safety and security of the facility in and of itself. It creates no threat

of harm to oneself. . . [and] does not disrupt day-to-day facility operations” (Doc. 75, p.

9). The Court is not convinced by this argument, even in the absence of a reply brief from

Defendants addressing the matter. A dress code serves to promote the legitimate

institutional interests in safety, security, and order, and allowing one detainee to openly

flout the dress code undermines those interests. See, e.g., Young v. Lane, 922 F.2d 370, 375

(7th Cir. 1991) (acknowledging prisons have a strong security interest in uniform dress

regulations).

Plaintiff made another argument regarding the 215 charge, however, that the

Court must address. He contends there is no evidence that his continued refusal to follow

the dress code necessitated the use of force to gain his compliance, which is a necessary

element of the 215 charge (Doc. 75, p. 9). Indeed, the regulations in effect at the time of

Plaintiff’s disciplinary conviction defined the offense of Disobeying a Direct Order

Essential to Safety and Security as:

Willfully refusing, or neglecting to comply with, an order when continued

refusal results in a use of force to maintain the safety and security of a facility.

This shall include, but not be limited to, refusing to submit to a search,

refusing to submit to the application of mechanical restraints, refusing a

designated housing assignment or refusing to leave an area.

ILL. ADMIN. CODE, tit. 20, part 504, App. A (effective Apr. 1, 2017) (emphasis added). As

Plaintiff points out, of the three charges he was found guilty of, the 215 charge is the only

one that carried a possible punishment of segregation time (Id. at p. 9). ILL. ADMIN. CODE,

tit. 20, part 504, Table A.

Plaintiff’s argument is essentially a procedural due process argument that the

guilty finding on the 215 charge was not supported by some evidence because the facts

in Dr. Holt’s disciplinary report did not, on their face, meet all of the elements of that

charge. At this stage, Plaintiff’s argument is sufficient to stave off summary judgment.

There is no indication that Plaintiff’s continued refusal to follow Dr. Holt’s orders to

comply with the dress code resulted in the use of force to bring him into compliance.

There is no evidence that an officer even approached Plaintiff after he took his blue shirt

off, let alone that he was handcuffed or otherwise subdued in any manner. According to

Plaintiff, he put his shirt back on shortly after the incident and went to lunch (Doc. 67-3,

pp. 42–43). It was only after he returned from lunch that a lieutenant showed up at his

cell and walked him to segregation (Id. at p. 44). It is unclear if being taken to segregation

approximately an hour after the incident constitutes a use of force that could justify

upholding the 215 charge, or if there is any other explanation that justifies upholding it,

Defendants did not file a reply brief to address this issue. All the Court has is Plaintiff’s

unchallenged argument that because there is no evidence to support a requisite element

of the 215 offense, there is insufficient evidence to support the adverse finding of guilt

and imposition of segregation as a punishment. Consequently, the Court cannot say as a

matter of law that Plaintiff’s procedural due process rights were not violated by being

charged with, found guilty of, and punished for the 215 offense. See Morgan v. Dretke, 433

F.3d 455, 458 (5th Cir. 2005) (agreeing with prisoner that due process was violated when

there was no evidence in the record to support an element of disciplinary offense prisoner

was convicted of). Defendants Dr. Holt, Officer Butler, Officer Trasky, and Warden

Sullivan are therefore not entitled to summary judgment on Count 3.

D. COUNT 4 – DUE PROCESS RE: SECOND HEARING

Similar to Count 3, Plaintiff alleges in Count 4 that Sgt. Harris wrote him a false

disciplinary ticket in March 2019, he was denied procedural due process in connection

with the Adjustment Committee hearing in front of Defendants Butler and Hermetz, and

Warden Sullivan improperly approved the recommended punishment (Doc. 7, pp. 2–3;

8–9; see also Doc. 1, pp. 16, 26, 64, 65; Doc. 1-1, p. 7).

Plaintiff makes no argument as to how the ticket was purportedly fraudulent or

pretextual (see Doc. 75, pp. 10–12). But he once again raises a number of arguments

regarding the purportedly insufficient process he received in connection with the hearing

(Id.), none of which the Court finds convincing.

1. Impartial Decisionmaker

Plaintiff argues that Defendant Butler was not an impartial decision maker (Doc.

