# LEWIS v. ROSS

> District Court, S.D. Indiana · November 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10167080

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** November 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10167080

## How later opinions describe it (automated extraction)

- noting that, without evidence of injury, "the summary judgment record revealed and left nothing for Lord to present to a jury at trial."

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DEMONAE DESHAWN LEWIS, )
)
Plaintiff, )
)
v. ) No. 1:18-cv-03986-SEB-TAB
)
ROSS Sgt., )
)
Defendant. )

Order Providing Notice of Intent to Grant Summary Judgment and
Directing Plaintiff to Show Cause

Plaintiff Demonae Lewis, who at all relevant times was incarcerated at Pendleton
Correctional Facility ("PCF"), brought this action pursuant to 42 U.S.C. § 1983 against defendant
Sgt. Ross alleging that he violated Mr. Lewis's Eighth Amendment rights by threatening to have
him physically or sexually assaulted.
Sgt. Ross now moves for summary judgment on the merits of Mr. Lewis's claim. Mr. Lewis
has not responded to the defendant's motion, and the time to do so has passed, leaving the
defendant's motion unopposed. The Court finds that Sgt. Ross's threats may be actionable but that
the record demonstrates there is no genuine issue of material fact that Mr. Lewis has not suffered
a compensable injury. The Court orders Mr. Lewis to show cause why it should not dismiss this
action with prejudice and enter final judgment in Sgt. Ross's favor pursuant to Federal Rule of
Civil Procedure 56(f)(2)–(3).
I. Standard of Review
Summary judgment should be granted "if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(a). "A genuine dispute as to any material fact exists 'if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.'" Daugherty v. Page, 906 F.3d 606, 609−10
(7th Cir. 2018). The Court views the record in the light most favorable to the non-moving party
and draws all reasonable inferences in that party's favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d
708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary

judgment because those tasks are left to the factfinder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th
Cir. 2014).
I. Factual Background
As noted above, Mr. Lewis failed to respond to the defendant's motion for summary
judgment. The consequence is that Mr. Lewis has conceded the defendant's version of the events.
See Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) ("[F]ailure to respond by the nonmovant as
mandated by the local rules results in an admission."). The local rule provides:
A party opposing a summary judgment motion must . . . file and serve a response
brief and any evidence . . . that the party relies on to oppose the motion. The
response must . . . identif[y] the potentially determinative facts and factual disputes
that the party contends demonstrate a dispute of fact precluding summary judgment.

S.D. Ind. Local Rule 56-1. This does not alter the standard for assessing a Rule 56 motion, but it
does "[r]educ[e] the pool" from which the facts and inferences relative to such a motion may be
drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).
Accordingly, the following facts, unopposed by Mr. Lewis and supported by admissible
evidence, are accepted as true.1
Mr. Lewis was moved into the H cellhouse ("H House") at PCF on August 31, 2018.
Dkt. 50-1 at 13. The next day, Mr. Lewis asked Sgt. Ross about his medication, and Sgt. Ross

1 The defendant's facts are drawn almost exclusively from Mr. Lewis's deposition, admitted as
exhibit 50-1. The Court, also relying on the deposition, includes more details because the omitted
facts are relevant to the Court's analysis.
became aggressive and told Mr. Lewis that he was going to have Mr. Lewis sexually assaulted or
beat up because it was "his house." Id. at 14–16.
About an hour later, Mr. Lewis reported the threats to a nurse who was walking through
the cellblock, advising her that he wanted to file a complaint under PREA.2 Id. at 14. He stated,

"And I told her specifically because he was the sergeant of the house, so I can't go above him
because the COs won't go above him. So I had her – I couldn't just tell him I wanted to file a PREA
on him." Id. at 15. At that point, Mr. Lewis was taken to the infirmary to be interviewed, and
Sgt. Ross was removed from H House pending an investigation, the results of which are unknown.
Id. at 15, 19. A few days later, Mr. Lewis went on suicide watch. Id. at 17. He stated he did so
because he feared for his life because other inmates in H House were "yelling out stuff saying that
they heard me get into it with the sergeant, whatever, and they heard what he was saying and I'm
not going to come over there and mess things up." Id. at 17. While on suicide watch, Mr. Lewis
told a captain, a counselor, and mental health staff that he feared for his life in H House. Id. at 17–
19.

