Darryl Lewis v. Michael Downey

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2960

D ARRYL L. L EWIS,

Plaintiff-Appellant,

v.

M ICHAEL D. D OWNEY, T ODD S CHLOENDORF,

M ICHAEL S HREFFLER, JEAN FLAGEOLE,

M IGUEL A YALA, and K ANKAKEE C OUNTY,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 06 C 02091—David G. Bernthal, Magistrate Judge.

A RGUED M ARCH 30, 2009—D ECIDED S EPTEMBER 4, 2009

Before K ANNE, W OOD , and W ILLIAMS, Circuit Judges.

K ANNE, Circuit Judge. Darryl Lewis was a federal pris-

oner in custody at a county jail facility in northern Illi-

nois. Lewis filed a civil action pursuant to 42 U.S.C. § 1983

after jail officials shot him with a taser gun when

he failed to comply with an order to rise from his bed.

Lewis claimed the taser shot constituted cruel and

unusual punishment in violation of the Eighth Amend-

2 No. 08-2960

ment. He also attempted to present a Fourteenth Amend-

ment claim arising from his placement in segregation

without the benefit of a hearing. The district court dis-

missed Miguel Ayala, for lack of personal involvement,

and we affirm that dismissal. Further, the district court

granted summary judgment in favor of all other defen-

dants. Darryl Lewis did not challenge on appeal the entry

of summary judgment in favor of defendants Michael D.

Downey, Todd Schloendorf, Jean Flageole and Kankakee

County. The grant of summary judgment in favor of those

defendants is affirmed. However, as to the remaining

defendant pursued in this appeal, we are obligated to

accept Lewis’s version of events, and we vacate the grant

of summary judgment in favor of Michael Shreffler and

remand that portion of this case for further proceedings.

I. B ACKGROUND

In November 2005, a federal jury found Lewis guilty of

being a felon in possession of a firearm. While awaiting

sentencing and the entry of final judgment, Lewis was

held in the Jerome Combs Detention Center, a county jail

facility in Kankakee County, Illinois.1 On January 26,

2006, Lewis engaged in a physical altercation with

1

Due to a significant and unfortunate lack of federal pretrial

detention housing throughout the United States, it is not

unusual for federal prisoners awaiting trial or sentencing to be

held in county jail facilities. See 18 U.S.C. § 4002 (empowering

the Attorney General to contract with states or their political

subdivisions “for the imprisonment, subsistence, care, and

proper employment” of federal prisoners).

No. 08-2960 3

another inmate. Guard Todd Schloendorf entered the

cell block, restrained Lewis, and placed him in segregation

in the jail’s maximum security area. According to Lewis,

he was never given any type of hearing regarding his

stay in segregation. The next day, Lewis began a hunger

strike during which he refused to eat the jail’s three

daily meals. He continued the hunger strike for approxi-

mately twenty days, ending around February 15.

February 6 was Lewis’s eleventh day of fasting. That

morning, he rang the intercom in his cell and requested

medical assistance because he was not feeling well. The

officer responding to the call denied Lewis’s request,

asserting that Lewis had recently refused medical treat-

ment. Lewis, who had previously received a bottle of

Motrin-brand ibuprofen tablets from the nurse, held the

bottle up to the security camera and told the officer

over the intercom that he would “take care of my pain

myself.” In anger, he threw the bottle to the floor, and

the pills and bottle scattered around his cell and under

his bunk. Lewis then claims he became dizzy and tired.

He laid down. Several minutes later, three guards—

defendants Michael Shreffler2 and Miguel Ayala and non-

party Marlin Woods—entered Lewis’s cell. Shreffler

ordered Lewis off the bed.

2

Throughout the record below, and the filings with this court,

this defendant-appellee, has alternately been referred to as

Michael Shreffler or Schreffler. For the sake of consistency,

we will use the spelling as it appears in the district court’s

order of summary judgment: Michael Shreffler.

4 No. 08-2960

The parties dispute the events that followed.

According to Lewis, he was weak from the hunger

strike and sick from ingesting Motrin, rendering him

sluggish and unable to respond quickly to Shreffler’s

directive. Instead of standing, Lewis says that he turned

his head toward the officers, and before he could

explain his failure to comply and without further

warning or provocation, Shreffler shot him in the leg

with a taser gun. Lewis asserts that the shock from

the taser lasted several seconds and caused him to slide

to the floor. The officers then handcuffed Lewis, took

him from the cell, and cleaned up the scattered pills.