75, pp. 10–11). To the extent Plaintiff is relying on his assertions of previous issues with

Butler, the Court has already determined that Plaintiff’s evidence is far too vague and

unspecific to establish a genuine issue of material fact. Plaintiff also suggested at his

deposition that Butler’s lack of impartiality might be due to “the fact that I had been in a

physical altercation with a fellow officer, also a fellow officer who is a woman . . . .” (Id.

at p. 96). It is well-established, however, that Officer Butler and Lt. Wharton’s status as

co-workers is not enough to establish impermissible bias. See Allen v. Parke, 114 Fed.

Appx. 747, 752 (7th Cir. 2004) (“Merely working, or even being friends with the victim is

mere tangential involvement, which does not require disqualification of the decision-

maker, . . . otherwise an outside hearing body would need to be brought in every time an

inmate was charged with a crime against a prison official.”) (citation omitted). That leaves

Plaintiff’s testimony about his argument with Butler at the hearing and Butler’s escalating

response.

To reiterate, adjudicators are entitled to a presumption of honesty and integrity,

and the constitutional standard for impermissible bias is high. To overcome the

presumption, Plaintiff must set forth clear, specific, and substantial evidence of actual or

potential bias. The Court is also mindful that “[g]uards and inmates co-exist in direct and

intimate contact. Tension between them is unremitting. Frustration, resentment, and

despair are commonplace. . . .” Id. at 562. And “[i]t is against this background that

disciplinary proceedings must be structured by prison authorities; and it is against this

background that [the court] must make our constitutional judgments.” Id. Not every

hostile or even unprofessional comment from a decision-making officer to a detainee can

be viewed as poisoning that officer’s impartiality and ability to “judg[e] a particular

controversy fairly on the basis of its own circumstances.” Withrow, 421 U.S. at 55.

Under the circumstances here, Officer Butler’s purported comments and conduct

during the hearing are not enough to amount to clear and substantial evidence of

disqualifying personal bias. Rather, his comments and conduct appear to the Court to

reflect his frustration with an argumentative and unrelenting detainee and his resort to a

show of power in an effort to bring the detainee back into line. See Lavoie, 475 U.S. at 820–

21 (holding state supreme court justice’s general hostility and frustration toward

insurance companies based on his own personal experiences did not reveal bias that

disqualified him from adjudicating a case against an insurance company); Zimmerman v.

Hanks, 248 F.3d 1162, at *4 (7th Cir. 2000) (unpublished) (officers’ antagonistic comments

to prisoner during disciplinary hearing did not establish impermissible bias); Davis v.

Reagle, No. 12-CV-2765-JPH-DLP, 2022 WL 16553157, at *5 (S.D. Ind. Oct. 31, 2022)

(officer’s statement that she would be “judge, jury, and prosecutor” might be “ill-advised

and inappropriate” but “a single off-hand comment is not clear evidence of dishonesty

or a lack of integrity.”); Hess, 149 F. Supp. 3d at 1042, aff'd 839 F.3d 668 (7th Cir. 2016)

(rejecting plaintiff’s argument that adjudicator was likely bias against him because of

some offensive remarks plaintiff and his mother had previously made to the adjudicator);

Williams v. Superintendent New Castle Corr. Facility, No. 16-CV-1344-WTL-MJD, 2017 WL

679989, at *2 (S.D. Ind. Feb. 21, 2017) (“Simply because the hearing officer allegedly

became angry when [plaintiff] accused a correctional officer of being racist does not make

the hearing officer impartial in the manner contemplated by Wolff or Piggie.”); Hoskins v.

McBride, 13 Fed. Appx. 365, 369 (7th Cir. 2001) (rejecting plaintiff’s argument that hearing

officer was biased against him where officer “made various comments to taunt and

ridicule [plaintiff] and to openly express his contempt for [plaintiff] and other prisoners

in his housing unit” because “[s]uch general ‘hostile feelings’ are inadequate to

demonstrate an unconstitutional bias.”) (citing Lavoie, 475 U.S. at 821).

