Leathers v. Johnson

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHRISTOPHER LEATHERS, )

)

Plaintiff, )

)

v. ) Case No. 3:18-CV-345-JD-MGG

)

SGT. NEIL JOHNSON, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant Sergeant Neil Johnson’s Motion for

Summary Judgment [DE 41]. In relevant part, Plaintiff Christopher Leathers alleges cruel and

unusual punishment arising from the Defendant’s repeated requests for oral sex. The Defendant

argues that verbal harassment, standing alone, does not constitute cruel and unusual punishment.

In the alternative, the Defendant argues he is entitled to qualified immunity. The Court rejects

the Defendant’s arguments.

I. FACTUAL BACKGROUND

Plaintiff Christopher Leathers was an inmate in the Indiana Department of Corrections.

See DE 43-1, p. 3.1 While incarcerated, the Plaintiff worked as a shoe shiner. Id. at 12-13. The

Defendant worked as a prison guard. Id. at 13.

On May 24, 2016, the Defendant requested that the Plaintiff shine his shoes. Id. at 15-16.

During the shoe shining, the Defendant requested oral sex. Id. at 16. The Plaintiff declined the

request. Id. The Defendant once again asked for a sexual favor, but the Plaintiff again declined.

Id. During his deposition, the Plaintiff described the incident as follows:

1 Throughout this Opinion and Order, the Court will cite to the CM/ECF electronic page header rather than the page

number listed on the actual document.

Q. Tell me what happened when Sergeant Johnson arrived.

A. Mr. Johnson came in to get his shoes shined. And while he was there, he approached

me about—we were talking. And we were talking about other guards and stuff and

how they were bringing in contraband. And—and while we were discussing stuff,

he said—he asked me if I smoked tobacco. And I said yes, when I was—when I

was free.

And then he went on to prop—propose to me. He said if I did him a sexual favor,

then he would bring me in tobacco. I said ‘No, I’m not gay.’ And this all took place

while I was shining his boots. And, yeah, and then he asked me a second time if I’d

give him oral sex. And I declined. And then he said I’d regret it and that no one

would believe me if I brought it—brought it out into the light because he’s a guard

and I’m an inmate.

Id. at 16.

The Plaintiff stated that the Defendant “gestured with his hand on his crotch.” Id. at 18.

He further stated that the Defendant “kept grabbing himself” during the shoe shining. Id. at 17.

The Plaintiff testified that he “was really thrown off and intimidated. I wasn’t suspecting him to

proposition me like that. All right? And it really made me uncomfortable and in a weird

situation.” Id.

On May 25, 2016, the Defendant cited the Plaintiff for conspiracy and trafficking. See

DE 43-2. Thereafter, the Plaintiff was fired from his job as a shoe shiner. DE 43-1, p. 14. The

Plaintiff testified that the Defendant retaliated against him based upon his refusal to perform oral

sex. Id. at 23. He further testified that the Defendant’s actions were sexual abuse and that he was

“mentally scarred by this whole issue. I’ve had many sleepless nights because of it and running

over in my head what had transpired. I lost my job. I lost financial means to take care of myself

in here because of that. I had to see mental health [services].” Id. at 24. The Plaintiff also

testified that he has been verbally and sexually harassed by his fellow inmates as a result of this

incident. Id. at 5.

II. STANDARD OF REVIEW

A court must grant summary judgment 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 “material” fact is one identified by the substantive law as affecting the outcome

of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists

with respect to any material fact when “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and

summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). In determining whether a genuine issue of material fact exists, courts must

construe all facts in the light most favorable to the non-moving party and draw all reasonable and

justifiable inferences in that favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v.

Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). However, the non-moving party cannot

simply rest on its pleadings but must present evidence sufficient to show the existence of each

element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986); Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).

III. DISCUSSION

The Defendant argues that verbal harassment, standing alone, does not constitute cruel

and unusual punishment. In the alternative, the Defendant argues he is entitled to qualified

immunity. The Court addresses these issues in turn.

A. Cruel and Unusual Punishment

The Defendant argues that, as a matter of law, verbal harassment does not constitute cruel

and unusual punishment. In support of this argument, the Defendant relies upon DeWalt v.