Shreffler, Ayala, and Woods each filed an affidavit.

According to their version of events, they entered the

cell in response to Lewis’s threat to take an overdose of

Motrin, which jail officials viewed as a suicide threat. Once

inside, the officers claim that Shreffler ordered Lewis to

lie on the floor with his hands behind his back so that

they could handcuff him, an order that Shreffler

repeated at least three times. Lewis refused each of these

orders, cursing and yelling at the officers. It was then

that Woods, the group’s ranking member, ordered

Shreffler to shoot Lewis with the taser, which he did. The

officers removed Lewis from the cell and cleaned up the

pills.

Acting pro se, Lewis filed a civil action pursuant to 42

U.S.C. § 1983.3 The complaint contained two allegations

3

An interesting question not presented by either party is the

applicability of § 1983 to employees of a local correctional

(continued...)

No. 08-2960 5

relevant to this appeal. First, Lewis alleged that Shreffler

and Ayala violated Lewis’s Eighth Amendment right to

be free of cruel and unusual punishment by shooting

him with the taser. Second, Lewis averred that Officer

Schloendorf ran afoul of the Fourteenth Amendment by

placing him in segregation without a hearing.

The defendants filed a motion for summary judgment,

which a federal magistrate judge granted on July 2,

3

(...continued)

facility that is housing federal inmates under contract between

the federal and local governments. See 18 U.S.C. § 4002. A county

employee caring for federal prisoners arguably becomes a

federal actor, rather than the requisite state actor, rendering

§ 1983 inapplicable. See 42 U.S.C. § 1983; cf. Wilkinson v. Dotson,

544 U.S. 74, 87 (2005) (Scalia, J., concurring) (noting, in a

different context, that federal prisoners whose custodians

are not acting under color of state law cannot sue pursuant to

§ 1983); Sandoval v. Wackenhut Corr. Corp., No. 93-8582, 1994

WL 171703, at *2 n.3 (5th Cir. Apr. 28, 1994) (recognizing

that employees of a privately run correctional facility operated

under contract with the federal government were not state

actors for purposes of § 1983). Because it is not currently

before us, we reserve our answer to the question for another

day. We doubt, however, that the contractual relationship does

anything to change the status of county jail employees as state

actors. Cf. Logue v. United States, 412 U.S. 521, 528-32 (1973)

(declining, for purposes of federal government liability

under the Federal Tort Claims Act, to characterize as federal

employees county jailers who were caring for federal prisoners).

6 No. 08-2960

2008.4 In pertinent part, the magistrate judge found “that

the force applied to Plaintiff was done in a good faith

effort to maintain discipline and jail security and not to

maliciously or sadistically cause harm to Plaintiff.” The

court further held that the taser was a de minimis use

of force that did not implicate Eighth Amendment con-

cerns. The court also dismissed Officer Ayala as a party

to the lawsuit, stating that “he lacked any personal in-

volvement in the February 6, 2006, incident.” The court

did not address Lewis’s due process claim arising from

his placement in segregation without a hearing.

II. A NALYSIS

On appeal, Lewis contends that the magistrate judge

erred by (1) dismissing Officer Ayala from the lawsuit;

(2) granting the defendants’ motion for summary judg-

ment on his Eighth Amendment claim; and (3) refusing

to address his Fourteenth Amendment claim.

A. Officer Ayala’s Dismissal from the Lawsuit

In their motion for summary judgment, the defendants

argued that the court should dismiss Officer Ayala from

the suit due to his lack of personal involvement in the

4

Lewis filed his original action in the United States District

Court for the Northern District of Illinois. The case was later

transferred to the Central District of Illinois, where Kankakee

County is located, after which the parties consented to

proceed before a magistrate judge. See Fed. R. Civ. P. 73.

No. 08-2960 7

events surrounding the February 6 taser shot. The magis-

trate judge agreed and dismissed Ayala, a decision

Lewis now claims was in error.