2. Witnesses and Evidence

Plaintiff contends that if he had been allowed to make a statement at the hearing

he would have said that he was trying to comply with Lt. Wharton’s direct order to sit

down and that he only kicked her in self-defense (Doc. 75, p. 11). The Court is

unconvinced, however, that Plaintiff’s statement would have changed the outcome of the

hearing. To begin with, there is “[no] constitutional right to raise self-defense as a defense

in the context of prison disciplinary proceedings.” Jones v. Cross, 637 F.3d 841, 848 (7th

Cir. 2011); Scruggs, 485 F.3d at 938–39; Rowe v. DeBruyn, 17 F.3d 1047, 1049 (7th Cir. 1994).

Even if such a substantive right existed, “prison regulations could impinge upon that

right if they were ‘reasonably related to legitimate penological interests.’” Scruggs, 485

F.3d at 939 (quoting Rowe, 17 F.3d at 1051). And allowing inmates to fight back against an

officer would quite obviously “undermine prison discipline . . . [and] subvert[t] a core

prison function of ensuring order and safety within the institution.” Scruggs, 485 F.3d at

939 (quoting Rowe, 17 F.3d at 1050). As such, the Committee was not required to allow

Plaintiff to argue self-defense or to accept any assertion of self-defense. Furthermore, the

regulation at issue does not incorporate intent to do harm as an element of the offense

nor make any mention of a prisoner’s right to self-defense. ILL. ADMIN. CODE, tit. 20, part

504, Appx. A (definition of 102a. Assault with Injury). The Committee was thus permitted

to find Plaintiff guilty of assaulting Lt. Wharton regardless of his motivation in kicking

her. Therefore, Plaintiff has not shown that his inability to give a statement at the hearing

denied him due process.

3. Sufficiency of the Evidence

Plaintiff argues that the guilty finding on the 102a charge for Assault with Injury

was not supported by some evidence because the facts in the disciplinary report did not,

on their face, indicate that Lt. Wharton suffered any injury (Doc. 75, p. 12). The Court

disagrees.

While the Illinois regulations on discipline in correctional facilities do not define

“injury,” see ILL. ADMIN. CODE, tit. 20, part 504, they do provide for a range of charges for

“assault,” which sheds some light on the situation. ILL. ADMIN. CODE, tit. 20, part 504,

Appx. A. There is Assault (102b) for “contact with a staff member . . . in an offensive or

provocative manner.” Id. There is Assault with Injury (102a) for “contact with, and

resulting in injury to, a staff member.” Id. (emphasis added). And there is Violent Assault

(100) for “contact with another in a deadly manner or in a manner that results in serious

bodily injury.” Id. Court cases have discussed a similar situation in the criminal context

between battery for insulting or provoking contact versus battery with bodily harm.

“Although it may be difficult to pinpoint exactly what constitutes bodily harm for the

purposes of the [battery] statute, some sort of physical pain or damage to the body, like

lacerations, bruises or abrasions, whether temporary or permanent, is required.” People

v. Moffett, 148 N.E.3d 736, 748 (Ill. App. Ct. 2019) (quoting People v. Mays, 437 N.E.2d 633,

635–36 (Ill. App. Ct. 1982)). “Otherwise there would be no need for the other type of

battery[:] contact of an insulting or provoking nature.” Moffett, 148 N.E.3d at 748 (quoting

Mays, 437 N.E.2d at 636). This explanation makes equal sense here. And there is some

evidence that Plaintiff at least caused Lt. Wharton pain.

Plaintiff kicked Lt. Wharton when the two were in close proximity. By Plaintiff’s

own admission, this was not a petty kick—he testified “I kicked . . . a real kick. I mean, I

didn't just flail on my leg. It had to be a real kick. [Because] my experience in life in dealing

with bullies and violent assholes in authority . . . You can't half-ass things.” (Doc. 67-3, p.

85). Common sense says that a kick is more than a simple offensive or provocative touch;

a kick by its very nature causes, pain, if not something more. See People v. Claudio, 300

N.E.2d 791, 793 (Ill. App. Ct. 1973) (“It seems self-evident that the kicking of the police

officers is in and of itself the causing of bodily harm and, therefore, the charge of battery

against the defendant was proved beyond a reasonable doubt.”). See also People v. Rotuno,

510 N.E.2d 463, 465 (Ill. App. Ct. 1987) (sustaining conviction of battery based upon

bodily harm even without direct evidence of actual injury because common knowledge

dictates officer suffered bodily harm where defendant kicked him in the legs and mid-

section).