Carter, 224 F.3d 607 (7th Cir. 2000) and Dobbey v. Illinois Department of Corrections, 574 F.3d

443 (7th Cir. 2009). However, as seen below, the Court concludes that DeWalt and Dobbey have

been distinguished by Beal v. Foster, 803 F.3d 356 (7th Cir. 2015) and Lisle v. Welborn, 933

F.3d 705 (7th Cir. 2019). Therefore, the Court concludes that verbal harassment may constitute

cruel and unusual punishment.

“The Eighth Amendment prohibits cruel and unusual punishments that involve the

unnecessary and wanton infliction of pain.” Welborn, 933 F.3d at 716 (citing Rhodes v.

Chapman, 452 U.S. 337, 346 (1981)). “The prohibition also includes acts ‘totally without

penological justification.’” Id. (quoting Hope v. Pelzer, 536 U.S. 730, 737 (2002)); see also

Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003).

In DeWalt v. Carter, 224 F.3d 607, 610 (7th Cir. 2000), a prison guard and a prison

administrator made sexually suggestive and racially derogatory comments to a prisoner. Namely,

the guard and the administrator berated the prisoner for his alleged affection for a female

employee. See id. at 610-11. The prisoner sued, alleging that the employees’ actions violated the

Eighth Amendment and Fourteenth Amendment. Id. at 611. The district court concluded that

such language did not violate the Constitution and dismissed the claim. Id. at 611-12. The

Seventh Circuit agreed and reasoned as follows:

Precedent from this circuit as well as others supports the district court’s conclusion.

The use of racially derogatory language, while unprofessional and deplorable, does not

violate the Constitution. Standing alone, simple verbal harassment does not constitute

cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a

prisoner equal protection of the laws. Accordingly, Mr. DeWalt’s claims that Officer

Young and Mr. Murray violated his Eighth and Fourteenth Amendment rights by directing

racially derogatory and sexually explicit language at him were properly dismissed.

Id. at 612 (emphasis added; citations omitted).

Similarly, in Dobbey v. Illinois Department of Corrections, 574 F.3d 443, 444 (7th Cir.

2009), a black prisoner alleged that a white prison guard hung a noose from the ceiling. The

incident took place while the guards were playing cards in the main control room. Id. The

prisoner alleged that the officer swatted at the noose and “crossed his arms looking crazy with

evil eyes.” Id. The prisoner claimed that he feared that the guard would “snap” and cause him

physical injury. Id. at 445. The noose was removed within 20 minutes. Id. Thereafter, the

prisoner claimed that the noose incident was cruel and unusual punishment. Id. The district court

dismissed the claim, concluding that the prisoner failed to state a claim against the guards. Id. at

444. On appeal, the Seventh Circuit noted that “a threat, which is how the plaintiff interpreted

the incident, can rise to the level of cruel and unusual punishment.” Id. at 445. Despite

recognizing “the ugly resonance of the noose,” the court concluded that “getting up in the middle

of a card game to hang a noose in the sight of black prisoners, while the other players calmly

continue the game, cannot reasonably be taken seriously as a threat, rather than as racial

harassment.” Id. The court then concluded that “[t]he line between ‘mere’ harassment and ‘cruel

and unusual punishment’ is fuzzy, but we think the incident with the noose and the ‘evil eyes’

falls on the harassment side of the line because it was not a credible threat to kill, or to inflict any

other physical injury.” Id. at 446. Further, the court reasoned that “harassment, while regrettable,

is not what comes to mind when one thinks of ‘cruel and unusual’ punishment.” Id. Based upon

this, the court affirmed the dismissal of the prisoner’s cruel and unusual punishment claim. Id. at

447.

However, in Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015), a prison guard “made

verbal sexual comments” towards a prisoner. The guard told the prisoner “to place his penis

inside” another prisoner. Id. The guard would also urinate while in the presence of the prisoner.

Id. The prisoner claimed that other inmates began harassing him as a result of the guard’s

actions. Id. The prisoner also claimed that he suffered severe psychological harm. Id. at 358-59.

The prisoner sued, alleging that the guard had inflicted cruel and unusual punishment. Id. at 357.

The district court dismissed the claim after concluding that “standing alone, verbal harassment of

an inmate does not constitute a constitutional violation.” Id. On appeal, the Seventh Circuit

concluded that “[t]he proposition that verbal harassment cannot amount to cruel and unusual

punishment is incorrect.” Id. The court emphasized that drawing “a categorical distinction

between verbal and physical harassment is arbitrary. In short, the alleged pain sufficient to

constitute cruel punishment may be physical or psychological.” Id. at 357-58 (internal quotation

marks and alterations omitted). Turning to the facts of the case, the Seventh Circuit noted that the

prisoner claimed severe psychological harm as a result of the guard’s actions. Id. at 358-59.

Further, the court reasoned that “the plaintiff feared that [the officer’s] comments labeled him a

homosexual and by doing so increased the likelihood of sexual assaults on him by other

inmates.” Id. at 358. Finally, based upon the guard’s public urination, the court found that the

prisoner had alleged nonverbal harassment. Id. at 359. Thus, the appellate court reversed and

remanded for further proceedings. Id.

Likewise, in Lisle v. Welborn, 933 F.3d 705, 711 (7th Cir. 2019), a prisoner attempted

suicide on multiple occasions. The prisoner was placed on suicide watch and his vital signs were

monitored by prison staff. Id. at 712. The prisoner alleged that a nurse repeatedly mocked him

for his failed suicide attempts and encouraged him to “do a better job next time.” Id. The

prisoner sued, alleging that the nurse’s comments were cruel and unusual punishment. Id. at 712-

13. The nurse denied making the comments and moved for summary judgment. Id. The district

court, relying upon DeWalt, concluded that the nurse’s actions were “simple verbal harassment”

and did not amount to cruel and unusual punishment. Id. at 713. On appeal, the Seventh Circuit

reasoned as follows:

The district court granted summary judgment, quoting our statement that, “Standing

alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive

a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.”

DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) (officer allegedly used racially and

sexually derogatory language). Since DeWalt, however, we have said that its language was

too broad, explaining: “The proposition that verbal harassment cannot amount to cruel and

unusual punishment is incorrect.” Beal v. Foster, 803 F.3d 356, 357 (7th Cir. 2015).

Id. at 717. Turning to the facts of the case, the Seventh Circuit concluded that the nurse’s

statements “went beyond ‘simple verbal harassment.’ She is alleged to have taunted and

encouraged an inmate known to be suicidal and in the midst of a mental health crisis to take his

own life.” Id. at 718. The court reasoned that such comments, if true, may have caused

“psychological pain.” Id. Thus, the court reasoned that the nurse’s comments “could be deemed

cruel infliction of mental pain and deliberate indifference to his risk of suicide, making summary

judgment improper.” Id. at 717.

Relying upon DeWalt and Dobbey, the Defendant argues that “verbal harassment in

prison, standing alone, does not constitute cruel and unusual punishment as a matter of law.” DE

42, p. 5. However, as seen above, the rationale of DeWalt and Dobbey has been significantly

undercut by Beal and Welborn. Specifically, the Seventh Circuit has recently concluded that

“[t]he proposition that verbal harassment cannot amount to cruel and unusual punishment is

incorrect.” Beal, 803 F.3d at 357. Moreover, the Seventh Circuit reasoned that “a categorical

distinction between verbal and physical harassment is arbitrary. In short, the alleged pain

sufficient to constitute cruel punishment may be physical or psychological.” Id. at 357-58

(internal quotation marks and alterations omitted); see also Welborn, 933 F.3d at 717

(recognizing that DeWalt was distinguished by Beal). Thus, verbal harassment may constitute

cruel and unusual punishment.

Furthermore, the Defendant’s actions, if true, went beyond “simple verbal harassment.”

See Welborn, 933 F.3d at 717. The Plaintiff, who was a prisoner working as a shoe shiner,

testified that the Defendant, who was a prison guard, requested oral sex during a shoe shining.

DE 43-1, p. 17. This request for oral sex was made by an individual in a position of power over a

prisoner. The Plaintiff stated that the Defendant repeatedly touched “his private area” during the

shoe shining. Id. The Plaintiff noted that he was “really thrown off and intimidated.” Id. He

testified that the Defendant retaliated against him based upon his refusal to perform oral sex. Id.

at 23. He further testified that the Defendant’s actions were sexual abuse and that he was

“mentally scarred” and had to seek mental health services. Id. at 24. Further, the Plaintiff

testified that he has been verbally and sexually harassed by his fellow inmates as a result of this

incident. Id. at 5. Thus, this case is factually distinguishable from DeWalt and Dobbey and is

more comparable to Beal and Welborn. Thus, whether the Plaintiff was subjected to cruel and

unusual punishment is a disputed issue of material fact that must be decided at trial.

B. Qualified Immunity

The Court also rejects the Defendant’s invocation of qualified immunity. “Qualified

immunity shields public officials from liability when they act in a manner that they reasonably

believe to be lawful.” Gonzalez v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009) (citing

Anderson v. Creighton, 483 U.S. 635, 638–39 (1987)). “Qualified immunity is ‘an immunity

from suit rather than a mere defense to liability.’” Pearson v. Callahan, 555 U.S. 223, 237

(2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). “The plaintiff carries the burden

of defeating the qualified immunity defense.” Chasensky v. Walker, 740 F.3d 1088, 1095 (7th

Cir. 2014). “To overcome a defendant’s invocation of qualified immunity, a plaintiff must show

(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly

established at the time of the challenged conduct.” Green v. Newport, 868 F.3d 629, 633 (7th Cir.

2017) (internal quotation marks omitted). A right is clearly established when “there is ‘a clearly

analogous case establishing a right to be free from the specific conduct at issue’ or that ‘the

conduct is so egregious that no reasonable person could have believed that it would not violate

clearly established rights.’” Gonzalez, 578 F.3d at 540 (quoting Smith v. City of Chicago, 242

F.3d 737, 742 (7th Cir. 2001)); see also Chasensky, 740 F.3d at 1094. “If either inquiry is

answered in the negative, the defendant official is entitled to summary judgment.” Gibbs v.

Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (emphasis in original).

When the facts are viewed in the light most favorable to the nonmoving party, the

Defendant violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The

Defendant pressured the Plaintiff to perform oral sex. DE 43-1, pp. 16-17. This request was

made by an individual in a position of power over a prisoner. Id. The Defendant also touched his

genitals from the exterior of his clothing while the Plaintiff shined his shoes. Id. at 17-18. The

Defendant retaliated against the Plaintiff when he refused to perform oral sex. Id. at 23. As a

result of the Defendant’s actions, the Plaintiff was intimidated and suffered psychological

distress. Id. at 18, 24. Further, the Plaintiff was also subjected to harassment by his fellow

prisoners as a result of the Defendant’s actions. Id. at 5. Thus, when viewed in the light most

favorable to him, the Plaintiff was subjected to cruel and unusual punishment.

Furthermore, the Plaintiff’s constitutional right to be free from this punishment was

clearly established. “Inmates have long had a clearly established right to be free from

intentionally inflicted psychological torment and humiliation unrelated to penological interests.”

Leiser v. Kloth, 933 F.3d 696, 703 (7th Cir. 2019) (citing Hudson v. Palmer, 468 U.S. 517, 530

(1984); King v. McCarty, 781 F.3d 889, 892 (7th Cir. 2015); Beal, 803 F.3d at 359; Mays v.

Springborn, 575 F.3d 643, 649 (7th Cir. 2009)). Moreover, cases such as Beal

are clearly analogous to the facts of this case. Regardless, no reasonable prison guard could have

believed that pressuring an inmate to perform oral sex would be lawful. Accordingly, the

Defendant’s invocation of qualified immunity is denied.

IV. CONCLUSION

For the reasons stated above, the Defendant’s Motion for Summary Judgment [DE 41] is

DENIED.

SO ORDERED.

ENTERED: August 19, 2020

/s/ JON E. DEGUILIO

Chief Judge

United States District Court