It is uncontested that Ayala played no direct role in the

taser incident. Officer Shreffler fired the taser at the

command of his superior officer, Corporal Woods. Even

as a bystander, however, Ayala can be held liable under

§ 1983 if Lewis can show that Ayala (1) had reason to

know that a fellow officer was using excessive force or

committing a constitutional violation, and (2) had a

realistic opportunity to intervene to prevent the

act from occurring. See Chavez v. Ill. State Police, 251

F.3d 612, 652 (7th Cir. 2001); see also Harper v. Albert,

400 F.3d 1052, 1064 (7th Cir. 2005).

According to Lewis’s version of events, which, as we will

discuss below, we must accept as true on a motion for

summary judgment, see Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986) (“The evidence of the non-movant is

to be believed, and all justifiable inferences are to be

drawn in his favor.”), Ayala did not have a realistic

opportunity to stop Shreffler from discharging the taser

gun. In his deposition, Lewis discussed at length how

quickly Shreffler shot him with the taser after ordering

him off the bed. Lewis said that the shot came “[b]efore

I could say I can’t get up.” Even assuming Lewis was

as sluggish as he claims, if the time between the order

and the shot was so brief that Lewis could not respond,

we decline to hold Officer Ayala liable for failing to

respond as well. Ayala’s dismissal from the lawsuit

was appropriate.

8 No. 08-2960

B. Lewis’s Excessive Force Claim

Turning next to Lewis’s excessive force claim, we

review de novo the district court’s decision to grant sum-

mary judgment. See Outlaw v. Newkirk, 259 F.3d 833, 836

(7th Cir. 2001). Summary judgment is appropriate if,

after resolving all disputed facts and drawing all reason-

able inferences in favor of Lewis, the nonmoving party,

there remains no genuine issue of material fact. See Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); see also Anderson, 477 U.S. at 248 (stating that

summary judgment is precluded “if the evidence is such

that a reasonable jury could return a verdict for the

nonmoving party”).

Lewis filed suit pursuant to 42 U.S.C. § 1983, which

provides that a person may not be deprived of any consti-

tutional right by an individual acting under color of

state law. The act authorizes claimants to sue persons in

their individual capacities who are alleged to have

violated such rights. See Lekas v. Briley, 405 F.3d 602, 606

(7th Cir. 2005) (“[A § 1983] plaintiff must allege that

the defendants deprived him of a right secured by the

Constitution or laws of the United States, and that the

defendants acted under color of state law.” (quotations

omitted)); see also 42 U.S.C. § 1983; Gomez v. Toledo, 446

U.S. 635, 640 (1980).

Lewis’s claim on appeal is that Shreffler 5 applied exces-

5

Officers Ayala and Woods entered Lewis’s cell with Shreffler.

We have approved Ayala’s dismissal from the suit, and Lewis

did not name Woods as a defendant, leaving Shreffler as the

(continued...)

No. 08-2960 9

sive force when he shot Lewis with a taser gun, thereby

violating the Eighth Amendment’s prohibition on cruel

and unusual punishment. Before addressing that

question, however, we consider the Eighth Amendment’s

applicability to someone in Lewis’s position, i.e., a person

found guilty but awaiting sentencing and final judgment.

1. The Eighth Amendment’s Applicability to Pre-Sentencing

Detainees

Although the Supreme Court has not provided a defini-

tive answer, we doubt that the Eighth Amendment was

the proper vehicle for Lewis’s suit. As we will explain, it

is unlikely that Lewis, who was awaiting sentencing

and the entry of final judgment, had yet accrued Eighth

Amendment protections. Instead, Lewis’s claims should

have been framed in terms of the Fourteenth Amend-

ment’s Due Process Clause.

The scope of an individual’s right to be free from punish-

ment—and, derivatively, the basis for an excessive force

action brought under § 1983—hinges on his status within

the criminal justice system. See Brown v. Budz, 398 F.3d 904,

910 (7th Cir. 2005). On one end of the spectrum are sen-

tenced prisoners. The Eighth Amendment protects these

individuals only from the infliction of cruel and unusual

punishment, which is often defined in the prison context as

the “ ‘unnecessary and wanton infliction of pain.’ ” Wilson

5

(...continued)

only remaining defendant on appeal of Lewis’s excessive

force claim.

10 No. 08-2960

v. Williams, 83 F.3d 870, 875 (7th Cir. 1996) (quoting Whitley

v. Albers, 475 U.S. 312, 319 (1986)).

Pretrial detainees, by contrast, have not been convicted

or sentenced and thus are not yet “punishable” under the

law. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (“[A pre-

trial] detainee may not be punished prior to an adjudica-

tion of guilt in accordance with due process of law.”).

This means that pretrial detainees “may not be ‘pun-

ished’ by the state in any way.” Wilson, 83 F.3d at 875

(emphasis added). As such, pretrial detainees couch

excessive force claims as violations of their Fourteenth

Amendment rights to due process, not infringements on

the Eighth Amendment’s ban on cruel and unusual

punishment. See Brown, 398 F.3d at 910; Butera v. Cottey,

285 F.3d 601, 605 (7th Cir. 2002); Pardue ex rel. Estate of

Cole v. Fromm, 94 F.3d 254, 259 n.1 (7th Cir. 1996).

In some contexts, such as claims of deliberate indif-

ference to medical needs, the Eighth and Fourteenth

Amendment standards are essentially interchangeable.

See, e.g., Williams v. Rodriguez, 509 F.3d 392, 401 (7th Cir.

2007); Guzman v. Sheahan, 495 F.3d 852, 856-57 (7th Cir.

2007); Whiting v. Marathon County Sheriff’s Dep’t, 382

F.3d 700, 703 (7th Cir. 2004). But the distinction between

the two constitutional protections assumes some impor-

tance for excessive force claims because the Due

Process Clause, which prohibits all “punishment,” affords

broader protection than the Eighth Amendment’s pro-

tection against only punishment that is “cruel and un-

usual.” See Wilson, 83 F.3d at 875 (noting that the Four-

teenth Amendment’s protection “necessarily extends

beyond the prohibition of merely ‘cruel and unusual’

No. 08-2960 11

punishment,” resulting in “a higher standard [of protec-

tion] than that provided by the Eighth Amendment”); see

also Anderson v. Gutschenritter, 836 F.2d 346, 349 (7th Cir.

1988). Although the exact contours of any additional

safeguards remain undefined, see Wilson, 83 F.3d at 875,

it is nonetheless important that we identify the appro-

priate source of Lewis’s constitutional protection

against the use of excessive force, see Graham v. Connor,

490 U.S. 386, 394 (1989) (noting that analysis of

excessive force claims brought pursuant to § 1983

“begins by identifying the specific constitutional right

allegedly infringed”).

At the time of relevant events, Lewis was neither a

pretrial detainee nor a sentenced prisoner. He had been

found guilty in a federal court and was in a county jail

awaiting sentencing and the entry of final judgment. The

question is whether a person in this purgatory within

our criminal justice system is cloaked with the Eighth

Amendment’s limited safeguards against only “cruel and

unusual” punishment or the Fourteenth Amendment’s

broader protections against punishment “in any way.”

See Wilson, 83 F.3d at 875.

The Supreme Court has not directly addressed whether

the Eighth Amendment is applicable to presentencing

detainees, but it has indicated that the answer is no.

According to the Court, “the State does not acquire the

power to punish with which the Eighth Amendment

is concerned until after it has secured a formal adjudica-

tion of guilt in accordance with due process of law.”

Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977). The

Court later confirmed that such a “formal adjudication”

12 No. 08-2960

includes both conviction and sentence. Graham, 490 U.S.

at 392 n.6 (noting that Ingraham established that “the

Eighth Amendment’s protections did not attach until

after conviction and sentence” (emphasis added)); see also

Anderson, 836 F.2d at 348 (“The Eighth Amendment . . . is

applicable only to those criminals who are serving a

sentence.”); Bailey v. Andrews, 811 F.2d 366, 373 (7th

Cir. 1987) (“[T]he eighth amendment right . . . is applicable

only to sentenced criminals.”).

This would mean that Eighth Amendment rights had

not yet vested in Lewis, who had not been sentenced.

Absent Eighth Amendment protections, his status would

be analogous to that of a pretrial detainee, meaning that

the basis for his § 1983 action should have been the Four-

teenth Amendment Due Process Clause. See Butera, 285

F.3d at 605; Pardue ex rel. Estate of Cole, 94 F.3d at 259 n.1.

The problem is that Lewis, acting pro se, alleged viola-

tions of only the Eighth Amendment, a line of argument

that his appointed counsel maintains on appeal. Further

complicating the issue is that defendants have not

objected to the improper basis for Lewis’s action—a

calculated move perhaps, given that Lewis is seeking

more limited protection than he might otherwise de-

serve. Cf. Blake v. Katter, 693 F.2d 677, 682-83 (7th Cir. 1982)

(liberally construing pro se complaint and remanding when

district court, acting on defendant’s motion, dismissed

action for improperly seeking redress under the Eighth

Amendment), overruled on other grounds by Wilson v. Garcia,

471 U.S. 261 (1985).

As we have made clear, anything that would violate the

Eighth Amendment would also violate the Fourteenth

No. 08-2960 13

Amendment. See City of Revere v. Mass. Gen. Hosp., 463

U.S. 239, 244 (1983) (“[T]he due process rights of a

person . . . are at least as great as the Eighth Amendment

protections . . . .”); Wilson, 83 F.3d at 875. Thus, we con-

clude that although we must evaluate Lewis’s claims

under what we believe is the proper basis—here, the

Fourteenth Amendment—we will do so only insofar as

the alleged conduct would have violated the Eighth

Amendment as well; we will not consider any safe-

guards the Fourteenth Amendment provides beyond

those it shares with the Eighth Amendment. Lewis has

argued only for these more limited protections. See

Pardue ex rel. Estate of Cole, 94 F.3d at 259 n.1 (finding

claim of broader Fourteenth Amendment rights

forfeited when plaintiff sought redress only under

Eighth Amendment standard). With that understanding,

we turn now to Lewis’s claims.

2. Use of a Taser Gun to Compel Compliance

The “unnecessary and wanton infliction of pain” on a

prisoner violates his rights under the Eighth Amendment.

Whitley v. Albers, 475 U.S. 312, 319 (1986) (quotations

omitted); see also Hudson v. McMillian, 503 U.S. 1, 5 (1992).

But not every “malevolent touch” by a security officer

implicates the Constitution. Hudson, 503 U.S. at 9. The

use of de minimis force, so long as it “is not of a sort repug-

nant to the conscience of mankind,” is not of Eighth

Amendment concern. Id. at 9-10 (quotations omitted). If

the force were more than de minimis, we must consider

whether it “was applied in a good-faith effort to main-

14 No. 08-2960

tain or restore discipline, or maliciously and sadistically

to cause harm.” Id. at 7.

a. Taser Gun: De Minimis Application of Force?

As one basis for his decision, the magistrate judge found

that the use of the taser gun was a de minimis application

of force. We disagree. It is undisputed that the taser sent

an electric shock through Lewis’s body strong enough

to cause him to fall from the bed and render him

helpless while officers secured him and removed him

from the cell.

As the Supreme Court has said, pain, not injury, is the

barometer by which we measure claims of excessive

force, see id. at 9, and one need not have personally en-

dured a taser jolt to know the pain that must accompany

it, see Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) (“[A]

stun gun inflicts a painful and frightening blow [that]

temporarily paralyzes the large muscles of the body,

rendering the victim helpless.”); see also Matta-Ballesteros

v. Henman, 896 F.2d 255, 256 n.2 (7th Cir. 1990) (noting

that a taser “sends an electric pulse through the body of

the victim causing immobilization, disorientation, loss of

balance, and weakness”). Thus, we hold, as the first

rung in the ladder of our analysis, that the use of a taser

gun against a prisoner is more than a de minimis applica-

tion of force.

Although such force against an inmate rises above the

inconsequential and into the constitutional realm, we

reiterate an obvious point: simply because a taser gun’s

No. 08-2960 15

use is more than de minimis force does little, if anything,

to alter its appropriate use within our detention system.

See Hickey, 12 F.3d at 757 (finding a taser’s use more than

de minimis only “if inflicted without legitimate reason” (em-

phasis added)). We remain cognizant of the important

role that non-lethal, hands-off means—including taser

guns—play in maintaining discipline and order

within detention facilities. See Soto v. Dickey, 744 F.2d

1260, 1267-70 (7th Cir. 1984).

Our conclusion merely shifts the focus of our inquiry

away from the act and to the actor, away from the

objective and to the subjective. See Hudson, 503 U.S. at 8

(distinguishing between the objective question of

whether an act is “harmful enough” and the subjective

question of whether an actor possessed a culpable state

of mind); Hickey, 12 F.3d at 756-57. What matters—and

what will generally be the decisive factor in cases such

as this—is the mindset of the individual applying the

force. That is the question to which we now turn.

b. Officer Shreffler’s State of Mind

As we stated above, only the “unnecessary and wanton

infliction of pain” violates a prisoner’s rights under the

Eighth Amendment. Whitley, 475 U.S. at 319 (quotations

omitted). The Constitution is not offended when force is

used “in a good-faith effort to maintain or restore disci-

pline.” Hudson, 503 U.S. at 7. Non-de minimis force

runs afoul of the Eighth Amendment only when it is

intended “maliciously and sadistically to cause harm.” Id.