Sgt. Harris’s description in the disciplinary report that Plaintiff kicked Lt. Wharton

in the stomach and groin area, combined with common sense, constitutes some evidence

sufficient to support the charge of Assault with Injury, even if that injury was relatively

minor.

In conclusion, Plaintiff has failed to marshal evidence and argument sufficient to

establish a genuine issue of material fact that his due process rights were violated with

regard to the March 2019 disciplinary ticket and hearing. As such, Defendants Harris,

Butler, Hermetz, and Sullivan are entitled to summary judgment as to Count 4.

E. COUNT 5 – EXCESSIVE FORCE

In Count 5, Plaintiff alleges that Officer Kimberly Wharton used excessive force on

March 2, 2019, when she shoved Plaintiff in his cell (Doc. 7; Doc. 1). To succeed on an

excessive force claim, Plaintiff must show that Defendant Wharton’s use of force was

purposeful or knowing (as opposed to negligent) and was objectively unreasonable. Kemp

v. Fulton Cnty., 27 F.4th 491, 496 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 396–97

(2015)). Force is unreasonable when it is not “rationally related to a legitimate

nonpunitive governmental purpose,” or is “excessive in relation to that purpose.”

Kingsley, 576 U.S. at 398 (citation omitted). In evaluating objective reasonableness, the

court must consider the totality of the “facts and circumstances of each particular case.”

Kingsley, 576 U.S. at 397 (citation omitted). The determination must be made “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. And the court “must also account for

the ‘legitimate interests that stem from the government's need to manage the facility in

which the individual is detained,’” and show appropriate deference to “‘policies and

practices that in the judgment’ of [facility] officials ‘are needed to preserve internal order

and discipline and to maintain institutional security.’” Kingsley, 576 U.S. at 397 (quoting

Bell v. Wolfish, 441 U.S. 520, 540 (1979)).

The Supreme Court provided an illustrative (but non-exhaustive) list of six

considerations potentially relevant in evaluating the reasonableness of the force used,

including: the relationship between the need for the use of force and the amount of force

used; the extent of the plaintiff's injury; any effort made by the officer to temper or to

limit the amount of force used; the severity of the security problem at issue; the threat

reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Kingsley, 576 U.S. at 397 (citation omitted).

Defendant Wharton concedes that she shoved Plaintiff but contends that the force

she used was de minimis (Doc. 67, pp. 17–18). She argues in the alternative that even if the

force was more than de minimis, it was still used in a good-faith effort to maintain and

restore discipline and not maliciously and sadistically to cause harm (Id. at pp. 18–20).

The Court agrees with Defendant Wharton that she is entitled to summary

judgment. It is important to note that in the Fourteenth Amendment context, “[t]here is,

of course, a de minimis level of imposition with which the Constitution is not concerned.”

Bell, 441 U.S. at 539 n.21. See also Graham v. Connor, 490 U.S. 386, 396 (1989) (applying the

Fourth Amendment's objective reasonableness standard and noting that “[n]ot every

push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,

violates the [Constitution].”) (quotations and citation omitted). According to Plaintiff’s

own account of the situation, Lt. Wharton shoved him with open hands, three or four

times in his chest, eventually backing him into the side of the bed frame. The shoves were

not so hard that he lost his balance and fell over; they were not even hard enough to make

him stumble (see Doc. 67-3). Plaintiff admitted that suffered no actual injury. He did not

have any bruising. He did not seek medical attention. And he did not even claim that he

was in any pain (see Doc. 67-3).