At some point, Mr. Lewis returned to H House. He did not request protective custody,
because that would have resulted in him being placed in segregation when he only wanted to be
transferred out of H House. Id. at 35–36. On September 16, 2018, a little over two weeks after
Sgt. Ross threatened Mr. Lewis, an inmate stabbed Mr. Lewis as the inmates were leaving their
cells in H House to go to dinner. Id. at 19–20. Mr. Lewis had no warning he was going to be
assaulted. Id. at 24.
When asked why he thought he was stabbed, Mr. Lewis stated, "I don't know. Like I said,
I only been here a few months at the time." Dkt. 50-1 at 20–21. However, Mr. Lewis had not had

2 "PREA" stands for the Prison Rape Elimination Act.
problems with any other inmates until Sgt. Ross threatened him, stating, "[T]he reason why I went
on suicide watch because there was people yelling that I was getting into it with the sergeant,
making it hot over there. And they were . . . hot, meaning basically bringing the police around and
getting people in trouble." Id. at 21. Still, no one has told Mr. Lewis that Sgt. Ross ordered the

assault, and Mr. Lewis has no evidence otherwise that Sgt. Ross ordered the assault. Id. at 21–22.
Mr. Lewis had three or four puncture wounds on his body which were treated with
bandages and cream in the infirmary. Id. at 22. He was never hospitalized for the injuries, nor did
he incur any medical bills. Id. at 24. Mr. Lewis did not suffer any mental health issues as a result
of Sergeant Ross's threats. Id. at 24–25.
II. Discussion
"The Eighth Amendment prohibits cruel and unusual punishments that involve the
unnecessary and wonton infliction of pain." Lisle v. Welborn, 933 F.3d 705, 716 (7th Cir. 2019)
(citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). "The prohibition also includes acts totally
without penological justification." Id. (internal quotation marks and citations omitted.). "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) (internal citations omitted). Sgt. Ross argues that his comments were mere harassment
and not actionable, and, in the alternative, that he is protected by qualified immunity.
a. Sergeant Ross's Comments
Although "most verbal harassment by jail or prison guards does not rise to the level of cruel
or unusual punishment[,] … some does." Beal v. Foster, 803 F.3d 356, 358 (7th Cir. 2015). "The
line between 'mere' harassment and 'cruel and unusual punishment' is fuzzy." Dobbey v. Ill. Dep't
of Corr., 574 F.3d 443, 446 (7th Cir. 2009). The test for whether a prison guard's threatening
statement constitutes cruel and unusual punishment is objective. "It is not the actual fear of the
victim, but what a 'reasonable' victim would fear." Id. (citing Farmer v. Brennan, 511 U.S. 825,
834 (1994)).
Sgt. Ross argues that his threats to have Mr. Lewis beaten or sexually assaulted do not

constitute cruel and unusual punishment. He relies largely on two Seventh Circuit cases for the
proposition that his comments are not actionable. In DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.
2000), the court held that, "[s]tanding alone, simple verbal harassment does not constitute cruel
and unusual punishment . . . ." There, a prison guard made sexually suggestive and racially
derogatory comments to an inmate, but his comments did not include any threats of violence.
Similarly, in Dobbey, the court found that a white correctional officer's act of temporarily hanging
a noose in the control room and looking at the African-American plaintiff with "evil eyes" did not
state a claim because the incident could only be interpreted as racial harassment rather than a bona
fide threat of harm. 574 F.3d at 446.
But the Seventh Circuit has since clarified that the language in DeWalt was "too broad,"

and explained that in some instances verbal harassment may amount to cruel and unusual
punishment. Welborn, 933 F.3d at 716 (citing Beal, 803 F.3d at 357, and Hughes v. Scott, 816 F.3d
955 (7th Cir. 2016)). In Welborn, the court found that a nurse's comments encouraging a mentally
ill inmate to commit suicide could be found by a jury to be "cruel infliction of mental pain" because
the nurse was aware of the plaintiff's vulnerability, reversing summary judgment in favor of the
defendant. Id. at 718–19.
The facts in Beal, where the court also distinguished DeWalt, are similar to those in this
case. There, a correctional officer made sexual comments in front of other inmates that insinuated
the plaintiff was gay, and he urinated in front of the plaintiff while looking at him and smiling. Id.
at 358. The plaintiff alleged that after the officer made the comments, other inmates started to
harass him by using derogatory language toward him. Id. The court noted the connection between
the statements made by the sergeant and the subsequent comments made by the inmates:
"Conceivably the plaintiff feared that Sergeant Schneider's comments labeled him a homosexual

and by doing so increased the likelihood of sexual assaults on him by other inmates." Id. Similarly,
after Sgt. Ross threatened to have Mr. Lewis beaten or sexually assaulted because Mr. Lewis
resided in "his house," other inmates began harassing Mr. Lewis and accusing him of causing
trouble in the cellblock. This induced Mr. Lewis to go into suicide watch because he was afraid
for his own life. And indeed, Mr. Lewis was stabbed by an inmate, despite having no problems
with inmates outside of the comments made to him after Sgt. Ross's threats. The fact that Sgt. Ross
made the threats on one occasion is irrelevant in light of the fact that he was temporarily removed
from H House while prison administrators investigated his actions. A factfinder could conclude
that Sgt. Ross's threats induced reasonable fear in Mr. Lewis.3
b. Damages

However, the Court finds that summary judgment still must be granted in Sgt. Ross's favor.
To recover damages under § 1983, Mr. Lewis must produce evidence of a recoverable injury. Lord
v. Beahm, 952 F.3d 902, 905 (7th Cir. 2020) (citing in part Roe v. Elyea, 631 F.3d 843, 863 (7th
Cir. 2011) (noting because § 1983 "created a species of tort liability . . . [a] successful § 1983
plaintiff therefore must establish not only that a state actor violated his constitutional rights, but
also that the violation caused the plaintiff injury or damages." (internal citations omitted)). In Lord,
the plaintiff alleged that prison guards were deliberately indifferent to his risk of suicide. The

3 By omitting any reference to the inmates' taunts in his statement of facts and failing to cite the
recent Seventh Circuit caselaw that distinguished DeWalt, the defendant presented an overly
simplistic argument to the Court.
inmate told a guard he was going to kill himself and was later found with minor cuts on his wrists
that were treated with gauze and bandages. The Seventh Circuit found that because his injuries
were "trivial" and the plaintiff failed to allege any psychological harm resulting from the suicide
attempt, he failed to "show that he experienced any cognizable harm." Id. Similarly, Mr. Lewis's

injuries were minor, and he incurred no costs for their treatment. With respect to psychological
harm, Mr. Lewis did not seek out any mental health treatment or receive any mental health
diagnoses because of Sgt. Ross's threats.
Accordingly, although a reasonable factfinder could conclude that Sgt. Ross's threats were
so serious that they rose to the level of cruel and unusual punishment, Sgt. Ross is entitled to
summary judgment because Mr. Lewis produced no evidence of a recoverable injury.4 See Lord,
952 F.3d at 905 (noting that, without evidence of injury, "the summary judgment record revealed
and left nothing for Lord to present to a jury at trial.").
Because the defendant did not argue for summary judgment based on the lack of damages,
Mr. Lewis must have an opportunity to argue that there is a genuine issue of material fact that he

suffered a compensable injury. See Fed. R. Civ. P. 56(f)(2) ("(f) Judgment Independent of the
Motion. After giving notice and a reasonable time to respond, the court may: . . . (2) grant the
motion on grounds not raised by a party"); Southern Ill. Riverboat Casino Cruises, Inc. v. Triangle
Insulation and Sheet Metal Co., 302 F.3d 667, 677 (7th Cir. 2002) (noting a district court generally

4 Because the Court finds no Eighth Amendment violation, the Court need not reach the defendant's
argument that he is protected by qualified immunity. See Flournoy v. City of Chi., 829 F.3d 869,
877 n.10 (7th Cir. 2016) ("The defendants alternatively argue that we should affirm based on
qualified immunity. Because we uphold the jury's verdict that no constitutional violation occurred,
we do not reach this alternative argument.").
lacks the power to grant summary judgment sua sponte unless it has given the party against whom
judgment is being entered notice and a fair opportunity to present evidence in opposition).
I. Conclusion
Pursuant to Rule 56(f)(2), the Court gives the parties notice of its intent to grant summary
judgment in Sgt. Ross's favor due to the lack of evidence of any compensable injury. Mr. Lewis
shall have until November 23, 2020, to show cause why judgment for Sgt. Ross should not be
entered. The defendant shall have through December 3, 2020, to file a response if necessary.
Mr. Lewis's failure to respond in the time provided will result in the entry of final judgment
for the reasons set forth above without further warning or opportunity to show cause.
IT IS SO ORDERED.
Date: __11/3/2020 Fut, Brous Biker
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Distribution:
DEMONAE DESHAWN LEWIS
178250
PENDLETON - CF
PENDLETON CORRECTIONAL FACILITY
Electronic Service Participant — Court Only
All Electronically Registered Counsel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10167080. Public record. Not legal advice.