16 No. 08-2960

The court below could have rested the grant of sum-

mary judgment on its finding of de minimis force alone,

see id. at 9-10 (excluding from “constitutional recognition”

the application of de minimis physical force), but the

magistrate judge, as an alternative basis, found that

Officer Shreffler used the taser gun “in a good faith effort

to maintain discipline and jail security and not to mali-

ciously or sadistically cause harm to Plaintiff.” Resolving,

as we must, disputed facts in Lewis’s favor, we cannot

agree.

Lewis argues that the use of the taser gun was

without penological purpose and was therefore per se

malicious. See Fillmore v. Page, 358 F.3d 496, 504 (7th Cir.

2004) (noting that the infliction of pain is per se

malicious if it is done “ ‘totally without penological just-

ification’ ” (quoting Hope v. Pelzer, 536 U.S. 730, 737

(2002))). On the contradictory record before us, we

cannot conclude, as a matter of law, that Shreffler’s

actions were without penological justification. Such a

determination rests upon disputed questions of fact that

should be left to the jury to resolve.

Jails are dangerous places, and it is without rational

dispute that security officials are justified in maintaining

decorum and discipline among inmates to minimize

risks to themselves and other prisoners. See Bell, 441

U.S. at 546 (“[M]aintaining institutional security and

preserving internal order and discipline are essential

goals that may require limitation or retraction of the

retained constitutional rights of both convicted prisoners

and pretrial detainees.”); Soto, 744 F.2d at 1269 (according

No. 08-2960 17

prison officials wide-ranging deference to adopt and

execute policies “needed to preserve internal order and

discipline”). We have previously discussed how

important it is that prisoners follow orders:

Orders given must be obeyed. Inmates cannot be

permitted to decide which orders they will obey,

and when they will obey them. . . . Inmates are

and must be required to obey orders. When an

inmate refuse[s] to obey a proper order, he is

attempting to assert his authority over a portion

of the institution and its officials. Such refusal

and denial of authority places the staff and other

inmates in danger.

Soto, 744 F.2d at 1267; see also Colon v. Schneider, 899 F.2d

660, 668-69 (7th Cir. 1990).

In many circumstances—often when faced with aggres-

sion, disruption, or physical threat—compelling compli-

ance with an order is a valid penological justification

for use of a taser. See Hickey, 12 F.3d at 759 (recognizing

that prison officials “may compel compliance with legiti-

mate prison regulations” through the use of summary

physical force). But such justification does not neces-

sarily exist every time an inmate is slow to comply with

an order. See Treats v. Morgan, 308 F.3d 868, 873 (8th Cir.

2002) (“Not every instance of inmate resistance justifies

the use of force . . . .”). What must be decided in each case,

and the issue to which we next turn, is whether the

facts surrounding the taser’s deployment—as Lewis

portrays them—demonstrated actual malice or sadistic

purpose on the part of the user.

18 No. 08-2960

Several factors are relevant in determining whether a

defendant applied force in good faith or for purposes

of causing harm, including the need for force, the

amount of force used, the threat reasonably perceived

by the officer, efforts made to temper the severity of the

force, and the extent of the injury caused by the force.

Fillmore, 358 F.3d at 504; see also Whitley, 475 U.S. at 321.

The exact sequence of events leading to the taser’s use

in this case is strongly disputed, but we are required to

view the facts in the light most favorable to Lewis. Ander-

son, 477 U.S. at 255. Doing so, we conclude that Lewis

has raised a genuine issue of material fact regarding

Shreffler’s mental state at the time he discharged the

taser, thereby precluding summary judgment.

In cases upholding the use of taser guns, the victims

have been violent, aggressive, confrontational, unruly, or

presented an immediate risk of danger to themselves

or others. Such behavior certainly increases the need for

force and often poses a threat to the security officers. In

Jackson v. Thalacker, 999 F.2d 353 (8th Cir. 1993), for exam-

ple, a prisoner verbally threatened a guard, clenched his

fists, and then lunged at the guard. Id. at 354. The Eighth

Circuit condoned the use of a taser to subdue the inmate.

Id. Similarly, in Caldwell v. Moore, 968 F.2d 595 (6th

Cir. 1992), the Sixth Circuit upheld the use of a stun

gun against an inmate who became aggressive and con-

frontational when his requests to be let out of his isola-

tion cell were denied. Id. at 596-97, 602. For seven hours,

he shouted at the jailer and kicked the cell door,

persisting in this behavior despite warnings that he

would be forced to comply if he did not calm down. Id.

No. 08-2960 19

at 597. The Tenth Circuit, in an unpublished decision,

also approved the use of a taser to force compliance

with an order given moments after the prisoner had

engaged in a physical altercation with security officers.

Hunter v. Young, 238 F. App’x 336, 339 (10th Cir. 2007).

Finally, this court has previously upheld the use of a

stun gun to calm a prisoner who was banging his head

against his concrete bed and struggling against the

guards who were attempting to restrain him. Dye v.

Lomen, 40 F. App’x 993, 995-96 (7th Cir. 2002).

Similar examples of aggressive or threatening behavior

are noticeably absent from Lewis’s version of events. At

the time he was shot, Lewis asserts that he was merely

lying on his bunk, weak and sluggish from more than ten

days without food, when Shreffler ordered him to get up.

Lewis claims that he said nothing and had time only to

turn his head toward the doorway before Shreffler shot

him with the taser. In Lewis’s story, he was given a

single order that was not repeated or accompanied by

any warning that his failure to comply would result in

use of the taser.

Looking at the sequence of events as alleged by

Lewis, we find several facts troubling: the absence of any

agitation or threat from Lewis; the short passage of time

between Shreffler’s order and the taser shot; Shreffler’s

single, unrepeated order; and the dearth of warnings

regarding the consequences of Lewis’s failure to comply.

We do not intend to mandate a checklist that detention

officers must follow before they may constitutionally

20 No. 08-2960

employ a taser. As we have said, we entrust officers

with the discretion to act appropriately in light of the

circumstances confronting them. In a jail or prison

setting, it is not hard to imagine any number of scenarios

that would justify the immediate and unadvertised use

of summary force, including taser guns.

But, based on Lewis’s facts, we cannot say that Shreffler

acted in good faith. Nor can we say that he acted mali-

ciously or wantonly. Our only conclusion is that if

we accept as true Lewis’s version of the events surround-

ing the taser shot, he has raised a genuine issue of

material fact regarding Officer Shreffler’s state of mind

when Shreffler fired the taser gun. That is enough to

preclude summary judgment. What he will be able to

prove at trial is a different question altogether, but Lewis

has presented enough here that if the jury accepted his

story, it could find in his favor. That is all we require. See

Anderson, 477 U.S. at 248 (stating that summary judgment

is precluded “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party”).

3. Qualified Immunity

Shreffler’s only remaining basis to support summary

judgment is through the protection of qualified immunity,

an argument that he presented in his motion to the magis-

trate judge. See Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). The magistrate judge decided the case on other

grounds and did not reach the immunity question. We

consider it now and conclude that Officer Shreffler is

not immune from potential liability.

No. 08-2960 21

To defeat a defense of qualified immunity, Lewis must

demonstrate (1) that the guard’s conduct violated his

constitutional rights, and (2) that the violated right was

clearly established at the time of the alleged misconduct.

See Siegert v. Gilley, 500 U.S. 226, 232 (1991); see also

Harlow, 457 U.S. at 818; Payne v. Pauley, 337 F.3d 767, 775

(7th Cir. 2003). As should be clear from the preceding

discussion, the answer to the first part of this test hinges

on the resolution of fact questions that are now in the

jury’s hands. See Hill v. Shelander, 992 F.2d 714, 717-18

(7th Cir. 1993). Thus, we can dismiss the case on sum-

mary judgment only if we find that the right that

Shreffler allegedly violated was not clearly established

at the time of the purported misconduct. See id. at 718.

This is a question of law. Marshall v. Allen, 984 F.2d 787,

793 (7th Cir. 1993) (citing Mitchell v. Forsyth, 472 U.S.

511, 528 (1985)).

To remove from Shreffler the shield of qualified immu-

nity, the right that he allegedly violated must be clearly

established “ ‘in a particularized sense.’ ” Hill, 992 F.2d

at 718 (quoting Juriss v. McGowan, 957 F.2d 345, 350 (7th

Cir. 1992)). This does not mean that the “very action in

question” must have previously been held unlawful.

Juriss, 957 F.2d at 350 (quotations omitted). Instead, we

must determine whether, operating under the state of

the law as it existed at the time of relevant events, “a

reasonable officer would have known that the

particular action at issue . . . was unlawful.” Id.; see also

Hope, 536 U.S. at 739 (stating that the contours of a consti-

tutional right “must be sufficiently clear that a rea-

sonable official would understand that what he is

22 No. 08-2960

doing violates that right” (quotations omitted)); Hill,

992 F.2d at 718.

We hold that a reasonable officer would understand

that employing a taser gun under the version of the

facts that Lewis has described would violate the

prisoner’s constitutional rights. Our case law makes this

clear. In Soto, 744 F.2d 1260, for example, a case the defen-

dants cite at length, we approved the use of chemical

agents, including mace and tear gas, “when rea-

sonably necessary to prevent riots or escape or to

subdue recalcitrant prisoners.” Id. at 1270. We also said

that similar means were appropriate in other circum-

stances, such as compelling compliance with orders, but

we cautioned that such force could not be “exaggerated or

excessive” and should generally follow “adequate

warning[s].” Id. at 1270-71. Similarly, in Dye, 40 F. App’x

993, we upheld a stun gun’s use to subdue a struggling

prisoner who was risking injury to himself and others.

Id. at 996.

Lewis claims that he was prone on his bed, weakened,

and docile. He asserts that he was told to rise one time and

was not warned that a taser would be used against him if

he failed to comply. He states that he was scarcely given

enough time to turn his head and did not otherwise

respond to Shreffler’s order. If these truly are the facts, no

reasonable officer would think that he would be justified in

shooting Lewis with a taser gun. Accepting Lewis’s story,

we conclude that Officer Shreffler is not entitled to quali-

fied immunity.

No. 08-2960 23

C. Fourteenth Amendment Right to a Hearing Before Being

Placed in Segregation

Lewis’s final argument is that the magistrate judge

erred by failing to address his Fourteenth Amendment

Due Process claim that arose from his placement in segre-

gation without a hearing. We hold that because the

claim was not properly before the magistrate judge, he

was correct not to address it, and we decline to address

the claim as well.

Section 1915A of Title 28 of the United States Code

establishes a screening procedure by which a district

court evaluates prisoner civil rights claims for purposes

of identifying those that have arguable merit. It provides

that a district court “shall review . . . a complaint in a

civil action in which a prisoner seeks redress from a

governmental . . . officer or employee.” 28 U.S.C.

§ 1915A(a). After conducting this review, the court

“shall identify cognizable claims or dismiss the com-

plaint, or any portion of the complaint, if [it] is

frivolous . . . or fails to state a claim upon which relief

may be granted.” Id. § 1915A(b)(1).

In its local rules, the Central District of Illinois has

specified the procedure that it uses to conduct the § 1915A

screening. See Fed. R. Civ. P. 83(a)(1) (empowering district

courts to enact local rules that are consistent with federal

law and rules of practice). The relevant local rule provides

as follows:

If practicable, the Court will conduct a merit

review of the complaint before service is ordered,

and enter a Case Management Order delineating

24 No. 08-2960

the viable claims stated, if any. . . . [T]he case shall

proceed solely on those claims identified in the

Case Management Order. Any claims not defined

in the Case Management Order will not be included in

the case . . . .

C.D. Ill. R. 16.3(C) (emphases added). Thus, one method

the Central District has established for dismissing unwar-

ranted claims, as required under § 1915A, is to omit

them from its case management order. That is what

occurred here.

On March 19, 2007, the district court conducted a merit

review as provided in Local Rule 16.3. The following

day, it issued a case management order that defined

the issues that Lewis could pursue in his civil action. The

order, to which Lewis never objected, made no mention

of Lewis’s stay in segregation or the jail’s failure to

conduct any related hearings. As set forth in Local Rule

16.3, the absence of any such claim in the case manage-

ment order resulted in its elimination from the case.

When evaluating the defendants’ motion for sum-

mary judgment, the magistrate judge adhered to the

court’s local rules and considered only those claims

approved in the case management order. Lewis could not

resurrect that claim then, and he cannot resurrect it now.

Were we to now consider its merits, we would be disre-

garding the integrity of the system established by the

district court. This we decline to do.

No. 08-2960 25

III. C ONCLUSION

We A FFIRM the magistrate judge’s dismissal of Miguel

Ayala as a party to the lawsuit. Darryl Lewis did not

challenge on appeal the entry of summary judgment in

favor of Michael D. Downey, Todd Schloendorf, Jean

Flageole, and Kankakee County, and that portion of the

summary judgment is A FFIRMED. However, as to Michael

Shreffler, the remaining defendant that was pursued in

this appeal, we V ACATE the grant of summary judgment

in his favor and R EMAND that portion of this case for

further proceedings. Finally, we decline to consider the

merits of Lewis’s due process argument. It is not

properly before us.

9-4-09