Plaintiff also conceded that Lt. Wharton overheard him being confrontational with

Officer Berkeley and deliberately defying his orders to cuff up. While Plaintiff then

agreed to cuff up for Lt. Wharton, he admits that he remained confrontational, arguing

about the necessity of the medline procedures and making antagonistic comments about

Lt. Wharton’s attitude and demeanor. Lt. Wharton slammed the cell door shut and turned

to walk away but realized the door had not latched. When she turned back toward the

cell, Plaintiff admits he was not at the back of the cell. As Defendants note, at that point,

Plaintiff had already made a scene with Officer Berkeley, complained about being

restrained, argued about the policy, and made disdainful comments to Lt. Wharton about

her attitude. And, now, the door did not latch properly and Plaintiff was not at the back

of his cell. Lt. Wharton would have been reasonably justified in thinking that Plaintiff

was at the very least being non-compliant, and perhaps that he was advancing toward

the open door and presented a threat. While the threat Plaintiff posed was arguably

limited considering that he was handcuffed and there were two officers present, the

amount of force used was also limited. And it was not gratuitous or unprovoked, nor was

it prolonged. Rather the use of force was purposeful—to make Plaintiff sit down on the

bed—and limited to the accomplishment of its purpose.

“This is not to say that, in hindsight, [Lt. Wharton] exhibited the utmost patience .

. . [or] the finest judgment,” but “[a]t some point, in response to defiance and belligerence,

officers are entitled to ‘preserve internal order and discipline.’” Hanson v. Madison Cnty.

Det. Ctr., 736 Fed. Appx. 521, 532 (6th Cir. 2018) (quoting Bell, 441 U.S. at 547). Under the

circumstances here, no reasonable jury could conclude that Lt. Wharton’s shoves were

anything more than a de minimis use of force or objectively unreasonable. See, e.g. Jones v.

Walker, 358 Fed. Appx. 708, 713 (7th Cir. 2009) (use of force was de minimis where officer

shoved inmate once, bruising his arm); DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir. 2000),

(use of force was de minimis where officer shoved inmate toward doorway and into door

frame, bruising his back), abrogated on other grounds by Savory v. Cannon, 947 F.3d 409 (7th

Cir. 2020); Williams v. Dart, No. 18 C 506, 2018 WL 11239692, at *2 (N.D. Ill. May 10, 2018)

(no excessive force where officer entered cell after inmate was unresponsive to

commands and shook him awake, shoving him into the wall in the process); Mitchell v.

Richter, No. 15-CV-1520-JPS, 2017 WL 752162, at *9 (E.D. Wis. Feb. 27, 2017) (no excessive

force where officer pushed a pretrial detainee, who was resisting going into a cell and

had a long history of insubordination, even though inmate stumbled forward). Lt.

Wharton is thus entitled to summary judgment on Count 5.

F. COUNT 6 – FAILURE TO INTERVENE/PROTECT

In Count 6, Plaintiff alleges that Sergeant Michael Harris failed to intervene and

protect him from Lt. Wharton’s use of excessive force. Because the Court has already

found that Lt. Wharton use of force was not excessive, Plaintiff’s related failure to protect

claim against Sergeant Harris must likewise fail. Plaintiff cannot show, at the very least,

that he faced a “substantial risk of suffering serious harm” or that Sgt. Harris’s inaction

caused him any injury. Thomas v. Dart, 39 F.4th 835, 841 (7th Cir. 2022) (citing Kemp v.

Fulton Cnty., 27 F.4th 491, 496 (7th Cir. 2022) (outlining elements of a pretrial detainee’s

failure to protect claim post-Kingsley). Sgt. Harris is thus entitled to summary judgment

on Count 6.

CONCLUSION

The motion for summary judgment (Doc. 67) is GRANTED IN PART and

DENIED IN PART. It is GRANTED as to Defendant Holt on Count 1 and Count 2;

Defendants Harris, Butler, Hermetz, and Sullivan as to Count 4; Defendant Wharton as

to Count 5; and Defendant Harris as to Count 6. As such, Counts 1, 2, 4, 5, and 6, are

DISMISSED with prejudice along with Defendants Harris, Hermetz, and Wharton.

The motion is DENIED as to Defendants Holt, Butler, Tasky, and Sullivan as to

Count 3. This matter will proceed to trial on Count 3, regarding whether Defendants Holt,

Butler, Tasky, and Sullivan violated Plaintiff’s right to due process by charging him with,

finding him guilty of, and punishing him for the 215 charge of Disobeying a Direct Order

Essential to Safety and Security without sufficient evidence to support all elements of that

charge.

A status conference to discuss the trial schedule and the utility of a settlement

conference will be set by a separate Order.

IT IS SO ORDERED.

DATED: March 27, 2024

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge